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A review of HE policy? It’s déjà vu all over again

by Rob Cuthbert

Higher education in England is in financial trouble, and maybe more. If former NUS President Wes Streeting were Education Secretary, no doubt he would be proclaiming that, like the National Health Service, ‘higher education is broken’. It may not be, yet, but many think that the higher education funding system, at least, is broken. So, there is talk of (yet another) review; those with long enough memories will feel that we’ve been here before. More than once a review of HE has been conveniently timed to straddle a general election, to ensure that any or all hard decisions fall to the incoming government. That was how, after the Dearing Report, we got student tuition fees in the first place. There was no review straddling the July 2024 general election, perhaps because the last government was too obsessed with culture wars and fighting amongst themselves. Probably not because they thought that overseas student visa restrictions and the Higher Education (Freedom of Speech) Act 2023 were all that was needed to fix HE.

Consequently the new Labour government must deal with HE’s problems, and some of them are too urgent to wait for any kind of review. It is said that the Prime Minister’s former chief of staff Sue Gray had prepared a number of ‘disaster scenarios’ which need contingency plans, one of which involves a large university going out of business. More than half of all England’s universities are facing financial problems which have driven them to declare voluntary or compulsory redundancies; the situation is desperate. In such times we look for guidance where we can; this blog’s headings take inspiration from Yogi Berra, the legendary baseball player and manager, renowned for saying things that are somehow meaningful without making any sense. Another HE review? It’s déjà vu, all over again.

You can observe a lot by watching

Education Secretary Bridget Phillipson told universities in July they should not expect a government bailout, despite many being in financial difficulty, as Sally Weale reported for The Guardian on 22 July 2024. New HE Minister Baroness Smith of Malvern said, in effect, that “We’ll let universities go bust” in a Channel 4 News interview, as reported by Chris Havergal for Times Higher Education on 16 August 2024. However just after the Labour Party Conference The Times reported on 28 September 2024 that the government would index-link tuition fees and restore maintenance grants for the poorest students, so that fees would rise to £10,500 over the next five years. Still some £billions a year less than three years ago, but a welcome sign of change – if it is  realised. Keep watching.

Predictions are hard, especially about the future

Sisyphus might have sympathised with HE about previous attempts to solve the HE funding problem. After the Dearing Review and New Labour’s election in 1997 it seemed that there might be a mutually acceptable halfway house, with tuition fees paying first some and then during the Blair/Brown government’s tenure about half of the costs of undergraduate teaching. The boulder was slipping down the mountain in 2010 as the money and faith in the government ran out and the Browne Report was commissioned. The Lib Dems made an election ‘pledge’ to abolish fees but reneged as soon as they were in coalition with the Conservatives: instead fees were trebled to cover most undergraduate costs. The Willetts-led progressive student loan scheme might even have been broadly acceptable, but index-linking of fees stopped after just one year. University finances became increasingly precarious, especially after the government conceded to pressure from the Office for National Statistics and accepted that student loans should appear on the balance sheet this year rather than many years in the future, ending the ‘fiscal illusion’. 

At first universities escaped the worst of Chancellor George Osborne’s austerity for public services. Osborne even agreed to take the cap off student numbers, in the interests of market forces ‘driving up quality’, as Willetts, Jo Johnson and too many others wrongly believed they would, leading to the institutionalisation of a wrong-headed pseudo-market in the Higher Education and Research Act 2017 (HERA). The student loan scheme was working in theory but not in practice – too many critics could easily win headlines about ‘students who will never repay’. The boulder might have seemed near the top of the mountain but now it has rolled back down again.

When you come to a fork in the road, take it

Many universities did their best to behave as if they were in a HERA kind of market. They recruited international students in ever-greater numbers, for undergraduate and postgraduate programmes, charging fees which would cross-subsidise both teaching and research. Several universities not based in London opened London campuses, recognising the appeal off the capital for their target overseas market. Some opened campuses overseas. Those less able to attract overseas students looked to ‘sub-contractual arrangements’, previously better known as franchising, to shore up their student recruitment. Each initiative was kicked back. Government restricted visas for the families of students, hitting postgraduate recruitment hard in 2024. This jeopardised the availability of and access to many subjects in large areas of the country, without making any meaningful contribution to reducing immigration. The Office for Students cracked down on sub-contractual arrangements as they took over all regulatory responsibilities for quality and standards. They even tackled the more egregious ‘successes’ of ‘alternative providers’, the new entrants to HE. So what is to be done?

