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Must do better:  making the Office for Students accountable

by GR Evans

The House of Lords Committee on Industry and Regulators pulls no punches in Must do better. This Report on its Inquiry on the Office for Students published on 13 September finds the OfS to be underperforming in a number of respects. It criticises its ‘prescriptive regulatory requirements and time-consuming processes’ and its  ‘inappropriate micromanagement’, with ‘little regard to the need to protect institutional autonomy’. Institutions are found to be reluctant to engage with it ‘for fear of a punitive regulatory response’.

‘The student interest’ in which it was set up is described as ‘defined by the OfS in line with the political priorities of Ministers rather than the priorities of students’. In comparison with its  threatening mass of detailed rules for providers the OfS definition of  required ‘outcomes’ affecting students (student continuation beyond a first year; progression to completion; gaining employment) is found to be ‘simplistic and narrow’.

The Office for Students is a non-departmental ‘arm’s length’ public body with executive functions. These are far more extensive than HEFCE possessed in its role of ‘buffer’ between Government and providers of higher education and Must do Better is concerned that the OfS has been adding to them. Moreover Must do better says that the lack of close attention to the underlying objectives of his statutory duties ‘makes it difficult for the OfS to be held accountable’.

The OfS is a regulator. Must do Better says it ‘should improve its adherence to best regulatory practice through closer alignment with the Regulators’ Code’ dating from 2014. It should do so ‘with respect to how it implements its policies and procedures, as well as how it develops them’. The Regulators’ Code has ‘accountability’ as its overall aim, and emphasises reciprocal and mutual responsibilities between regulator and regulated, a point on which the OfS is now found conspicuously wanting.

The provisions for its accountability seem inadequate to address the potential abuse of power arising from a failure of the OfS to engage appropriately with the providers it regulates. If it decides a provider ‘must do better’ in meeting its ‘outcomes’ requirements, the Office for Students can remove it from its Register, take away its degree-awarding powers and its university title or impose a monetary penalty, with the provider paying the costs of its investigation, with internal appeal only against the scale of the costs.

Appeal against an OfS decision on such matters lies to the First-tier Tribunal Health, Education and Social Care Chamber (Care Standards). It must be made within 28 days of the issue of the decision by the OfS, on the grounds that the decision was based on an error of fact; was wrong in law, or unreasonable, except where the decision was to revoke degree-awarding powers or University title. In that case the grounds of appeal are not specified and the decision may be made afresh. The Tribunal will take into account evidence that was not available to the Office for Students when it made its decision.

A landmark case was brought by Bloomsbury Institute Ltd, formerly the London School of Business and Management, after its application for Registration was refused by the OfS in May 2019 under Registration Condition B3, namely  that ‘student continuation rates from year one to year two (“continuation rates”) and rates of progression to professional employment or post-graduate study (“progression rates”). First came an attempt at judicial review on a several grounds. That was unsuccessful but an appeal succeeded on two grounds, ‘delegation’ and the failure of ‘publication and consultation’. Bloomsbury is now on the Register subject to an Ongoing Condition about student ‘continuation’ (R. v. Bloomsbury Institute Ltd. and The Office for Students [2020] EWCA Civ 1074).

Must do better points to the agreed accountability ‘framework’, not between OfS and providers but between OfS and Government. The current Framework document between the Department for Education and the Office for Students is dated January 2023. This promises ‘reviews’ to ‘ensure intra alia that the OfS is delivering effectively’ against the ‘aims and objectives’ of the Public Bodies Review Programme, but ‘The date of the next review is yet to be determined’. 

It may take some time to arrange. Must do Better notes the National Audit Office’s recent criticism in its Central Oversight of Arm’s Length Bodies that ‘review programmes’ had ‘failed to meet their ambition of reviewing every ALB [Arms Length Body] within a Parliament’. Must do better notes ‘that the Government is committed to a public body review of the OfS’, but calls for that to go beyond the ‘considering whether the OfS’ work remains useful and necessary’ by placing ‘ its work in a wider context, focusing on the strategic issues facing the sector’.

In any case the Office for Students’ Framework Document provides accountability only through the Secretary of State (ultimate accountability to Parliament) and the Minister for Higher Education (day-to-day responsibility). The DfE’s Senior Sponsor for OfS will ‘hold quarterly performance reviews with the leadership of the OfS as part of performance monitoring and accountability’. These do not seem to be on published record. Government ‘recognition of the problems created by regulatory duplication in the higher education sector’ is welcomed but Must do better  wants  the DfE to ‘set out in further detail the steps it is taking to streamline regulatory responsibilities within the sector, including its proposed timetable for this’.

There is published self-criticism. The OfS’s Annual Report for 2022-3 took stock of its own performance expressly in terms of the requirements of its Framework relationship with the DfE:

This year we experienced some resource challenges, which had implications for some business plan activities. Our Performance analysis report identifies where this was the case.

OfS accordingly tracked its ‘performance against’ its eleven Key Performance Measures and Operational Measures and ‘reported to the DfE’ on its ‘progress’. KPM 11 covers ‘Efficient Regulation’ and lists under the headings: ‘Minimum and maximum number of OfS data and information returns for providers’; ‘Average number of OfS conditions of registration subject to enhanced monitoring per registered provider’; Amount of regulatory fees paid by providers per student’. The Operational Measures count Reportable Events; Notifications; Registration; Degree awarding powers, and time taken to resolve these. The OfS Annual Report adds that its ‘performance against budget’ is ‘monitored and reported each month’ and its ‘performance against financial target’ on an in-year basis. It has monitored  its performance in paying its creditors, ‘greening’, the Cabinet Office’s Functional Standards for Counter Fraud and salaries.

Must do better makes recommendations but it is far from clear how accountability can be insisted on. Must do better finds it ‘worrying that some institutions would be unwilling to engage with the OfS’ particularly ‘in the early stages of falling into financial difficulty for fear of a punitive regulatory response’. The 2022-3 Annual Report looks towards the  individual providers with which the OfS has a regulatory relationship, but chiefly in terms of their ‘Financial sustainability and governance’. It had required 250 providers to complete their annual financial return for the 2020/2021 financial year:

Of these, 117 were subject to further assessment, there was informal monitoring of 51 providers, of which 31 were subject to additional formal monitoring. Three providers were subject to Student Protection Directions, which enable the OfS to intervene “quickly and in a targeted way” where there is a material risk of market exit. One provider exited the market.

 It was recognised before the burden was increased with the creation of the OfS that already  ‘the accountability burden in the higher education sector is out of proportion to the risk of financial or academic mismanagement.’ This may no longer be true, and if so that matters in connection with the full title of Must do better: the Office for Students and the looming crisis facing higher education.  The Report outlines this crisis in terms of the diminishing value of the tuition fee against the expanding institutional cost of teaching an undergraduate and the growing reliance on income from international students.

It expresses concerns about the adequacy of OfS’s checking of financial sustainability especially with reference to the latter. It finds it too trusting, which is especially a concern in the light of the recognition that providers in financial difficulties are afraid to raise their concerns with the OfS. The OfS Register defines the providers whose students are entitled to loans from the Student Loans Company. It currently lists 425, in two categories, those which may charge fees up to £9,250 and those without a ‘fee cap’ to which the SLC will lend only £6125, less if the provider has no TEF rating. There is perhaps a further growing concern which Must do better fails to pick up and that is the multiplication of alternative providers not all of which have degree awarding powers or university title and not all of which are offering courses above Levels 4 and 5.

How badly is the Office for Students failing? Can it improve sufficiently to help protect the future of English higher education? It has been publishing reassurance that it is making efforts to connect better with the providers of higher education it now regulates. It has published the findings of two assessment visits on Business and Management courses and celebrates ‘positive engagement’ from local graduates on an OfS programme. It is ‘advising’ on ‘what works in supporting disabled students’. This is all a warrant of a wish to repair flaws and to improve what it does but the criticisms of Must do Better may not be easy to meet piecemeal.

A letter to the Chair of the House of Commons Education Select Committee from the chief executives of the Russell Group, GuildHE, MillionPlus and the University Alliance in January 2023, suggesting that the OfS was failing to comply with the Regulators Code  helped to prompt concerns that this was encouraging providers to resort to litigation. That led to further concerns in March about the lack of ‘basic safeguards around transparency, fairness and accountability’ in the conduct of the OfS.

The Lords’ Industry and Regulators Committee began its inquiry in March and the now published evidence submitted to it fully supports the conclusions of Must do Better. If the Office for Students is beyond reform could it be abolished? That would require fresh legislation. The Higher Education and Research Act (2017) depends heavily on the belief that, with the block grant shrunk to vanishing point for teaching and tuition fees a chief source of university income, HEFCE’s allocation of a block grant in the capacity of a buffer between Government and providers would no longer be enough. When providers were attracting their funding directly, institutional autonomy was no longer to be trusted without a new Regulator. The drawbacks of this policy change are now apparent. Perhaps it is time for a radical rethink.

SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.

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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


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The value and values of third sector collaboration for equality of opportunity

by Ruth Squire

In October 2022, as part of a foreword to the Office for Student’s consultation on ‘regulating equality of opportunity in English higher education’, the Director for Fair Access and Participation set out that he expects ‘more, and more impactful, strategic, enduring, mutually-beneficial partnerships with schools and with the third sector’ (OfS, November 2022).

