The OfS has confirmed that it will not appeal the High Court’s decision in R (University of Sussex) v Office for Students, a ruling that may alter the legal terrain on which free speech disputes in universities will be fought.
In April, the court ruled that the English higher education regulator had acted unlawfully in imposing a £585,000 fine on the University of Sussex following its investigation into the circumstances surrounding Professor Kathleen Stock’s resignation.
The case arose out of the university’s handling of internal policies in the wake of the campaign against 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 the fine.
Although Sussex ultimately accepted that this wording should not have been included, it brought a judicial review challenging the OfS’s decision on a range of public-law grounds, including whether this kind of policy fell within the regulator’s remit at all.
The court criticised the approach the OfS had taken under the previous legal regime, established by the Higher Education and Research Act 2017, including its use of regulatory condition E1 – the condition relating to public-interest governance principles – and its expansive interpretation of “governing documents”.
In a statement, OfS Chair Edward Peck said prolonging the litigation would not be in the interests of students or the sector, and that the regulator now wants to “focus on the future” – in particular, the “sharper tools” it will soon have to intervene where free speech or academic freedom is compromised, including the new complaints scheme.
This is a disappointing decision, but not entirely unexpected, since victory on all grounds was always unlikely. It does, however, leave open the possibility that the “sharp” tool of the complaints scheme may have to work harder if universities over-read the judgment as granting wider latitude to restrict lawful speech than it in fact does.
That’s because, although Regulatory Advice 24 (RA24) – the OfS’s guidance on freedom of speech and academic freedom – and the new Higher Education (Freedom of Speech) Act duties post-dated the decision to fine Sussex, both the parties and the court treated that guidance as the correct framework for analysing “freedom of speech within the law” – a statutory concept central to the new regime.
Although the OfS says the judgment “broadly endorsed” the approach set out in that guidance, the court’s reasoning on Ground 3D leaves unresolved questions that will become increasingly important as the new complaints scheme approaches.
At the heart of that dispute is a deceptively technical but hugely consequential question: must universities actively secure lawful speech wherever reasonably practicable – including by simply not interfering, as paragraph 58 of RA24 makes clear – or, as some have interpreted the judgment to suggest, may they restrict speech whenever restriction can be justified as proportionate?
In a piece for Times Higher Education, OfS chief executive Josh Fleming concedes that this question must now be addressed, writing: “We will clarify how and when colleagues should consider the proportionality of restrictions on free speech.”
Despite these uncertainties, there are still reasons for optimism. From April 2027, the wider regulatory framework will place a far more serious constraint on university decision-makers’ tendency to let legally questionable understandings of “hate speech” and “harassment” encroach on lawful expression. The complaints scheme itself is due to become operational in September 2026, allowing academics to bring complaints directly to the OfS.
But formal powers alone will not be enough. Much will depend on whether the pipeline of cases is well formed, whether the OfS is willing to act decisively, and whether proportionality is applied in the structured legal sense envisaged by Article 10 jurisprudence – which affords particularly strong protection to academic and political expression – rather than as a vague balancing exercise tilted towards institutional risk-aversion. If those conditions are met, the scheme could, over time, begin to shift institutional behaviour in a meaningful way.
Over the coming months, as further detail emerges, CAF will prepare for the scheme’s launch by refining our intake and triage processes, ensuring we can identify the core issues in a complaint early and help structure them around 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.
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