There is “strong” evidence of predetermination during Office for Students’ long investigation into free speech and academic freedom at the University of Sussex – suggesting that it may not have been an unbiased investigation.
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.
OfS was found to have made errors in law in respect of what it was allowed to do, how it interpreted the laws that set out how it works, and how it understands freedom of speech and academic freedom.
These are the explosive findings made by Mrs Justice Lieven of the Administrative Court, following her consideration of the case of the University of Sussex versus the Office for Students. It was always a case likely to prompt criticism of OfS’ approach.
The university took the regulator to court to appeal the imposition of a fine of £585,000 following alleged breaches of conditions of registration E1 (public interest governance) and E2 (governance arrangements) that came to light after an investigation into the circumstances that prompted the resignation of former philosophy academic Kathleen Stock. It claimed that there were a number of irregularities in the process OfS followed to reach this decision.
The ruling specifically deals with the way OfS ran the investigative process and issued the record-breaking fine. It does not (and was not designed to) deal with the underlying issues relating to freedom of speech, academic freedom, or the experiences of Kathleen Stock – or of trans and non-binary people – at the University of Sussex.
It makes a ruling on each of the grounds put forward by the University of Sussex legal team in their skeleton argument, taking into account the arguments made both by the university and the Office for Students.
Arguably, it was only necessary to uphold ground 1 (that the trans and non-binary equality statement was not a governing document) in order to find in favour of Sussex – but it is significant and instructive that Justice Leiven went on to make full rulings on the other grounds under discussion.
Ground 1: The “trans and non-binary equality policy statement” (TNBEPS) was not a governing document
Upheld. OfS has misdirected itself as to the meaning of governing documents in section 14 of HERA. The TNBEPS was not a governing document. The “ordinary reading” of the term tends towards a narrow definition of governing documents (things like statutes) – OfS was not able to provide any evidence that a broad meaning (covering policies and other statements of intention) is intended in the Act.
In fact, the intention of ministers appeared to be to lessen the regulatory burden on HE providers, and the Universities Minister of the time, Jo Johnson, made it clear in the Commons Committee stage that a wider definition would give OfS:
a much wider and more subjective application […] that would stray outside our stated policy objective and beyond the OfS’ regulatory remit
Lieven described OfS’ position on this issue as something that “leads to if not absurdity then something very close to unworkability.”
The practical effect is wider than Sussex. OfS’s E1 jurisdiction is now confined to the constitutional documents – Charter, Statutes, formal Regulations. The mid-tier of institutional policy that most universities have built up over the past decade – equalities policies, dignity-at-work, harassment frameworks, EDI statements, codes of conduct – sits outside direct E1 oversight.
Ground 2: OfS did not have jurisdiction over the statutes of the University of Sussex
Not upheld. Here Sussex attempted to argue that the University Visitor – a remnant of an ancient system of ensuring universities adhered to their own laws (or statutes) – had the exclusive jurisdiction, meaning that OfS would not be able to reach judgements on governing documents or processes. This was very much a nuclear option – if the Higher Education and Research Act 2017 did not give OfS powers of jurisdiction over the statutes of universities that had a University Visitor it would have undermined pretty much the entire workings of the OfS’ regulatory oversight over governance.
Justice Leiven did note that there was “undoubtedly” an encroachment onto visitorial jurisdiction, and for her the question was around the extent of this. She concludes that – although the wider issue is interesting – Parliament did clearly intend the OfS to have oversight of governance and thus OfS was able to make conditions that intruded into visitorial jurisdiction.
Ground 3A: OfS did not look at the totality of Sussex governing documents?
Upheld. The Office for Students should have looked at Sussex’s Freedom of Speech Code of Practice (FOSCOP) in considering the relevant governing documents as to whether there had been a breach of freedom of speech duties. It was “obviously” a material consideration, and should have been referred to in the final decision, to the extent that it was “Wednesbury” irrational (a legal test: had a public body given undue relevance to irrelevant facts, or not considered relevant fact, or reached a “completely absurd” decision?) not to consider it.
