News article
ÄûÃÊÊÓƵ wins Judicial Review against Office for Students
ÄûÃÊÊÓƵ Vice-Chancellor Sasha Roseneil
The ÄûÃÊÊÓƵ has won a resounding victory against the Office for Students (OfS) in the High Court, successfully overturning a £585,000 fine.
Below is a statement from our Vice-Chancellor and President of the ÄûÃÊÊÓƵ, Professor Sasha Roseneil, following the ruling:
Today is a good day for the ÄûÃÊÊÓƵ, and a good day for everyone who cares about the proper and effective governance and regulation of universities.
The High Court has issued its judgment in response to the Judicial Review sought by the ÄûÃÊÊÓƵ of the Office for Students’ (OfS) decision to find Sussex in breach of two conditions of registration and to fine the University an unprecedented £585,000.
The OfS had initiated its investigation into free speech matters at Sussex in the context of demonstrations against Dr Kathleen Stock in October 2021. Neither the investigation nor the Judicial Review were concerned with Dr Stock’s experience at Sussex, as the OfS did not have the power to investigate this. But they were concerned with Sussex’s protection of freedom of speech and academic freedom, and the Court has found emphatically in the University’s favour.
The University has always maintained that the OfS adopted an erroneous and absolutist approach to freedom of speech, that it deliberately ignored comprehensive protections of academic freedom and freedom of speech at Sussex, and that it prosecuted its torturous three and a half year long investigation with a ‘closed mind’.
The Court’s judgment 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.
The High Court found that the OfS erred in law in respect of its jurisdiction, in its interpretation of the law, and its understanding of freedom of speech and academic freedom, and that its process was fatally flawed by bias in the form of predetermination.
The key findings, quoting the judgment, are as follows:
First, the OfS acted beyond its powers with respect to the University’s Trans and Non-Binary Equality Policy Statement. Contrary to the OfS’ determination, and as argued by the University, the Policy Statement was not a ‘governing document’. In the words of The Honourable Mrs Justice Lieven, the OfS’s interpretation of governing documents ‘leads if not to absurdity then something very close to unworkability’.
Second, the OfS misunderstood the meaning of ‘freedom of speech within the law’ in treating any potential restriction of lawful speech as a breach of its regulatory requirements. The High Court found that the OfS’s absolutist conception of freedom of speech as applied in its Final Decision against Sussex was wrong and upheld the University’s understanding. This judgment affirms that universities can protect students and staff from bullying, abuse, and harassment, whilst also upholding and promoting freedom of speech and academic freedom.
Third, the OfS ‘misdirected itself’ on the question of academic freedom, confirming that Sussex had in place clear protections of academic freedom, and that the Policy Statement posed no threat to academic freedom at Sussex. The OfS’s ‘error in law’ was ‘manifest’, and it did not ‘read the relevant University documents as a whole’ ‘fairly and in accordance with a proper lawful interpretation’.
Fourth, the OfS was ‘irrational’ and ‘misdirected itself’ in failing to have proper regard to the University’s Freedom of Speech Code of Practice, its definitive statement on freedom of speech, which was ‘so plainly relevant’.
Fifth, the OfS was wrong not to have considered whether the alleged breaches had been remedied by the time it took its Final Decision. This was a failure to take into account a mandatory material consideration.
And, most importantly, the Final Decision as a whole ‘was vitiated by bias because the OfS approached the decision with a closed mind and had therefore unlawfully predetermined the decision’.
In this detailed and damning finding, the Court considered the conduct of the OfS and its key officers throughout the whole process of investigation. The Honourable Mrs Justice Lieven found that the OfS had operated with a ‘closed mind’. It had intended from the outset to make an example of Sussex, to issue a strong sanction, and to secure a high level of publicity for its actions. This was not ‘the basis for a fair investigative process’.
The OfS’s approach both to settlement negotiations, and to other HE providers that were using the same policy statement, against whom it took no action, were also ‘strongly indicative of a determination to pursue a strategy which rested upon finding significant breaches by the University’.
Further indicators of the OfS’s predetermination were its failure to consider Sussex’s Freedom of Speech Code of Practice and its ‘refusal’ to consider whether actions taken by the University meant it had remedied the supposed breaches.
Moreover, there was no evidence that the ‘ÄûÃÊÊÓƵ Enforcement and Compliance Committee’, composed of members of the Board of the OfS, questioned the officers, or raised any concerns in making the Final Decision against Sussex. It simply adopted, in its entirety, the material put before it by the OfS officials. The Honourable Mrs Justice Lieven observed that ‘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’.
I will today seek a meeting with the Secretary of State for Education to discuss this excoriating judgment and its implications for the higher education sector. We need a regulator that can be trusted, that properly understands freedom of speech, academic freedom, lawful commitments to inclusion, and the scope of its own powers. We need a regulator that works with the sector, not against it - in the interests of the students of today and of the future. I stand ready to work with the government to find better ways to regulate and support universities in serving the public good.
Meanwhile, I am delighted that Sussex’s foundational commitments to academic freedom and freedom of speech have been recognised by the High Court, and that the OfS’s egregious decision against the University, and the fine it sought to impose, have been overturned.
The ÄûÃÊÊÓƵ has a proud history of being the place where the most contentious issues of the day are aired – where independent-minded, critical thinkers develop their ideas, and where lively and engaged students work out how they understand the world.
We will continue to focus on creating an open, inclusive, and respectful campus culture in which differences of opinion can be expressed and explored, and in which students and staff of all backgrounds, beliefs and identities are able to flourish.