R (on the application of the University of Sussex) v Office for Students: High Court overturns OfS's £585,000 fine against University of Sussex

R (on the application of the University of Sussex) v Office for Students: High Court overturns OfS's £585,000 fine against University of Sussex

On 29 April 2026, the Honourable Mrs Justice Lieven handed down judgment in the judicial review case of R (on the application of the University of Sussex) v Office for Students.[1]  This case was the culmination of a significant dispute between the University of Sussex and the OfS, and has important ramifications for higher education institutions, as well as perhaps for Royal Charter bodies more generally.

Background

In October 2021, the OfS commenced an investigation into the University of Sussex (the 'University'), linked to the departure of Professor Kathleen Stock, a feminist professor in the School of History, Art History and Philosophy, following protests by students over her views on sex and gender.   There had been a widely publicised student campaign against Professor Stock, including abusive comments in a public Facebook group and protests calling for the termination of her employment.   This ultimately led to her resignation from the University in October 2021.  The University has expressed deep regret at the circumstances of her departure.  The court was not adjudicating on the events surrounding Professor Stock, nor on her treatment by the University. The OfS investigation, and the judicial review, concerned the University's policies and whether they were compatible with the conditions of registration.

The OfS raised concerns about the University's Trans and Non-Binary Equality Policy Statement, and in particular the 'Positive Representation Statement' that 'any materials within relevant courses and modules will positively represent trans people and trans lives', which the OfS considered to be inconsistent with academic freedom and freedom of speech.  Professor Stock herself had raised concerns about this statement as early as March 2019, and an independent reviewer subsequently recommended its removal.   The University accepted that this statement should not have been included and removed it in August 2022, shortly after the appointment of a new Vice-Chancellor.

Following a protracted investigation spanning approximately three and a half years, on 27 March 2025 the OfS announced its decision that the University was in breach of two registration conditions, and issued a £585,000 fine.  The University brought a claim for judicial review.

Governing documents

In its decision, the OfS took the view that the University's Trans and Non-Binary Equality Statement constituted a 'governing document' within the definition in s14(1) Higher Education and Research Act 2017 ('HERA').   All such governing documents must be consistent with a list of principles that the OfS considers will help to ensure that English higher education providers perform their functions in the public interest.

This decision had potentially far-reaching consequences for higher education providers, as it seemed vastly to expand the scope of 'governing documents' beyond that which was generally understood (ie an institution's articles of association, constitution, Royal Charter or equivalent).

It was held that the OfS had been wrong in law to treat the statement as a governing document.  The court also held that the OfS could not expand the scope of 'governing documents' by relying on its power under s5 HERA.

As we outline below, this decision will be welcomed by higher education providers as providing greater clarity on the scope of their own governing documents and the OfS' powers.

The role of the Visitor

The University claimed that the OfS did not have jurisdiction to find a breach of the University's internal laws, because this aspect of the University's governance was the purview of the Visitor, a constitutional role held by the King.

It was held that HERA gives the OfS an overlapping jurisdiction with the Visitor, a clarification that may be helpful to other higher education institutions with a similar structure, which might previously have been uncertain about the relationship between these supervisory positions.

Freedom of speech and academic freedom

In its investigation, the OfS found that the University was in breach of its obligations to preserve freedom of speech and academic freedom by having a policy that had the potential to restrict 'lawful speech'.  

The court held that this was an incorrect interpretation of the law.  Article 10 of the European Convention on Human Rights, which enshrines the right to freedom of expression, is a qualified right: it may lawfully be restricted where it is proportionate to do so, for example for the protection of the reputation or rights of others.  Both parties agreed that the correct approach to assessing compliance with the freedom of speech duty is the three-step framework set out in the OfS's own Regulatory Advice 24: 

1. is the speech within the law; 
2. (are there reasonably practicable steps to secure the speech; and 
3. are any restrictions prescribed by law and proportionate under the ECHR (judgment at [206])?

The OfS had failed to apply this framework in its decision, instead treating any restriction on 'lawful speech' as sufficient to find a breach, an approach described during the hearing as 'absolutist'.

The court noted that the proportionality of restrictions on freedom of speech was preserved by the University in a number of ways.  From 2023, the Policy Statement included a 'Safeguarding Statement' expressly providing that nothing in the policy should be taken to justify disproportionate restrictions on freedom of speech.  The Policy Statement was also subject to the University's Freedom of Speech Code of Practice ('FOSCOP'), which the court found the OfS had been Wednesbury irrational not to consider (meaning a decision so unreasonable that no reasonable person acting reasonably could have made it).

