Higher Education (Freedom of Speech) Bill: Progress of the Bill

The Higher Education (Freedom of Speech) Bill was introduced in the House of Commons on 12 May 2021. It will implement legislative proposals included in a Department for Education policy paper published in February 2021, which set out the Government’s view that freedom of speech is under threat across higher education.

The Bill passed the House of Commons on 13 June 2022 and the Lords on 13 December 2022. It received royal assent on 11 May 2023.

What the Bill would do

The Bill had 10 substantive clauses following consideration of amendments by both Houses of Parliament (ping pong).

• Clauses 1 to 3 related to the legal duties of registered higher education providers, their constituent institutions, and students’ unions to protect freedom of speech and academic freedom.
• Clauses 4 introduced a new statutory tort to allow individuals to bring legal proceedings against a higher education provider or students’ union if they were not complying with their duties to protect freedom of speech and academic freedom.
• Clauses 5 to 10 concerned the functions of the Office for Students (OfS), which regulates higher education in England. They related to:
  • a new complaints scheme;
  • new registration conditions for higher education providers;
  • new monitoring of overseas funding;
  • a new Director for Freedom of Speech and Academic Freedom.

Clause 4 was removed on report in the Lords against the wishes of the Government. During consideration of amendments, both Houses agreed to restore clause 4 to the Bill, with a number of amendments.

The Bill extends to England and Wales, but its main provisions apply to England. This means any practical effect would occur in England only.

Commons second reading

The Bill had its second reading in the Commons on 12 July 2021.

Conservative MPs and the Government argued the Bill was necessary to counter “growing intolerance” in universities and to uphold the principle of free speech in society.

Labour MPs questioned the evidence base used to justify the new legislation. They also raised concerns the Bill would protect hate speech and misinformation and asked why other issues facing the higher education sector were not receiving similar attention.

A Labour amendment to prevent the Bill’s passage was defeated by 367 votes to 216.

Commons committee stage

Committee stage in the Commons comprised four sessions of oral evidence and eight sessions of line-by-line scrutiny (PDF) between 7 and 21 September 2021.

13 new clauses and 85 amendments were tabled (PDF). One new clause and 26 amendments, all tabled by the Government, were subsequently agreed. These extended the Bill’s provisions to the constituent institutions of registered higher education providers, including the colleges of the Universities of Oxford and Cambridge, which initially fell outside the Bill’s scope.

Non-Government amendments and new clauses were tabled on academic freedom, the Bill’s coverage of student bodies, the reporting requirements of the OfS, and the appointment process for the new Free Speech Director, none of which were accepted. In some cases, the then-Minister of State for Higher and Further Education, Michelle Donelan, said she would consider the issues raised.

Commons report stage and third reading

The Bill’s report stage and third reading in the Commons were held on 13 June 2022. Seven new clauses and 21 new amendments were tabled (PDF). One new clause and 16 amendments, all tabled by the Government, were agreed. These covered the following areas:

• The OfS would have to assess if overseas funding, including from research grants, donations, and partnerships, might place a university in breach of its duties to uphold freedom of speech and academic freedom.
• Universities and students’ unions would have to ensure only in “exceptional circumstances” would organisers cover the security costs of their events.
• The caveat, initially included in the Bill, that academic freedom protections covered only an academic’s “field of expertise” was removed.
• The duties on universities and constituent colleges to secure freedom of speech was extended to the activities of Junior and Middle Common Rooms (JCRs and MCRs).
• It was confirmed complaints to the new OfS scheme can be withdrawn, the OfS would not have to rule on withdrawn complaints, and the OfS would have absolute privilege against defamation claims relating to the scheme.

Labour tabled amendments that, among other things, sought to define academic freedom, give Parliament oversight of the appointment of the Free Speech Director, and limit the ability of non-disclosure/confidentiality agreements to inhibit free speech in cases of sexual misconduct. None of these were accepted.

The Bill passed its third reading without a vote.

Lords second reading

The Bill had its second reading in the House of Lords on 28 June 2022.

Members of the House of Lords raised several issues with the Bill’s principles and its current provisions. These included the Government’s priorities for improving higher education, the likely administrative and financial burden on universities, contradictions with other proposed legislation and Department for Education policy, and the appointment process of the Free Speech Director.

The Bill passed its second reading in the Lords without a vote.

Lords committee stage

The Bill’s committee stage in the House of Lords took place over 31 October,
2 November, and 14 November 2022.

70 amendments were tabled as well as notices of intention to oppose clauses 4, 7, and 8. No amendments were put to a vote and the Bill passed to report stage unchanged. 

