Government reaffirms commitment to defending Freedom of Speech rights in universities

The Education Secretary has confirmed that key provisions of the Higher Education (Freedom of Speech) Act 2023 will be brought into force, defending the free speech rights of students, academics and speakers.

The Office for Students will have the power to investigate complaints over breaches of free speech from academics, external speakers and members of universities, as well as issuing fines.

The Act will require all universities to have robust codes of practice to ensure the protection of free speech, which will be enforced by the Office for Students (OfS).

The new workable, robust complaints system will uphold academic freedom without exposing universities to potentially disproportionate and crippling costs that could have forced them to divert cash away from students.

Universities who flout the rules will be publicly held to account and could end up paying compensation, risk facing fines and the suspension of their registration, in the most extreme circumstances.

There will be a complete ban on the use of non-disclosure agreements to silence victims of bullying, harassment or sexual misconduct on campus, which will be upheld by the Office for Students.

Arif Ahmed will remain in post as Director for Freedom of Speech and Academic Freedom at the OfS, to ensure that these measures are rigorously upheld.

Unnecessary elements of the Act which risk leaving universities vulnerable to disproportionate costs for legal disputes will be scrapped, including the statutory tort.

This would have exposed already struggling providers to large costly legal fees, driven by potentially unnecessary complaints, that would have forced money intended for students to be diverted.

The threat of legal action and the financial fallout for universities breaching their duties under the Act might push some providers to overly defend hateful or degrading speech instead of looking out for students who feel intimidated, out of fear of the consequences.

The Act was initially placed on pause due to widespread concerns about the negative impact it would have on vulnerable groups. There were fears that the legislation would encourage providers to overlook the safety and wellbeing of minority groups, including Jewish students, and instead protect those who use hateful or degrading speech on campus.

The move to pause implementation of the Act reflected widespread concern that the legislation was disproportionate, burdensome and damaging to the welfare of students while not addressing hate speech on campuses. 

Groups representing Jewish students also expressed concerns that sanctions could lead to providers overlooking the safety and well-being of minority groups. 

Education Secretary Bridget Phillipson said:  

“Academic freedom and free speech are fundamental to our world-leading universities and this government is committed to protecting them.

“These changes protect free speech but avoid implementing excessive and burdensome provisions which could have exposed struggling universities to disproportionate costs, diverting money away from students to pay lawyers.

“The decisions we are making about the Act demonstrate that we were right to pause commencement and to review its impact before making decisions on its future."

The Government will bring into force strengthened duties on providers to take steps to secure freedom of speech and establish a code of practice, as well as a new duty to promote the importance of freedom of speech and academic freedom.

As part of the Act, Higher Education providers must establish a set of policies and values that provide a space for robust discussion and all academic freedoms.

The Office for Students will have the power to investigate complaints over breaches of free speech from staff, external speakers and members of universities, as well as issuing fines and penalties.

All higher education students will be able to make similar complaints to the Office of the Independent Adjudicator (OIA).

As part of changes to make the Act fair and proportionate, the government has decided to remove the overly burdensome duties placed directly on students' unions.

The Act, as it stands, makes demands which would require students' unions to take on complex legal responsibilities, which would leave the majority student-led organisations to be overwhelmed with additional costs and administrative burdens, distracting from work to support students.

The Department for Education aims to ensure that any protections introduced to increase transparency around foreign funding and influence, do not impose unnecessary burdens on providers and regulators, such as the Office for Students.

The Government is also working at pace on the implementation of the Foreign Influence Registration Scheme, which will apply to universities across the UK, and will encourage transparency and deter harmful covert activity from foreign states. 

To ensure careful consideration of this important issue, the overseas transparency provisions in the Act will be kept under review, while assessment of the existing approaches to managing foreign interference are reviewed and as we implement the Foreign Interference Registration scheme.

The Office for Students already has powers to request information when concerns arise about free speech or academic freedom, including issues related to suspected foreign interference and funding, and the Department will consider whether these powers require strengthening as part of our review.

The Department for Education is closely monitoring these measures and working with the sector to assess current strategies for managing these risks. This ensures a targeted and proportionate approach to increasing transparency.

In making changes to the future of the Higher Education (Freedom of Speech) Act 2023, the Government will ensure that the right to academic freedom is rigorously defended, without compromising the safety of students and staff, or taking away vital resources from an already stretched sector.

During the review of the Act which began in July 2024, Ministers and officials met with a range of providers, academics, unions and minority groups to discuss their views on the future of the Act and what would work best for the sector, while maintaining a space for healthy debate and exposure to new ideas for students and staff.