The High Court’s decision in R (University of Sussex) v Office for Students was handed down this week and significantly reshapes the terrain on which free speech disputes in universities will be fought. At the heart of the lengthy and at times legally complex ruling are findings that will narrow the routes by which the regulator can intervene.
The case arose out of the University’s handling of internal policies in the wake of the campaign against Professor Kathleen Stock over her gender-critical views. However, the court was not asked to determine what happened in that episode, but whether the OfS had acted lawfully in its investigation of one policy in particular: Sussex’s Trans and Non-Binary Equality Policy Statement. Among other things, the 2018 version of that policy stated that course materials must “positively represent trans people and trans lives”. The OfS concluded, not unreasonably, that such wording risked chilling lawful speech and academic freedom. Its wider investigation ultimately led to a £585,000 fine.
Although Sussex ultimately accepted that this wording should not have been included, it brought a judicial review, reportedly spending more than the fine itself, and challenged the OfS’s decision on a range of public-law grounds, including that this kind of policy was never within the regulator’s reach in the first place.
The court criticised the approach the OfS took under the previous legal regime, established by the Higher Education and Research Act 2017, including its use of condition E1 – part of the regulatory conditions universities must comply with to remain registered – and its expansive interpretation of “governing documents”. The judgment significantly narrows that concept, confining it to high-level constitutional documents rather than the wider body of internal policy. This matters because, as CAF’s casework shows, many of the policies through which speech is managed on campus – including not just trans equality statements, but EDI frameworks, mandatory decolonisation initiatives, perception-based harassment codes and associated guidance – may now fall outside the regulator’s most direct route of scrutiny.
Take, for instance, Leeds’s sweeping “decolonising” programme, which requires departments to embed its principles across their core academic activity; London Metropolitan’s use of mandatory EDI statements in academic recruitment; or institution-wide anti-racism “pledges” and training regimes at institutions like Greenwich. Instruments of this kind, through which speech – indeed, campus culture more generally – is increasingly governed, risk slipping beyond the regulator’s reach, effectively leaving universities to mark their own homework.
The ruling also resets the meaning of “freedom of speech within the law”. For the OfS, Sussex’s policy was problematic because it was capable of catching speech that remained lawful. But the court said that was not enough. Universities may, in some circumstances, restrict lawful speech, provided the restriction is justified and proportionate. The mere fact that a policy captures lawful speech does not, by itself, put a university in breach.
Rather than treating the restriction of lawful speech as inherently problematic, the court’s approach leaves more room for arguments that such restrictions may be justified in context. It points towards a model in which free speech is more readily weighed – or “balanced”, to borrow the familiar Strasbourg formulation – against competing claims about harm, dignity, equality and the “rights of others”. The problem, of course, is that this is precisely the terrain on which universities have long defended restrictive internal policies.
A third important finding concerns academic freedom. The court gives the phrase a hard-edged but narrow statutory meaning, in which the relevant threshold is whether an academic is placed in jeopardy of losing their job or privileges.
Yet for academics like Kathleen Stock, and for many others whom groups like CAF deal with day to day, the reality is often very different. Pressure rarely operates at that level, instead taking softer forms: cancellation, ostracism, exclusion from opportunities and reputational damage, all of which can chill speech long before anyone is formally “in jeopardy” of losing their job.
The case arose under the pre-existing regulatory framework established by the Higher Education and Research Act 2017, addressing the OfS’s findings of breach under conditions E1 and E2(i), together with the lawfulness of its process and sanction.
Since the Higher Education (Freedom of Speech) Act 2023, however, the OfS now operates under a new statutory regime. This includes the more specific duties inserted into the Higher Education and Research Act 2017 by sections A1–A3, which require universities to take “reasonably practicable” steps to secure freedom of speech within the law, and will in due course be backed by a new free speech condition of registration and complaints scheme.
But while the ruling does not simply carry across to the new regulatory framework – it does not, for example, confine the OfS to asking whether a restrictive policy qualifies as a “governing document” – it would be a mistake to treat the judgment as irrelevant.
For the forthcoming complaints scheme, for instance, the implications of the court’s reasoning are significant. If, as the judgment makes clear, restrictions on lawful speech turn on a structured assessment of competing rights and interests, it may not always be enough for complainants simply to point to problematic wording or a generalised chilling effect. They will also need to show how the legal test applies to the facts: the speech at issue, the restriction imposed, the duty engaged, the “reasonably practicable” steps that were available but not taken, and why the university’s response was not justified or proportionate.
In that context, without some degree of upstream filtering and case-building, the OfS may find itself confronted with a large volume of complaints that are either weakly framed or legally inchoate, leaving it bogged down in additional case preparation or repeated requests for further information. There is also a risk that complaints with genuine merit are not pursued simply because the underlying issues are not clearly articulated.
This is where organisations like CAF will have an important role to play.
Over the coming months, as further detail emerges from the OfS, CAF will prepare for the scheme’s launch by refining our casework triage processes and ensuring we can identify the key issues in a complaint at an early stage and help those who come to us for support structure their cases in line with the relevant legal and regulatory tests.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.