Freedom of speech compliance

Close followers of the Office for Students will have noted its press release of 25 May 2024 in which it said it would not “launch consultations, issue analysis reports, host public events, publish information about funding or issue guidance to higher education providers which constitutes new policy.”  As discussed in our previous blog, this we do not expect to hear on the (long-awaited)  “new approach to regulating harassment and sexual misconduct” or the outcomes of the various consultations on freedom of speech until after the general election on 4 July.

However registered higher education providers in England will be subject to certain obligations brought in by the Higher Education (Freedom of Speech) Act 2023 from 1 August 2024. Included in these obligations is the requirement to maintain a code of practice which sets out specified matters (see new s.A2 of the Higher Education and Research Act 2017).  The same duties also apply to the governing bodies of “constituent institutions” (broadly speaking, Cambridge and Oxford Colleges).  We have developed this checklist to help HE providers prepare or update that code of practice, based on the legislative requirements.   These requirements differ in certain respects from the required contents of the code set out in the predecessor legislation.

As universities and colleges prepare their codes of practice, we are aware of the attraction of seeing what other institutions have prepared and "taking inspiration" or "borrowing" from those.  We’d like to draw attention to some important points within the legislation that suggest that each individual institution really should be preparing its own code of practice.

First, that the code of practice is to set out “the provider’s values relating to freedom of speech…” (s.A2(2)(a)).  This is a clear indication that different institutions would be expected to have different approaches to the code of practice since each institution is likely to have its own specific values. This thought is supported by the duty on the OFS to have regard to “the need to protect the institutional autonomy of English higher education providers” (s.2 HERA 2017).

Secondly, the governing body is also under a duty to take reasonably practicable steps to secure compliance with the code (whilst having particular regard to the importance of freedom of speech), including through disciplinary measures where appropriate.  It is therefore important that the institution’s code and its other institution-specific policies are consistent. 

In addition, the code may also cover such other matters as the governing body considers appropriate, which in turn may involve the governing body considering its other legal duties both in relation to freedom of speech and academic freedom, and more broadly.

Finally, the OfS proposals for its complaint scheme indicated it would be willing to accept a complaint within 30 days of the action or inaction by the higher education provider that gives rise to the complaint. This means that an institution will need to have processes that can be progressed swiftly if it is going to be able to review a complaint before the complainant can approach the OfS.  Consultation responses have already observed that a 30 day timescale for completing internal complaints and review processes is unrealistic, particularly given the potential complexity of free speech complaints.  Naturally, what works quickly for one institution may not do so for another.

How we can help

Our team of specialist education sector lawyers have been helping institutions as they meet , discuss and devise their codes of practice ready for 1 August.  We can assist with a range of related matters including:

  • providing training and workshops
  • drafting and reviewing a range of codes, policies, procedures and guidance
  • assisting with OfS regulatory compliance including undertaking compliance audits
  • providing advice and legal representation in relation to: issues, complaints, regulatory investigations and litigation, staff and student disciplinary matters, and grievances
  • advising on the practical application of freedom of speech, equality and academic freedom requirements

If your institution needs assistance in relation to any issues in connection with the revised freedom of speech and academic freedom duties please contact your usual Mills & Reeve contact or a member of our experienced education law team

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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