University of Sussex judicial review into OfS freedom of speech decision: Legal comment

The University of Sussex’s High Court challenge against the Office for Students’ (OfS) decision to issue a £585,000 fine. 

Last week, Sussex commenced its judicial review application, challenging the regulator’s decision to issue a substantial fine for non-compliance with conditions of registration, related to the duty to secure free speech. 

The court has been asked to consider whether: 

• the OfS had exceeded its statutory powers in issuing the fine;
• the position of a chartered university with Visitor jurisdiction in its governing documents should be distinguished from other universities; 
• the regulator was correct to regard a policy as a governing document; 
• and whether the investigation was even-handed.

The regulatory action came in the wake of Kathleen Stock’s resignation in 2021 and events on campus related to the expression of gender-critical and gender-affirmative views. 

The university argues the OfS was wrong to penalise it for its Trans and Non-Binary Equality Policy Statement. It claims the watchdog is only permitted to scrutinise “governing documents” of an institution under the remit of the Higher Education and Research Act 2017. 

Trish D’Souza, Legal Director in the education team at UK and Ireland law firm Browne Jacobson, said: “The University of Sussex has announced it is taking legal action against the OfS, launching a judicial review to contest the regulator’s decision-making process in imposing a £585,000 fine. The penalty was issued after Sussex adopted a transgender policy which, according to the OfS, failed to uphold freedom of speech and academic freedom, as well as failings in the university’s management and governance processes.

“The university argues that the OfS exceeded its powers – acting ultra vires – by scrutinising a policy it claims does not form part of its official governing documents and therefore should not have been considered when the fine was imposed. Sussex also contends the OfS acted irrationally or unreasonably by singling out its policy, which it considers is similar to those at other higher education institutions.

“For the case to proceed to a full hearing, Sussex must first demonstrate it has an arguable case. The court may consider whether a transgender policy can be regarded as part of a provider’s governing documents should be explored in a public hearing. 

“Should Sussex succeed at the substantive hearing, the court could quash the OfS’s decision, forcing the regulator to reconsider the fine based on a narrower interpretation of what it constitutes governing documents.”