Blog

by GR Evans

The  Office for Students has found that the Trans and Non-Binary Equality Policy Statement  of the University of Sussex involves breach of two of the relevant OfS Regulatory Requirements in late March 2025, and imposed an unprecedentedly substantial fine. The first of those criticised (OfS Condition E1) concerns the duty to protect freedom of speech and academic freedom:

The provider’s governing documents must uphold the public interest governance principles that are applicable to the provider.

A further OfS Condition (E2) requires that ‘the provider must have in place adequate and effective management and governance arrangements’ so as  to ‘operate in accordance with its governing documents’.

On 9 April 2025 the Vice-Chancellor of the University of Sussex published a fierce criticism of the unprecedented decision of Office for Students that it had failed to comply with one of its own ‘policies’. The Vice-Chancellor considered that the policy in question was:

a really small statement, of which we have many dozens, if not hundreds, of similar policies and statements. Whereas the governing documents of the university  are its charter and statutes and regulations.

There was press coverage about the ensuing uncertainty. UniversitiesUK, as the ‘collective voice’ of universities promised to write to the OfS to ask for clarity as its decision appears to find that it is a ‘failure to uphold freedom of speech and academic freedom’ if a university has ‘policies’ to prevent ‘abusive, bullying and harassing’ material or speech.

The University has notified the OfS of its intention to apply for judicial review.  Among the grounds Sussex relies on is that the Office for Students did not have powers to treat ‘documents that are not a provider’s “governing documents”’ as creating the public interest governance condition necessary to permit the OfS to seek judicial review. The OfS defines ‘governing documents’ somewhat inadequately as ‘set out in’ its ‘Regulatory Framework’, where  ‘the provider’s governing documents must uphold the public interest governance principles that are applicable to the provider. In this case it held:

that the University of Sussex breached ongoing condition of registration E2 because it failed to have adequate and effective management and governance arrangements in place to ensure that it operates in accordance with its governing documents.

The definition of ‘governing documents’ is therefore of the first importance if a precedent is to be set by this OfS decision. The Higher Education and Research Act (2017) s.3(8)(a) protects the autonomy of higher education providers, defining it as ‘the freedom of English higher education providers within the law to conduct their day to day management in an effective and competent way’. Sussex was created among the batch of new universities of the 1960s.

The Act created a new Regulator, the Office for Students, stating that the Regulator ‘must have regard to’ the ‘need to protect the institutional autonomy of English higher education providers’. This requires a fine balance if the OfS is to avoid intrusion upon a provider’s autonomy.

The institutional autonomy of higher education providers gives them control of the drafting of their internal legislation. External authorities may insist on particular points in certain cases. For example medical qualifications set by a provider cannot constitute a qualification to be a doctor unless they are recognised by the General Medical Council.  But the right to create its own rules (within the law) largely lies with the provider, who may design them  and order them in its own preferred hierarchy.  The Office for Students may not interfere.

Nevertheless the creation of ‘governing documents’ must carry certain implications about the source of the internal or external authority to create, review or amend them.  It is suggested that ‘Sussex contends that these are matters for our old friend the Visitor, a traditional legal role in UK university governance, who in Sussex’s case is the actual King’, and:

cites longstanding legal authority confirming that the Visitor has exclusive jurisdiction over internal governance questions, including interpretation and application of the university’s own rules, and says that unless Parliament clearly removes or overrides that jurisdiction, external bodies like OfS can’t interfere.

Where the Monarch is not the Visitor it is normally a Bishop.

However a Visitor is not essential to the law-making of a higher education provider. ‘Alternative providers’ may not have Visitors. As eleemosynary bodies their Colleges normally have Visitors of their own but neither Oxford nor Cambridge has a Visitor. Under the Oxford and Cambridge Universities Act of 2023, both Universities create their own Statutes. In Oxford’s case those which are King-in-Council Statutes require the consent of the Privy Council on behalf of the King. In Cambridge all its Statutes require that consent to their creation or modification. Their subordinate legislation, most Regulations in Oxford (some of Oxford’s Regulations may be created by its Council) and Special Ordinances and Ordinances in Cambridge, simply require the consent of their governing bodies, Oxford’s Congregation of over 5000 and Cambridge’s Regent House of over 7000 members.

