The Higher Education (Freedom of Speech) Act 2023 (the “Act”) received Royal Assent on 11 May 2023. However, the majority of the provisions are not yet in force and the Secretary of State will need to make the relevant statutory instrument(s) before the remainder of the Act becomes law.

What is the purpose of the Act?

The key purpose is to ensure higher education providers comply with their enhanced freedom of speech duties or now risk facing sanctions from the Office for Students (the “OfS”) and legal claims.

What does the Act do?
  • Strengthens freedom of speech duties which are currently imposed by s43 of the Education (No.2) Act 1986 on providers registered with the OfS;
  • Creates a new duty for registered providers to promote lawful freedom of speech and academic freedom in higher education;
  • Creates duties regarding freedom of speech for constituent institutions of registered providers;
  • Creates new duties regarding freedom of speech for students’ unions at approved (fee cap) providers;
  • Creates a new statutory tort for breach of specified freedom of speech duties, enabling individuals to seek legal redress for loss (both pecuniary and non-pecuniary) they have suffered as a result of breaches;
  • Creates a new OfS complaints scheme, allowing individuals to seek redress, including compensation for loss they have suffered as a result of breaches of specified duties;
  • Enhances academic freedom protections by extending coverage to include recruitment and promotion;
  • Introduces new registration conditions for registered providers on freedom of speech and academic freedom;
  • Introduces regulation by the OfS of students’ unions at approved (fee cap) providers regarding their compliance with the new duties;
  • Creates a new role within the OfS of a Director for Freedom of Speech and Academic Freedom, to promote freedom of speech and academic freedom, and investigate any infringements of the duties.
What are the new and amended provider duties under the Act?

A1: Core Duties

  1. Duty to take steps to secure freedom of speech

The governing body of a registered provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve the objective.

The key objective is to secure freedom of speech within the law for staff, members and students of the provider and visiting speakers. For example, by making sure that any body or individual is not denied the use of the provider’s premises on the basis of their views.

The reference to ‘having particular regard’ is a new concept and there is minimal detail available as to what this entails in practice.

  1. Duty to secure academic freedom

There is a duty to secure the academic freedom of academic staff at a registered provider, and their freedom within the law to (a) question and test received wisdom and (b) put forward new ideas and controversial/unpopular opinions without placing themselves at risk of being adversely affected i.e. losing their jobs or privileges.

Separately this extends to recruitment and promotion. An academic cannot be excluded from promotion or refused a new job on the basis of having exercised their academic freedom.

A2: Code of Practice

  1. Duty to publish a code of practice

The governing body of a registered provider must maintain a code of practice setting out various matters, including:

  • Its values relating to freedom of speech and an explanation of how those values uphold freedom of speech;
  • The procedures to be followed by staff, students and any students’ union in connection with the organisation of meetings or other activities which are to take place on the provider’s premises that fall within the scope of the code;
  • The conduct required of individuals in connection with any such meeting or activity;
  • The criteria to be used by the provider when deciding whether to allow the use of premises and on what terms (including its criteria for determining if there are any exceptional circumstances).

Additionally, the governing body must:

  • Take reasonably practicable steps to ensure compliance with its code; and
  • Bring the A1 duties and its code to the attention of its students, at least once a year.

A3: The duty to promote the importance of freedom of speech and academic freedom

The governing body of a registered provider must promote the importance of:

  • Freedom of speech within the law; and
  • Academic freedom for academic staff

Duties A1-A3 also apply to the governing body of a constituent institution of a registered provider. For example, any constituent college, school, hall or other institution of the provider.

Additional OfS duties under the Act that will impact providers

The OfS must ensure that a provider’s governing documents and their implementation are compliant with the A1-A3 duties. Clearer and greater commitments will be expected in regards to free speech and academic freedom, as these documents will be subject to the OfS’ scrutiny.

The OfS must promote the importance of freedom of speech and academic freedom.

A new role, Director for Freedom of Speech and Academic Freedom, will be created at the OfS. The director will monitor providers’ compliance with their freedom of speech and academic freedom duties.

  1. Mandatory conditions relating to freedom of speech

The OfS must ensure that their initial registration conditions includes a condition requiring:

  • The institution’s governing documents comply with the A1-A3 duties; and
  • The institution has in place adequate and effective management and governance arrangements to secure compliance.

A condition of OfS registration must include an ongoing condition that requires the governing body of the provider to comply with the A1-A3 duties.

The OfS must ensure that the ongoing registration conditions of each registered provider that is eligible for financial support include a condition requiring that the governing body keeps the OfS informed of the associations or bodies which are students’ unions for students at that provider.

  1. Free speech complaints scheme

The OfS must provide a complaints scheme under which free speech complaints will be reviewed and determined. This includes complaints against both providers and students’ unions.

A complaint may be made by students, members of staff, individuals who have applied to become academic staff members, and any persons who have, or have at any time, been invited to be a visiting speaker.

However, complainants must exhaust any internal complaints procedures before submitting a complaint. A complaint cannot be raised if it is being heard by a court or tribunal.

If a complaint is found to be justified, the OfS may make recommendations for redress.

  1. Overseas funding: registered higher education providers

The OfS has been granted powers to monitor overseas funding to a provider to assess whether it risks freedom of speech and academic freedom.

Providers will need to consider carefully the terms of existing overseas funding and any future overseas funding they are offered.

What is the impact of the new Act on providers?

The Act is likely to result in an increase in complaints regarding freedom of speech, given the creation of new channels for complaints, and opportunities for complainants to receive legal redress and compensation.

Providers need to review and update their policies, procedures and governing documents to ensure compliance with the above duties.

Separately, given the wide scope of the Act, institutions may wish to roll out training to staff on the topic.

If you need some guidance with reviewing your policies and procedures, or support with delivering training to your employees, then our dedicated team of education solicitors can help – get in touch with us today.

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Published: 31st May 2023
Area: Education

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