Freedom of Speech: do UK Universities comply with the new Act?

Introduction  

The Higher Education (Freedom of Speech) Act 2023 (the “Act”) has – mostly – come into force, from 1 August 2025. The provisions coming into force will place higher education institutions under enhanced obligations to uphold and promote freedom of speech, impacting also the existing requirement to maintain a legally compliant code of practice. Universities will need to balance fostering open debate, radical thinking and challenge of orthodox thought against their legal duties around equality, safety and public order. You can read more about the new Act and its impact here.

Code of Practice

Universities in England are regulated by the Office for Students (“OfS”), which recently released guidance on free speech duties under the new Act^[1]. Universities are legally required to maintain a clearly available code of practice on free speech and must ensure this is complied with. Universities must bring their code to the attention of students at least once a year. It would also be good practice to publish the code in a prominent position and to have a simple statement summarising its content.

Policy Review: Key Findings

Following the introduction of the new Act and the accompanying OfS guidance, we undertook a review of a selection of publicly available UK university Freedom of Speech codes. Broadly speaking, most of the codes we examined were largely consistent in approach and, in many respects, fit for purpose under the forthcoming legal framework. Common features included: clear publication of the code on the university’s website; a statement recognising the importance of free speech; and references to the relevant legislation clarifying the boundaries of unlawful speech.

That said, we also identified several areas below where universities could strengthen or review their codes to ensure full compliance with the new legal and regulatory expectations.

Values relating to Free Speech

Under the new Act, higher education institutions are required to set out their free speech values, alongside an explanation of how those values uphold freedom of speech, in their codes of practice. The OfS guidance draws attention to this and sets out a number of considerations for institutions. The policies we reviewed differed quite significantly in terms of setting out values relating to free speech. Some shorter policies contained very high-level descriptions of free speech and more ‘matter of fact’ statements that free speech would be upheld and encouraged. These policies would be likely to fall foul of the new ‘values’ requirement. On the other end of the spectrum, some policies contained a great deal of detail around their values, using these to add context to, and justifications for, their policies. Values mentioned include (i) the importance of free speech to academic integrity; (ii) the fact that free speech encourages critical thinking; and (iii) the importance of being inclusive and ensuring a range of voices and opinions are represented within the institution. Many institutions also highlighted the importance of celebrating differences and ensuring people feel comfortable to respectfully disagree with or challenge statements made in academic settings.

Of the institutions who did include values in their policies, there are also a number of differences in how these are addressed. Some policies contain a clear and detailed section on these values, tying them to the university’s core mission or beliefs. Others mention values in passing, giving more generic reasons why free speech may be seen as important. The OfS guidance outlines that universities might want to include the following: (i) a statement about the overarching value of free speech within the law to that institution; (ii) an explanation of how the institution’s own values uphold free speech; (iii) a statement expressing the heightened protection of lawful free speech and expression of views in an academic setting; and (iv) a statement highlighting that lawful free speech may include “shocking, disturbing or offensive” speech.

Procedures for meetings and activities

Within the code of practice, universities must clearly outline the procedures that both staff and students must follow when organising meetings, events or other activities. The scope of application must be broad, covering not only external events but also internal academic or administrative meetings. This section of the code of practice should expressly require any decision maker, when making any decision or policy in relation to meetings and activities, to act compatibility with their statutory free speech duties whenever possible. The OfS guidance sets out clear principles that any such procedures should adhere to: i) the starting point for any event is that it should be permitted to go ahead without cancellation; ii) any procedure for organising room bookings and speaker events should be clearly set out; iii) the process for organising events should not take longer than necessary; iv) there should be a clearly identifiable person to contact for any questions; v) there should be an identified person responsible for approval of an event, and any final decision to cancel or delay an event should be taken by a suitably senior official; vi) there should not be onerous requirements for information.

In our review, we noted that certain universities had a section on procedures for organising meetings/activities within their free speech code, and others referred to an external speakers and events policy. If the university has an external policy on this, it is important that this separate policy is still compliant with their free speech duties. Universities should review their code/external policies and make sure their procedures for organising meetings and activities do not restrict freedom of speech.

Conduct at the meetings

The university’s code of practice must set out clear expectations for the conduct of participants at relevant meetings, events, and activities. The code should reaffirm the fundamental principle of freedom of expression here, underlining the university’s role in providing students and staff with exposure to a broad spectrum of views and opinions, including those that may be controversial, unsettling, or offensive to some. This is essential for fostering open debate and intellectual challenge.

However, the duty to secure freedom of speech does not extend to unlawful speech, and universities must carefully assess potential speakers or events where there is a reasonable risk of illegality, such as incitement to violence or hate speech, and take appropriate action to prevent this.

The guidance also recognises peaceful protest as a legitimate form of free expression. Universities should permit robust debate and allow for views to be questioned and challenged during events, provided this is done in a lawful and orderly manner. However, the OfS is clear that protest activity must not cross the line into disrupting or shutting down events altogether. Given the increasing frequency of campus protests, universities are advised to expressly address these issues within their policies, ensuring a balanced approach that safeguards both free speech and lawful dissent.

Sussex Decision & Governance

The OfS guidance also sets out reasonably practicable steps which universities may wish to take in relation to governance. This is especially relevant following the recent OfS University of Sussex decision, which you can read more about here.

The OfS guidance states that institutions should formally record decisions that may significantly affect free speech, ensuring these records are available for external scrutiny if needed. Clear delegation arrangements must also be in place, with all relevant committees explicitly considering free speech duties in their terms of reference. Additionally, institutions must safeguard academic autonomy, ensuring that curriculum decisions do not restrict the teaching or discussion of lawful but controversial or unpopular ideas.

In the University of Sussex decision, the university was fined because (i) its policy statement on trans and non-binary equality was found to be non-compliant with free speech duties and (ii) it was found to have failed in its governance duties. This emphasises the importance for universities to review all of their policies in light of the new legislation and guidance, not just those directly related to free speech, as well as reviewing all governance arrangements to ensure compliance.

Comment

Most universities already possess a sound platform on which to build; nevertheless, genuine compliance with the Higher Education (Freedom of Speech) Act 2023 will demand more than cosmetic revisions. Institutions should articulate explicit free-speech values, streamline event procedures, codify expectations for protest and conduct, and embed rigorous governance that documents, scrutinises and justifies decisions. The University of Sussex ruling confirms that the OfS will enforce these requirements with financial and reputational consequences. By attending to the gaps identified now, universities can secure lawful, open and intellectually vibrant campuses before the OfS begins to enforce the new Act, benefiting future both the university and future cohorts of students.

Article co-authored by Amy McKeown and Thomas Samuel.
 

^[1] Regulatory advice 24: Guidance related to freedom of speech - Office for Students