Richard Adams reported for The Guardian on 5 September 2024 that Shitij Kapur, the vice-chancellor of King’s College London, had told the annual UUK conference that HE needed £12500 fees – but would seem completely out of touch if it asked for them. On 30 September 2024 Universities UK issued a punchy report – Opportunity, growth and partnership: a blueprint for change – by a senior and influential group of politicians, vice-chancellors and others. In it Kapur and John Rushforth (Executive Secretary, Committee of University Chairs) said: “UK universities have been remarkably entrepreneurial and successful in the last decade. Despite a fixed and shrinking domestic resource, they have managed to engage internationally and generate the revenues to support research and domestic education of the highest quality. However, that innings has run its course. If universities are forced to play the same game for longer, we jeopardise the sector and its international reputation and success. It is time for universities and government to sit down together and agree a new financial model for the system that works for students, serves all our regions and ensures the future growth and prosperity of the UK.”

The UUK report was tuned to the new government agenda and asserted the crucial role of universities and other HE providers in helping to achieve growth and success. The wide-ranging blueprint was nevertheless fairly narrowly focused on demonstrating the instrumental value of HE in promoting economic and social growth, unsurprisingly given its target audience. Many in universities will still regret that the idea of HE as a public good is now more narrowly confined than in, for example, the 1963 Robbins Report, which suggested four main “objectives essential to any properly balanced system: instruction in skills; the promotion of the general powers of the mind so as to produce not mere specialists but rather cultivated men and women; to maintain research in balance with teaching, since teaching should not be separated from the advancement of learning and the search for truth; and to transmit a common culture and common standards of citizenship”. But we live in different times, and must be thankful for smaller mercies on this fork in the road.

Bridget Phillipson also said in July “The culture war on university campuses ends here”, as she announced a pause in implementation of the Higher Education (Freedom of Speech) Act (2023). HEPI’s Nick Hillman said: “I think it is now time for the Conservative Party – if they are serious about showing they’ve changed – to say the war on universities is over.” Judging by the leadership contenders’ speeches at the Conservative Party conference in October, we fear not.

If people don’t want to come to the ballpark, how the hell are you gonna stop them?

Anti-university sentiment is widespread in Brazil, China, Russia, and parts of Eastern Europe. In the USA, Republican Vice-Presidential nominee JD Vance has spoken approvingly of Hungarian Prime Minister Viktor Orbán, who forced the Central European University to relocate from Budapest to Vienna. Vance said that Orbán has made “some smart decisions … [on campus dissent] that we could learn from in the United States”, but already several high-profile university presidents have stepped down after failing to navigate a course between student protest, staff, boards of trustees and politicians in Senate hearings.

The fork in the road might mean a choice between anti-university sentiment leading to a smaller student population, and continuing growth and development of an expanding HE sector. Despite right wing rhetoric there is no evidence that demand for HE is declining: people still want to come to the ballpark and they still enjoy the game, as the National Student Survey continues to demonstrate. But there are nevertheless understandable reports of student dissatisfaction about some aspects of what can be an impersonal student experience on account of large student numbers. More pressing is the continuing student dissatisfaction with debts after student loans. However many times it is explained that ‘student debt is not like other debts’, graduates continue in reality to see large and depressing numbers in red on their student loan account, and there is no wider public understanding of how repayments work.

Nobody goes there anymore, it’s too crowded

In a blog for HEPI on 5 September 2024, Peter Scott (UCL) outlined some of the current problems of English HE and argued that the best solution would be the reintroduction of a student numbers cap: “Imposing an overall student number cap would restore a stronger sense of stability and predictability into the future, which might just reassure the Treasury as it contemplates an inevitably unpopular decision to allow the maximum fee to be (modestly?) increased. It might also reassure politicians more generally that higher education, and universities in particular, will not be allowed continuously to ‘crowd out’ other forms of tertiary education and training. Similarly it is difficult to see how far down the road of realising its new financial sustainability remit the Office for Students can go without at least considering reinventing institution-by-institution student number controls, within broad tolerance bands like the former maximum aggregate student numbers, to reduce turbulence and damagingly unpredictable consequences.”

The old HEFCE regime of managed growth and change involved student number controls with some marginal tolerance for expansion and the possibility from time to time of bidding for more. The danger of an overall student number cap in the present environment is that it might freeze some undesirable aspects of the status quo. We now have a regulator not a funding council, and it is a regulator which – as required by HERA – is bound to treat potential university closures as a natural consequence of market forces. The problem with university closures is they can easily drag down a whole local economy as well as creating huge gaps in locally or regionally accessible HE provision.

