New freedom of speech rules for higher education providers in England and Wales

The provisions of the Higher Education (Freedom of Speech) Act 2023 (‘’the 2023 Act’’) came into force on 1 August 2025, setting out a number of legal duties and restrictions on English and Welsh higher education providers to ensure that the freedom of speech of students, academics and external speakers is protected.

Key provisions

The 2023 Act inserts several new provisions into the Higher Education and Research Act 2017 (‘’the 2017 Act’’), including the following requirements about freedom of speech:

1. HE providers must take steps which are reasonably practicable to secure freedom of speech for their staff, members, students and visiting speakers. As part of the duty to achieve the objective of securing freedom of speech, HE providers must ensure that use of their premises by an individual or body is not conditional on that individual or body bearing the costs of security; and must not enter into non-disclosure agreements with individuals who have made complaints to them.

2. With a view to fulfilling the duty to secure freedom of speech, HE providers must maintain a code of practice, which should outline the following matters:

• the HE provider’s values relating to freedom of speech;

• the procedures to be followed by staff and students of the academic institutions and any student’s union in relation to the organisation of meetings and other activities;

• the conduct required by those associated with such meetings or activities; and

• the criteria to be used by HE providers in making decisions about whether to allow the use of their premises and on what terms.

3. HE providers must take steps to promote the importance of freedom of speech within the law and academic freedom.

Also, the Office for Students (‘’OfS’’), which is the independent regulator of higher education in England, must appoint a Director for Freedom of Speech. This provision has been in force since August 2023 and outlines the Director’s role as overseeing, performing and reporting on the OfS’ ‘’free speech functions’’. These functions include promoting the importance of freedom of speech, identifying good practices relating to freedom of speech and providing advice to academic institutions on behalf of the OfS regarding such practices.

If HE providers are found to have fallen short of their duty to protect freedom of speech on campus, the OfS is empowered to investigate complaints and can impose fines. Arif Ahmed, the OfS’ current Director for Freedom of Speech and Academic Freedom has warned that institutions could face significant financial penalties, with the OfS recently imposing a landmark fine of £585,000 on the University of Sussex for its policies restricting lawful gender-critical views and governance failures.

In future, the 2023 Act will (once the provision is brought into force) impose a duty on the OfS to provide a complaints scheme under which the OfS is to review and determine free speech complaints that may come from a range of individuals including students, members or those who have applied to be members of the academic institution and visiting speakers.

The 2023 Act had also inserted a new provision into the 2017 Act allowing people to bring civil claims against an HE provider, constituent institution of that provider or a student’s union, in respect of breaches of the duty to secure freedom of speech duty that caused the individual to suffer loss; and imposed duties on student unions in respect of securing freedom of speech. However, the UK Government determined that the civil claims provision could have a ‘’chilling effect of freedom of speech on campus’’, discouraging institutions from inviting controversial speakers or encouraging them to unduly prioritise hateful or degrading speech. It was also acknowledged that there are already avenues of redress available to those who are unhappy with an HE provider’s approach to freedom of speech. The UK Government also decided that that student unions are not equipped to deal with the financial and legal requirements imposed by the 2023 Act. With that in mind, both provisions are to be almost entirely repealed.

Comment

The UK Government considers the 2023 Act is a key part of delivering its ‘Plan for Change’ in relation to education policy. The UK Government also considers that the 2023 Act provides a clear message that the UK Government ‘’will not tolerate the silencing of academics or students who voice legitimate views’’ and intends to foster a ‘’culture of free enquiry and academic freedom’’.

The 2023 Act and its provisions are a major development, and an important indicator of the UK Government’s attitude to freedom of speech in academic institutions and beyond. Complex questions of law may arise between:

• action taken by universities and colleges to prevent harassment and meet their obligations under the Equality Act 2010; and

• obligations on universities and colleges to protect freedom of speech on campus.

Separately, it is not yet clear how the OfS and courts will interpret the duty on HE providers to take steps which are reasonably practicable to secure freedom of speech. In light of the ability to make complaints, the forthcoming ability to make civil claims and refer complaints to the OfS, these changes represent a significant update in the regulatory obligations of HE providers.

HE providers may wish to seek advice on how these new laws will affect their operations, and while the 2023 Act is not applicable to Scotland, it is also prudent for Scottish universities and colleges to familiarise themselves with the legislation and the policy developments in the rest of the UK. Scottish academic institutions may wish to keep developments under review in case similar steps are proposed in Scotland. Further, developments following the coming into force of relevant parts of the 2023 Act may impact similar and existing duties in Scotland. Section 26 of the Further and Higher Education (Scotland) Act 2005 ("the 2005 Act") requires HE and further education bodies to uphold academic freedom and ensure appointments and entitlements are not adversely affected by the exercise of academic freedom (for persons who are involved in teaching or research at the institution). Policy and case law developments in England in relation to the 2023 Act may be of relevance to how Scottish institutions comply with the section 26 duty under the 2005 Act.

If you would like to discuss how the provisions of the 2023 Act affect your academic institution, please contact Niall McLean, Lewis Newlands or your usual Brodies contact.