Who shall regulate the regulators?

The appointment process for the new Office for Students has been heavily criticised in a new report, writes Professor David Midgley – and it hasn’t even launched yet

When the membership of the Board of the Office for Students (Ofs) was announced on 1 January 2018, a furious public controversy ensued over the appointment of Toby Young as a non-executive director. He subsequently resigned but has so far not been replaced. Now, the commissioner for public appointments, Peter Riddell, has published a report that is deeply critical of other aspects of the appointment process as well.

The shortcomings identified in the report include the fact that the panel interviewing for the post of non-executive director was all male and the length of time it took both the OfS and the Department for Education (DfE) to provide the commissioner with some of the paperwork relating to the appointment process. But by far his greatest criticism concerns the handling of the appointment of a board member with student experience.

While the commissioner considers that the interviewing of candidates was appropriately conducted, he finds that the due diligence exercised was neither adequate nor consistent. As he says in an annex to his report, that process “failed to provide sufficient information about Mr Young”, while on the other hand “extensive research was carried out into the background and opinions of certain candidates for the student experience role”. Moreover, the candidate initially selected for this role by the chair of the OfS and officials from the DfE was ruled out by the prime minister’s special advisers on the grounds of “public statements and student union activity”.

Serious concerns about inconsistencies

More specifically, the report reveals that ministers had objected to the preferred candidate because of statements made about the government’s Prevent strategy and on free speech. The commissioner challenges this decision explicitly, commenting that “non-executive boards are intended to bring effective challenge to the organisations they serve, and that can only be achieved by having a diverse range of views, background, skills and experience. This independence is put at risk by taking too partisan an approach to candidates’ views.”

In the event, an interim appointment was made to the post with the student experience role, although there was no indication in the DfE’s announcement that this appointment was only temporary. According to the report, the process for appointing a permanent board member to this post will now run in June 2018. But the commissioner expresses serious concerns about inconsistencies in making the temporary appointment and in explaining the situation to the person appointed, stating that “the Department did not manage the expectations of the candidates applying for the student experience role satisfactorily and the public was misinformed”.

The DfE’s retrospective attempts to justify its handling of the student appointment by arguing that “matters might be taken into account above and beyond the specific criteria in the job advert” also fail to convince the commissioner, who concludes that the competition had serious shortcomings in terms of fairness and transparency under the government’s Governance Code. The issues raised in the report have also been subjected to vigorous discussion under the urgent question procedure in parliament.

This has been an extremely inauspicious beginning for the OfS, which is due to be officially launched in April.