Post-legislative scrutiny of HERA begins

Five years, five months, and nine days ago the Higher Education and Research Act 2017 emerged – blinking – into the sunlight.

In early 2018, it brought about two bodies that have come to dominate discussion about higher education policy in England – the Office for Students, and UK Research and Innovation.

The storied history of higher education in England aside, we live and work in a world created by and scaffolded by the 125 sections and 12 schedules of HERA2017.

So, how’s all that going, would you say?

Marking your own homework

In a quirk of the Westminster parliamentary process it is the Department for Education that gets to answer that question – it was the department that saw the legislation through the initial scrutiny process. Today’s publication of a post-legislative scrutiny memo (a “section 40” memo to use the jargon) is the result of DfE’s reflection on how the ideas that underpin the legislation have survived contact with reality.

You would think, perhaps, that there would be some place for the voices of other stakeholders in this review – that students, providers, agencies, and the wider public would have some well-considered opinions that might be worth considering. There is – but you are going to have to make some noise in order to get it.

Specifically you need to write to and otherwise lobby the Commons Education Committee, who have the power to decide to hold a full inquiry. With a new, keen, committee chair in Robin Walker – and with no other higher education focused work currently in train – it would feel like a reasonable idea to review the legislative underpinning of the sector. An inquiry would call in expert witnesses (and also the minister), and represents the best way to get some of the more glaring issues addressed.

Is it really that bad?

You might recall, in my usual spirit of public service, that I had a stab at writing the memo for DfE when it became clear that things were running a little late. It’s fair to say that the DfE opinion of HERA and the associated regulatory apparatus is far sunnier than mine, but even between the rainbows and unicorns there are a few things flagged that should give anyone pause.

You can’t really hide the fact that since passage we have seen a “major” review of fees and funding (popularly known as the Augar Review, more properly the Post-18 Education Fees and Funding Review), a review of the Teaching Excellence Framework, two pieces of primary legislation dealing with – and amending – HERA (the Skills and Post-16 Education Act, the Advanced Research and Innovation Agency Act) and two further pending pieces of primary legislation (the Higher Education Freedom of Speech Bill, the Higher Education Bill promised in the 2022 Queen’s Speech) that would amend HERA further.

This is on top of more than 60 pieces of secondary legislation connected to HERA, three large DfE consultations (post-qualification admissions, the lifelong loan entitlement, HE Reform) and an amount of regulatory guidance so massive that OfS has stopped publishing the word count. We have seen, in other words, an immense amount of time and effort spent altering and finessing HERA so it does what the government wants it to – suggesting that the original version was, at best, poorly drafted (or that the government no longer wants what HERA set up).

HERA has patently not achieved any lasting consensus on the funding, regulation, operation, or quality assurance of the sector. To pick on quality because it is an aspect I am particularly interested in, we have somehow managed to lose both a Designated Quality Body and the idea that the sector itself has any meaningful role to play in setting and reviewing standards or quality expectations. Not only does this go against what the sector wanted, and against internationally understood norms (dragging down the reputation both of English higher education and higher education in the devolved nations) it also deviates sharply from the expectations of ministers in this area.

What does DfE reckon?

The language in the memo is positive in general – you do get the sense that a post-legislative scrutiny inquiry on HERA is very much not on the OfS Christmas list – but there are hints that not everything is quite right.

For instance, on the underlying idea of opening the higher education market to what we once called “challenger providers”, we get the following:

While the government may have envisaged that more new providers would have registered with the OfS than have done so in practice, it is not currently government policy to actively seek to increase the numbers of HE providers. We consider that the new regulatory approach has established a single-entry route as intended, going some way in levelling the playing field between incumbent providers and those wishing to enter the sector

In one short paragraph we get an admission that the central reason for HERA (and by extension the OfS) to exist is no longer a government priority, a recognition that the number of providers that actually entered the sector was not as large as was hoped, and that the new arrangements for entering the sector have not actually “levelled the playing field” in any tangible way. It is quite the moment – HERA hasn’t worked, the reason existing for HERA turned out not to be true, and HERA hasn’t actually addressed the problem as it was designed to.

