Why OfS got the meaning of free speech within the law absolutely wrong

There’s a set of lines that a set of people would like us to buy in response to the judgment in The University of Sussex v The Office for Students.

The Free Speech Union (FSU) called the ruling one that “effectively renders the Higher Education (Freedom of Speech) Act toothless.” On Spiked, Freddie Attenborough’s headline accused the High Court of rewarding “Kathleen Stock’s persecutors.”

Stock herself, writing in UnHerd under the standfirst “This week’s Sussex judgment ignores reality,” set out her response to the ruling.

The lines being pushed are consistent – OfS lost on a procedural technicality, the new framework reaches all policies and practices rather than just constitutional documents like Charters and Statutes, and the case for muscular enforcement remains untouched.

Watch where they’re asking us to look. They want our eyes on the narrow technical extension of reach, and not on the bigger loss sitting underneath it, which the new architecture doesn’t fix and may make worse.

That bigger loss is for an “absolutist” approach to freedom of speech – essentially that any speech within the law should be defended. The court rejected it, but the intellectual coalition that produced it has not.

What that coalition has consistently worked to keep out of view is proportionality – the legal hinge where free speech meets the parallel duties universities owe to those targeted by speech. Their preferred frame is that universities are the problem and regulators exist to stop them being so. Anything that looks like balancing is treated as the woke administrative class manufacturing reasons to avoid muscular enforcement.

To see what “absolutist” means and why it goes wrong, we have to pick apart the key phrase the case turns on – freedom of speech within the law – and spot that it’s being asked to do two quite different jobs at the same time.

Licence and limit

“Freedom of speech within the law” comes from section 43 of the Education (No 2) Act 1986. It now lives, slightly modified, in the new section A1 of the Higher Education and Research Act 2017 (HERA) via the free speech act, and it appeared in the older condition E1 framework that was applied to Sussex.

In the judgement, Justice Lieven observes that the case raised an immediate question:

… as to what ‘freedom of speech within the law’ means and how it relates to the need to undertake a proportionality balance within Article 10 of the ECHR, in order to comply with s.6 of the Human Rights Act 1998.

That question is – what’s the word “law” doing in the phrase? The real answer is that it’s doing two jobs.

The first job is to mark a threshold. Is the speech itself unlawful? Some speech is criminal – incitement to violence, threatening behaviour, certain harassment offences – some is tortious, like defamation, and some is so extreme it falls under Article 17 of the European Convention on Human Rights, which strips Convention protection from speech aimed at the destruction of others’ rights. Holocaust denial is the obvious example. If speech is unlawful in this sense, the duty to “secure” it doesn’t bite at all.

The second job, though, is something quite different. Speech that’s itself “within the law” can – and sometimes should – still, in the right circumstances, be lawfully restricted. A university bound by section 6 of the Human Rights Act has to comply with Article 10 of the Convention. Article 10(1) protects free expression. Article 10(2) allows “such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society” to protect, among other things, the rights of others.

So a public-authority-bound institution faced with speech that’s within the law in the threshold sense can sometimes justifiably restrict it – but only if the restriction is prescribed by law and proportionate.

And the obligations don’t run only outwards from universities to speakers. They run in the other direction too. Section 26 of the Equality Act prohibits harassment related to a protected characteristic – conduct that violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. The Public Sector Equality Duty under section 149 requires due regard to the elimination of harassment and to fostering good relations.

Section 6 of the Human Rights Act binds universities to Article 8 – the right to private life and dignity – as well as Article 10. The Worker Protection Act 2023 imposes a preventative duty around sexual harassment in the employment context. There’s a raft of EDI duties embedded in OfS’ Access and Participation regime. And condition E6 of OfS’s own regulatory framework requires providers to take significant steps to prevent and address harassment and sexual misconduct on their campuses.

Speech can be the conduct in any of these. Universities therefore operate under a big wedge of positive duties that, in some circumstances, require them to restrict speech that’s itself within the law in the threshold sense – not bans on visiting speakers because their views are unwelcome, but constraints on conduct directed at a colleague, a student, or a class of people, where the speech is the harm. See also “time, place and manner” of the right to protest.

