A back to school compliance check list for the Higher Education (Freedom of Speech) Act 2023

In light of OfS’ robust free speech guidance, we’d highly recommend institutions take the following steps to ensure proper compliance.

Review and update existing free speech codes of practice and policies, including a statement of values relating to free expression, and conditions as to when security costs may be charged to event organisers.

This is an obvious one and hopefully has already been done, but is absolutely vital and bears repeating considering it is a direct statutory duty.

A review of the “Academic Staff” statute and related bye-laws or ordinances to ensure that all academics are properly protected.

In my experience, there can be significant variance across institutions with respect to which academics are covered by existing academic freedom protections in statutes (e.g. junior or insecurely employed are sometimes not covered), or the circumstances in which the statutes are engaged.

Updates to recruitment, disciplinary and dismissal procedures (etc.) to take account of the enhanced duties under the Act, and ensuring that settlement agreements do not include newly unlawful gagging clauses.

This is really important. The A1 duty now expressly covers recruitment for academics, and the OfS’ free speech guidance is very strict on disciplinary / dismissal matters. Remember also that employment law protections and tests are modulated by the Act, such that there is a ‘back door’ to enforcement in employment tribunals.

A review of harassment and equality policies to ensure they interact properly with the new duties in the Act.

The regulatory decision against the University of Sussex shows that a critical eye will perhaps be applied most of all to such policies by the OfS. A significant proportion of the new free speech guidance is dedicated to interactions between these policies and free speech, as is the guidance for the E6 registration conditions. These interactions are hard, but they do strongly favour free speech and academic freedom. Where proportionality assessments are required, a “proportionality roadmap” document is a very useful thing to have.

Taking steps to comply with the new duty to promote the importance of free speech and academic freedom.

The OfS is yet to publish guidance on this, but the intention seems to be about creating cultures on campus which are pro free speech. This might include setting up, as has been done at the University of Oxford, rules and events to inculcate a process of ‘disagreeing well’.

Put in place staff and resources to deal with complaints from students, staff and speakers raised under the new complaints scheme.

This isn’t in force yet, and I suspect this will be a 1 August 2026 implementation date. It is a free scheme and is required to be very widely publicised by institutions; its going to be widely used, one suspects. Recommendations aren’t legally binding, but the OfS can use its general enforcement powers and fine an institution if it perceives complaints are not being properly handled.

Ensure detailed records and monitoring systems are in place with respect to decisions so that free speech and academic freedom matters can be tracked.

This is emphasised repeatedly in the OfS guidance. As the students might say, you need to keep the receipts. The OfS will expect to see them.

Deliver training for staff whose roles will be impacted by the Act, in particular senior managers, HR and academics.

The training requirements of the OfS guidance are a heavy burden – lots of people throughout the university need to be trained on some very complex and developing areas of law, in particular interaction with human rights and equality law. One would expect the OfS to review training modules, so approaching a specialist provider would help.

Develop a ‘response plan’ (both internally and externally) with respect to any free speech controversies which may arise.

The OfS seems to expect robust and prompt action. It’s best not to be scrambling about who to approach and what to say publicly. A response plan and clear escalation pathways (and ability to get specialist advice quickly) are going to be essential.

Consider setting up an internal committee or champion to manage ongoing compliance updates as guidance from the OfS on the Act evolves and new cases emerge clarifying what institutions need to do.

Some institutions already have this in place, and it may become something of a gold standard in terms of compliance. It’s best not to be the outlier in terms of the OfS’ perception of your institution or, worse, becoming a test case as the sector’s understanding of the duties develop.

As with justice, compliance needs to be both done and seen to be done. This goes to the point of free speech culture on campus, but more pressingly creating a good impression with the OfS. We have seen the robust nature of the free speech guidance and an indication that the OfS will be taking a more interventionist approach in future.