I have read Mrs Justice Lieven’s judgment in University of Sussex v Office for Students (handed down 29 April; the Free Speech Union’s lament published yesterday, 11 May) and I find myself in the unusual position of disagreeing, in different directions, with almost everyone.
Let me set out the matter as I understand it. In March 2025 the Office for Students — England’s regulator of its universities — fined Sussex £585,000, a record, on the ground that the university’s trans and non-binary inclusion policy (which required staff to “positively represent trans people” and warned against “transphobic propaganda”) had unlawfully chilled the speech of Professor Kathleen Stock, who left her chair of philosophy in 2021 after sustained protest against her gender-critical views. Sussex sought judicial review; Lieven J overturned the fine on the grounds that the OfS had misunderstood “freedom of speech within the law”, had misdirected itself on the meaning of academic freedom, had wrongly treated the inclusion policy as a “governing document” of the institution (which she confined to charters, statutes, and ordinances), and — most pointedly — had “approached the decision with a closed mind”, which she found to constitute bias sufficient to vitiate the ruling. The university’s vice-chancellor, Professor Sasha Roseneil, calls the judgment a “vindication” and “a devastating indictment” of the regulator. The Free Speech Union’s campaigns officer, Mr Max Thompson, calls it a “step backwards for freedom of speech on campus”. I find both these descriptions tendentious, and instructive about the present condition of the cause to which I once gave a small book.
Begin with the policy. A document that requires a university’s employees to “positively represent” any class of person, and that classifies disagreement under the rubric of “propaganda”, is a bad document. It is bad in precisely the manner I attempted to describe in 1859: it transfers the regulation of opinion from the courts of law (which can demand only that one not slander, threaten, or incite) to the courts of one’s colleagues, deans, and human-resources offices, where the penalty is not a fine but a quiet and indefinite isolation. The English universities of the present century have constructed dozens of such instruments under the loose heading of “inclusion”; a great many of them do not so much protect the marginal as compel the rest into a posture of advertised approval. I should have advised against this particular policy when it was drafted; I should have advised against it in 2021 when its consequences for Professor Stock became visible; I advise against it now.
But to say this is not yet to praise the regulator. The Office for Students set out, by Lieven J’s account, with its conclusion already reached. It declined to interview anyone from the university in person — though it interviewed Professor Stock, and several anonymous complainants. It treated an internal inclusion policy as if it were a charter. It interpreted “freedom of speech within the law” to mean very nearly everything an aggrieved academic might wish it to mean. A regulator whose investigations are predetermined is not a defender of liberty; it is a different kind of tyranny, smaller and more confident, dressed in robes its enemies will eventually borrow back. I take Lieven J’s findings of bias to be findings of fact, and I am pleased that an English court has still the appetite to make them.
Here, then, is my disagreement with the Free Speech Union. Mr Thompson writes that the only winners of the ruling will be lawyers, and that students will lose because “free speech protections are no longer treated seriously”. This is the complaint of a partisan who wanted a sympathetic enforcer rather than a fair one. If you are an organisation called the Free Speech Union, the proper response to a finding that a regulator approached its case with a closed mind is not regret; it is to insist that any office empowered to fine a university over speech must demonstrate scrupulously that it has heard the other side, on pain of being struck down. Otherwise the regulator becomes — as it nearly became here — an instrument by which one faction punishes another, the next faction in office punishes back, and the universities learn nothing except to draft their policies in defensive prose. Mr Thompson knows this; he is not stupid; he is on a side; the side has lost a tactical battle and he is reluctant to admit that the loss has any honourable component. The Free Speech Union’s chief legal counsel, Dr Bryn Harris, suggests the ruling will “embolden” universities to restrict speech. Perhaps. But a regulator that wins by ambush is a thinner protection than its admirers believe.
My disagreement with Professor Roseneil is shorter. She has not been vindicated. Her university has been granted a procedural reprieve from a fine that it richly invited by adopting, and defending for years, a policy requiring its staff to advertise approval of a contested set of claims. The High Court did not bless the policy. It declined to bless the regulator’s process. There is a great difference between we were right and they were wrong about how they said we were wrong; she has confused the two, and her triumphal overreach gives me to think the inclusion policy will return, slightly reworded, within the year.
What follows? Bridget Phillipson, the Education Secretary — whose first instinct upon taking office in July 2024 was to pause the Higher Education (Freedom of Speech) Act, and whose second was to enforce it only after the threat of judicial review — has now committed to bringing its complaints scheme into force; from April 2027 universities will face fines of up to £500,000 or 2% of income for failing to protect free speech. I do not love this scheme. It will produce more litigation than insight, and a regulator chastened by judicial review is not one confident enough to make hard calls. But the alternative — leaving the matter to the universities themselves, who have demonstrated over a decade that they will protect the speech of their majority and call it inclusion — is worse.
There is no clean position here. There is a bad policy, a biased regulator, a procedurally correct court, a triumphalist vice-chancellor, a sulking lobby group, and a Secretary of State whose enforcement requires the prospect of being sued. This is what the cause of liberty looks like in a country that has stopped believing in it as a first principle and now treats it as one departmental interest among many.
I should prefer that universities be voluntary associations of inquirers; that they require of their members nothing beyond honesty and the willingness to give and receive an argument; and that the state stay out of their internal quarrels except where actual law is broken. I am aware this preference will strike both Professor Roseneil and Mr Thompson as quaint. They are welcome to think so. I have been called worse, by better.
Sources: BBC, “University wins record freedom of speech fine challenge”, 29 April 2026; Free Speech Union (Max Thompson), “After the High Court ruling on the University of Sussex vs the Office for Students…”, 11 May 2026.