Explaining Sussex v the Office for Students

The University of Sussex has published a pre-action protocol letter to the Office for Students (OfS).

The letter notifies the regulator of the university’s intention to seek judicial review and appeal the decision – which imposed a £600k fine over breaches related to academic freedom and freedom of speech.

Thus far we’ve had a war of words – now we see the legal basis for the argument. Sussex argues that OfS acted ultra vires (ie beyond its powers), misinterpreted legal principles, misapplied statutory definitions, and demonstrated irrationality in its findings, particularly over the Trans and Non-Binary Equality Policy Statement (TNBEPS).

It also asserts that OfS overstepped its authority, failed to engage in procedural fairness, and ignored safeguards already in place – putting meat on the bones of its eye-catching “free-speech absolutism” claim.

Some of it concerns a regulatory regime that’s set to be replaced* – but some of it concerns an allegation of “absolutism” about how the regulator is interpreting the law. The second of those could go on to matter quite a bit once the Higher Education (Freedom of Speech) Act 2023 actually gets implemented.

(*To be strictly accurate, the existing regime, which expects compliance with a set of Public Interest Governance Principles that includes ones on academic freedom and freedom of speech is to be added to.)

Chilling effects and balancing acts

Sussex’s disciplinary statement classified “transphobic abuse, harassment or bullying” – including name-calling and derogatory jokes – as serious disciplinary offences, and it argues that OfS made a legal error in finding that the statement breached regulatory requirements around freedom of speech.

It arguies that the language targets conduct already covered by existing laws – like section 5 of the Public Order Act 1986, which prohibits abusive speech likely to cause harassment or distress.

In 2023, the university introduced clarifications – a “harm threshold” requiring speech to be reasonably expected to cause fear or distress, and an explicit statement safeguarding lawful academic freedom and speech, stating that the policy should not justify disciplinary action for expressing controversial or unpopular views.

It claims OfS ignored those contextual safeguards and wrongly interpreted the policy as restricting lawful speech, even though its objective meaning, when read in full and in context, demonstrates otherwise.

Broadly, this is about the “chilling effect” – Sussex is saying that universities can lawfully discipline harmful or abusive speech, as long as there’s an alignment with existing legal prohibitions, and as long as there are clear safeguards for lawful expression – limiting OfS’s power to challenge policies based on hypothetical misreadings. Doing so gives universities freedom to uphold respectful environments without breaching free speech duties.

Expression that you can restrict

Next, Sussex argues that OfS misunderstood what “freedom of speech within the law” actually means – taking the position that universities can’t prohibit any speech unless it’s already explicitly banned by civil or criminal law.

Sussex’s argument is that universities, like other institutions, are allowed to set standards of conduct and discipline behaviour – like plagiarism, abuse, or poor academic quality – even if those behaviours aren’t technically illegal:

The University would have to tolerate academics designing curriculums which lack academic rigour, for example a curriculum which seeks to reinforce stereotypes (as distinct from a curriculum that discusses stereotypes).

The University would have to tolerate an academic starting every lecture by swearing at and demeaning students, so long as such action did not relate to protected characteristics.

The University would have to tolerate an academic conducting every lecture through the medium of song or mime (noting that freedom of speech protects the manner of speech as well as the content).

The argument is that lawful speech can still be restricted if the restriction is lawful and proportionate, as allowed under Article 10 of the European Convention on Human Rights, and that the mere possibility of disciplinary action doesn’t amount to an unlawful restriction on speech, citing European case law to back this up.

This one’s interesting because it’s a key part of the “absolutism” argument – in its draft guidance on the new legislation last year, for example, OfS said:

It is likely to be extremely difficult, if not impossible, for higher education providers and other relevant organisations to comply with their free speech duties if they seek directly or indirectly to restrict the particular content of speech. For instance, a provider, constituent institution or relevant students’ union may wish to restrict or prohibit speech because it has made a negative value judgement about the content of the speech. There is likely to be very little scope to restrict or prohibit lawful speech in this way.

