The Higher Education (Freedom of Speech) Act 2023 (Commencement No. 4) Regulations 2026

Explanatory note

Reproduced verbatim from the instrument as published on legislation.gov.uk (Crown Copyright, Open Government Licence v3.0). The note is prepared by the responsible government department and is not part of the instrument itself.

These Regulations are the fourth commencement regulations made under the Higher Education (Freedom of Speech) Act 2023 (c. 16) (“ the 2023 Act ”). They bring into force the provisions of the 2023 Act relating to a free speech complaints scheme listed in regulation 2 on 1st September 2026 and the provision relating to mandatory conditions relating to freedom of speech listed in regulation 3 on 1st April 2027.

Regulation 2(2) partially commences section 8 of the 2023 Act which inserts section 69C and Schedule 6A into the Higher Education and Research Act 2017 (c. 29) (“ the 2017 Act ”). They make provision for a free speech complaints scheme provided by the Office for Students (“the OfS”), the regulator for higher education in England. Section 8 is commenced except so far as it inserts the paragraphs of Schedule 6A listed in regulation 2(2)(a) which concern a scheme for students’ unions free speech complaints, or it relates to a students’ union free speech complaint. A students’ union free speech complaint is defined in paragraph 3 of Schedule 6A. Section 8 of the 2023 Act is also not commenced in these Regulations so far as it relates to a HEP free speech complaint made by a person who is an eligible person by virtue of being or having been a student of a registered higher education provider or constituent institution, or being a member of a provider or institution solely by reason of being a student there (regulation 2(2)(b)).

A HEP free speech complaint is defined in paragraph 2 of Schedule 6A to the 2017 Act. It is a complaint made by an eligible person to the OfS which claims that the person has suffered adverse consequences as a result of action or inaction of the governing body of a registered higher education provider or of a constituent institution of such a provider; and claims that, or gives rise to a question as to whether, the action or inaction was a breach of a free speech duty of the governing body under section A1 of the 2017 Act (inserted by section 1 of the 2023 Act).

The overall effect of regulation 2(2) is that section 8 of the 2023 Act is commenced in these Regulations so far as it makes provision for a HEP free speech complaint scheme that is required to review and determine complaints by: firstly, a person who is or was a member of staff of a registered higher education provider or constituent institution; secondly, a person who is or was a member of a provider or constituent institution excluding those who are members solely by reason of being a student of that provider or constituent institution; thirdly, a person who has applied to become a member of academic staff of a provider or constituent institution; and, fourthly, a person who was, or was at any time, invited to be a visiting speaker.

Regulation 2(4) brings into force related minor and consequential amendments to the 2017 Act and other Acts.

Regulation 3 brings into force section 6 of the 2023 Act except so far as it inserts section 8A(3) into the 2017 Act. Section 8A(3) requires the OfS to ensure that registered higher education providers eligible for financial support include a condition in their ongoing registration conditions requiring their governing body to keep the OfS informed of students’ unions at the provider. Section 8A(1) and (2) which contains the other mandatory registration conditions relating to freedom of speech is commenced. The OfS must ensure that the registration conditions applicable to a higher education institution include these new freedom of speech conditions.

A full impact assessment of the effect that the 2023 Act will have on the costs of business, the voluntary sector and the public sector is available at https://www.legislation.gov.uk/ukpga/2023/16/pdfs/ukpgaod_20230016_en_001.pdf or from the Department for Education, Sanctuary Buildings, Great Smith Street, London, SW1P 3BT. A further impact assessment has not been produced for this instrument as no additional impact on the private, voluntary or public sector is foreseen.