The UK Government’s Higher Education (Freedom of Speech) Act 2023 aims to strengthen the legal requirements of registered Higher Education (HE) providers when it comes to freedom of speech and academic freedom.

HE providers following the consultation planned their steps to promote and protect freedom of speech for staff, members, students and visiting speakers while also safeguarding academic freedom for academic colleagues. The Act also grants the Office for Students (OfS) responsibility for enforcing the duties of the Act, investigating complaints and imposing potential sanctions.

What the Freedom of Speech Act means for higher education providers

Active promotion of free speech and academic freedom

The Act may mean that universities and colleges delivering HE provision will need to change the way that they approach free speech. Previously, most providers preferred to follow a risk-averse approach, allowing speech that was lawful and prohibiting unlawful or illegal speech, without actively promoting or defending controversial viewpoints. However, this approach has led to controversy around how different universities have stopped or avoided events with external speakers which have been deemed controversial or divisive.

Section A1(1) to (10) highlights that the governing body of providers must take steps to secure freedom of speech for visiting speakers (as well as students and staff). This includes ensuring that the use of premises is not denied to any individual based on their lawful ideas or opinions and that individuals do not bear the costs of security themselves for the use of a provider's premises.

Code of practice

In section A2, the Act states that providers have a duty to maintain a code of practice, which must be published. This code of practice must outline the provider’s:

• Values relating to freedom of speech and how these values will uphold freedom of speech.
• Procedures for staff and students and any students’ unions when organising events on campus and the expected conduct of persons related to these events.
• Criteria for granting access to premises and on what terms, including criteria to determine if exceptional circumstances apply in requiring individuals or bodies to bear security costs when using the premises.

Responsibility for monitoring codes of practice falls to the provider’s governing body. Additionally, providers are now required to bring the duties of the Act and the supporting code of conduct to the attention of students at least once a year and may be factored into induction and enrolment processes.

Non-disclosure agreements (NDAs)

Another notable provision can be found in section A1(11) and (12). This states that the governing body must ensure that the HE provider does not enter into NDAs with staff, students or visiting speakers in relation to complaints of sexual abuse, harassment or misconduct, or other bullying or harassment.

This section of the Act supports condition E6 (harassment and sexual misconduct) of the OfS’ ongoing conditions which came into force in full on 1 August 2025. It aims to strengthen the requirements for providers with respect to protecting students from harassment and sexual misconduct, maintaining transparent and accessible policies and procedures, and promoting safe and respectful learning environments.

Key takeaways for higher education leaders

With the key provisions now in effect, providers will need to ensure that governing bodies understand their responsibilities under the Act. Moreover, training should be given to staff to help them understand the new rules and how to hold and handle controversial events. Students will also need to be made aware of their responsibilities and reminded of the code of practice on an annual basis.

Providers will need to review their complaint-handling frameworks to determine how free speech complaints will be managed. Retaining clear audit trails and records of decisions and actions taken in response to free speech-related complaints will be essential in any potential OfS investigations.

How can higher education providers assess their compliance?

The OfS has released regulatory advice and guidance related to freedom of speech, which sets out a three-step framework for assessing compliance with elements of the Act. The guidance also provides examples of steps which can be taken to secure freedom of speech that are likely to be reasonably practicable in different circumstances. The steps taken will be dependent upon the type and size of each provider.

For more information about the Freedom of Speech Act, please get in contact with Lisa Randall or your usual RSM contact.

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