Irrelevant Considerations

Yesterday, the High Court handed down judgment in R (University of Sussex) v Office for Students. The University won. The £585,000 fine has been quashed. The OfS has been found to have predetermined the decision, picked Sussex as a “test case” to incentivise the sector, refused to settle on any terms short of full admission, ignored the institution’s principal free speech document, and operated through a committee that “almost entirely” adopted the line of the officers running the case. For the record, I do not condone the logic of the witch-hunt - and there is more to be said about this aspect of the finding than I want to do here.

Today’s blog is about a single phrase, on page 56 of the judgment.

“Irrelevant considerations.”

That is the phrase Mrs Justice Lieven uses, at paragraph 271, to describe the chilling effect on academic freedom and the stress and anxiety inflicted on academics. Irrelevant. Not ‘relevant but insufficient’. Not ‘present but outweighed’. Irrelevant. To breach the academic freedom principle, the judgment tells us, an academic must be in jeopardy of losing their job. Not in jeopardy of disciplinary process. Not at risk of psychological injury or even at risk of unlawful harassment and discrimination. Not subject to a chilling effect “however harmful that might be.”

Reader — I lost my job. Arguably Prof Stock also lost her’s the moment the police informed her that she ought not attend campus.

We lost our jobs - here is the legal phrase that Lievens seems to have missed - constructively. Speaking just about myself, I won at tribunal. But the mechanism by which I lost it was not that dissimilar to mechanism that happened at Sussex and the mechanism at play in my unlawful blacklisting and cancellation from Essex university. Yet it is these things this judgment now files under “irrelevant.” Years long campaigns of harassment. For me, the instruction not to discuss my research at departmental meetings. The being compared to a racist by my line manager. For Prof Stock the posters, chants, hostile enivronment, the villifying and decrying, the ostracism. In short, the harassment and bullying. But there is also the chilling effect, comprehensively documented, on every other gender critical academic watching what was happening. None of that, on this reasoning, would have engaged the academic freedom protection the regulator exists to enforce.

So what is relevant?

The judgment protects Sussex from a regulator that overreached. It does not protect the gender critical academic from the institution that harasses her. The judgment endorses a Stonewall-template policy as compatible with academic freedom on the basis that the institution’s safeguarding clauses must be assumed to work and the institution must be assumed to act lawfully. It offers, as a worked example of a “less intrusive means” of balancing rights, the pre-vetting of a gender critical feminist lecture by the university because someone has objected. Read that sentence twice. In 2021 Akua Reindorf KC, reviewing the cancellation of one of my own talks at the University of Essex, found that asking the speaker to submit her talk in advance was unacceptable, and noted the Joint Committee on Human Rights view that such pre-vetting is not a reasonable condition to impose. Five years later the High Court has now floated that very practice as a reasonably practicable accommodation in a free speech judgment. That is the protection on offer. A potentially unlawful practice in the face of students’ sensibilities in the absence of actually hearing the lecture.

And then, on cue, comes the Orwellian turn. Sussex’s Vice-Chancellor — the same institution where Kathleen Stock was hounded out, where the policy at issue today was operated for years, where the events that triggered this entire investigation happened on her predecessor’s watch and on hers — emerges to present the University as a bastion of free speech protecting universities from regulatory overreach and vindicated by the courts. The institution that lost a professor, that ran the policy, that has spent four years and considerable public money defending the policy, now claims the mantle of academic freedom because the regulator was found to have approached it with a closed mind. This is what victory looks like when the language has been captured: the place that did the harm celebrates the judgment that says the harm was irrelevant. I cannot help but think of the blog post written by the Deputy VC on the day my tribunal started claiming “While we’re not alone in facing the challenge, we will be at the forefront of where the discussion goes next, with a high-profile employment tribunal due to start today.” That blog did not age well. I hope that Sussex’s VC’s gleeful delight ages just as well. I truly hope the Office for Students appeals this judgment.

At paragraph 269 the judgment goes further. Public bodies “must be assumed to be intending to act lawfully unless there is very clear evidence to the contrary.” I nearly fell off my chair when I read that sentence. I have been tracking the employment tribunal, County Court and Judicial Review wins from gender critical employees and organisations. There are an awful lot of them! We win about 85% of claims brought. The evidence is not absent. It is voluminous. Where gender critical matters are concerned it would seem that assumption that public bodies are acting lawfully is … I am struggling for the right word … oh, let’s just go with utterly delusional. It is the entire jurisprudence of the last six years. And we are told to assume universities act lawfully unless shown otherwise — as if each of us, individually, has to re-prove from scratch what the courts have established collectively, repeatedly, for half a decade.

I am tired of legal architecture designed as if the worst case is hypothetical. The worst case is not hypothetical. It happened to me, and to Kathleen Stock, and to so so so many others. Whatever we think of how OfS conducted the investigation, the protection is it meant to offer is for the harm that actually occurs. But no, such harm is now…

Irrelevant.

The word should burn.