In brief
- The High Court quashed the Office for Students' (OfS) £585,000 fine against the University of Sussex, finding the OfS had misdirected itself on the law of freedom of speech and academic freedom, failed to properly consider the University's Freedom of Speech Code of Practice and remedial policy changes, and acted with apparent bias and predetermination.
- In response, the OfS amended its guidance, Regulatory Advice 24, on 5 August 2026 to embed the Court's guidance: institutions' policies must now be read holistically, a policy's mere capacity to catch lawful speech is not enough on its own to found a breach, and evidence of remediation must be weighed before a finding is made.
- The OfS's new free-speech complaints scheme opened on 1 September 2026, allowing staff, academic post applicants, visiting speakers and non-student members (but not students) to bring complaints directly to the OfS, making it essential for providers to audit their policies against the revised framework.
On 5 August 2026, the OfS published amendments to its guidance on the regulation of freedom of speech and academic freedom (Regulatory Advice 24).
The revisions were a direct response to the High Court's judgment in R (University of Sussex) v Office for Students, handed down on 29 April 2026, which quashed the OfS's decision to fine the University £585,000 for breaching its freedom of speech and governance conditions of registration.
This article sets out:
- What has changed in Regulatory Advice 24;
- The contextual background to those changes; and
- The introduction of the OfS's new free-speech complaints scheme, which opened on 1 September 2026 and allows free-speech complaints to be taken directly to the OfS by staff, applicants for academic posts, visiting speakers and non-student members.
The University of Sussex judgment
The case was the first judicial test of the OfS's approach to free-speech regulation. The OfS's investigation into the University began on 22 October 2021 following widely reported protests concerning Professor Kathleen Stock, a philosophy professor who ultimately resigned from the University amidst allegations of transphobia. The Court was careful not to adjudicate on the circumstances of Professor Stock's departure; however, the circumstances of her resignation were the catalyst for a three-and-a-half-year investigation into the University's Trans and Non-Binary Equality Policy Statement; its Freedom of Speech Code of Practice; and its scheme of delegation.
In March 2025, the OfS found the University had breached two of its registration conditions: (i) condition E1, the requirement to uphold freedom of speech and academic freedom principles, and (ii) condition E2, the requirement to operate in accordance with governing documents. It imposed its largest ever fine. However, the University brought a successful judicial review challenge in relation to the OfS's findings and the fine was quashed.
Most fundamentally, the Court held that the University's Trans and Non-Binary Equality Policy Statement was not a "governing document" within the meaning of the relevant legislation, meaning the OfS had no jurisdiction to make the condition E1 finding at all. The Court also found that the OfS had misdirected itself on the meaning of both freedom of speech and academic freedom within the law: it had treated any restriction capable of catching lawful speech as sufficient to found a breach, when the OfS itself accepted that lawful speech could, in appropriate circumstances, be restricted. In relation to academic freedom, the OfS had wrongly treated the risk of disciplinary proceedings as equivalent to placing academics "in jeopardy of losing their jobs or privileges" – the actual statutory test. The Court further held that the OfS had failed to have proper regard to the University's Freedom of Speech Code of Practice, despite the OfS's own guidance in Regulatory Advice 24 acknowledging that the code of practice is an institution's "definitive and up-to-date statement" on free speech. It also held that findings of breach must consider whether alleged breaches have already been remedied before a decision is finalised, and the OfS's failure to consider the University's 2024 policy revisions – submitted some 10 months before the final decision – was unlawful. Damagingly, the Court found the OfS's decision was vitiated by apparent bias and predetermination: the evidence showed that the OfS had pursued the University as a deliberate test case, intended, in the words of its then chief executive Susan Lapworth, to "create clear compliance incentives and expectations" for the rest of the sector – an approach the Court held was "plainly the wrong starting point" for a fair investigative process. The judgment does not disturb the OfS's underlying jurisdiction to regulate free speech or its power to issue fines; rather, it directs how that power must be exercised.
The amended Regulatory Advice 24 and the new OfS complaints scheme
Regulatory Advice 24 was already in force when the judgment was handed down, and both parties agreed at trial that its three-step framework was the correct methodology, namely:
- Is the speech lawful;
- Are there reasonably practicable steps to secure it; and,
- If the provider is interfering with the speech in any way, is that interference prescribed by law and proportionate.
The Court's criticism was not of the framework itself, but of the OfS's failure to faithfully apply its own methodology.
The amendments published on 5 August 2026 revise the three-step framework to embed the Court's guidance directly into the OfS's practice. The updated guidance adds new paragraphs 16A and 16B clarifying the role of Article 17 of the Convention (the anti-abuse provision), adds a new illustrative example 24A, concerning restrictions on a medical student's political speech during a placement, and makes explicit clarifications on the scope of the duty and its interaction with the Convention.
In substance, the revised framework now requires OfS decision-makers to: read an institution's governing documents holistically, rather than provision by provision, when assessing whether a policy suite protects lawful speech; treat a policy's mere capacity to catch lawful speech as insufficient, on its own, to found a breach; weigh evidence that a policy or code has already been remedied before finalising any finding; and apply the proportionality and "reasonably practicable steps" test rigorously at each stage of the analysis.
The vehicle through which the amended Regulatory Advice 24 will now be tested against individual cases is the new OfS free-speech complaints scheme, which opened on 1 September 2026. Through the scheme, the OfS can now investigate complaints and make recommendations to institutions, including recommendations to pay compensation or alter processes.
Practical implications for regulated institutions
For registered providers, the judgment and the updated guidance give rise to the following practical considerations:
- Free speech and equality-related policies should be read, and drafted, as a suite: an express safeguarding or proportionality statement in a code of practice may cure an otherwise vague restriction elsewhere in the institution's policy framework, provided the suite as a whole would be understood by an objective, reasonably informed reader to protect lawful speech. Institutions should ensure that their freedom of speech code of practice is prominently cross-referenced in any policy that may affect free speech.
- Disciplinary and equality policies should avoid vague or undefined restrictions on speech and should build in objective, legally grounded definitions.
- Institutions should also expect that a demonstrated willingness to revise policies in response to concerns, and evidence that a policy or code has already been remedied, are now factors the OfS must consider before making a finding of breach. Providers should therefore have robust processes in place for the ongoing review of policies, as appropriate, and should consider policies as living documents to ensure continued compliance.
- With the free-speech complaints scheme now live, providers should audit their current freedom of speech and equality policies against the amended Regulatory Advice 24 three-step framework in anticipation of individual complaints being tested against it. Providers should note that the scheme is not retrospective and that students are not eligible complainants, as they have their own separate complaints scheme – the new scheme is limited to staff, applicants for academic posts, visiting speakers and non-student members.
- Providers can reasonably expect that the new streamlined process of complaint will empower complainants to raise concerns confidently and therefore should ensure appropriate training and upskilling in the context of free speech complaints and the OfS Regulatory Advice 24.