Freedom of speech in HE - why the High Court overturned the OfS’ £585,000 fine against University of Sussex

In its judgment published on 29 April 2026, the Court decided that the OfS had erred in law, both when finding that Sussex had breached these conditions of registration and when it decided to impose the fine. In particular, the Court ruled that the OfS had misdirected itself as to what counted as Sussex’s “governing documents” for these purposes; had misdirected itself on the meaning of freedom of speech within the law and what amounted to a breach of academic freedom; and had failed to consider, before imposing its fine, whether the breaches it had identified had been remedied by the time of its final decision. The Court also held that the OfS’ decision was vitiated by bias because the OfS approached its investigation with a closed mind, unlawfully predetermining the outcome.

The decision is highly significant for HEIs in England which are registered with the OfS, because it impacts the OfS’ regulatory framework, the interpretation of key conditions of registration, the obligations of registered providers in relation to free speech and academic freedom, and how conditions of registration are regulated and enforced by the OFS.

Background to the case

The focus of the OfS’ decision was a Trans and Non-Binary Equality Policy Statement first adopted by Sussex in 2018. In its original wording, this Policy Statement contained provisions that were labelled by the OfS in its March 2025 decision as follows:

• we the Stereotyping Statement - “The curriculum shall not rely on or reinforce stereotypical assumptions about trans people”

• the Positive Representation Statement – “any materials within relevant courses and modules will positively represent trans people and trans lives”

• the Disciplinary Statement – “Transphobic abuse, harassment or bullying (name-calling/ derogatory jokes, unacceptable or unwanted behaviour, intrusive questions) are serious disciplinary offences for staff and students and will be dealt with under the appropriate University procedures.”

• The Propaganda Statement – “Transphobic propaganda, in the form of written materials, graffiti, music or speeches, will not be tolerated. We undertake to remove any such propaganda whenever it appears on the premises.”

The Policy Statement was amended by Sussex in 2022, 2023 and 2024, after the OfS’ investigation began. The changes are helpfully set out at paragraphs 81 to 90 of the Court’s decision. These included the removal of the Positive Representation Statement in 2022, which Sussex accepted had been in breach of the principles of freedom of speech and academic freedom. Changes to the Disciplinary Statement and Propaganda Statement were made in 2023, alongside the introduction of a Safeguarding Statement, which made reference to Sussex’s obligations in relation to free speech and academic freedom within the law and stated that:

“For the avoidance of doubt, nothing in this Policy Statement should be taken to justify sanctioning academic staff for questioning or testing received wisdom or putting forward new ideas including controversial or unpopular opinions within the law, nor should this Policy Statement be taken to justify disproportionate restrictions on freedom of speech. Any person concerned that their rights of academic freedom or freedom of speech have been unjustifiably restricted may lodge a complaint.”

The Policy Statement was amended again in 2024 but the OfS did not take these changes into account in reaching its March 2025 decision. Indeed, the OfS reserved its position on whether the Policy Statement was now compliant. In its judicial review application, Sussex argued successfully that the OfS had acted unlawfully by not assessing whether this version remedied the regulatory breaches it had found.

The OfS’ investigation into Sussex’s compliance with its conditions of registration began in the wake of the well-publicised situation involving Professor Kathleen Stock and her resignation from her employment with Sussex. While that was the context for the OfS investigation, it is important to highlight that the OfS did not investigate her treatment by the University. Its focus was on the Policy Statement and whether its contents, and its adoption by Sussex, were compatible with the conditions of registration. The High Court judgment itself was concerned with “whether the OfS erred in law, either in respect of its jurisdiction, its interpretation of the law, or the lawfulness of its process”. 

The OfS found that Sussex had breached:

• Condition E1: Public interest governance – “the provider’s governing documents must uphold the public interest governance principles that are applicable to the provider.”

• The OfS decided that the Policy Statement breached the public interest governance principles by not securing freedom of speech, and academic freedom, within the law

• Condition E2 (i): Management and governance – “The provider must have in place adequate and effective management and governance arrangements to (i) operate in accordance with its governing documents.”

Sussex was fined £360,000 for breaching Condition E1 and £225,000 for breaching Condition E2 (i).

What are a registered provider’s governing documents?

The definition of “governing documents” was a fundamental issue in Sussex’s challenge to the fine for breaching Condition E1.

There is no definition of “governing documents” in HERA 2017, the legislation which established the OfS and gives it the power to set conditions of registration, including the public interest governance conditions with which a provider’s governing documents must be consistent.

