The recent judicial review in the High Court of Justice (King’s Bench Division, Administrative Court – with Justice Lieven presiding) did not directly concern who was in the right and who was in the wrong regarding the substantive matter of Kathleen Stock’s experiences of a “chilling effect” at the University of Sussex.
Rather – and by design – it examined the processes, powers, and principles relied upon by the Office for Students to come to the decision to make a regulatory finding of non-compliance with ongoing registration conditions E1 and E2, and thus to issue a record fine of £585,000.
That’s what judicial reviews do. It’s not a matter of reworking the investigation – or making a substantive judgement on the merits or otherwise of any version of the Sussex Trans and Non-Binary Equality Policy Statement (TNBEPS) – it is a matter of procedure.
It may sound like this would be deadly dull. Lawyers arguing at length as to whether particular letters have been appropriately adorned with dots and or crosses doesn’t sound like big box office.
But the arguments and rebuttals presented by Monica Carss-Frisk for OfS, and by Chris Butler and Katy Sheridan for Sussex had a poetry of their own – and the entire three days made for compelling viewing.
I can’t hope to cover everything that was said in a single article – likewise, I am no lawyer so I cannot offer any expert commentary. But these – to me – are the things that are likely to be particularly interesting for ministers and the whole sector when Justice Lieven releases her written judgement in a few weeks time.
Does OfS actually have the power to make decisions concerning governing documents?
So, on the face of it, ongoing condition of registration E1 (that the governing documents uphold the public interest governance principles) and E2 (adequate management of governance arrangements and complying with governing documents) give the Office for Students the right to get stuck into your university’s governing documents. Whether it is a matter of those documents having the right things in them about academic freedom, or of whether the measures to ensure decisions are taken properly are actually being followed, any deviation from what is right and proper has regulatory consequences.
However, if you are in a university founded via a Royal Charter the common law position is that a named senior cleric, aristocrat, or – in many cases – King Charles III as monarch is the only person (they have “exclusive jurisdiction”) able to rule on whether or not your charter and statutes (the governing documents that constitute the “laws” of your university) are being correctly implemented.
You might think that the Higher Education and Research Act 2017 sections 13 and 14 trump some relic of medieval governance processes, but you would be wrong. The usual test is that parliament can only replace common law if it explicitly says that is what it is doing at the time – generally on the face of the act, but any other public statement (a speech in the house, a consultation document) can suffice at a push. This is what happened when visitors lost the ability to deal with student complaints to the Office for the Independent Adjudicator in 2004 (Higher Education Act) and with employment issues (in the 1998 Education Reform Act).
A trawl through the act, the green and white papers, and parliamentary debates about the bill do not help us – it really feels like nobody noticed this issue during the entire process of establishing OfS. And – to put it mildly – if the court rules that OfS does not in fact get to assess governing documents and how they are applied, it presents rather a problem for the way that the 51 universities who have visitors are regulated.
What even are governing documents, anyway?
So, I cited university statutes and university charters as “governing documents” – which feels pretty unarguable. But what else might be a governing document? The University of Sussex argues that the Trans and Non-Binary Equality Policy Statement that OfS was so unhappy with was not a governing document, and thus not something ongoing conditions of registration E1 and E2 could apply to.
OfS contends that the approach to this definition should be broad enough to include that kind of statement. In condition E1, it says:
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…the provider’s policies on matters such as…support for freedom of speech or academic freedom…
It would be helpful at this point to point to a handy definition, in HERA, of the term “governing document” – something that would clearly draw a line around what does and does not count. And, of course there isn’t one. The E1 definition sets out what OfS thinks, not what Parliament intended when it asked OfS to look at governing documents.
Again, we end up trawling through the debates on the bill to get a taste of what the ministerial intention might be. It turns out that, in the eighth sitting of the Commons Bill Committee, Wes Streeting attempted to widen the definition (to include “practices” as well as “documents”) in amendment 25. He got a response from the minister of the time, Jo Johnson:
The introduction of the term “practices” through the amendment would risk changing the scope of the public interest governance condition to give it a much wider and more subjective application and imposing a significant and ambiguous regulatory burden on the OfS. That would stray outside our stated policy objective and beyond the OfS’ regulatory remit.
The University of Sussex argues that this response outlines the intention that a “subjective application” (basically that OfS gets to decide what is in scope) is not what was intended, was not the government’s policy objective, and was beyond the OfS’ regulatory remit.
If the court agrees, the OfS’ ability to say that something like TNBPES is in breach of conditions E1 and E2 is in serious doubt. Something that would apply to the University of Sussex findings, and to everything else that OfS has done or tried to do with E1 or E2.
What does “nor” mean?
Universities change and update their policies all the time – to iron out issues and to make them work better, or to ensure compliance with changing regulatory requirements. Sussex updated TNBEPS a number of times – and in 2023 it added a “safeguarding statement”:
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.
