The Higher Education (Freedom of Speech) Act 2023

What your institution needs to do to comply and how we can help

In 2023, the Higher Education (Freedom of Speech) Act became law. It applies to all higher education providers registered with the Office for Students, and their constituent colleges, schools, halls and similar institutions.

In short, the Act introduces a range of enhanced and new duties for providers with respect to free speech on campus and academic freedom, as well as new conditions of registration which will be monitored by a new Director at the OfS and a complaints scheme similar to the existing Office of the Independent Adjudicator scheme.

The compliance impact is wide-ranging and complex in terms of both issues and documentation:

• Issues covered include the organisation of speaking events, but also how employment arrangements are managed – in particular the recruitment, promotion, discipline and dismissal of academic staff.
• Documentation covered includes management arrangements, governing documents (statutes, ordinances, bye-laws, etc.), free speech policies and codes, recruitment policies, harassment and disciplinary policies, settlement agreements, and funding arrangements.

It will take time to make the required adjustments to facilitate proper compliance.

What you need to do

In terms of the practicalities for Day 1, compliance with the Act will require (among other things):

• changes to existing free speech codes of practice and policies, including a statement of values relating to free expression and conditions as to when security costs may be charged to event organisers;
• a review of the “Academic Staff” statute and related bye-laws or ordinances to ensure that all academics are properly protected;
• updates to recruitment, disciplinary and dismissal procedures to take account of the enhanced duties under the Act, and ensuring that settlement agreements do not include newly unlawful gagging clauses;
• a review of harassment and equality policies to ensure they interact properly with the new duties in the Act; and
• taking steps to comply with the new duty to promote the importance of free speech and academic freedom.

We also highly recommend institutions take the following steps to ensure proper compliance:

• put in place staff and resources to deal with complaints from students, staff and speakers raised under the new complaints scheme;
• ensure detailed records and monitoring systems are in place with respect to overseas funding so that its impact on free speech and academic freedom can be tracked;
• deliver training for staff whose roles will be impacted by the Act, in particular senior managers, HR and fundraisers;
• develop a ‘response plan’ (both internally and externally) with respect to any free speech controversies which may arise; and
• consider setting up an internal committee or champion to manage ongoing compliance updates as guidance from the OfS on the Act evolves and new cases emerge clarifying what institutions need to do.

How we can help

The Act will likely take full effect in Summer 2024, ready for the next academic year. As such, now is the time to start preparing so that the relevant documentation and training can be put in place in good time.

For information on how we can support you with complying with the Higher Education (Freedom of Speech) Act 2023, please click here, or contact our Education team directly.