Free speech, bias and the case of the OfS vs Sussex

Over the weekend HEPI published a blog on subject-linked maintenance grants and a book review of Danny Scott’s book ‘The Undisputed King of Selston’.

This blog was kindly authored by Professor Sir Peter Scott, Emeritus Professor of Higher Education Studies, University College London.

The judgment in the case brought against the Office for Students by the University of Sussex after it was fined more than half a million pounds could not be clearer, or more devastating for the OfS. Whether it can survive only time will tell. Probably – but only for the negative reason that a Government already with limited strategic bandwidth is unlikely to see the root-and-branch reform of the policy and regulatory architecture of English higher education as a priority. But, if the OfS did not already exist, there would be no appetite to invent it.

The facts of the case were straightforward. Kathleen Stock, a professor with gender critical views, resigned from Sussex after she judged that opposition from trans-supporting students had made her position untenable. The OfS set up an enquiry, not directly into the Stock case but into whether Sussex’s trans policy breached one of its conditions of registration. The University was judged to be guilty of a breach and received the hefty fine.

Sussex contested the OfS’s decision and the fine. Its case was argued before Mrs Justice Lieven. In her judgment she found for the University on nearly all grounds, except a few inconsequential ones (for example, encroachment on the powers of the Visitor). It is difficult not to suspect that the OfS had not expected its decision to be challenged. Its legal defence had all the marks of rather desperate retrofit, in particular the argument that Sussex’s trans and non-binary statement was a ‘governing document’. So we should be grateful for the courage of Sasha Roseneil, the current vice-chancellor, and the support she received from the university council, for challenging, and exposing, the OfS’s unlawful overreach. Many, perhaps most, universities would not have displayed the same determination and courage.

The most damaging part of Mrs Justice Lieven’s judgment was that there was evidence of ‘pre-determination’ on the part of the OfS – bias to you and me. That bias had two aspects: the first emphasised in the judgment and the second a broader and more political consideration.

The first was that the OfS set out to make an example of Sussex, which is why a heavy fine rather than a negotiated and more reasonable outcome was essential. It took no action against other universities with trans policies very similar or identical to Sussex’s (but no equivalent of the high-profile Stock case). Essentially, this is how the OfS has used its policing powers as a regulator – to select a number of supposed delinquents, typically institutions judged to be unlikely to fight back as Sussex has done, and make an example of them. Voltaire immortalised this approach in his ironic comments on the execution of Admiral Byng for the loss of Minorca in the 1750s – pour encourager les autres.

But a proper regulator cannot behave in that way. It cannot investigate some alleged breaches and ignore others, when there is evidence to support a breach. It cannot conduct what could be termed ‘show trials’, to influence wider behaviour in the sector. To do so is proof of ‘pre-determination’. Also, any investigation of possible breaches must be unimpeachably independent. Although quality was not an issue here, it was a mistake for the OfS to ditch the Quality Assurance Agency and undertake its own quality reviews, which clearly opens up the possibility of a conflict of interests. If the services of the QAA had been retained, the risk of ‘pre-determination’ ever being alleged, and proved, would have been much less. It is difficult to avoid the conclusion that the OfS will have to completely rethink its approach to regulation. It is also difficult to avoid the conclusion that the OfS board, headed originally by a chair who lacked both independence and experience, failed properly to discharge its responsibilities by acquiescing in this flawed approach, which we now know was unlawful.

The second aspect is that the regulation of English higher education as it has been practised since the establishment of the OfS has become over-politicised. Perhaps this was inevitable. Far from being an intermediary that acted a buffer between higher education and the State, the OfS – and before it the Higher Education Funding Council for England (even the University Grants Committee in its dog days) – has been an active conduit for the transmission of Government agendas. And why not? Higher education is now a massive presence in national life, and in the hopes of millions of individual students. Why in a democracy should it avoid active accountability?

