On 1 August 2025, new inter-connected provisions came into effect, placing new enforceable legal and regulatory obligations on registered higher education providers, re-defining the law of higher education in England.
These were:
- the Higher Education (Freedom of Speech) Act 2023 (various sections)
- Condition of Registration E6 – Harassment and Sexual Misconduct.
The 2023 Act strengthens the existing statutory duty on registered higher education providers to ‘secure’ freedom of speech ‘within the law’ for staff, members and students of the provider – and for visiting speakers (the A1 duty). It also strengthens the requirements on registered providers in respect of the Code of Practice which they are required to maintain ‘with a view to facilitating the discharge of’ their statutory duty’ to secure freedom of speech within the law (the A2 duty). A new statutory duty will also apply which will require registered higher education providers in England to ‘promote the importance of freedom of speech’ within the law (the A3 duty).
These duties will also apply to ‘constituent institutions’ of registered higher education providers – principally, but not exclusively, the colleges of Oxford and Cambridge Universities. The Government, however, has indicated that it proposes to repeal the provisions of the 2023 Act which, if implemented, would have placed a statutory duty on students’ unions to secure freedom of speech within the law.
As yet, the Government has not brought into force the new complaints procedure to be operated by the Office for Students (OfS) for breaches of the legislation, although students will continue to be able to bring their complaints about freedom of speech issues to the Office of the Independent Adjudicator for Higher Education (OIAHE). The Government has indicated that it intends to repeal the provisions in the legislation giving individuals the right to issue county court proceedings for enforcement of breaches of the legislation by way of a civil law remedy. As yet, provisions in the legislation for a new Condition of Registration relating to freedom of speech have not come into force as the Government has indicated that it intends to amend this part of the legislation.
Within the definition of ‘freedom of speech’ is the related, yet distinct, concept of ‘academic freedom’ which is defined in the 2023 Act in relation to members of academic staff at a registered higher education provider as ‘their 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 ways specified in the legislation (including in respect of their existing jobs, privileges, promotions and applications for jobs).
The principal statutory duty to secure freedom of speech and academic freedom (A1) has a practical focus. Governing bodies of registered higher education providers and their constituent institutions in England ‘must take the steps that, having regard to the importance of freedom of speech, are reasonably practicable for it to take to achieve the objective’ of securing freedom of speech within the law for the specified groups set out in the legislation. Note that the new legislation does not create a new right for members of the public or those outside the institution’s community (as defined) to speak on campus without an invitation to do so.
The A1 statutory duty to secure freedom of speech within the law includes provisions relating to the use of an institution’s premises by individuals and groups which should not be denied on the basis of their ideas, opinions, policies or objectives. Apart from ‘exceptional circumstances’, use of premises by any individual or body should not be on terms that they bear some or all of the costs of security arrangements.
The A1 statutory duty also includes a requirement that the governing body of a registered provider does not enter into a non-disclosure agreement with staff, members, students and visiting speakers in relation to complaints relating to ‘misconduct or alleged misconduct by any person’. If such a non-disclosure agreement is entered into it will be void. ‘Misconduct’ is defined as ‘sexual abuse, sexual harassment or sexual misconduct’ and other forms of ‘bullying or harassment’.
The Office for Students issued guidance related to freedom of speech (Regulatory advice 24) on 19 June 2025 which was also effective from 1 August 2025. It also issued guidance concerning the new Condition of Registration E6 on 31 July 2024 aimed at preventing harassment and sexual misconduct – which includes guidance on how these regulatory obligations work alongside freedom of speech obligations, for example:
‘a provider will need to carefully consider its freedom of speech obligations and ensure that it has particular regard to, and places significant weight on, those obligations when creating and applying policies and procedures that are designed to help protect students from harassment by other students.’ (Paragraph 58c)
Condition of Registration E6.8 states as follows:
‘the provider must comply with the requirements of this condition in a manner which is consistent with the freedom of speech principles’.
The ‘freedom of speech principles’ are defined in E6.11 (j) as:
‘(i) irrespective of the scope and extent of any other legal requirements that may apply to the provider, the need for the provider to have particular regard to, and place significant weight on, the importance of freedom of speech within the law, academic freedom and tolerance for controversial views in an educational context or environment, including in premises and situations where educational services, events and debates take place
(ii) the need for the provider to apply a rebuttable presumption to the effect that students being exposed to any of the following is unlikely to amount to harassment:
- the content of higher education course materials, including but not limited to books, videos, sound recordings and pictures
- statements made and views expressed by a person as part of teaching, research or discussions about any subject matter which is connected with the content of a higher education course.’
