The government has announced that it is to pause implementation of the Higher Education (Freedom of Speech) Act.
SUs had been waiting for responses to three consultations, with a raft of questions about the duties will work – many of which concerned the “see-saw” between freedom of speech and freedom from harm.
Back in March, we said that the remaining complexity was “an unforgivable mess” – and that the government should pause the implementation on the Free Speech Act now before it makes it all even worse.
That it has now done.
To stop the implementation of the Freedom of Speech Act the Secretary of State has revoked the second commencement regulations made under it. She will rapidly review the legislation and confirm long-term plans as soon as possible.
This doesn’t necessarily mean that SUs can ignore the legislation or its underpinnings, though.
What’s actually happened?
Technically today the government has withdrawn the commencement order that would have seen OfS regulation of the duties and the new complaints scheme start on August 1st.
The Higher Education (Freedom of Speech) Act 2023 (Commencement No. 2) (Revocation) Regulations 2024 can be found here.
Provisions in the second commencement regulations made under the Higher Education (Freedom of Speech) Act 2023 which have now been stopped:
From 1 August 2024:
- Extending the duties on registered HE providers and constituent institutions in England to require them to take reasonably practicable steps to secure freedom of speech within the law for their staff, students, members and visiting speakers, and to promote the importance of lawful freedom of speech and academic freedom.
- Creating duties on students’ unions at many registered HE providers to secure freedom of speech within the law for their members, staff and visiting speakers
- Creating a statutory tort for breach of specified freedom of speech duties, enabling individuals who have suffered loss to seek legal redress
- Creating a free to use complaints scheme to be operated by the OfS, enabling staff, students, members or external speakers to raise complaints about providers or students’ unions breaching their duties under the Act to secure or promote freedom of speech within the law
- Enhancing protection for academic freedom by extending coverage to include recruitment and promotion of academics
- Banning the use of non-disclosure agreements (NDAs) by registered HE providers in relation to complaints to the provider of sexual misconduct, bullying or harassment (it’s likely that OfS will seek to do this through its forthcoming harassment provisions anyway)
From 1 September 2025:
- Introducing new registration conditions for registered higher education providers on freedom of speech and academic freedom (requiring them, for example, to have in place suitable codes of conduct).
- Introducing new transparency measures in relation to overseas funding to enable the OfS to assess whether that funding might pose a risk to freedom of speech or academic freedom.
In a letter to VCs today, OfS says:
I know that your colleagues have been working hard to prepare for the implementation of the new free speech legislation and I would like to thank you and them for your efforts to be ready for 1 August.
We’ll continue to work with the Department for Education on these issues and will let you know about next steps once decisions are announced. We’re also writing today to students’ unions at institutions registered in the Approved (fee cap) category, where we have their contact details.
If your institution has a relevant students’ union, we would be grateful if you could make sure colleagues are aware of these changes as soon as possible.
In the meantime, universities and colleges retain important duties to take steps to secure free speech within the law under the Education (No.2) At 1986, and these remain in place.
What’s going on?
This buys the government time to consider whether they need to fully repeal the act. The smart thing for SUs (and universities) to do is not give people a reason to say they shouldn’t!
That’s partly because DfE says that is “re-affirming” the government’s “firm commitment” to freedom of speech, with “universities” (and by association SUs) “expected to deliver on their duty to protect it”.
The message is – we think the act is burdensome, goes too far, is disproportionate, and may be damaging to the welfare of students “while not addressing hate speech on campuses”.
The government has also become convinced that the new rules would have exposed higher education providers (and again by association SUs) to “costly legal action that would impact teaching and learning”.
Education Secretary Briudget Phillipson said she will “consider options for the Act in the long term, including repeal”:
For too long, universities have been a political battlefield and treated with contempt, rather than as a public good, distracting people from the core issues they face.
The steps announced today will sharpen the focus of the Office for Students, with greater emphasis on ensuring the financial stability of the sector.
We are absolutely committed to freedom of speech and academic freedom, but the Free Speech Act introduced last year is not fit for purpose and risked imposing serious burdens on our world class universities.
This legislation could expose students to harm and appalling hate speech on campuses.
That is why I have quickly ordered this legislation to be stopped so that we can take a view on next steps and protect everyone’s best interests, working closely with a refocussed Office for Students.
What’s driven this?
In part what’s been going on is all of the Labour opposition to the bill coming to a head – but also strong lobbying from the Union of Jewish Students. We covered that a while ago on the site here.
Their position is that sanctions could lead to providers overlooking the safety and well-being of minority groups. They argue that the Act makes it harder, not easier, for SUs and universities to tackle antisemitism.
Phil Rosenberg, President of the Board of Deputies of British Jews, said:
We welcome the Secretary of State’s decision to halt the implementation of the Higher Education (Freedom of Speech) Act, pending consideration of repeal.
The Union of Jewish Students has been clear that the act, while well-intentioned, risked enabling antisemitic extremists to access university campuses by severely impacting the ability of universities to block their presence – we strongly support UJS’s concerns and reflected this in our Jewish Manifesto for the 2024 General Election.
This halt will enable the government to consider how to ensure that freedom of speech is protected without allowing free rein to purveyors of hate speech.”
It’s notable that DfE has stressed that OfS plans to introduce strengthened protections for students facing harassment and sexual misconduct, including relating to the use of NDAs in such cases by universities.
That’s been heavily delayed – but we are now expecting that next week.
Where does that leave us?
In many ways nothing changes. OfS still has “Public Interest Governance Principles” that universities have to adhere to on free speech and academic freedom.
It’s both smart to demonstrate that the SU is committed to free speech (ie the legislation is not required) and in many ways the Act only gives regulatory attention to what was already in the law.
Put another way, the Human Rights Act already stopped SUs from banning a pro-life society just because officers or the union council decide they are pro-choice. The revocation doesn’t change that.
And casework continues to emerge on the extent to which it is appropriate to “interfere” in someone’s free speech rights – either as an employee or as a student – in pursuit of EDI objectives. Again, today doesn’t change that either.
What remains an issue is where the line is between freedom of speech and harassment – especially over antisemitism. This is an area where the previous government failed to offer clarity and consistency – and it’s notable that the draft guidance to universities and SUs earlier in the year avoided the issue altogether.
It’s also notable that the DfE release highlights plans to introduce strengthened protections for students facing harassment and sexual misconduct, including relating to the use of NDAs in such cases by universities – we are now expecting those on or around August 1st.
What hasn’t changed is how hard it is – especially over the middle east – to make judgements about when actions or behaviours might constitute protected freedom of speech or amount to harassment.
It remains the case, for example, that some interpretations of the IHRA definition of antisemitism may not be compatible with the Human Rights Act – and today’s announcement is a tacit acceptance that those issues need time to work through and resolve.
The key task now is for SUs to step up and prove their free speech mettle – as it’s always been clear that they both can and will do when supported and trusted to do so.
