Implementation of the Higher Education (Freedom of Speech) Act announced

This afternoon the Education Secretary announced that a substantial part of the Higher Education (Freedom of Speech) Act 2023 will be introduced.

The following provisions are set to be retained and implemented:

• The reframed core duty to take reasonably practicable steps to secure lawful free speech and academic freedom;
• The obligation not to enter into non-disclosure agreements relating to complaints about bullying or harassment;
• The duty to maintain a code of practice about free speech (similar to the existing duty, but updated in parts, particularly around security costs);
• The position of Director of Free Speech and Academic Freedom at the Office for Students (OfS) and the power of the OfS to issue guidance; and
• The complaints scheme (although the OfS won’t be obliged to review every single complaint).

The following provisions look set to be scrapped:

• The statutory tort, which would’ve allowed individuals to sue if the core duty was violated;
• The duties on students’ unions; and
• (Possibly) the provisions governing overseas funding.

We don’t yet know when implementation will come, or when the Act will return to Parliament where provisions (such as the tort) are set to be repealed.

The key question is whether the Act will be as impactful for Universities in its amended form. The answer is probably in the affirmative.

The key will be the Director and the OfS. Their guidance was always likely to have the most significant impact on Universities in practice – that will remain, as will the complaints scheme and the OfS’ general enforcement powers.

A statutory tort was intended as the ultimate backstop to the scheme, but was it ever likely to be used in practice? A person who has suffered little financial loss seems unlikely to risk the fees, legal complexity and adverse costs risks to bring a claim in the civil courts. A cancelled speaker or event host might have been tempted, but they can still use the mechanism of judicial review. An affected employee always seemed much more likely to take the safer path of the employment tribunal, arguing that the Act modulates employment law protections in their favour. With Labour removing unfair dismissal qualifying periods, this was an increasingly likely eventuality.

The Education Secretary seemed to think that removing the tort would save Universities money on expensive litigation or materially improve their risk profile – that seems to be misguided.

Overall, the main story here is that the OfS’ free speech guidance, which puts a lot of onus on Universities regarding compliance, policies, complaints schemes and training, will return too.

If your institution needs help or guidance, we offer fixed price audit and compliance packages, and training packages, to help institutions. Contact James Murray to discuss more.