However, the Regulatory Framework published by the OfS in 2018, and which includes the initial and ongoing conditions of registration, takes a wide approach:

“ ‘Governing documents’ means the documents adopted, or that should have been adopted by the provider, that describe any of the provider’s objectives or values, its powers, who has a role in decision making within the provider, how the provider takes decisions about how to exercise its functions, or how it monitors their exercise. This test will be broadly rather than narrowly applied. Where a document in part deals with any such matters, and in part with other matters, the whole of the document is a ‘governing document’” (Paragraph 424)

“Depending on the legal form of the provider its ‘governing documents’ may include a Royal Charter, Statutes and Ordinances, articles of association, or Instruments of Government and/or a trust deed or deeds. They are also likely to include documents such as schemes of delegation, terms of reference of committees to which significant functions have been delegated, the provider’s policies on matters such as management of conflicts of interest, support for freedom of speech or academic freedom, and/or member/shareholder agreements where these may influence the operation of the provider”. (paragraph 425)

Under this approach, the OfS treated the Policy Statement, adopted and maintained by Sussex from 2018, as a “governing document”.

Sussex successfully argued that this approach was wrong, that a narrower definition applies, and that the Policy Statement was not a “governing document”. As a result, the Court held that the OfS had no jurisdiction to find that Sussex had breached Condition E1, since the Policy Statement was outside the scope of that Condition.

The Court agreed with Sussex that “governing documents” should be given an ordinary and natural meaning which tended towards a narrow interpretation. In addition, the legislative history of HERA (including a prior Green Paper, White Paper and Consultation documents) demonstrated very strongly that Parliament had intended the term “governing documents” to have a narrow scope, replicating the position under the Education Reform Act 1988. It had been assumed in the Parliamentary passage of HERA that “governing documents” meant documents which under that earlier legislation had to be approved by the Privy Council, such as Charters and Statutes, Instruments of Government and Articles of Government.

The Court considered that the interpretation advanced by the OfS “leads if not to absurdity then something very close to unworkability” and was much broader than the OfS actually used when reviewing and approving “governing documents” before registering a provider.

This aspect of the decision will be a relief to HEIs registered with the OfS, because it significantly narrows the regulatory scope and impact of Condition E1. It will also mean that the OfS will need to revise its Regulatory Framework to adopt the narrower definition approved by the Court.

However, this decision does not necessarily mean that HEI policies, including those relating to EDI issues, cannot be scrutinised by the OfS to ensure that they uphold freedom of speech and academic freedom within the law. The Court’s focus was on the OfS’ decision that Sussex’s Policy Statement breached Conditions E1 and E2 (i). The OfS did not find that, or appear to consider whether, the Policy Statement breached Condition E2 (ii) – “The provider must have in place adequate and effective management and governance arrangements to … (ii) deliver, in practice, the public interest governance principles that are applicable to it.” Our view is that even if an EDI Policy is not in itself a “governing document”, the issue of whether it, and its application, is compatible with obligations in relation to free speech and academic freedom is one that is within the scope of Condition E2 (ii).

In addition, the Court’s decision acknowledged that, “if the OfS had been concerned that the University were not upholding freedom of speech in breach of [their obligations], this was an issue they could have lawfully raised with the University, without pursuing an investigation and finding of breach of condition E1 specifically in relation to the Policy Statement.”

Freedom of speech and academic freedom

The Court found that the OfS had misdirected itself in respect of both “freedom of speech within the law” and “academic freedom”.

The meaning of these terms is obviously critical in understanding the obligations of registered HEI providers under their Conditions of Registration and the legislative framework which applies following the Higher Education (Freedom of Speech) Act 2023, as well as for the operation of the OfS complaints scheme which will be introduced later this year.

In the wake of the fine imposed by the OfS, Sussex’s Vice-Chancellor criticised the OfS for having taken what she called an “absolutist approach” to free speech, under which the only lawful restrictions on speech are those imposed by criminal or civil legislation. Under that approach, universities would not be able to regulate speech by introducing their own additional restrictions in internal policies and codes of conduct. That would mean, for example, that universities could not apply the Equality Act definition of harassment in relation to the conduct of one student towards another, because the Equality Act does not apply to those interactions and so cannot itself make them unlawful. We would note, however, that the OfS’ guidance on Condition E6 in relation to harassment acknowledges that HEIs may, in principle, adopt the Equality Act definition of harassment in their student conduct policies, if they are satisfied that this a proportionate restriction on otherwise lawful speech.

