Imagine, in other words, a situation where for some reason a large number of people chose to respond in the negative to the single question posed in the DfE consultation before it closes at 23.59 on 3 March.
Do you agree that the designation of the Quality Assurance Agency for Higher Education as the designated quality body for higher education in England should be removed, on the basis set out above?
The facts of the matter are that QAA has asked the government for de-designation, as maintaining the status would put the organisation’s EQAR registration in doubt with an impact on all of the QAA’s work around the UK and the world.
From the OfS perspective it has been made abundantly clear that the regulator would be happy to divest itself of the DQB as soon as is possible.
It’s the law
The only reason we have this consultation at all is in Section 5, Part 1, Schedule 4 of the Higher Education and Research Act 2017. The germane subsections are 3(c) (QAA consents to the removal of the designation), and 4 (the requirement to consult).
There’s a whole list of people that need to be consulted:
- A “broad range” of higher education providers
- A “broad range” of students
- A “broad range” of employers and graduates
- Such other persons as the Secretary of State considers appropriate
Though the Secretary of State is required to have regard to relevant information provided by OfS, there is no information about anything else that needs to be taken into consideration. We’re falling back, therefore, on the Cabinet Office rules about consultations – specifically point B:
Consultations should have a purpose. Do not consult for the sake of it. Ask departmental lawyers whether you have a legal duty to consult. Take consultation responses into account when taking policy forward. Consult about policies or implementation plans when the development of the policies or plans is at a formative stage. Do not ask questions about issues on which you already have a final view.
Now although OfS has not always bent over backwards to comply with the full spirit of this stipulation, these requirements apply. We are going to presume that the consultation response has at least some bearing on Gillian Keegan’s decision.
A hard no
It would be a serious setback for OfS. Although the ensuing arrangements (OfS taking on the DQB work in the interim) are explicitly not up for consultation here, a refusal would signify that the sector does not have confidence in OfS on quality and standards – recall that any appointed DQB must:
command the confidence of registered higher education providers (s4 (3) (b))
And, for that matter it must not be:
a body to which the Secretary of State appoints members. (s4 (5) (b))
This is a little bit disingenuous, to be fair – OfS doesn’t have to have a designated quality body, and if there is no suitable body available it can’t recommend one. The default is therefore that OfS does the job, as per HERA s23 and s46 (explicitly s46 (11) (b)) – though the general principles are still worth reflecting on.
Furthermore – can an organisation be designated without consent? Could the Secretary of State really declare that the QAA is DQB against their will? There would have to be some serious negotiation going on.
In order for the Secretary of State to convince the QAA to stay on as DQB, changes would need to be made to the quality systems in England – specifically on the sticking points around the immediate and default publication of reports, and the use of students in review teams. Again, this undermines OfS somewhat – but it is difficult to understand any structural reason that this may not be accommodated.
The whole thing would be utterly chaotic. Certainly sector representative bodies (for instance Universities UK) are not happy that the QAA is no longer in place, and are decidedly unhappy that OfS is set to gain more responsibilities in this area (there is a clear expectation that the “interim” position of OfS does not extend into the longer term, and that both an independent DQB and compatibility with international standards are sought as a matter of urgency – but these are difficult conversations that will continue into the months ahead.