Free speech law back on the cards for HE ... minus some of its teeth

Last year, the new Education Secretary halted the Higher Education (Freedom of Speech) Act 2023 six days before it was due to come into force. There was some suggestion that the government would revoke the Act in it entirely. It hasn't done that. But it has removed some of the enforcement provisions because it was concerned that HE providers could have incurred “disproportionate and crippling costs” in defending litigation.

What else is changing?

The government hasn't published a amended version of the legislation yet. However, its press release said that it would scrap “burdensome provisions” including: 

• The right for staff, students and external speakers to sue HE institutions for damages if their rights had been infringed (the “statutory tort”); 
• Removing the duty on the Office for Students to investigate complaints - instead they will have a power to do so; and
• Requiring student unions to take on legal responsibility for ensuring and promoting free speech

And what isn't?

The key components of the original Act will remain. HE providers will have a duty to promote and protect free speech and will have to put in place “a set of policies and values” to reflect this, which will be enforced by the Office for Students.

In addition to the general duty to promote free speech, academic staff will be allowed to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions, without jeopardising their career prospects, having their privileges removed or being dismissed for doing so. 

The government has also said that it will impose a “complete ban” on the use of non-disclosure agreements for victims of bullying, harassment or sexual misconduct. The original Act included similar provisions.  

What role will the Office for Students play?

It will be responsible for enforcing what the government calls a “new workable, robust complaints system”. It will be able to issue fines and penalties. 

Airf Ahmed will remain in post as Director for Freedom of Speech and Academic Freedom. 

The Office for Students hasn't updated its website to reflect these developments. However, last year, it published draft guidance relating to freedom of speech which set out a comprehensive list of steps that it might be reasonable for a college to take including those relating to admissions, appointments, employment and promotion. You can read our analysis of this here.

Will the government provide any guidance to help HE understand the new duty?

Yes. It has said that it will provide a Code of Practice.

When will the Act come into force?

The government has indicated that it wants the Act to be up and running by the start of the next academic year (September 2026). That's a year later than the original plan. 

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The ECHR has welcomed the Secretary of State's announcement: “Freedom of expression in HE should be upheld at every opportunity and should only be limited where there are genuine safety concerns, or where it constitutes unlawful behaviour.””