Higher Education (Freedom of Speech) Act 2023 | Commitment to Campus Free Speech Reaffirmed by Government

On 15 January 2025, the Education Secretary confirmed that provisions of the Higher Education (Freedom of Speech) Act 2023 will be brought into force, strengthening the free speech rights of students, academics, and speakers in providers registered with the Office for Students (OfS). But what does this mean in practice?

What is changing in the Higher Education (Freedom of Speech) Act 2023?

The act requires universities, other registered providers, and their constituent institutions in England to take steps to ensure lawful freedom of speech on campus. Provisions of the Act which are not already in force (as listed in regulations 2 and 3 of the 2024 Regulations) were originally due to come into effect in August 2024, and then September 2025. However, this was placed on pause last year due to concerns that the legislation was potentially disproportionate, burdensome, and damaging to the welfare of students by increasing “hate speech” on campuses.

The Education Secretary has now said that the government will progress with the legislation with significant changes designed to protect free speech whilst “avoiding implementing excessive and burdensome provisions which could have exposed struggling universities to disproportionate costs, diverting money away from students to pay lawyers.”

What can we expect from the act now?

• The statutory tort will be repealed.
• The OfS will have the power to investigate complaints over alleged breaches of free speech from staff, external speakers and members of registered providers, as well as issuing fines for non-compliance. In the most extreme cases, providers could risk suspension of their registration if they fail to discharge their duties.
• All higher education students will be able to make similar complaints to the Office of the Independent Adjudicator (OIA).
• There will be a complete ban on the use of non-disclosure agreements in cases of bullying, harassment, or sexual misconduct on campus, which will be upheld by the OfS. Separately, the OfS’s new registration condition E6 will, from August 2025, in any event prevent the use of non-disclosure agreements in cases where students allege harassment and sexual misconduct.
• The government has removed the duties placed directly on students’ unions to avoid them having to take on complex legal responsibilities which would distract them from their work to support the students.

What else can we expect in the future?

A policy paper is expected to set out the government’s proposals in relation to the act in more detail, however, there has been no indication of when this paper will be available.

The OfS will also need to finalise its approach to the complaints scheme and related guidance. It consulted on these before implementation was paused last year, and there was substantial concern about its approach at that time. It remains to be seen whether it will choose to reconsider its approach and consult again or simply adopt its previous proposals, potentially revised in light of the previous consultation responses. Guidance will also be needed on the duty to promote free speech.

If you have any queries or concerns about the anticipated provisions, then please get in touch.