Big and really rather bossy: the new regulatory burden

Jo Johnson, addressing UUK on 1 July 2015 and talking about his plans for the TEF, said: “Believe me, I have no intention of replicating the individual and institutional burdens of the REF. I am clear that any external review must be proportionate and light touch, not big, bossy and bureaucratic.”

Following the recent blizzard of documents relating to the government’s proposed changes to higher education regulation we now have a much better idea how the TEF is intended to work and how it fits in a significantly changed HE landscape. The reality is that the TEF is going to be a significant new burden for the sector, for institutions and for individuals. Moreover, the wider changes to HE regulation look set to increase rather than reduce the overall burdens.

Smita Jamdar, writing here on Wonkhe got it right on the challenges to institutional autonomy that the Office for Students represents and noted how its powers are to be far-reaching:

Some, maybe even a lot, of this may change as the Bill works its way through Parliament, but the main principles on which it is founded are unlikely to. We will undoubtedly be left with a more explicitly regulated, less autonomous and less stable English higher education sector, with greater risks for prospective students, students and graduates alike. I only hope that the upside, whatever Ministers think that might be, is worth it.

Looking at the White Paper proposals in the round, it is inescapably the case that there is a significant additional burden here. There is, of course, an element of cost associated with switching to a new system. Even if one accepts that there is a cost to change, it nevertheless seems inevitable that by the time we reach the end of the full implementation of TEF the costs to universities will be substantially higher than they are at present.

There are many claims about the playing field being levelled in the White Paper. (Indeed there are seven references to ‘levelling the playing field’ or ‘level playing field’, which is particularly annoying as I had a bet on it equalling or exceeding the Green Paper’s eight references.) All of this work with the big roller though looks to be squarely for the benefit of new entrants to the sector: the ‘challenger’ institutions which are intended – somehow – to drive up quality and standards by having their entry to higher education significantly eased.

The Office for Students, which will oversee all of this new regulation (or reduction of it in the case of new entrants), will be much closer to the Secretary of State than HEFCE ever was, as Smita notes. Given the number of issues on which the OfS is deemed to require advice from the SoS you are left with the clear impression they are very much just down the corridor rather than at arm’s length (as they should be from a Non-Departmental Public Body) – or indeed at the other end of the M4.

Questions and quality

There are thus many unanswered questions in the White Paper for the OfS to resolve, including who will be the information provider (can it be anyone other than HESA?) and who will be the quality assurance body (bookies have stopped taking bets on the QAA). Although the path to designation is not straightforward for either body, we are looking at a similar regulatory landscape in some respects at least, with many familiar landmarks. For a start, the entire UK Quality Code remains. For those struggling to recall what is in the UK Quality code, then here it is:

Part A: Setting and Maintaining Academic Standards
Academic standards are the standards that individual degree awarding bodies set and maintain for the award of their academic credit or qualifications. The Quality Code sets out Expectations which higher education providers are required to meet to ensure that academic standards are set and maintained.

Qualifications Frameworks
Characteristics Statements
Credit Frameworks
Subject Benchmark Statements

Part B: Assuring and Enhancing Academic Quality
Academic quality is concerned with how well the learning opportunities made available to students enable them to achieve their award. The Quality Code sets out Expectations that higher education providers are required to meet to ensure: that appropriate and effective teaching, support, assessment and learning resources are provided for students; that the learning opportunities provided are monitored; and that the provider considers how to improve them.

Chapter B1: Programme Design, Development and Approval
Chapter B2: Recruitment, Selection and Admission to Higher Education
Chapter B3: Learning and Teaching
Chapter B4: Enabling Student Development and Achievement
Chapter B5: Student Engagement
Chapter B6: Assessment of Students and the Recognition of Prior Learning
Chapter B7: External Examining
Chapter B8: Programme Monitoring and Review
Chapter B9: Academic Appeals and Student Complaints
Chapter B10: Managing Higher Education Provision with Others
Chapter B11: Research Degrees

Part C: Information about Higher Education Provision
Public confidence in higher education relies on public understanding of the achievement represented by higher education qualifications. The Quality Code sets out an Expectation that higher education providers make available valid, reliable useful and accessible information about their provision. Part C consists of a single Chapter.

