Labour sets out an anti-market stall

Beyond the last election’s popular pledge to scrap fees, detail on how the Labour Party might approach the sector’s raft of issues has thus far been scant.

There could be an election any day now – and rumoured tension between the shadow Education secretary and the Labour leadership has caused many to wonder aloud whether Angela Rayner would be as committed to directing resources into HE as her boss if Labour was to win. So a speech at a UCU event on the proposed national education service was always going to provide an opportunity to flush out some clues.

There was a good deal of political broad brushing – education defined as a public good, going further than mere “parity of esteem” in FE, and the announcement of a lifelong learning commission to put meat on the bones in the coming months. It’s the policy detail we’re concerned with here – and whether the messages on marketisation that Rayner was keen to communicate stand up.

Killing off the market

In the pre-speech coverage, HE as a market came in for particular criticism – and it was OfS that was put in the firing line.

Ending the duty placed on universities by the Office for Students to promote competition to reverse the Tories’ failed free market experiment in higher education and replace this duty with a duty to promote collaboration between other universities, schools, colleges and educational institutions”

As a broad message this both “went down big in the hall” and played well on social media – the central charge being that OfS is driving the marketisation of the sector because of the legal basis on which it was formed.

Technically, this would mean a change in legislation, although the actual wording isn’t as stark as many think – many forget that Labour’s own backbenchers forced concessions during the passage of HERA, which mean that OfS’ current duties involve both the need to encourage competition (“where that competition is in the interests of students and employers”), while also “having regard to the benefits .. resulting from collaboration” between providers.

Whether that change would actually mean an end to things like NSS or the TEF depends on whether you believe that those things are about competition, or sensibly aiding student choice and improving institutional performance. But the bottom line on competition is that it isn’t Nicola Dandridge roaming around the UK on a horse, forcing providers to fire out unconditional offers and iPads with her magic competition stick – it’s the removal of student number controls.

And whilst Rayner did repeat the fees pledge – “we will abolish fees and bring back maintenance grants” – she was curiously silent on the unit of resource, and whether student number controls would return under a Labour government.

On institutional finances, Rayner was again on comfortable ground:

Set an explicit objective for the OFS to avoid the bankruptcy of any higher education provider and give the OfS the powers needed to provide emergency loans if they are needed for a provider to remain viable”

As we have already noted on Wonkhe, not only does HERA already allow OfS to make loans (HERA 39 (1)), OfS’ draft funding Ts and Cs for the year propose that it reserves the ability to “make repayable grants or loans to a provider”. So this one is probably more about the strategic guidance that the DfE gives to OfS than it is about any change of powers.

Startlingly, the conservative rebuttal on the bankruptcies point was to point out that OfS has given all registered institutions so far a “clean bill of health” on their finances. Here they’re referring to providers passing the regulatory framework tests of three years’ viability (D1) and five years’ sustainability (D2) – and it is of course true that we have not seen any formal conditions of registration imposed in these categories either.

But we don’t know how many providers are under enhanced monitoring here – and given the recent headlines, it’s quite a risky position for CCHQ to have put itself in. OfS reports on the financial health of the sector and the themes emerging from the registration process are both due in a matter of weeks.

Diversity

In the pre-speech press release material, there was quite a bit on equality and diversity, highlighting killer stats on the gender pay gap and the number of Black professors, with a pledge on “overhauling the regulator… to take the steps needed to address it”.

Committing the OfS to report on diversity in university staff and student bodies and propose bold action to make universities “genuinely representative of the communities they serve”.

There is plenty of this sort of data out there already (which is presumably why Rayner is angry), and it would be simple enough for OfS to be asked to produce an annual report. It’s the question of benchmarking performance against “communities they serve” where things might get more interesting – particularly in parts of the country that aren’t very diverse at all.

But it wasn’t just transparency. The detail also included a pledge to ensure that transparency reporting requirements “include data on gender and ethnicity pay gaps and the outcomes of promotion decisions”, requiring institutions to set out “steps they are taking to improve diversity and representation and to publish their progress annually”, and instructing institutions to publish “clear and transparent progression criteria including the steps toward attaining Professorship”.