Read together, condition E6 and condition E1 aren’t in tension. They’re the same architecture seen from two angles – E1 polices over-restriction, E6 polices under-protection. A regulator that takes one seriously and treats the other as an inconvenience hasn’t applied the framework. It has chosen a side.

A driver pulled over can be in two different kinds of trouble. The first – are they entitled to drive at all? Have they passed the test, do they hold a valid licence? If not, the question of how they were driving barely arises. The second – granted they’re entitled to drive, are they observing the speed limit on the road they’re on?

A licence tells you whether someone is permitted to be on the road. A speed limit tells you what they’re permitted to do once they are. Both are “the law”. Neither cancels the other. The Sussex case is, at its core, about a regulator that checked the licence, found it valid, and behaved as if that closed the question of how the driving had gone.

The judge is careful about this. “The importance of freedom of speech in a democratic society is hard to overstate”, she says, before adding the necessary qualification – “Article 10 is not an unqualified freedom”.

The right is fundamental, but it isn’t absolute. Both propositions sit together – because they have to.

The absolutist position

The absolutist position is the proposition that any policy capable of capturing lawful speech is, for that reason alone, unlawful. Capture equals breach – no proportionality balance, no question of whether the restriction is prescribed by law or necessary or rationally connected to a legitimate aim. If a policy can in theory touch lawful speech, it has, ipso facto, broken the duty.

You can see why this would be tempting for a regulator (or indeed a “champion”) with a free-speech brief. It’s tidy, easy to apply, and produces clear answers. It avoids the discomfort of weighing speech against the rights of others, rolls the threshold question and the justification question into a single test, and the test is one the regulator wins on every contested case. It’s also wrong.

OfS’ reasoning in its regulatory report essentially ran like this. Sussex’s Trans and Non-Binary Equality Policy Statement was capable of capturing lawful speech. Lawful speech is “within the law”. The duty is to secure freedom of speech within the law. Therefore a policy that captures lawful speech is, in itself, a breach of condition E1. The regulator didn’t work through whether the capture was proportionate or whether reasonably practicable steps had been taken. It treated capture as decisive. It checked the licence and stopped there.

The Free Speech Union, intervening on Ground 3D, went further. Its submission ran a two-step test – speech protected by Article 10(1), subject only to a high Article 17 carve-out, plus reasonable practicability, with no Article 10(2) proportionality balance. On that view, almost everything is “within the law” and almost nothing can be restricted. The judge rejected the FSU’s framework like this:

For the avoidance of any doubt, I agree with the position of the University and the OfS, that in order to determine whether the E1 condition is met, it is necessary to consider the three steps, including the proportionality balance.

So both flavours of the absolutist reading failed – OfS’s stopping at the licence check, and the FSU’s harder version that wrote 10(2) out of the analysis altogether. The court didn’t buy either.

The circular trap

The uncomfortable thing for the regulator is that Sussex’s Safeguarding Statement built proportionality in. It told staff and students that nothing in the Trans and Non-Binary Equality Policy Statement justified disproportionate restrictions on lawful speech. It cross-referred to the university’s Freedom of Speech Code of Practice (FOSCOP), which itself required complaints about restricted speech to “outweigh the strong interest in promoting free speech”. The proportionality safeguard was on the page.

But OfS reasoned that the safeguard was undermined by the continued presence of restrictions that, in its view, still captured lawful speech.

The judge picks out a long list of paragraphs in OfS’s own Annex and observes that every one of them “rel[ies] on the fact that the Policy Statement might still capture ‘lawful speech’ as grounds for finding a breach of condition E1”.

Paragraph 96 of the Final Decision, as quoted in the judgment, puts the point in OfS’s own words:

Together, these imply the provider considers these restrictions (which for the reasons explained above capture lawful speech) to be a proportionate restriction on freedom of speech.

So Sussex built proportionality in. OfS treated that as evidence Sussex was authorising disproportionate restriction. By that logic, no policy that contains any restriction capable of touching lawful speech could ever satisfy the duty, no matter how clearly proportionality was incorporated. The act of thinking about proportionality became, in the regulator’s hands, evidence of misapplying it.

To put it another way – OfS was treating the fire-extinguisher in the corridor as proof that the building was on fire.

Three steps endorsed

What the court actually adopted was three things to think about.

One is the threshold. Is the speech “within the law”? Speech outside Article 10(1), or caught by Article 17, or independently unlawful, doesn’t engage the duty.

