UK universities must prepare as ‘freedom of speech’ Act reintroduction confirmed

The UK government’s confirmation that it will commence the majority of the provisions of the Higher Education (Free Speech) Act 2023 by the start of the next academic year will provide clarity around rights to free speech and academic freedoms within the law at universities, which is a critical aspect for the higher education system across England and Wales, an expert has said.

Julian Sladdin, higher education expert at Pinsent Masons, was commenting after the government confirmed plans to set aside regulations which suspended the commencement of the Higher Education (Free Speech) Act 2023, subject to the withdrawal of its more controversial provisions. This follows the suspension of the original Act in July 2024 and aims to address criticisms and ongoing judicial review from free speech campaigners.

Sladdin said: “While the expected commencement of the legislation will now be delayed until the next academic year, we now have much needed clarity about the direction of travel. The Act will retain the majority of the protections it introduced. The UK government has also confirmed that intends to remove several of its more controversial provisions despite many academics arguing that stronger safeguards are required to address a perceived ‘cancel culture’ on campuses.”

Under the updated legislation, higher education institutions across England and Wales will still be required not only to secure but also promote free speech and academic freedom on campus. The Act will also reaffirm the appointment of the Office for Students’ (OfS) director of free speech to oversee compliance as well as the creation of the OfS free speech complaints scheme to review and determine complaints from staff and external speakers about alleged failings in universities’ handling of free speech and academic freedom following complaints made to the institutions themselves. Student complaints will now be routed to the Office of the Independent Adjudicator for Higher Education (OIA), which has a long track record of determining a wide variety of student complaints about their institutions. 

The Act will no longer include a direct provision to require student unions to secure and promote free speech or any statutory powers to enforce this. However, the previous expectation on student unions and their members, as registered students at university, to ensure free speech will still apply. The right of individuals – including staff, students and visiting speakers – who believe their rights have been infringed to directly bring claims under a statutory tort has also been removed. Both provisions are being withdrawn due to concerns that they could place a disproportionate legal and financial burden on these bodies and distract from their work in supporting students and their education at a time when university finances are already under significant pressures.

Sladdin said: “The removal of obligations on student unions and the removal of any right for aggrieved parties to bring claims under a statutory tort is unlikely to satisfy those academics who argue that stronger safeguards are required to address a perceived ‘cancel culture’ on campuses, but this needs to be balanced against creating a right to bring claims – which could have a disproportionate impact on universities on top of an OfS complaints mechanism and in a financial climate where increasing the risk of litigation costs is something many providers can ill afford.”

It remains unclear whether reintroducing legislation in this more limited form will be sufficient to resolve the current grounds of the judicial review from the Free Speech Union which was due to be heard on 23 January. Despite the government’s announcement pre-empting the hearing, the case will remain live until the High Court receives a detailed statement about the Act’s commencement.   

Sladdin said: “Due to the administrative and financial burdens involved universities will welcome the removal of the statutory tort regime as it lacked clear safeguards to manage the risk of vexatious complaints or to avoid attempts to foster free speech being undermined by potential threats of costly and protracted litigation. However, there also needs to be greater clarity about how the OfS complaints regime will operate and any revised timescales that may apply to the implementation of the additional regulatory obligations that will fall upon institutions as a consequence. These requirements could still involve universities incurring significant time and cost in ensuring their processes align with OfS requirements and again without sufficient safeguards could also create the risk of institutions being the target of vexatious complaints which undermine the spirit and purpose of the legislation and put further pressure on already stretched legal budgets.”