Sussex is basically saying that the case law suggests that it’s not nearly as difficult or impossible as OfS claims – and that universities retain the lawful authority to set and enforce standards of behaviour, academic integrity, and professionalism – even where those rules affect speech that isn’t illegal. It’s also saying that having disciplinary procedures in place isn’t, by itself, a breach of free speech obligations, so long as they aren’t used to punish lawful expression improperly.

Stereotyping standoffs

One of the things we’ve reflected on before is the apparent refusal of the regulator to accept that the case law puts a higher value on free speech in academic contexts than in others – and of course a university encompasses all sorts of contexts.

Put another way, what a student writes in an essay or what an academic teaches (with all the usual qualifications about proper rigour) that might, say, stereotype a trans person is a world away from stereotyping banter on a society social.

In the letter, Sussex challenges the logic and legality of OfS’s conclusion about the 2023 “Stereotyping Statement” in the TNBEPS. OfS accepted the statement didn’t infringe academic freedom, noting the policy included a safeguard against constraining academic freedom or imposing disproportionate limits on free speech. Yet it still found the same policy breached freedom of speech duties, because it could chill other lawful speech, particularly by students or non-academic staff.

Sussex argues this is irrational because the Stereotyping Statement only relates to how the curriculum is designed – something that exclusively involves academics. If OfS was satisfied that the policy didn’t infringe the academic freedom of those academics in setting the curriculum, it argues there is no rational basis to then conclude that their freedom of speech was infringed by the same policy.

This standoff matters. OfS is saying that even if a policy respects academic freedom, it can still breach free speech duties if it chills broader expression – while Sussex argues that in curriculum design, those duties converge, and protecting academic freedom inherently protects speech.

Is a policy statement a governing document?

Sussex argues that the Trans and Non-Binary Equality Policy Statement (TNBEPS) is not a “governing document” as defined by section 14(1) of the Higher Education and Research Act 2017 (HERA), which it says only refers to foundational legal documents like a university’s Charter and Statutes.

In comments to the Guardian at the end of last month, Sussex vice chancellor Sasha Roseneil argued as follows:

This is a really small statement, of which we have many dozens, if not hundreds, of similar policies and statements. Whereas the governing documents of the university are its charter and statutes and regulations. So that’s the core of the problem

In the pre-action letter, Sussex claims OfS has wrongly expanded the definition through its regulatory framework, which includes broader policy documents, without the legal authority to do so – insisting that only Parliament can define those terms – and that interpreting TNBEPS as a governing document is beyond the OfS’s powers (ultra vires).

You might argue that it’s sensible for both the law and the regulator to only look at proper, formal governing documents when assessing breaches of things, you might not – but if Sussex is right on that, it does underline a key difference between the law operating in 2021 and what would be the position if the Higher Education (Freedom of Speech) Act 2023 was fully in force.

It goes on to argue that the regulator “misunderstood and misapplied” its regulatory role, because OfS was supposed to determine whether the university’s governing documents were consistent with principles of academic freedom and freedom of speech – not to speculate on how someone might misread a policy.

It criticizes OfS for relying on “hypothetical misinterpretations” rather than objectively interpreting the actual text, ignoring contextual safeguards like the university’s disciplinary rules and Free Speech Code – which the university says led to a flawed and unlawful decision.

If Sussex is right, it’s saying that OfS may have failed a basic legal duty – to interpret documents in context and according to their actual effect, not based on imagined misunderstandings.

Delegation and proportionality

You’ll recall that the other big fine for Sussex was about delegation. Sussex argues that OfS acted beyond its legal authority by making findings about whether the university properly followed its internal rules on who has the power to approve policies (its delegation arrangements).

Sussex contends that these are matters for our old friend the Visitor, a traditional legal role in UK university governance, who in Sussex’s case is the actual King.

It cites longstanding legal authority confirming that the Visitor has exclusive jurisdiction over internal governance questions, including interpretation and application of the university’s own rules, and says that unless Parliament clearly removes or overrides that jurisdiction, external bodies like OfS can’t interfere.