The second is the duty. Are there reasonably practicable steps to secure the speech? If yes, take them. The factors that matter are familiar – legal and regulatory requirements, notably duties around harassment, maintaining the essential functions of teaching, research and administration, and physical safety.

The third is justification. If wider duties mean you feel the need to impose a restriction, is it prescribed by law and proportionate under Article 10(2)? Proportionality, on the standard Bank Mellat formulation, asks four questions in sequence:

1. Is the objective sufficiently important to justify the limitation of a protected right?
2. Is the measure rationally connected to the objective?
3. Could a less intrusive measure have been used without unacceptably compromising the achievement of the objective?
4. And, balancing the severity of the measure’s effects on the rights of those to whom it applies against the importance of the objective, does the former outweigh the latter?

It’s a high bar, at least for some of the activity you’d see in a university. OfS’ own regulatory advice (RA24) notes that in practice the test is difficult to satisfy in an academic context, where the core mission of universities and colleges is the pursuit of knowledge and free speech and academic freedom are fundamental to that purpose.

Asking the hockey team not to engage in “playful” banter aimed at LGBT+ people? Notsomuch.

The judge said:

the OfS would not be in breach of condition E1 or s.43… if in appropriate circumstances it restricted lawful speech.

Lawful speech can be lawfully restricted. The circumstances need to be made out – proportionality isn’t weak – but the structural possibility is there. The judge then makes a consequential observation: (my bolding)

reasonable practicability and proportionality elide into the same factual analysis.

Current OfS advice presents 1, 2 and 3 above as separate logical hurdles. On the judge’s view they tend, in practice, to converge on the same factual question – could the speech have been allowed, perhaps with less intrusive conditions, while still managing the legitimate competing interests? If yes, the restriction is unlawful. If no, the restriction can stand even though the speech itself was lawful.

Sussex’s Safeguarding Statement, read with its free speech Code, did, in the court’s view at paragraph 244, “encompass the correct test under Article 10 and therefore meet step three of the OfS’s approach”. The proportionality work had been done. The regulator had just chosen not to see it.

Why did this happen?

It all begs another question. Why was a serious regulator, advised by senior counsel, with 30 in-house lawyers, drawn to a test the judge eventually called manifestly wrong?

The first thing to say is that the absolutist read is enormously convenient if you have a particular kind of strategy. It produces fast, cheap, public answers, dispenses with difficult balancing, and allows the regulator to find a breach without dwelling on whether the institution had thought carefully about the rights of others.

OfS had a strategy of exactly that kind. Then chief executive Susan Lapworth’s first witness statement, at paragraph 62, recorded that initiating an investigation on free speech “would benefit the sector, by sending a strong signal about the importance of freedom of speech and academic freedom,” and that subsequent enforcement action would “create clear compliance incentives and expectations.”

OfS’ board had backed pursuing free-speech cases in a “targeted way” in September 2021. Sussex was the test case. The benefit of opening the investigation depended on the eventual outcome – the strong signal only landed if there was eventually a breach finding and a sanction. The opening of the investigation was reasoning backwards from a desired outcome.

The judge was direct:

The evidence at the time points to a fixed intent to find the University in breach of the conditions, in order for the case to have its requisite incentivising effect on the sector… The fair-minded, informed and not unduly suspicious observer would in my view conclude that there was a real possibility that the decision-maker here was biased in the sense of having a closed mind to the legal and factual merits of the university’s position.

But the convenience runs deeper than one regulator and one chief executive. Policy Exchange and the FSU’s campaign for the Higher Education (Freedom of Speech) Act (HEFSA), the design of the standalone director for freedom of speech and academic freedom role (a regulator within a regulator), the drafts of RA24 produced under that office – these form one continuous project with a single premise.

Universities are the over-restrictors. The new regulator-inside-the-regulator will exist to stop them. Anything that looks like balancing – proportionality, the parallel duties under condition E6, the harassment limb of the Equality Act, the Article 8 limb of the Human Rights Act – is the dodge the administrative class uses to keep restricting the speech the campaign wants protected.

