The Higher Education (Freedom of Speech) Act 2023

The Higher Education (Freedom of Speech) Act (“HE Act”) sets duties which education providers must comply with, in respect to free speech on campus and academic freedom. It also provides conditions of registration which are to be monitored by an Office for Students (OfS) director, and a complaints scheme.

Who does the HE Act apply to?

All higher education providers registered with the OfS must comply with the Act, as well as their constituent colleges, schools, halls and similar institutions.

What is the impact of the HE Act?

The compliance impact is wide-ranging and complex in terms of both issues and documentation, and adjustments may be required to facilitate proper compliance:

Issues covered

• Organisation of speaking events
• How employment arrangements are managed:
  • Recruitment;
  • Promotion;
  • Discipline; and
  • Dismissal of academic staff.

Documentation covered

• 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.

How to comply with the HE Act

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

• Up-to-date free speech codes of practice and policies, including a statement of values; relating to free expression and conditions to when security costs may be charged to event organisers;
• A review of the "Academic Staff" statute, related bye-laws or ordinances and HR policies; and
• Steps to comply with the duty to promote the importance of free speech and academic freedom.

Universities and colleges will also need to review their resourcing and staff training.

Why is compliance with the HE Act important?

Non-compliance will increase the risk of costs and reputational damage around matters related to free speech and academic freedom. It is therefore important that the Act’s enforcement mechanisms are noted:

The complaints scheme

This enables the OfS Free Speech Director to issue recommendations if the new rules are broken by institutions, which could include paying compensation, causing events to go ahead or re-instating dismissed academics.

The statutory tort

This allows individuals to directly sue institutions if they suffer loss because the new free speech rules have been broken.

The general regulatory powers of the OfS

These can lead to sanctions, including significant fines and, in the worst cases, ultimately deregistration, if an institution fails to comply with the new regulatory conditions imposed by the Act.

As such, the implications of non-compliance could be severe.

How can we 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.

To get institutions started, we offer a fixed-price starter pack of advice, which includes the following:

1. Our detailed advice note on the new requirements of the Act, and compliance with it; 
2. A short, easy-to-understand overview of the Act, which can be distributed more widely to staff;
3. An audit of existing governing documents, free speech policies / codes, template settlement agreement, and key relevant employment policies (recruitment, grievance, harassment, disciplinary and whistleblowing);
4. A tailored report which sets out the findings of the audit and identifies what needs to be amended or re-drafted for compliance; and
5. A meeting with senior stakeholders at your institution to discuss the audit and report.

Why use Doyle Clayton?

Our team regularly provides advice on free speech and academic freedom matters for both individuals and institutions, including in relation to compliance with the Act. We have particular expertise on the law around academic freedom and free expression on campus, on which we have advised institutions, academics, think tanks, politicians and the Government, often on complex employment and free expression issues, including both disputes and compliance matters.

Our specialists have published multiple articles on academic freedom, in addition to submissions of evidence to the Special Rapporteur on Freedom of Expression, the UK Parliament’s Joint Committee on Human Rights, and the House of Commons Public Bill Committee in relation to the Act. The team has also published several academic papers on the law concerning academic freedom and free expression on campus.

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