Can judicial review force OfS to regulate bible colleges?

As the Guardian reports, the NSS argues that the colleges are ineligible for public funding or government-backed student loans because their commitment to theological doctrine is incompatible with OfS requirements on academic freedom and freedom of expression.

The organisation says the 12 providers have received more than £80m through the Student Loans Company and £1m in OfS funding since 2018.

None of this should come as a surprise. Back in July I looked at a clutch of these providers – including Moorlands College, Birmingham Christian College and Christ the Redeemer College – whose governing documents and codes of conduct explicitly restrict academic freedom, require adherence to statements of faith, and in some cases police students’ personal conduct in ways that sit very uncomfortably with the regulatory framework.

The NSS told us then that it had reported 12 providers and heard nothing back. As the society’s Stephen Evans puts it – as far as they can tell, nothing appears to have been done about it.

OfS says it can’t comment because of the pending legal action. But the real question is whether judicial review can actually force a regulator to regulate.

The short answer is yes – in principle. The long answer is more nuanced, but probably still encouraging for the NSS.

The classic case is Padfield v Minister of Agriculture (1968), where the House of Lords held that a minister’s discretion could be reviewed where a refusal to act would frustrate the policy and objects of the statute.

More recently, the UK Supreme Court’s decision in McAleenon [2024] – a case about emissions from a landfill site in Northern Ireland – reinforced the principle that regulators can be judicially reviewed for inaction, not just for positive decisions.

Crucially, the Court held that the existence of other remedies against other parties does not block a judicial review claim about whether the regulator itself has fulfilled its statutory duties.

And in R (ClientEarth) v Secretary of State for the Environment, the Supreme Court went further – requiring the government to produce compliant air quality plans by a fixed deadline.

In practice, though, courts don’t usually tell a regulator what to do. They are more likely to declare that the failure to act was unlawful, quash the decision not to investigate, and send the matter back for reconsideration. That preserves regulatory discretion while ensuring that statutory duties aren’t quietly abandoned.

For the NSS, that may be enough. A court declaring that OfS unlawfully failed to investigate would be pretty embarrassing for a regulator that found the time to fine Sussex £585,000 over an internal policy document – while apparently ignoring bible colleges whose founding documents appear to explicitly and permanently restrict the freedoms OfS is supposed to protect.

It’s also worth noting the timing. OfS is already waiting on a high court judgment in the Sussex case. The prospect of a second front – this time framed as a failure to act rather than overreach – would raise even more uncomfortable questions about whether OfS applies its regulatory framework consistently, or just when it’s politically convenient.