It ain’t over til it’s over

HEPI published Debate Paper 39 on 25 September 2024, in which Tim Leunig (LSE), a former very senior civil servant, argued for a fiscally-neutral set of changes to restore university finances. Employer contributions was a repeated theme of HE discussions at the Labour Party Conference in September, and a significant part of Leunig’s argument was for a 1% surcharge on employers of graduates. His ten-point package of proposals was for:

“1. A 20-year, rather than 40-year, repayment term on student loans.

2. No increase, even in nominal terms, of the amount owed.

3. A minimum student loan repayment of £10 a week after graduation.

4. An additional repayment of 3% of income between the income tax and student loan repayment thresholds.

5. Letting graduates reduce their pension contributions in order to make higher student loan repayments more affordable.

6. Reintroduction of an interest rate supplement for graduates earning over £40,000 a year, set at a maximum of 4% for those earning over £60,000.

7. A new 1% National Insurance surcharge for employers that recruit graduates.

8. New maintenance grants for students with parental incomes up to £65,000, with full grants of around £11,000 for those with household incomes below £25,000.

9. Provision of maintenance loans for all students not receiving a full grant, provided their parents’ income is below £100,000 a year.

10. Additional teaching grant averaging £2,000 per student.”

English HE needs a rescue package right now, and in the slightly but not much longer term the funding system needs an overhaul. It remains to be seen whether something like Leunig’s package of proposals might be adopted. At this stage no-one knows: it ain’t over ‘til it’s over.

SRHE News Editor Rob Cuthbert is Emeritus Professor of Higher Education Management, University of the West of England and Joint Managing Partner, Practical Academics rob.cuthbert@btinternet.com. Twitter @RobCuthbert

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Higher education as a politicians’ playground

by Rob Cuthbert

Higher education has always been something of a playground for junior politicians; HE ministers usually serve only short terms, and many are practising for bigger jobs. (Liz Truss and Boris Johnson were both briefly shadow HE ministers.) The Coalition period was an exception, with David Willetts serving for four years and evidently deeply engaged and interested in HE. Since he left in 2014 the political game-playing has sadly degenerated, becoming ever more disconnected from the real issues facing the HE sector.

In 2024 fifty or more universities have declared or are likely to declare redundancies, as their funding position becomes ever more perilous. Student fees have been frozen at £9250 for a decade, and their real value has declined to the extent that they are now worth no more than the £6000 which applied in 2012 before the fee went to £9000. According to Mark Corver of DataHE: “… universities have lost, in real terms, around a third of their income since 2012. Most of that has happened recently. Universities have lost the equivalent of almost £3 billion from their annual UG teaching funding in just the past 18 months.”

The long-running dispute in half the sector over changes to the Universities Superannuation Scheme might have recently been resolved, but there are now major concerns about the cost of the Teachers’ Pension Scheme in the other half. UUK chief executive Vivienne Stern and UCEA chief executive Raj Jethwa wrote to Minister Robert Halfon on 18 March 2024 asking for more flexibility in whether post-92 universities must offer TPS membership to their staff, noting that 27% of post-92s had declared redundancies in 2022-2023 and 46% had done so since August 2023. TPS contributions rose sharply on 1 April 2024 as Tom Williams reported for Times Higher Education on 18 March 2024.

Pay disputes have led to repeated strikes and action short of strikes, especially marking and assessment boycotts, affecting the whole sector. This, coupled with Covid, has meant increased workloads for academic and professional staff in major and repeated reconstruction of teaching programmes, with many universities relying increasingly on a precariat of staff on short-term contracts. Negotiations between employers and staff are inevitably complicated by the wide range of institutional fortunes, which makes affordable resolution for everyone difficult to achieve. Covid and employment disputes have brought massive disruption for students, with class actions for compensation continuing as an additional looming threat to HE budgets. Problems with student mental health have reached epidemic proportions, affected not only by the pandemic and loan-driven student debt but also the spiralling cost of university and private student accommodation, which is in short supply in many places.

In 2024 we do expect a general election, but we don’t expect the massive problems for UK HE to be an election issue. Voters mostly care much more about cost of living, the energy crisis, climate change, wars in Ukraine and Gaza, the NHS … and even within education, universities rank well behind schools and nursery places as topics for political debate. As Tom Williams reported for Times Higher Education on 16 May 2023, HE Minister Robert Halfon declared that “… the sector was in a “fairly strong” position – compared with much of the economy given the current financial difficulties – and implied management may be to blame at universities faring badly, rather than his government’s funding system.” Halfon resigned unexpectedly on 26 March 2024, so after 14 years of Coalition and  Conservative government we have our ninth new HE Minister, Luke Hall. It is the eleventh such appointment, since both Jo Johnson and Chris Skidmore served twice, and only four of the 11 appointments lasted for more than a year. There is a striking contrast with appointments as Schools Minister, the role in which Nick Gibb has served for most of the last 14 years, despite being sacked and reappointed by successive prime ministers.

