CAF has submitted a briefing to ministers and opposition education spokespeople across all four major UK parties – Conservatives, Labour, Liberal Democrats and Reform UK – setting out why the recent R (University of Sussex) v Office for Students judgment should not be treated as a reason to delay, dilute or abandon commencement of the new university free speech complaints scheme.
The intervention comes amid mounting attempts within parts of the higher education sector to use the High Court ruling as a basis for arguing against commencement of key enforcement provisions in the Higher Education (Freedom of Speech) Act 2023 (HEFSA).
In April, before the judgment was handed down, the Department for Education announced plans to commence the OfS-administered complaints scheme in September 2026, alongside strengthened registration conditions backed by enforcement powers from April 2027.
Since then, however, University of Sussex Vice-Chancellor Professor Sasha Roseneil has used the judgment to argue that the OfS is a “failed regulator”, “not fit for purpose”, and that the ruling raises “important and urgent questions” about granting “ever more powers” to the OfS. Having said she stands ready to work with government on “better ways to regulate and support” universities, Professor Roseneil is reportedly seeking an urgent meeting with Education Secretary Bridget Phillipson to discuss the judgment’s implications.
CAF’s briefing argues that such interpretations overstate the implications of the ruling, and that ministers and parliamentarians should also hear from a specialist academic freedom organisation working directly with ongoing casework across the sector.
One of several important points made in CAF’s briefing is that the Sussex judgment arose under the pre-HEFSA regulatory framework created by the Higher Education and Research Act 2017 (“HERA”). The OfS could not investigate on behalf of Kathleen Stock, who resigned from Sussex following a sustained campaign over her gender-critical views, as an individual complainant. Instead, it examined whether Sussex had complied with its existing conditions of registration, including by treating the university’s Trans and Non-Binary Equality Policy Statement – which, among other things, required course materials to “positively represent trans people and trans lives” – as a “governing document”. The High Court rejected that interpretation, confining “governing documents” to high-level constitutional instruments rather than the wider body of internal policy through which speech is often managed on campus.
That finding exposes the limits of the old route, rather than undermining the case for the new one. It is true that the Court’s narrowing of “governing documents” may still bear on OfS oversight under the strengthened registration condition, particularly section 8A(1)(a), which requires governing documents to be consistent with compliance with the duties in sections A1 to A3, as inserted into HERA by HEFSA. But the new regime is not confined to that route. It also enables the OfS to assess whether providers have complied with their free speech duties in practice, because the complaints scheme operates at the level at which academics actually experience restrictions on lawful speech.
That is a crucial innovation. As Stock’s case illustrates, much of the pressure on lawful speech in universities now operates not through high-level constitutional documents, but through the lower-level machinery of campus governance: EDI frameworks that extend beyond legal compliance, misstated harassment guidance, mandatory training, external speaker approval procedures, institutional statements of values, and the embedding of politicised requirements in quality assurance processes.
In that context, the central question for the OfS-administered complaints scheme becomes not whether a policy document is itself a “governing document”, but whether, in the circumstances of the case, the provider took the “reasonably practicable” steps required by section A1 of HERA, as amended by HEFSA, to secure freedom of speech within the law.
This is one reason why, despite the Court’s ruling, CAF argues the scheme remains capable of doing what neither the Sussex investigation nor employment tribunal claims under the Equality Act 2010 can: offer individuals a quick, low-stakes and free-to-use route to redress when their free speech or academic freedom rights are infringed.
To illustrate the point, the briefing draws on a number of recent cases from ongoing CAF casework and public reporting – including those involving David Gordon, David Harris, Laura Murphy, Peter Pormann and Martin Speake – deliberately selected from the period since July 2024, when the core provisions of HEFSA could have been commenced under the legislation, but were paused by the incoming Labour Government.
Professor Roseneil has called for “better ways to regulate and support” universities. But the forthcoming OfS free speech complaints scheme and strengthened free speech conditions are precisely that. Instead of allowing senior leaders to mark their own homework in an atmosphere of backslapping bonhomie, they provide the regulator with exactly the tools Parliament intended to hold the sector to account when universities drift away from their role as places of open inquiry and robust intellectual disagreement.
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.