You’d think that a change like this, made towards the end of the long OfS investigation, might keep the regulator happy. However, OfS ruled that this version of the policy still breached E1 – it met the requirements for safeguarding academic freedom, but did not meet the requirements for safeguarding freedom of speech.
As a layperson, this seems odd – it’s literally the same sentence! That is what Sussex argues – the use of the word “nor” implies that everything state applies to both free speech and academic freedom. The OfS position is that the tests for free speech and academic freedom are different, and the existence of the other parts of the policy (the stuff about not seeking to rely on harmful stereotypes of trans people, for instance) would still have the potential to have a chilling effect.
Lawyers do spend a lot of time talking about the meanings of words – here the decision on the word “nor” will have a bearing as to whether the 2023 version of the policy was in breach of E1.
Who made decisions about what to do with Sussex? And when? What was Arif Ahmed’s role?
OfS presented a fascinating chronology of the many years that the investigation continued, and assigned key decisions to key people.
For instance, the OfS Board had initially suggested that OfS needed to start using their powers on freedom of speech in the summer of 2021 – so when the issues at the University of Sussex hit the media in October of that year the OfS board discussed the case and decided it should be prioritised (of course, this would be an investigation into compliance with regulatory conditions – as OfS could not investigate an individual case).
It was the OfS Director of Regulation – who was at that point Susan Lapworth – that put a preliminary analysis to the Provider Risk Committee. When she became interim chief executive in 2022, the day-to-day conduct of the investigation passed to David Smy and Hilary Jones, though Lapworth continued to have close supervisory oversight. It was the interim chief executive who wrote to Sussex to offer the opportunity to reach a settlement in 2022 (of which more later), and who wrote to Kathleen Stock to solicit a statement, which was taken in November 2023.
On 6 July 2023, Lapworth established the board-level University of Sussex Compliance and Enforcement Committee (USCEC); appointing Martin Coleman as chair, and Elizabeth Fagan and Nisha Arora as members. USCEC was established as a decision making body, to respond to recommendations that would be made by the investigative team. Accordingly the committee met the investigation team on numerous occasions to discuss emerging findings and interim analyses.
This led to the presentation of interim recommendations on 7 November 2023 – which became, following debate, the provisional decision that was communicated to Sussex on 21 March 2024. As was its right, the university responded with representations (totalling around 2,000 pages on 30 May 2024, including two additional witness statements on 7 June 2024).
By this point one Arif Ahmed had been appointed OfS Director of Free Speech and Academic Freedom – he started work in August 2023, and joined the investigation team in the autumn of 2024. This presented an issue. The University of Sussex argues that when Ahmed joined the OfS he declared a possible conflict of interest in “cases involving gender” and cases related to Stock – whom he knew professionally. Beyond this, Ahmed had written and spoken publicly about the issue on a number of occasions.
Initially (June 2023) Lapworth is on record as having said “I think he is conflicted”, a position that others involved in the investigation agreed with. This position changed on 15 October 2024 – with Lapworth appointing Ahmed to head up the investigation team – she argued that his “potential conflicts of interest” were not a “material concern” because the team’s views had already “crystallised” at that point and Ahmed was not a decision maker (though he did present the team’s recommendation to the decision-making committee).
The idea that the team’s views had crystallised by October 2024 was problematised in court – this date was before Stock had provided a second witness statement (in response to points made in the university’s representations) on 12 December 2024, before the team had completed the drafting of the final recommendation (24 December 2024), before the presentation of the recommendation at a committee meeting (15 January 2025), and before the amount of the fine was decided (14 February 2025).
Sussex argued that the amount of work that was done after Ahmed’s appointment to the investigation – taking another witness statement from Stock for example – suggests that the views of the team had not crystallised, and that Ahmed may have had the opportunity to “infect” the decision with bias. Proving bias in a regulatory decision is a very high bar – but whatever is decided the ambiguity about how the conflict of interest seems to have been interpreted and applied is troubling, and that ambiguity will need to be resolved in future investigations of this kind.
The final OfS decision letter was sent to Sussex on 20 March 2025. It was re-issued on 27 March 2025. And it has never been published in full.
Has this process been “adversarial”?
So that second Stock statement, the one made in December 2024 in response to the university’s representations, wasn’t shared with the university until the high court hearing started gathering steam. Beforehand, there were just a few points from the statement included in the final decision letter. As OfS was relying on aspects of this statement in reaching the final decision, Sussex was rather nonplussed about this – and asked to see the full thing.
It was told “no”. The reason? Litigation privilege.
To be clear, litigation privilege is absolutely a thing. If you are preparing for some kind of adversarial litigation (the test is “reasonably contemplated” – around a 50 per cent likelihood of you lawyering up) you are allowed not to share certain kinds of documents with the people you are litigating against. The question in this case is whether adversarial litigation was “reasonably contemplated” at the point the OfS took the second statement from Kathleen Stock, which was before the final decision (the thing that Sussex could reasonably be expected to litigate about) was issued.