The final decision of the Office for Students did not mention the FOSCOP and gave no reason for disregarding it. In court, OfS accepted this point. Though the regulator attempted to argue that to consider all 3,000 pages of representations, the court found that FOSCOP specifically was obviously a material consideration and if any person was to read it together with TNBEPS there was clearly no breach of E1.
Ground 3C: OfS did not deal correctly with the academic freedom public interest guiding principle and incorrectly found that academics could lose their jobs for exercising academic freedom
Ground 4: OfS did not examine TNBEPS alongside University of Sussex statute VII and the disciplinary policy
Both upheld. Sussex statute VII is clear that an academic could not be dismissed for academic freedom reasons – the “error of law” made by OfS here is considering other detrimental effects, such as the threat of a disciplinary process, psychological effects, or the “chilling effect” of policies. That’s from section 2 of HERA, and is reflected in OfS’ condition E1.
When TNBEPS is considered alongside other university governing documents, as Sussex argued it should be, it is clear that a breach of the policy could not result in dismissal. The reliance on the chilling effect and potential for stress and anxiety were “irrelevant considerations in respect of this purported breach.”
The presumption of legality matters here. Public bodies are presumed to act lawfully unless there is clear evidence to the contrary. Universities are entitled to assume their disciplinary processes will be applied lawfully, and the mere theoretical risk of unlawful application is not a basis for finding the underlying policy in breach.
Ground 3D: OfS did not use a correct understanding of the terms “reasonably practicable” and “freedom of speech within the law”
Upheld. The restriction of “lawful speech” can be permitted under condition of registration E1 – this is the published position of the OfS within Regulatory Advice 24. In relying on the possibility of a restriction of lawful speech within TNBEPS, OfS did not consider the safeguarding statement alongside the FOSCOP – and incorrectly concluded that the 2022 and 2023 versions of TNBEPS failed to protect freedom of speech within the law.
There was a lot of discussion in court around three particular components of TNBEPS. On the stereotyping statement it is difficult to improve on the words of Justice Leiven in explaining how this was a legitimate academic stipulation that applied to the curriculum:
What is prohibited [by the statement] are “stereotypical assumptions”, which means in effect over-simplified ideas about trans people. Such assumptions would not uphold high academic standards. The university is not seeking to restrict discussion of stereotypes, but rather the reliance on them, or attempts to reinforce such simplified ideas about trans people in the curriculum. A policy restricting teaching based on the intentional promotion of stereotypes is a proportionate means of advancing the university’s core function of promoting excellence in teaching and learning.
The “positive representation” statement, used in the 2018 version of TNBEPS is accepted by Sussex as having been in breach of condition E1 – was removed within days of the appointment of a new vice chancellor. However, this in itself does not mean that the finding of a breach relating to that version was lawful – there are issues under other grounds that undermine OfS’ conclusion.
The “safeguarding” statement was introduced in the 2023 version of the policy – setting out that TNBEPS should not be taken to justify disproportionate restrictions on free speech, and making it clear that staff were empowered to test received wisdom and put forward new ideas. OfS did not agree, because the continuing presence of other parts of the policy means that students and staff are likely to continue to be “directly restricted, and chilled.”
The conclusion reached in the judgment is that statements in the 2023 and 2024 versions of TNBEPS are:
subject to the Safeguarding Statement. The Safeguarding Statement complies with the three-step approach, which the OfS itself advocates and supports, because it expressly requires the University to take reasonably practicable steps to secure free speech and provide proportionate justification for any restrictions on free speech.
Though Regulatory Advice 24 had not been published at the points OfS alleged a breach in free speech duties, it is notable that the guidance was referred to throughout this section. What shines through is that Justice Leiven was unimpressed with more “absolutist” approaches to freedom of speech (essentially that any speech within the law should be defended) and that a proportionality test needs to infuse all considerations rather than applying only at the end of the process. Jim got into this distinction and why it matters on the site back in June last year.
Ground 5A: OfS did not consider other remedies or whether Sussex was currently in compliance
Upheld. In deciding to levy a fine on Sussex, OfS did not consider whether the university had remedied the breach of registration conditions, but instead relied on the idea that a finding of breach would provide a strong incentive to other providers. As Justice Leiven noted:
This may be true in terms of providing an incentive, but it cannot form a lawful basis for proceeding to a decision if the breach had already been remedied.
