Freedom of speech continues to be in the news almost daily in the UK, the issue arguably given a new head of steam by changes to the running of the social media platform X owned by Elon Musk.
The right that we all have to freedom of expression has been recognised by the European Court of Human Rights as one of the “essential foundations of a democratic society” (Handyside v UK, 1976).
It enables every citizen to express their views – and hear the views of others – without the interference of the State.
However, the right to freedom of speech must with “within the law”. The debate from a legal perspective is often whether there is another legal provision which requires or permits a justifiable limitation.
Higher Education (Freedom of Speech) Act 2023
The protection for freedom of speech in universities in England has been a hot topic in recent years with the passing of new primary legislation in 2023 – the Higher Education (Freedom of Speech) Act 2023. This Act was initiated by the previous Conservative Government due to “growing concern within government of a chilling effect on university campuses that means that not all students and staff feel able to express themselves without fear of repercussion” (Department for Education Policy Paper 2021).
The Act was fully debated through the Parliamentary process and received Royal Assent in May 2023.
Since then, we have had a general election and a change of Government in the summer of 2024. The new Secretary of State for Education, Bridget Phillipson MP, took an early decision to revoke the implementation of the legislation.
On 15 January 2025 – ahead of a judicial review challenge – the Secretary of State for Education made a statement to Parliament of the Government’s intention to implement parts of the legislation but to seek the repeal or amendment of other provisions.
The Act did not seek to change the underlying substantive law relating to the scope of the right to freedom of speech in universities but sought to strengthen the ways in which the protection of the right could be enforced.
The Act created strengthened duties on universities to secure and promote the importance of freedom of speech generally for staff, members of the institution, students and visiting speakers. It also created a separate duty on institutions to secure and promote the importance of “academic freedom” for academic staff.
The Secretary of State has taken the view that the legislation was going to be unworkable and likely to lead to costly litigation which would create additional burdens on universities and their students’ unions.
It appears from the statement to Parliament that the proposed strengthened duties on higher education institutions to secure and promote the importance of freedom of speech and academic freedom will be retained, along with the requirement for strengthened Codes of Practice.
The regulator for the higher education sector – the Office for Students (OfS) – will still have powers of enforcement and a new ‘champion’, the Director for Freedom of Speech and Academic Freedom.
However, the new duty on students’ unions to secure freedom of speech is to be repealed given a concern that “Student unions are neither equipped nor funded to navigate such a complex regulatory environment, and they are already regulated by the Charity Commission.”
It appears that it will be for higher education institutions to “work with” their students’ unions to protect freedom of speech but also with the expectation that higher education institutions will “act decisively” to ensure that students’ unions comply with the appliable free speech code of conduct.
Another big change proposed by the Secretary of State is to remove students from the complaints scheme which will be run by the OfS for academic staff and others protected by the Act. Students will be able to bring their complaints about freedom of speech to the Office of the Independent Adjudicator for Higher Education (OIAHE) which already provides a scheme for student complaints.
Probably the most contentious aspect of the legislation when it was going through Parliament originally was the creation of a new statutory claim in the courts if the duties to protect freedom of speech had been breached. The Government now proposes that the statutory tort is removed to avoid “costly litigation that would risk diverting resources away from students at a time when university finances are already strained.”
The Secretary of State has declared her commitment to upholding both freedom of speech and academic freedom on campus but, following a period of consultation, has expressed a concern that the legislation as originally approved could lead to higher education institutions overlooking the safety and welfare of minority groups.
The legislation also included provisions to prohibit the use of non-disclosure agreements in respect of allegations of bullying, harassment and sexual misconduct. This is to be retained.
During the course of the Parliamentary process, concern was raised about the possibility of overseas funding having a chilling effect on freedom of speech and academic freedom. The legislation included provisions for the monitoring of such funding by the Office for Students. The Secretary of State has confirmed that she intends to consider further the aspect of the legislation and how it would work alongside new provisions relating to “foreign interference” in the National Security Act 2023.
The Birketts view
It would appear that the Office for Students and the Charity Commission as the relevant regulatory bodies will become extremely important under the refashioned legislative framework for ensuring that higher education institutions in England uphold freedom of speech and academic freedom across their campuses and in their students’ unions. The question then becomes “who guards the guardian”?
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2025.