Some people think that the freedom of speech legislation is all over! Is it?

There's quite a lot of excited reporting today in response to the parliamentary statement by Secretary of State for Education, Bridget Phillipson. As well as briefly commenting on the report for the independent review of the Office for Students, Fit for the Future: Higher Education Regulation Towards 2035, Ms Phillipson has announced her:

“…decision to stop further commencement of the Higher Education (Freedom of Speech) Act 2023, in order to consider options, including its repeal. I am aware of concerns that the Act would be burdensome on providers and on the OfS, and I will confirm my long term plans as soon as possible.”

Acting on this statement, also today the necessary legal machinery to revoke the Statutory Instrument that was to bring parts of the Higher Education (Freedom of Speech) Act 2023 into force has been put in place. 

On its face, this will come as a relief to higher education providers in England as they sought to draft and publish the required new codes of practice without finalised guidance from the OfS and up against a deadline of 1 August 2024 (see my previous posting). However, it must be remembered that section 43 of the Education (No.2) Act 1986 was not repealed by last year’s legislation and it contains an obligation on the governing body of a higher education institution to “issue and keep up to date a code of practice” dealing with matters related to freedom of speech. Thus, some of the work done recently could be applied to meeting that long standing statutory duty.

Also, the existence of this 1980s legislation serves as a response to those suggesting that by “stopping commencement … to consider options” the government is attacking freedom of speech in universities. It seems to me that the government’s reflection genuinely is on the burden that the new legislation was placing on the sector at a time when, as has been widely reported, institutions are facing major financial worries.  

While Ms Phillipson’s statement and the review of the OfS cover other matters upon which we will surely comment in the coming days, one should note the following:

“To enable students to thrive in higher education, I welcome the OfS’s plans to introduce strengthened protections for students facing harassment and sexual misconduct, including relating to the use of non-disclosure agreements in such cases by universities and colleges.”

This clearly suggests that the long, long awaited outcomes of the OfS consultation on the proposed condition of registration E6 will be published shortly.