The recent decision of University of Sussex v Office for Students has gained a great deal of media attention. There are a number of different aspects of the judgment that have caught the eye of the media and commentators alike. At the heart of the dispute was the question of whether the University’s internal regulatory framework offered sufficient protection for free speech.
The OfS began its investigation of the University in this regard due to a long running issue of prolonged protests and by members of the student body that resulted in a professor tendering her resignation. The protests arose from the belief that some of the views expressed by the professor contravened the University’s Trans and Non-Binary Gender Policy, in particular the positive discrimination clause that it contained at that time. The professor filed a complaint that she was not being adequately supported by the University.
It is important to note that OfS’s investigation took quite some time, and by its conclusion there had been amendment to the relevant aspects of the University’s framework. Ultimately, however, the OfS concluded that the University’s framework had not offered sufficient protections for free speech, particularly that of academics. This resulted in a fine of £500,000 being imposed on the University by the OfS. Overturning this outcome, and more particularly the imposition of such a significant fine, was the focus of this judicial review claim.
The overall outcome of the judicial review was that the decisions were held to have been unlawful for a number of reasons. Of relevance to the present discussion, was the question of what aspects of an English university’s internal framework could trigger the OfS’s jurisdiction to investigate protections for free speech.
There have been a number of articles in the media discussing the decision, which have posited what it means for other universities that may have a positive discrimination clause within some of their policies, or what it may mean for those who removed such provision following the OfS’s decision against the University of Sussex. There have been a number of opinions offered on the decision by commentators, such as – universities are now in a stronger position to defend their equality procedures and policies; free speech can be restricted to protect a right not to be bullied or harassed; and universities are in a better position to know how to strike a balance but many will likely now re-evaluate their policies. However, in actuality the decision does not provide any solid guidance in respect of these matters. Clarity is paramount, yet hard won, when dealing with how any institution should approach the balancing act between competing rights of those under their auspices.
The real mettle of the judgment, and the real aspect that I have found staff and students to be greatly concerned by, and rightly so, is that the judicial review court has now been compelled, by the nature of OfS’s remit relevant to this challenge, to venture into the realm of contractual interpretation. This is not necessarily a new occurrence, as the judicial review decision in Morgan v MIB demonstrates, where the court considered the lawfulness of certain aspects of a Government contract originally entered into pre-Brexit in furtherance of EU obligations.
In its approach to this contractual interpretation, the judicial review court appears to have gone further than would traditionally be the case by declaring that the University of Sussex had a ‘hierarchy’ of documents, such that not all of its policies / regulations / procedures could be considered to be ‘governance documents’. This was the approach advocated by the University, in contrast to the OfS’s position that all such documents should be regarded as ‘governance documents’.
On one view, this may demonstrate the limitations of judicial review when it comes to interpretation of the internal framework of Higher Education Providers (HEPs), particularly against the backdrop where it has been asked to interpret a statutory regime with the internal framework of only one UK university before it, as universities do not all follow the same model. They should all have provision to protect freedom of speech, because they are required to do so by statute. But they do not all label them ‘policies’ – for some they are incorporated as part of their private statutory framework, for others they are ‘Guidance’, for others they are ‘Policies’ or they form part of ‘Procedures’. When a student enrols, or a member of staff commences employment, at a university they are deemed to be contractually bound by these documents, whatever their nomenclature.
Contract law has always had an intrinsic ‘hierarchy’ of terms – condition, innominate, and warranty terms. But the approach in HEP cases previously has been that the courts would generally avoided getting into such analysis, the key questions being whether they were terms incorporated into the contract, and if so, how should they be interpreted if there is any ambiguity as to their meaning? It must also be borne in mind, that many of the key provisions in HEP contracts are implied by virtue of statute or common law. There is also a wide variation in how the same provisions may be incorporated within each HEP’s framework. Therefore, broaching such classification in the HEP setting may have unintended consequences as between providers.
But the approach of the court in University of Sussex v Office for Students now means there is a ‘hierarchy’. One could contend that this is limited to the jurisdiction of the OfS. However, the court acknowledged the contractual framework against which the OfS’s jurisdiction is to be gauged, so this aspect of the decision does have the real potential for wider consequences beyond the OfS context.
Does this mean that for some universities breach of certain provisions cannot carry serious sanction, whereas in some of their counterparts they may? What will that then mean for the significant disparities that exist between structures adopted by HEPs? Is the issue of a hierarchy only to apply when being considered by the OfS, and if so, how is that meant to assure academics or students that their rights will be protected by the OfS equally across England?
Protection of freedom of speech has already been gaining much traction in the courts of late. An increasing number of HEPs have been pursuing injunctions against ‘persons unknown’, consisting of staff and students alike, who have been protesting various causes on university property. The contractual frameworks in each HEP have been a critical part of the court’s analysis in each instance (although I will be discussing the issues of wider implication arising from these decisions in a further article). But what does this hierarchy now mean in that context? Can universities no longer complain that certain provisions were not complied with, because they were only contained in a policy? Can those protesting now expect a more difficult defence to their right to protest because certain provisions are deemed to rank higher in the hierarchy than their freedom of speech? The University of Sussex may ‘just’ have been attempting to avoid payment of a significant fine, but it has in many ways introduced a Pandoras box.
It can be understood why HEPs themselves may take comfort from this judgment, but for staff and students alike, as well as the OfS, it will lead to much uncertainty. For example, when dealing with misconduct, are the breaches of some policies now to be regarded as more egregious than others because they are labelled as ‘policies’ or ‘guidance’ rather than forming part of a statute or regulations (whatever their terms may suggest)?
It also creates uncertainty for the OfS. Can HEPs now avoid its jurisdiction simply by reclassifying certain policies to take them beyond the OfS’ jurisdiction of ‘governance documents’? Thereby watering down the protections offered to staff and students, and effectively neutering the OfS at a time when the Government has clearly signalled it intends to increase its powers and scope? After all, HEPs are the dominant party in such contractual relationships, free to alter their terms and conditions as they see fit, subject only to statute.
At the time of writing, it is understood that the OfS does not intend to appeal this rule (which could be based on any number of reasons, such as the findings relating to bias in the OfS’s processes). As such, it may be quite some time before any case comes along to offer clarity to these puzzling questions and return a sense of certainty to HEP frameworks generally.
Key take aways for any party involved in HEP disputes:
- General contractual principles and terms derived from statute still apply;
- The context of this decision must always be borne in mind;
- All cases in this field are very fact sensitive;
- A common sense approach to interpretation should always be encouraged; and
- Where there is any doubt concerning students, the consumer perspective must prevail (under statute).
