Freedom of Speech in Higher Education: Where does Scotland stand?

The Herald Scotland

16-05-2025

While some of the recent legislative and regulatory action has taken place in England, Scottish universities are not immune to the wider cultural, legal and sectoral shifts; indeed, the well-publicised NHS Fife changing room dispute and For Women Scotland's recent supreme court appeal show that Scotland is on the front-line of varying disputes in this space and its universities are far from immune from that.
Scottish universities are proud of their history and commitment to freedom of speech, demonstrating a longstanding commitment to inclusivity and safe environments for expression of thought; however, seismic cultural shifts and legislative changes must make all Scottish universities pause for thought and consider whether their policies and procedures are fit for purpose in protecting the institution they treasure.
Case in point: the recent high-profile case involving the University of Sussex — culminating in a £585,000 fine imposed by England's higher education regulator, the Office for Students (OfS) – has raised urgent questions for institutions across the UK.
What obligations do universities have to protect academic freedom and free expression? Where should the line be drawn between inclusion and open debate? And what lessons, if any, should be applied in Scotland?
A Distinctive Scottish Framework
Scotland's higher education system operates under a distinct set of laws, governance structures and values. Scottish universities are accountable to the Scottish Funding Council, not the OfS, and the Higher Education (Freedom of Speech) Act 2023, passed at Westminster, does not apply here.
That said, Scottish universities are still subject to a range of legal duties that affect how they manage speech on campus:
Human Rights Act 1998 and ECHR rights: Protect freedom of thought, conscience, and expression (Articles 9 and 10), subject to limits necessary in a democratic society.
Equality Act 2010: A UK-wide statute that prohibits discrimination and harassment on grounds including religion or belief—including philosophical beliefs.
Post-16 Education (Scotland) Act 2013: Reaffirms institutional autonomy and recognises the principle of academic freedom in Scotland.
Public Sector Equality Duty (PSED): Requires public bodies to eliminate discrimination, advance equality of opportunity, and foster good relations.
These frameworks reflect Scotland's commitment to both inclusive education and robust intellectual enquiry. But as the Sussex case shows, striking the right balance in practice can be complex.
The Sussex Decision: A Cautionary Tale?
The OfS investigation into the University of Sussex focused on a Trans and Non-Binary Equality Policy introduced in 2018, and the extent to which it impacted staff and students' ability to express lawful but contested views, particularly those critical of prevailing gender orthodoxy. Four specific statements in the policy were found to have a 'chilling effect' on freedom of speech and academic freedom, leading to regulatory breaches.
While the regulatory regime in Scotland is different, the substance of the issues will feel familiar to many here. Advance HE, the organisation whose template informed Sussex's policy, also works closely with Scottish institutions; many Scottish universities have adopted or adapted similar policies, often in pursuit of charter marks or DEI goals.
It's therefore worth reflecting on what went wrong; this is not to mimic England's regulatory approach, but to safeguard the distinct values of Scottish higher education.
(Image: Can universities truly maintain open debate in the current cultural climate?)
Balancing Rights: The Scottish Way?
In Scotland, there has long been a commitment to pluralism, respect for difference, and academic rigour. But even here, universities are facing increasing challenges in holding space for disagreement, particularly on issues such as gender identity, race, climate justice and international conflicts.
Three principles emerge from the Sussex case that are relevant for Scottish institutions:
1. Freedom of speech and academic freedom must be given real and substantive protection. This means being cautious about policies or practices that could discourage staff or students from expressing legitimate, lawful views — even when those views are controversial or unpopular.
2. Legal boundaries matter. Universities cannot redefine what constitutes harassment or unlawful speech based on internal values or strategic priorities. Overreach – even in pursuit of inclusion – can carry legal risk and reputational damage.
3. Context, clarity and consultation are key. The Sussex policy was criticised not simply for its content but for how it was introduced. In Scotland, a transparent, inclusive process that encourages open dialogue may help pre-empt conflict.
What This Means for Policy and Practice
Scottish universities are not expected to walk away from their commitments to diversity, equality and inclusion. Nor should they. But they must ensure that DEI policies do not unintentionally undermine legally protected speech or create an environment where certain viewpoints are effectively excluded from academic life.
This doesn't mean giving a platform to hate or harm. There remains a legal and moral obligation to prevent harassment and ensure safe learning environments.
But lawful speech, no matter how uncomfortable, must be protected if academic freedom is to mean anything.
Institutions may also wish to revisit how they manage controversial events, speaker invitations, and internal debates.
While universities can impose proportionate time, place, and manner restrictions, any attempt to limit the content of lawful speech, directly or indirectly, should be approached with extreme caution.
A Time for Reflection
The OfS decision regarding Sussex is a product of the English regulatory context, but it offers a valuable opportunity for reflection here in Scotland.
Are our policies appropriately balanced? Do they protect dissent as well as dignity? Do they foster open enquiry alongside inclusivity?
These questions deserve serious attention—not because they are easy, but because they go to the heart of what a university is for.
Scottish higher education has long been proud of its distinctive identity, rooted in Enlightenment values and intellectual independence.
As debates around speech and academic freedom intensify, that identity may well become the sector's greatest asset, if we are brave enough to uphold it.
Melanie Steed is a Principal Associate in the employment, pensions and immigration team of Weightmans
www.weightmans.com
This article was brought to you in partnership with Weightmans