Where now for freedom of speech in UK universities?

In the UK, repeated attempts have been made to balance academic freedom and freedom of speech with the protection of rights and prevention of discrimination. The baseline is the Education (No.2) Act 1986 which puts an obligation on institutions to take “reasonably practicable” steps to ensure the protection of freedom of speech.

Most (but not all) registered higher education providers in the UK are also “public bodies” for the purposes of the Human Rights Act 1998. This means that it is unlawful for such providers to act in a way which is not compatible with the European Convention on Human Rights (“ECHR”). Article 10 of the ECHR protects rights to hold opinions and to express them freely without interference from public bodies. A restriction of the rights in Article 10 is permitted only where it is lawful, necessary and proportionate. The ECHR also contains other rights which may be relevant to freedom of expression, including the Article 9 right to hold and manifest a religion or belief and the Article 11 right to freedom of assembly and association.

The most recent legislation is the controversial Higher Education (Freedom of Speech) Act 2023 (“Act”) which amends existing legislation and, in particular, the Higher Education and Research Act 2017 (“the 2017 Act”).

The Act applies to registered higher education providers, constituent institutions, and students’ unions in England and Wales. A registered higher education provider is one which is registered with the Office for Students (“OfS”), as the regulator of higher education in England, pursuant to the 2017 Act. Any new provider establishing in the UK and wishing to become registered will need to comply with the Act.

Providers which are not registered with the OfS fall outside of the Act. In practice, such institutions delivering programs in England and Wales may wish to consider aligning their policies with the Act and with those of partner institutions as far as possible. This will help to minimize the risks of adverse publicity or satellite litigation affecting the non-registered provider. The OfS has enforcement powers where there is a breach of freedom of speech obligations by a registered higher education provider. Such action includes investigations, suspension of registration, and levying fines against providers. A recent example is the record-breaking fine of £585,000 against the University of Sussex. In this case, which is currently subject to a judicial review claim by the university, the OfS found that there was a failure to uphold freedom of speech and academic freedom. The OfS also identified failings in the university’s management and governance processes.

What has changed in 2025?

Despite the Act receiving Royal Assent in May 2023, it has not yet been fully enacted because of concerns in relation to student welfare. The concerns were that the Act was not fit for purpose, risked imposing serious burdens on universities, and could “expose students to harm and hate speech on campuses”.

Some provisions of the Act came into force on 1 August 2025, including:

• in section A1, a duty on higher education providers to take steps to secure freedom of speech, including a prohibition on Non-Disclosure Agreements in higher education where there is a complaint about bullying, harassment or sexual misconduct;
• in section A2, a duty on higher education providers to establish codes of practice on how they will discharge their obligations relating to academic freedom and freedom of speech;
• in section A3, a duty on higher education providers to promote academic freedom and freedom of speech, with similar duties on the OfS;
• in section A4, the application of sections A1 – A3 to constituent institutions of a registered higher education provider; and
• in section A5, duties on students’ unions to secure freedom of speech.

The OfS has published guidance to help higher education providers to comply with these new obligations which can be found here Regulatory advice 24: Guidance related to freedom of speech - Office for Students.

Proposed changes

Following a review, the current UK Government proposes to bring forward new legislation as soon as possible to amend the Act in several ways. These include:

• repealing the new statutory tort in section 4 of the Act, which is not yet in force. This would have provided a new route for staff, students, and external speakers to claim against higher education providers, their constituent institutions, and students’ unions, for a breach of the new duties in sections A1 and A5 of the 2017 Act. This change is proposed on the basis that there are existing legal avenues for redress and because of the risk of substantial legal and other costs facing higher education providers through such claims;
• removing the duty on the OfS to implement a new condition of registration on a higher education provider that would require the institution’s governing body to comply with its duties under sections A1 to A3 of the Act. The proposal is that the OfS would, instead, have the power to do so; and
• amending the rules on the OfS’s complaints scheme for free speech so that the OfS has the power (and not a duty) to consider complaints. The OfS would have this power in relation to complaints from staff, external speakers and non-student members of registered higher education providers. The Office of the Independent Adjudicator would consider complaints from students.

International collaborations

International collaborations are increasing. Many UK universities are urgently seeking growth to counter the combined financial pressures of a narrowing domestic student market, capped tuition fees, increasing overhead costs (including in servicing debt), fierce competition for international students, and a potential international student tuition fee levy from 2030. 

There is a concern that foreign ownership, funding, or influence in UK universities could be used to limit the autonomy of institutions or limit free speech and academic freedom.

Section 9 of the Act is not yet in force. It would introduce new transparency reporting obligations and new functions on the OfS to monitor overseas funding to higher education providers. The UK Government has decided to continue to keep section 9 of the Act under review whilst other international due diligence obligations in the sector come into force, including the Foreign Influence Registration Scheme (FIRS), which has applied to higher education providers since 1 July 2025.

One of the ongoing conditions of OfS registration is the obligation to have “adequate and effective management and governance arrangements and to ensure that decisions are taken without direction, coercion or direct influence.” This obligation extends to international partnerships.

The regulator will be interested in any higher education sector acquisition or investment that could harm national security, and the Government has the power to scrutinize and intervene in such acquisitions under the National Security and Investment Act 2021.

How does the UK Act affect US/UK higher education collaborations?

The Act could affect collaborations between UK and US universities in the following main ways:

1. Increased scrutiny of overseas funding and partnerships. As UK universities focus on overseas funding and influence, the OfS may be more likely to raise questions or require information on overseas funding where it assists the OfS to perform its regulatory functions. The OfS already has this power as a condition of registration under Condition F3: Provision of Information. It may be inclined to use this power where there are concerns about any limits on academic freedom or freedom of speech.
2. Implications for staff and students. Section A1 of the Act puts a duty on the governing body of the registered higher education provider to take steps to achieve the objective of securing freedom of speech within the law. Section A1(2) of the Act extends that objective to staff of the provider, members of the provider, students of the provider. and visiting speakers. The objective extends to securing that the use of any premises of the provider is not denied to any individual or body on the basis of:
   1. the ideas or opinions of an individual, or
   2. the policies or objectives of a body, or the ideas and opinions of any of its members. 

   This could, practically, impact institutional approaches to hosting international scholars particularly if a risk-averse approach has been followed to date. Institutions will need to update their codes of practice to reflect the new obligations. International students on visiting scholarships may have conditions attached to the scholarship which will need to be assessed for compliance with the Act.

3. Due diligence and joint policies. Collaborating institutions will want to ensure that, for example, any joint programmes, research centres or funding agreements with UK universities align with the Act. This will require enhanced due diligence. Collaboration agreements and policies may need to be reviewed and updated. Partners will want to understand the OfS’s role as regulator and how complaints about freedom of speech could lead to investigations, negative publicity, and reputational impact.

For more information or advice, please contact one of the authors or your usual education sector contact at Hogan Lovells.

Authored by David Hansom, Stephanie Gold, and William Ferreira.