Higher Education (Freedom Of Speech) Act 2023

Commentary on provisions of Act

Part 1: Duties to protect freedom of speech

Section 1: Duties of registered higher education providers

14. Section 1 inserts sections A1, A2 and A3 into the Higher Education and Research Act 2017.

Section A1: Duty to take steps to secure freedom of speech

15. This section imposes duties on the governing body of a higher education provider registered with the OfS, similar to provision in section 43 of the Education (No. 2) Act 1986.
16. The governing body must take reasonably practicable steps to achieve the objective of securing freedom of speech within the law for the provider’s members, staff and students and for visiting speakers. There is a duty to have particular regard to the importance of freedom of speech when determining what steps are reasonably practicable.
17. The duty includes taking reasonably practicable steps to ensure that the use of premises is not refused because of a person’s ideas or opinions, or a body’s policy or objectives, and that the terms on which premises are provided are not based on those grounds. It also includes taking reasonably practicable steps to secure academic freedom for academic staff at the provider, an existing principle which is extended to include the circumstances of seeking promotion or a different job at the provider. In addition, there is a new separate duty with similar provision in respect of external applicants for an academic role at a provider.
18. In order to achieve freedom of speech within the law, the governing body must also secure that individuals or bodies that use its premises are not required to bear some or all of the costs of security, unless there are exceptional circumstances.
19. The governing body must also secure that the provider does not enter into non-disclosure agreements with members, staff and students and visiting speakers in relation to complaints of sexual abuse, harassment or misconduct, or other bullying or harassment.

Section A2: Code of Practice

20. This section imposes duties on the governing body of a higher education provider registered with the OfS, similar to provision in section 43 of the Education (No. 2) Act 1986.
21. The governing body must maintain a code of practice with a view to facilitating the discharge of the duties in section A1(1) and (10). The content of the code of practice must include a statement of the provider’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech. It must also set out the procedures to be followed by staff, students and any students’ union for students at the provider when organising meetings and activities, the conduct required in relation to such meetings and activities, and the criteria for specified decisions (including whether there are exceptional circumstances for the purposes of section A1(10)).
22. The governing body must take reasonably practicable steps, including where appropriate the initiation of disciplinary measures, to secure compliance with the code of practice.
23. The governing body must, at least once a year, bring the provisions of section A1 and the code of practice to the attention of all its students.

Section A3: Duty to promote the importance of freedom of speech and academic freedom

24. This section creates a new duty on the governing body of a higher education provider registered with the OfS to promote the importance of freedom of speech within the law and academic freedom for academic staff in higher education.

Section 2: Duties of constituent institutions

Section A4: Duties of constituent institutions

25. Section 2 inserts section A4 into the Higher Education and Research Act 2017, which provides that sections A1 to A3 also apply to the governing body of a constituent institution of a registered higher education provider.
26. The duties of the governing body of a constituent institution of a registered higher education provider under these sections do not affect the application of registration conditions imposed on the provider under the Higher Education and Research Act 2017.

Section 3: Duties of students’ unions

27. Section 3 inserts sections A5 and A6 into the Higher Education and Research Act 2017.

Section A5: Duty to take steps to secure freedom of speech

28. This section imposes new duties on a students’ union at a registered higher education provider that is eligible for financial support for the purposes of section 39 of the Higher Education and Research Act 2017. This does not include a students’ union for students at a constituent institution of such a provider.
29. The students’ union must take reasonably practicable steps to achieve the objective of securing freedom of speech within the law for members and staff of the students’ union, students of the provider, members and staff of the provider or its constituent institutions, and visiting speakers. There is a duty to have particular regard to the importance of freedom of speech when determining what steps are reasonably practicable.
30. The duty includes taking reasonably practicable steps to ensure that the use of premises occupied by the students’ union is not refused because of a person’s ideas or opinions, or a body’s policy or objectives; that the terms on which premises are provided are not based on those grounds; and that affiliation to the students’ union is not denied to any student society on those grounds.
31. In order to achieve freedom of speech within the law, the students’ union must also secure that individuals or bodies that use its premises are not required to bear some or all of the costs of security, unless there are exceptional circumstances.