The expectation has carried through into more recent guidance issued by the OfS (OfS, March 2023a), which names the third sector as potential collaborators in supporting school attainment and student outcomes. This is not a new expectation – the OfS, its predecessor organisations, and the DfE have repeatedly stressed the value of collaboration and HE providers (HEPs) collaborating with the ’third sector’ for access and participation – but it does warrant some scrutiny, as it can carry several implicit assumptions about the value and values that the ‘third sector’ can bring to access and participation. In its summary of consultation responses, the OfS notes that some respondents were ‘unsure’ whether third sector collaboration was appropriate (OfS, March 2023b), suggesting that not everyone has the same understanding or enthusiasm around these potential relationships as the OfS.

Questioning the third sector imaginary

The term ‘third sector’ (as opposed to a voluntary, community or charity sector) carries with it a lot of political history and assumptions. Organisations considered ‘third sector’ have been generally assumed to be, in some ways ‘better’ than alternatives in the public or private sectors, whether ethically or in terms of structures that make them more effective at tackling social issues (Macmillan, 2015). These organisations have been assumed to have innovation, effectiveness and (the right) values ‘baked in’ to their organisational structure. These assumptions can become particularly problematic when they are framed in opposition to the work of HEPs, whose widening access work has sometimes been criticised for making slow progress and being informed by institutions’ market interests. Rather than considering these qualities as attributes of ‘types’ of organisations or sectors, it might be better to ask what qualities we need and value in widening access and participation, and how these can be supported in all contexts. Simply ascribing qualities or values, even implicitly, to third sector organisations can frame them either as an ‘add on’ or even antidote to access and participation within HEPs – not particularly collaborative.

The examples of third sector collaboration offered by the OfS and its predecessors have tended to focus on particular ‘types’ even within the third sector – mostly social enterprises and philanthropic organisations. These are often ‘hybrid’ organisations that explicitly combine social and economic value and/or blend public and private sector practices. Among these, the Sutton Trust, with its blended focus on research, lobbying and activity delivery, and a message focused on access to the most elite professions and universities, has become the most prominent. However, the majority of non-HEP access and participation organisations do not have the resources of the Trust, nor is it appropriate for all organisations to follow this blended model of delivery. The presence of such a dominant model of ‘third sector’, which is particularly attractive and well-known among political figures, can create both opportunities and challenges for other third sector organisations, particularly in terms of advancing alternative visions of widening access and collaboration.

If we look wider than this narrow understanding of the ‘third sector’ and how it should operate, then there are a whole range of different organisations that could be and have been collaborators in access and participation. These include campaigning organisations, grassroots community organisations, parent-teacher associations or students’ unions. Collaboration with charitable and/or community organisations around widening access is not new for HEPs. Nor is it a new way of delivering on widening participation aims. However, with a dominant view of what qualifies as ‘third sector’ it is unclear whether these organisations offer the value or values expected by the OfS.

Looking more closely at the capacities and qualities of third sector collaborators can also reveal some assumptions we make about the shape of collaboration and the role of HEPs. Many third sector organisations, even those referenced as exemplars by the OfS, need to collaborate with universities to deliver their missions and to survive. However, they rarely have the security of long-term relationships that can support the effectiveness and innovation that are supposedly their essential characteristics. Examples of existing partnerships have tended to frame third sector organisations as deliverers of activity or consultants, with the HEP in control. What ‘impactful, strategic, enduring and mutually-beneficial’ looks like may require a change from current practice, questioning that power dynamic.

Values-driven organisations

The supposed neutrality and (non-partisan) values of third sector organisations working in widening participation have sometimes made them particularly attractive to political figures and to policy makers, singling these out as examples of good work. Despite values being seen as a positive quality in the work of the third sector, relatively little scrutiny has been placed on values in access and participation practice and policy more broadly. The quality of ‘good people doing good things’ is certainly not unique to the third sector, especially given that they are often the same people and same values as those working in HEPs or even the OfS.

Personal and institutional values have a core role in the enactment of widening participation in all settings. In a survey conducted with widening access professionals in 2021, personal experiences and values were a motivating factor in their roles for all respondents, regardless of the type of organisation they worked for (McCaig, Rainford & Squire, 2022). However, this is not to say that context is not important. Third sector organisations are often materially different to HEPs, not least in their relationship to widening participation policies. In that same survey, there were notable differences in how respondents described their organisations’ motivations, both within and between third sector organisations and HEPs.

There is a growing argument that we need to look more closely at the enactment of widening policy and how it is translated into practice within organisational and national contexts (Rainford, 2020; Benson-Egglenton, 2022). This is as true of third sector organisations working in this space as it is of HEPs (and of the FE colleges, employers and virtual spaces which are also often not included in policy and research). Understanding more about the different contexts in which widening participation is enacted and about those who enact it is an important component in understanding how some of the broader goals of widening participation can be achieved. We also need to pay critical attention to the different roles and capacities of organisations in the widening participation policy space, and their interests. Third sector organisations, just like HEPs, are not neutral by virtue of being charities. Values matter and they offer the potential for meaningful and enduring connections that are not based on organisation ‘type’. If we are to build the type of partnerships the OfS is calling for it will be crucial to move beyond assumptions and develop greater understanding of our similarities and differences .

Dr Ruth Squire is Evaluation and Impact Manager at Leeds Trinity University. Her PhD thesis explored the role of third sector organisations in widening participation policy and practice and she continues to research the enactment of policy, evaluation practice and widening access and participation work.


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Where should freedom of speech responsibilities in higher education lie?

by GR Evans

Under the Higher Education (Freedom of Speech) Act higher education providers and students’ unions will be required to publish Codes of Practice on freedom of speech. The Bill sets out the requirements separately for higher education providers (at A2 (2)(c)) and for students’ unions (at A6(2)(c)).

For both the Code must cover ‘the conduct required’ of the responsible bodies. Any complaint is therefore to be against the provider or students’ union, not any person or persons whose ‘conduct’ may be complained of. The complainant must be an affected individual who must have ‘suffered adverse consequences’ as a result of something the responsible body has done or not done. (An affected individual is (a) a person who is or was— (i) a member or member of staff of the students’ union, (ii) a student of the provider, or (iii) a member or member of staff of the provider or of any of its constituent institutions, or (b) a person who was, or was at any time invited to be, a visiting speaker.)

This has the advantage of clarifying who are to be the parties in a dispute about ‘conduct’ under the Act. However, the definition of ‘adverse consequences’ will have to be tested case by case and shown to be the fault of the responsible body. This could well seem remote from the actions of individuals which triggered or caused the harm. It will not be easy to identify a role for a decision-maker – the Bill requires the Office for Students to create a Free Speech tsar as arbitrator – to determine what responsibility a provider has in a given case, and especially the responsibility of individuals acting on behalf of the provider, such as HR professionals or union representatives.

Difficulties of these kinds have arisen in a number of instances which throw into question the practical reality of laying blame as now proposed. Kathleen Stock, a Professor at the University of Sussex, faced demands from campaigners that the University should dismiss her for her alleged transphobia. They wrote ‘we do not say Stock should not be permitted to say the things she does. We believe in the principles of academic freedom’, but they did not want those relied on. ‘Conflating concern about the harms of Stock’s work with threats to academic freedom obfuscates important issues’, they said. Stock told the Guardian that the academics had created ‘an atmosphere in which the students then become much more extreme and much more empowered to do what they did’.  UCU had taken sides against her, but trade unions are not included in the Act as responsible for the protection of freedom of speech.

The Vice-Chancellor of the University wrote to ‘all staff’ to say that the University had ‘vigorously and unequivocally defended her right to exercise her academic freedom and lawful freedom of speech, free from bullying and harassment of any kind’. Stock was not dismissed. She chose to resign. The question must be whether the University could have done more to protect her against the ‘adverse consequences’ she undoubtedly faced. On what grounds could she complain against the University?

Steven Greer, a Law Professor at Bristol, was attacked by student members of the University’s Islamic Society for allegedly making ‘Islamophobic, bigoted and divisive’ remarks in lectures. He received online threats. The University did something. It held a review, conducted by a KC who found that his remarks included ‘no evidence of Islamophobic speech’ and ‘did not amount to discrimination or harassment’, being ‘intended as the basis for academic debate by the students who elected to study it’. A Bristol spokesman was quoted as saying that students were encouraged ‘to engage with, debate, analyse and critique ideas and theories of all kinds within our academic programmes’. Steven Greer retired in 2022 but has published a book about his experience. He continues to call for the student activists to be punished by the University.

Speaking to Times Higher Education Greer drew attention to two other ‘freedom of speech’ cases at Bristol. David Miller, Professor of Political Sociology, had been dismissed by Bristol over remarks he had made about Israel. A Jewish student had made a complaint. The University commissioned a report from a KC, who, the University explained in a statement, ‘considered the important issue of academic freedom of expression and found that Professor Miller’s comments did not constitute unlawful speech’. Nevertheless, Miller was dismissed in October 2021, apparently for unprofessional conduct. His internal appeal was unsuccessful in March 2022. Had the new Act been in force he could have complained against the University, but could it have defended his dismissal if it was for reasons unconnected with any breach of its responsibilities to protect freedom of speech?

The second, the Bristol student Rachel Rosario Sanchez, had felt undefended by the University when she faced a hate campaign by student ‘trans activists’. She took the University unsuccessfully to court alleging that it had failed in its duty of care to her as a student. The option of making a complaint to the Office for Students might have been open to her had the new legislation been in force.

