In brief:
- The High Court’s Sussex judgment overturned the OfS’s £585,000 fine, highlighting limits on its approach to regulating campus free speech.
- The OfS’s new free speech complaints scheme offers eligible individuals – but not students – a route to challenge alleged failures by higher education institutions in England.
- Growing university philanthropy and political scrutiny make careful gift structuring essential, balancing donors’ reputational concerns with institutions’ independence and charity law duties.
- This article explores the Sussex judgment, the new complaints scheme and their implications for universities and donors.
The Sussex judgment
The University of Sussex brought judicial review proceedings challenging an unprecedented fine of £585,000 imposed by the OfS. The fine followed an OfS investigation into the University of Sussex surrounding a series of student protests on campus, which concluded, among other things, that one of the University's policies breached the requirement for universities to uphold academic freedom and freedom of speech in its governing documents.
The University's legal challenge was successful. The Court decided that OfS – the regulator – had misdirected itself on the meaning of freedom of speech within the law and what constitutes academic freedom. Freedom of expression is a qualified right under Article 10 of the European Convention on Human Rights (ECHR): it can be lawfully restricted where the restriction is proportionate. In Sussex, both parties agreed that determining compliance with this right should be assessed following the framework set out in the OfS's Regulatory Advice 24, namely:
- is the speech within the law;
- are there reasonably practicable steps to secure the speech; and
- are there any restrictions prescribed by law and proportionate under the ECHR?
The Court held that the OfS had misdirected itself in several respects, including on the meaning of "governing documents" under HERA (finding that the University's policy at issue was not, in fact, a governing document capable of grounding the breach), on the meaning of "freedom of speech within the law" and academic freedom, and on the protective effect of the University's own Freedom of Speech Code of Practice. The Court also found that the OfS's decision-making process had been vitiated by apparent bias. Ultimately, the University of Sussex was successful in its judicial review on multiple grounds, with the High Court overturning the £585,000 fine.
OfS free speech complaints scheme
The OfS's free speech complaints scheme has been introduced as a requirement of the Higher Education (Freedom of Speech) Act 2023, a law passed under the previous Conservative government and ultimately implemented by the Labour government following a review.
The new scheme is intended to reflect that university campuses are – and should be – sites of political debate, with students and academics voicing their views on serious, topical issues and a number of universities taking steps to restrict or ban protests citing concerns for safety on campus. This politicised environment, combined with the fallout from the Sussex judgment, forms the backdrop against which the OfS has now introduced a formal complaints mechanism.
What is the scheme?
Complaints can be made where an eligible individual believes their free speech rights have been infringed. The scheme is free to use and is not retrospective: the OfS will not review complaints about action or inaction that took place before 1 September 2026. If the OfS finds in favour of a complaint, it can make certain recommendations to the university and publish its findings.
Arif Ahmed, Director for Freedom of Speech and Academic Freedom at the OfS, said: "The core mission of higher education is the pursuit of knowledge. Freedom of speech and academic freedom are fundamental to that mission. […] Since the Sussex judgment, we have been carefully reflecting on our approach to protecting freedom of speech in higher education. Today’s amendments to our regulatory guidance take account of that judgment."
Who can make a complaint?
An individual can make a complaint if they are:
- a member, or member of staff, of the registered higher education provider or constituent institution;
- someone who has applied to become a member of academic staff of the registered higher education provider or constituent institution; or
- someone who was, or was invited to be, a visiting speaker at the registered higher education provider or constituent.
Students cannot raise a complaint under this scheme and must either raise complaints with their university or college directly or consider alternative legal action.
Time limits and process
Individuals are advised by the OfS that they should only raise a complaint through the scheme if they have already completed any relevant complaints, appeals, disciplinary or grievance process within the institution and are not satisfied with the outcome, or 90 days have passed since they began the relevant process. Unless there are good reasons why this was not possible, a complaint must also be submitted within 12 months of the date on which the OfS considers the relevant action or inaction to have last occurred.
This creates an incentive for universities to ensure their internal processes are not delayed and operate efficiently, so that matters are resolved internally in the first instance rather than being escalated to the OfS by default once the 90-day threshold is reached.
University giving
As educational philanthropy continues to increase, we expect both donors and institutions to become more deliberate about how gifts are structured and publicised, particularly where naming rights are involved. Freedom of speech disputes in universities today can spread quickly beyond the campus, drawing mainstream media and political attention, as well as rapid take-up on social media.
Well-advised donors whose name or brand are closely tied to an institution may increasingly want reassurance about how that association will be managed, disclosed, or unwound if reputational risk materialises at pace through a freedom of speech dispute.
From the university's standpoint, as with any charity, its starting position should be to accept and keep a donation so that it can further its charitable purposes. But a university cannot accept a donation for a political purpose, or apply funds to political activity that is not in support of its charitable (typically educational) purposes. This would include any purpose directed at furthering the interests of any political party, or securing or opposing a change in the law, policy or decisions, either in this country or abroad.
Similarly, a gift that is so tightly restricted that it would commit the university to activity outside its charitable purposes, or that would compromise its independence (for example, by requiring the university to clear decisions relating to a freedom of speech dispute on campus with the donor, or giving a donor a veto right over events held in a building or department that carries their name), is a gift the university may need to modify, decline or return.
Where a donation is accepted subject to restrictions – for example, that it be used only to fund a particular project or programme – the university must apply it strictly for that purpose and will usually need to account for it separately as a restricted fund. If circumstances change so that the specified purpose can no longer be achieved, or if a dispute later arises over the donor's intentions (including, for example, disputes related to campus free speech), the university's options for returning or repurposing the gift are governed by charity law and its own governing document, not simply by what the donor and university might privately agree.
For donors, this means that it is important to understand the charity law framework within which a university must operate, and to ensure a gift is structured from the outset in a way so that it is more, not less, likely to achieve what the donor wants. It is also vital to anticipate any areas of disagreement between the donor and university. Clear purpose clauses, realistic flexibility provisions, and early engagement with the university's development and governance teams before a gift is finalised all help ensure the donation can be accepted as intended, rather than triggering a later dispute over use, restriction or return – particularly where the donor is sensitive to becoming entangled within campus political controversy.
Looking forward
The OfS scheme has only been in effect since 1 September, so its practical impact on universities and the wider political landscape of higher education remains to be seen. As the scheme is not available to students, there will continue to be other routes – whether legal or through media campaigning – used by students to raise concerns.
Nonetheless, the OfS scheme raises the bar on institutional accountability, providing, at least in theory, an accessible form of redress for individuals, and we anticipate that universities will continue to evolve their own freedom of speech policies and, in particular, their internal complaints procedures in light of this and other developments.
This is a trend worth monitoring closely as the new academic year progresses, as the scheme's first decisions are published, and as the sector continues to absorb the implications of the Sussex judgment for its governing documents and policies, and for its donors.
How Mishcon de Reya can help
If you would like to know more about how we can advise you, please contact a member of the firm's Public Law & Politics Group, Charities Group or Education Group.
Our Public Law & Politics, Charities and Education teams advise universities, donors and trustees on the legal, regulatory and governance issues affecting higher education institutions. We support clients on freedom of speech policies, complaints processes, regulatory investigations and reputational risks, as well as the structuring of philanthropic gifts, naming arrangements and restricted funds. Our aim is to help institutions and donors achieve their objectives while remaining compliant with charity law and evolving regulatory requirements.