For most of the Coalition period the Universities Minister was David (now Lord) Willetts, who was perhaps the main architect of the Higher Education and Research Act (HERA) 2017, eventually steered into law by Jo (now Lord) Johnson. HERA legislated for the HE ‘market’ and created a new regulator, the Office for Students (OfS). The policy sought to drive up quality through competition, with an influx of new ‘alternative’ providers; the Act made extensive provision for failing HE institutions to go out of business. Willetts’ special adviser, Nick Hillman, later became an effective Director of HEPI, but his HEPI blog of 14 February 2024 asked ‘Whatever happened to all those alternative providers?’,  while still defending the policy to which he contributed. A more plausible view is that the HERA version of the ‘market’ in HE had been tried and comprehensively failed. Against the success of a few new providers like the Dyson Institute there have been many more seeking to provide mostly lower-level courses, mostly in business, mostly in London. Operating an HE institution is a complex, difficult and long-term activity, and after relaxing requirements for entry to the higher education ‘market’, government was forced to crack down on the more egregious excesses of some of the new alternative providers. ‘Driving up quality through competition’ has been shown up as a fantasy; what always worked much better was relying on the intrinsic motivation of people in HE to do the best for their students, in what has always been vigorous competition with other institutions. Self-regulation is of course inadequate: HE institutions need external quality assurance and control, but the OfS chose to do away with the QAA, the designated quality body, by setting conditions which jeopardised QAA’s international credibility and forcing QAA to step down. Instead the OfS has set up its own quality arrangements in an apparently long-term plan which goes against all the expectations when HERA was enacted. 

That was the good news. A new government was entitled to try a new policy for HE, as it did. It didn’t work, so what happened next? Not repeal, of course, but neither was it, as we might have hoped, adaptation of the new policy to make it work better. In the chaos and increasingly rapid turnover of the post-Brexit administrations, politicians in the DfE and elsewhere became obsessed with culture wars. They brought forward a major new piece of legislation which had nothing to do with HE finance, staffing issues, student problems, or even the supposed focus of ‘levelling up’. Obsessed by immigration numbers, government even doubled down on HE’s financial problems with visa restrictions seriously affecting international student recruitment, especially for postgraduate recruitment which for many years had underpinned the viability of STEM disciplines. It was convenient for government that the OfS continued to give reassurances about HE finance, but it was hardly surprising, since government had installed a Conservative peer as the OfS chair.

The new legislation was the Higher Education (Freedom of Speech) Act 2023, education’s contribution to armaments in the culture wars. There were, of course, problems in some, perhaps even many, HE institutions over what might and might not be said in different contexts. A HEPI blog by Josh Freeman on 13 October 2022 argued that there was a problem with self-censorship and ‘quiet’ no-platforming. In the US some prominent university presidents lost their jobs arguing with politicians about the need to protect diversity in HE debate. The war on woke has not perhaps reached that pitch in the UK yet. But the Act required OfS to appoint a free speech ‘tsar’, as it did, and OfS issued proposals on 14 December 2023 on how the free speech regime will operate, launching a consultation on 26 March 2024. The results are unconvincing to those on the ground in the institutions. Jim Dickinson blogged for Wonkhe on 6 March 2024 about the shambles which government has created with its free speech legislation: “We are literally less than six months away from OfS opening a complaints scheme under which one group of students will say another’s actions amount to antisemitism, while the other will say they are threatening their right to express legally protected anti-Zionist beliefs – both saying their free speech is threatened as a result, both arguing they are being harassed, and both reasonable in asserting that they were assured their free speech and protection from harassment was assured.” The Act may even rival the Hate Crime and Public Order (Scotland) Act 2021 for its unworkability in practice.

The principal cheerleader for the new Act was Education Minister (and for two chaotic days in the fall of Boris Johnson, Secretary of State for Education) Michele Donelan, who continued to champion it even as she moved to become Secretary of State for Science, Innovation and Technology in the Sunak administration. Donelan relied on a press release from right wing think tank Policy Exchange to pick a fight with UKRI about the members of its Equality, Diversity and Inclusion Committee. The release was written by Donelan’s former special adviser Iain Mansfield. UKRI suspended its Committee and their membership pending an inquiry, which exonerated the members, one of whom sued Donelan for libel and won £15000 damages, as Faye Brown reported for Sky News on 12 March 2024. The damages were paid by the government, prompting widespread disbelief; Leader of the House Penny Mordaunt even suggested that we should cut Donelan some slack because she had not taken the £16000 redundancy payment to which she was entitled  from her two days as Secretary of State for Education. It would all be deeply embarrassing, if government ministers were still capable of feeling shame.

