The question of how the Higher Education (Freedom of Speech) Act 2023 (HEFSA) is to be enforced has become a matter of sustained parliamentary scrutiny. During the last week of February, CAF Advisory Board member Lord Robert Skidelsky raised the issue in the House of Lords, asking the Government what assessment it had made of the open letter coordinated by CAF and signed by more than 350 academics and campaigners, calling for the commencement of the Office for Students’ (OfS) free-speech complaints scheme.
The main duties in HEFSA came into force on 1 August 2025 and are supported by published guidance from the OfS. But with the statutory tort not available (and slated for repeal) and the scheme still not commenced, there is no practical route for staff, students and visiting speakers to enforce those duties. In practice, universities can disregard their new statutory free-speech obligations with little risk of effective legal challenge.
Speaking for the Government, Baroness Smith confirmed that she and the Secretary of State for Education, Bridget Phillipson, “have considered the letter and the concerns raised in it”. Although she could not “comment on the future legislative programme”, peers could rest assured that the Government was “considering options”.
This has, unfortunately, been the Government line since at least January 2025, so it was understandable that Skidelsky pressed her on the point, noting that the Department for Education’s June 2025 policy paper promised to “seek a legislative vehicle at the earliest opportunity”. If that was indeed the case, did the Government have any timetable for legislation to amend and implement the Act for this purpose?
Smith, now in full-on Sir Humphrey mode, again declined to offer anything that could be mistaken for a date, replying: “I expect us to be able to introduce the amended complaints scheme sooner rather than later.”
Is “sooner rather than later” an upgrade on “considering options”? As Sir Humphrey himself might have said, it would no doubt “be premature to construe the formulation as a pathway to a workable timetable; but it would be equally rash to dismiss it as being wholly without substantive implication”.
Lord Mohammed of Tinsley wondered aloud why, if freedom of expression is a priority for the Government, ministers had not considered short, stand-alone legislation rather than leaving academics “in legal limbo for years to come”.
“We will not be leaving academics in legal limbo,” Smith replied, immovably.
Strictly speaking, she may be right. But without the scheme HEFSA envisaged, those who wish to vindicate their rights must be prepared for the costs and friction of litigation – whether by judicial review, a remedy of last resort, or through employment tribunals, which have no jurisdiction to enforce HEFSA duties and are already struggling with a heavy caseload.
Baroness Barran picked up the point, noting that “even in the last few weeks we have seen academics required to go to court to vindicate their rights”, and “forced” into “expensive proceedings”. Referring to “authoritative legal advice that has been sought by academics, lawyers and Members of this House” on introducing the scheme in a way that meets the Government’s concerns about its width, she asked whether officials would review the proposals urgently.
Smith replied that she was “in constant conversation with officials” and then, after a brief search through the ministerial lexicon for a reassurance sufficiently platitudinous to suggest motion without implying movement, added: “We will make progress on this.”
Yes, Minister – but will that be “sooner”, or “later”?
CAF forced this exchange onto the parliamentary record, and we’re not letting it drop. Click here for the full story in The Critic, and why, without the OfS complaints scheme, academics who believe their lawful speech rights have been breached face the exorbitant costs and friction of litigation – or no realistic remedy at all.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.