OfS, in effect, decided to impose a significant fine while refusing to consider the up-to-date factual situation.
Ground 5B: OfS singled out Sussex in an anti-competitive way, though 8-10 other providers had also adopted a version of TNBEPs
Not upheld. The decision to investigate the University of Sussex was not “anti-competitive”. However, as we will see under other grounds there is an issue of “predetermination”.
Ground 5C: The 2023 version of TNBEPS adequately protected academic freedom and freedom of speech
Not considered. This was the “nor” question – the 2023 version of TNBEPS included a safeguarding statement that joined together measures on academic freedom and freedom of speech in an arguably unclear way, and the reading made by OfS was that it protected the former but not the latter. Lieven considered that this matter was dealt with in ground 3D.
Ground 5E: There was no evidence of a “chilling effect”
Not upheld. The only direct evidence of a chilling effect came from Stock’s two witness statements. Because she had left the University in October 2021, her evidence related only to the 2018 version of TNBEPS, and focused on the Positive Representation Statement. The evidence was thin – Stock conceded that the gender-critical materials she had described as “implicitly excluded” were in fact on her reading lists, though she said she had felt unable to teach them in class.
But the absence of wider direct evidence was not in itself proof of no chilling effect. As Lieven noted, the nature of such an effect is that “people may be unwilling to come forward and give specific evidence of the effect upon them” – self-censorship may not even be conscious.
Lieven held that, given OfS’s specialist remit and the difficulty of evidencing chilling effect, the conclusion that TNBEPS read in isolation could have a significant and severe effect on free speech was not (Wednesbury) irrational. But she added that the exercise was “somewhat unreal” because no real reader would consider the policy in a vacuum – and that this finding did not undermine her conclusions on the other grounds.
Ground 6A: OfS did not disclose key evidence to the University of Sussex
Not upheld. OfS was not obliged to give Sussex the opportunity to respond to Kathleen Stock’s second witness statement – because there were no new issues raised in that statement, and nothing was raised that was important to the decision.
Ground 6C: The investigation was pre-determined and biased
Upheld. The arguments against the fairness of the investigative process and the final decision made by Sussex were five-fold:
- OfS did not consider current compliance
- The university was singled out for sanction
- There was no explanation as to how Stock’s evidence had been produced
- Arif Ahmed, who effectively led the investigation team from October 2024, was personally connected to Stock
- The investigation did not put the evidence fairly or fully to the decision-makers.
Bias in a regulatory process is a comparatively rare finding – the bar for proving bias is set very high. Because of this, despite Ahmed being clear that he didn’t expect to be involved in the investigation of this cases because of a personal connection with Stock, he was not the decision-maker (the board-level committee that approved the final decision) and accordingly was not found to have a bias that would vitiate the decision.
However the entire process was shaped by former chief executive Susan Lapworth, whose involvement in the investigation was both “intense and overarching”. Her determination that the Sussex case should be used to incentivise the rest of the sector meant that only a finding of breach and a sanction (with attendant publicity) could achieve this. As Justice Leiven put it:
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.
This was amplified by the availability of a settlement process that would require Sussex to accept the alleged breaches in their entirety – and that this seemingly acted as a precondition even for a meeting with Sussex. Again:
An approach of assuming the breach before even a provisional decision is reached, and refusing to discuss any other option, certainly on the facts of this case is indicative (although not determinative) of a fixed view.
This impression is amplified by OfS’s decision not to communicate immediately with other providers who were using the offending policy until after the judgment was published – again OfS admits that it did not do this because it wanted to use Sussex as an example. Add to this the failure to examine Sussex’s own Freedom of Speech Code of Practice (FOSCOP) or examine the current (2024) version of the policy to ensure ongoing compliance and predetermination is very much an open question. Again, to quote the judgment:
To reach a conclusion that the breaches had been remedied would have undermined the strategy that Ms Lapworth and the OfS had adopted in October 2021, pursued for three and a half years, and invested very significant resources into. The evidence supports a finding that the OfS had closed its mind to anything that would lead to not finding breaches and being unable to therefore sanction the university.
