News article
Vice-Chancellor responds to OfS report on lessons learned from judicial review
A response from Professor Sasha Roseneil, the Vice-Chancellor and President of the University of Sussex, to the publication of Lessons learned from the University of Sussex judicial review by the OfS. Originally published in Times Higher Education.
"I warmly welcome the Office for Students’ lessons learned review and the constructive, forward-looking approach it sets out following the judicial review of its decision against the University of Sussex. I recognise and appreciate the new leadership’s commitment to learning and change and their acknowledgement of some of the OfS’ mistakes in the Sussex case. The promised reforms, focused on cultural and structural change in how the OfS operates, will be important steps in rebuilding trust and ensuring effective, proportionate regulation of the higher education sector.
"At the same time, and regrettably, the report does not fully reflect the breadth or the seriousness of the High Court’s findings or all the lessons that could be learned from the case. It is disappointing that the review, carried out by KPMG, did not involve engagement with us to understand our experience of the investigation, particularly given that the repeated refusals to meet with us during the investigation were so roundly criticised by the High Court judge, Mrs Justice Lieven. There would have been no better opportunity to demonstrate the new dialogical, open and learning-orientated approach promised by the report.
"The judicial review overwhelmingly found in favour of Sussex and resoundingly overturned the OfS’ decision against the university and the unprecedented fine that it sought to impose. In particular, there has so far been limited consideration by the OfS of its multiple failures to correctly interpret the law related to freedom of speech and academic freedom and to understand the scope of its own regulatory powers. There is no reflection in the report on how the OfS repeatedly misdirected itself in law. Nor is there any indication of how it will ensure it secures higher-quality legal advice in future or of how it will hold its advisers on matters of law, freedom of speech and academic freedom to account.
"There is also no consideration of the cost and proportionality of the four-and-a-half-year investigation process, either to the students and taxpayers who ultimately fund the OfS or to the University of Sussex. Value for money is, quite rightly, a key expectation placed on higher education providers by the OfS; it is only right that the body should deliver its regulatory activity with acute attention to actual and opportunity costs.
"Moreover, there is no transparent discussion or reflection in the report on how the decision was made to pursue this particular investigation and, exceptionally, to make public that it was happening. That discussion should have included consideration of any government or other political influence or interference that might have taken place, as well as of the nature of the bias and predetermination that Mrs Justice Lieven found to have been determining of the investigation and its outcome. It would have been timely to consider the impact of the “culture wars” on this investigation and to reflect on the OfS’ failure to investigate other free speech and academic freedom issues, such as those reported to it concerning OfS-registered “Bible colleges”.
"Finally, while I would strongly endorse the new “no surprises” approach to regulation that is promised by the report, it is a puzzling response to the Sussex case because surprise was not the problem. On the contrary, the underlying problem was that there was no possibility of surprise because the case was subject to bias in the form of predetermination and was prosecuted by the leadership of the OfS with a closed mind. As the judge determined, the decision had effectively been made at the outset, and the OfS spent three and a half years seeking evidence to justify a decision against Sussex and to impose an exceptionally large fine.
"All that said, the review does very importantly reveal deep cultural problems within the OfS in relation to freedom of expression and internal challenge, and it is heartening to see the new leadership setting different expectations for the organisation. Those new expectations are more appropriate for a public institution that is trusted to regulate one of the most important sectors in a democratic society.
"The University of Sussex looks forward now to an open and ongoing dialogue with the OfS and to working collaboratively with its leadership to support a regulatory approach that is fair, evidence-based, proportionate and that protects both freedom of speech and academic freedom across higher education."