The Sussex argument is that this suggests a frame of mind at OfS that was “adverserial” at a point where it was supposed to be all impartial and regulatory. True, the response to the provisional decision and the idea of a settlement might have given the impression that Sussex was unhappy – but the actual investigation couldn’t really go forward on the basis it was a preparation for the high court. Can it?
Does the OfS offer a “jolly odd” kind of settlement process?
That’s the words of Justice Lieven, when she learned that to accept a settlement Sussex would have had to accept the entire of the OfS’ case against it – admitting the breaches of registration conditions in other words – before paying a reduced fine. And that this would include accepting parts of the OfS’ original draft decision (for instance, the idea that the Sussex Freedom of Speech policy was in breach of a B condition) that OfS later withdrew. It is very much like what happened in the investigations that led to OfS’ statement on degree algorithms, where universities felt pressured to accept a presumption that it had breached conditions in order to avoid a reputational detriment.
It is because Sussex didn’t accept these terms that it – famously – didn’t get the only planned meeting with OfS during the investigation: accepting the settlement was a requirement for the meeting to happen.
OfS says that the university:
was intending to challenge the OfS’ view about breaches of conditions of registration […] which was not an issue in respect of which the OfS was willing to negotiate during a settlement process […] settlement is only available under Regulatory Advice 19 if a provider is willing to accept breaches.
To be clear, this wasn’t in any of the grounds Sussex raised – but Justice Lieven’s note of surprise when presented with these terms was interesting in itself, and I would be unsurprised to see more of this incredulity in her written judgement.
Does the University of Sussex currently comply with governance conditions?
On one level the whole point of this investigation and subsequent regulatory action was to ensure that the University of Sussex complied with freedom of speech and academic freedom principles. And on that reading, the end point would be when OfS was satisfied that any offending bits of policy or decision-making did indeed comply with E1 and/or E2.
However, OfS reserved its position on the 2024 TNBPES – it didn’t want to say if it complied with registration conditions or not. Indeed, Sussex had initially thought the note to this effect in the final decision letter meant it was still under investigation – it was only in preparation for the hearing that it learned it was not. Which is something you would think the regulatory might have been a little clearer on if it was looking to drive compliance. Or if you wanted to say (as OfS did) something like:
some of the issues with the TNBEPS which gave rise to breach of Condition E1 continued to exist as at 20 March 2024, and therefore it is possible that the breach continued beyond that date and could occur again.
It would only know that if it had reached a decision on the current policy. Which it said it hadn’t.
OfS argued that the investigation window had to end at some point, and that it had looked at a lot of iterations of TNBPES already. It argued that this was a common regulatory approach, and to assess yet another iteration of the policy would take “considerable time”.
What about other universities with a similar policy? What about AdvanceHE?
The original Sussex TNBPES bore a very close resemblance to a template originally published by the Equality Challenge Unit, which had by 2018 become a part of AdvanceHE. Sussex was not the only university to take this up – by various reckonings there were between eight and ten universities that had a similar policy based on the template.
This was not an issue that had escaped Judge Lieven, who asked at what point OfS approached either AdvanceHE (to note the issue with a commonly used template and to ask for changes) or other providers (to ask them to cease using or rethink their usage of the template)?
It had not. It claimed not to have been aware of specific other universities using the policy when it began the investigation (it apparently considered this in the initial conversation about prioritising the Sussex investigation), and there was no conversation with AdvanceHE until after the final decision was made.
In Justice Lieven’s own words:
You’ve fined Sussex half a million pounds for a policy, but didn’t ask other universities if they had the same policy?
Sussex had raised this issue as a part of an argument that it had been “singled out” for punishment – that other providers had done the same thing (and even gone on to experience high profile controversies concerning gender-critical speech) and had not faced regulatory consequences. It had, it claimed, experienced a negative impact as a result – one that had a detrimental effect on fair competition (one of those pesky “have regard to” requirements of OfS in HERA).
But Justice Lieven’s take opens a wider question – is going after one provider for a widespread sin a reasonable and fair way to do regulation to ensure compliance. OfS’ pour encourager les autres approach is perhaps not a model of change that is helpful if you want to claim a dispassionate and even-handed approach to regulation.
Why it matters beyond this case
There is higher education legislation on the way – a Skills Bill, which would straighten up some of the more egregious problems with HERA and the OfS. Some of Justice Lieven’s judgement – particularly if she gets as stuck in to the visitorial jurisdiction issue – is an intervention in the evolution of higher education regulation that would shift us from the Behanite “it would be nice if” to a situation where changes had to be made to ensure OfS can continue to regulate in the way it has come to assume it has.
Much like in the aftermath of Office for Students vs Bloomsbury College, already knowable issues with OfS become pressingly urgent, and the government will be forced into action via primary legislation. A crisis can drive needed change, but it can also drive measures to shore up systems that need a more considered rethink.