In Oxford, Professor Selina Todd co-signed an open letter to The Sunday Times in June 2019 questioning the acceptability of universities paying for training by Stonewall on LGBT matters, arguing that it was discouraging academic freedom of discussion. She was threatened by trans-rights activists. The University provided security at her lectures. In February 2020 her invitation to a conference was withdrawn. She told Cherwell (7 March 2020) that she was ‘shocked to have been no-platformed by this event, organised by Oxford International Women’s Festival and hosted at Exeter College’. She had “explained to the organisers that some trans activists may object to my being there. In fact, trans activists had already tried to shut the conference down because they claimed second-wave feminism was inherently trans-exclusionary”. If this was a college event, the University’s conduct was not in question in this case. The University has not sought to limit her continuing exercise of freedom of speech. She wrote to The Times on 3 November 2021 to criticise the Athena Swan scheme which is approved in many universities.

Cambridge has had recent cases testing the ‘conduct’ of one of its colleges and its Students’ Union. “Students from various colleges eagerly participated in the peaceful demonstration by banging pots and pans along with the chants”. This was reported by Tab in an article extensively illustrated with pictures of a ‘peaceful protest’ held outside Caius by the Cambridge Student Union LGBT+ campaign on 25 October 2022. A possible complaint about that action might lie against Cambridge University Student Union (CUSU).

The occasion was a lecture given by Helen Joyce, leader of the campaign group ‘Sex Matters’, at the invitation of Professor Arif Ahmed, a Fellow of Caius. It had gained considerable notice because the Master of Caius had circulated a letter deprecating the event, which had prompted press coverage. The Head of House did not, however, seek to prevent the occasion from taking place. But this is an example of a ‘freedom of speech’ episode where the responsible body was a ‘constituent institution’ of a higher education provider registered by the OfS. Any complaint of ‘adverse consequences’, for example about the consequences of the letter circulated by the head of House, would lie against the College.

Varsity has recently reported the vandalising of the front door of the Department of Chemical Engineering and Biotechnology by an activist group ‘citing the department’s ties to fossil fuel funding’ and alleging ““lobbying” by the department to delay a motion to stop the University receiving funding from fossil fuel companies”. “Activists from the group had taken similar action against the Schlumberger Gould research centre and the BP institute”.

These examples suggest that it is not going to be easy to draft Codes of Practice for providers or students’ unions which can realistically protect the freedom of speech of individuals in the face of an activism by other individuals which may place a higher ethical premium on a particular cause or campaign. The banging of pots and pans is arguably an acceptable form of protest speech, but can that be true of the breaking down of a door? The damaged Departmental door is not a person so it cannot make a complaint.

The role of the OfS in handling complaints

The new legislation is built round the role of the Office for Students. The OfS is to ‘regulate’ the duties of providers and students’ unions, operate a Complaints Scheme and have on its Board a Director for Freedom of Speech and Academic Freedom, adding this role to its other Directorship, for Fair Access and Participation.

This will require a change of attitude by OfS. On 15 December 2022 OfS implied that it would take no direct role in the enforcement of freedom of speech in higher education providers:

“The Office for Students stands for the widest possible definition of free speech within the law. It is not our role to take sides in the contested debates that feature in the higher education sector. We must, and will, apply our understanding of the law to the facts of an individual case and do so with care and impartiality.”

However, it did sketch intentions which might now be included in a Code of Practice. It would ask whether a provider has “robust decision-making arrangements, which require it to consider the impact of its decisions on free speech and academic freedom as part of the decision-making process” and “checks and balances to ensure that its policies and processes do not adversely affect free speech or academic freedom”. It would ask whether it ensured “that staff are appropriately trained, in particular those who are making decisions that may affect free speech and academic freedom matters.”

OfS wrote more robustly about its role in protecting freedom of speech on 17 May 2021, after the Higher Education (Freedom of Speech) Bill was introduced. It shared a joint press release with the Department for Education on 12 May, proposing the role of a new Director, to oversee the various free speech functions of the OfS, now to include compliance and enforcement. It does not appear to have been suggested that this task properly lay with the UKRI too, so as to ensure that freedom to research was protected as well as freedom of speech in teaching. The vandalising of the Cambridge Departmental door was prompted by remarks on the value of research in areas in dispute. The word ‘research’ appears in the Bill only as part of the title of the Higher Education and Research Act 2017 and a few times in connection with checks on overseas funding for research.

When a ‘Case for the Creation of the Office for Students’ as ‘a new public body’ to take the place of HEFCE and the Office for Fair Access was outlined by the then Department for Business Innovation and Skills on 2016 it was argued that there was ‘a need for a simpler, less bureaucratic and less expensive system of regulation’. This was the intention under which the OfS was created. However, concerns about its operation have been multiplying. On 12 January 2023 the sector bodies (Russell Group, Million Plus, GuildHE and the University Alliance) wrote a joint letter to the Chair of the Education Select Committee calling for ‘an inquiry into the operation and performance of the Office for Students’. It said it would be ‘timely’ to ask whether it was ‘fit for purpose’ given its new Freedom of Speech role.

The sheer scale of the expansion needed to provide for the operation of the new complaints procedure does not seem to have been calculated. The OfS has a budget of £30m and 350 staff. It is likely to need many more to cover this new duty and the litigation it may prompt. The Bill says that the complainant must have exhausted internal procedures first before it comes to the OfS and if the matter is before a court or tribunal the OfS scheme may not consider it, but between those stages the OfS will be very busy.

Also not fully examined seems to be the role of the new Director, described in the Bill in an insertion to Higher Education and Research Act 2017, Schedule 1 on the OfS. It involves ‘overseeing’, ‘performing’ and ‘reporting’ to the OfS. The ‘performing’ lays on the Director the ‘free speech functions’ of the OfS including ‘monitoring and enforcing the registration conditions’ of providers. This seems likely to require considerable additional staffing to support the Director.

Conclusion

The new legislation imposes on higher education providers and students’ unions a responsibility which seems difficult to fulfil in the face of the untidy realities of the ‘free speech’ behaviours of their members, staff and students as exemplified in recent disputes. It lays a further responsibility on the Office for Students to police it all at a time when concerns are mounting about its competence in discharging its existing responsibilities.

SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.

This is a revised version of an article which first appeared in The Oxford Magazine No. 451, Eighth Week, Hilary Term 2023, reproduced with the kind permission of the editor Tim Horder.

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Memo to Universities UK: don’t let this crisis go to waste

by Rob Cuthbert

Carpe diem, quam minimum credula postero[1]

Our text is from Boris and Horace. Boris Johnson had Churchillian aspirations, and it was Churchill who supposedly first said in the 1940s: “never let a good crisis go to waste”, in the context of the formation of the United Nations. And it was Horace much longer ago who urged us to seize the day, and put little faith in the future.

As we survey the present carnage[2] in government, what are vice-chancellors to do? First, take stock of the damage to the machinery of government, both in the Department for Education and the Office for Students. At government level we had three Secretaries of State in the space of just 48 hours. Nadhim Zahawi, the last-but-two incumbent, had shown some signs of common sense, although admittedly his predecessor Gavin Williamson had set the bar very low. Nevertheless Zahawi had done nothing to rein in his universities minister Michele Donelan, who seemed to prefer fighting the culture wars to addressing the real problems of English HE – declining levels of funding, an epidemic of student mental health problems, profound staff dissatisfaction and the threat of mass redundancies and even insolvencies in too many universities. She had taken to telephoning individual vice-chancellors to question some aspect of university management or student behaviour, while enthusiastically pursuing the Higher Education (Freedom of Speech) Bill, which at the time of writing is at the committee stage in the House of Lords, procedurally close to its establishment in statute – perhaps. Her reward as the resignation carnage unfolded was a big promotion to Zahawi’s job, as he moved to be Chancellor of the Exchequer on Rishi Sunak’s resignation. But as the ministerial resignations surged past 50 on Thursday 7 July, Donelan obviously thought that it was safer to join in than to be, perhaps, buried in an eventual massacre of the survivors. But her timing was bad. Her letter of resignation was made public less than an hour before the news emerged that Boris Johnson had bowed to the inevitable and agreed to step down as leader of the Conservative Party – but to continue as Prime Minister, possibly until the Autumn party conference. For a brief period the DfE had no ministers at all, but the Donelan resignation made no difference to the outcome. Had she stayed, she would probably have remained in post and the outcomes for HE might have been different. Instead James Cleverly is the new Secretary of State. He has previously served in the Cabinet, but his views on Education have been “mainly confined to a yearly jeremiad on how A levels were getting easier”, according to David Kernohan’s instant appraisal for Wonkhe on 8 July 2022. At the time of writing the new Universities Minister has yet to be named.

The tsunami of ministerial changes will make waves for the regulator too. While that would be true of any ministerial change, in these peculiar circumstances the waves may reach storm heights. The chair of the Office for Students owes his position to his closeness to Boris Johnson. Baron Wharton of Yarm, as he now is, was simply a former MP when he took on the role of campaign manager for Boris Johnson’s successful bid to replace Theresa May as leader of the Conservative Party. (In the past there has been some dispute about whether he really was ‘the’ campaign manager, but no doubt there are now fewer claimants to that ‘honour’.) Wharton was rewarded first with a peerage, and then with the chair of the Office for Students. Controversially, he has continued to take the Conservative whip in the House of Lords although the OfS is by statute an independent regulator. It comes as no surprise that the OfS is fulfilling the prediction made before OfS was established by Director of Fair Access Les Ebdon, when he said “the OfS will do whatever the government of the day wants it to do”.

