Higher Education (Freedom of Speech) Act 2023

On 11 May 2023 the Higher Education (Freedom of Speech) Bill received Royal Assent after two years of debate in Parliament.

The new Act will strengthen the statutory duty already imposed on English higher education providers by previous legislation to secure freedom of speech within the law. It will also bring in a new statutory duty to promote the importance of freedom of speech in the provision of higher education.

The new statutory duty on registered higher education providers in England also includes protection for “academic freedom” which is defined as “freedom within the law a) to question and test received wisdom, and b) to put forward new ideas and controversial or unpopular opinions, without placing themselves at risk of being adversely affected in any of the ways described…” in the legislation, including loss of their jobs or likelihood of securing promotion.

Codes of Practice issued by registered providers are to be strengthened.

These duties are also to apply to “constituent institutions” of registered English higher education providers where the most obvious institutions in this category are the colleges of Cambridge University and Oxford University.

The Act includes within the scope of the duty to secure freedom of speech a prohibition on “Non-Disclosure Agreements” for complaints relating to misconduct (as further defined in the Act).

The Act also includes a duty on the Office for Students to monitor the extent to which overseas funding of registered higher education providers and their constituent institutions presents a risk to freedom of speech and academic freedom.

Students’ Unions of approved fee-cap registered higher education providers for the first time will be subject to the direct jurisdiction of the Office for Students in respect of a statutory duty to secure freedom of speech within the law.

The Office for Students is to have significant new powers, namely:

  • there is to be a new “condition of registration” for higher education providers which will enable the OfS to take regulatory action if appropriate;
  • a power to impose monetary penalties on students’ unions;
  • individuals falling within the scope of the protection afforded by the statutory duties will be able to bring a complaint to the Office for Students under a new complaints scheme;
  • a new Director for Freedom of Speech and Academic Freedom is to be appointed by the OfS.

Subject to certain safeguards, individuals who have suffered loss may bring civil proceedings in the courts for breach of the statutory duties on registered higher education providers, constituent institutions and students’ unions.

Further guidance is awaited from the Office for Students and a statutory instrument to bring the substantive provisions of the legislation into force.

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