Reinstated: Key provisions of the Higher Education (Freedom of Speech) Act 2023

What’s new?

Two key areas confirmed to be introduced are:

• A prohibition on higher education providers from entering into non-disclosure agreements with staff, members, students or visiting speakers in relation to complaints of sexual abuse, sexual harassment, sexual misconduct, or other bullying or harassment. This is wide and would include bullying and harassment on grounds other than just sex.
• A requirement for all higher education providers to take ‘reasonably practical steps’ to not only protect but also to promote freedom of speech and academic freedom while ensuring the safety of minority groups, including a requirement to implement robust codes of practice.

These will be enforced by the Office for Students (‘OfS’) who will have powers to investigate complaints about breaches and issue fines.

The Act was due to introduce a statutory tort, giving individuals the right to bring a claim against a higher education provider or students’ union in the event there is a breach of the free speech duties; however, the government has confirmed that it intends to repeal this provision to prevent costly and protracted litigation.

A policy paper will be published setting out the government’s proposals in relation to the Act. It intends to amend or repeal other provisions of the Act which it does not believe to be proportionate or necessary.

Next steps

It will be important to closely monitor the proposals being implemented by the government to ensure compliance and avoid costly claims.

At this stage, we recommend:

• Reviewing and updating existing staff/student policies and procedures to ensure compatibility with the current free speech duties
• Considering any gaps in training, guidance and awareness of the current free speech duties

A timeline for the publication of the policy paper and the implementation of key provisions of the Act has not been confirmed, so look out for further updates from Greenwoods in the upcoming weeks and months. If you have any questions, please get in touch with a member of our Education team.