For the time being we have a market that incentivises bad provider behaviour from the student perspective, and so for that time being we need a regulator that can mitigate that.
And anyway, plenty of the bad things that OfS in theory should spot and stop were happening in much less marketised times too – so ideally good regulation should be here to stay.
The problem for me is that it’s not really panned out like that so far. In fact if anything the biggest criticism of its regulation I’d have so far is that it’s all mouth and no trousers – popping up every five minutes to threaten investigations and fines without ever producing evidence that it’s doing anything at all.
Some in the sector think that’s good, but I disagree. Not only is there a strong public interest in being more open about regulation, the current situation also runs the risk of the insinuation tarnishing the whole sector. It’s like the whole class being criticised in assembly while the actual bad kids get away without a detention.
As such I almost wrote something glowingly positive about the Office for Students (OfS) today. Almost.
As well as the grim spectacle of it labelling improved student success over the decade as “unmerited”, it also quietly popped another bombshell through the letterbox yesterday that is likely to have huge ramifications in the coming months.
The innocuously titled Supplementary consultation on publication of information about higher education providers proposes amendments to the proposals in the consultation it ran in December 2020 on publishing information about higher education providers.
That consultation, to some relief to the sector but to considerable frustration here, proposed that OfS would not normally expect to publish “information about an investigation into any type of potential non-compliance with a condition of registration”, leaving open a caveat that it might do if there was a strong public interest in publishing information about the existence of an investigation – such as where that may be the most effective way of gathering important evidence, such as by encouraging whistle blowers or witnesses to come forward.
A few things have happened since. Last October OfS’ Director of Regulation (now interim CEO) popped up at the Independent HE conference to declare that a new phase of regulation is coming, where the actual idea is to name and shame bad behaviour partly as an incentive to stop. I’m not as averse to that as most – not least because I’ve always thought that some of the worst aspects of the way HE behaves are more about reputation than marketisation per se, and wouldn’t go away if intense competition and fees did.
Then the Kathleen Stock case – and an OfS investigation into it that was presumably privately briefed to ministers to reassure – was revealed on the floor of the Lords, causing OfS to have to publish a statement where it would usually be silent. Bizarrely, nothing has been published since, which is just really weird when parliamentarians and the citizens they represent are in the process of evaluating whether strengthened legislation in this area is necessary. We also don’t know if OfS has been pressed into using its existing powers over other cases, like those of Raquel Rosario Sánchez or David Miller at Bristol, or Robinson Crusoe and Black Beauty at Leeds.
Then back in February you’ll recall that a mysterious new amendment to the Skills Bill appeared that protects OfS from defamation if it announces that an investigation is going on, summarises it and names the provider it’s investigating – as well as requiring it to publish the conclusion in these circumstances.
At the time we reckoned that this was about DfE wanting to see more public evidence of OfS getting its hands dirty, and presuming that OfS had used the excuse of “yeah but we’ll be sued if we announce as bunch of investigations” in its regular liaison meetings, it looked like ministers just called them on it and gave OfS the exemption that removes the excuse.
So now this minor, quietly announced, supplementary consultation formally announces the huge and screeching u-turn. In stark contrast to that December 2020 position, OfS is proposing that it:
- would normally expect to publish information about an investigation, into any type of potential non-compliance with a condition of registration or into other potential regulatory harm,
- would normally expect to publish information when it decides to open an investigation, would normally expect to publish information about the progress of an investigation at key milestones,
- would normally expect to publish information about any provisional decisions takes as a result of an investigation,
- would normally expect to publish a report of any assessment of potential regulatory concerns(including an assessment of quality or standards undertaken for a provider by the OfS or by the DQB),
- would normally expect to publish information about any referral it makes to another regulatory or enforcement body, for example, the Competition and Markets Authority(CMA), trading standards, the Charity Commission, the Equality and Human Rights Commission (EHRC) or the police,
- would publish information about any sanctions applied to a provider on the OfS register ahead of any appeal.
So you can see why I was almost popping corks while AHUA’s members were spitting chips – until I saw something buried away the back. In the December 2020 consultation, while there was going to be a general “don’t publish” policy, OfS suggested exceptions insofar as publication of information about an investigation could be an effective way of gathering important evidence, such as by encouraging whistle blowers or witnesses to come forward.
So now we have the reverse – where there will be a general “do publish” policy – OfS has to set out the circumstances where an exception would apply that causes confidentiality:
“We may be less likely to publish information about an investigation into a provider’s financial position where we take the view that publication would be likely to cause deterioration of that position, or about an investigation of allegations of fraud where maintaining confidentiality of investigatory steps is important. Conversely, we may be more likely to publish information about an investigation into concerns about quality, or compliance with consumer protection law, because current and future students may wish to have that information.”
That appears to be saying that students about to enrol at a provider who is on the verge of financial collapse will continue not to be warned – but a provider who’s been accused of allowing student protest to stifle free speech will be publicly flogged ahead of any investigation’s conclusion. That sounds more like regulation in the interests of ministers and Sunday newspapers than the interests of students to me.
We see this a lot with the Charity Commission – the opening of an investigation is usually public and allows the press and ministers to show that action is being taken when nine times out of ten, the wrong end of a stick has been grasped. Charities hate it but my own view is that is a moderately appropriate way to balance what the press (and by proxy sections of the public) believe to be true, and what we need to then find out really is the truth.
Mind you, the idea that the issues in the OfS examples aren’t linked is preposterous. In the year before its collapse, ALRA had carried out a big restructure – which students on Twitter were suggesting had impacted quality. Similarly, the announcement of a quality concern about a provider could presumably cause the same kind of run on the bank via collapsing applications that an announcement of a financial concern could trigger.
Maybe the proof of the pudding will be in the eating and all that – but for now I’m chalking this up as cautious welcome, while taking the opportunity to warn providers that winter is very much coming on the public floggings being promised by OfS’ new brooms.