The University of Sussex, R (on the application of) v The Office for Students

“Governing documents” in Higher Education and Research Act 2017 s 14 means constitutional and governance instruments, not every institutional policy. The Office for Students may nevertheless exercise jurisdiction which overlaps with visitorial jurisdiction where that is necessarily implied by the statutory scheme.

A policy affecting freedom of speech must be read as a whole and objectively. Lawful speech may be restricted where reasonably practicable steps cannot secure it or the restriction is proportionate under Article 10. Academic freedom is not infringed merely because disciplinary proceedings or adverse effects are possible where lawful application of the governing instruments prevents jeopardy to employment or privileges. A regulator must consider whether an alleged breach has been remedied and must approach the decision with an open mind.

The University of Sussex sought judicial review of the Office for Students’ decision dated 27 March 2025. The OfS found breaches of registration conditions E1 and E2(i) under Higher Education and Research Act 2017 and imposed a monetary penalty of £585,000.

The challenge concerned the status of the University’s Trans and Non-Binary Equality Policy Statement, the relationship between the OfS’s powers and the King’s visitorial jurisdiction, the interpretation of freedom of speech and academic freedom, the treatment of related policies and later amendments, procedural fairness, the assessment of harm, and alleged apparent bias or predetermination.

1. Ground 1 succeeded. The Policy Statement was not a “governing document” for the purposes of Higher Education and Research Act 2017 s 14(1). The expression referred principally to documents establishing the constitution and governance of the provider. The OfS’s broader interpretation was inconsistent with the statutory context, legislative history and the transfer of the Privy Council’s former oversight. Condition E1 was therefore ultra vires insofar as it concerned the Policy Statement.
2. The OfS could not use the general power in s 5 to achieve what the specific provisions in ss 13 and 14 did not authorise.
3. Ground 2 failed. HERA necessarily implied some intrusion into visitorial jurisdiction because s 14 gave the OfS jurisdiction over governing documents. The OfS therefore had vires to make conditions which scrutinised matters formerly within the Visitors’ exclusive jurisdiction, including compliance with internal governance arrangements.
4. Grounds 3D, 3C and 4 succeeded. Freedom of speech “within the law” required consideration of reasonably practicable steps and proportionality under Article 10. The OfS erred by treating the possibility that a policy might capture lawful speech as sufficient to establish breach. The Policy Statement had to be read as a whole, including its Safeguarding Statement and the Freedom of Speech Code of Practice.
5. The academic freedom PIGP concerned jeopardy of losing employment or privileges. It did not extend to the mere possibility of disciplinary proceedings, stress, anxiety, reputational damage or a chilling effect where the University’s instruments, properly construed, prevented an adverse employment outcome.
6. Ground 3A succeeded. FOSCOP was a plainly material document and the OfS failed expressly to address its protective provisions.
7. Ground 5A succeeded. Whether an alleged breach had been remedied was a mandatory material consideration under HERA, the Regulatory Framework and Regulatory Advice 15. The OfS unlawfully failed to consider the 2024 documents before imposing the penalty.
8. Ground 6A failed. Procedural fairness did not require disclosure of Professor Stock’s second witness statement because it raised no sufficiently new issue and the University had a fair opportunity to answer the case.
9. Grounds 5E and 5B failed. The OfS was entitled, subject to its legal errors, to regard the Policy Statement in isolation as capable of producing significant and severe harm. The alleged competitive effect required no separate express treatment.
10. Ground 6C succeeded. The OfS’s decision was vitiated by predetermination. The investigation was pursued as a test case intended to incentivise the sector, settlement was approached on the basis that breaches had to be admitted, later compliance was excluded, and FOSCOP was not addressed. The independent committee adopted the officers’ material without sufficient independent consideration. The Final Decision was therefore unlawful.