The playground urgently needs more grown-ups, to do higher education policy as if higher education mattered.

Rob Cuthbert is Emeritus Professor of Higher Education Management, University of the West of England and Joint Managing Partner, Practical Academics rob.cuthbert@btinternet.com. Twitter @RobCuthbert


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New Higher Education Institutions in England: A real chance to innovate?

by Katherine Emms

The 2017 Higher Education and Research Act (HERA) enabled new and innovative HE providers to enter and establish themselves, with the aim of diversifying the HE sector. The HERA reforms enabled institutions to apply to register as HE providers, obtain their own degree awarding powers (DAPs) and finally secure university title and status through a supposedly more streamlined and flexible process overseen by – the then new body – the Office for Students (OfS). At this unique time when many providers have been seizing this opportunity to enter the market, the Edge Foundation wanted to capture the experiences of setting up and developing new HEIs in England. Our subsequent research therefore aimed to explore how vision, pedagogies and approaches to learning are being developed, and what are some of the challenges these HEIs are experiencing in establishing themselves.

To investigate this we conducted a series of semi-structured interviews focusing on six newly established HEIs across England. At the time of the interviews some were in the process of recruiting their first intake of undergraduate students, while others were in their first few years of programme delivery. We spoke to founders, directors, senior leadership team members and those involved in setting up a new university and developing the first programmes. Policymakers were also interviewed.

We found that all the new HEIs set out clear and purposeful visions for their establishment. Many regarded the opportunity as a chance to break the mould of the traditional HE landscape and to help provide solutions to some global issues through preparing students sufficiently for a varied portfolio career in a complex world. Some HEIs were responding to more local needs, whether that be local skills shortages or offering HE opportunities for young people in their locality to help tackle local economic issues and widen participation.

Across many of the institutions’ organisational structures, administrative and academic processes, and physical spaces, they looked to break away from normalised HE structures. For instance, admissions policies and procedures aimed to move away from academic grades as the primary judgement for admitting students. Instead they consider personal attitudes and the potential of the applicant important. They assessed this through use of broader admission measures eg interviews and submission of ‘selfie’ videos. The scalability of such approaches however is uncertain as applications to the new HEIs grow. One of the reasons behind these approaches was to ensure they widened participation to more disadvantaged and diverse groups of students who may struggle to have previously entered HE.

For their staff body, new HEIs wanted to ensure that they recruited not just pure academics but also those with a background in industry. In order to recruit the right staff, they went beyond standard interviewing processes for recruitment, instead using a broader set of methods, such as running a test class. They were particularly looking for engaging and excellent teachers who also have the ethos, creativity and impetus for working in a start-up environment.

All the new HEIs in this research took non-traditional approaches to programme design and delivery, particularly by not relying on lectures and exams to teach students. Instead they wished to use more student-centred approaches to learning and make connections to the real-world through pedagogies such as problem-based learning, whereby students work primarily in teams to tackle issues whilst drawing on knowledge from multiple disciplines. Employers and external partners also are key role players in the design and delivery of these new HEIs, from designing the curriculum to offering real-world and authentic projects for students to work on. Importantly students also interact with these employers whether that be through presenting their ‘product’ from the team projects to the employer or through such interactions as expert lectures or work placements. A disinterest in traditional pedagogies and enthusiasm for external collaboration were understood as key to ensuring the authenticity otherwise suggested to be lacking in some existing HE provision.

Setting up a new HEI was not an easy feat, with participants reporting a number of challenges including funding and attracting new students. One particular challenge was the registration process and navigating the regulatory system. The process from registering as a HE provider to gaining DAPs was often seen as a slow and, for some, complicated process. Furthermore despite the impetus behind the Higher Education and Research Act (2017) endorsing ideas of innovation, new HEIs felt that external factors restricted the degree to which they could truly be ‘innovative’. For instance, the regulatory frameworks that new HEIs had to work within to register as a provider were based on assumptions about the traditional model of a university. One provider described the experience as ‘trying to fit a square peg into a round hole’. Likewise, some new HEIs discussed similar restrictions applying when working in partnership with existing universities, meaning they were restricted within the parameters of their awarding university. In both cases, some new HEIs stated that this led to mission-drift or a watering down of their ‘innovative’ approaches. 

