In some ways, there’s little that’s new in the Department for Education’s Command Paper on the future of the Higher Education (Freedom of Speech) Act 2023.
Over 30 pages or so, it basically puts some meat on the bones of the two announcements made by Secretary of State Bridget Phillipson – the one from last Summer where the act’s implementation was paused, and the one from January which discussed the plan in outline to partially repeal.
This isn’t the first Command Paper from DfE on the issue – back in 2021, then Secretary of State Gavin Williamson’s effort was a fairly heavily ideological compendium of Telegraph stories and Policy Exchange talking points – picking up everything from cancel culture to students being encouraged “to report others for legal speech”.
This run at things tends to deftly avoid all of that. It’s about as technical as you can get, with pretty much all of the critique justifying the approach based on workability and burden. Even that “sources close to the Secretary State” quote from last Summer on the Act representing some sort of “hate speech charter” is missing in action here – with the only discussion on harassment surrounding the ban on non-disclosure agreements.
That’s either savvy politics from a government keen to douse down culture war flames, or a hostage to fortune when OfS’ particular approach to the balancing act between free speech and EDI at some stage comes back to bite – with ministers caught in the middle.
And we’re off
We already knew that the government had decided to commence the duties on providers regarding freedom of speech and academic freedom, as set out in Section 1 of the Act. The regulations were made on 28 April 2025, the duties come into force on 1 August 2025, and we got some actual (if controversial) guidance from OfS on 19 June.
These include requirements for providers to take reasonably practicable steps to secure freedom of speech within the law for staff, members, students, and visiting speakers, as well as protecting academic freedom for academic staff. The Command Paper is keen to point out that the expanded definition of academic freedom will be retained, protecting academic staff from suffering adverse employment consequences solely based on their opinions or ideas.
Ditto Section 2 of the Act, which covers constituent institutions of providers. DfE says that its decision ensures that constituent institutions such as colleges, schools, or halls within universities (for example, the individual colleges at Oxford and Cambridge) are subject to the same obligations as their parent HE providers.
It says that the clarification was particularly important to put beyond doubt that these constituent institutions cannot avoid the freedom of speech duties that apply to the main institution – although to the extent to which you see these things as a see-saw, that does mean that Oxbridge Colleges will each be able to maintain their own free speech code of practice, while it’s the central university that will hold a central responsibility for the harassment and sexual misconduct duty as of 1 August.
Given that Oxbridge colleges tend to be fiercely guarded about their autonomy and independence, that harassment duty and features like its “single source of information” were going to be interesting enough – but given that OfS’ free speech guidance repeatedly mentions harassment considerations when making decisions on free speech, you can see how some astonishing complexity and internal conflict could be coming further down the track.
It’s also worth noting in passing that while DfE seems keen to put Oxbridge colleges’ direct duties beyond doubt, there’s nothing in here on transnational education – which as we noted in the commentary on OfS’ guidance, is asserted to be outside of the scope of the Act without anything in the way of meaningful justification.
The other thing in this section is DfE’s pride at extending the non-disclosure agreement ban OfS was already putting in place for harassment and sexual misconduct cases to bullying. It quotes campaigns like “Can’t buy my silence”, but of course doesn’t explain to students why silence can be bought over other types of complaint.
Yes yous
The original version of the Bill proposed regulating students’ unions directly – although notably, the SUs of those constituent colleges were to have been exempted on the basis that the college exercises sufficient control.
Pretty much by accident, that did mean that an FE union whose College was on the register and in receipt of OfS funding was going to be expected to bear all of the complex legal duties and issue a Code of Practice – even if it was unincorporated and run entirely by FE (rather than HE) volunteers.
So entirely sensibly, there’s confirmation that the government has decided to repeal sections 3 and 7 of the act in their entirety, which would have imposed the direct freedom of speech duties and given OfS regulatory powers over them.
The workaround is the one that’s been in place since 1994 – regulating SUs through their provider. The rationale for repeal centres on concerns that SUs can lack the financial resources, regulatory capacity, and legal expertise to handle complex duties, that monetary penalties or damage awards could severely impact their ability to provide services and support to students, and the government recognised that SUs are already regulated as charities by the Charity Commission, which oversees their compliance with legal duties including furthering educational purposes through enabling discussion and debate.
