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Governance and Compliance Division

 

What is the Higher Education (Freedom of Speech) Act 2023?

The Higher Education (Freedom of Speech) Act 2023 (‘the Act’) was passed in May 2023. The Act imposes new free speech duties on universities (and also constituent colleges and students’ unions). It builds upon the existing duties set out in section 43 of the Education (No.2) Act 1986 and other legislation relevant to freedom of speech.
The Act’s main provisions come into force on 1 August 2024, with certain other matters not applying until 1 September 2025. The Act will be regulated by the Office for Students (OfS).
The new legislation does not affect underlying laws relating to freedom of speech, such as the right to freedom of speech under Article 10 of the European Convention on Human Rights, and other legislation that makes particular types of speech unlawful.

 

So what’s new?

The new legislation strengthens the legal duties on universities in relation to free speech and academic freedom. It also introduces new mechanisms for promoting, scrutinising and enforcing compliance with those requirements.
The Act does not materially change the University’s pre-existing position that it wholeheartedly supports freedom of speech within the law and academic freedom, while recognising that various laws create situations where freedom of speech must or may be circumscribed.
Unlawful speech remains unprotected. For example, speech that amounts to unlawful harassment, victimisation or discrimination is not protected. Similarly, unlawful incitement of religious or racial hatred, or speech threatening to kill or encouraging terrorism, or defamatory speech, or speech that is otherwise unlawful, is also not protected.

 

What are the main provisions of the Act affecting universities?

The main provisions of the Act for universities are as follows:
  • Universities, having particular regard to the importance of freedom of speech, must take reasonably practicable steps to secure freedom of speech within the law for their staff, members and students, and for visiting speakers
    • This includes securing that the use of university premises is not denied to any individual or body on the grounds of their views or beliefs, or varying the terms of use of those premises on such grounds, or charging security costs to those individuals/bodies except in exceptional circumstances
    • This also includes securing the academic freedom of their academic staff to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves at risk of losing their jobs/privileges or being adversely affected in promotions (or appointments)
  • Universities must issue a Code of Practice about freedom of speech and they must secure compliance with the Code
  • Universities must promote the importance of freedom of speech and academic freedom in the provision of higher education

 

What are the new compliance mechanisms?

In its role as regulator, the OfS will:
  • Monitor universities to ensure their governing documents are compatible with (and enable adequate oversight of) their free speech duties (it will also directly monitor students’ unions and constituent colleges with regard to their free speech duties)
  • Establish and run a free speech complaints scheme
  • Monitor overseas funding (above a certain threshold) received by universities, constituent colleges and students’ unions to ensure that such funding does not represent a risk to their free speech and academic freedom duties
  • Appoint a Director for Freedom of Speech and Academic Freedom (former University of Cambridge academic Professor Arif Ahmed took up this office in August 2023)
  • Promote the importance of freedom of speech and academic freedom, including issuing advice and guidance on good practice

 

What are the consequences if something goes wrong?

As of 1 August 2024, students, staff or visiting speakers (known as 'eligible persons') can complain to the OfS via its new free speech complaints scheme if they believe they have been adversely affected by the University’s non-compliance with its duty under the Act to take reasonably practicable steps to secure freedom of speech and academic freedom within the law.
If the OfS finds that a complaint is justified or partly justified, it can make recommendations or suggestions with which the University must comply. A recommendation may include doing something specified, including but not limited to the payment of money, or refraining from doing something in the future. The University is also liable for paying OfS costs in relation to any justified or partly justified complaint.
In addition, the Act introduces a statutory tort for breach of the free speech duties, meaning that eligible persons claiming loss (financial or otherwise) as a result of breaches of the free speech duties may bring civil claims for damages in the courts, subject to various conditions.

 

What is the University doing to prepare?

At the University, the Committee on Prevent and Freedom of Speech (CPFS), a joint committee of the Council and the General Board, has been monitoring preparations and has oversight of an Action Plan, which is being implemented by staff in the Governance and Compliance Division. The committee has representation from various University functions, as well as the Colleges and Cambridge Students’ Union.
Work undertaken to date has been prioritised based on both external and internal factors in collaboration with legal advisors. For example, a proposed new Code of Practice on Freedom of Speech has been produced. This Code of Practice amalgamates, updates and replaces three existing University-level documents about freedom of speech: the University Statement on Freedom of Speech, the Code of Practice on Meetings and Public Gatherings on University Premises, and the summary University Free Speech Principles. Ahead of 1 August 2024, once agreed by the Regent House, the finalised Code of Practice will be published on the University website and subsequently shared with relevant internal audiences via appropriate means.
Alongside the new Code of Practice, the OfS expects universities to review various policies, procedures and processes to ensure their compatibility with the free speech duties, to embed and document free speech considerations in decision-making, and to provide adequate training and guidance on the topic. A programme of preparatory work is underway in this regard.  Examples of policies and processes affected in different ways are those relating to:
  • Academic appointments and promotions
  • Complaints and disciplinary investigations
  • Equality, diversity and inclusion
  • Governance
  • Teaching and research, including curriculum design and research ethics
  • Speaker events

 

What, if anything, do I need to do in response to the new Act?

Changes to University processes and the introduction of training and awareness are being overseen by CPFS and managed by the Governance and Compliance Division, and there is no requirement for staff to take proactive steps to respond to any perceived impacts on their department from the Act.  If you think you need to undertake any work in that regard, and have not hitherto been contacted, please email the Governance and Compliance Division (address below), so it can assist and coordinate your work with other efforts.
You may wish to familiarise yourself with the University’s proposed Code of Practice on Freedom of Speech.  The text of the proposed Code of Practice remains subject to the University’s formal governance processes before it is approved.  
Wider communications will be sent out to departments, as well as to all staff and students, as necessary in due course.

 

What are the Colleges and Cambridge Students’ Union doing to prepare?

The Colleges and CSU are independently responsible for managing their own implementation plans, but they are collaborating with the University wherever possible to ensure a coherent approach.

 

Can I have more detail on the background?

The following resources should assist:
  • Further information on the new legislation, including a timetable and the indicative approach to regulation, is published on the OfS website
  • The OfS has conducted consultations on some aspects of the Act, including about:
  • Universities UK has published further information about the Act and its implications on the Universities UK website

 

Who can I contact with questions?

Questions may be directed to freespeech@admin.cam.ac.uk