Nevertheless, these new HEIs were ambitious and keen to achieve their visions through wielding and deploying unorthodox means, whether that be reimagining organisational structures and processes or combining pedological practices that would not necessarily be considered innovative by themselves, such as problem-based learning, interdisciplinary teaching and learning and student-centred teaching. But through presenting these practices together or in different combinations and in new contexts HEIs made ambitious attempts to generate different student outcomes.

The HEIs featured in this research were still in the early stages of conception or delivery. It is difficult therefore to judge their success as HEIs. It is yet to be seen whether many of their current practices, such as their innovative and personable approach to recruitment, are manageable when student applications and intake grows, or whether relationships with employers can be sustained and courses kept up to date. For the new HEIs of today, many of them consider the markers of their success will be in their student numbers over the coming years and the success of their graduates once they enter the workplace. Yet, despite the attention of policymakers looking to clamp down on “low-value degrees”, we may need to look beyond graduates’ salaries as a marker of success and instead delve further into learners’ experiences of HE, innovative and otherwise.

Katherine Emms is a Senior Education and Policy Researcher at the Edge Foundation. You can read the research New Higher Education Institutions in England: A real chance to innovate? here.

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Irregulation: is the Office for Students fit for purpose?

by Rob Cuthbert, SRHE News Editor

The House of Lords Industry and Regulators Committee has decided to investigate the OfS. The Committee, with a remit “to consider matters relating to industry, including the policies of His Majesty’s Government to promote industrial growth, skills and competitiveness, and to scrutinise the work of UK regulators”, published 12 questions on which it invited evidence. The first three questions nail it:

  1. Are the OfS’ statutory duties clear and appropriate? How successful has the OfS been in performing these duties, and have some duties been prioritised over others?
  2. How closely does the OfS’ regulatory framework adhere to its statutory duties? How has this framework developed over time, and what impacts has this had on higher education providers?
  3. What is the nature of the relationship between the OfS and the Government? Does this strike the right balance between providing guidance and maintaining regulatory independence?

Michael Salmon, News Editor for Wonkhe, said on 3 March 2023: “This is much of what sector groups have been calling for, and reflects concerns raised in OfS’ recently published review of its engagement with universities.” The HE sector’s ‘mission groups’, memorably labelled ‘gangs’ by the late David Watson, wrote collectively to the new Education Select Committee chair Robin Walker on 16 January 2023 to ask for a proper review of the Office for Students: “… there is growing concern that the OfS is not implementing a fully risk-based approach, that it is not genuinely independent and that it is failing to meet standards that we would expect from the Regulators’ Code.”

The concerns are not limited to people within the sector. Ian Mansfield, now at Policy Exchange, former special adviser in the DfE to Gavin Williamson and Michele Donelan, wrote for Times Higher Education on 16 February 2023 complaining that “The OfS has thus far failed to live up to the ambition of its creators to be light-touch and proportionate. … However, universities must take their share of responsibility. Despite being part of a mass participation system, receiving significant taxpayer funding, too many do not accept the basic fact that they should be regulated.” Lawyer Smita Jamdar of Shakespeare Martineau tweeted: “I come across v few institutions who resist being regulated. I come across more who are unhappy about the lack of pretty basic safeguards for procedural fairness. People like Mansfield who have egged the OfS on to rush to start investigations carry some (much?) of the blame.” She then wrote in Times Higher Education on 8 March 2023 that “the Office for Students’ published approach to monitoring the risk of breaches of registration conditions demonstrates that it lacks basic safeguards around transparency, fairness and accountability.” Sometimes if you are attacked from all sides you might be in the right place, but the OfS will struggle to argue that case: consider those three questions from the Lords Committee.

Are the OfS’ statutory duties clear and appropriate? How successful has the OfS been in performing these duties, and have some duties been prioritised over others?

This goes to the heart of the statute establishing the OfS, the Higher Education and Research Act 2017 (HERA).  HERA explicitly aimed to institutionalise a market for higher education because former Universities Minister David Willetts believed that market competition would ‘drive up quality’. One of his  successors Jo Johnson continued in that mistaken but fervently held belief as he steered HERA to become law. However the ‘disruptive’ innovators encouraged as new entrants have mostly created more problems than solutions, despite some small but distinctive successes like the Dyson Institute.

There is no space here to explore the failure of this kind of market, but one repeated motif in policy pronouncements before and since might be summarised as ‘Why won’t they do what we want?’. The answer is not that universities resist regulation (though some may do) but, more surprisingly, is that ‘You can’t buck the market’. There has always been intense competition between HE providers, for reputation and for the things which flow from that – students and research income – but often the competition is not overtly financial. Policymakers failed to understand institutional realities then, and even more so now. Policymakers introduced £9000 fees in the mistaken belief that a spectrum of fees would emerge reflecting quality differences. Anyone in any university could have told them, as many did, then that no self-respecting university would charge less than £9000, for the real reputational fear of declaring ‘low’ quality. The Higher Education Funding Council for England no doubt did advise just that, but HEFCE was of course abolished by HERA. Now we have a regulator which seems as ill-informed about institutional realities as policymakers continue to be.