While the decision made by the board sub-committee was nominally independent, in practice it was almost entirely led by the material put before them by officers – notably the sub-committee accepted the draft final decision in its entirety, which is not an indicator of independence:
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.
The pattern is potentially generalisable. Other providers who have been on the receiving end of strategic OfS enforcement – particularly where they can show similar features (test-case selection, refusal to consider remediation, closed-mindedness during investigation) – may now have grounds to revisit their cases.
What this might mean for universities
OfS lost on the law, but the substantive concern about the 2018 Positive Representation Statement was widely shared – Sussex itself accepted by May 2024 that the wording should never have been included, and both NUS and UUK said the same in evidence.
Universities will still need to think carefully about how they draft policies that touch on contested speech, and the Sussex 2024 model is now effectively the template – paragraph numbering, an explicit Safeguarding Statement preserving academic freedom and freedom of speech, definitions tied to the Protection from Harassment Act 1997, explicit cross-references to the Statutes and Regulations, and an objectivity requirement for what counts as harassing material. OfS chose not to consider it – the court’s analysis suggests it would have done the job.
Three architectural lessons follow.
- A provider’s Freedom of Speech Code of Practice should be doing the heavy lifting on speech regulation – the judgment cites OfS Regulatory Advice 24 approvingly in calling it the institution’s “definitive and up to date statement” on freedom of speech, and other policies should sit clearly beneath it.
- Definitions should be tied to existing legal standards rather than invented in-house.
- And the hierarchy of norms – constitutional documents, FOSCOP, equality policies – should be visible to staff and students rather than left implicit.
None of this requires retreating from substantive equality commitments – Sussex’s own 2024 version retained the prohibition on stereotyping (with an intent requirement), the disciplinary framework for transphobic abuse, and commitments to dignity and equal treatment. Universities that respond by gutting their equality policies are over-correcting.
An unresolved question hangs over all of this. The judgment was decided under the regulatory regime in force before August 2025. The new section A1 secure duty is more demanding, and OfS now has direct enforcement powers.
The narrow reading of “governing documents” insulates policies from the older E1 route but does not insulate them from enforcement under the new duty – and the presumption of legality may be applied less generously when the underlying duty is section A1 than it was under E1. But that question awaits the first case.
Either way, OfS may now need to revisit how it defines (the process for determining) “freedom of speech within the law”, and that may require new regulatory advice and consultation to go alongside it, which may well slow down the implementation of the complaints scheme the government was trumpeting the arrival of just last week.
What they said in response
Interim chief executive of the Office for Students, Josh Fleming, said:
We are disappointed, of course, by this ruling. We will carefully consider the consequences of the judgment before deciding on next steps. We will reflect on the Judge’s findings and use them to help inform our future approach.
A Department for Education spokesperson told us that:
We are working closely with the Office for Students to consider the judgment and the next steps – Free speech and academic freedom are fundamental to our world-leading universities and it is vital the regulator has the powers to hold providers to account.
University of Sussex vice chancellor, Sasha Roseneil, said:
The Court’s judgement is a comprehensive vindication of that position. It is a devastating indictment of the impartiality and competence of the OfS, implicating its operations, leadership, governance, and strategy. It raises important and urgent questions for the government as it plans to grant ever more powers to the regulator. I will today seek a meeting with the Secretary of State for Education to discuss this excoriating judgement and its implications for the higher education sector.
Roseneil has also written a short digest for Politics Home.
Vivienne Stern, chief executive of Universities UK said:
As we move forward, universities will want to work closely with the Office for Students to reset relationships and rebuild trust under its new leadership. Effective regulation depends not just on enforcement, but on trust, clarity, and a shared understanding of respective roles.
The Free Speech Union, which intervened on paper on Ground 3D, said:
This is a disappointing judgement which effectively renders the Higher Education (Freedom of Speech) Act toothless.
What next?