Section A6: Code of practice

32. This section imposes new duties on a students’ union to which section A5 applies.
33. The students’ union must maintain a code of practice with a view to facilitating the discharge of the duties in section A5. The content of the code of practice must include a statement of the students’ union’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech. It must also set out the procedures to be followed when organising meetings and activities, the conduct required in relation to such meetings and activities, and the criteria for specified decisions (including whether there are exceptional circumstances for the purposes of section A5(5)).
34. The students’ union must take reasonably practicable steps, including disciplinary measures, to secure compliance with the code of practice.
35. The students’ union must, at least once a year, bring the provisions of section A5 and the code of practice to the attention of all its members who are students of the provider.

Section 4: Civil claims

Section A7: Civil claims

36. This section amends the Higher Education and Research Act 2017 to insert section A7, which creates a new statutory tort for breach of specified freedom of speech duties. It enables civil proceedings to be brought against a registered higher education provider or a constituent institution of such a provider in respect of a breach of section A1, and against a students’ union in respect of a breach of section A5, if the claimant has suffered a loss (either monetary or non-monetary).
37. A claim may only be brought if the claimant has first exhausted either of the available complaints schemes (operated by the OfS or the Office of the Independent Adjudicator for Higher Education). An exception to this is where the claimant is applying only for an injunction.

Part 2: Functions of the Office for Students

Section 5: General functions

38. This section amends the Higher Education and Research Act 2017 to provide that, in performing its functions, the OfS must have regard to the need to promote the importance of freedom of speech within the law in higher education, and the need to protect the academic freedom of academic staff at English higher education providers and their constituent institutions.
39. This section inserts section 69A, which provides that the OfS must promote the importance of freedom of speech within the law and academic freedom in higher education. This section also sets out provisions similar to sections 35 and 37 concerning advice by the OfS on good practice in relation to how to support freedom of speech and academic freedom, and the power of the Secretary of State to require the OfS to report on freedom of speech and academic freedom matters.

Section 6: Regulation of duties of registered higher education providers

40. This section amends the Higher Education and Research Act 2017 to insert section 8A, which provides for new mandatory registration conditions relating to freedom of speech and academic freedom. These include initial and ongoing registration conditions regarding the institution’s governing documents and management and governance arrangements, an ongoing registration condition requiring the governing body of the provider to comply with its duties under sections A1 to A3, and an ongoing registration condition requiring the governing body of a provider that is eligible for financial support for the purposes of section 39 to keep the OfS informed of its students’ unions.

Section 7: Regulation of duties of students’ unions

41. This section amends the Higher Education and Research Act 2017 to provide for the regulation by the OfS of students’ unions to which sections A5 and A6 apply in relation to their duties under those sections.
42. The OfS must monitor whether students’ unions are complying with those duties. It may impose a monetary penalty on a students’ union if it appears to the OfS that it is failing, or has failed, to comply with its duties. This is to be paid to the OfS and the amount is to be determined by the OfS in accordance with regulations made by the Secretary of State. The Secretary of State may also make regulations making provision about matters to which the OfS must, or must not, have regard when imposing a monetary penalty.
43. This section requires the OfS to maintain and publish a list of the students’ unions to which, according to the information held by the OfS, sections A5 and A6 apply.
44. Students’ union to which sections A5 and A6 apply must provide the OfS with information that it may require. If a students’ union fails to do so, the OfS may enforce the duty with an injunction.