However, there was sustained cross-party criticism of the new statutory tort, set out in clause 4 of the Bill, which would allow individuals to bring legal proceedings against a higher education provider or students’ union not complying with their freedom of speech duties. In response, the Government said it would “consider carefully” how best to address the concerns raised.

Lords report stage and third reading

The Bill’s report stage in the Lords took place on 7 December 2022. 31 amendments were tabled on report (PDF). 16 amendments were agreed.

• Clause 4 of the Bill would have created a new statutory tort to allow individuals to bring legal proceedings against a higher education provider or students’ union if they were not complying with their duties to protect freedom of speech and academic freedom.
  • An amendment tabled by Lord Willetts (Conservative) with crossbench support, but opposed by the Government, removed clause 4 from the Bill following a vote that split 218 in favour of the amendment and 175 against.
  • Prior to Lord Willetts’ amendment being agreed, four Government amendments to clause 4 were agreed. These would have made it clear only a person who has suffered a loss (such as a financial or reputational loss) could bring a claim and would have also required claimants to exhaust existing complaints procedures.
• A Government amendment proposed a new definition of freedom of speech for the Bill, using the wording of Article 10(1) of the European Convention on Human Rights as it has effect in the UK.
• A Labour amendment supported by the Government would ban registered higher education providers and constituent institutions from entering into non-disclosure agreements (NDAs) relating to complaints about sexual misconduct, abuse, or harassment, or other forms of bullying and harassment.
• Minor and technical Government amendments clarified:
  • Former students of providers and colleges are not considered “members” of a provider, and so are not covered by the Bill.
  • A new power given to the Office for Students (OfS) to disseminate good practice and advice to higher education providers on how to support freedom of speech and academic freedom is not related to the duty on higher education providers and their constituent colleges to promote the importance of freedom of speech and academic freedom.

The Bill’s third reading in the Lords took place on 13 December 2022. No amendments were tabled and the Bill was returned to the Commons with the changes made on report (PDF).

Consideration of amendments

7 February 2023: Commons consideration of Lords amendments

On 7 February 2023, the Commons considered the 12 amendments to the Bill agreed in the Lords (PDF). While 16 amendments had been agreed, four of these were amendments made to clause 4 of the Bill, which was subsequently removed by the Lords. These four amendments were not considered by the Commons.

The Commons agreed with 11 of the 12 amendments without a vote. The Government tabled a motion to disagree with Lords amendment 10, which had removed clause 4 from the Bill. Clause 4 would have introduced a new statutory tort to allow individuals to bring legal proceedings if higher education providers and students’ union were not complying with their duties under the Bill.

The Government’s motion was agreed, with 283 votes in favour of keeping clause 4 part of the Bill and 161 votes against.

21 March 2023: Lords consideration of Commons amendments

On 21 March 2023, the Lords considered the Commons decision to disagree with the Lords removal of clause 4 from the Bill.

The Lords agreed to restore clause 4 to the Bill without a vote, but it amended the clause’s wording so a civil claim could only be brought by an individual if:

• they had suffered a loss due to a breach of the freedom of speech and academic freedom duties; and
• they had first exhausted an existing complaints scheme.

2 May 2023: Commons consideration of Lords amendments

On 2 May 2023, the Commons considered the Lords amendments to clause 4 of the Bill.

The Commons agreed a Government motion accepting the Lords amendments that a civil claim could only be brought by an individual if they had suffered a loss due to a breach of freedom of speech duties. However, the motion also proposed an alternative to one of the Lords amendments that defined “loss” to mean loss of any kind, including reputational damage.

The motion also proposed that if a claimant was just seeking an injunction, the provision that legal proceedings could only be brought after an existing complaints scheme had been exhausted would not apply.

10 May 2023: Lords consideration of Commons amendments

On 10 May 2023, the Lords considered the Commons amendment to clause 4 to define “loss” as both pecuniary and non-pecuniary, and to allow an individual to seek a court injunction without first exhausting a complaints scheme.

The Government tabled a motion agreeing with the Commons amendment (PDF). It was agreed without a vote.

Royal assent

The Bill received royal assent on 11 May 2023 and became the Higher Education (Freedom of Speech) Act.

Further reading

The Department for Education has published several documents, available on the Bill’s webpage, which provide more information about the Bill and its implications, including explanatory notes, impact assessments, delegated powers memoranda, and human rights memoranda.

Background to the Bill, commentary on its provisions, and responses from the sector can be found in the Commons Library briefing Higher Education (Freedom of Speech) Bill 2021