The Sussex-OfS case should spark better regulation, not weaker protection

In upholding various of the University of Sussex’s grounds for appeal against its £585,000 fine for breaching free speech regulations, the High Court’s judgment is a serious defeat for the Office for Students. But it is not a vindication of what happened at Sussex, nor a reason to abandon stronger statutory protections for academic freedom.

The OfS issued the fine in March 2025 on the grounds that Sussex’s Trans and Non-Binary Equality Policy Statement (TNBEPS) did not uphold the public interest governance principles on freedom of speech and academic freedom set out in the OfS’s Regulatory Framework. Furthermore, the regulator found that Sussex failed to have adequate management and governance arrangements in place to ensure it operated in accordance with the delegation arrangements set out in its governing documents, as well as that other of its policies did not comply with several statutory requirements in different acts.

The decision followed an investigation which began on 22 October 2021, in the wake of the heated campaign at Sussex against Kathleen Stock on grounds of her gender-critical views. This led to her resignation on 28 October: after the investigation had been initiated. Nonetheless, the investigation and judgment were not a fact-finding inquiry into Stock.

Sussex’s rationale for challenging the decision rested on the following grounds:

1. The TNBEPS was not a “governing document” in the relevant sense
2. The OfS was overstepping its brief by investigating matters of internal university law
3. The OfS misunderstood “freedom of speech within the law”, as institutions need to impose restrictions on lawful speech to maintain academic standards, prevent bullying or harassment and run an institution
4. The OfS misinterpreted the policy and disciplinary framework, as TNBEPS could not have lawfully been used to discipline staff given that other governing documents protected academic speech
5. The OfS did not take into account the fact that by the time of the decision, Sussex had amended TNBEPS, while the claim that the policy had a “significant and severe” chilling effect was based too much on Stock’s own experience rather than wider evidence
6. Sussex alleged apparent bias and predetermination on the OfS’s part, relying in part on the previous public support for Stock offered by its director for freedom of speech and academic freedom, Arif Ahmed, and his later role in the investigation – as well as heavy reliance on the part of the OfS on witness evidence from her.

The judgment upheld grounds 1, parts of 3 and 4, and parts of 5 and 6. Ground 2 was thrown out, as was the objection in 5 regarding the effect of TNBEPS.

Regarding Ground 1, the difficulty for the OfS was that the Higher Education and Research Act’s public-interest governance condition was drafted around “governing documents”. The judgment indicated a narrow definition of these, not the full range of policies, codes and statements through which universities now shape academic life, as indicated in Section E1 of the OfS’s regulatory framework. That distinction may look formalistic, but the court held that it was a statutory limit on the regulator’s powers.

In effect this means that policy documents which say something about values or conduct, rather than those that constitute, govern or structure the institution’s legal and governance arrangements, are not valid grounds for the OfS to take regulatory action on the basis of its E1 condition requiring that a “provider’s governing documents must uphold the public interest governance principles that are applicable to the provider”. Hence, the OfS is likely to have to revise the regulatory framework.

The danger is that universities may now be tempted to place ideologically loaded or speech-restrictive commitments in ordinary policy documents, rather than constitutional instruments, and then say they fall outside the E1 route.

Nonetheless, these wider documents still do not lie outside of all OfS scrutiny in light of subsequent legislation. The Higher Education (Freedom of Speech) Act 2023 (HEFSA), which was not yet active for the purposes of the Sussex investigation, enables the OfS to look at providers’ actual policies, procedures and decision. Furthermore, its most regulatory advice, published in November, setting out a three-step framework for measures and decisions affecting speech, applies to “any measure or decision that might affect speech or types of speech”. Paragraph 221 of the judgment indicates agreement with this process.

Part of Ground 3 is awkward for free-speech advocates because it held that the OfS had treated any policy capable of restricting lawful speech as problematic without asking whether a restriction might be legally justified and proportionate. But that November document, as well as the new duties in the HEFSA, give it a better route, but they do not make all restrictions on lawful speech automatically unlawful.

The court’s acceptance of Ground 5 is more contestable. A regulator should not ignore late remedial amendments, but nor should institutions be able to neutralise enforcement simply by revising policies once an investigation is nearing its conclusion.

Regarding Ground 6, the judgment did find bias and predetermination, but it is important to be clear about what it says about Ahmed. He joined the OfS in August 2023 and joined the investigation team only on 15 October 2024. In September 2023, he had recorded a possible conflict of interest in light of his earlier defence of Stock but the court found that the investigation was driven not by him but by the then OfS chief executive Susan Lapworth.

In her previous role as its director of regulation, she initiated the process on 7 October 2021, after becoming aware of the campaign against Stock, and formally opened an investigation on 22 October. Upon becoming interim chief executive in February 2022, she stepped back from full day-to-day conduct but retained close oversight of the process. The judge described her involvement as “intense and overarching” and said “the entire process was shaped by her”.

And while Ahmed had expressed strong support for Stock and her position and been very critical of her opponents, the judgment recognises this was almost inevitable in anyone who was deemed suitable for his role. The ruling finds “nothing in their personal relationship [between Ahmed and Stock] that would give rise to any finding of apparent bias”. And “the die had already been well cast” by the OfS’s Provisional Decision on the case, made before Ahmed joined the team. So the court’s bias finding should not be caricatured as “Ahmed once defended Stock, therefore the OfS was biased.” The judgment is more damaging to the OfS than that – but not to Ahmed.

The OfS has expressed its disappointment with the ruling and I very much hope it will appeal it. The investigation was genuinely motivated by a need to protect the rights of academics to speak out on contested issues, and without continuing action on this, there will be little to prevent the sort of mobbing action which drove Stock out of UK academia.

On 20 April, the education secretary, Bridget Phillipson, announced the implementation of the complaints scheme from 1 September 2026, which will make the Freedom of Speech Act truly enforceable, as was urged by over 400 academics. A statement from the DfE thankfully indicates its recognition that “it is vital the regulator has the powers to hold providers to account”, going on to say this is why the complaints scheme is being introduced.

The mandatory OfS conditions of registration established by the act are to come into force from 1 April 2027 and the government says this will allow the OfS to fine universities for breaches of their duties, with fines of £500,000 or 2 per cent of income, whichever is higher – or even deregister them in the most serious cases. This will give the OfS a clearer statutory route for investigating and sanctioning policies and practices that restrict lawful speech.

Sussex’s vice-chancellor, Sasha Roseneil, has used the verdict to attack the reputation of the OfS. She said it “raises important and urgent questions for the government as it plans to grant ever more powers to the regulator” and she seeks a meeting with Phillipson. But the university’s legal victory is not a moral exoneration. The judgment was not a finding that all was well at Sussex, nor that the mobbing treatment of Stock was compatible with a healthy culture of academic freedom.

It was a finding that, under the pre-HEFSA framework, the OfS used the wrong legal tools, interpreted some of them wrongly, and conducted its process unlawfully. The lesson should be better regulation, not weaker protection.

Ian Pace is professor of music, culture and society at City St George’s, University of London. He is also secretary of the London Universities’ Council for Academic Freedom and co-convenor of City St George’s Academics for Academic Freedom. He is writing here in a personal capacity.