Posted: 03/02/2025
Secretary of State for Education, Bridget Phillipson, informed Parliament on 15 January 2025 that the government would be progressing with previously paused legislation in relation to freedom of speech in the higher education sector, but with some significant changes.
The Higher Education (Freedom of Speech) Act 2023 was passed under the previous government, but not implemented. It was a controversial piece of legislation which would have meant that universities failing to uphold freedom of speech would face penalties such as fines, and could even be sued. The act originally came about following numerous incidents in which controversial speakers were removed at the last minute from university events, or, as in other cases, large student-led protests took place.
However, in July 2024, after the new Labour government was elected, plans to implement the act were temporarily shelved. There were fears that it could protect people using hate speech on campuses and that it exposed universities – many of which already faced financial hardship – to expensive legal action, creating financial uncertainty. A major concern was that it would also negatively impact vulnerable groups, whose safety and wellbeing might be overlooked. As a result, the act was put on hold to allow the government to consider whether the law should be repealed.
After consideration, the act is being brought back with some amendments. However, not everything has changed. Higher education providers must still establish a code of conduct on freedom of speech. Also, their duties to take reasonably practical steps to secure and promote freedom of speech remain.
The first major difference is that the government will repeal the ‘statutory tort’ that was in the act. This means the act no longer allows individuals to sue universities that fail to uphold their duty to protect public speech. Instead, the Office for Students (OFS) 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.
Another distinction is that the government has removed the overly burdensome duties regarding freedom of speech that the act in its current form places directly on student unions. These duties have been scrapped, meaning student unions will no longer be expected to take on complex legal responsibilities. This change has been welcomed by the National Union for Students, which was concerned that the additional costs and administrative burdens associated with this measure would take away from its work to support students. Student unions will still be expected to support free speech and will be able to be held accountable by their university.
Finally, the act would have prohibited higher education providers from entering into non-disclosure agreements (NDAs) with staff, members, students, or visiting speakers in relation to complaints of sexual abuse, sexual harassment, sexual misconduct, or other bullying and harassment. The ban on these NDAs remains, with the OFS in charge of overseeing the ban.
In her speech regarding the act, Bridget Phillipson confirmed that she will produce a policy paper to set out in more detail the government’s proposals, but did not give any timeframes.
There are still some changes expected to come. The government has said it will take some more time to consider the application of the overseas funding measures in the act whilst it is working on the implementation of the Foreign Influence Registration Scheme, which will apply to universities across the UK, and is designed to encourage transparency and deter harmful covert activity from foreign states.
The overseas transparency provisions in the act will be kept under review, as will the existing approaches to managing foreign interference. The OFS currently has powers to request information when concerns arise on free speech, which includes issues related to suspected foreign interference and funding. However, the Department of Education will consider whether these powers require strengthening.
This article was co-authored with Caitlin Thomson, trainee solicitor in the employment team.
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