So instead of direct regulation, the government has decided to adopt our proposal from 2021 – the government will expect providers to take reasonably practicable steps to ensure their students’ unions follow codes of practice, which is what already happens over a whole range of issues. Some will see that as an attack on autonomy, others a charter for avoidance – sensible people will see this as the approach that will work.
Or at least it should work, were it not for the fact that OfS seems to be requiring universities (and therefore by proxy their SUs) to adopt an approach to the balance between free speech and harm that is not legally compliant. More on that in our commentary on OfS’ guidance, suffice to say that SUs at the sharp end of some of the tensions may end up resolving that what OfS might have told them to do is not what they actually should do on a given issue.
Complainants will be able to complain about the reasonably practicable steps thing – DfE civil servants may have forgotten that the Education Act 1994 also sets up some statutory complaints requirements on SUs themselves, which involve provider review. The other odd bit is that DfE’s amendments to the Act will require providers to set out in their Code of Practice how their students’ union will ensure that affiliation is not denied to any student society on the grounds of its lawful policy or objectives, or the lawful ideas or opinions of its members.
That goes slightly further than the compliance already expected of SUs as charities over protected beliefs, and extends (very slightly) an existing provision in the Education Act 1994 that the procedure for allocating resources to groups or clubs should be fair and should be set down in writing and freely accessible to all students. It’ll cause conflict at the edges – students do expect to be able to vote on things, and votes can be problematic – but overall this all makes sense.
Tort a lesson
You might remember the controversy over the statutory tort – the thing that would have allowed staff, students, and external speakers to bring civil claims against HE providers, constituent institutions, or students’ unions for breaches of their freedom of speech duties.
The government’s rationale for repealing that bit centres on concerns about its potentially harmful effects on the higher education sector – a chilling effect on freedom of speech that might make institutions more risk-averse about inviting challenging or controversial speakers due to fear of litigation. And so given judicial review, employment tribunals, the OIA complaints scheme for students, and the forthcoming enhanced OfS complaints scheme are all alternatives, plus the financial burden of potential legal costs, it’s gone.
That all pretty much matches Lords speeches opposed to the Tort at the end of 2022 – this we might expect this to re-emerge as a flashpoint when all of this finds its “appropriate legislative vehicle”.
This section also says that the government is also concerned that the threat of legal proceedings might lead institutions to prioritise protecting hateful or degrading speech over the interests of those who feel harassed or intimidated – an interesting idea given that both hateful and degrading speech can still be within the law, or at least OfS’ interpretation of it.
Complaints chaos
As expected, the Office for Students is going to be stripped of the ability to hear complaints from… students over academic freedom and freedom of speech.
To be fair, the sensible rationale there is that the Office of the Independent Adjudicator (OIA) is a well-established route that is recognised and understood by students and providers – and that approach will prevent students being baffled about who to approach, or worse, arbitrary categories that had the potential to take a wide-ranging complaint and insist on it being sliced up.
That won’t remove the potential problem of students on one end of the see-saw and staff on the other each making complaints about the same issue – or OfS and OIA potentially making different judgements. There’s also the prospect that OfS and OIA will handle things at a different pace, and while OfS was proposing to allow a complaint to roll in without exhausting internal procedures, OIA usually needs a Completion of Procedures letter.
It’s all very well asking the OIA to look at OfS’ guidance, but presumably there’s some risk that the OIA will look at the way OfS is defining free speech within the law and have representations made to it that disagree. Wales would feel pretty aggrieved if OfS’ particular interpretation was imposed on it via OIA’s dual country coverage, and presumably it would be wild for the OIA to say one thing about an incident in Wales and another in England.
It all feels like the two bodies are being asked to get in a room and talk – on that, DfE just points at Section 63 of HERA (OfS may co-operate with others where appropriate) and says you two should talk. It might strengthen it if needs be.
DfE also says that it will ask OfS to consider and then set out in requirements or guidance what fit for purpose internal complaints processes for academic freedom look like, although you could just as easily ask the OIA to build something into its Good Practice Framework.
The other aspect here is that the legislation will switch from OfS having a power rather than a duty to consider complaints under its scheme. DfE says that will enable it to prioritise, for example, the most serious complaints or complaints on issues affecting the whole sector.
The expectation is that “OfS and Dr Ahmed” will be transparent, independent and neutral in how they prioritise consideration of those complaints – notwithstanding the position-taking evident in the guidance already, that presumably points to some sort of criteria for folk to fight about.