The UK Quality Code is, ultimately, a product of clause 70 of the Further and Higher Education Act 1992 under which HEFCE has to “secure that provision is made for assessing the quality of education provided”. Interestingly, Clause 23 of the new Bill gives the OfS a power to assess, or make arrangements for, the assessment of the quality of, and the standards applied to, higher education by English providers. Not only does this explicitly include academic standards, it allows for the possibility that the OfS could decide at some point to dispense with the entire Quality Code and knock something together itself instead. This might, admittedly, lead to a reduction in the regulatory burden.

There’s more

All of the annual monitoring currently conducted by HEFCE will continue and there will be the exciting new register (or set of registers) which OfS will maintain, which will determine position of each institution in relation to – among other things – access to student support and Tier 4 licences. More of a burden therefore. But there is also significantly more information required for students; that is going to be a new requirement. New transparency. Publish more data. I’ve written before about the perceived information deficit in higher education (there isn’t one). Nonetheless, it continues to be addressed as a major issue. The new requirements are not going to be a cost-free exercise, even though many of them should be relatively straightforward:

We will also introduce a transparency duty, as recently announced by the Prime Minister, requiring regulated higher education providers to publish data on the backgrounds of their applicants to shine a light on their admissions processes. This will help make transparent individual institutions’ admissions records and spur action by institutions in areas where it is needed.

Institutions will therefore be ‘encouraged’ through data to do more. Or named and shamed, if you prefer.

The Office for Students

What will the OfS actually do in this new landscape?

39.The OfS will be a consumer focused market regulator with new statutory powers and an extended remit to regulate all registered HE providers; a Non-Departmental Public Body at arms’ length from Government. Recognising the important role of the higher education sector in teaching, research and knowledge exchange it will take a holistic view of the sector and institutions and will be responsible for monitoring institutions’ financial sustainability and efficiency. It will also be responsible for distributing teaching grant funding to eligible institutions.

40.The OfS will introduce a risk-based approach to monitoring those institutions which pass the regulatory entry requirements, ensuring that we maintain high standards while minimising the regulatory burden.

Just reflect on that phrase for a moment: “the important role of the higher education sector in teaching, research and knowledge exchange”. I’d like to think this was a droll understatement but I fear not. Similarly, have a think about “consumer focused market regulator” for a minute. It really makes the OfS sound like it is emulating Which?.

Defeating craftiness through TEF

The major emphasis on the TEF is about ensuring institutions really do focus on teaching. For some reason all of the current regulatory architecture seems not to be sufficient to persuade universities to do so. One of the problems to be addressed is this:

There is a risk, as highlighted by David Palfreyman and Ted Tapper, that the combination of financial and cultural factors in the HE teaching system result in our higher education provision becoming less demanding. They cite the example of the “crafty mutually convenient disengagement contract among distracted academics and instrumentalist students” that has emerged in part in the American higher education system. We must act pre-emptively to ensure that this risk of disengagement, which undoubtedly already exists in part, is not allowed to take hold systemically.

How do we pre-empt this possible disengagement? Not by expecting universities to engage with academics and students directly it seems. Nor even by leaving it to the market. But rather through a very large regulatory sledgehammer called the TEF.

We’ve had one full cycle of Teaching Quality Assessment before (the method of which changed over its near decade of operation following the 1992 FHE Act) and many academic and professional services staff still carry the medals and bear the scars. Having abandoned that subject-level assessment  we are going to bring in a new scheme which will have all of the similar challenges for institutions and questionable benefits for students.

Nevertheless, the big bad TEF is coming and despite its obvious heft the claim is that the burden will be lifted for good providers:

However, as the sector has diversified, the quality assurance system must evolve with it if it is to remain fit for purpose. It is clear from the responses to our consultation that the previous system, though robust, placed a disproportionate bureaucratic burden on providers for which there was no cause for concern. And equally, it treated different providers differently purely on the basis of their status or incumbency, instead of a genuine assessment of their risk or quality.

