Government sets 1 August date for (some) new free speech duties

The Education Secretary, Bridget Phillipson, announced on 28 April that several provisions of the Higher Education (Freedom of Speech) Act 2003 will come into force on 1 August 2025.

Chris Hook, charities and education partner at Muckle, explains what you need to know.

What’s changing?

The Act was passed under the previous government in 2023 with the aim of extending and strengthening free speech within the higher education sector and introducing additional oversight by the Office for Students (OfS). 

The Act was originally due to come into force on 1 August 2024, but the new Labour Government put full implementation on hold in July 2024 amid criticism from universities and students’ unions.

In January 2025, the Government announced that most of the Act would be brought into force before the start of the next academic year and that other parts would be “removed” or “scrapped”.

We now know that sections 1, 2 and 5 of the Act will come into force on 1 August 2025.

Section 1 creates a new duty on higher education providers to protect free speech within the law for the members, staff and students and for visiting speakers. This also includes protecting academic freedom for academic staff. Section 1 will also require higher education providers to maintain a code of practice to facilitate their free speech duties and to promote the importance of free speech within the law and academic freedom in the provision of higher education.

Section 2, in turn, applies these duties to a higher education provider’s constituent institutions, including any constituent college, school or hall.

Section 5 extends the statutory functions of OfS to include promoting the importance of free speech within the law in the provision of higher education and the need to protect the academic freedom of academic staff.

What about the other provisions of the Act?

It is significant, however, that section 3 (which creates new free speech duties on students’ unions) will not be brought into force. Likewise, section 4 (which creates a new statutory tort for breach of these new duties) will also not be brought into force. 

This follows a Government review that concluded that several provisions of the Act were “unnecessary” and risked having a chilling effect on free speech and leaving “universities vulnerable to disproportionate costs for legal disputes”.

As it stands, there is still no update on whether and when the other key provisions of the Act will be brought into force. If and when implemented:

• Section 6 will ensure that the OfS conditions of registration will require higher education providers to have adequate free speech protections in their governing documents;
  
  
• Section 8 will create a new statutory complaints scheme for individuals whose free speech rights have been unlawfully infringed by a higher education provider; and
  
  
• Section 9 will require OfS to monitor the sources of overseas funding to higher education providers and their constituent institutions to assess “the extent to which the funding presents a risk” to free speech and academic freedom.

The Government has stated that it will continue to keep all these matters under review. In the meantime, a judicial review of the Government’s delayed implementation of the Act has been brought by the Free Speech Union.

Commentary

It seems sensible for the Government to limit further implementation for the time being. Following the OfS’s decision to impose a £585,000 fine on Sussex University, the HE sector needs more time and clearer guidance on how to discharge these duties without the threat of immediate enforcement. 

Given the short period of time before August, it would also be useful if OfS would confirm that providers will be granted a grace period to implement the changes and ensure compliance without fear of further regulatory action.

In any event, universities should review and update their free speech code of practice to ensure compliance with the Act, review their governance arrangements and internal procedures for dealing with free speech and academic freedom matters, and ensure that governors, staff, students and visiting speakers are made aware of the Act and the university’s policies and procedures.

If you would like further information or legal advice on these matters, please contact Chris Hook at [email protected] or 0191 211 7801.