What did ministers intend on quality and standards?

It feels like a very obvious thing to ask – why is the Office for Students only required to take the advice of a Designated Quality Body (DQB) on academic standards, and not on quality?

Without wishing to labour the point, the thing is called the Designated Quality Body (a role currently held by the Quality Assurance Agency) – why doesn’t it have a statutory responsibility to advise the regulator on quality as well as on standards? It’s absurd.

As noted in recent OfS documents, this requirement is set out in section 27(3) of the Higher Education and Research Act 2017 (HERA):

Where a body has been designated under Schedule 4 to perform the assessment functions, the functions under section 23—

(a) so far as they relate to the assessment of the standards applied to higher education provided by a provider, cease to be exercisable by the OfS, and (b) otherwise do not cease to be exercisable by the OfS.

Just so we have it all in one place, the assessment functions in section 23 (of the same Act) are:

the assessment of, the quality of, and the standards applied to, higher education provided by English higher education providers

These functions must be performed with respect to institutions that have applied to be registered (against initial conditions of registration) and with respect to registered providers (against ongoing conditions of registration).

So – again, to be completely clear – OfS is required to assess the quality and standards of provision on registration and while registered. If there is a Designated Quality Body, OfS is not permitted to assess the standards applied to higher education by a provider (with the implication that the DQB must do this). But OfS is permitted to assess the quality of provision at a provider, even if there is a DQB in place (though it is expected to refer to advice offered by the DQB and its own Quality Assurance Committee in doing this).

Why? I’ve been digging into the rationale for this curious state of affairs. And in the grand traditions of clickbait headlines, what I found will shock you.

Quality and standards

When the Higher Education and Research Bill (as we called it back then) was first introduced, this particular distinction between quality and standards was not made. The original section 26 (3) read:

Where a body has been designated under Schedule 4 to perform an assessment function, the function does not cease to be exercisable by the OfS.

We had to wait for the House of Lords Report stage for the clause as it currently stands to enter the text of the bill. It was a government amendment (number 77, in fact), in the name of Viscount Younger of Leckie – who led the bill through the Lords stages on behalf of the government. This particular amendment was agreed five years ago – on 8 March 2017.

So what was the Viscount (and by extension the government) trying to do here? He never actually tells us why he feels standards should be managed by the DQB alone and quality by either the DQB or OfS. What we do learn is that he is making this amendment in response to issues raised in Lords Committee by Baroness Wolf, something we’ll get to shortly. But most of the discussion associated with this group of amendments is related to the DQB’s mandatory role in the approval of degree awarding powers – as he says:

These amendments […] ensure that the OfS must seek and have regard to expert advice from the designated quality body or, where no designation has been made, a committee of the OfS, before awarding degree-awarding powers to any provider. It must also request such advice in relation to a variation or revocation of such powers.

Enter the Wolf (or not)

Baroness (Alison) Wolf is currently a hugely influential Number 10 advisor on education and skills – it is not outside the bounds of possibility to see her as the animating force behind the whole suite of changes to higher and further education funding and access. She was a member of the Augar report panel. She’s kind of a big deal.

But on the day her later withdrawn amendments (167, 168, 169, and 170) were discussed by the Lords Committee (16 January 2017) she was indisposed. So these were introduced by Baroness Brown of Cambridge – better known in the higher education sector as Julia King, formerly vice chancellor of Aston University and member of the Browne Review panel.

Baroness Brown got straight down to definitional issues – though parliamentarians (and indeed the Act) talks about quality and standards we never quite get a handle on what precisely is meant by either. She defines these terms by quoting from the UK Quality Code for Higher Education, a document that I know is frequently referred to by Office for Students staff:

Academic standards are the standards that individual degree-awarding bodies set and maintain for the award of their academic credit or qualifications. These may exceed the threshold academic standards. They include the standards of performance that a student needs to demonstrate to achieve a particular classification of a qualification.

And

Academic quality refers to how and how well the higher education provider supports students to enable them to achieve their award.

The original text of the bill elided these terms, so what the amendments try to do is to disentangle them. Her distinction is interesting, in light of the current state of English quality assurance. Because the Quality Code is sector-owned, she argues that agreements on “threshold standards” should always be sector owned – they should “remain the responsibility of degree awarding bodies,” with the alternative being a “major infringement of the autonomy of academic institutions.”

Her clear intention is that “academic standards” (including threshold standards, as set out in the Framework for Higher Education Qualifications (FHEQ)) should be set and maintained by academics – and cites the sector-recognised, sector-owned, and sector-developed Quality Code as a reference point. As she puts it:

a small addition to the Bill—that is, including the definitions of quality and standards from the QAA quality code—would ensure clarity and provide assurance to the sector.

A question of autonomy?

In debate at committee Liberal Democrat peer Baroness Garden, manages to cite Jo Johnson (then Minister for Universities and Science in the House of Commons) on this point:

Let me be absolutely clear … this is not about undermining the prerogative of providers in determining standards. This is about ensuring that all providers in the system are meeting the threshold standards set out in the ‘Frameworks for Higher Education Qualifications’, a document endorsed and agreed by the sector.

