In the first of our series on the future of higher education regulation in England, top wonks from across the sector consider the political environment, autonomy, the student interest and new providers.
Andy Westwood: OfS is the wrong regulator for the political times we live in
The Office for Students (OfS) was formally established by the Higher Education and Research Act 2017, coming into existence on 1 January 2018. The first reading of HERA was on 19 May 2016 (with a Queen’s Speech in between) just three days after the Success as a Knowledge Economy white paper was published.
Does anybody remember that time? David Cameron had just won a surprise majority in the 2015 general election, the Conservatives’ first outright majority since 1992. Sajid Javid replaced Vince Cable as Secretary of State at the Department for Business, Innovation and Skills – bringing with him a portrait of Margaret Thatcher to hang behind his desk and a deep scepticism about the industrial strategy developed by his predecessors. Elsewhere in that Queen’s Speech, her government promised to “hold a referendum on membership of the European Union.”
Quite a lot has happened since 2016. But rather less has happened to the powers and remit of England’s higher education regulator.
It’s remarkable that it has survived more or less intact since its inception. HERA was finally passed on 27 April 2017 in the wash up before the June general election where Theresa May blew the majority won by Cameron in 2015. During her time as PM she was mainly occupied by Brexit, but she still found time to pursue an interventionist domestic agenda, embodied in both the new Industrial Strategy, the formation of BEIS to deliver it and the commissioning of the Augar review.
To all intents and purposes, Boris Johnson’s is another new government – albeit with a much larger majority after the 2019 general election. He got Brexit done and we have now left the European Union. But now his and others minds have turned to the domestic agendas that follow. He hasn’t it seems “taken back control” just to then cede it completely to free markets.
He and his fellow ministers are engaged in an ideological struggle between traditional and radical Conservatism – between markets and interventions in them – with a cabinet that includes “small state traditionalists”, “pragmatic Thatcherites” and led overall by a self styled “Brexity Hezza”. In the past 18 months it has intervened “before breakfast, before lunch and before dinner.” Its primary domestic objectives are there for all see – “levelling up” and transitioning to a “high wage, high skills, high productivity economy.” This, according to Boris Johnson, is what people voted for in 2016 and 2019.
OfS – like many other regulators – is much more suited to the first of these approaches, but the government wants the others too. It is also very keen on political symbolism and the headlines that flow from it. It likes to get things done and to take credit for doing so – whether tackling a “free speech crisis on campus”, abolishing “the 50 per cent target” or bearing down on “low value degrees”. But it is clear that OfS doesn’t have the levers to fulfil these agendas, let alone those that might help “levelling up” or improving productivity or wages.
So it turned out that OfS (and at least to some extent the rest of HERA) was fashioned in the one year where it was possible – a “free market” window where traditional conservatism had a newly won majority. But since that time it has looked rather less aligned with ministers who have generally wanted to do either more with – or to – universities, degrees and students.
Paul Ashwin: What is the student interest anyway?
There are two significant tensions facing OfS in its current approach to regulation. The first is that while, in name and stated purpose, it operates in the interests of students, it is notable how often the Department for Education (DfE) appears to have determined what students “real” interests are. It is significant how many OfS press releases focus on issues that reflect the priorities of ministers rather than student representatives – grade inflation, grammar and spelling, ‘low value” courses. This is not to imply these issues are not of interest to students, but it is concerning that they are framed in terms of the government’s agenda rather than diverse priorities of students.
The second is how much OfS is seeking to regulate HE institutions or to regulate the system of higher education. Again, many of its public statements focus on what institutions must or must not do. There is far less of a sense of how it is working to ensure that there is a high quality system of education for all higher education students regardless of where or how they study.
So a future agenda for OfS would focus on how it can meaningfully take account of the diverse interests of students and how it can support a high quality system of education rather than how it herds individual institutions to the DfE’s chosen path. To do this would require OfS to be more of an honest broker between students, the sector and the DfE and less of a sense that it is the DfE’s preferred delivery service. In the current climate of electoral-winners-take-all, the prospects for this change in approach are not promising.
Syahadah Shahril: OfS needs to be more creative when thinking about the student interest
From arts students’ point of view, over the past year we dealt with sudden degree show cancellations, fickle workshop opening hours, bedroom performances and the loss of courses/expertise as our universities made staff redundant. Meanwhile OfS, the regulator set up in our name, gave us a 50 per cent cut in “strategic priorities” funding, a complete lack of clarity over our rights, and poor attempts at regulating our provision during the pandemic.