Institutions actually respond rapidly to market forces and regulatory threats. At one end of the market, conditional unconditional offers by some universities were a predictable and rational response to accentuated competition for students. A combination of shame and regulatory threat forced their abandonment. At the other end, the declining real income from home undergraduate students drives expansion of international student numbers with higher fees at the same time as well-qualified home applicants are rejected – a saga which is yet to play out but may have toxic consequences for government. And there are growing lacunae of provision in some geographical areas and in some subjects, as market behaviour which makes sense for institutions delivers irrational distribution of provision across the country. This is market failure – because we have the wrong kind of legally-enacted market, and the wrong kind of regulation. The OfS’s duties may be clear, but they are not appropriate.

How closely does the OfS’ regulatory framework adhere to its statutory duties? How has this framework developed over time, and what impacts has this had on higher education providers?

Andrew Sentance (Cambridge Econometrics) argued in The Times on 14 February 2023 that there has been a broad failure of regulation since privatisation and it was time for a complete overhaul. The OfS may be an example, but it is probably untypical because it was so likely to fail. The history of OfS deserves to be written as a case study in regulatory failure, and one chapter will surely start with former Director of Fair Access Les Ebdon’s accurate prediction that “I can tell you exactly what the OfS will do. It will do whatever the government of the day wants it to do.” OfS shortcomings were at first masked by the skills and knowledge of its first chair, Sir Michael Barber, and first CEO Nicola Dandridge. Barber had been in and around government and HE for many years, and though not popular in HE was deeply thoughtful and knowledgeable both about the sector’s performance and about the nature of regulation. Dandridge had been CEO of Universities UK with a broad appreciation of the contribution of the whole range of the HE sector. They were respected and trusted, or at least given the benefit of any doubt, as they sought to respond to the growing range of issues which the government laid at the door of the OfS, now including unexplained grade inflation, harassment and sexual misconduct, mental health and well-being, freedom of speech and increasing the diversity of provision.

The shortcomings of the OfS might even have been overcome through evolutionary change, but the government, with Gavin Williamson then still Secretary of State for Education, doubled down on its earlier mistakes when it replaced Barber and Dandridge (see below), destroying the relationship between the OfS and the sector as it struck entirely the wrong balance for a supposedly independent regulator.

What is the nature of the relationship between the OfS and the Government? Does this strike the right balance between providing guidance and maintaining regulatory independence?

The notes to the 2017 Act say: “This Act creates a new non-departmental public body, the Office for Students (OfS), as the main regulatory body, operating at arm’s length from Government, and with statutory powers to regulate providers of higher education in England.” (emphasis added). It was rumoured that Barber sought a second term as OfS chair but was denied. Former UUK chair Sir Ivor Crewe (former VC, Essex) was interviewed, as Sonia Sodha and James Tapper reported for The Observer on 14 February 2021: “Perhaps it was the long passage in Professor Sir Ivor Crewe’s book The Blunders of Our Governments about the way ministers’ mistakes never catch up with them that led Gavin Williamson to reject the expert as the new head of the Office for Students. Or maybe the education secretary was put off by the section of the 2013 book, written with the late Anthony King, dealing with how ministers put underqualified, inexperienced people in charge of public bodies. The job of independent regulator of higher education in England was instead handed to James Wharton, a 36-year-old former Tory MP with no experience in higher education who ran Boris Johnson’s leadership campaign.”

The Education Select Committee questioned Lord Wharton of Yarm on 5 February 2021 and endorsed his appointment, which was announced by OfS on 8 February 2021. Rob Merrick reported for The Independent on 2 February 2021 that Lord Wharton had been subject to ‘hard questioning’, in the course of which he said he didn’t see why he could not retain the whip, nor why his role as Boris Johnson’s campaign manager should raise any conflict of interest issues. So the ‘independent’ regulator was to have a partisan chair who would retain the government whip. Conflict of interest issues raised themselves almost immediately, as Lord Wharton was revealed to be a paid adviser to a company seeking to build a cable connection through land at the University of Portsmouth, which had also made donations to several Conservative MPs.

