A conflict of interest: the statutory instruments shaping the Office for Students

On Monday, the Labour Party tried unsuccessfully to block the legislation that would enable the new Office for Students to regulate universities. Professor GR Evans takes a look at the arguments

During the debates on the Higher Education and Research Bill, members of the House of Lords repeatedly expressed concerns about the way statutory instruments (SIs) might be used to develop the regulatory framework of the new Office for Students (Ofs). A statutory instrument is a form of subordinate legislation created by a minister, normally to provide detailed regulations under an Act of Parliament. Parliament may object but it is usual for an SI to pass into law unchallenged.

There were assurances that Parliament would be able in principle to challenge even an SI subject only to the negative procedure, under which it becomes law unless there is an objection from either House.

On 23 April the approval of a Statutory Instrument for OfS was tested for the first time. On behalf of the Labour Party, Angela Rayner begged to move:

“That an Humble Address be presented to Her Majesty, praying that the Higher Education and Research Act 2017 (Consequential, Transitional, Transitory and Saving Provisions) Regulations 2018 (S.I., 2018, No. 245), dated 26 February 2018, a copy of which was laid before this House on 28 February, be annulled.”

There was a modest burst of press coverage before the debate in the Guardian and on 23 April, but no interest was shown in the defeat of the motion that evening. The thrust of the argument was the claim that the Office for Students had designed into it a number of conflicts of interest, outlined as:

“What do the Government believe the role of the new Office for Students should be – an independent regulator, a funding council, a validator of degrees or a body to micromanage universities? How will a university know when it is dealing with the regulator, a funding council or the voice of Government?”

 The debate, perhaps predictably, became an opportunity for some scattergun point-scoring on familiar concerns, the UA92 university academy (a planned private-public partnership that will offer vocational degrees) and the granting of permission to use the university title, no-platforming, value for money, vice-chancellor pay, degree apprenticeships, further education, membership of UK Research and Innovation from the devolved administrations, the level of interest on student loans.

Countering the motion were some strong pragmatic arguments, for example:

“…without this agreement there is a risk that universities will not receive crucial grant funding. These transitional regulations enable the OfS to allocate £1.3 billion of teaching grants. Without this legislation, there would be no means to give out those grants and no provision to offer access agreements to support disadvantaged students in the next academic year”


“[If] the Office for Students is abolished, my understanding is that there will be no fee cap at all on providers, so all providers will be able to raise their fees. There is a control on fees at the moment because of the Office for Students”


“Does my hon. Friend agree that we cannot amend SIs? We can only vote them down, and then the Government must table another one. We did not invent that process for this occasion.”

The motion was defeated by 291 votes to 221.