Members only
The Higher Education (Freedom of Speech) Act 2023 came into force on 1 August 2025, introducing new duties for English universities.
Key provisions require institutions to take steps to secure free speech, maintain a code of practice, and promote its importance, protecting lawful free speech and academic freedom for staff, students, and visitors.
The Act and future possible provision that may be included (see below) represent a significant challenge to universities, requiring guidance.
The heat and intensity around this topic are unlikely to diminish, and a proactive, practical and clear-headed approach is required to avoid financial, legal and reputational impact.
A review of internal policies and procedures addressing freedom of speech will help align to best practice in this area. Any such work should link into internal governance and risk management structures that pull together teams and divisions, including Legal, Risk and Assurance, HR and Governance. Integrating the threats and ranking these on a standard frequency and severity structure will enable conversations and thinking on risk mitigation strategies that address this sensitive topic
Universities should also consider the insurance cover supporting and underpinning their internal management, policies and procedures. Pertinent aspects include Professional Indemnity and Directors’ and Officers’ Liability cover. Extensions to cover around regulatory investigations and defence costs associated to these should be verified.
New duties
Several provisions of the Higher Education (Freedom of Speech) Act 2003 - Sections 1, 2 and 5 - came into force on 1 August 2025.
Section 1 creates an enhanced duty on higher education providers to take all reasonable and practicable steps to secure free speech within the law for the members, staff and students and for visiting speakers. This also includes protecting academic freedom for academic staff. Section 1 also requires higher education providers to maintain a code of practice to facilitate their free speech duties and to promote the importance of free speech within the law and academic freedom in the provision of higher education.
Section 2, applies these duties to a higher education provider’s constituent institutions, including any constituent college, school or hall.
Section 5 extends the statutory functions of OfS to include promoting the importance of free speech within the law in the provision of higher education, and the need to protect the academic freedom of academic staff, including providing advice on good practice.
Background to the legislation
The Act was passed under the previous government in 2023 with the aim of extending and strengthening free speech within the higher education sector and introducing additional oversight by the Office for Students (OfS).
The Act was originally due to come into force on 1 August 2024, but the new Labour Government put full implementation on hold in July 2024 amid criticism from universities and students’ unions.
In January 2025, the Government announced that most of the Act would be brought into force before the start of the next academic year and other parts would be ‘removed’ or ‘scrapped’.
Elements from the original Bill
It is notable that Section 3 of the original Act, to create new free speech duties on students’ unions, will not be brought into force.
Equally insightful is that Section 4, which looked to create a new statutory tort for breach of these new duties, was not brought into force.
Government commentary on this stated that such a development was ‘unnecessary’ and risked having a chilling effect on free speech and leaving ‘universities vulnerable to disproportionate costs for legal disputes’.
Other noteworthy provisions from the original Act that were not implemented include:
- Section 6 - to ensure the OfS conditions of registration required higher education providers to have adequate free speech protections in their governing documents.
- Section 8 -to create a new statutory complaints scheme for individuals whose free speech rights have been unlawfully infringed by a higher education provider
- Section 9 - to require OfS to monitor the sources of overseas funding to higher education providers and their constituent institutions to assess ‘the extent to which the funding presents a risk’ to free speech and academic freedom.
The Government has stated that it will continue to keep all these matters under review.
It also worth mentioning that while the new legislation moves away from a legal duty of the Office for Students to monitor compliance with the legislation, the power for it to do so remains.
Julian Sladdin, Partner and Head of Higher Education Disputes at Pinsent Masons LLP comments:
Whether this new regime will create increased tensions and what role OfS may have in ensuring compliance is still unclear. However, where we may see some further debate is around the extent to which some elements of free speech, which are technically lawful, may not be entitled to protection as a result of the protections against abuse of rights under the Human Rights Act and how any proportionality test can be applied under the current OfS Advice Note in a way that is also compatible with the Act – particularly where other competing and protected rights may be affected. Further guidance from OfS is urgently needed on these points.
