Why we are not appealing the Sussex free speech case

Almost three weeks ago, the judgment was handed down in the University of Sussex v Office for Students (OfS) judicial review, ruling against the OfS on most grounds. Since then, I and my OfS colleagues have been reflecting deeply on the ruling, its implications and what we do next. 

Today, we’ve announced our decision not to appeal the judgment. I believe this decision is in the best interests of students, the sector and the OfS. It is the best way to achieve freedom of speech and academic freedom across the world of higher education.

This decision has not been easy but I’m confident it is the right one.

Deciding not to appeal does not diminish the importance of academic freedom or freedom of speech. These principles are fundamental to higher education in England and beyond. Indeed, our decision not to appeal will allow us all to focus our time and energy on ensuring future students and academics can participate in the free and frank exchange of ideas that characterises our sector. Our new complaints scheme will launch in September; academics, members of staff and visiting speakers will be able to seek redress if their speech has been unduly suppressed. 

In this vein, I want to make sure that colleagues in the sector have clarity on the regulatory environment in which they operate. While the judgment is broadly supportive of our approach to freedom of speech within the law, we need to resolve ambiguities in our approach and update our guidance. 

We will clarify how and when colleagues should consider the proportionality of restrictions on free speech. We are already engaging with institutions to inform and help improve their practice and policies ahead of the complaints scheme launching, such as in relation to the handling of protests and to removing ideological tests from job adverts. We want to work with universities and colleges to troubleshoot issues and test live cases. Institutions should get in touch with us if they have examples that they want to discuss ahead of the scheme’s launch.

While some have been concerned about the implications of the judgment for freedom of speech, others have raised concerns about what the judgment means for the OfS’ relationship with the sector. Ultimately, these are questions of trust, and we must not brush them aside. 

We need to reflect on the judgment with humility and a willingness to learn. We are conducting a formal lessons-learned exercise to make sure we’re challenging ourselves on how to change. And we’ll report publicly on steps we’re taking to improve our approach.

In choosing not to appeal, we want to focus on the future and what’s best for students and the sector. To do this, we need to reflect and change as an organisation. We also need the sector to work with us in ensuring that academic freedom and free speech are protected. I look forward to working with the whole sector to make this happen.

Josh Fleming is interim chief executive of the Office for Students.