The University of Sussex has been commendably transparent in setting out both Facts and Grounds and a Skeleton Argument in public, with documentation available to anyone with an interest on a dedicated section of its website.
This means that, while the contours of the Sussex arguments about the Office for Student decision to fine the university £585,000 for alleged breaches of conditions of registration E1 and E2 (concerning governance and the public interest) are well understood, it has not been clear how OfS intends to counter these arguments.
I thought a summary would be helpful. To be absolutely clear – this is just a summary: I am no lawyer and am not saying anything about the quality or otherwise of arguments on either side of this hearing.
Governing documents?
Ground 1 of the University of Sussex arguments is that the “Trans and Non-binary Equality Policy Statement” (the nub of the OfS’ concerns) is not a “governing document”. While the Higher Education and Research Act 2017 (HERA) does not define what a “governing document” was at the time, OfS contends that the language it uses at paragraph 424 of the regulatory framework means that the term can be understood broadly as any document that:
describe[s] 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
And adding a list of examples that include “the provider’s policies on matters such as […] support for freedom of speech or academic freedom.”
Regulatory guidance isn’t the same as a statutory definition, of course: the OfS argument here is that because the category in the act is broad and unlimited, and parliament intended to have the same regulation applied to all providers (of whatever form), the working definition needs to be suitably broad to cover everything that it may need to see.
Visitors
The University of Sussex argument in Ground 2 is that because the University Visitor has exclusive jurisdiction over its laws – and nothing in HERA or anything else changes this position – OfS therefore cannot have jurisdiction over university statutes and rules. As I set out elsewhere, this is potentially a very wide reaching interpretation, and the status of the University Visitor has only ever been changed in specific ways by acts of parliament (that specifically make those changes).
The OfS response relies on an interpretation of how acts of parliament interact with common law (there’s no legislation that sets out the ancient powers of the University Visitor). The OfS interpretation is that parliament intended that all higher education providers should be regulated in the same way – whether or not they have a charter and a University Visitor – so the powers it has to regulate in HERA sit alongside the visitorial jurisdiction. Otherwise, OfS simply couldn’t do what parliament intended.
Governing documents as a whole
On the face of it Ground 3A sees Sussex arguing in the opposite direction to Ground 1 – that the OfS’ did not think that enough documents constituted governing documents. The university provided an enormous bundle of documents as a part of the investigation, and former OfS Deputy Chair (and chair of the investigative committee) Martin Coleman confirms that he did “read and give full and proper consideration to all of the papers, including the underlying supporting documents”.
The concern of Sussex here is that the investigation team understood the way that the various regulations, codes of practice, policies, and other documents interacted – especially when it came to academic disciplinary processes. Again, OfS claims that it had that understanding.
Academic freedom
Ground 3C posits that OfS didn’t run the right test relating to the academic freedom public interest guiding principle (PIGP) – which should have asked whether the policy in question put academics “in jeopardy of losing their jobs and privileges” at the provider. Because Sussex has a statute (VII.6) that sets out guiding principles on academic freedom – that protects against “adverse outcomes” for staff as a result of exercising academic freedom – it argues that anyone in breach of the trans and non-binary equality policy statement as a result of exercising academic freedom would not face adverse outcomes.
The OfS position is that while this may be true, nothing in the statute suggests that a member of staff would not face disciplinary proceedings – and that even if there were no adverse outcomes (in terms of job loss or loss of privilege) a member of staff could suffer “stress, anxiety, and reputational damage” merely by being subject to the disciplinary process.
Reasonable steps
In Ground 3D the university argues that OfS didn’t properly understand the meanings of the terms “reasonably practicable” and “freedom of speech within the law”. What this comes down to is whether a provider can impose restrictions on lawful speech where (double negative, sorry) it would “not be reasonably practicable not to impose such restrictions”. The example is on things like poor academic quality – without the ability to restrict speech the university would have to tolerate an academic designing curricula which lack academic rigor, or starting every lecture by swearing at and demeaning students.
The OfS position is that it did consider the possibility of proportional restrictions of lawful speech: in examining the university safeguarding policy and noting that it did not permit disproportionate restrictions of lawful speech, confirming that it considered that there was such a thing as a proportion restriction. It argues that none of this applies to the way the Trans and Non-Binary Equality Policy Statement was to be implemented, and that a chilling effect suggested that reasonable steps had not been taken to support lawful free speech.
It further notes that because since the opening of the investigation the university has removed or amended aspects of the policy statement it must have recognised that there was a problem.
Interpreting policy
Ground 4 covers similar ground to 3C in that Sussex argues that OfS didn’t consider the trans and non-binary policy alongside Statute VII and the disciplinary policy: the argument is that the wording of the latter two means that it rules out the possibility of disciplinary proceedings leading to loss or loss of privilege for an academic in breach of the policy through lawful free speech. What would happen instead is that a brief “process of triage and investigation” would conclude that there was no case to answer, and then the academic would get a letter before the whole matter was “removed from the record”.
Again OfS argues that it is merely the threat of disciplinary action in the policy that constitutes the problem as it would create a chilling effect – and doesn’t go along with the university’s attempts to separate out the initial triage (the decision to use the disciplinary process) from the disciplinary process itself.