There is a clear challenge here both to OfS’ approach to freedom of speech and its wider regulatory approach. In choosing to investigate and fine the University of Sussex to encourage other providers to comply with freedom speech rules, we see a continuation of a pattern – the regulator singles out a small group of providers, publicly chastises them, and assumes that the rest of the sector will take steps to avoid a similar fate. We have seen this with investigations into grade inflation, franchise and partnership arrangements, B conditions, financial matters, even spelling and grammar.
This is not an approach used by mature regulators, and – as we have now seen – not an approach that is legally defensible. Any and all providers who are, have been, or will be under investigation by OfS will ask why they have been specifically chosen for regulatory attention, and with good reason.
The freedom of speech related conditions of registration in use for this investigation have already been replaced. The new conditions are clearer and more closely aligned to the law, they should prevent the confusion that has characterised the Sussex proceedings occurring in future. It is difficult to develop a regulatory approach while it is in use for the first time, but it is not impossible to ensure that the approach is fair and does not prejudge conclusions or findings.
That OfS was unable to manage this suggests more fundamental problems with its regulatory approach. The regulator’s leadership – and much of its board and senior staff – have been replaced since these events took place. It is to be hoped that Fleming’s commitment to carefully consider the consequences of this judgment is as brave as it appears – and that we can look forward to a more responsive, and responsible, Office for Students in future.
The judge will shortly make an order on costs – as the de facto winner of this appeal, Sussex could expect to have likely substantial legal costs picked up by the Office for Students rather than paying them half a million pounds as a fine. It is possible that OfS could appeal this judgment – again we will find out in due course.
Some law firms are actively trying to find these “culture war” cases as they see them as a way of making money. They are all too aware that unis do not want to risk the judgment of a politicised regulator that seemingly cannot run an effective investigation process. The goal becomes trying to avoid a case getting to the OfS at all costs. All the law firms have to say is give us money and this goes away!
That hardly applies here does it? Sussex were facing an enormous fine (16 x larger than any levied previously) and big reputational loss. They were placed in an impossible position. They had to challenge the OfS’s unfair and ‘biased’ decision in Judicial Review. Teh OfS would not even meet with them let alone negotiate a settlement.
This is about as damning an inditement of Susan Lapworth’s tenure at the OfS as it’s possible to imagine – she was their head of regulation before stepping up as Chief Executive, and carries much responsibility for that agenda of targeting-and-shaming individual providers to effect the cultural changes she wanted to see (rather than, for example, looking at potential fraud in a subset of franchise arrangements), in general, and very specifically (and bizarrely well documented) here.
Interesting to see her step down for Easter 2026, *just* before this came to a head and it will be interesting to see whether we’ll finally get an OfS that seeks to regulate to protect students and the quality of the sector, rather to than promote Toby Young and the FSU.
Indeed. Although it may well take time for the prevailing culture to change; if you look at E10 (targeting collaborative provision) it is remarkably poorly defined (in other conditions an HE course is specifically defined, for example, yet it is not there), which rather gives the impression of a fishing expedition and a license to meddle. It will be interesting to see whether that approach changes and they attempt to introduce conditions which either define the problem they are looking for and/or the problem they are hoping to fix and then give some proper principles to guide the sort of behaviour they are after.
“The positive representation statement, used in the 2018 version of TNBEPS is accepted by Sussex as having been in breach of condition E1”.
This should have been the crux of the matter. That this is somehow waved away by the judge is astounding.
If I can direct you back to the article and to the sentence directly following the one you quoted:
“However, this in itself does not mean that the finding of a breach relating to that version was lawful – there are issues under other grounds that undermine OfS’ conclusion.”
That is, the case presented by OfS didn’t wholly rest on the 2018 version of TNBEPS and the E1 condition, and, even if it did and the University was found by OfS to be at fault, the outcome would need to consider a number of other relevant matters. For example, the OfS is required (by its governing documents, so to speak) to consider what remedial action had already taken place. We know the OfS did not do this.
More fundamentally, however, the article is misquoting what the judgement says in relation to the University’s position. In the judgement, para. 223, it states:
“The University accepts and has done since (at the very latest) 29 May 2024 that the Positive
Representation Statement in the 2018 version of the Policy Statement would have been in breach of
condition E1 if it was a governing document.”
