Universities must ready themselves for updated ‘freedom of speech’ Act in new year

This may include the removal or watering down of previous provisions originally passed in 2023 including the powers granted to the Office for Students (OfS) to operate an independent complaint scheme and the introduction of a right to bring statutory tort claims against universities.

Julian Sladdin and Stephanie Connelly, higher education experts at Pinsent Masons, were commenting following reports the UK government is planning to pass a revised or amended Act dealing with free speech on university campuses in the new year.

The reports suggest that the statutory tort, allowing speakers who believe they have had their rights curtailed by having their speeches cancelled to claim compensation against institutions, is to be removed or revised. It remains unclear whether the Office for Students (OfS) will also have their powers to directly regulate free speech removed. These powers include the appointment of a director of free speech to oversee institutional compliance and the establishment of an independent scheme to review complaints made against universities.

The Act was originally introduced by the previous government, setting out to increase protection around free speech in universities and not only put in place duties for the protection and promotion of free speech within the law, but also introduce regulatory powers for the OfS to oversee compliance including the appointment a director of free speech and  a procedure for reviewing made complaints made by staff, students and visiting speakers, and the additional rights for individuals to bring claims under a statutory tort. The inclusion of these provisions was considered extremely controversial during the passage of the Act and concerns remain across the sector about their implementation and the risks that universities may become overwhelmed by vexatious complaints or claims.

These provisions were due to come into force of 1 August but were subsequently put on hold. 600 writers, Nobel laureates and senior academics wrote an open letter to the Times in September calling on Bridget Phillipson to take urgent action to stop a perceived erosion of free speech on campus.

Sladdin said: “The pausing of the Act has created unnecessary uncertainty about what level of statutory protection will now be applicable to free speech and academic freedom under any revised legislation and when it would be introduced. This has unsettled many leading academics and led to an increased pressure on the Government set out concrete plans to secure free speech in higher education.”

The current indications from government may not entirely put matters beyond doubt as it still faces a live judicial review challenge from the Free Speech union. This case is due to be heard by the High Court on 23 January and may have significant influence on the form any reintroduced Act takes.

However, there remain residual concerns at an institutional level about how workable the complaints scheme and tort would be in practice and these practical questions will also need to be satisfactorily resolved by any amendments.

Sladdin said: “The update may be welcomed by many universities if it provides appropriate safeguards to manage the risk of vexatious complaints or institutions finding that their attempts to foster free speech are undermined by the legal burden created by OfS complains and potential threats of litigation. Arguably it should be possible to provide the protections required through existing powers or a more streamlined approach.”

Connelly said: “Ensuring that staff and students have rights to free speech and academic freedoms within the law is a critical aspect of the higher education system. Universities must balance the duties to ensure a culture in which individuals can actively and lawfully challenge perceived thought and wisdom against competing statutory protections including anti-harassment provisions. This balance is required amid an increasing perception that individuals are self-censoring due to increasing concerns about a cancellation culture on some campuses.”