The full implications of the court’s decision in the University of Sussex free speech case will take some digesting. However, five points require urgent action and reassurance from the Office for Students (OfS) to prevent the sector continuing to spend time and money addressing issues that the court has found are not lawful approaches for the regulator to take – and to restore wider confidence in its approach. 

The context here is that many institutions have taken steps in response to the OfS’ decision in the Sussex case, as they were expressly encouraged by the regulator to do. Moreover, many have been working at pace to comply with , published last November, aspects of which are also affected by this decision.

Later this year, the OfS will launch its free speech complaints scheme, based at least in part on regulatory requirements now found to be flawed and in the context of adverse findings about the fairness and impartiality of its investigations. The sector deserves as a bare minimum lawfulness and fairness from its regulator. It also needs confidence that the resources it invests in complying, which reduce what it can spend on its students and staff, will not turn out to be wasted.

The OfS needs to clarify that it will adopt immediately the court’s more limited interpretation of “governing documents” accepted by the court: namely, the documents that incorporate an institution and set out how it will be administered, rather than the vague and expansive definition set out in the . This affects not only duties relating to freedom of speech and academic freedom but the public interest governance principles more widely. Without this clarification, providers cannot be sure whether they are complying with the Regulatory Framework, properly construed, or not.

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The court found that the OfS misdirected itself as to the meaning of “freedom of speech within the law”, relying on the restriction of “lawful speech” as being sufficient in itself to find a breach of condition , requiring governing documents to “uphold the public interest governance principles that are applicable to the provider”.

The court expressly confirmed that the requirement to take “reasonably practicable steps” and the obligation under the Human Rights Act to act in a manner compatible with Convention rights permit institutions to restrict what might otherwise be “lawful speech” where there is a compelling reason to do so. This position is not clearly reflected in the OfS’ Regulatory Advice, to the extent that the OfS was asked to clarify its position by various sector bodies last year. It did so in but now should amend its Regulatory Advice and review its contents more widely to satisfy itself (and the sector) that it reflects the correct legal position.

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The court also found that the OfS misdirected itself in determining what amounted to a breach of academic freedom, and that the risk of disciplinary investigation did not amount to placing academics “in jeopardy” of “losing their job or privileges”. Although the Higher Education and Research Act 2018 expands this to include the likelihood of their securing promotion or different jobs at the provider being reduced, the court found that the statutory protection does not extend to fear of disciplinary proceedings, detrimental psychological impacts or a chilling effect “however harmful that might be to freedom of speech, or indeed academic freedom”. Again, the Regulatory Advice should be urgently reviewed to ensure it reflects this.

The court criticised the OfS for singling out specific documents and indeed specific phrases without reviewing how those documents and phrases sat within the overall framework of documents that protected freedom of speech and academic freedom at Sussex. The court affirmed that institutions can reasonably expect staff, students and others to read documents as a whole, rationally and in context.

The Regulatory Advice contains specific requirements to reference the institution’s free speech code of practice in an incredibly wide range of places and documents. But, based on the court’s reasoning, this now appears to represent an unnecessary bureaucratic requirement.

Perhaps the most alarming point of the ruling relates to the OfS’ decision as to whether Sussex was in breach of its duties or not. The court found that the OfS was wrong not to have considered whether any breaches had been remedied by the time it made its final decision – a decision it made with a closed mind, unlawfully predetermining it.

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These are very serious criticisms. But they are not new, and they are not surprising. The OfS’ approach to the investigation and enforcement action in the Sussex case was opaque, highly discretionary and appeared to lack basic procedural safeguards.

Those procedures now need a fundamental rehaul, and quickly, given what is at stake for the institutions and individuals involved.

Smita Jamdar is a partner and head of education at .