Turning back to the Sussex case, the Court’s view in relation to freedom of speech “within the law” was that criminal and civil legislation are not the only ways in which the law restricts speech. The Court cited these comments in the earlier High Court decision in R (Miller) v College of Policing:

“there are a great many areas of common law, which lawfully interfere with free speech rights, and are unsupported by primary legislation - common law contempt of court and common law breach of confidence being two such examples. It is not the case, therefore that as a matter of principle, any interference with free speech can only be lawful if there is a statutory basis for it. Indeed if there were such a principle, this would be a much more stringent restriction upon executive action than articles 8 and 10 of the Convention, and large swathes of the common law would become inoperable.”

The Court also noted that, during the proceedings, both the OfS and Sussex appeared to have shifted their positions on the meaning of “freedom of speech within the law” and whether, and on what basis, restrictions on speech beyond those already imposed by the law are permissible. However, both the OfS and Sussex had ultimately arrived at a common position, agreeing for example that the approach set out in the OfS’ Regulatory Advice 24 correctly sets out the steps that have to be undertaken for the duty to secure freedom of speech to be met:

• “Step 1: Is the speech ‘within the law’? …

• Step 2: Are there any ‘reasonably practicable steps’ to secure the speech? If yes, take those steps. Do not restrict the speech …

• Step 3: Are any restrictions ‘prescribed by law’ and proportionate under the European Convention on Human Rights?”

The Court rejected arguments by the Free Speech Union, which intervened in the proceedings, that Step 3 of this test was incorrect and unnecessary.

Under this framework, a registered HEI will have complied with the duty under Condition E1 and the

public interest governance principles, including in relation to any restrictions on speech not required by legislation or the civil law, “if it has taken reasonably practicable steps to secure the speech, and has acted proportionately in any restrictions it imposes on freedom of speech.”

Although Sussex and the OfS ultimately agreed on the legal and regulatory framework, Sussex argued that the OfS had in practice applied an “absolutist approach”, i.e. that it had treated any actual or potential interference with lawful speech in the Policy Statement as a breach of Condition E1. This argument involved close scrutiny of the detailed findings the OfS made in relation to the four aspects of the Policy Statement highlighted above. The Court agreed that the OfS had misdirected itself by focusing on the fact that the Policy Statement might capture “lawful speech”, without considering the full 3 Step approach outlined above. The OfS had not properly considered whether it was legitimate for the Policy Statement to restrict “lawful speech”, either on the basis that it was not reasonably practicable to protect it or because such a restriction would be justified under Article 10(2) ECHR.

The Court also agreed with Sussex that, to determine whether the Policy Statement breached the regulatory obligations regarding freedom of speech, that document had to be read as a whole (rather than focusing on individual sentences or passages) and alongside other documents such as Sussex’s Code of Practice on Freedom of Speech and its disciplinary procedures and the protections these gave for free speech and academic freedom within the law. These documents had to be interpreted objectively and ultimately it was for the Court to make that objective assessment (not the OfS or Sussex). In particular, the Court found that the OfS had acted irrationally by failing to have regard to Sussex’s Code of Practice on Freedom of Speech, despite its status as a university’s “definitive statement” on freedom of speech. The OfS decision had made no reference to this Code of Practice and did not explain whether, and if so why, the OfS did not accept the representations Sussex had made to the OfS about the relevance and effect of its Code of Practice.

The Court also found that the OfS had misdirected itself in respect to academic freedom within the law. The OfS had found that the Policy Statement could lead to disciplinary proceedings against a staff member and that, even if they were not ultimately dismissed, those proceedings could cause detrimental effects such as stress, anxiety and reputational damage. The OfS held that, while provisions in Sussex’s Statutes protected academic freedom in relation to dismissal, these did not protect academic staff against the adverse consequences of being subjected to disciplinary proceedings in the first place, and that fear of those consequences could have a chilling effect on academic freedom and freedom of speech.

The Court found the OfS’ approach to be a “manifest” error of law. The scope of the protection for academic freedom - in terms of “freedom within the law to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy of losing their jobs” – did not include “the jeopardy of disciplinary proceedings or of other detrimental effects, such as psychological impacts; nor does it include a ‘chilling effect’, however harmful that may be to freedom of speech, or indeed academic freedom”. The risk that the safeguards for academic freedom in Sussex’s Statutes and disciplinary processes might be wrongly applied in practice was not legally relevant – the position had to be assessed on the basis that Sussex would act lawfully when applying them.

The OfS had accepted that if Sussex’s relevant documents (not just the Policy Statement) were read as a whole, and objectively, an academic would not be at risk of losing their job or privileges by reason of anything in the Policy Statement. The Judge commented “in my view that is the end of the matter”.

Whether the OfS’ decisions on breach and sanctions were lawful

The main finding by the Court on this aspect of the case was that the OfS was wrong not to have considered whether the alleged breaches had been remedied by the time of its Final Decision in March 2025.