The final six words are vital there — the 2018 version of TNBEPS could not breach E1 because it was not a governing document (this was Ground 1 of the appeal which was upheld).
If my university tells me I should be doing something because of statement X in document Y, should I be asking the university whether these are part of a governing document and if they are not, can I simply ignore the instruction?
This is a question you’d need to ask the OfS, who were very much hoist on their own petard here – they were trying to punish Sussex on the basis of the OfS’ own regulatory framework, and this has shown it is obviously unfit for purpose.
The positive representation statement of Sussex stated: “any materials within relevant courses and modules [to] positively represent trans people and trans lives”. This is clearly a direct intervention of the university leadership in course materials and is not consistent with academic freedom.
Has this verdict abolished academic freedom?
Not at all, what the verdict has done is demonstrated that the OfS’s own frameworks to police and enforce academic freedom are not fit for purpose – and in addition it has shown that the OfS has up til now approached said enforcement in a partisan and unfair manner, to the extent of ignoring changes made by the University. Did you read the above piece?
Yes, I read the above piece. I’m not a fan of the OfS, but I am concerned that people in their glee over the OfS getting a bloody nose fail to see the bigger picture. Seemingly university leadership is allowed to dictate content of course materials and there is no recourse against this.
Not really sure this is true – it wasn’t the case in Stock’s teaching at Sussex as the ruling found. and afaict the positive representation thing isn’t current either.
Yes, it is quite possible here to applaud the court’s demolition of the OfS’s defective approach to this particular case, but be left with a nagging concern about how free speech will be safeguarded going forward. Exactly what recourse is now available to an academic who feels their speech is restricted by a university policy which is enforced by threat of disciplinary action for non-compliance but not deemed to be a “governing document”? It seems unlikely, in the wake of this case, that the OfS will offer them much support.
Abolutely right. Bobby is just wrong on that point. That said, Bobby’s underlying worry is that dictates from central management have increasingly taken the place of trust in the professional judgment of university faculty, which is a continuing trend. And the government is making that worse, not better, by opening Unis up to all kinds of legal action from students (under consumer law, and the Freedom of Speech Act etc.)
Not at all. 1. It was an initial draft of a policy, subsequently amended. (All universities have all kinds of policies and guidance documents. Far too many in fact) 2. It was amended so the right result was reached, fairly swiftly as these things go. 2. Crucially it was not a ‘governing document’. The clue is in the name ‘governing’. There were other actually governing documents that had priority over and constrained any policy. The regulator failed to take these into consideration, even when these were pointed out. Read the judgment carefully. It is considered, cogent, and on point.
The positive representation statement was not an initial draft. It was in force from November 2018 to 16 August 2022 I understand. So Sussex had a policy in place which violated its own governing documents for nearly 4 years.
I will repeat my earlier point. Do I need to read every policy and guidance document of my university and determine which one has priority when they seemingly contradict each other? This is an insane situation. A university should simply not have any policies and guidance documents which contradict its governing documents.
Even if this were the case back then, they don’t, any more. This problem has now been solved, it seems, and in fact had been, about 10 months after the investigation opened. But it’s also worth mentioning that, in part because of the huge resource piled into this ‘test case’, the OfS could not even at the point of issuing the fine tell Sussex what its policies should actually look like. This ‘regulator’ which is in fact seemingly only focused on ‘free speech’ can’t even provide clear definitions of this, its only concern, occupying its *400* paid members of staff, to the institutions it’s regulating.
What this judgment shows is that the regulator was not following the law, but was instead looking to make an example of Sussex, in a way that was openly unfair (this is clearest in the refusal to allow Sussex to see and thus respond to the seemingly untrue testimony Stock had provided, compounded by the very obvious conflict of interest in the ‘Free Speech Tsar’ of OfS, even if supposedly not directly involved in this ruling, being a personal supporter of Stock).
I feel like the point that ‘gloating over the ruling misses the point of potential procedural anomalies at Uni’s’ is actually something that should be turned on its head – if people really do care about this sort of imbalance or contradiction in policies, they should be absolutely outraged that the OfS spent hundreds of thousands of the pounds it is given by Universities not to systematically investigate this and work on processes that all Uni’s might follow, but instead tried quite desperately to punish one of its funders in an OTT and basically illegal way, undermining itself in the eyes of the entire industry in the process.
