The body representing UK vice-chancellors, Universities UK (UUK), is hosting a “community cohesion” conference that frames free speech as something to be “balanced” against EDI “values”. Yet the regulator, the OfS, is clear: institutions must start from the presumption that speech is lawful unless prohibited by law. Is the sector still trying to dilute the Higher Education (Freedom of Speech) Act 2023 in practice?
The conference prompting this question, titled “Community cohesion: free speech, inclusion and the role of universities”, is scheduled for April. Its accompanying text notes that “there has been increased focus on protecting and promoting freedom of speech and academic freedom in recent years,” including, in England, “the passage of the Higher Education (Freedom of Speech) Act [HEFSA] and its associated new duties for institutions”.
The advert also promises the event will examine HEFSA’s “operational impact” and “what leadership, student services, and communications teams must do differently to secure freedom of speech while maintaining campus cohesion”. Elsewhere, it adds that “university leaders must balance the duty to protect and promote freedom of speech and academic freedom with the need to maintain cohesive campuses, support staff and student belonging and tackle harassment”.
It’s an interesting use of the word “balancing”, particularly where talk of competing rights or interests – “cohesion”, “student belonging”, “harassment” – is in play. To see why, it helps to recall the regulatory baseline the sector has been contesting. The OfS’s Regulatory Advice 24: Guidance related to freedom of speech (RA24) sets out how the regulator will assess compliance with HEFSA, including the core requirement to take “reasonably practicable steps” to secure freedom of speech within the law. There, the OfS makes clear that institutions must start from the presumption that all speech is lawful unless explicitly prohibited by statute or common law. This is no minor clarification but a reassertion of statutory priority over institutional discretion, and a setback to the idea that universities can police lawful speech on the basis of reputational concerns, perceived harm, or a vague desire to #bekind.
During HEFSA’s passage through Parliament, however, most universities argued that “freedom of speech within the law” should be read through the more restrictive standards of the European Convention on Human Rights: that is, any speech not already restricted under that framework. This approach permits a wide range of limitations, including those grounded in internal policies or contractual obligations designed to protect the “rights of others”. In practice, as the UUK event advert suggests, this invites a balancing exercise, in which free speech is weighed against competing values – and may be overridden. The effect is to render the Act’s core duty all but meaningless, effectively allowing universities to mark their own homework.
That might sound far-fetched. But in its official submission to the OfS during the RA24 consultation, UUK took the argument to its logical conclusion:
“Many universities are themselves public authorities for the purposes of the Human Rights Act and thus exercise the responsibilities and the powers of the state in relation to Convention rights… This means that employment contracts, policies and procedures… can also lawfully restrict speech where the restrictions are necessary in a democratic society to protect the rights and freedoms of others.”
Translation: universities get to decide what your fundamental liberties are, not Parliament.
The OfS guidance rejects that view outright, confirming that internal policies, institutional values or codes of conduct – including EDI frameworks – do not have the force of law. But has UUK fully absorbed the implications of that shift?
To find out, you can book a place for the event here.
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.