Johnson repeats this in a letter to peers in advance of the report stage, dated 24 February 2017:

We have now tabled amendments […] that clarify our policy intention that the standards against which providers are assessed are the standards that are recognised by, and command the confidence of , the higher education sector (where such standards exist).

So here we have two places where a minister describes a clear policy intention that academic standards should be recognised by, and command the confidence, of the higher education sector.

For his part Viscount Younger agreed that – based on the strength of feeling expressed in Lords Committee – he and Johnson would actively consider what more can be done to address the concerns raised with relation to standards – from which we get the cluster of government amendments (including amendment 77) on report.

But it is his response to the carefully drawn distinctions between “quality” and “standards” that gave me pause.

However, decoupling quality and standards is not the approach taken by the sector in the UK quality code. Any assessment of quality and standards may need to consider both in order to protect the value of a qualification. However, the OfS can apply a condition on quality or standards: it does not have to apply both.

And, as history and Hansard relate, he then proceeded to separate quality from standards on the face of the bill.

Wait… what?

The then-current (2014) version of the UK Quality Code had academic standards and academic quality in two separate sections of the code (not even just in two different chapters!). Unless Viscount Younger was referring to the fact that both aspects sit in the same overall document he must have misunderstood what the Code said.

It can only be assumed that he is extemporising here – it’s a fair debating point that you need agreed standards to assess quality – but this overlooks the issue that the QAA had, for years, been assessing quality (with respect to the process used within providers to assure quality) without also assessing whether the standards that quality processes aimed to secure provision against were fit for purpose.

This position undermines his next point – the OfS can indeed apply a condition on quality, or on standards, or on both. But if sector-agreed frameworks like the Quality Code and the FHEQ are seen as reflecting both quality and standards requirements, by what form of high-energy magic can the new Office for Students split the two? We are never told.

The split in 27(3), in other words, does not set out in legislation what Viscount Younger appears to be getting at. Neither does it reflect any of the more nuanced discussion offered by Baroness Brown, Baroness Wolf, and others.

In other words – we still don’t know why the DQB has a responsibility to assess providers against academic standards to the exclusion of the OfS but both OfS and DQB are able to assess providers on academic quality.

Where we are now

The distinction between prescribed interactions between the OfS and DQB on quality (none) and standards (all) sits on the face of the bill as an attempt to express a ministerial intention that academic standards are rightly the province of academics rather than regulators. Despite obvious confusion among ministers on the distinction and interaction between the two, the stipulations on these two facets of regulation stands as part of English law, though these sections of HERA are ambiguous and (given the lack of definition) obscure.

So the (2018) OfS regulatory framework is basically a giant love letter to HERA. Though the B conditions have now evolved away from what was then set out, each initial sketch refers – as ministers intended – to the sector-recognised standards that are the UK Quality Code and (where applicable) the FHEQ.

Though the Quality Code has not changed since 2018, it appears that in four short years it has shifted from being a foundation of the quality and standards aspects of the regulatory framework to a potential occasion of sin:

there are likely to be some parts of the Code which would lead to practice that we would consider non-compliant with our regulatory requirements.

Recent changes also seek to remove other functions from the DQB – again in contradiction to ministers intentions in making the law – such as the need for independent academic advice on sector entry and degree awarding powers. There’s also been attempts to curtail other functions carried out by the QAA such as on transnational education. We’re never told what problem these actions are a solution to – hand waving over burden is not a compelling argument when you publish the equivalent of a high fantasy novel of regulatory text each academic year.

Close reading

The standard response to this kind of Hansard deep-dive is that though such histories may be diverting there is no point about thinking about anything other than the precise letter of the law. That’s not quite true.

I’ve used some words in this article very carefully. I’ve described the situation in which a Designated Quality Body need not be consulted on matters of quality as “absurd”. I’ve described 27(3) and related sections of HERA as “ambiguous” and “obscure”. And I’ve used publications and other ministerial statements to understand the intentions of ministers in making these particular stipulations.

There will be a few of you who will have twigged that I am thinking about Pepper vs Hart. This 1992 ruling from the House of Lords (sitting in its former judicial capacity) paved the way to permit statements from ministers and other relevant parliamentary material to be used – in court – to interpret legislation which is

considered to be ambiguous or obscure, or leads to an absurdity.

Should anyone wish to challenge the current direction of travel – in which contrary to the expressed intention of the government that passed the law, a government-backed regulator is intent on taking the definition and application of academic standards away from the sector, and removing large parts of the statutory recourse to expert advice it is expected to take on matters of academic quality – it would make for a very interesting state of affairs indeed.

The other thing to bear in mind is post-legislative scrutiny. It is generally expected that between three to five years since the passage of legislation what is called a “Section 40” review of major pieces of legislation would be carried out by the appropriate Commons Committee – in this case most likely the Education Committee. Given recent changes to many of the regulatory and funding approaches set out in the Act, it feels like such a review would be a useful moment to discuss things like quality, standards, and how they are assessed.