The High Court has overturned the Office for Students’ (OfS) decision to issue a fine against a university for failing to secure freedom of speech in a high-profile judgment for the higher education sector.

The university regulator’s £585,000 fine against the University of Sussex in March last year had been the largest ever and came in the wake of campus protests against gender critical views and the resignation of Professor Kathleen Stock.

OfS had issued the fine based on its view that the university had breached public interest governance conditions, and consequently OfS conditions of registration, in relation to free speech. The OfS based its findings on the university’s Trans and Non-Binary Equality Statement, equating the policy to a “governing document”.

But in today’s ruling, the High Court rejected many of the OfS’ reasons for implementing the fine .

Trish D’Souza, Legal Director in the education team at UK and Ireland law firm Browne Jacobson, said: “The judgment is clear that the court considers OfS to have acted beyond its powers in its expansive interpretation of the conditions of registration and the procedure adopted in its enforcement action.

“The High Court has confirmed that not every university policy governs how a provider operates and therefore does not amount to a governing document (unlike charters, statutes and articles). Compliance with free speech obligations must include consideration of a university’s freedom of speech code, even if not expressly referenced within each policy, and the proportionality of any measures which potentially interfere with lawful freedom of expression taken into account.

“Even where the OfS has jurisdiction, it must act fairly, openly and without predetermination. The finding that the OfS acted with apparent bias is striking and this undermined the entire decision-making process. This underlines that enforcement can’t be driven by a desire to ‘send a message’.

“The judgment will have wide ramifications across the sector, for institutions seeking further guidance on what freedom of speech ‘within the law’ means in context, and in how the judgment outcomes are taken into account in the forthcoming regulations to bring the OfS’ complaints scheme into force.

“While the court ruled that academics should not be in danger of losing their jobs as a result of exercising such freedoms, it distinguished this from a university’s right to instigate disciplinary proceedings.

“Beyond the free‑speech headlines, this is a significant public law ruling that reins in regulatory overreach, and confirms the OfS will be held strictly to the limits of its statutory powers and its own published regulatory framework. 

"The court’s finding of institutional predetermination and that the OfS proceeded with a closed mind, is particularly striking. This judgment signals that ‘test case’ enforcement strategies can fatally undermine the lawfulness of regulatory decisions.”