As I stated in an earlier comment, I am not a fan of the OfS. I do think the OfS needs a fundamental overhaul.
“Even if this were the case back then, they don’t, any more. This problem has now been solved, it seems, and in fact had been, about 10 months after the investigation opened.”
Try telling the equivalent to HMRC: `I paid too little tax for years, but since I’m now paying the correct amount of tax, let us forgot about all those years that I paid too little tax’. HMRC will still collect the tax you owed but did not pay, and will give you a fine. Similarly, Sussex should be punished for having had that policy even though they have now changed it.
I understand the point but I’m not sure the equivalence fully works. Sussex here would be the only person in the country being fined for unpaid tax, but via a system where the laws weren’t being properly applied by the regulator; there would have had to be a ‘whistle blown’ by someone who was actively misleading the regulators about the amount of tax paid but who was taken at their word because the regulator liked them personally; you wouldn’t be allowed to see the person’s claims about your tax evasion, for no justifiable reason; there would be evidence of the regulator being unduly prejudiced in this ‘whistleblower”s favour; and there also would be no clarity on the actual amount of tax you were meant to be paying, both at that time and also now, but you’d still be hit with a huge fine and the threat of more to come, despite the HMRC not being able to tell you how you’d be comliant. Maybe HMRC does work like this but I doubt it.
If Sussex were liable for the above thing re contradictory policies, then tons of other uni’s would be; it’s just not proper for a regulator to try to make examples of individual institutions, especially when the regulator is obviously not a neutral actor.
With regards to your last paragraph. Paragraph 55 of the ruling says
“Between 27 March and 3 April 2025 Dr Ahmed wrote to Vice-Chancellors of other universities, which had policies similar or materially identical to the Policy Statement, asking them to review their policies in light of the OfS’s findings on the University, and offering to meet and support their work as appropriate.”
So Sussex was not uniquely singled out, it was just the first.
By four years. And the only one to be formally investigated and fined.
¯\_(ツ)_/¯
Paragraph 54 of the ruling: “On 27 March 2025 the OfS issued the Notice of Final Decision”. So within a week of reaching a final decision on Sussex, OfS wrote to the other relevant universities. Would you have preferred the OfS to have investigated all those universities in parallel rather than first focusing on one? Would this have been an efficient use of the regulators and universities time?
Paragraph 56 of the ruling: “On 9 May 2025 the Judicial Review claim was filed”. That basically stops dead any further formal investigations and fines. Or would you have preferred the OfS to investigate and fine other universities whilst the Judicial Review was in progress?
I think the OfS can be blamed for taking so long over its investigation of Sussex (this is the “four years” that David mentions in his reply). It cannot be blamed for acting slowly after the investigation was concluded.
It was singled out though – because none of the others had been investigated, despite supposedly being in breach according to the above; and none of them have been investigated further; they were contacted after the fine was issued and 3 years after Sussex changed its docs. The findings show that OfS singled out Sussex in order to come to the predetermined conclusion of being at fault, to the extent of taking at face value misleading evidence and not giving Sussex access to it, and the imposition of a severe fine.
In court it was also noted that OfS had not contacted AdvanceHE about any compliance problems with their template policy. The single fastest way to deal with the harm OfS perceived within that wording would have been to change the template at source. It didn’t ask for that.
This is probably the single least surprising legal decision of the last ten years at least, surely – the OFS decision was so riddled with inconsistencies, and was so obviously predetermined – even before the evidence provided here – that it was never going to stand.
The entire thing has demonstrated just how unfit for purpose OfS is – and always was, in fact. We’re unlikely to see full abolition any time soon but the likely responsibility for huge legal fees on the basis of a blatantly unfair attempt to make an example of one institution might be enough to cause at least a partial rethink of priorities.
