Key provisions of the Higher Education (Freedom of Speech) Act 2023 (HEFSA) concerning freedom of speech and academic freedom in higher education are due to come into force on 1 August 2025. The Office for Students (OfS) also recently published guidance regarding the free speech duties to which registered higher education providers (HE Providers) and their constituent institutions are subject.
Background
HEFSA was passed under the previous Government with the goal of strengthening the freedom of speech and academic freedom requirements to which higher education institutions and students' unions are subject. HEFSA amends various pieces of existing legislation, including the Higher Education and Research Act 2017 (HERA 2017), the Higher Education Act 2004 and the Education (No. 2) Act 1986 (EA 1986).
Key HEFSA provisions were due to come into force in tranches from 1 August 2024, but the current Government paused implementation following its election in July 2024 due to student welfare concerns.
Earlier this year, after a period of further review and engagement, the Government introduced the HEFSA (Commencement No. 3) Regulations 2025 to bring certain key provisions in the HEFSA into force from this August. Further legislation is expected to be introduced to amend or repeal other aspects of HEFSA as appropriate; the timescales for this are still to be confirmed.
Key provisions coming into force on 1 August 2025
Duty to secure freedom of speech – the 'secure duty'
Under section 43 EA 1986, HE Providers are already under a duty to take reasonably practicable steps to secure freedom of speech for members, students, employees and visiting speakers.
The new provisions in HEFSA relating to this 'secure duty' are similar to those already in the EA 1986, however they will now also apply to constituent institutions (such as colleges at collegiate universities), and they introduce a new requirement for relevant organisations to "have particular regard to the importance of freedom of speech" when taking reasonably practicable steps.
The 'secure duty' as set out under section 43 EA 1986 included specific duties to secure that the use of premises was not denied on the grounds of an individual's ideas or opinions, or a body's policies or objectives. There is now also a new requirement that the terms on which premises are provided are not based on such grounds.
Non-disclosure agreements (NDAs)
Anew ban will be introduced preventing HE Providers and their constituent institutions from entering into NDAs with staff, members, students and external speakers in cases of bullying, harassment, sexual abuse or misconduct.
Code of practice
HE Providers should already have a freedom of speech code of practice in place to comply with section 43(3) EA 1986. This should include their procedures for organising relevant meetings or activities on-premises and the conduct required for such meetings and activities. HEFSA will now extend these duties to constituent institutions.
Codes of practice will also need to include a statement of the relevant HE Provider or constituent institution's values as regards freedom of speech and how such values uphold freedom of speech. There is also a requirement for HE Providers and constituent institutions to bring their code of practice to the attention of students annually.
Other new provisions include: a duty on HE Providers and constituent institutions, as well as on the OfS, to promote the importance of freedom of speech and academic freedom for staff; and a new power for the OfS to identify and give advice and guidance to HE Providers and their constituent institutions on best practice for supporting freedom of speech and academic freedom.
OfS guidance
The OfS's recently published guidance includes practical information which should be used by providers when navigating the new requirements, including a three-step framework for assessing compliance with the 'secure duty':
- Is the speech 'within the law'? If yes, see step 2. If no, there is no duty to 'secure' speech.
- Are there any 'reasonably practicable steps' to secure the speech? If yes, take them. If no, see step 3. When considering which steps are 'reasonably practicable', the OfS's guidance makes clear that it is irrelevant whether the speech aligns with the values of the provider, is offensive or may have a reputational impact. Factors which may be relevant include: legal and regulatory requirements (eg it will not be reasonably practicable to do something unlawful); impact on the 'essential functions' of higher education (eglearning, teaching or research – steps are less likely to be reasonably practicable if they inhibit these functions); and any safety concernswhich are created as a direct result of the relevant speech.
- Are any restrictions 'prescribed by law' and proportionate under the European Convention on Human Rights (ECHR)? Where there are no reasonably practicable steps, any restrictions must be 'prescribed by law' and proportionate per the requirements of Article 10 ECHR (for example, thought should be given to whether there are any less intrusive ways of achieving the same objectives).
The guidance includes examples of steps that are likely to be 'reasonably practicable' across a range of areas relevant to higher education institutions, such as admissions, appointments, teaching, research, speaker events and complaints processes. As regards training specifically, the guidance makes clear that, so far as is reasonably practicable, providers should deliver adequate training to staff involved in decision-making in a fairly lengthy list of relevant areas. This should cover the relevant provider's free speech code of practice and the requirements of the HERA 2017, the Human Rights Act 1998 (HRA 1998) and the Equality Act 2010 (EA 2010), insofar as they relate to freedom of speech and are linked to staff members' roles.
All staff and students should also receive an induction covering the relevant institution's code of practice and its application, their own free speech rights and the free speech rights of members, staff, students and visiting speakers under the HERA 2017, HRA 1998 and EA 2010.
Comment
The Government's evolving plans for the HEFSA have created a challenging landscape for HE Providers and constituent institutions to navigate, with some parts of the Act coming into force imminently, and others expected to be subject to further review, amendment or repeal, with timescales still to be confirmed. Providers will of course want to ensure that they have a comprehensive understanding of their obligations under the provisions which are due to come into force on 1 August 2025 and they will likely find the OfS guidance, with its three-step framework and practical examples, helpful in this regard. Providers should monitor developments in this area closely, look out for opportunities to engage with Government and the OfS to influence future policies where relevant and keep track of new obligations as and when they are implemented to ensure compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
