Freedom of speech

What should universities and colleges do?

Universities and colleges must understand the legal and regulatory frameworks governing freedom of speech and academic freedom.  

We have summarised elements of the current legal framework below. Also see what can we do?

Education Act 1986

Section 43 of the Education (No 2) Act 1986 requires universities and colleges to ‘take such steps as are reasonably practicable’ to ensure that freedom of speech within the law is secured for their members, students, employees and visiting speakers.

Section 43 also requires universities and colleges to issue, enforce and keep up-to-date a free speech code of practice.

European Convention on Human Rights

Most of the higher education providers that are registered with the OfS are ‘public bodies’ for the purposes of the Human Rights Act 1998 and so are bound by the European Convention on Human Rights (ECHR).

Article 10 of the ECHR relates to freedom of expression.

Equality law considerations

Universities and colleges must also comply with the requirements of equality law. These are set out in the Equality Act 2010

Universities and colleges should recognise that in upholding lawful free speech and academic freedom, they may have to give some people whose views others find offensive a right to speech.

In doing so, universities and colleges must make sure that they operate with an accurate understanding of equality law matters and the extent of their duty to take ‘reasonably practicable steps’ to secure freedom of speech within the law.

For example, policies and processes at a university or college could limit free speech if they include what may be lawful speech in their definition of ‘harassment’. Where academic staff could be subject to disciplinary action if they contravene such a policy, that policy may interfere with their academic freedom.

Higher Education (Freedom of Speech) Act 2023

The Higher Education (Freedom of Speech) Act 2023 received Royal Assent on 11 May 2023.

It will strengthen the legal requirements on universities and colleges in relation to free speech and academic freedom.

It will also extend free speech duties, and the OfS’s regulation, directly to relevant students’ unions.

Read more about changes to the way we regulate free speech Read our insight brief on free speech
Published 13 September 2023

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