The rules at the top of a provider’s hierarchies may constitute governing documents but it is far from clear how far down that status applies. For purposes of management ‘procedural or process documents’ explain the required ways of doing things and the processes which must be followed’. Among these are Codes of Practice and ‘Guidance documents’. This seems to be where the Trans and Non-Binary Equality Policy Statement fits, as approved by the Executive Group in 2018, 2022, 2023 and 2024 and placed under the heading of Equality, Diversity and Inclusion(revised in 2022, 2023 and 2024).  Is it a governing document in this lowly position?

Also found relevant by the Office for Students in the Sussex case was the exercise of powers of delegation. It identified ‘a pattern of decisions taken at the university to adopt and/or revise policies without proper delegated authority’, both that its:

Prevent Steering Group approved and adopted the 2021 version of the University’s Freedom of Speech Code of Practice despite not having delegated authority to do so

and also that ‘the 2023 version of the External Speakers Procedure was approved by the University Executive Group, despite that group not having delegated authority to do so’.

Like similar universities Sussex has an Executive Team composed of a Vice-Chancellor, Pro-Vice-Chancellors, their deputies, Deans of Schools and Faculties, with senior academic-related staff headed by a University Secretary, a Financial Officer and various Directors. These are not directly responsible for framing its legislation but may have authority to apply it, though not necessarily powers to delegate its application.

The Office for Students could turn to the University’s rules about delegation in framing its criticism. Sussex has given thought to that. Sussex’s Council approved a Scheme of Delegation in March 2018. ‘Responsibility’ may be delegated by the Council except for the appointment of the Vice-Chancellor and President; ‘the variation, amendment or revocation of the Charter or Statutes’; and responsibility for approving the University’s annual audited accounts or the appointment of Auditors. The Scheme of Delegation clarifies where roles and responsibilities are allocated between Council and its Committees, among Committees, and between Council and Senate. The ‘Executive’ and a University Executive Group are described as exercising ‘leadership’ and there is also a University Leadership Team, though ‘leadership’ is undefined.

Sussex has also given thought to overall responsibilities for supervision of the exercise of its internal rules. It has chosen to describe them collectively as ‘policies’. It is recognised to be ‘important that a clear and consistent approach is taken to drafting and updating policies across the institution’ details the requirements for the creation, approval, review, and updating of policies.  However it clarifies the difference between policies and other associated documents, sets out responsibilities relating to policies, and details the requirements for the creation, approval, review, and updating of policies. An overarching Policy on Policies has been agreed by the ‘University Executive Team and Council’. This consists in a Policy on the Creation and Management of University Policies (‘Policy Framework’).

The aim of the University’s Policy Framework is to make clear what a policy is and what policies should be used for, to differentiate between policies and other types of documents (e.g. procedural documents, codes of practice, etc), and to outline the process that should be followed when drafting, reviewing, and updating policies. An outline of where responsibilities lie in relation to policies is also included.

This suggests that if pressed Sussex might take all these to constitute its ‘governing documents’, while recognising distinctions among them.

Nevertheless Sussex distinguishes governance and management. ‘A policy is a high-level statement of principles, requirements or behaviours that apply broadly across the University’ and ‘reflects institutional values’, thus supporting ‘the delivery of the University’s strategy’.  It  reflects ‘legal and regulatory obligations, sector standards, or high-level operational requirements’. These create obligations.

Among them Sussex lists ‘Regulations’, which  must be made ‘pursuant to the Charter’. These contain detailed rules governing a wide variety of actions of, or on behalf of, the University falling under governance but extending into management: staffing procedures, student disciplinary and appeals procedures, the Students’ Union, the composition of Council and Senate, titles of degrees and Schools, roles of Heads of Schools, lists of collaborative institutions, academic titles and dress, the various degree courses awarded by the University, and general University regulations (library, ICT, administrative). These Regulations are updated annually and approved by Council and/or Senate. Next come written ‘Resolutions’ which Council members may choose to approve or not, ‘in accordance with procedures set out in the Regulations’, though amendments to the Charter and the Statutes and certain Regulations require ‘a three-fourths majority’.

For purposes of management ‘procedural or process documents’ going beyond these categories explain the required ways of doing things at Sussex and ‘the processes which must be followed’. Among these are Codes of Practice and ‘Guidance documents’. This seems to be where the Trans and Non-Binary Equality Policy Statement fits, as approved by the Executive Group in 2018, revised in 2022, 2023 and 2024. placed under the heading of Equality, Diversity and Inclusion.  Are they still among ‘governing documents’ with a constitutional role in the University’s  governance? An application for a judicial review will take a considerable time to produce a recommendation even if it supports Sussex’s argument

SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.