New rules strengthen freedom of speech obligations for English universities

The Higher Education (Freedom of Speech) Act, which became law on 11 May, will require universities, colleges and students’ unions to promote, rather than simply ensure, free speech on their campuses. Under the new Act, HEIs must also consider whether speech is lawful by taking into account criminal law, such as the 1986 Public Order Act and the 2010 Equality Act. They are also required to publish a code of practice for freedom of speech on campus.

Higher education expert Julian Sladdin of Pinsent Masons said: “A very delicate balance must be struck between the need to facilitate an individual’s lawful expression of their views – even if they are unsettling or distasteful to others – and the right to lawfully object or protest. It should not be forgotten that, although there should always be a presumption in favour of free speech, significant risk to campus safety, public order or participants might mean that limitations have to be considered.”

A new ‘director for freedom of speech and academic freedom’ will be appointed to manage the free speech functions of the Office for Students (OfS), implement a new complaints scheme, and investigate instances in which universities are accused of breaching their duties under the new Act.

Students, staff and visiting speakers will be able to bring claims to court if they feel they have suffered loss as a result of their free speech rights being unlawfully restricted. The government said the new duties and measures specified under the Act would likely come into force before the start of the 2024-25 academic year.

It comes after around 200 students protested the Oxford Union Society’s decision to invite Professor Kathleen Stock to speak at an event held last week. Supporters of Stock, a former academic at the University of Sussex, said the university’s student union had attempted to prevent her from speaking because of her ‘gender critical’ views.

Protesters said they were not opposed to Stock's right to freedom of speech, but said her views promoted hate against transgender people and should not be given a platform by the Oxford Union Society.

Sladdin said: “The current debate at Oxford regarding Kathleen Stock’s right to address the Union Society is one which highlights the extremely complex and often polarised situations which universities have to manage when trying to ensure rights to free speech and academic freedom within the law.”

“It also highlights the fact that, under the present legal framework, the regulatory position has become more complex due to student unions becoming devolved from the universities themselves as legally distinct charities rather than under direct control. This was not anticipated by existing legislation and is specifically addressed by the new Higher Education Act,” he added.