In relation to the Disciplinary Statement within the policy (which concerned transphobic abuse, harassment or bullying), the court observed that 'the aim of preventing harassment or bullying on the basis of transphobia, even it if it does not step over the line into unlawful action, is plainly a legitimate one'. This observation related to the University's policy aims and not to any characterisation of Professor Stock's speech or conduct.

In relation to academic freedom, the court found that the error of law was 'manifest'.  The OfS had treated the risk of disciplinary proceedings being brought against an academic as sufficient to constitute a breach of the academic freedom principle, which requires that academics not be placed 'in jeopardy of losing their jobs or privileges'.  The court held that, reading the University's documents as a whole, no academic was at risk of losing their job or privileges, and the OfS itself had accepted this.  The reliance on a potential 'chilling effect' and the risk of stress and anxiety were irrelevant considerations in respect of this purported breach.

The court did, however, find that the OfS was not irrational in concluding that the Policy Statement, read in isolation, was capable of having a 'significant and severe' chilling effect on freedom of speech.  The court noted the 'particular importance of protecting free speech under Article 10 ECHR' and acknowledged the OfS's specialist expertise as the statutory regulator.  The very nature of a chilling effect, the court observed, is that 'people may be unwilling to come forward and give specific evidence', and self-censoring 'may not even be done consciously'.  Nevertheless, Professor Stock's evidence was the only direct evidence of harm upon which the OfS relied, and the University described that evidence as 'minimal'.   The OfS had not sought evidence from any students at the University.  The University itself accepted that the Positive Representation Statement should never have been included in the policy and that it was right to remove it.  Taken together, the court's findings on these grounds have significant practical implications for higher education institutions.

Significance for Higher Education institutions

This is an important judgment for higher education institutions, as it makes clear:

• that the institution's suite of policies must be treated as a whole.  As noted above, the court found it was Wednesbury irrational of the OfS not to consider the University's FOSCOP when assessing compliance with condition E1; and
• that the right to freedom of expression does not prevent an institution from restricting speech under any circumstances, but rather requires that any such restriction be proportionate.  Institutions should ensure that their policies and decision-making processes are aligned with the three-step framework set out in Regulatory Advice 24, as discussed above.

Higher education institutions should note the court's finding that the OfS is legally required to consider whether breaches have been remedied before making findings and imposing sanctions. Under s.2(1)(g)(ii) HERA and the OfS's own Regulatory Framework, the question of whether a breach has been remedied is a 'mandatory material consideration' in deciding whether to make a formal finding and impose a sanction (judgment at [305]–[310]). The OfS cannot proceed to impose significant penalties whilst refusing to consider the up-to-date factual position, particularly where the institution has taken prompt steps to address the issues raised.

The judgment also provides practical guidance on the drafting of institutional policies. The court endorsed the approach of cross-referencing an institution's overarching free speech protections within other policy documents, as the University did from 2023 onwards through the inclusion of a Safeguarding Statement. Institutions would be well advised to ensure that their policies are clearly situated within the broader framework of their free speech obligations. The court's criticism of the OfS's refusal to negotiate settlement unless the University accepted all breaches in their entirety is also relevant context for any institution that may face an OfS investigation in future.

The OfS' approach to the investigation

It was held that the OfS' decision was vitiated by bias and that the OfS had approached the investigation with a closed mind.

In particular, it was apparent that the OfS was keen to find significant breaches by the University, to create a 'test case' to act as an example to other higher education institutions about the importance of freedom of speech.  Among its other actions, the OfS refused to enter into settlement negotiations unless the University admitted breach on all counts, and did not approach other universities that had in place the same policy as the University.  As discussed above, the OfS also failed to consider the FOSCOP or the various changes the University made to its policies during the course of the investigation.

This conclusion will come as a relief to higher education institutions, acting as a reminder that the OfS, like all public bodies, must approach its investigatory powers with an open mind and must not unlawfully predetermine its decisions.

Conclusion

This judicial review has provided important clarifications for higher education institutions about the role of the OfS and the obligations of universities in relation to freedom of speech and academic freedom.  While the court found significant errors in the OfS's legal analysis and decision-making process, it also affirmed the fundamental importance of protecting freedom of speech and academic freedom in universities, and the legitimacy of the OfS's regulatory role in this area.