Sussex says HERA 2017 doesn’t meet the test, because it neither expressly nor necessarily implies that OfS can judge whether a university has followed its internal delegation rules.

OfS argues that cases like Thomas v University of Bradford [1987] AC 795 make clear that HERA 2017 grants it the power to impose conditions as long as those conditions fall within its statutory mandate.

This one’s interesting because it has echoes of arguments about the powers OfS has over consumer protection. In that area, C1 allows it to assess whether a provider has paid “due regard” to guidance, but OfS doesn’t have actual powers to judge whether a provider is in breach – which is partly why it’s busy proposing to remix consumer law as a “fairness condition” of its own, and partly why interim Chair David Behan has been arguing to DfE that it needs to be given proper powers to become an enforcement body.

Poking around in the annex

As such, Sussex also argues that OfS exceeded its legal authority by including Annex H in its Final Decision.

That contains OfS’ views on whether the university may have breached other legal obligations – like Article 10 of the European Convention on Human Rights (ECHR) and the Equality Act 2010. Sussex asserts that HERA 2017 doesn’t authorise OfS to investigate or make findings about compliance with these separate legal duties, which fall outside its jurisdiction.

OfS tries to justify its actions by saying that potential non-compliance with these laws might indicate whether Sussex breached Condition E1 (the requirement for governing documents to support freedom of speech and academic freedom).

But Sussex argues this logic is flawed – it says E1 is about the content of governing documents and whether they align with public interest governance principles – not about whether the university might have violated unrelated legal duties that OfS doesn’t oversee.

The university also points out what it says are legal errors in OfS’ analysis. OfS claimed the university might have breached Article 10 ECHR simply because it didn’t conduct a formal “proportionality assessment” – but case law says that’s not a requirement to prove a breach.

The case referenced is a fascinating one – in Belfast City Council v Miss Behavin’ Ltd [2007] the council had denied a licence to an adult entertainment business, who argued their freedom of expression was infringed because the council hadn’t assessed whether the denial was proportionate.

The House of Lords rejected the argument, deciding that what matters is whether the interference was in fact justified – not whether the council had formally weighed it up using proportionality language.

And Sussex argues that OfS wrongly suggested the university’s curriculum content could amount to indirect discrimination under the Equality Act, even though curriculum content is explicitly excluded from that law under section 94(2).

Process issues

Some of the process issues are eye-opening. We learn, for example, that OfS suggested various potential penalties and breaches throughout the 1246 days of the investigation, “most of which were later dropped”.

We already knew that OfS “never met with university representatives”, declined all requests for meetings or discussions about its findings or decisions, and would not confirm whether changes the university made to its policy addressed the concerns raised.

Here Sussex says that when the provisional decision was reached and sent in March 2024, it was “259 pages long, repetitive and poorly written”. A year or so later, out of the blue, it says it got a call from OfS requesting a meeting within 3.5 hours – a courtesy call that the final decision was coming that day.

It says that the majority of the findings and proposed penalties in the provisional decision had been abandoned, but the proposed penalties had actually increased – with no explanation.

Sussex claims OfS acted unfairly during its investigation by meeting with Kathleen Stock multiple times while refusing nine requests to meet with university representatives – and argue OfS relied on a second statement from Stock, obtained after the university’s submissions, without disclosing it or allowing any response, using it to reject the university’s position on harm caused under condition E1.

What happens next will hinge on whether OfS engages with the university’s legal challenge or digs in for a court fight – there’s a question over whether there’s any pre-action protocol for this kind of tribunal, and Sussex reserves the right to rely on other grounds.

But more broadly, the case lays bare fundamental disagreements about how speech should be regulated in higher education, who gets to interpret the law, and where the boundaries lie between institutional autonomy and regulatory oversight.

Whether you think Sussex is bravely standing up for a more balanced view of the campus culture see-saw, or is simply resisting accountability, the outcome may well reshape how free speech duties are understood and enforced across the sector.