Read in that frame, Article 10(2) becomes a loophole rather than a Convention provision. Equality or harassment duties become alibis rather than statutory obligations. Sussex’s Safeguarding Statement becomes the institution sneaking restriction in under cover of process, rather than proportionality safeguarding. The absolutist read is what you get when you translate an ideological worldview into a regulatory test.

The absolutist read is also structurally one-sided in a way that suits the architecture it sits inside. The test only ever asks whether universities have over-restricted lawful speech. It never asks whether they’ve under-protected those targeted by speech – never asks whether the institution has discharged its parallel obligations under section 6 of the Human Rights Act and Article 8, or whether it has met its duties under the Equality Act, or whether condition E6 has been taken seriously, or whether the institution has taken steps to balance competing rights at all.

As originally designed, the complaints architecture was bifurcated along the same axis. A fast, muscular OfS route for complaints that universities restricted too much. A slower, lighter-touch Office of the Independent Adjudicator (OIA) route for complaints that universities failed to protect, and then only open to students. There was to be no equivalent enforcement constituency on the other side. The asymmetry was the appeal. The absolutist read was one-sided by design, because the architecture it was to sit inside was one-sided by design.

OfS’ refusal to engage with Sussex’s Free Speech Code makes sense as a regulator avoiding evidence that complicates the answer. The refusal to consider Sussex’s 2024 revisions makes sense as a regulator avoiding the question of whether any breach had been remedied. The settlement stance – Sussex had to accept the breaches in full to qualify for a meeting – makes sense as a regulator that needed the case to land in a particular place. Cumulatively, they look very much like a regulator that started with an answer and went looking for the working.

What now needs to change

OfS has changed leadership. Most of its senior team has rotated. Its interim chief executive, Josh Fleming, has said the regulator will reflect on the judgment. That’s welcome but it isn’t sufficient. Three levels of change are now in scope.

First, guidance needs to make clear that “is it unlawful” is a threshold, not a verdict. The fact that a policy might capture lawful speech is the start of the analysis, not the end of it. It needs language confirming that lawful speech can still (and sometimes, should still) lawfully be restricted given the right justifications, and an instruction that documents must be read together – with a provider’s Freedom of Speech Code of Practice typically the institution’s definitive statement, not a side-note.

Drafting habits also need attention. In 2018, the Joint Committee on Human Rights said that speakers bear primary responsibility for what they say, but organisers can be liable if they invite a speaker who they might reasonably have suspected would use the platform to break the law. OfS’s draft RA24 conveniently reproduced only the first half. The regulator absorbed half a balanced principle in one direction, shedding the part that would have constrained its preferred reading.

Are there examples in RA24 of a provider not restricting free speech when it should have? Barely. But fiddling with guidance won’t be enough.

HEFoSA created a single-issue statutory regulator inside a regulator with a brief framed as the protection and promotion of one value, sitting alongside but not integrated with the regulator’s other obligations on equality, dignity and academic life. It created a complaints scheme bifurcated along the same axis.

The architecture invites exactly the kind of asymmetric application the court has now found unlawful. The next contested case will land on the new section A1 duty. If the absolutist instinct survives the change of leadership – and in a way, given the legislation, it should – the next case will replay the same problems on different facts.

This is where Labour’s standing approach to policy becomes a problem. The government has come to office with a reputation for not having done the policy thinking before walking through the door, and the pattern has been to take what the previous administration had drafted and tinker.

The Renters’ Rights Act, originally Michael Gove’s reform bill, is one example. The Tobacco and Vapes Bill, inherited largely intact from Sunak’s smoke-free generation framework, is another. The AI Safety Institute – set up in November 2023 around the Bletchley Park summit, kept on, renamed AI Security Institute, mission lightly retuned – is a third.

HEFoSA has been treated similarly. The main duties were commenced, the tort and SU duties remain for repeal when a legislative vehicle appears, the complaints scheme is now scheduled for September 2026 and the registration-condition machinery for April 2027, the architecture left intact, and the director left in post.

Sussex says that won’t do. The legislation is rotten in the way it was put together, and tinkering will leave the structural problems exactly where they are.

The next case won’t be saved by guidance amendments and personnel changes alone. The work is structural, and structural here means legislative. “Rip it up and start again” is politically unappetising – but ministers have been sold a pup.

A government that came to office proclaiming that the grown ups are in charge now and that the country needs change needs to go right back to the drawing board.