The Higher Education (Freedom of Speech) Act 2023, introduced on 1 August 2025, covers those offering HE and their student unions.
It imposes duties upon them to ensure lawful freedom of speech and establish a freedom of speech code of practice, while also protecting individuals from physical and mental harm.
Crucially, the act prohibits the use of non-disclosure agreements to prevent victims of harassment, abuse or sexual assault from speaking out, thereby promoting their freedom of speech. This includes members of staff as well as students.
Promoting academic freedom
The new laws seek to strengthen the obligation to actively promote academic freedom. FE providers offering HE should enable robust discussion between students, staff and external speakers to “question received wisdom”, and “put forward new ideas and controversial or unpopular opinions”.
This has caused some concern among academics, with one in five suggesting when polled by HE regulator the Office for Students (OfS) that they didn’t feel free or comfortable with being encouraged to teach controversial views on topics such as sex or gender.
This has led the OfS to publish guidance that provides illustrative examples of how HE providers might best respond to differing scenarios.
Difficult balancing exercise?
The balance between upholding free speech and protecting personal rights, for example the prohibition on harassment, remains an ongoing challenge for FE providers, particularly as many students aged under 18 may not be comfortable hearing controversial views.
By way of example, during a classroom discussion concerning euthanasia, when student B expresses a controversial position relating to older people, this could be lawful speech. However, student C repeatedly posts social media comments attacking student B and their views.
If the college carries out an investigation and issues a sanction to student C under its social media policy, which forbids unlawful online harassment, it is unlikely in this scenario that the college has breached its duty to “secure” student C’s free speech. Student C’s speech was not within the law and could be disciplined.
The OfS has outlined a three-step framework to assess compliance with the obligation to secure free speech.
Step 1: Is the speech “within the law”?
Providers must first confirm the speech is lawful and not prohibited by primary or secondary legislation, legal precedents or court decisions.
If it is not, they may need to consider other steps outside the scope of duty – for example, whether to inform the police or another third party such as a regulatory body.
Step 2: Are there any ‘reasonably practicable steps’ to secure the speech?
Next, providers should determine if there are any “positive” steps to take action or “negative” steps that refrain from taking action. These should be “reasonably practicable”, considering legal and regulatory obligations, such as protecting physical safety, and maintaining essential functions including learning, teaching and research.
Less focus should be given to the viewpoint expressed – even if it’s deemed controversial, offensive or does not align with an organisation’s values – and reputational impact. If there aren’t reasonably practicable steps to take, proceed to step three.
Step 3: Are there lawful or proportionate restrictions that can be taken?
If there are no reasonably practicable steps to secure free speech, any restriction or regulation must meet the conditions set down under Article 10 of the European Convention on Human Rights (ECHR). The third step is to ensure it does.
Firstly, any interference with free speech needs to be justified by a specific English legal rule or regime. The individual affected would need to have adequate access to the rule or regime to enable them to foresee the circumstances in which the law might apply, and the likely consequences.
Secondly, that interference must be proportionate – in other words, sufficiently reasonable or necessary to justify the limitation of free speech. Even then, less intrusive measures should be applied first.
If the answer to this final step is “yes”, it’s likely a provider’s restrictions are consistent with free speech obligations. If “no”, a revised approach is needed.
Clear policies and procedures
To facilitate compliance with the free speech laws, colleges should develop transparent procedures and a code of practice for handling speaker invitations and events, monitor their student unions for compliance, and ensure disciplinary processes respect free speech rights.
Providers should also train staff to understand the boundaries and protections of free speech, and inform students of their rights and how to raise concerns. Seeking independent legal advice when necessary would also ensure compliance.
What happens if it goes wrong?
Failure to adhere to these obligations can lead to investigations and penalties from the OfS, as seen in the £585,000 fine imposed on the University of Sussex in March for failing to protect free speech and academic freedom.
It is therefore crucial for colleges to balance freedom of speech with the protection of individual rights under the Equality Act, terrorism legislation and the Public Order Act to ensure a safe and inclusive environment for all.
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