Amended duty to protect free speech in higher education: implications for colleges

New legislation aimed at protecting the rights of staff, students and visiting speakers to talk about subjects which are controversial or sensitive was due to come into force last year. 

The Higher Education (Freedom of Speech) Act 2023 (the Act) was ready to go when the Labour government took office. But the new Secretary of State for Education unexpectedly slamed on the brakes because she was concerned that HE providers would incur “disproportionate and crippling costs” in defending litigation. After a period of uncertainty, it became clear that the government was in favour of gutting some of the enforcement provisions but wasn't going to repeal the whole thing. 

Fast forward five months and we have three important developments:

• The government has published its long awaited policy paper on the future of the Act, confirming which parts will go ahead, and which will be repealed or amended
• The Office for Students has published official guidance relating to the duty to promote freedom of speech (guidance); and
• Professor Alice Sullivan of UCL has recently published a report which finds that UK universities have failed to protect gender-critical academics from bullying and career-threatening restrictions on their research.

This blog explains which parts of the Act have survived and the steps colleges need to take to prepare. But you don't have long as the provisions are expected to come into force from 1 August 2025.  

Which parts of the Act are being repealed or amended?

The government has listened to widespread concerns from the sector, particularly around the burden placed on students’ unions and the risk of litigation. As a result:

• The statutory tort, which would have allowed individuals to sue HE providers or students’ unions for breaches of free speech duties, will be repealed
• Direct duties on students’ unions will be removed entirely. Instead, HE providers will be expected to ensure their unions comply with institutional codes of practice
• The OfS complaints scheme will be scaled back. It will no longer consider complaints from students and has a power - not a duty - to investigate complaints from staff and external speakers; and
• The requirement for the OfS to impose a condition of registration related to free speech will be softened to a discretionary power.

What is changing from 1 August 2025?

All colleges have a duty to take reasonable steps to ensure freedom of speech within the law for staff, members, students and visiting speakers in accordance with the Education (No 2) Act 1986. The new duty goes much further than this. Registered colleges will have a duty to secure freedom of speech within the law (including academic freedom), and put in place a code of practice to reflect this duty. 

The Office for Students has provided detailed advice on this.

Does the new duty impact all colleges? 

No. Only colleges registered with the Office of Students have a duty to comply with the new rules. But that doesn't necessarily mean non-registered colleges can completely ignore them. If you have sub-contracted with registered providers, for example, you may be expected to adhere to the new rules.

What is the new duty to secure freedom of speech? 

The core purpose of HE is the pursuit of knowledge. Free speech and academic freedom are fundamental to this purpose. The guidance encourages ‘vigorous debate’ and makes it clear this includes ‘difficult, contentious or discomforting topics’ and that providers should have a ‘high tolerance for all kinds of lawful speech’. 

There are specific duties that apply to academic staff. They must 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. That's particularly important - particularly in light of Professor Alice Sullivan's recent findings. 

Colleges have to take three steps to determine whether they meet this duty:

Step 1: what speech is within the law?

The Act doesn't change the existing definitions of freedom of speech within the law, and most HE providers should be familiar with it. The starting point is that all speech is lawful unless it is restricted by law - which for these purposes means the state and laws as determined by the courts. It doesn't include rules set or imposed by a college.  

The speech in question can be offensive or hurtful, unless it amounts to unlawful harassment or incitement to hatred or violence. 

The guidance makes it clear that the Equality Act 2010 doesn't require colleges to protect students or others from ideas they may find offensive and the public sector equality duty doesn't impose a general legal requirement to restrict or regulate speech. 

Step 2: what steps are ‘reasonably practicable’ to secure free speech? 

If the speech in question is lawful you have to take ‘reasonably practicable’ steps to secure it. That includes amending any policies or codes of conduct that may restrict or regulate free speech and not doing anything that could impact free speech, such as cancelling a visiting speaker because their views are unpopular. 

And, if it's reasonable for you to take a particular step, you must take it. Bear in mind that you can't take into consideration whether it is controversial or offensive, or whether the speech aligns with your values. The impact on your reputation won't usually be a relevant factor either.  

