The newly-published regulatory framework runs to 167 pages – but still leaves many questions unanswered, writes Professor GR Evans
At last the Office for Students (Ofs) has published its Regulatory Framework. It will be laid before Parliament but essentially this is subordinate legislation of the Henry VIII kind. There will be no automatic debate or vote to approve its contents. The document is liberally spattered with mentions of the powers of the Secretary of State. When the OfS authorises a provider to grant degrees, the Orders of the OfS will themselves become Statutory Instruments (Framework para.213 and Higher Education and Research Act s.42)
Suppose I am a student who wants to be assured that a prospective provider is properly “regulated”? One of the readerships listed as the document’s audience is “students, and bodies representing the interests of students, on higher education courses provided by English higher education providers”.
If an experienced reader of higher education policy documents is flummoxed by what follows, how is this key constituency going to be served?
Also intended to use this document are “providers of higher education in England and bodies representing the interests of such providers.”
The “others including, but not limited to, employers, charities and research bodies that are not themselves providers” will presumably come panting some way behind in trying to make sense of it.
Those in most urgent need to understand it will be the providers. There was a promise on the temporary OFS website that guidance for providers wishing to be included on the new Register would also published on 28 February too and there it is. Or is it? The link just takes the enquirer to the whole Regulatory Framework, but under a different heading: Regulatory Framework and Registration. This is broken down into documents, some of which seem to form part of the Regulatory Framework, some not. This is surely a hard-to-forgive breakdown in an elementary duty to be clear in setting the immense complexities of the new rules before those who will have to use them.
In the material listed on the temporary website but not included in the Framework document is the Strategic Guidance for 2018-9. This is the counterpart of the Annual Grant Letters received by the Higher Education Funding Council for England (HEFCE), usually in January and normally from the Secretary of State not as now from the minister for higher education alone. It is interesting to compare this with the norms previous established, for example in the latest letter to HEFCE last year.
Countering harassment…or supporting free speech?
The new letter comes almost exactly a year later dated the day of the publication of the Framework and it embodies a paradox. The adjective “regulatory” occurs countless times in the Framework document and in its very title, but the Secretary of State speaks of “removing unnecessary regulatory burdens for providers”.
The Minister evidently has on his mind various matters in recent headlines:
“This includes working to counter harassment and hate crime in higher education, taking steps to make campuses places of tolerance for all students. “
“I would also like the OfS to be a champion of freedom of speech, which is so crucial to higher education. Free speech is essential in ensuring that universities are places which expose students to new and uncomfortable ideas, and encourage robust, civil debate and challenge. “
Value for money and vice-chancellors’ salaries seem to be on his mind too:
“I would also ask the OfS to work with the sector to ensure good governance, effective and efficient use of resources, including around senior staff remuneration, as well as engaging closely with the sector on its own self-regulation in this area.”
Industrial strategy, STEM, especially mathematics, employability and degree apprenticeships are rather untidily bundled together:
“I would like the OfS, in particular, to consider how to encourage sector support for the pipeline of skilled graduates from all backgrounds that is needed by the economy, for example through sector support for maths schools. Key to this will be promoting and enhancing collaboration between the higher education sector and employers, both nationally and locally, and I would like the OfS to work with Government on reviewing how funding can be used to stimulate this, and also on the impact of apprenticeships in achieving this goal as well as supporting access and participation.”
Clarification is still needed
The House of Lords tried hard, in the debates on the new legislation, to get satisfactory answers to the question of how research students’ interests would be protected once teaching and research were moved into different departments of State. The minister’s paragraph on working with UK Research and Innovation (UKRI) seems to have missed that one:
“I would like the OfS to prioritise collaboration with UKRI on those areas of shared interest, including: skills; capability and progression; knowledge exchange; the ongoing financial sustainability of HE providers; accountability and assurance; infrastructure funding; building robust evidence and intelligence; and ensuring that the Research Excellence Framework (REF), Teaching Excellence and Student Outcomes Framework (TEF) and Knowledge Exchange Framework (KEF) are mutually reinforcing.”
The old Grant Letter allocated block funding for both teaching and research to which conditions of grant could be attached. Responsibility for public research funding has now passed to UKRI. Teaching funding now comes largely from tuition fees.
This is a Grant Letter yet direct state funding for teaching has largely disappeared with the removal of teaching funding to tuition fees. The remaining sum is in Annex B, and it is lower even than last year. There is also a Condition of Grant (Annex C) “regarding regulated fees”. If a provider overcharges, the amount “will be repaid by the institution to the OfS, or withheld from grant”. So this has to be a new kind of letter with new sanctions.
Perhaps the architects of the temporary OfS website could assist those for whom the Regulatory Framework will become a document of frightening importance if they are to avoid deregulation. They could start by clarifying the status of all those documents offering guidance and their exact relationship to the Framework document to be laid before a Parliament. If any MP is actually going to read it, they will need to be able to understand it.