Regulating freedom of speech in higher education

A long-awaited decision of the High Court was published today (29 April 2026) in which the powers and decision-making of the Office for Students (OfS) – the regulator for higher education in England – were examined in detail in respect of its jurisdiction to regulate freedom of speech and academic freedom.

Background

The case concerned the University of Sussex, which challenged the regulatory decision of the OfS that the University was in breach of its Conditions of Registration. These required the University to have ‘governing documents’ which upheld freedom of speech and academic freedom and that it had ‘adequate and effective governance and management arrangements’. A monetary penalty was imposed on the University in the sum of £585,000.

Although the background context to the case concerned the resignation of Professor Kathleen Stock from the University following the concerns she raised – and the protests she experienced –  in respect of her views on sex and gender, the Judge (Mrs Justice Lieven) made it clear that the judgment was not an adjudication on “the facts surrounding what happened to Professor Stock”.

The central issue concerned the University’s Trans and Non-Binary Equality Policy Statement (the Policy) and the OfS investigation and regulatory decision relating to that policy document (and subsequent iterations).

The challenge

The University challenged the OfS decision on numerous grounds of public law. The judgment sets out the statutory framework for OfS, the constitutional framework for the various policies at the University and how the OfS went about its investigation. In brief, the Judge concluded that the OfS:

• misinterpreted the meaning of ‘governing documents’ and wrongly concluded that the Policy fell within the meaning of ‘governing documents’ contained in the Higher Education and Research Act 2017. The OfS accordingly had acted ‘ultra vires’ (outside its powers).
• did have powers under the 2017 Act which encroached into, or overlapped with, the exclusive jurisdiction of the University’s Visitor in respect of the internal laws of the University. It was not ultra vires therefore for the OfS to make a finding under Condition of Registration E2.
• erred in law in its decision by misdirecting itself as to the approach to considering ‘freedom of speech within the law’ and relying upon the restriction in the Policy to lawful speech as a sufficient basis for a finding of a breach of Condition of Registration E1. During the course of the judgment, the parties noted their agreement to the three-step approach set out in Regulatory Advice 24 which was subsequently published by the OfS and which includes a requirement to assess ‘proportionality’.
• misdirected itself in respect of the definition of ‘academic freedom’.
• failed to have proper regard to the University’s freedom of speech code of practice. The Judge noted that the Policy needed to be read as a whole and in conjunction with other relevant policies.
• failed to consider whether the alleged breaches had been remedied by the time of its final decision.
• was not required as a matter of procedural fairness to provide Professor Stock’s second witness statement to the University prior to its final decision.
• had not acted irrationally as a matter of public law in concluding that the Policy – read in isolation – could have a ‘significant and severe’ effect on freedom of speech due to its chilling effect.
• did not err in law by failing to take into account the ‘anti-competitive’ effect of its decision. However, its decision was vitiated as it approached the decision with a ‘closed mind’ and unlawfully predetermined the outcome.

The Birketts view

The OfS will no doubt review the findings and also consider whether it has sufficient powers and adequate procedures to investigate regulatory concerns relating to freedom of speech and academic freedom in English higher education providers.

It is significant that the Government has recently announced (20 April 2026) that certain parts of the Higher Education (Freedom of Speech) Act 2023 will now be brought into force, namely the OfS complaints scheme for academics and visiting speakers from September this year and new Conditions of Registration from the Spring of 2027.

Birketts’ higher and further education team advises universities, colleges and sector bodies on governance, regulation, public law challenges and freedom of speech obligations, helping clients navigate risk while meeting their statutory duties with confidence.