Section 8: Complaints scheme

Section 69C and Schedule 6A: Free speech complaints scheme

45. Section 8 inserts section 69C and Schedule 6A into the Higher Education and Research Act 2017, which make provision for the OfS complaints scheme relating to the duties of registered higher education providers, their constituent institutions and students’ unions in respect of freedom of speech and academic freedom.
46. Paragraphs 1 to 4 of Schedule 6A set out the nature of the complaints that can be brought to the complaints scheme that the OfS must provide for, as well as the individuals who are eligible to make complaints. Paragraph 5 sets out the scope of the scheme. Paragraphs 6 to 8 set out provision regarding the decisions and recommendations that the OfS may make under the complaints scheme, including that the scheme must provide that, where the OfS considers a complaint to be justified (wholly or partly), it may recommend that the higher education provider, constituent institution or students’ union should do anything specified (which may include the payment of compensation but could also include, for example, reinstatement of the complainant’s job or place on a course) or refrain from doing anything specified. Paragraphs 9 to 13 set out various other requirements relating to the complaints scheme.

Section 9: Overseas funding

47. Section 9 inserts sections 69D and 69E into the Higher Education and Research Act 2017.

Section 69D: Overseas funding: registered higher education providers

48. This section requires the OfS to monitor the overseas funding of registered higher education providers and their constituent institutions so that it can assess the risk which the funding poses to freedom of speech and academic freedom in the provision of higher education. The OfS must also consider whether such funding is relevant to a breach of section A1.
49. Higher education providers must provide information on relevant funding to the OfS. Relevant funding is specified funding from a relevant overseas person where that exceeds a threshold (to be set in regulations) in a period of 12 months, as received by the provider, a constituent institution, or a member or member of staff of the provider or constituent institution (in their capacity as such). A relevant overseas person includes a government of an overseas country, a body headquartered in such a country, or a politically exposed person (as defined) in relation to such a country. The overseas country concerned excludes countries that will be prescribed in regulations.

Section 69E: Overseas funding: students’ unions

50. This section requires the OfS to monitor the overseas funding of students’ unions at a registered higher education provider that is eligible for financial support for the purposes of section 39, so that it can assess the risk which the funding poses to freedom of speech for their members, students, staff etc. The OfS must also consider whether such funding is relevant to a breach of section A5.
51. Students’ unions must provide information on relevant funding to the OfS. Relevant funding is funding from a relevant overseas person where that exceeds a threshold (to be set in regulations) in a period of 12 months. A relevant overseas person includes a government of an overseas country, a body headquartered in such a country, or a politically exposed person (as defined) in relation to such a country. The overseas country concerned excludes countries that will be prescribed in regulations.
52. If a students’ union fails to comply with its duty, the OfS may seek an injunction.

Section 10: Director for Freedom of Speech and Academic Freedom

53. This section amends Schedule 1 to the Higher Education and Research Act 2017. It provides for the role of a Director for Freedom of Speech and Academic Freedom as a member of the OfS Board and sets out the responsibilities of the Director in relation to the OfS’s functions.

Part 3: General

Section 11: Minor and consequential amendments

54. This section introduces the Schedule which makes minor and consequential changes to legislation.

Section 12: Extent

55. This section provides for the extent of the provisions of the Act. See the commentary on Part 2 of the Schedule and Annex A.

Section 13: Commencement

56. This section provides for the coming into force of the provisions of the Act.

Section 14: Short title

57. This section provides the short title of the Act.

Schedule: Minor and consequential amendments

Part 1: Amendments of the Higher Education and Research Act 2017

58. This Part makes consequential amendments to the Higher Education and Research Act 2017.

Part 2: Amendments of the Counter-Terrorism and Security Act 2015

59. This Part makes minor and consequential amendments to the Counter-Terrorism and Security Act 2015.
60. Paragraph 15 makes consequential amendments regarding the definitions in section 31 (freedom of expression in universities etc.) of freedom of speech and academic freedom.
61. Paragraphs 16 and 17 make technical corrections to definitions in section 32 (monitoring of performance of Prevent duty) and Schedule 6 (authorities subject to the Prevent duty).
62. This Part forms part of the law of England and Wales and Scotland. The amendments to section 31 apply to England only; the amendments to section 32 and Schedule 6 apply to England and Wales.

Part 3: Amendment of other Acts

63. This Part makes consequential amendments to section 43 of the Education (No. 2) Act 1986, and to the Higher Education Act 2004.