Turning to the substantive requirements of the new Condition of Registration, E6.1 confirms that the scope of the regulatory requirements cover ‘incidents of harassment and/or sexual misconduct’ (as defined) which affects students, including the conduct of staff towards students and the conduct of students towards students. The new regulatory requirements apply to students on higher education courses ‘provided in any manner or form by, or on behalf of, a provider (including, but not limited to, circumstances where a provider is responsible only for granting awards for students registered with another provider).’
E6.2 – 6.4 sets out requirements for registered higher education providers in England relating to policies and procedures which they must maintain relating to incidents of harassment and sexual misconduct. There must be a ‘comprehensive source of information’ (as defined) which must comply with ‘minimum content requirements’ and ‘content principles’ (as defined), be published and accessible in compliance with the ‘prominence principles’ (as defined) and be transparent about earlier versions and changes to such policies.
E6.5 – 6.6 sets out requirements specifically relating to ‘intimate personal relationships between staff and students’ (as defined). The ‘comprehensive source of information’ must provide for ‘one or more steps which could (individually or in combination) make a significant and credible difference in protecting students from any actual or potential conflict of interest and/or abuse or power’ (as defined). A ban on intimate personal relationship between staff and students is stated to be a step which could make a significant and credible difference in protecting students, but it is not a mandated requirement.
E6.7 sets out requirements relating to the provider having the ‘capacity and resources’ (as defined) ‘necessary to facilitate compliance with this condition.’
E6.8 – 6.9 sets out requirements relating to freedom of speech and the freedom of speech principles (as defined), as previously noted. E6.9 specifically confirms that these requirements apply to policies relating to harassment to the extent that the content ‘(a) goes further than its obligations under the Equality Act 2010 or any other legal requirement…and (b) could reasonably be considered capable of having a negative impact on, or having the object or effect of restricting, freedom of speech within the law and/or academic freedom.’
E6.10 sets out requirements relating to the disclosure of information, namely that providers must not include any ‘restricting provisions’ (as defined) in any contract formed or varied after the date upon which the Condition of Registration comes into effect. Note here that the OfS’ regulatory requirements related to non-disclosure agreements came into effect on an earlier date (1 September 2024).
Condition of Registration E6 includes a significant definitions section which includes substantive regulatory requirements, many of which are incorporated into the definition of the ‘minimum content requirements’ for policies and procedures, including:
- reporting mechanisms
- the handling of information sensitively
- providing ‘appropriate support’ to anyone involved in an incident of harassment and/or sexual misconduct
- that students are ‘appropriately informed to ensure understanding’ including relating to the ‘comprehensive source of information’ and induction sessions
- that staff are ‘appropriately trained’ for various activities
- that investigations and decisions are ‘credible, fair and otherwise reflect established principles of natural justice’.
There is again a practical expectation to these regulatory requirements, namely on the ‘multiple steps which could (individually or in combination) make a significant and credible difference in protecting students from behaviour that may amount to harassment and/or sexual misconduct’.
Harassment is defined by reference to section 26 of the Equality Act 2010 and section 1 of the Protection from Harassment Act 1997. For the purposes of Condition of Registration E6, the OfS extended the definitions in these pieces of legislation to include harassment of one student by another student. Guidance from the OfS notes that the tests are designed to establish ‘objectively and reasonably’ whether conduct could be considered as ‘harassment’.
The Office for Students will have a significant role in seeking to enforce regulatory obligations in respect of both freedom of speech and harassment/sexual misconduct. Earlier in the year, the OfS imposed a Monetary Penalty on the University of Sussex in the sum of £585,000 following its investigation into compliance with the Conditions of Registration (E1 Public Interest Governance Principles and E2 Management and Governance) following the University’s approach to the circumstances surrounding one of its senior academics, Professor Kathleen Stock who resigned from her academic position. The University is challenging the OfS decision, including by way of judicial review in the High Court. The OfS is also the Principal Regulator for universities which are exempt charities.
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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 August 2025.