Briefing
The heavy hand of free speech
A landmark free-speech ruling has forced the UK higher education sector to rethink the limits of regulation and academic freedom.
By Tim van Gardingen
27 May 2026
In brief
- UK High Court overturns a record fine against Sussex University, ruling the regulator overstepped its legal authority.
- The case scrutinised whether diversity policies count as "governing documents".
- Sector leaders now call for better regulatory understanding and clearer legal frameworks to balance inclusion with academic freedom.
Freedom of speech is a tenet of universities. Few would argue that higher education institutions would be better without debate and without disagreement.
The trouble turns out to be working out what exactly freedom of speech is, who is responsible for upholding it, and how to go about it. After a four-year battle and trial in the High Court between the University of Sussex and regulatory body the Office for Students (OfS), the UK sector has had plenty of time to think long and hard about those questions.
Sussex vs OfS
OfS last year fined the University of Sussex a record £585,000 for alleged infringement of lawful freedom of speech. The regulator claimed that Sussex had breached its own inclusion policy, the Sussex Trans and Non-Binary Equality Policy Statement (TNBEPS).
That claim stemmed from a debacle back in 2021, when one of Sussex’s academic staff, Professor Kathleen Stock left the university. Professor Stock had more conservative gender views than a vocal section of the university’s student body. That escalated into protests against the academic, accusing her of anti-trans views and eventually pushing her away from the university.
From the viewpoint of Sussex, detailed in its skeleton argument for the trial, the OfS quickly realised that it had no jurisdiction to investigate Sussex’s treatment of Professor Stock and instead turned to dissecting the wording of the TNBEPS, from which the OfS based its fines.
Now that landmark ruling has been overturned by the High Court, following a successful appeal from Sussex. Universities are heralding the decision as retribution from an overzealous regulator. Government, which has strengthened the powers of the OfS in recent years, suddenly looks on the wrong side of the courts.
Interim Chief Executive of the OfS Josh Fleming says OfS is “disappointed, of course, by this ruling” and “will reflect on the Judge’s findings and use them to help inform our future approach”.
Vice-Chancellor of the University of Sussex Professor Sasha Roseneil has meanwhile presented the ruling in their favour as a big win for freedom of speech, declaring “today is a good day for the University of Sussex, and a good day for everyone who cares about the proper and effective governance and regulation of universities”.
Freedom of speech in the small print
While Professor Roseneil is celebrating her university’s newfound court backing, that win has drifted far from Professor Stock and the campus protests. As is so often the case in legal battles, wording, definitions and the nitty-gritty of official documents was the focus in court. Deciding that it had no jurisdiction on Professor Stock’s ordeal directly, the OfS appears to have used discrepancies in paperwork to penalise Sussex instead.
The phrase under scrutiny was ‘governing document’ and the question was whether the TNBEPS counted as a governing document of Sussex’s university. OfS targeted Sussex on the basis that its diversity policy was a ‘governing document’; Sussex argued that it was not.
Following the challenge, the High Court has ruled that the policy statement was indeed not a governing document, overturning the fine, and accusing the OfS of taking a ‘flawed approach’ to deciding what was academic freedom.
Without diving into the depths of the legal procedures, the judgment boiled down to: the High Court ruled that the OfS acted beyond its powers with respect to the Sussex’s TNBEPS, and the OfS had misunderstood the meaning of ‘freedom of speech within the law’. The Court further accused the OfS of misdirecting itself in failing to properly consider the university’s ‘Freedom of Speech Code of Practice’, seen to be a document carrying far more weight than the TNBEPS.
The big question is whether the tides could have turned in favour of OfS if this document were found to be a governing document, a question which currently remains unanswered.
TNBEPS and the ‘governing document’ problem
The TNBEPS is, in the grand scale of policy documents, short. At two pages and with only three core points, it reads more like a rough intent than a binding contract.
The TNBEPS says it promotes “the fair and equal treatment of trans people” and that this is compatible with protecting the freedom of speech of others on campus, including those with “unpopular opinions without placing themselves in jeopardy of losing jobs”.
A difficulty for Sussex is that at least one of their academics has lost their job at the hands of equality debates on campus, precisely for having ‘unpopular opinions’. The university may well be lucky that the court decided this document carried less weight than the OfS asserted.
But the question of what counts as a governing document remains, as does the question of why that matters in the first place.
Legal firm Eversheds Sutherland says that “there is no definition of ‘governing documents’ in HERA 2017”, the Higher Education and Research Act, the legislation which established the OfS and gave it its powers in the first place.