One of many ministerial letters of ‘guidance’ went to the OfS from the then Secretary of State Nadhim Zahawi and the then Universities Minister Michele Donelan on 31 March 2022. It said in effect that they like the way the OfS is doing the government’s bidding, but they want it done quicker and better. The interim OfS Chief Executive, Susan Lapworth, tried to defend the position in her HEPI blog on 13 June 2022: “ministers are not ‘politicising’ the work of the OfS when they make use of these lawful mechanisms to express their priorities and expectations. Rather, they are making proper use of the powers Parliament gave to them and that feels entirely democratic to me.” She noted that “ministers appoint the members of the OfS board: the OfS chair, independent members, the Chief Executive, the Director for Fair Access and Participation, and, subject to the passage of the Higher Education (Free Speech) Bill, another future director. These are all subject to the normal processes for public appointments. It is, though, hardly a surprise that ministers would wish to appoint people broadly aligned with the policy preferences of the government of the day. And a democratically elected government gets to make those decisions.”

Jim Dickinson and David Kernohan in their 1 June 2022 blog for Wonkhe noted: “… the first meeting for a new [OfS] board member announced by the Department for Education (DfE) as one Rachel Houchen. She’s the wife of Conservative Tees Valley Mayor Ben Houchen, who “lives in Yarm with his wife Rachel” and who until recently was assistant headteacher and governor of a local school, making her arguably more qualified than James Wharton to be on the board. No problem – according to the OfS interim chief executive, it’s OK to appoint the wife of your good friend and neighbour (and Conservative MP) to a seat on the board, if you’re the Chair who still takes the party whip in the House of Lords, because, “once appointed, we all ensure that OfS decisions are taken independently”.  

Now all bets are off. It remains to be seen whether the Higher Education (Free Speech) Bill will be enacted; it might depend on the kind of drubbing it gets in the Lords at committee stage, and whether a limping government has the inclination for a fight on that particular hill. That will determine whether we get a higher education free speech ‘tsar’, directly appointed by the Secretary of State (whoever that is by then). But the Donelan-pleasing initiative announced on 26 May 2022 is already looking more uncertain. The OfS launched investigations into eight universities and colleges to decide whether they meet the OfS’s conditions for quality, which had just come into effect. “Other factors to be considered include whether the delivery of courses and assessment is effective, the contact hours students receive, and whether the learning resources and academic support available to students are sufficient. To support this work the OfS is recruiting a pool of experienced academics to lead the investigative work.” OfS warned that they would be putting ‘boots on the ground’. But on what grounds? Diana Beech (London Higher) was in combative form in her HEPI blog  on 16 June 2022: “In sum, it appears that before implementation of the B3 risk framework, we have moved to a process of investigation based on undefined thresholds or metrics, accepted a subject-based evaluation rather than sector or institution, and accepted that volume balances against scale of variance. Consequently, questions must be asked about the timings, approach and motives for this announcement, which comes before the new Chief Executive of the OfS has been announced and also before a much-anticipated ministerial reshuffle.” Beech, of course had no inkling then of the scale of the ‘reshuffle’, but those questions must be asked with even more urgency now. Will the new DfE ministerial team wish to persist with such an ill-founded venture?

The situation poses existential challenges not just for government and the OfS, but perhaps also for Universities UK. There is an unprecedented opportunity for UUK to reset the terms of engagement between government and universities, by asserting a new and better interpretation of what the Higher Education and Research Act 2017 should mean. There is a chance to put an end to unproductive top-down meddling and reinstate constructive dialogue. But will UUK seize the day?

Some recent signs are not hopeful. OfS have repeatedly criticised ‘unexplained’ increases in the proportion of first class and 2:1s degrees, most recently in a report published on 12 May 2022, readily spun as ‘grade inflation’. In response Universities UK and GuildHE jointly announced on 5 July 2022 their plans to return to pre-pandemic levels of first class and 2:1 degrees being awarded over the next two years. The UUK ‘commitment’ is carefully worded, so the details of how the new arrangements will work are yet to be determined. However UUK accepted the language of ‘unexplained’ increases in the proportions of first class and 2.1s, even though the possible explanations include ‘better teaching’ and ‘students working harder and better’ – for which there is some research evidence. In principle the UUK announcement can only be seen as a shift to norm-referencing and away from criterion-referencing. There is no reference in the UUK announcement to the value of academic autonomy, or the need to be mindful of that autonomy. There must be a danger that UUK will continue to be reactive rather than assert more vigorously the value and the values which underpin the excellence of the English HE system.

But there are encouraging signs too. On 9 May 2022, while Michele Donelan was still fighting the culture wars as Minister for Further and Higher Education, UUK issued a strongly-worded rebuttal of government proposals to cap student numbers and introduce minimum entry requirements: “proposed reforms to post 18 education and funding in England would turn back the clock on social mobility while limiting the government’s own levelling up agenda. … UUK strongly opposes the introduction of student number caps, which would hurt those from disadvantaged backgrounds the most. As well as limiting student choice, student number caps entrench disadvantage because students who are unable to move location to attend university have fewer opportunities to apply and be accepted to university, making them more likely to choose a path with poorer employment outcomes. Limiting educational opportunities is also counterproductive as the UK looks to upskill and meet the growing need for graduate skills. There were one million more graduate vacancies than graduates in 2022. As part of its response to the consultation, UUK has also raised issues with using minimum entry requirements. The universities most likely to be most affected by minimum entry requirements recruit high proportions of students from disadvantaged backgrounds.”

This is the kind of robust response which UUK will need to maintain and strengthen. The clear statement of values which underpins the statement is the best way to show in practice how UUK will stand up for HE’s best interests and the ‘brand’ that is British (not just English) higher education. Zeenat Fayez (The Brand Education) wrote in a HEPI blog on 11 July 2022: “Brand is a comparatively new concept for universities and can be an intimidating commercial term; but, distilled to an essence, it is simply the reputation of an institution. Marty Neumeier encapsulated the concept best in his description: ‘a brand is not what you say it is. It is what they say it is.’ A brand can therefore be said to be a person’s gut feeling about a product, service or company. Consequently, brand management is the management of differences, not as they exist on data sheets, but as they exist in the minds of people.”

There are profound differences within HE, not least between staff and vice-chancellors, thanks to the long-running dispute over pay, pensions and conditions in USS institutions, and the equally severe problems facing many other universities as student numbers have shifted upmarket, away in particular from Million+ universities towards those Russell Group universities which have chosen to expand. This jeopardises opportunities for many potential students unable to move beyond their local institution, especially across arts and humanities subjects, as the reported redundancies in too many universities demonstrate. In some cases vice-chancellors have been tin-eared in response, as in the case of one VC announcing redundancies to a mass staff audience online, simply making a statement and not taking questions, and another threatening to stop recruitment to a programme where staff are currently taking industrial action. However a number of individual VCs swiftly and robustly disagreed when Michele Donelan wrote to all English HE providers on 27 June 2022 about “growing concern that a ‘chilling effect’ on university campuses leaves students, staff and academics unable to freely express their lawful views without fear of repercussion.” As for the Race Equality Charter and Athena Swan: “I would like to ask you to reflect carefully as to whether your continued membership of such schemes is conducive to establishing such an environment. On that note, I would draw to your attention that, in May 2022, the interim CEO of the Office for Students, warned that universities, should “be thinking carefully and independently about their free speech duty when signing up to these sort of schemes.” Jim Dickinson for Wonkhe on 27 June 2022 was quick to note there had been no ceasefire in the culture wars.

It is time for the sensible tendency in UUK to reassert itself. That would enable UUK to reset how people inside and outside HE think about the management of differences, especially those between HE staff, UUK, OfS and DfE. It might even enable UUK to give a lead in the broader culture wars. By asserting its position vigorously and properly, and by being proactive on some issues rather than simply responding to another government initiative, UUK has an unprecedented opportunity to restore some faith and trust in its capacity to represent the sector’s interests.

Rob Cuthbert, editor of SRHE News and Blog, is emeritus professor of higher education management, Fellow of the Academy of Social Sciences and Fellow of SRHE. He is an independent academic consultant whose previous roles include deputy vice-chancellor at the University of the West of England, editor of Higher Education Review, Chair of the Society for Research into Higher Education, and government policy adviser and consultant in the UK/Europe, North America, Africa, and China.

Email rob.cuthbert@uwe.ac.uk, Twitter @RobCuthbert.

[1] “Seize the day, put little faith in the future” Horace Odes 1.11

[2] After pausing to be grateful that carnage for once refers to somebody else’s mess, rather than commercially-inspired student drunkenness.

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Tunnel vision: higher education policy and the Office for Students

by Rob Cuthbert

In January 2022 the Office for Students published three sets of consultations, 699 pages of proposals for the regulation of student outcomes, the determination of teaching excellence, and the construction of indicators to measure student experience and outcomes. These were not separate initiatives, but part of a co-ordinated programme which needs to be seen in the context of the long-awaited government response to the 2019 Augar report, finally published in March 2022[1].

The OfS consultation announced that numerical thresholds will underpin requirements for minimum acceptable student outcomes at both undergraduate and postgraduate level. Universities and colleges not meeting these could face investigation, with fines and restrictions on their access to student loan funding available as potential sanctions. For full-time students studying a first degree, the thresholds require: 80% of students to continue into a second year of study; 75% of students to complete their qualification; 60% of students to go into professional employment or further study.

Not just numbers? OfS say: “we recognise that using our indicators to measure the outcomes a provider delivers for its students cannot reflect all aspects of the provider’s context … If a provider delivers outcomes for its students that are below a numerical threshold, we will make decisions about whether those outcomes are justified by looking at its context. This approach would result in a rounded judgement about a provider’s performance.”