The Court’s analysis started with the OfS’ general duties in section 2 of HERA, which include the general duty, when performing its functions, to have regard to “the need to use the OfS’ resources in an efficient, effective and economic way” and to undertake regulatory activities in a proportionate manner, “targeted only at cases in which action is needed”. The Court also reviewed the Intervention Factors set out in paragraph 167 of the OfS’ Regulatory Framework. These state that, before deciding to intervene and on the form of any intervention, the OfS will consider, for example:

• “The nature of the increased risk or breach and whether a particular intervention would be effective in mitigating the risk or remedying the breach”

• “Steps taken by the provider to mitigate the increased risk or remedy the breach. An intervention is more likely to be used where a provider has not provided sufficient evidence that it has taken reasonable steps to mitigate an increased risk or prevent or remedy a breach” 

• “The likelihood that a breach could happen again, including the provider’s history of regulatory compliance. An intervention is more likely to be used where a provider has a history of non- compliance or the OfS has concerns that a breach could happen again.”

The OfS’ Regulatory Advice 15 also states:

“73. The primary purpose of using our enforcement powers is to ensure that a provider takes necessary actions to comply with its conditions of registration. This is particularly important because a breach of one or more conditions means that there is likely to be a material impact on a provider’s students and our view is that a breach must be remedied as quickly as possible. Where a breach is not remedied in a reasonable timescale, the OfS would expect to escalate its interventions in a way that is proportionate to the provider’s circumstances and the risks to students.”

Sussex argued that it was mandatory for the OfS to consider whether the alleged breaches had been remedied and highlighted that it had responded to the OfS’ Provisional Decision by taking immediate action to make further amendments to the Policy Statement, its Code of practice on Freedom of Speech and External Speakers Procedure. It argued that it was beyond doubt that the breach of Condition E2(i) had been remedied 10 months before the OfS’ Final Decision and that any breaches of Condition E1 had been remedied by the 2024 amendments to the Policy Statement, and that this had not been referred to in the OfS’ decision.

The Court agreed that these issues should have been taken into account by the OfS before it decided whether there had been a breach of conditions of registration and before any sanction was decided. There had been more than sufficient time in the 10 months before the OfS made its final decision for it to have considered whether any breaches had been remedied. The OfS had proceeded to impose a £585,000 fine without considering the up-to-date compliance position. The OfS’ decision made clear that its findings of breach, and the decision to impose a significant fine, had been made to create a strong incentive for Sussex and other providers to comply with the conditions of registration. The Court decided that this was not a lawful basis for proceeding to a decision if the breach had already been remedied.

The Court also commented that, having regard to HERA 2017, the Regulatory Framework and Regulatory Advice 15, it would also have been wrong in law for the OfS to have made a finding of breach and to have then considered the issue of whether the breach had been remedied when deciding on sanction. Whether any breach had been remedied was a factor to be taken into account at both stages of the OfS’ decision-making process.

The Court found in favour of the OfS on other aspects of this issue:

• the OfS had not disclosed to Sussex a second witness statement it had received from Professor Stock and Sussex had not been able to comment on this before the Final Decision was made. The Court agreed with the OfS that there had to be a point of finality in the process and commented that this witness statement did not raise issues that were new and sufficiently different to those on which Sussex had already commented.

• if the Policy Statement had been a governing document and had breached free speech obligations, the OfS would have acted reasonably in concluding that the harm caused was “significant and severe” and taking that into account as a factor in deciding whether to make a formal finding of breach. Sussex argued that there was no evidence that the Policy Statement had actually had any chilling effect on free speech but the Court held that such evidence was not necessary. The OfS’ decision that the Policy Statement caused “significant and severe harm” could only be overturned if it met the legal test for irrationality. This was a very high bar for Sussex to clear and had not been met - in principle (and subject to the Court’s decision on the other grounds of challenge) it was not irrational under the relevant legal test for the OfS to conclude that the Policy Statement, read in isolation, could have a significant and severe effect on freedom of speech because of its “chilling effect”.

• the Court rejected Sussex’s argument that the OfS had failed to take into account the “anti-competitive” effect of its decision. The Court regarded this argument as without merit. An investigation by the OfS and a lawful finding of breach would necessarily have a negative impact on a university and, in that sense, on its competitive position.