Lurking in the background of all that is academic freedom – in its consultation on the complaints scheme, OfS pointed at the Higher Education and Research Act and said “the Act will require us to consider every complaint that is capable of being referred under the scheme. It does not preclude us from considering matters of academic judgement.”.
The OIA of course can’t look at such matters – and with “duty” switched to “power”, we’re going to need OfS to take a view on whether it will do things for staff and speakers that the OIA won’t be able to do for students.
Foreign funding
The one policy area where an announcement was pending was section 9 of the legislation, related to OfS’ monitoring of overseas funding to providers with an eye to assessing the extent to which such funding presents risks to freedom of speech and academic freedom. This measure is not currently in force.
When Bridget Phillipson updated Parliament on Labour’s plans in January, it was the one area where a decision was not announced:
I will take more time to consider implementation of the overseas funding measures. I remain fully committed to tackling cases of interference by overseas Governments, and the wider measures in the Act will further strengthen our protections. However, I want to ensure that any new reporting requirements for providers add value without being overly burdensome. We continue to work at pace with the sector on the wider implementation of the Foreign Influence Registration Scheme. My officials are working across Government and with the sector to review our response, and I will confirm my final decision in due course.
Now we get a decision of sorts – and that decision is to continue to keep this under review, and introduce “alternative mitigations to support HE providers to improve international due diligence.”
For a long time under the last government, the response to any and all bugbears that commentators and politicians had with universities’ and students’ relationships with other countries – ranging from overreliance on international students from certain countries, to research collaborations in weapons technology, to transnational repression, to the activities of Confucius Institutes and Chinese student associations – was that this would all be sorted out through the twin approach of the free speech act and the Foreign Influence Registration Scheme (FIRS). Labour has instead taken the approach that the latter needs to be implemented first.
FIRS will come into effect on 1 July – we reviewed its implications for the sector back in April – and the policy paper promises to assess what comes out of it. FIRS, we are told, will provide “greater visibility of foreign state influence in the UK,” and information disclosed will be shared with DfE and OfS where relevant, allowing for pattern recognition as well as the prevention of specific threats.
The alternative – that is, additional – mitigations mentioned above include asking the Office for Students to “consider the value of an explicit regulatory expectation” around due diligence on international partnerships. There’s also work on possible codes of practice and best practice sharing.
The caveat here is that as FIRS is implemented:
…it may demonstrate that further reporting on financial or other international arrangements would be beneficial to improve the identification and mitigation of these risks. As a result, we will keep the overseas funding provisions in the act under review in the event that, during FIRS implementation, evidence indicates further transparency reporting is necessary.
But it feels that the government has come down on the side of listening to the sector about avoiding burden and duplication and, as the paper says, “minimising diversion of resources away from teaching and research.”
There’s an interesting table on pages 24 and 25 of the command paper, perhaps anticipating criticism over the wait-and-see approach. The table lists all the different measures (ATAS, export controls, harassment duties, financial monitoring, national security act powers) that are already in place to mitigate against “foreign interference”, even without implementing OfS’ new powers.
(In this context it’s worth briefly noting that Monday’s industrial strategy announced that the government will consult on updating the definitions of the 17 areas of the economy subject to mandatory notification under the National Security and Investment Act, to ensure that they remain “targeted and proportionate”. This could – potentially – see a slight loosening of the areas of research collaboration where higher education institutions need to notify and get approval from the government.)
Equality impacts
Finally, there’s a very odd section at the end of the command paper that describes and comments on an Equality Impact Assessment that DfE has, for some mysterious reason, not actually published.
One of the sections might give us a clue as to why:
Expanding these duties may lead to more open expression of views which could have a negative impact on those who currently face elevated levels of lawful but offensive comments related to their protected characteristics. They could also potentially lead to increased unlawful harassment against groups with specific protected characteristics.
It’s almost as if DfE doesn’t want to publish a document that makes the legislation Phillipson is progressing sound like a “Tory hate charter” after all.
It all partly depends on how OfS plays its duty – again, see the article on the meaning of free speech within the law – but you’d also have to assume that the detail is pretty bleak, and/or offers up all of the remaining fine lines and rhetorical contradictions being dumped on universities to navigate. The tort might be gone, but all of that complexity very much remains.