The OfS really is such a poorly run organisation with a terrible reputation. In recent years it has lost two court cases – the only times its decisions have been legally challenged by providers – and has had two scathing public reviews. If I was a provider on the end of an adverse judgment from the OfS I would legally challenge it as chances’ are you would win…
Having now read the full judgement, it is clear that OfS has been inept (no surprise there) and that the Higher Education and Research Act 2017 (HERA) was not carefully enough written.
There are however a few very contentious aspects to the ruling which I think might get overturned on appeal.
The judgement quotes HERA as stating:
“the freedom within the law of academic staff at English higher education providers to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at the providers.”
The judgement however does not go into what those privileges are and whether those privileges are put in jeopardy by the policies of Sussex. The judgement focuses solely on job loss. This is a massive omission.
The judgement in paragraph 250 gives a hypothetical scenario:
“One example might be a situation where a lawful speech which might fall within the Disciplinary Statement (perhaps a gender critical feminist lecture which somebody objects to) is allowed to go ahead on the condition that it is read in advance by the University.”
Something like this may very well be considered a loss of privilege (the privilege to not have ones teaching materials read in advance by the university), but the judgement does not go into this.
This non-consideration of privileges is an extremely serious omission and should not stand as case law.
In paragraph 271 the judgement states:
“Further the reliance on the chilling effect and potential for stress and anxiety are irrelevant considerations in respect of this purported breach.”
Employers have a legal duty of care to protect employees from foreseeable harm, which includes work-related stress and anxiety. The judgement should at the very least have acknowledged this (even if on technical grounds it might have argued that this is not for OfS to consider in its regulation).
As far as I know, the board of directors of OfS is not an artistic collective.
However, it should be considered as such.
”Watch the OfS lose half a million quid” raises questions that the K foundation didn’t even consider in their original 1994 work “watch the KLF burn a million quid.”
“Watch the OfS lose half a million quid” speaks to three key areas-
1. A sense of coming to a decision before looking at the evidence.
2. The anti-democratic overreach of unelected bodies.
3. The extreme lengths that bureacrats will go to (gambling with huge sums of public money and student fees) in order to place one thumb on the scales of justice.
4. The jaw-dropping hubris of gambling with such vast sums of money during a protracted cost of living crisis.
I very much hope that all at OfS who are responsible for this memorable piece are as proud of all their creative achievements as they should be. Its a wonderful piece of self-satire.
With the aside that ‘bureaucrats’ implies career admin staff whereas I don’t think the decision makers here really fit that mould – the core decision makers are political appointees, and the problem here is they are taking action to effect political and cultural change (in this case, but also with eg spelling and grammar, grade inflation), rather than to regulate in the more conventional sense of protecting public funds and quality – I think the main other takeaway no one mentioned which follows on from this point, is that the HE sector funds the OfS, so if they have lost half a million (if it was factored in to their increased budget; if it wasn’t, if they are left with legal costs for themselves and Sussex), then Sussex and the rest of the sector will pay for it via next year’s OfS subscription fees.
“Grade inflation” is another interesting area where the OfS thumb is once again found on the scales of justice. Needless to say, no consideration was given to the possibility that more students might be getting better grades because they are simply working harder. It’s a scary world for students when they are taking on colossal debt and many more of their contemporaries have degrees than their parents’ generation.
The issue that you mention in relation to university subscription fees is an interesting and deeply symptomatic one. “If you lose you pay. If we lose, you pay.” OfS does appear to have something of the “Rule of kings” baked into its existence. Rather than the passive aggressive “disappointment” that the CEO expresses there is a real opportunity for the directors to say “okay, what’s gone wrong here? How do we rebuild trust here?” Step one is, as you imply, at least stop pretending that this isn’t all fuelled by right wing ideology, Step two is to accept that hubris upon hubris upon hubris is completely unsustainable.
I say all this because I care
PS – to expand on my points in para 1. The OfS report “Bachelors’ degree
classification algorithms”, in point 19 of its introduction does NOT consider students simply working much harder as a cause of so-called “grade inflation.” Consideration is only given to improved teaching in this paragraph. The office for students appears to have difficulty interrogating the role that students own efforts have in facilitating their academic successes. To me this seems symptomatic of the approach with Sussex where a problem is identified and then only evidence which supports the initial view is considered.