One thing to consider. If the speech interfers with the essential function of HE (teaching, learning, research and related admin) you are likely to be able to demonstrate that it wasn't reasonably practicable to allow the speech to go ahead. The guidance sets out a few examples to illustrate this, including protests. 

Step 3: are any restrictions prescribed by law and proportionate under the European Convention on Human Rights? 

If there are no reasonable steps you can take to secure the speech, any restriction must comply with Article 10 of the Convention on Human Rights. That means that any interference has to be proportionate. And, that's a high bar - particularly in the context of HE where the core mission of universities and colleges is the pursuit of knowledge.

What practical steps can you take to secure freedom of speech?

The guidance sets out a number of recommendations relevant to colleges in the context of employing staff:

• You should not require applicants to any academic position to commit (or prove their commitment) to a particular viewpoint - such as asking them to evidence how they have supported EDI
• You should keep detailed records to demonstrate why you decided to recruit or promote someone, or turn them down for a job. The guidance says that ‘this record should include evidence that the appointment process didn't penalise a candidate for their exercise of free speech or academic freedom'; and 
• Ensure that those people who are deciding who to recruit or promote have been trained on freedom of speech and academic freedom.

The guidance also explains that steps you should take to amend your employment practices and policies. A few of examples stand out:

Requests to dismiss or discipline staff

It has become depressingly common for activists to demand that colleges ‘cancel’ an employee (or student) who has expressed unpopular but lawful views. The guidance recommends that you publically and promptly reject these types of demands and affirm the right of the individual in question to speak freely - even if their view is contrary to your own constitutional position. It suggests that putting out a statement along the following lines will demonstrate that you have taken reasonably practical steps to secure the freedom of your staff: 

‘We will not limit the views expressed by our staff or students beyond what the law prevents. We will not require any apology from, or take any action against, our members, staff or students for their lawful expression of any viewpoint.’ 

Policies on misgendering

Many policies require students and staff to use the preferred pronouns of their colleagues and other people they come into contact with in the college. The guidance states that imposing a blanket ban on misgendering is likely to breach your duty to promote freedom of speech. It does, of course, recognise that there may be circumstances where using someone's dispreferred pronouns could amout to harassment - such as repeated and deliberate misgendering directed by a teacher to a particular student.

Oversimplifying the law

You should not discourage lawful free speech by misrepresenting your legal duties. This may include oversimplifying your duties, for example, by omitting the importance of freedom of speech. 

Investigating complaints

The guidance makes it clear that you should not encourage students or staff to report others simply because they have lawfully expressed a particular view. If they do complain, the guidance suggests that you should promptly reject complaints if they are without merit or are made vexatiously. Obviously you can't do this without undertaking a preliminary investigation to determine whether you need to start to investigate. However, ‘the starting point of any such process should be that lawful free speech will not be punished because of a viewpoint that it expresses’.

It's really important that you get this right. The guidance makes it clear that undertaking lengthy investigations with an uncertain outcome may deter students and staff from putting forward unpopular views on controversial topics'. In other words, if the process is the punishment, you will not have taken reasonable steps to protect free speech.

Key requirements for your free speech code of practice

You must have a code of practice which complies with this new duty. It can't languish on an intranet site. The guidance recommends that it's published in a prominent posistion and is easily accessible which means you shouldn't set passwords or any other form of security which restrict access. And, more importantly, you must bring it to the attention of your students at least once a year. 

In terms of the content you should:

• Set out your values relating to freedom of speech and how those values uphold it
• Include a statement emphasising the high level of protection afforded to academics and the fact that freedom of speech within the law includes speech that is shocking, disturbing or offensive; and
• Make it clear that statements about speech included in any other policy document, including fitness to practise policies and procedures, employment contracts and EDI policies don't trump what's included in your code. Where's there's any uncertainty, the code sets out your definitive and up to date statement of your approach to freedom of speech. 

Who do you need to train?

The guidance has a comprehensive list of people you will need to train to ensure that they understand the new duty and can properly apply it when making decisions. This includes those people who are responsible for recruitment and promotion, disciplining staff, writing contracts of employment, developing policies relating to EDI and the PSED and writing harassment and bullying policies. 

These cover a significant number of people, who all need a detailed understanding of complex law. Please get in touch with Jenny Arrowsmith if you'd like to find out how we can help you properly train your staff. 

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