UK Government - Higher Education (Freedom of Speech) Act

The government’s Higher Education (Freedom of Speech) Bill became law this month, more than two years after the bill was introduced to Parliament. It puts new duties on universities, colleges and their students’ unions, and gives the Office for Students (OfS) an enhanced role in promoting free speech.

The Act can be found here

At-a-glance:

• The Act requires universities, colleges and students’ unions in England to take steps to ensure lawful freedom of speech on campus
• This does not include unlawful speech, such as harassing others or inciting violence or terrorism. It will be up to the institution/student union to consider whether the speech in question is lawful, by taking into account other legislation
• Institutions must set out and publish a code of practice for freedom of speech on campus
• A new free-to-use complaints scheme will be operated by the OfS, giving students, staff and visiting speakers the right to bring claims to court if they feel they have suffered loss as a result of free speech rights being unlawfully restricted
• A new Director for Freedom of Speech and Academic Freedom will be appointed to oversee all the Office for Students (OfS) free speech functions, including the new complaints scheme and investigations where universities are accused of breaching their duties under the Act
• Non-disclosure agreements, which some universities have applied to people who raise complaints, are now banned
• Providers and students’ unions have to provide information to OfS on overseas funding. The OfS will consider these arrangements to assess the extent to which the funding presents a risk to freedom of speech and the academic freedom of academic staff
• The Act is not yet fully in force as the Government has to make regulations and set out more detail about how the Act will work
• The OfS will consult on how the new duties should be regulated and how the new complaints scheme should operate
• The new duties and measures specified under this Act are expected to come into force before the 2024-25 academic year

Implications for governance:

The Higher Education (Freedom of Speech) Act has had a contentious passage and some of the concerns universities have raised about it remain. Data released by the OfS just last week shows that less than 1 per cent of the 31,545 external talks that were given approval in 2021-22 ended up not going ahead.

Nevertheless, focus now shifts to what the new legislation will mean in practice for students, staff, external speakers, students’ unions, universities and their governors.

The series of duties in the new Act fall to governing bodies to enact and oversee, from protecting and promoting freedom of speech and laying out how the university will do this, to ensuing that overseas funding presents no threat to free speech on campus.

The potential risks in these endeavours are numerous, from reputational to regulatory. In light of the legislation, universities need to draw up a code of practice to demonstrate how they secure and promote both academic freedom and freedom of speech. This may highlight the need for training on free speech for new staff and student union representatives, for instance, or require new contractual employment terms or frameworks for handling free speech disputes.

Governors will need to be cognisant, when considering and signing off their codes of practices, of the potential conflicts between the duties of the new Act and the need to comply with existing legislation, including but not restricted to equality law and protected characteristics, the public sector equality and Prevent duties and harassment and discrimination law.

OfS has already provided extensive guidance which concludes that people espousing “offensive” but lawful views will need to have their rights upheld.  

Concerns raised by the Russell Group, MPs and peers have warned of the impact on institutions of ‘vexatious and frivolous’ claims brought by interest groups in a bid to publicise their own agendas. This could push societies, student unions and staff towards safer rather than more provocative speakers, thereby constraining rather than expanding free speech.

According to the Russell Group, clear guidance will be required on how the OfS will approach its new duties, including the basis on which it will investigate universities and students’ unions when there are free speech concerns.

On overseas funding, governors will need to understand what funding comes from overseas governments and companies, including from partner providers, and whether any overseas donor or partner is a “politically exposed person” - (these could range from a head of state to a CEO in a state-sponsored industry).

The Act could provide an opportunity to review these relationships. Work and processes already undertaken to comply with the National Security and Investment Act 2021 could be helpful here.

As students’ unions also have responsibilities under the Act - and any noncompliance on the part of student unions can present a reputational risk to the university itself - working together on the implications of the new duties across campus might be beneficial. Student representatives on governing bodies will no doubt have a key role to play here.