At the end of April, the Secretary for Education, Bridget Phillipson, announced that a number of key provisions of the Higher Education (Freedom of Speech9 Act will commence on 1 August 2025. While several important provisions are included in the announcements, the commencement of other vital elements remain indefinitely postponed.
Speaking in the House of Commons, the education minister announced that she had “signed the commencement regulations to impose stronger free speech duties on higher education providers and the Office for Students from 1 August”. In particular, sections 1, 2 and 5 will commence on this date.
These sections relate primarily to the creation of a new duty for higher education providers to protect free speech and academic freedom through a robust code of practice, and an obligation for the Office for students to promote both of these concepts. In particular, section 1 requires any “governing body” of a higher education provider to take “reasonably practicable” steps to guarantee freedom of speech within the law for staff, members, students, and visiting speakers. Moreover, this section also requires institutions to create and maintain a code of practice aimed at “facilitating” their free speech duties . This code must include both “the provider’s values relating to freedom of speech” and relevant “procedures to be followed” in matters of academic freedom and free speech on campus.
Lastly, one of the “duties” imposed on governing bodies is a total ban on non-disclosure agreements between providers and anyone making a complaint about misconduct, including bullying, harassment, and sexual abuse.
Section 2 consists of definitions, making it clear that the duties outlined in section 1 are incumbent on all internal colleges, schools or other “constituent institutions” of higher education providers. While this may seem like a small detail, it is an important part of ensuring that the duties are protected at all levels of an institution.
Although section 3, which deals with duties on students’ unions, is largely left in the limbo of indefinite postponement, one minor part has made the cut. A new definition of “students’ union” will take effect this summer, while the actual duties are left behind for now.
The subject of the fifth section – the final one to be granted commencement in this round of regulations – is the Office for Students. Section 5 imposes new obligations on the higher education watchdog to promote academic freedom and freedom of speech. Furthermore, the OfS will also have statutory right to “identify good practice relating to how to support freedom of speech and academic freedom” as well as the ability to “give advice about such practice” to higher education providers.
Notably – and frustratingly – the other powers granted to the OfS by HEFOSA will not commence in August. For example, section 6 compels the OfS to ensure that its ongoing conditions of registration require providers to have adequate protections for free speech in their governing documents.
In addition, section 8 of the Act would establish a new complaints scheme at the OfS for individuals whose free speech rights have been violated by a higher education provider. After the Government decided to scrap the statutory tort from the Act, this scheme is the strongest enforcement mechanism in HEFOSA, but it is sadly not among the provisions set to commence on 1 August.
Finally, section 9 would require the Office for Students to monitor sources of overseas funding to higher education providers and assess “the extent to which the funding presents a risk” to free speech and academic freedom both at the individual and institutional level. This provision is also not included in the commencement this summer.
When pressed on this issue by the Shadow Minister for Education, Neil O’Brien, in the House of Commons, Bridget Phillipson maintained that “measures are already in place to address foreign interference in the higher education sector, from vetting international students in sensitive areas of research to specific requirements around freedom of speech and expression.”
However, the Minister did allow for the possibility of further protections in this area, saying that the Government would “continue to keep all these matters under review” and when possible, “update the House”.
While these regulations leave many key provisions of HEFOSA indefinitely postponed, having a set date of commencement is a significant improvement on the situation in last year, when the entire future of the Act was in jeopardy. Small victories are victories nonetheless.
Once again, we urge the Government to stop stalling the implementation of this vital piece of legislation, and to finally allow the Act to commence in full.