Remedies
Was there a way of ensuring that the University of Sussex complied with conditions of registration without finding a breach? That’s the question Ground 5A deals with, with Sussex understandably suggesting that given the various updates to the policy made during the investigation that a finding of a breach and a fine wasn’t required to satisfy OfS that everything was in order – and that OfS should have considered other approaches..
The OfS decision notes that:
Findings on breaches and imposition of monetary penalties will act as strong incentives for the provider to address breaches of conditions E1 and E2(i) and ensure compliance in the future in addition to incentivising compliance from other providers
Suggesting (in the eyes of the OfS itself) that it did consider whether another remedy was available (which is all that it is required to do) before concluding that it wasn’t. A complicating factor here is that OfS decided not to take a view as to whether the (2024) version of the policy – the one currently in force – complied with the conditions of registration.
Safeguarding
The Trans and Non-Binary Equalities Policy Statement (as amended in 2023) has various clauses, one of which relates to the need to safeguard academic freedom and freedom of speech. This is the part of that clause that Ground 5C relates to:
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 OfS found that this statement was compatible with the academic freedom public interest governance principle, but incompatible with the freedom of speech principle. The Sussex argument is that these are both addressed in the same sentence, with the word “nor” connecting the two issues which are dealt with in the same way.
OfS doesn’t agree with this, arguing that “the suggestion that, as a matter of grammar, the word ‘nor’ indicates that the two halves of the relevant sentence are to be treated the same is wrong.”
The other end of this ground regards a part of the policy that deals with the use of stereotypes of trans and non-binary people in teaching: Sussex argues that if OfS is satisfied that the policy as a whole did not have a chilling effect on academics (it was compatible with the academic freedom principle), and considering that it is academics that set the curriculum there could therefore not be a chilling effect on the curriculum. OfS maintains that the “curriculum” is covered by free speech as well as academic freedom requirements.
Unreasonable conclusion
Ground 5E sets out that OfS concluded that the policy caused “significant and severe harm” to academic freedom and freedom of speech at the University of Sussex. The university itself argues that there was no evidence at all of a chilling effect on students, and that the evidence relating to staff referred only to the “potential” for a chilling effect, and because the evidence provided by Kathleen Stock was the only evidence provided for a chilling effect on staff there was no evidence of a chilling effect after 2021 (when Stock resigned from the university) and that the effect before that time was minimal (Stock did include extensive gender-critical materials written by herself and others on her reading lists).
OfS maintains that it did not have to identify individuals who had specifically been chilled by each version of the policy to argue for a chilling effect and thus a breach – as the risk of harm is sufficient. It also argues that it was entitled, applying regulatory judgement, to conclude that the impact of the policy was “significant and severe”.
Fairness and bias
It’s worth thinking about grounds 6A, 6B, and 6C together, as they all deal with the nuts and bolts of the way the decision to find the university in breach and issue a fine were made.
Sussex contends that OfS did not disclose key evidence (the second witness statement taken from Kathleen Stock, made after the university had responded to the OfS’ preliminary findings, was not shared with the university), that the final decision differed so substantially from the preliminary decision that the university effectively did not have the opportunity to comment on the final decision before it was issued, and – perhaps most importantly – that the investigation was predetermined: the refusal to meet the university during the investigation, drafting evidence itself, treating the investigation as an “adversarial exercise”, and that the investigation team was led by a person (Arif Ahmed) who was “personally connected to and proactively supported” Kathleen Stock.
It’s heady stuff, but as you would expect the regulator disputes these claims. We get a canter through the process of the investigation: the board decision to investigate and prioritise the investigation, the conduct of the investigation (which was initially led by Susan Lapworth before the role was taken on by Arif Ahmed in 2024), the establishment of the University of Sussex Compliance and Enforcement Committee (USCEC) and the way it was given delegated authority.
On whether Arif Ahmed was conflicted, the original opinion (June 2023) of the chief executive was that she thought he did have a conflict of interest, because he knew Stock and would have discussed relevant issues with her. He was not involved in the investigation until October 2024 at which point she “changed her mind” – the argument being that his conflict of interest was not by then a material concern as the investigative team’s view on substantive issues had been “crystalised” (though to be clear, this was before the decision was taken to get a second witness statement from Stock).
On this, OfS confirms that Ahmed joined the investigating team at a late stage – and contends that his involvement in drafting the final recommendation papers would not “infuse” the decision making process with bias. On Ahmed’s relationship with Stock, we are told that this was “not personal, and is one of limited professional acquaintance” as two academic philosophers.
Other stuff
The OfS skeleton argument doesn’t respond on ground 5b (possibly because it was only mentioned in a footnote?), which argues that because many (around 8-10) providers adopted a similar policy at the same time as Sussex, the decision to single out Sussex (for investigation and for punishment) is anti-competitive – and thus in contravention of the OfS’ “have regard” duty in HERA. In court a witness statement from the chief executive stated that OfS had not been aware that other providers had similar policies until it was brought to their attention by Sussex during the investigation.
The hearing continues, with a judgement expected in writing at a later date.