Occasionally we got a blurry light in the dark fog of the restrictions, leading us to frantically tell each other to “send a notification to OfS!” while wincing at the thought of being referred to as a “consumer”. For some fighting for their education, the pandemic has looked like a desperate whirlwind of group complaints, board hearings, settlement offers…and occasionally creating pieces of art in our bedrooms out of whatever was on sale at the art supply store.
Creative arts courses are a wild west because OfS pronouncements either don’t cover them, or work for them. When your lost learning is about restrictions on studio space, what use are pronouncements about “teaching delivery”? Universities always find loopholes, resulting in – among many other examples – film courses without equipment for students, degree showcases outsourced to overworked staff and students, and spaces without capacity to hold the artwork of an entire graduating year.
Regulating on the basis of principles and risk might sound fine, but in reality for creative arts courses the regulation turns these courses into, well, not creative arts courses. Art and design education is as much about collaborating in studio spaces and building a portfolio of work as it is about contact hours or assessment feedback. OfS, alongside the alphabet soups of the higher education sector, does not seem to understand this. It doesn’t really seem to understand students at all. Short of sending regulators off to art school, OfS could start with student forums for creative arts students and their SUs. Or they could drop by our studios.
Johnny Rich: How to balance autonomy with interventions
At the heart of England’s higher education regulation system is a balancing act so delicate, it’s almost a contradiction. The very same act of parliament that gave us OfS also enshrined in law autonomy for the institutions that passed the fitness tests for registration. This was for the sake of academic freedom and diversity, but also to stimulate a healthy market in HE. So, given that providers have unique freedoms to govern themselves, what can the regulator usefully do? Markets, even well-designed ones, sometimes fail to deliver what the incentives (usually money) don’t reach. The regulator therefore can step in to provide those incentives with carrots, sticks or both. So, here are three areas where the regulator could make itself useful:
Access: It’s easier to graduate those students who need least teaching and who’re most likely to get jobs – in other words, those with pre-existing attainment and privilege. The incentives flow against admitting those very students whose lives – and whose contribution to the economy and society – will be most transformed by the opportunity of higher education. This is already OfS’ territory, but recent moves to regulate quality through un-benchmarked outcome metrics which higher education providers can’t easily influence, rather than on the value added, undermine those efforts.
Inputs: Graduate outcomes are ships in a tide of circumstance rather than trains inevitably running on tracks that higher education providers lay down. The regulator can ensure providers do what they should to put the wind at the back of students on their journey. But given that providers are autonomous, they should each adopt their own approach. The regulator should therefore ask them to outline their necessary inputs in terms of teaching, professionalism, support, facilities, etc. It can challenge them if they lack ambition and it should hold them to account when they do not meet the standards they’ve set themselves.
Complaints: The OIA acts as ombudsman for student complaints, which means that English HE in effect has (at least) two regulators. There’s an argument for merging them to avoid mixed messages and to join the feedback loop of complaints driving the rule-making. This would also put the regulator firmly in the role of the champion of the underdog. In most sectors the regulator protects consumers who already have the power to take their custom elsewhere. In HE, the student is not just the “consumer”, in some senses, they are part of the product being created and they can’t simply trade up. They need a regulator in their corner more than most.
Joy Elliott-Bowman: Can OfS be all things to all providers?
In 2017 Jo Johnson envisioned HERA delivering a “level-playing field” for all HE providers through OfS. The basic premise was that equal access to the market would ensure providers, and thus students, had equal access to government benefits based on their choice – and OfS would regulate to ensure only quality providers were given this privileged access. The challenge of course has been that equal access is never that simple, whether it is students accessing HE provision, or those providers accessing OfS.
Four years on, access to the market has not grown as predicted. Far fewer independent providers have joined the register and those with success have found themselves straining under the burden of regulatory processes designed for much larger institutions. The level playing field turned out to be on top of a mountain – and only larger universities were given access to the gondola.
Most would agree that OfS can and must regulate in the areas they have. Their focus on equality highlights clear nuances that while generally acknowledged in HE, have not featured in regulation before. It is right that we ensure every student has fair access to higher education and is supported to succeed, both during and after their course. How providers do that can and will vary, as providers are as diverse as the students and courses they offer.
Where providers disagree with OfS is not on the areas it regulates, or even the outcomes it asks of providers. It is the way it operationalises that regulation. Perhaps now is the time for OfS to consider ideas such as an “SME approach” to regulation like that which is found in other sectors, or to explore how different regulatory methods can create better evidence from different providers. It might be that we need a few different methods to climb the mountain for everyone to reach a level playing field.