But then: “… such an approach may present a challenge for some providers. This is because they must only recruit students where they have understood the commitment they are making to support their students to succeed, irrespective of their backgrounds. … Most universities and colleges relish this challenge and already deliver on it. However, some do not. While some may offer opportunities for students to enter higher education, we also see low continuation and completion rates and disappointing levels of progression to relevant employment or further study.” A warning, then, for “some”, but not “most”, providers.

The OfS approach will be fine-grained: “We would consider whether a provider has complied with condition B3 in relation to each separate indicator or split indicator. This enables us to identify ‘pockets of provision’ where performance in a specific subject, for students with specific characteristics, or in relation to partnership arrangements, falls below a numerical threshold”.

‘Selecting’ universities might think that ‘contextual judgment’ will rescue them, but may still decide to play safe in subjects where the numbers don’t look so good. ‘Recruiting’ universities, especially in ‘levelling up’ areas, might be looking at the numbers across many programmes and considering their strategy. Everyone will be incentivised to play safe and eliminate what are numerically the most marginal candidates, subjects and courses. And everyone thinks this will discriminate against disadvantaged students. For example, the University Alliance response published on 16 March 2022 said: “The University Alliance is gravely concerned that the proposals outlined by government could have unintended consequences for the least privileged students in society.”

Sally Burtonshaw (London Higher) blogged for HEPI on 26 January 2022: “As the dust begins to settle on the 699 pages of Office for Students’ (OfS) consultations and accompanying documents published on Thursday and providers across the sector begin to draft responses (deadline March 17th), it feels like there is a gaping chasm between the sector and its regulator. Language in the accompanying press release with references to ‘crack downs’, ‘tough regulatory action’ and ‘protecting students from being let down’, jars with a sector which has contributed so much throughout the pandemic.”

Diana Beech (London Higher) blogged for HEPI on 7 March 2022 about the government response to Augar and the OfS consultations: “… what we are facing now is not a series of seemingly independent consultations concerned with the minutiae of regulation, but a multi-pronged and coordinated assault on the values our higher education sector holds dear.” Diana Beech was a policy adviser to the last three ministers for universities.

SRHE Fellow Peter Scott summed it up like this: “This … ‘direction of travel’ is … based on the assumption that we should continue to distinguish between FE and HE, vocational and academic tracks, in terms of their social bases and costs. Of course, that is the current reality. Universities, especially Russell Group ones, draw a disproportionate number of their students from socially-privileged backgrounds, while FE is badly under-funded. This is why it makes (economic) sense for the Government to try to divert more students there. But is that sustainable in a country that aspires to being both democratic and dynamic? Most other countries have moved on and now think in terms of tertiary systems embracing HE, FE, on-the-job training, adult and community learning, the virtual stuff … bound together by flexible pathways and equitable funding – and, above all, by fair access. In the UK, Wales is setting the pace, while Scotland has had its ‘Learner Journey 15-24’ initiative. In England, sadly, there is no echo of such positive thinking.”

Status hierarchies must, it seems, be maintained, and not just between HE and FE, but also between universities. Contrary to expectations the Teaching Excellence Framework will rise from the ashes of the Pearce Review via the OfS’s second consultation. Earlier versions of TEF did not reliably reproduce the existing status hierarchies; some Russell Group institutions even suffered the indignity of a bronze rating. Clearly this could not be allowed to continue. So now: “The proposed TEF process is a desk-based, expert review exercise with decisions made by a panel of experts to be established by the OfS. The panel would consider providers’ submissions alongside other evidence. … TEF assessment should result in an overall rating for each provider. The overall rating would be underpinned by two aspect ratings, one for student experience and one for student outcomes but there would be no rating of individual subjects within a provider.” Such undifferentiated provider-level arrangements will surely be enough to ensure no further embarrassment for those with the highest reputations.

There will still be gold, silver and bronze awards, but not for all. The OfS script is worthy of Yes Minister: “… our minimum baseline quality requirements establish a high quality minimum for all providers. Therefore, quality identified that is materially above the relevant baseline quality requirements should be considered as ‘very high quality’ or ‘outstanding quality’ … ‘Outstanding quality’ signifies a feature of the student experience or outcomes that is among the very highest quality found in the sector for the mix of students and courses taught by a provider. … ‘Very high quality’ signifies a feature of the student experience or outcomes that is materially above the relevant minimum baseline quality requirements for the mix of students and courses taught by a provider.” Is the difference clear? If not, don’t worry, because the TEF Panel will decide.

As Sir Humphrey might have put it: it’s like the Olympics – not everyone will get on the podium. And it’s like ice dancing: judges hand out the marks based on how they rate the performance. The table of “features of excellence” spells out the criteria, for example: “The provider uses research in relevant disciplines, innovation, scholarship, professional practice and/or employer engagement to contribute to an outstanding academic experience for its students.” Whereas for high quality: “The provider uses research in relevant disciplines, innovation, scholarship, professional practice and/or employer engagement to contribute to a very high quality academic experience for its students.” Is the difference clear? If not, don’t worry, because the TEF Panel will decide.

Nick Hillman blogged for HEPI on 21 January 2022 about the OfS initiatives, reflecting on the limited success of previous attempts to shift evaluation towards metricisation, and Debbie Mcvitty blogged for Wonkhe on 24 January 2022 with a helpful potted history.There will be no surprises in the outcomes of the consultations. Whether or not the Titanic is sinking, we are consulted only on how to arrange the deckchairs. As HEPI’s Nick Hillman said: “I vividly recall what Les Ebdon, the former Director for Fair Access, said a few years ago when he was asked, “What will the Office for Students do?” His answer was, “It’s very simple. I can tell you exactly what the OfS will do. It will do whatever the government of the day wants it to do.” And so it has proved.”

Let us, then, look not at the entirely predictable outcomes, but at the style the OfS has adopted to reach them. The consultation on regulation of outcomes is telling. It takes 100 pages to assemble a rational-bureaucratic edifice in rational-bureaucratic language, with chapter headings including: “… making judgments about compliance with condition B3 … Addressing statistical uncertainty in the assessment of condition B3 … Taking regulatory action when a breach is identified …”. There could have been headings like: “How do we know how good the performance is?” or “What if something goes wrong?”. But that would have exposed the deeper questions, for which answers have already been decided. Instead we are drowned with bureaucratic detail. Details are always necessary, but we should be reminded of why they are needed. Instead these documents do their best to obscure the fait accompli which is their starting point, with a grinding remorseless pseudo-rationality which encourages you to lose sight of purposes and values.

In 699 pages of consultation the OfS has done its bureaucratic best to profess transparency, openness and rigour, while diverting our energies and attention from what an experienced ministerial adviser called the ‘assault on the values which our HE sector holds dear’. The consultations amount to a detailed enquiry about how exactly these values should be assaulted. We are in a consultation tunnel with only one track. What we can see is probably not the light at the end of the tunnel, it may be the lights from an oncoming train.

Rob Cuthbert, editor of SRHE News and Blog, is emeritus professor of higher education management, Fellow of the Academy of Social Sciences and Fellow of SRHE. He is an independent academic consultant whose previous roles include deputy vice-chancellor at the University of the West of England, editor of Higher Education Review, Chair of the Society for Research into Higher Education, and government policy adviser and consultant in the UK/Europe, North America, Africa, and China.

Email rob.cuthbert@uwe.ac.uk, Twitter @RobCuthbert.

[1] Covered elsewhere in this issue of SRHE News. SRHE members can read this and previous editions of SRHE News via https://srhe.ac.uk/my-account/


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More roadworks on Quality Street

by Paul Temple

Trust is the magic ingredient that allows social life to exist, from the smallest informal group to entire nations. High-trust societies tend to be more efficient, as it can be assumed that people will, by and large, do what they’ve agreed without the need for constant checking. Ipsos-MORI carries out an annual “veracity index” survey in Britain to discover which occupational groups are most trusted: “professors”, which I think we can take to mean university academic staff, score highly (trusted by 83% of the population), just below top-scoring doctors and judges, way above civil servants (60%) – and with government ministers playing in a different league on 16%. So most people, then, seem to trust university staff to do a decent job – much more than they trust ministers. It’s therefore a little strange that over the last 35 years the bitterest struggles between universities and governments have been fought in the “quality wars”, with governments claiming repeatedly that university teachers can’t be trusted to do their jobs without state oversight. Disputes about university expansion and funding come and go, but the quality wars just rumble on. Why?

From the mid-1980s (when “quality” was invented) up to the appearance of the 2011 White Paper, Higher Education: Students at the Heart of the System, quality in higher education was (after a series of changes to structures and methods) regulated by the Quality Assurance Agency, which required universities to show that they operated effective quality management processes. This did not involve the inspection of actual teaching: universities were instead trusted to give an honest, verifiable, account of their own quality processes. Without becoming too dewy-eyed about it, the process came down to one group of professionals asking another group of professionals how they did their jobs. Trust was the basis of it all.

The 2011 White Paper intended to sweep this away, replacing woolly notions of trust-based processes with a bracing market-driven discipline. The government promised to “[put] financial power into the hands of learners [to make] student choice meaningful…[it will] remove regulatory barriers [to new entrants to the sector to] improve student choice…[leading to] higher education institutions concentrating on high-quality teaching” (Executive Summary, paras 6-9). On this model, decisions by individual students would largely determine institutional income from teaching, so producing better-quality courses: trust didn’t matter. Market forces can be seen to drive forward quality in other fields through competition, why not in universities?

Well, of course, for lots of reasons, as critics of the White Paper were quick to point out, naturally to no avail. But having been told that they were to operate in a marketised environment where the usual market mechanisms would deal with quality (good courses expanding, others shrinking or failing), exactly a decade later universities find themselves being subjected to a bureaucratic (I intend the word in its social scientific sense, not as a lazy insult) quality regime, the very antithesis of a market system.

