Background
The University of Sussex (the “University”) has succeeded in its judicial review of the decision of the Office for Students (the “OfS”) dated 27 March 2025 which found that the University had breached two ongoing conditions of registration with the OfS (the “Decision”).
The Decision followed an investigation arising from protests at the University in 2021 relating to comments from Dr Kathleen Stock. Accepting it didn’t have jurisdiction to examine the treatment of Dr Stock, the OfS scrutinised various University documents including the Trans and Non-binary Equality Policy Statement (the “Policy Statement”) which was adopted by the University, along with several other universities, to promote the fair treatment of trans and non-binary people.
The Decision found that the University had breached Condition E1, as the Policy Statement was a governing document of the University, and failed to uphold freedom of speech and academic freedom. The Decision also found that there had been a breach of Condition E2 as the University had failed to act in accordance with its internal scheme of delegation when adopting certain policy documents. Based on these findings, the OfS imposed a monetary penalty of £585,000 on the University.
The University brought a judicial review of the Decision, and the Court quashed the decision and the fine in its entirety.
The Judgment
The Court found that the Decision was unlawful concluding the OfS was apparently biased, had misunderstood the concepts of freedom of speech and academic freedom, exceeded its regulatory powers, and failed to take relevant matters into account.
In reaching its judgment, the Court considered five central issues: (1) the meaning of “governing documents”; (2) interpretation of the University’s internal laws; (3) the OfS’s approach to questions of freedom of speech and academic freedom; (4) failure to consider corrective action; and (5) bias and predetermination.
The meaning of “Governing Documents”
In considering the first issue, the Court found that the OfS had adopted an overly expansive interpretation of what constituted “governing documents” under the Higher Education and Research Act 2017. It held that the term is confined to documents comprising the formal legal framework of a higher education provider, such as its Royal Charter (where applicable) or any internal statutes or articles of governance made under its charter or equivalent. The Policy Statement was therefore not a governing document and the OfS had no jurisdiction to assess it under Condition E1.
Interpretation of the University’s internal laws
The second issue identified by the Court was a technical one about the visitorial jurisdiction which remains a feature of University governance for several English higher education institutions. As explained by the Court (at paragraph 167 of the judgment), the background to the visitorial jurisdiction is that if a university has a Visitor and a member of the university’s academic staff is aggrieved by an act or omission of the university, they may petition the Visitor for redress. The President of the Council exercises the Visitor’s jurisdiction on behalf of the King for 14 universities and colleges. The Visitor’s jurisdiction is limited to adjudicating on petitions from members of the university’s academic staff on the interpretation and application of the institution’s Charter, Statutes, Ordinances etc, provided the point at issue is not an employment dispute.
The Court took a more nuanced view of Condition E2(i) and accepted that the OfS is not barred from assessing whether a provider has complied with its internal governance rules, even where that requires interpretation of documents traditionally overseen by a University Visitor.
Freedom of speech and academic freedom
The Court held that the OfS made multiple legal errors in its approach to freedom of speech and academic freedom. It found that OfS: (i) adopted an unduly rigid view of freedom of speech (that the University could never restrict lawful speech); (ii) was incorrect to find that the Policy Statement breached academic freedom; and (iii) failed to take into account relevant protective measures, including the University’s Freedom of Speech Code of Practice.
In particular, the Court found that the OfS had misunderstood the statutory concepts of both freedom of speech and academic freedom. It treated freedom of speech as an absolute right, rather than one that can be qualified provided any such restriction is, amongst other things, proportionate. The OfS had also conflated academic freedom with the risk of reputational damage, stress of internal disciplinary proceedings, as well as a potential chilling effect on speech, none of which met the statutory threshold for interference with academic freedom. The correct test, the Court held, is whether academic staff are put at risk of losing their jobs or privileges, a threshold which was not met on the facts.
Failure to consider corrective action
The Court also found that the OfS failed to regard the mandatory relevant consideration of whether any perceived shortcomings had been addressed by the time the final decision was taken. The Court found that this error arose from the OfS’s refusal to consider updated policies and corrective steps taken by the University prior to issuing its final decision, despite having ample opportunity to do so. By assessing compliance only by reference to historic documents, the OfS unlawfully disregarded a mandatory relevant consideration, even though it was entitled to assess the seriousness of the alleged risk on the information available at the time. However, the Court was not persuaded by the University’s argument that the OfS acted irrationally in concluding that the alleged shortcomings gave rise to a risk of significant and severe harm. On the information available at the relevant time, that assessment was one the OfS was entitled to reach, notwithstanding other flaws in the final decision.
Bias and predetermination
Finally, and perhaps most critical of the OfS, the Court found the OfS had approached the investigation with a “closed mind” and found there was very strong evidence of predetermination. The Court’s finding of predetermination was based on the cumulative conduct of the investigation, including the OfS’s failure to engage meaningfully with evidence of compliance, its resistance to resolving the matter without formal findings, and its determination to hand out a penalty to an institution. This demonstrated that the OfS had effectively closed its mind to the possibility that enforcement action might no longer be justified. The Court rejected the University’s standalone procedural fairness argument, finding that the substance of the OfS’s concerns had been adequately communicated and that the University had a fair opportunity to respond.
Implications for higher education providers
The judgment provides important clarification on the limits of the OfS’s enforcement powers and emphasises the need for the OfS to approach investigations openly and have regard to corrective action taken by universities when faced with regulatory intervention. This should also serve as a reminder to universities of the importance of remedying any potential breach of OfS conditions of registration as soon as a potential breach is identified, and the value of having in place protective policies and measures such as a freedom of speech code of practice.
In the context of increasing legal protection for freedom of speech on university campuses, the judgment serves as a reminder that free speech protection is not absolute and lawful speech protections must be interpreted alongside other duties, including equality and safeguarding obligations. Universities may adopt measures to protect staff and students, including codes of practice, while still complying with their legal duties to uphold freedom of speech and academic freedom.
Finally, for public lawyers the judgment contains helpful summaries of key legal principles in a number of areas including, amongst others: relevant tools and approaches to statutory interpretation; general rules on procedural fairness and the duty to disclose evidence, and when a document might need to be expressly referred to by a decision-maker in the decision; the correct approach to interpreting the duty to protect freedom of speech, and the tests for apparent bias and predetermination.
If you would like to discuss any of the issues raised by the judgment in relation to your academic institution, please contact Niall McLean or your usual Brodies contact.