Again, squaring these sorts of measures with HERA’s current definition of autonomy (which includes preventing OfS from specifying “criteria for the selection, appointment or dismissal of academic staff”) might be tricky – but we may well end up with a version of OfS’ Access and Participation regime, but focussed on staff rather than students.

On students there were a raft of pledges on enhanced transparency – the theory here being that if you shine a light on gaps, providers feel the pressure the close them.

Strengthen and expand the transparency duty in the Higher Education and Research Act to include the following characteristics in which specific and significant disadvantages in the education sector can occur: age, disabilities, care leavers, those with a caring responsibility, sexuality.

We already know that OfS’ Access and Participation function is intending this spring to “undertake further work” to explore whether it should extend its transparency information condition (condition F1) to include breakdowns by age and disability – so it’s care leavers, caring responsibilities and sexuality that are new here.

Governance

Mandating that staff are represented on the board of the OfS to ensure that the views and interests of university staff are reflected in decision-making”

Amusingly, the conservatives’ attempted rebuttal on this proposal tried to point out that two academics are already on the Board – but not only are they not a defined category in the legislation, Angela Rayner probably didn’t have comrade Steve West, VC of the University of the West of England in mind when she delivered the speech.

Oddly missing was any similar pledge on institutional governing body membership (long legislated for in Further Education), or indeed much at all on university governance in general – which given recent news felt odd.

Reverse the Tories’ decision to allow new higher education providers to have degree-awarding powers from day one and require new providers to have their degrees validated by a partner institution before they are granted their own degree-awarding powers.

It’s interesting that Rayner didn’t rule out private, for profit provision altogether – instead suggesting a return to the kind of institutional apprenticeships that would probably just slow down the kind growth that conservative ministers have long been trying to speed up.

Instructing the OfS to enforce and ensure compliance with Labour’s commitment to 20:1 pay ratio between the highest and lowest paid members of staff in publicly-funded bodies, including universities”

This is a manifestation of a long standing pledge from the party, but isn’t quite as attractive as many think – on the current Living Wage foundation rate of £9 an hour, 20:1 would be over £350k – and according to OfS’ figures this week, would only be an issue for twelve providers. Factor in the London weighting and the fact that Labour would like a £10 living wage, and it catches even fewer.

The interesting legislative question is whether the provision would conflict with the institutional autonomy clause in HERA – which is worded as “the freedom of English higher education providers within the law to conduct their day to day management in an effective and competent way”. Broad powers to revoke autonomy may well be fiercely resisted in principle, and more specific directions can tend to run up against the principles of charity law.

Ban Vice-Chancellors from sitting on their own remuneration committees”

This particular pledge reflects both long standing concern about the process of VC pay setting generally, and suggestions made in the press specifically about practice at De Montfort. But OfS has already got about as close as it can get to banning the practice already – regulatory condition E2 (management and governance) effectively requires providers to follow a suitable code, and following DfE’s strategic guidance letter last year, its accounts direction basically mandates use of the CUC code, which was revised to rule out VC membership of their own pay bodies last year.

So what happens next?

In the event then, the messages were probably and inevitably more about playing to the staff gallery than policy detail – an extension of the party’s tactics in education in general, where there has been a major play for the hearts and minds of school teachers too. The key lines on fees and markets were in – but that unit of resource per student remains a mystery. Add the potential cost of the pledges on HE to those made in FE, schools and early years and this all still looks eye-wateringly expensive – and we’d have to assume that there will be trade offs somewhere.

More broadly, the message for the sector couldn’t have been clearer – expect a less autonomous, less competitive, more planned future. The lack of mention of the return of student number controls – the most obvious lever to achieve this – was the elephant in the room. And if we don’t get an election until the number of 18 year-olds starts to tick back up again, that elephant may become harder and harder to avoid.