We see this in the latest offensive in the quality wars, just opened by the OFS with its July 2021 “Consultation on Quality and Standards”. This 110-page second-round consultation document sets out a highly-detailed process for assessing quality and standards: you can almost feel the pain of the drafter of section B1 on providing “a high quality academic experience”. What does that mean? It means, for example, ensuring that each course is “coherent”. So what does “coherent” mean? Well, it means, for example, providing “an appropriate balance between breadth and depth”. So what does…? And so on. This illustrates the difficulty of considering academic quality as an ISO 9001 (remember that?) process with check-lists, when probably every member of a course team will – actually, in a university, should – have different, equally valid, views on what (say) “appropriate breadth and depth” means.

Government approaches to quality and standards in university teaching have, then, over the last 30 or so years, moved from a largely trust-based system, to one supposedly driven by market forces, to a bureaucratic, box-ticking one. In all this time, ministers have failed to give convincing examples of the problems that the ever-changing quality regimes were supposed to deal with. (Degree mills and similar essentially fraudulent operations can be dealt with through normal consumer legislation, given the will to do so. I once interviewed an applicant for one of our courses who had worked in a college I hadn’t heard of: had there been any problems about its academic standards, I asked. “Not really”, she replied brightly, “it was a genuine bogus college”.)

Why, then, do the quality wars continue? – and we can be confident that the current OFS proposals do not signal the end of hostilities. It is hard to see this as anything other than ministerial displacement activity. Sorting out the social care crisis, or knife crime, will take real understanding and the redirection of resources: easier by far to make a fuss about a non-problem and then be seen to act decisively to solve it. And to erode trust in higher education a little more.

Dr Paul Temple is Honorary Associate Professor in the Centre for Higher Education Studies, UCL Institute of Education, London. His latest paper, ‘The University Couloir: exploring physical and intellectual connectivity’, will appear shortly in Higher Education Policy.

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SRHE News on academic freedom and freedom of speech

by Rob Cuthbert

One of the benefits of SRHE membership is exclusive access to the quarterly newsletter, SRHE News, www.srhe.ac.uk/publications/srhe-newsletter

SRHE News typically contains a round-up of recent academic events and conferences, policy developments and new publications, written by editor Rob Cuthbert. To illustrate the contents, here is part of the April 2021 issue which covers Academic Freedom and Freedom of Speech.

A global academic freedom index

The Global Public Policy Institute (GPPi), an independent non-profit think tank based in Berlin, has published a report on academic freedom globally, arguing for it to be used to moderate global university rankings. Authors Katrin Kinzelbach, Ilyas Saliba, Janika Spannagel and Robert Quinn have shown all their working and include this map:

“The AFi 2020 includes scores for 175 countries and territories. In this map, the states’ AFi scores are grouped in ranges, with A representing those countries with the highest levels of academic freedom (green on the map) and E representing those with the lowest academic freedom scores (red on the map).”

Free speech in the US

A free speech case on campus reached the US Supreme Court on 8 March 2020, which decided in favour of the student. Chike Uzuegbunam, a former student at Georgia Gwinnett College, had tried while a student to hand out pamphlets sharing his religious views with fellow students. He was stopped twice by campus police, first to be told he could only do that in a designated ‘free speech zone’. When he tried with official permission to do so, he was prevented because other students had objected. The College eventually rescinded its policy on ‘free speech zones’ but the case went to the Supreme Court to prevent it becoming moot, that is not cited as a precedent, since Uzuegbunam had graduated. The Court ruled that he was nevertheless entitled to nominal damages of $1, which was what he had sought. Elizabeth Redden told the story for insidehighered.com on 9 March 2021.

Is debate under threat on UK campuses?

Jim Dickinson asked the question in his Wonkhe blog on 20 January 2021. Unlike the culture warriors, he referred to a lot of evidence suggesting the answer is not what most people are encouraged to think. He pointed out that outgoing OfS chair Michael Barber, about to give a speech on this, was actually sitting on a lot of relevant evidence, held but not published by the OfS, which would give the lie to the current narrative. MP David Davis introduced a private member’s Bill in the House of Commons on 21 January 2021 because, according to David Williamson in the Daily Express on 17 January 2021, he “wants to stop “cancel culture” taking root in centres of higher education and is alarmed at resistance to hearing “uncomfortable opinions”.” Well, no doubt no-one had thought to legislate on that since the 1980s, but there is quite a lot of advice and guidance about.

Our radical student-led proposals will secure and champion campus free speech

There was a well-argued blog from three SU Presidents – Patrick O’Donnell (York), Lizzie Rodulson (Surrey) and Kwame Asamoah Kwarteng (Manchester) –  for Wonkhe on 1 February 2021: “our new report recommends the creation of a code for students’ unions which establishes and reinforces important principles on campus of political diversity and freedom of expression. We propose to substantially adopt widely used principles within the free speech policy statement produced by the Committee on Freedom of Expression at the University of Chicago to send a clear signal – that our campuses and unions are open for debate.” The NUS VP for HE, Hillary Gyebi-Ababio, and two more SU presidents –  Sunday Blake (Exeter) and Meg Price (Worcester) – followed up on WonkHE on the same day with an equally persuasive piece saying that the real free speech problem was the imbalance between the proportion of high-profile speakers visiting Russell Group universities rather than others: “we’d like to see a new focus – where universities, sector agencies and the government work together with students’ unions, guilds and associations in all types of university to attract speakers, put on events, generate debate and expose students to new ideas, thinking, policy and people.”

How should the OfS regulate the exercise of academic freedom?

Gavin Williamson announced his free speech initiative with a column in The Telegraph, where else, on 16 February 2021: ‘Turning the tide on cancel culture will start with universities respecting free thought’. Williamson wrote to all universities on 16 February 2021: “The current legal framework imposes on those concerned in the governance of providers a legal duty to take reasonably practicable steps to ensure free speech within the law is secured … A growing number of reports of concerns in relation to freedom of speech on campus, however, suggest that this duty is not being fully complied with …”. The White Paper, running to no less than 42 pages, was published on 17 February 2021.

Evan Smith (Flinders) blogged for HEPI on 16 February 2021 about the history of previous such initiatives. The popular opinion was probably that articulated by Mick Fletcher (independent) in West Country Bylines on 15 February 2021: “You could hardly make it up.  At the same time as government plans to appoint a ‘free speech tsar’ to stop students cancelling controversial speakers it also intends to summon heritage groups to be told by a minister what they can and cannot say about British history. It’s ludicrous but at the same time deeply sinister.” Andrew Whiting (Birmingham City) reported on his research into the Prevent Duty placed on universities, on the LSE Impact Blog on 16 February 2021, which raises “serious questions about necessity and proportionality”.

Smita Jamdar, Head of Education at Shakespeare Martineau, offered guidance on the Secretary of State’s guidance to OfS on 11 February 2021: “this is in our view bad guidance: bad because of the very great problems entailed in implementing it and bad because producing guidance that cannot really be implemented and so must ultimately be withdrawn or modified undermines public trust and confidence in the authority of the office of Secretary of State. … upholding academic freedom is already part of the public interest governance principles and so where there is evidence of a provider’s governing body failing to take appropriate steps, the OfS could treat that as a breach of the registration conditions relating to management and governance. However, that is very different to adjudicating on individual cases and disputes in the way that the Secretary of State appears to want. Finally, it is notable and alarming to recall that when the institutional autonomy provisions were introduced by way of amendment into HERA, they were designed to protect institutions from excessive interference by politicians and regulators. Interestingly they are being used here, on the curious and questionable basis that the government believes institutions need protection from their own autonomy, to justify a potentially significant erosion of autonomy by those very politicians and regulators.”

Hugo Rifkind of The Times was also unconvinced, in his 16 February 2021 tweets: “Williamson’s free speech thing is a mess … if you’re saying unis must preserve challenging speech while also being against re-examining history while ALSO having insisted only 3m ago that all unis adopt the IHRA definition on antisemitism, then I think you need to be quite deft on your feet in explaining wtf is going on and what exactly you think about everything, with reference to what everybody else does, too.” Political commentator Ian Dunt blogged for politics.co.uk on 17 February 2021 that the proposals were ‘a Trojan horse for authoritarianism’: “The problems with the plans are as follows: They are cynical, nonsensical, internally contradictory, functionally implausible and work to perpetuate the exact phenomenon which they claim to undermine.” LSE student Jason S Reed wrote in The Independent on 16 February 2021 ‘The government’s obsession with provoking culture wars is embarrassing – and I say that as a Tory student’. However Arif Ahmed (Cambridge), blogging for HEPI on 17 February 2021, gave a measured welcome: “So these proposals give valuable support to principles that everyone ought to defend. Of course in practice everything will depend on whether the regulator will use these powers impartially and with vigour. But that is true when the state gives any powers to an independent regulator of anything. Still, it is clear to me that in this case doing so addresses a real problem, and does it in more or less the right way.”  

