Has coregulation met an untimely demise?

Coregulation is one of those terms I hear used a lot in higher education policy circles, but it isn’t always immediately clear what it means.

Despite this, I also hear about how it is being threatened and must be protected, or conversely that it is an unfashionable ideal from a bygone age. What is it, then – and is it relevant to how regulation in higher education can work in the interests of students and wider society?

What it means

In essence coregulation is a regulatory governance concept where the state, regulators and stakeholders, including consumers and producers, jointly form part of the institutional setting for regulation within wider legal or regulatory frameworks. The benefits are that it can enhance public policy implementation and accountability and create a more efficient regulatory environment, often by utilising expertise, approaches and control mechanisms in the relevant sectors where it is used. It can also avoid the need for harder regulatory interventions or sanctions. The potential risks, however, are regulatory capture, restrictions on competition and lack of responsiveness.

In higher education coregulation in many ways became synonymous for the way HEFCE worked in England. HEFCE was established as a funder, but there was an expectation that it would act as a de facto regulator across a range of areas. Given limits to its powers beyond direct accountability for funding, it developed an effective approach that would engage stakeholders to interpret and address government objectives. We also had sector bodies, notably the QAA and HESA, delivering important statutory or quasi regulatory functions.

Where it didn’t work

But there were problems. First, while the state and providers did in many instances share the regulatory setting to meet objectives, and this was effective in several ways, it is questionable as to whether students were a meaningful part of this. Students were often invited to the table, but asymmetries in resources and lack of formal mechanisms for engagement meant this was limited and it wasn’t always hardwired into the coregulatory approaches.

Second, as the challenges facing the higher education sector grew, the words “regulatory capture” were used more frequently. The perception was that the partnership developed between regulator and regulated had become too cosy and lacked responsiveness. The reality was probably more nuanced, but perceptions are important. It is probably not surprising that the OfS is clearly at pains to put distance between itself and the HEFCE way of doing things.

The future of coregulation

Does this mean coregulation is dead and irrelevant in higher education? Not at all. As a concept coregulation is a sophisticated and modern regulatory tool. It doesn’t work for all settings and issues, but there are many ways in which it can still work for higher education. At present UUK is having constructive discussions with UKRI about dealing with the challenges of research integrity and misconduct. Command and control regulation feels disproportionate, and ultimate responsibility sits with employers, but we do need to see more progress, and coregulation feels like a good way forward.

We are also seeing a coregulatory approach to tackling the challenge of grade inflation that is moving towards meaningful outcomes, informed by open and honest discussions about the challenges faced. I have focused mainly on England, but the UK quality standing committee that coordinates this work is also a good example of how different coregulatory expectations across the UK can be managed.

Even with the new powers given to the OfS in England, shared regulatory responsibility will still be required. Coregulation is, for example, hardwired into the provisions in the Higher Education and Research Act 2017 (HERA), notably through the designated body process. The strong government intention during the passage of HERA was that data and quality functions should be established explicitly on a coregulatory basis. Both HESA and QAA are now designated bodies under these provisions.

Next steps

Building on this, if we are to have a more compelling vision for the future of coregulation in higher education there are a few things I think need to happen:

  • Regulators and stakeholders need clear joint understanding of the objectives they are seeking to address under coregulatory arrangements;
  • Coregulation processes should to involve all stakeholders, particularly students, and providers. Asymmetries in resources and ability to engage need to be acknowledged and compensated for;
  • There should be greater transparency, monitoring and accountability of these arrangements. We need to know they are meeting objectives;
  • Regulators should be open to entering into coregulatory arrangements, and have criteria for doing this, including where this brings direct and indirect costs of regulation down. This will be especially important for the OfS in England, which is effectively being paid for from student fees from this year;
  • The sector needs to be prepared to acknowledge and engage in the tough questions it faces. Without this, options for coregulatory solutions will be limited;
  • Coregulation relies on fit for purpose sector-based systems or infrastructure to be effective. The sector needs to be open to reforming these where necessary to make coregulation work;
  • Coregulation can only work with ongoing professional dialogue and working at it. If there is a disconnect between perspectives on the fundamentals – problems and aims – all parties need to be prepared to work through what can be done about it.

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