Risk-based regulation and proportionality is reversed here. By making it easier for those without a track record to become universities and introducing new regulation for all, the level of intervention is actually growing for existing and demonstrably high quality providers. The Universities of Cambridge and Oxford, by any measure among the handful of the greatest universities on the planet, will still find that they are more heavily regulated than ever before. Of course the TEF is optional. However, the reality is that in order to secure modest growth in maximum undergraduate tuition fee levels and to be confident of recognition in future domestic league tables, most universities, even Oxford and Cambridge, are unlikely to feel they can afford to spurn it.

A light touch?

Let’s look a bit further at the requirements of the new model. Box 1.5 in the White Paper comments on ‘light-touch’ monitoring:

Building on the light-touch annual monitoring currently carried out by HEFCE – in future to be done by the OfS – all providers will be subject to annual data monitoring by the OfS to assess a range of indicators that give assurances and raise red flags about shifts in provider activity or behaviour, or failure to meet a range of input and output benchmarks. The key indicators will include:

• Graduate employment;
• Progression to professional jobs and postgraduate study;
• Student retention levels;
• Student completion levels;
• Student recruitment levels;
• Degree outcomes;
• Student entry requirements/UCAS tariff data;
• National Student Survey results;
• Number of complaints to the OIA; and
• TEFscores.

Beyond this there are forty key decisions set out on pages 18-20 of the White Paper, few of which will result in a reduced regulatory burden. For example:

• The merger of the research councils will not have a material impact on the regulatory burden although administratively tidy.
• The requirement for higher education providers to submit any changes to their governing documents to the Privy Council for approval, and removal of the statutory requirements on Higher Education Corporations are modest relief. However, the consequence of this is to give the OfS the power to change or indeed rescind universities’ royal charters and their statutes, remove the power to award degrees and, should it wish, to amend the academic freedom protections they enshrine. Despite the fine words in the White Paper about protecting autonomy and academic freedom this remains a concern. And, as Mike Ratcliffe has observed, it could lead to some universities losing their titles altogether.
• Universities will also be required to have a “student protection plan” in place in case they are unable to provide the course promised. It’s not clear how drawing up an elaborate plan improves on the current position.

Excitingly the OfS will have a “wider range of powers to ensure compliance with the conditions of regulation” and this includes:

the power to enter and inspect providers (with a court warrant) if there is suspicion of serious breaches, such as fraud or malpractice, to safeguard the interests of students and the taxpayer and protect the reputation of the sector.

Box 1.5 says that periodic review of institutions’ quality assurance systems and processes will no longer happen every five years or so and that this kind of review will only take place if necessitated, such as if annual monitoring of data show it is merited. This is a relaxation for established providers but not a big concession or major reduction in regulation.

It remains therefore extremely unclear how all of the proposals in the White Paper and translated into the Bill deliver a “risk-based quality system, treating all providers with parity, and focusing intervention where risks arise”.

Bigger, bossier and inevitably more bureaucratic

Overall it seems that the burden of regulation will increase under the White Paper proposals, with the only points in the credit column relating to the amendment to HEC governing instruments, removing the need for Privy Council for changes to university charters and the discontinuation of routine periodic review of quality assurance.

Risk-based regulation and proportionality seem to benefit new entrants rather than established quality providers. Making it easier for those without a track record to become universities and introducing new regulation for all, the level of intervention is tipping the playing field in the wrong direction rather than levelling it. No current university fears competition from new entrants, but the concern is that they benefit disproportionately from these new arrangements.

Going back to the minister’s original comments of a year ago, this is undoubtedly big. Really big. TEF is big; the regulatory package as a whole is even bigger.

Nonetheless, there is a long legislative road to travel before the Bill becomes law. It will also be a major challenge for the new OfS in translating the ideals set out by the minister into reality. The OfS will need to minimise the negative impact of this suite of new regulation if the aims of a risk-based and proportional regulatory framework are to be achieved. The proof will be in implementation but it does seem inescapable that the scales have tipped further towards more regulation.

No-one wants a regulatory framework to be big, bossy and bureaucratic. Here’s hoping it ends up small, shared and streamlined. There’s still a lot to play for.