The OfS-Sussex verdict is logically flawed. It can’t be allowed to stand

Imagine a public footpath. The local authority is obliged to follow two rules regarding its maintenance.

First, if the path can reasonably be kept open, it must be kept open. That may require taking active steps – clearing a fallen branch, filling in potholes, removing the makeshift barrier put up by a householder fed up with people on the path peering over their back fence – or it may simply require leaving things alone.

Second, any closure must satisfy certain conditions: the closure notice must be clear; the closure must serve some objective; and no more of the path may be closed than that objective requires.

The two rules plainly do not collapse into one. The local authority cannot just say: “Our closure plan satisfies the conditions for closure; therefore, we may close the path.” The prior question remains: “Why could the path not reasonably have been kept open?”

Yet that is not what a judge has just ruled in the analogous case of free speech. On 29 April, the High Court upheld the University of Sussex’s judicial review challenge to the Office for Students, overturning the £585,000 fine the regulator had imposed after finding breaches of regulatory requirements relating to free speech and academic freedom.

The court found, among other things, that the university’s Trans and Non-Binary Equality Policy Statement, which formed the basis of the fine, was not a “governing document”; that a chilling effect was irrelevant to academic freedom; and that the final OfS decision was “vitiated by bias”.

Much has been written about the significance of this judgment. My interest here is in one aspect that has received little attention. It concerns Mrs Justice Lieven’s finding that the OfS had misdirected itself on “freedom of speech within the law”. This has been reported as the court holding that the OfS treated any potential restriction of lawful speech as a breach of regulatory requirements. But the reality is more troubling.

To see why, it is necessary to understand the framework the court said it was applying. All parties agreed that the three-step framework in Regulatory Advice 24 (RA24), the OfS’ guidance on the Higher Education (Freedom of Speech) Act 2023 (HEFSA), supplied the correct test for assessing whether the university had complied with the OfS’ regulatory requirements on free speech.

The first step in that framework is to assess whether the affected speech is “within the law”. The second and third steps, which apply only to speech within the law, mirror the conditions relating to the footpath:

• Step 2: Are there any reasonably practicable steps to protect the speech? If so, they must be taken. This includes positive steps, such as amending policies that restrict certain viewpoints, and negative steps, such as not interfering with the speech.
• Step 3: If there are no reasonably practicable steps to protect the speech, the speech may be restricted or regulated, but any such interference must be authorised by a clear rule and must be “proportionate”.

Put simply, it is not enough for a university to say that a restriction on lawful speech is proportionate. It must also show that allowing the speech to proceed without interference is not reasonably practicable.

Mrs Justice Lieven states in the judgment (paragraph 221) that she agrees it is “necessary to consider the three steps”. Yet later in the same paragraph, she claims that Steps 2 and 3 “largely if not wholly elide”. She later (paragraph 249) develops the point, stating that Step 3 “necessarily encompasses” the question of whether the university could have taken reasonably practicable steps to protect free speech”. She adds that asking whether no reasonably practicable steps are available, and asking whether an interference is proportionate, “elide into the same factual analysis”.

But that cannot be correct.

Consider a student engaged in offensive (but lawful) speech that harms the university’s reputation. It might then be proportionate for the university to interfere with the speech to protect itself from reputational harm. But RA24 makes clear (paragraph 62) that reputational impact is unlikely to be relevant when assessing reasonable practicability. Non-interference would therefore likely be a reasonably practicable step to protect free speech under Step 2 – even if a Step 3 proportionality analysis, taken on its own, might allow interference.

Paragraph 250 of the judgment further illustrates the confusion produced by eliding Steps 2 and 3. There, the judge suggests that requiring the text of a gender-critical feminist lecture to be read in advance would be a reasonably practicable step to protect free speech because it is less intrusive than cancellation. But advance vetting as a condition of allowing a lecture to go ahead is not a step that protects speech; it is a step that interferes with it – and the 2018 Joint Committee on Human Rights report on Freedom of Speech in Universities rejected advance submission of a speech as a reasonable condition.

The judge says that the trans policy statement’s restrictions on “stereotypical assumptions about trans people” and “transphobic propaganda” are clearly subject to a proportionality balance. But the focus on proportionality sidesteps the prior question: why was it not reasonably practicable for the policy statement to simply remove these restrictions on expression?

RA24 is clear that restrictions on free speech require compelling justification: undermining the institution’s essential functions of teaching, learning and research; the fulfilment of its legal and regulatory obligations; or the physical safety of its staff or students. In that regard, it is not reasonably practicable to permit a mathematics lecturer to use lectures to express political views at length, or a loud protest to materially disrupt a seminar.

But blanket bans on lawful viewpoints will not ordinarily pass Step 2, because removing them would itself be a reasonably practicable step. In other words, Steps 2 and 3 do not elide. Step 3 is a necessary condition for restricting speech but not a sufficient one: a proportionate restriction is still impermissible if non-interference is reasonably practicable.

If this aspect of the judgment is allowed to stand, the likely result will be confusion about what the Freedom of Speech Act requires. Universities should follow the approach set out in RA24 and resist polemical attempts to use the judgment’s conceptual muddle to undermine it.

Abhishek Saha is a professor of mathematics at Queen Mary University of London, a founder member of the London Universities’ Council for Academic Freedom, and an advisory board member of Committee for Academic Freedom. He writes here in a personal capacity. A longer version of this article can be read here.