On issues such as strategies for science, technology and innovation, for regional development, for more equitable access (and similar big-ticket issues) Government clearly has the right – duty even – to ensure that higher education plays its part. But as Sir John Major, in his retirement a fountain of good sense, commented the other day, ministers, and the whole political class, now tend to shy away from these big-ticket issues (and even bigger-ticket ones, like how to make housing affordable for all ages and all classes; how to fund pensions in an aging society;, how to maintain free healthcare at a time when treatments and drugs are becoming ever more expensive; how to achieve sustainable growth against a background of climate crisis). Instead, they retreat into performative ephemera or culture and identity wars. It is much less clear why universities should be forced to play these games.

… which brings us to free speech and academic freedom, the triggers of the Stock case, OfS’s overreach and Sussex’s fightback. Everyone agrees freedom of speech and academic freedom should be respected – until they don’t. Bagehot’s famous characterisation of the Victorian constitution comes to mind. What matters is not the ‘dignified’ expression of free speech and academic freedom – their definition in the Higher Education (Freedom of Speech) Act – but their ‘efficient’ operation. Here, politics and ideology take over.

The political narrative justifying the need for the Act is that right-wing or conservative views are being cancelled. Misleadingly, gender critical views have ended up being defined as conservative – presumably because trans rights have been adopted as a radical cause. So, like other conservative views, they have to be protected with the force of the State. In contrast, for example, pro-Palestinian views deserve no such protection. Rather, they have to be strictly policed and, if necessary, curbed.

I am not taking sides on these two, or any other, controversial matters. My point is simply that there will always be a political context that governs how legislation on free speech and academic freedom is implemented – pre-determination to borrow Mrs Justice Lieven’s term. That context can change. One day ‘progressive’ views may be privileged. But there will always be go areas, in which action is demanded, and no-go areas, in which it is discouraged. So to imagine that universities are being held to account against a fixed and immutable standard is a misleading conceit.

Much better for the State, and its agencies, to stay out of the whole business. The real threats to academic freedom are more deeply rooted and structural – entrenched disciplinary orthodoxies, the necessary influence of national research priorities and institutions’ academic strategies, even the rules of the Research Excellence Framework? Also, cases headlined in the media are nearly always more complicated than they are presented as being, with interwoven strands of breakdowns of collegial relations, even performance issues, alongside any alleged denials of academic freedom. These cases should be left to be resolved by universities themselves because only they know the whole story, not by administrative fiat or in courts of law.

Finally, to the future of the OfS. In a recent blog a former OfS Director, John Blake, questioned the whole basis of the reforms that, ostensibly, have placed ‘students at the heart’ of English higher education, because they attach too much weight to the subject choices of teenagers. If this view is accepted, the rationale for the OfS slips away. I would not go that far. Even as a generally market-sceptical (in the context of public policy) social democrat I cannot deny the key role played by student choice. If the supply of places exceeds demand, the result is empty places – or, at any rate, lower entry standards. If demand exceeds supply, the result is excessive competition and over-demanding entry standards. Also, students invest their hopes and (too much of) their future income, in higher education for their interests to be downgraded. Finally, for better or worse (worse in my view), English higher education now has a significant number of alternative providers, generally private for-profit institutions, that badly need to be regulated.

So we are probably stuck with the OfS. But its conditions of registration should be pruned back. There are too many and are often so broadly worded that they appear to give the OfS some kind of licence to interfere with almost every aspect of English higher education – the over-reach that led to the Sussex car crash (which, it is important to remember, preceded the 2023 Act and was initiated under OfS’s general regulatory powers). The OfS should become a leaner and more tightly focused regulator. It should bring back the QAA to carry out any quality investigations that are needed. If these turn out to be more developmental and less inquisitorial, so much the better. And the OfS’s responsibilities for strategic funding, and other forms of ‘steering’ (like fair access), should be hived off to a separate body – the Higher Education Development Agency perhaps, unless Research England is given a wider remit. Sadly, none of this is likely to happen: no policy bandwidth, no political appetite.

Edited 11th May to remove reference to Adam Ticknell, who was not involved in the University of Sussex’s decision to formally challenge the OfS.