OfS to gain powers to publish without risk of defamation

A recent government amendment to the Skills and Post-16 Education Bill means we could be hearing a lot more about OfS investigations

David Kernohan is Acting Editor of Wonkhe

The Office for Students has always been keen to sort out the higher education providers it regulates, but it does get rather coy when it comes to telling people about it.

I don’t mean the endless “fines for…” stories that play up the hypothetical financial damage a provider could face if it steps out of line – I’m thinking more of when the OfS enforcement squad kicks down the doors and starts waving spreadsheets and ministerial priorities about.

We only know, for instance, about the University of Sussex investigation because of a question in the House of Lords. And whereas we do hear about the rare occasion when a provider gets a specific condition of registration, we don’t get to see any of the underpinnings of this system. Areas of significant concern are addressed via a letter from OfS, or a phone call.

Nadhim Zahawi has proposed new Clause 12 to the increasingly broad Skills and Post-16 Education Bill, which sets out an addition to the 2017 Higher Education and Research Act (yes, a lot of SP16E is like this, alas) around the power of the OfS to publish “notices, decisions, and reports”. A lot of the time, OfS chooses not to publish things because to do so would cause more problems than it would solve – destabilising, for instance, a provider or group of providers to the extent that students suffer a detriment. New clause 67A (5) lists these considerations in the familiar manner.

(5) In deciding whether to publish a notice, decision or report under
subsection (1), the OfS must, in particular, consider—
(a) the interests of—
(i) students on higher education courses provided by English higher education providers,
(ii) people thinking about undertaking, or who have undertaken, such courses, and
(iii) English higher education providers,
(b) the need for excluding from publication, so far as practicable, any information which relates to the affairs of a particular body or individual, where publication of that information would or might, in the opinion of the OfS, seriously and prejudicially affect the interests of that body or individual, and
(c) the public interest.

But then things get strange.

In the case of an actual investigation, new clause 67B requires OfS to publish a notice at the conclusion of every investigation it makes, whether or not the investigation results in further action or – indeed – findings. But this does not apply where the OfS has elected not to inform us that an investigation is underway (for the reasons above).

But then we get new clause 67C. In publishing details of a decision to conduct an investigation, summarising the matter that is being investigated, and naming the provider (or other body) under investigation the OfS is protected from defamation claims. This doesn’t apply to other information that the OfS may publish, and – wonderfully – it doesn’t apply if the publication “is shown to have been made with malice”.

Why does the OfS need these protections? It is hard not to surmise that DfE would very much like to see more public evidence that the OfS is getting its hands dirty, and that OfS would prefer – on balance – not to be sued for defamation.

One response to “OfS to gain powers to publish without risk of defamation

  1. I presume that the outcome of the consultation on publishing information on providers has hit a snag that OfS/DfE think needs amending the legislation to solve. The consultation closed 11 months ago and the only sign we’ve seen of an outcome is an unusual closed session of the OfS Board in September which received legally privileged information and did not feature in the published minutes of the meeting.

    A key question is what will fall under 67B – what is an ‘investigation’? It won’t be every question the OfS ask when it gets a notification, or every question it asks when its concerned about a reportable event.

    When the consultation outcome is published, maybe we’ll see that someone advised that publishing outcomes could be subject to defamation? We can see that there’s no longer much mention on the website of a refusal to register a provider that we know went to court, for example…

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