Apparent Bias and Predetermination

The Court rejected Sussex’s argument that the OfS’ decision had been vitiated by apparent bias on the part of Dr Arif Ahmed, given his role as Director of Freedom of Speech and Academic Freedom at the OfS and the effective head of the OfS investigation team from October 2024, and his personal connection with Professor Stock, who was the only witness relied on by the OfS in its Final Decision. He had expressed clear support for Professor Stock and he had been critical of her opponents and voiced strong criticism of Sussex and what he perceived to be their lack of support for her. When he was first appointed, the OfS decided he should not be involved in its investigation of Sussex because he could have a conflict of interest. The Court considered that, in that context, it was surprising that he was later appointed to effectively lead the investigation team.

The Court considered that, if he had been the decision maker, there would have been a real issue of bias. However, he was not and had become involved in the process after the Provisional Decision had been issued. His role in the Final Decision was not sufficiently central for any personal bias he may have had to vitiate the decision.

However, the Court accepted Sussex’s argument that the OfS had predetermined the outcome of its process and had not made its decision with an open mind to the degree required in law. The evidence made clear that the OfS had been looking for a test case that would “send a strong signal about the importance of free speech” and that its position was that if it found a breach and imposed a sanction that would “create clear compliance incentives and expectations”. The Court found that although the OfS’ then Chief Executive, Susan Lapworth was not the decision maker, her involvement in the investigation was “both intense and overarching, and the entire process was shaped by her” and her “mindset from the outset appears to have been that she wished to use [Sussex] as a tool to incentivise the rest of the sector”. The evidence “pointed to a fixed intent to find [Sussex] in breach of the conditions, in order for the case to have its requisite incentivising effect on the sector”. The Court found that this was “plainly the wrong starting point” for a fair investigative process.

Further indications of the OfS predetermining the outcome of its investigation were:

• the OfS’ approach to settlement negotiations, refusing (well before its Provisional Decision was issued) to discuss settlement with Sussex unless it accepted the alleged breaches in their entirety

• the OfS’ approach to other HE providers that were using the same policy as Sussex. The Court considered that, if the OfS’ principal concern had been to change the Policy Statement itself, and secure freedom of speech and academic freedom in other HE providers, “the quickest and most effective measure would have been to find out which HE providers were using the offending policy and communicate with them”. The Court found that it was effectively admitted by the OfS that they did not take that course of action, because they wanted to use Sussex as an example to incentivise others 

• the OfS’ failure to refer to Sussex’s Code of Practice on Freedom of Speech, which was “highly indicative of a closed mind” given its status as Sussex’s “definitive and up to date statement” on the correct approach to free speech

• the OfS’ refusal to consider whether the Sussex had remedied any breaches in its 2024 version of the Policy Statement and in the manner in which that version was approved. This failure “strongly suggests that the OfS was determined to find significant breaches and therefore had no wish to consider whether the University had now complied. 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”.

The Court concluded that the “informed and not unduly suspicious observer would … 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 [Sussex’s] position”.

Summary

This is clearly a significant decision. Aside from the fact that a significant fine was overturned, the sector will take comfort from the Court’s narrow interpretation of “governing documents” and confirmation of the correct approach when assessing whether freedom of speech within the law has been infringed. The recognition that – subject to Steps 2 and 3 of the framework set out in Regulatory advice 24 – it is permissible, in principle, to adopt proportionate restrictions on freedom of speech and academic freedom which go further than legislation or the common law, is also helpful.

It is not yet clear how this decision will impact the OfS’ regulatory approach and enforcement strategy.

However, freedom of speech and academic freedom, including their impact on staff and student EDI policies, will undoubtedly continue to be a key area of focus and risk in the sector. As indicated earlier in this briefing, HEIs subject to the OfS Conditions of Registration need to be aware that, even if such policies are not “governing documents” in themselves, their contents and how they are applied will still be relevant to compliance with Condition E2 as a whole, as well as to the legal obligations applicable under HERA 2017 as amended by the 2023 Act.

Other forthcoming regulatory developments increase the scope for challenge in these areas and provide other pathways for the OfS to take enforcement action. On 20 April 2026, the Education Secretary announced two key measures:

• the new OfS Complaints Scheme will be introduced at the start of the new academic year. This will enable university staff, external speakers and non-student members to raise concerns about providers who fail to protect freedom of speech. Regulations are expected in June. The announcement states that the OfS “will then investigate claims and recommend that universities review decisions, pay compensation or alter their processes, helping to restore the integrity of universities as rigorous centres of intellectual debate.”

• new Conditions of Registration will be introduced from April 2027, under which the OfS will be able to fine universities for breaches of their duties under the Higher Education (Freedom of Speech) Act. The potential fines are significant – the higher of £500,000 or 2% of income – and in the most serious cases, there is the risk of deregistration and the consequential loss of access to student support funding or public grant funding.

We will provide further updates on those measures in due course.