There is recognition that “we recognise that some sector stakeholders have raised concerns regarding the regulatory approach” when it comes to burden, but the only answer is that OfS is doing its very best to address the issue.

There’s more, folks

Moving on to quality assurance, the line is as follows:

We and the OfS have found the provisions relating to the assessment of standards to be complex to apply in practice, because HERA gives the OfS the power to determine and enforce conditions of registration for standards, but reserves to any designated quality body the function of assessing standards in an individual case. This means that the OfS cannot always act quickly in cases where it considers there to be regulatory risk. There may be a case for amending these provisions through primary legislation in due course, to ensure they can be deployed more effectively in practice.

Additionally, assessments of standards must be made against sector-recognised standards. While this ensures the sector is adequately involved in setting standards, the OfS finds that this may constrain their ability to take a more direct regulatory approach in some circumstances.

This is very much an OfS house line – wouldn’t regulation be easier and quicker if we didn’t have to take account of the autonomy of the sector and the statutory right for the sector-recognised standards (the UK Quality Code, the Subject Benchmarks) be used as a basis for intervention rather than what has annoyed OfS and ministers that week?

Literally changing the law to remove the sector oversight of standards so the OfS can dive in boots first strikes me both as a bad idea in and of itself and a retreat from the language of HERA. The fact that DfE and OfS keep having to amend HERA to do stuff they want to do suggests either that HERA is not fit for purpose or that some of the things OfS and ministers want to do are not a good idea. Or as it turns out, both – DfE at least is self-aware enough to admit changing the role and treatment of the DQB is probably bad.

Data futures?

We can thrill to the idea that there have been no problems with section 38 (the requirement that OfS annually reports on arrangements for student transfer between providers), until we realise that OfS has not actually done this – you’ll look in vain for any mention of the issue in the latest annual report, and the last data publication was in 2021. So there have been no problems because nothing has been done – not quite the same thing.

On sector data collection we find this delight:

The Office for Statistics Regulation (OSR) highlighted in its systematic review of the public value of post-16 education and skills statistics that the more focused data remit of the OfS and efforts to reduce data burden have impacted the consistency and usefulness of information across UK nations, such as data on the HE workforce and estates

You can read that as evidence of a trade-off between burden and comprehensiveness – until you recall the earlier language on burden reduction is very much a future aspiration. So currently we have more burden and less comprehensive data – which is quite the achievement.

Of course – it’s you that pays for the OfS’ regulatory activity (leaving aside the additional funds it gets from DfE to actually do regulation). The promised review of the OfS fee model – meant to happen in the second year of operation – was delayed during the pandemic restrictions. Is the sector getting value for money? It feels like a question that is overdue an answer.

So where does this leave us?

I don’t intend to do an exhaustive list of all of the concerns flagged within this document (though, seriously, come on – sharia compliant loans when?) but what I’ve excerpted here should be enough to give you a flavour of a document that has been written defensively but cannot avoid flagging some of the very real problems HERA (and by extension, the way OfS conducts itself within the parameters set by HERA) is causing.

The Office for Students has often failed to regulate in the spirit of HERA even though it has been (mostly) compliant with the letter of the law. HERA itself is widely seen as both complex and vague – it does feel like we could do a lot better given the way that the post-2010 consensus in favour of market-led regulation (and funding) seems to be crumbling before our eyes.

Having unwrapped the shiny market regulator packaging of OfS, it seems that ministers and DfE would really rather have had an old-fashioned interventionist arms-length regulator (and there is by no means a consensus on how long the arm should be). Even if we ignore the problems that HERA causes for students and the sector, the fact that the underpinning ideas are no longer government policy should give us pause.

As I noted at the top, a full committee inquiry into HERA has the potential do a lot of good. And it is up to you to make it happen – anyone can lobby the Education Committee and I am sure the clerks and members would be delighted to hear from you.