There were constructive comments from Alison Scott-Baumann (SoAS) in The Guardian on 17 February 2021: “In Freedom of Speech in Universities: Islam, Charities and Counter-Terrorism, my book with Simon Perfect, I recommend two simple principles for building what we call a “community of inquiry” – a space where difficult issues can be discussed. First it’s necessary to accept bravely the need to debate and disagree upon matters of urgent importance to young people. Difficult, even intractable, issues such as climate change, environmental disasters, migration, race, gender and identity and a failed economic model need to be discussed. But they are dynamite. So, secondly, in order to defuse potential flash points, we recommend adoption of “procedural values” – by which I mean an etiquette of argument that we all say we adhere to but rarely do: active listening, distinguishing between the person and their arguments, and settling upon some sort of outcome that can be achieved in the real world. These need to be agreed upon, with the backing of university authorities and union representatives, and closely monitored. There needs to be a general compact that, in any forum designated as a “community of inquiry”, these procedures apply – and that people will not be targeted outside them for what they say inside, so long as they have also observed the same principles.”

Jack Harvey (Coventry University SU) had perhaps the most thoughtful piece of all, for WonkHE on 19 February 2021, analysing the nuances of respect and tolerance for other people’s views. Bahram Bekhradnia, HEPI President, made a welcome return to the fray with his HEPI blog on 18 March, in coruscating form: “This is a rushed and unnecessary White Paper, intellectually flimsy, badly thought out and poorly argued with little evidence to support its conclusions. It is full of typos … its inconsistent – Anglo-American – spelling betrays the influence on its thinking, if not its drafting, of the American far right. … if indeed there is a nut to be cracked, it certainly does not need this sledgehammer with which to crack it.”

After Michele Donelan’s article in The Sunday Telegraph on 28 February 2021, Jim Dickinson of WonkHE was at the end of his tether on 28 February 2021, and SRHE member Julian Crockford had clearly lost all patience in his WonkHE blog on 1 March 2021. Jonathan Simons of Public First tweeted: “Front page of the Tel: universities are censoring history by only telling a partial story. Later in the Tel: the National Trust should be investigated because it wants to tell the whole story of history. Pick a ******** lane, guys”. Anna Fazackerley in The Guardian on 27 February gave chapter and verse on the ‘research’ that Gavin Williamson had relied on for his policy paper, and Policy Exchange suffered further damage when its retrospective and would-be secret corrections were exposed. The Policy Exchange paper had conducted a survey based on the alleged ‘no-platforming’ of Germaine Greer – who had in fact spoken at an event organised at Cardiff University, a fact ignored in the original but retrospectively corrected by a new footnote after the original had been cited in the government policy paper. Adam Bychawski wrote for OpenDemocracy on 19 February 2021 that: “British government proposals for strengthening free speech at universities cite an American anti-LGBT ‘hate group’ and a British ‘dark money’-funded think tank that has recommended no-platforming Extinction Rebellion.”

David Kernohan and Jim Dickinson interpreted the policy paper as a complete breakdown of trust and confidence by politicians in the HE sector, in their 16 February 2021 blog for WonkHE.

Rob Cuthbert is the editor of SRHE News and Blog, emeritus professor of higher education management, Fellow of the Academy of Social Sciences and Fellow of SRHE. He is an independent academic consultant whose previous roles include deputy vice-chancellor at the University of the West of England, editor of Higher Education Review, Chair of the Society for Research into Higher Education, and government policy adviser and consultant in the UK/Europe, North America, Africa, and China. He is current chair of the SRHE Publications Committee.

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Quality and standards in higher education

By Rob Cuthbert

What are the key issues in HE quality and standards, right now? Maintaining quality and standards with the massive transition to remote learning? Dealing with the consequences of the 2020 A-levels shambles? The student experience, now that most learning for most students is remote and off-campus? Student mental health and engagement with their studies and their peers? One or more of these, surely, ought to be our ‘new normal’ concerns.

But not for the government. Minister Michele Donelan assured us that quality and standards were being constantly monitored – by other people – as in her letter of 2 November to vice-chancellors:

“We have been clear throughout this pandemic that higher education providers must at all times maintain the quality of their tuition. If more teaching is moved online, providers must continue to comply with registration conditions relating to quality and standards. This means ensuring that courses provide a high-quality academic experience, students are supported and achieve good outcomes, and standards are protected. We have worked with the Office for Students who are regularly reviewing online tuition. We also expect students to continue to be supported and achieve good outcomes, and I would like to reiterate that standards must be maintained.”

So student health and the student experience are for the institutions to worry about, and get right, with the Office for Students watching. And higher education won’t need a bailout, unlike most other sectors of the market economy, because with standards being maintained there’s no reason for students not to enrol and pay fees exactly as usual. Institutional autonomy is vital, especially when it comes to apportioning the blame.

For government, the new normal was just the same as the old normal. It wasn’t difficult to read the signs. Ever since David Willetts, ministers had been complaining about low quality courses in universities. But with each successive minister the narrative became increasingly threadbare. David, now Lord, Willetts, at least had a superficially coherent argument: greater competition and informed student choice would drive up quality through competition between institutions for students. It was never convincing, but at least it had an answer to why and how quality and standards might be connected with competition in the HE market. Promoting competition by lowering barriers to entry for new HE providers was not a conspicuous success: some of the new providers proved to be a big problem for quality. Information, advice and guidance were key for improving student choice, so it seemed that the National Student Survey would play a significant part, along with university rankings and league tables. As successive ministers took up the charge the eggs were mostly transferred to the Teaching Excellence Framework basket, with TEF being championed by Jo, now Lord, Johnson. TEF began in 2016 and became a statutory requirement in the Higher Education and Research Act 2017, which also required TEF to be subject to an independent review. From the start TEF had been criticised as not actually being about teaching, or excellence, and the review by Dame Shirley Pearce, previously VC at Loughborough, began in 2018. Her review was completed before the end of 2019, but at the time of writing had still not been published.

However the ‘low quality courses’ narrative has just picked up speed. Admittedly it stuttered a little during the tenure of Chris Skidmore, who was twice briefly the universities minister, before and after Jo Johnson’s equally brief second tenure. The ‘Skidmore test’ suggested that any argument about low quality courses should specify at least one of the culprits, if it was not to be a low quality argument. However this was naturally unpopular with the narrative’s protagonists and Skidmore, having briefly been reinstalled as minister after Jo Johnson’s decision to step down, was replaced by Michele Donelan, who has remained resolutely on-message, even as any actual evidence of low quality receded even further from view. She announced in a speech to Universities UK at their September 2020 meeting that the once-praised NSS was now in the firing line: “There is a valid concern from some in the sector that good scores can more easily be achieved through dumbing down and spoon-feeding students, rather than pursuing high standards and embedding the subject knowledge and intellectual skills needed to succeed in the modern workplace. These concerns have been driven by both the survey’s current structure and its usage in developing sector league tables and rankings.”

UUK decided that they had to do something, so they ‘launched a crackdown’ (if you believe Camilla Turner in The Telegraph on 15 November 2020) by proposing, um, “a new charter aimed at ensuring institutions take a “consistent and transparent approach to identifying and improving potentially low value or low quality courses.” It’s doubtful if even UUK believed that would do the trick, and no-one else gave it much credence. But with the National Student Survey and even university league tables now deemed unreliable, and the TEF in deep freeze, the government urgently needed some policy-based evidence. It was time for this endlessly tricky problem to be dumped in the OfS in-tray. Thus it was that the OfS announced on 17 November 2020 that: “The Office for Students is consulting on its approach to regulating quality and standards in higher education. Since 2018, our focus has been on assessing providers seeking registration and we are considering whether and how we should develop our approach now that most providers are registered. This consultation is taking place at an early stage of policy development and we would like to hear your views on our proposals.”

Instant commentators were unimpressed. Were the OfS proposals on quality and standards good for the sector? Johnny Rich thought not, in his well-argued blog for the Engineering Professors’ Council on 23 November 2020, and David Kernohan provided some illustrative but comprehensive number-crunching in his Wonkhe blog on 30 November 2020: “Really, the courses ministers want to get rid of are the ones that make them cross. There’s no metric that is going to be able to find them – if you want to arbitrarily carve up the higher education sector you can’t use “following the science” as a justification.” Liz Morrish nailed it on her Academic Irregularities blog on 1 December 2020.

In the time-honoured way established by HEFCE, the OfS consultation was structured in a way which made it easy to summarise responses numerically, but much less easy to interpret their significance and their arguments. The core of the approach was a matrix of criteria, most of which all universities would expect to meet, but it included some ‘numerical baselines’, especially on something beyond the universities’ control – graduate progression to professional and managerial jobs. It also included a proposed baseline for drop-out rates. The danger of this was that it would point the finger at universities which do the most for disadvantaged groups, but here too government and OfS had a cunning plan. Nick Holland, the OfS Competition and Registration Manager, blogged on 2 December 2020 that the OfS would tackle “pockets of low quality higher education provision”, with the statement that “it is not acceptable for providers to use the proportion of students from disadvantaged backgrounds they have as an excuse for poor outcomes.” At a stroke universities with large proportions of disadvantaged students could either be blamed for high drop-out rates, or, if they reduced drop-out rates, they could be blamed for dropping standards. Lose-lose for the universities concerned, but win-win for the low quality courses narrative. The outrider to the low quality courses narrative was an attack on the 50% participation rate (in which Skidmore was equally culpable), which seemed hard to reconcile with a ‘levelling up’ narrative, but Michele Donelan did her best with her speech to NEON, of all audiences, calling for a new approach to social mobility, which seemed to add up to levelling up by keeping more people in FE. The shape of the baselines became clearer as OfS published Developing an understanding of projected rates of progression from entry to professional employment: methodology and results on 18 December 2020. After proper caveats about the experimental nature of the statistics, here came the indicator (and prospective baseline measure): “To derive the projected entry to professional employment measure presented here, the proportion of students projected to obtain a first degree at their original provider (also referred to as the ‘projected completion rate’) is multiplied by the proportion of Graduate Outcomes respondents in professional employment or any type of further study 15 months after completing their course (also referred to as the ‘professional employment or further study rate’).” This presumably met the government’s expectations by baking in all the non-quality-related advantages of selective universities in one number. Wonkhe’s David Kernohan despaired, on 18 December 2020, as the proposals deviated even further from anything that made sense: “Deep within the heart of the OfS data cube, a new plan is born. Trouble is, it isn’t very good.”