Indeed, the phrase ‘governing documents’ appears 89 times in HERA 2017, none of which are accompanied by any sort of definition. That no doubt has added pain for Sussex when designing its policy statements and the OfS when working out how to properly regulate.
Because of unclear guidelines, the court battled through old policy documents and former precedents, effectively to try to define a diversity statement and its governance powers. In the end, the court rule the OfS had ‘misdirected itself’, the TNBEPS was not a governing document and that “the legislative history of HERA points very strongly to governing documents having the meaning the university asserts”.
It was not all smooth sailing for the university though. The court asserted that if TNBEPS were read in isolation of other documents, it could have a “significant and severe effect on freedom of speech because of its chilling effect”.
The remainder of UK universities now have a chilling case study to how a campus protest can turn into an almost arcane, at first seemingly unrelated, legal nightmare.
It’s good to feel regulated
Fighting against freedom of speech abuses is a relatively new game for the OfS. Its role is much broader.
The OfS holds responsibility, in their words, as ”the regulator for HE in England’” They have oversight of quality and standards, equality of opportunity and student protection. They also play a role in distributing funding of over £1 billion to universities.
The government has gradually given the OfS more power to police freedom of speech. In April, the Department for Education (DfE) introduced its new complaints scheme, administered by the OfS. It is due to come into force from the next academic year.
The OfS has strong backing from government to act as a freedom of speech policer, even using the now overturned Sussex case to hint that the OfS had support to fine other universities too.
“If lawful free speech is silenced the Office for Students (OfS) can investigate, and can take action if universities are found to have failed to protect free speech rights”, said DfE in a press release.
The High Court’s ruling now seems to suggest it was the OfS that, in its new-found powers, failed to protect those free speech rights. Sussex wants to see that change:
“We need a regulator that can be trusted, that properly understands freedom of speech, academic freedom, lawful commitments to inclusion, and the scope of its own powers” said Professor Roseneil, since University of Sussex won its challenge in the High Court.
“We need a regulator that works with the sector, not against it – in the interests of the students of today and of the future.”
Shaping up freedom
Freedom of speech, it turns out, is a more nebulous term than one might think. In the world of law, such huge moral concepts get battled out on a scale of miniature details.
Higher education legal disputes expert Stephanie Connelly says that the ruling shows just how important regulatory process is.
“Those aspects of the judgment are likely to influence how future investigations are conducted, especially where enforcement action has the potential to carry significant financial and reputational consequences”, says Connelly.
“The High Court’s decision to adopt a narrower interpretation of what constitutes a university’s ‘governing documents’ will be welcomed by many institutions seeking greater certainty about the regulatory framework within which internal policies are being assessed,” she says.
Eversheds Sutherland thinks that freedom of speech will likely remain a “key area of focus and risk in the sector”, including their impact on diversity policy.
“HEIs subject to the OfS Conditions of Registration need to be aware that, even if such policies are not ’governing documents’ in themselves, their contents and how they are applied will still be relevant to compliance,” says the legal firm.
The UK has been working on its campus freedom of speech policy for some time. The previous Conservative government intended to roll out campus rules in its Higher Education Freedom of Speech Act, before they were rolled back by the current Labour government. As with a few other areas of HE-policy, Labour has wriggled back to the Conservative’s approach.
Addressing parliament in January last year, Education Secretary Bridget Phillipson told parliament that DfE would go forward with legislation but with major changes.
“These fundamental freedoms are more important – much more important – than the wishes of some students not to be offended,” Phillipson told parliament.
The Sussex case marks the first major test of the UK’s attempts to work out how to police freedom of speech in universities, the country’s heart of debate. The fallout suggests that there is still plenty of tweaking left to get it right.
The OfS does indeed sound a little more measured following its defeat in the High Court. “Our focus remains on students and the sector, and we are pleased that following our investigation a dozen institutions, including the University of Sussex, have amended policies which restricted freedom of speech” said the OfS in a statement.
“As a result, students and academics should feel greater confidence in their ability to engage in the free and frank exploration of thought that characterises English higher education.”
This time round, the higher power of the court upheld ‘free exploration of thought’ from the upholder, the OfS.
MEET THE AUTHOR
Tim van Gardingen is a freelance journalist and analyst specialising in international higher education and commodity markets. He previously worked for the British Council’s insights and consultancy team in Beijing, where he covered HE sector developments in over 30 countries. Tim holds a BA in German and Chinese from the University of Leeds and an MA in International Political Economy from King’s College London
Briefing
The heavy hand of free speech
A landmark free-speech ruling has forced the UK higher education sector to rethink the limits of regulation and academic freedom.
By Tim van Gardingen
