How to regulate a regulator
David Kernohan is Deputy Editor of Wonkhe
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This year’s GuildHE series of regulatory briefings has been a real highlight.
Informed, considered, and very influential, the reports have been essential reading at the Department for Education and of course the Industry and Regulators Committee of the House of Lords during the enquiry into the work of the Office for Students.
Indeed, submissions like these have been one of the reasons that it has been clear that the current critiques of the OfS go beyond the usual regulatory griping that is the small change of sector relations with the government.
GuildHE chief executive Gordon McKenzie closes the show with what amounts to a compilation album of recommendations – each designed to make the regulator more responsive and more accountable. He also punches accurately at the bruises that is OfS’ questionable independence from government, and limited use of student voices.
To be clear, this is all a call for better regulation rather than a removal of regulation or no regulation. The sector needs regulating. But it should be possible to regulate in a manner that at least attempts to satisfy everyone: students, ministers, the taxpayer, and provider.
To take one example – routine parliamentary scrutiny. Susan Lapworth and her team occasionally turn up to be quizzed on the issues of the day at the Commons Education Committee, but this is informal, unstructured, and ultimately of limited value in terms of regulatory accountability. McKenzie calls for routine committee scrutiny of the OfS annual report – something that is so transparently a reasonable expectation that one wonders why it doesn’t happen by default.
The answer, of course, is a limited amount of committee time and a desire among parliamentarians to use it to tackle issues that yield if not positive and tangible changes then at least the chance of getting on Newsnight on a slow Tuesday in February. You can’t really compel a Parliamentary Committee to do anything, although you can suggest (as, indeed GuildHE tried with other sector representative bodies late last year) that some things may need a look this doesn’t always work.
Of much more potential interest in parliament will be a restatement of the perennial need to regulate regulators, as it were. Currently all we have is a non-binding regulatory code and the ever-present thrum of public interest to keep our regulators in line (and OfWat is currently learning what happens when that thrum becomes a roar) – the case for doing the thing properly and putting some kind of tangible mechanism in place to monitor Regulatory Code compliance feels like something an incoming government may want to think about.
The section in this guildhe briefing on regulation and the comparison it makes with others is particularly well observed.
Even regulators with pretty big sticks recognise the need to inform and support compliance as much as enforce it.
And to use the carrot and stick judiciously to try and get the regulatory outcomes desired.
However, as much as this briefing is no doubt exceptionally well informed and well judged – it is already clear that the OFS itself isn’t one for listening, and the political and parliamentary bandwidth to do anything meaningful exceptionally limited, bordering on non existent.
So sadly it will take ‘events’ to force change – either some form of major regulatory failure (which for the interests of students of course no one wants to see) and public interest/outcry, or for the sector itself to take stronger action than this – whilst activist non compliance with regulation does seem far fetched: perhaps the gloves do need to come off a little more.
It was of course significant wider events that gave rise to the change from hefce to ofs: perhaps the growing funding crisis will be the most likely catalyst for a wider rethink of how HE is regulated.
My suspicion is that failure of some providers is precisely what is desired by government/OfS (the two are pretty much interchangeable in this regard). That’s why they are focussing on universities for ‘poor quality’ provision rather than small private providers of the sort the New York Times recently reported on. The idea is to make some of these untenable so that they close or merge and you can reduce the size of the HE loan bill, or force them to offer the provision government wants students to take (whether they actually wish to or not).
I may be wrong, but that is what it seems like from where I sit.
It is certainly ironic that one of the main driving forces for the regulatory change that brought about the OFS (the opening up more to private providers and the need for a consistent regulatory framework to sit across it all) appears to have largely slipped out of focus……
One thing that is also conveniently forgotten is the fantastic work QAA did around that time which actually drove a lot of poor practice and dodgy private providers out of the market: and look how they have been treated since!