A message from the Director of Legal Services: Higher Education (Freedom of Speech) Act 2023
The below was originally emailed to the University’s EDI Community mailing list on 22 July 2025.
I am writing to you in my capacity as the University’s General Counsel and the following I share through the lens of the University’s lawyer. This email to the EDI Community is about compliance and ensuring colleagues are aware of the impending changes to the law, so we can all think about what this change means in practice. The content of this is provided as an objective reflection of the law and with the aim of providing clarity about the changes in principle and practical application. I’d ask you to read this in the above context. I am, however, very aware that these changes have a direct, and in some instances significant, impact on the lived experience of members of our university community.
Freedom of Expression
Many of you know that the Higher Education (Freedom of Speech) Act 2023 is coming into force on 1 August 2025. While the legislation has been pared back since first passing, the core principles of the Act remain: where speech is lawful, it will be permitted. The University has a legal duty to secure and promote Freedom of Speech and Academic Freedom (via whatever medium of expression).
This seems an unremarkable pair of statements until you start to apply it in practice. Last month, the Office for Students (OfS) published its Regulatory Advice 24: Guidance on Freedom of Speech which sets out in much more detail what the Regulator expects of institutions. It contains a large number of examples to illustrate the approach – I have included a precis of three of their examples, but you may like to peruse the full set in the guidance:
Example 35: the student handbook states “misgendering is never acceptable. You must always address or refer to a person using their preferred pronouns.” The blanket ban on misgendering is likely to be a breach of the duty to secure freedom of speech and academic freedom. There may be circumstances where repeated and deliberate misgendering of an individual could be harassment. There may be circumstances where deliberate use of a dispreferred pronoun is appropriate, e.g. for clarity in a research paper when referring to particular participants.
Example 31: a member of staff writes to the local paper lawfully expressing pro-life views. Students start a petition to have them fired. The university investigates and fires the staff member on the grounds that there are students who feel unsafe because of their continued employment. This is likely to have been a breach of the university’s free speech duties, because there was nothing to suggest that the speech was unlawful or that it breached any regulations at the university. Claims that the continued employment of the staff member makes others feel unsafe are not, by themselves, enough to make the speech unlawful. The university should now reinstate the staff member.
Example 10: verbal or physical threats of violence are investigated quickly, students affected receive support and interim protective measures are put in place pending an investigation. Action is taken to identify perpetrators and disciplinary measures taken on conclusion of an investigation. This would comply with the OfS’s expectations on reasonable steps a university should take to secure free speech.
Preparing for compliance
In readiness for compliance with the Act, the University has developed some materials:
- Freedom of Expression Code of Practice – this is a requirement of the Act and contains information in relation to our institutional commitment to Freedom of Speech and Academic Freedom. It was adopted by Council in 2023. It also links out to the pre-existing Statement on Academic Freedom and the External Speakers Policy.
- Policy on Public Statements on behalf of the University – this captures the University’s need (in relation to securing freedom of speech for all and to avoid a chilling effect) to adopt an impartial position on matters which are not settled. In practice, this means that e.g. the University would not take a “side” on an international conflict but might look to condemn violence and look to support effected members of our community. It was adopted by Council in March 2025.
- Guidance in relation to Protests – all forms of lawful expression are protected, not just speech itself.
There is work being undertaken to check these documents against the more recently stated expectations of the OfS and so may be subject to change in the short to medium term. A small task and finish / working group has been set up, which I am leading, to pull together all the strands of work that speak to our ability to be compliant. This involves looking at relevant training, resources, policies, guidance and processes, for staff and students. EDI Services will continue to take the lead for matters of belonging and inclusion at Loughborough and we are working closely together in this context.
Conclusion
In the eyes of the law and the OfS, finding something offensive or upsetting is not a criterion for being unlawful. Lawful speech cannot be restricted at an institutional level – restricting free expression on the basis that it is offensive (without it constituting unlawful harassment or discrimination) would place the university at risk of breaching the legislation. The law requires that universities are spaces where different, sometimes competing, views and beliefs can be shared, without fear of censorship or adverse consequences. We also have a responsibility to ensure that people do not self-censor in an environment where an orthodoxy of views prevail, thereby having a chilling effect on their free speech (for example, expressing a dominant narrative that it’s unacceptable for people to support a particular political party, or practise a certain religion, might induce people to avoid expressing a counter-view).
The exercise of Freedom of Speech is something which has the potential to make some people feel very confident and others to feel unsafe. I recognise that and there are colleagues, particularly in EDI Services, who we are working with to ensure that this is considered in our approach. Please also see Veronica Moore, Executive Director of EDI Services’ post on the EDI blog. The reality we recognise is that those within our community who belong to minoritised groups are both (i) more likely to be the subject of someone else’s free speech which may feel challenging to experience; and (ii) are less likely to have a platform to exercise their own free speech than others.
The University remains committed to providing a safe and inclusive environment for all of our staff and students. The changes do not lessen our desire to tackle bullying, harassment and hate, which remain unacceptable at our University.
As we work through the review following the guidance and make any necessary changes, you can expect to hear more on the topic. There will be University wide communications later this month.
With best wishes,
Sam McGinty
Director of Legal Services and General Counsel
Equity, Diversity and Inclusion
Reflections, comments, discussion and opinion on EDI topics from Loughborough University staff and students