Universities have long been places where students can be exposed to new ideas and ways of thinking and it goes without saying that some of those ideas are going to be controversial, depending on the point of view of the student. However, examination of controversial ideas has been considered an essential part of a higher education institution’s role.

In recent years, however, it has been the case, in a few instances, that visitors with points of view or ideologies that are considered controversial, or even unacceptable, by a section of the student body have had their appearances at universities disrupted, blocked or rescinded.

Members of staff and students who share those opinions have been lobbied against and – in some cases – either dismissed or forced to resign.

Such cases, although very real and traumatic for those who are the target of such behaviour, make headlines and garner attention beyond the size of the problem itself, but the hidden effect this may be having on academic freedom of speech and the perceived stifling of controversial viewpoints has caused the government to introduce the Higher Education (Freedom of Speech) Act 2023.

What does the Act set out to achieve?

The Act sets out the legal duties of universities and Student Unions to secure and promote freedom of speech.

Governing bodies of higher education providers, such as universities, must take reasonable steps to protect freedom of speech for:

  • staff;

  • members;

  • students; and

  • visiting speakers.

This includes making sure an individual is not denied the use of university premises based on:

  • their ideas or opinions;

  • membership of a society or body;

  • the policy, objectives, ideas or opinions of any members of a society or body.

In addition, the terms and conditions on which university premises are used cannot be affected by these considerations.

Apart from exceptional cases, a person or organisation using university premises cannot be required to cover some or all of the security costs relating to their use of the premises.

Academic freedom

Universities must protect the academic freedom of staff. This is defined as:

  • questioning and testing received wisdom, and

  • putting forward new ideas and controversial or unpopular opinions.

Staff cannot:

  • lose their job or any privileges at the university; or

  • have reduced job opportunities or opportunities for promotion by exercising their academic freedom.

The Act also states that where a person applies for an academic post at a university, their application should not be adversely affected because they have previously exercised their freedom of speech.

What must Student Unions do?

Under the Act, Student Unions are now expected to take reasonable steps to protect freedom of speech for:

  • their staff and members;

  • students and staff of the university and

  • visiting speakers.

This includes ensuring there is no denial of the use of Student Union premises based on:

  • an individuals’ ideas or opinions;

  • membership of a society or body;

  • the policy, objectives, ideas or opinions of any members of a society or body.

Apart from exceptional cases, use of Student Union premises cannot mean that the individual or body has to meet some or all of the security costs relating to their use of the premises.

Codes of practice

Under the Act, universities and Student Unions must draft and implement codes of practice, setting out:

  • values relating to freedom of speech and how they intend to uphold those;

  • procedures for staff, students and members regarding meetings or activities held on university or Student Union premises that fall within the remit of the code;

For meetings and activities that fall within its remit, the Code must set out:

  • the expected conduct of anyone connected to the meeting or activity;

  • the criteria used to make decisions on whether the meeting or activity takes place and on what terms, and whether it counts as exceptional.

The Codes can go further but this is the minimum required as set out in legislation.

The Act also requires universities and Student Unions to take “reasonable steps” to make sure the codes are complied with. What ‘reasonable’ means remains to be defined, but taking legal guidance on what it may cover is recommended.

At least once a year:

  • universities must bring their Code of Practice and its position on freedom of speech to the attention of all students;

  • Student Unions must bring their Code of Practice and its position on freedom of speech to all their members.

Who will regulate the Act’s requirements?

The Office for Students (OfS), a non-departmental body of the Department for Education, established in 2018, will monitor compliance with the act.

Professor Arif Ahmed has been appointed as the first Director for Freedom of Speech and Academic Freedom and he will oversee the OfS free speech functions.

Penalties

If a university or Student Union does not meet its duties under the Act, a civil claim can be brought. To have a chance of success, the claimant must show that they have suffered a loss (not necessarily financial) as a result of their free speech rights being unlawfully restricted.

As well as the prospect of civil claims, a university may find that if it does not comply with the duties set out in the Act, the OfS may reject its new registration applications. For Student Unions who are in breach of the Act, the OfS can issue fines against them.

The duties in this Act are expected to come into force before the 2024/25 academic year. We will keep you up to date as more information becomes available.

Although no claims have been brought under the Act, some media outlets are already suggesting that universities could face very high amounts from cases involving freedom of speech, with one outlet putting forward a figure of £180,000 per claim*. This is hypothetical but it underlines the importance of obtaining legal guidance around what the Act requires and how to draft and implement Codes of Practice that will stand the test of a legal case.