Wharton’s appointment was greeted with incredulity in HE, but with no signs of embarrassment on his part; he even brazenly secured the appointment of Rachel Houchen, the wife of a friend and political colleague, to the OfS Board, which has just two people with extensive and current HE institutional experience, one from Oxford and one from UCL. Chris Parr of Research Professional News elicited the surprising information from the OfS on 13 March 2023 that the OfS Chair has only visited five universities since his appointment more than 2 years ago – Nottingham, King’s College London, Cambridge, Sheffield Hallam University and The Engineering and Design Institute in London.

OfS, ‘having regard to ministers’ as statute demands, started to leave HE realities behind. DfE wrote frequent letters to the OfS and the OfS jumped to respond. An OfS consultation document issued on 26 March 2021 put into practice the ‘instructions’ received earlier from Secretary of State Gavin Williamson, proposing to steer more funds to STEM subjects and, among other things, halve additional funding for performing arts, media studies and archaeology courses. WonkHE’s David Kernohan gave his critical analysis on the same day. OfS announced on 30 March 2021 that after the first phase of a review of the NSS, commissioned by Universities Minister Michele Donelan, there would be ‘major changes’ including dropping all references to ‘student satisfaction’. Consistent reports that 85% or more of students in most universities are satisfied with their experience would be embarrassing for a government determined to prove otherwise.

Not a buffer, an irregulator

In the past funding councils were statutorily responsible for in effect providing a buffer between HE and government, to regulate excesses on either side. There is no danger of ‘provider capture’ now that the arm’s-length relationship with government has such short arms. However the limitations of the OfS are being increasingly exposed, not least by the remaining Lords Committee questions, especially No 4: Does the OfS have sufficient powers, resources and expertise to meet its duties? How has its expertise been affected by the Quality Assurance Agency for Higher Education’s decision not to continue as the OfS’ Designated Quality Body?

The QAA withdrew as DQB because the OfS expectations were incompatible with QAA’s broader remit and international roles and indeed the requirements of the European Association for Quality Assurance (ENQA) – which makes it unlikely that an international provider in Europe would agree to take its place as DQB. The OfS as ‘interim’ quality body has lived up to its threat to put ‘boots on the ground’; even though repeated tweaks of its Key Performance Measures have not yet produced any persuasive identification of ‘low quality courses’.

Nor has OfS shown that it will take any notice of widespread HE opinion, as UUK’s Charlotte Snelling reported in despair in her Wonkhe blog on 31 October 2022. On 9 March 2023 OfS announced a consultation on how it should have its investigations funded. The OfS has powers to make such charges following orders laid in Parliament only in December 2022, and “This consultation is not seeking views on the powers that the Regulations give the OfS or whether we should seek to recover the costs of our investigations. We are also not seeking views on matters relating to the OfS’s approach to monitoring registered providers, which may lead to us opening or conducting investigations.” The OfS plans to recover all staff and other costs attributable to the investigation, which it is entitled to do by those orders. It is a sham ‘consultation’, since it is clear what is intended and it is wholly predictable that the OfS will do almost exactly what is proposed.

The role of buffer was condemned as ‘backward-looking’ by Jo Johnson in his recent evidence to the Lords Committee; for good measure he also described QAA as a legacy from a previous era, even though he made clear the undesirability of OfS being more than an interim quality body. But we might at least expect the OfS to show some understanding and appreciation of the difficulties which institutions face, especially with rapidly declining levels of real income from tuition fees. Instead OfS put its fees up by 13%: Gloucestershire VC Stephen Marston, a former senior civil servant who also worked in HEFCE, said in Times Higher Education on 16 January 2023 that the increase was unacceptable. John Morgan reported in THE on the same day that the ‘shameful’ 13% rise would push the largest universities’ fees above £200,000. OfS chief executive Susan Lapworth blogged shamelessly on 26 January 2023 about how OfS plans to ‘refresh its engagement’ with universities and other providers.

To sum up, in the words of Paul Ashwin (Lancaster) and former Secretary of State Charles Clarke:

“Overall, we have a situation in which the OfS has become more interventionist to protect ‘the student interest’, apparently as defined by ministers and certain sections of the media, while its expertise to understand what such interventions involve has fallen significantly. Moreover, it is very unclear what forms of intervention the OfS considers could be effective in changing university behaviours in the desired direction. Together, these points represent a serious challenge to the legitimacy of the OfS as a regulator.”

Effective regulation in higher education depends on the willing, or at least grudging, consent of the regulated, but that consent has been deliberately dismantled. Instead the Office for Students is collapsing in an orgy of partisanship and wilful disregard for the real interests of higher education and its students.

Rob Cuthbert is Emeritus Professor of Higher Education Management, University of the West of England and Joint Managing Partner, Practical Academics rob.cuthbert@btinternet.com. Twitter @RobCuthbert