Is it too much to hope that OfS and government might actually look at the academic research on quality and standards in HE? Well, yes, but there is rather a lot of it. Quality in Higher Education is into its 26th year, and of course there is so much more. Even further back, in 1986 the SRHE Annual Conference theme was Standards and criteria in higher education, with an associated book edited by one of the founders of SRHE, Graeme Moodie (York). (This was the ‘Precedings’ – at that time the Society’s practice was to commission an edited volume in advance of the annual conference.) SRHE and the Carnegie Foundation subsequently sponsored a series of Anglo-American seminars on ‘Questions of Quality’. One of the seminar participants was SRHE member Tessa, now Baroness, Blackstone, who would later become the Minister for Further and Higher Education, and one of the visiting speakers for the Princeton seminar was Secretary of State for Education Kenneth Baker. At that time the Council for National Academic Awards was still functioning as the validating agency, assuring quality, for about half of the HE sector, with staff including such SRHE notables as Ron Barnett, John Brennan and Heather Eggins. When it was founded SRHE aimed to bring research and policy together; they have now drifted further apart. Less attention to peer review, but more ministers becoming peers.

Rob Cuthbert is Emeritus Professor of Higher Education Management, University of the West of England and Joint Managing Partner, Practical Academics

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On not wasting a good crisis

by Rob Cuthbert

Editorial from SRHE News Issue 41 (July 2020)

It seems that in English higher education, some people have been determined not to waste the Covid19 crisis, either as an opportunity or as a threat. How well have they done? Consider the efforts of the Office for Students, Universities UK, and the government in England.

The Office for Students

The OfS were quick off the mark with their ‘Consultation on the integrity and stability of the English HE system’. They had not hitherto seemed too concerned about integrity and stability, given the government’s advertised willingness to let universities close as a consequence of the market established by the Higher Education and Research Act 2017 (HERA). Nevertheless the OfS drafted proposals to prevent “any form of conduct which, in the view of the OfS, could reasonably have a material negative effect on the interests of students and the stability and/or integrity of all or part of the English higher education sector.”

The proposals, aimed at controlling the behaviour of HE institutions, brought an instant storm of criticism. They were condemned as draconian, excessively broad, vague and retrospective. OfS Chair Michael Barber claimed to the House of Commons Select Committee that they were an appeal to universities’ ‘generosity of spirit’, but no-one was convinced. Indeed, in terms of the original proposals there did seem to be breaches of good conduct, but they were mostly by Government, the media and the OfS itself, not by HE institutions.

As governments of different parties introduced progressively higher fees, students taking out loans for fees and living expenses began to graduate and begin their careers with large debts. Did this “have a material negative effect on the interests of students”? Quality assurance shows that the overwhelming majority of HE provision has been and remains satisfactory or better; government has encouraged new ‘alternative providers’, but a significant number of these new entrants provided inappropriate courses of dubious quality. Did these market initiatives destabilise the HE system and jeopardise its integrity and quality?

Recent HE ministers have repeatedly referred to ‘low quality courses’. Jo Johnson called for: “… the phased closure of poor-quality and low-value courses under teach-out arrangements to ensure that students can complete their studies.” (The honourable exception to this ministerial failure is Chris Skidmore, who tweeted on 16 April 2020: “Might invent Skidmore’s law- anyone who mentions low quality/value in HE without specific reference to a real institution/course are themselves creating low quality/value arguments which should therefore be discounted.”) Most mainstream media reinforced the ‘low quality courses’ narrative, with The Times prominent: an egregious example by Ross Bryant, ‘Underperforming universities should be allowed to fail’, on 27 April 2020;  Alice Thomson on 31 March 2020: “Institutions panicking about finances have to shift their focus away from expansion and back to gold-standard teaching”. Camilla Turner in The Daily Telegraph on 10 May 2020 fuelled the narrative: ‘’Mickey Mouse’ degrees could be weeded out as universities face financial crisis”. Some would say the narrative has “a material negative effect on the interests of students”, whose academic credentials are called into question, and jeopardises the “stability and/or integrity of all or part of the English higher education sector”.  It might even involve “Making false or misleading statements (including comparative claims) about one or more higher education providers with a view to discouraging students (whether or not successfully) to accept offers from, or register with, those higher education providers.”

The Office for Students itself has still not completed its Register of Providers. OfS said in February 2020 the 2019-2020 Register was still incomplete “so if a provider is not registered at the moment, no conclusions should be drawn about it based upon that fact.” Could that “reasonably have a material negative effect on the interests of students and the stability and/or integrity of all or part of the English higher education sector”? At government insistence the OfS has promoted the Teaching Excellence Framework and its advantages for students, presumably on the grounds that it helped their interests. More recently it postponed the next TEF indefinitely, even though there are dramatic changes to the quality of the student experience everywhere – up-to-date information about Teaching Excellence matters as never before. Dropping the TEF at this stage “could reasonably have a material negative effect on the interests of students and the stability and/or integrity of all or part of the English higher education sector” – unless TEF never had anything to do with teaching quality in the first place, in which case pursuing it had already damaged the stability and integrity of the system.

The OfS proposals said it was inappropriate for anyone to be “Reacting to a major crisis or emergency affecting the UK in ways which may take advantage of behavioural biases”. However it reacted to the crisis by proposing obligations on individual behaviour, obligations to predict or anticipate the behaviour of others, and sanctions if even in retrospect a pattern of behaviour by others emerges which could not have been predicted. This was indeed to “take advantage of behavioural biases” which might induce people to tolerate, in an emergency, measures which would be unthinkable under normal circumstances. In the event the OfS withdrew and confined itself to outlawing ‘conditional unconditional’ offers, and perhaps unconditional offers more widely. By overreaching itself, OfS seemed to have wasted the crisis.

Universities UK

Universities UK also moved early, in April 2020 making proposals to government for a £2billion crisis package to support universities through the pandemic and beyond. UUK said: “Without government support some universities would face financial failure, others would come close to financial failure and be forced to reduce provision. Some will be in places where they are the only local higher education provider with damaging impact on the local community and economy. Many of those institutions most affected have higher levels of external borrowing, lower levels of cash reserves, and higher proportions of BAME students.” Former UCAS head Mary Curnock Cook blogged for HEPI on 15 April 2020 about ‘A student-centric bailout for the universities’, with a piercing critique of the soft spots and gaps in the UUK proposals. David Kernohan crunched numbers on the UUK proposals in his blog for Wonkheon 10 April 2020. He noted that doubling research funding would do little for many universities, and that the student number proposals would still enable selective universities to create major problems for those lower down the pecking order.

The DfE website reported on 4 May 2020 that “Education Secretary Gavin Williamson has announced a package of measures to protect students and universities, including temporary student number controls, £2.6bn of forecast tuition fee payments for universities being bought forward and an enhanced Clearing system. … to stabilise admissions, support students and allow universities to access financial support from the Government where it is necessary.” The DfE headline was ‘Universities need our help – we must maintain education’s jewel in the crown’, echoing a 2012 Russell Group publication, but the measures fell well short of the UUK proposals. This made clear the potentially devastating effects on many universities outside the Russell Group, with a probable shortfall in student numbers. It was hard to credit that UUK had suggested student number controls in its own proposals, and even harder to believe that all universities had agreed to the UUK’s skewed package in the first place. Chris Cook wrote a long and careful analysis of the perilous situation facing UK universities for TortoiseMedia  on 26 May 2020.

Here was Wonkhe’s immediate assessment. David Kernohan of Wonkhe  took a look at ‘Clearing Plus’, which was being presented as (but was not) a way for applicants to trade up to a ‘better class of university’. Nick Hillman of HEPI said: ” While we need time to digest the finer details, this seems like a carefully-calibrated package that delivers much of what the higher education sector called for without over-exposing taxpayers.” Well, he probably would, wouldn’t he, as a former special adviser to David Willetts. Former minister Jo Johnson, popping up as President’s Professorial Fellow at King’s College London, said that after the pandemic: “The Office for Students will need to design and put in place a multi-billion pound stabilisation fund to prevent the collapse of scores of vulnerable English universities. Access to this fund should be subject to strict non-negotiable conditions, including the phased closure of poor-quality and low-value courses under teach-out arrangements to ensure that students can complete their studies.” Shadow Minister Emma Hardy’s open letter to HE on ResearchProfessional News on 6 May 2020 didn’t add much beyond her disappointment that the government package didn’t accept UUK’s proposals.

A second round of support simply shored up the bail-out of the Russell Group. The support package announced by government on 27 June 2020 provided extra research funding: a mixture of grants and loans for up to 80% of income lost because of a shortfall of international students in 2020-2021, and £280million for stated research priorities. That will be little consolation to the many vulnerable universities less blessed with research funding and less dependent on overseas student fees.

Judged by the effects on all of its members, UUK not only wasted the crisis, they may well have made it worse. 

Government

The long-running ‘low quality courses’ narrative and the almost-forgotten Augar report proved to be groundwork for a series of government initiatives still unfolding, beginning with a blunt Ministerial statement abandoning the 50% HE participation target and proposing to expand technical and vocational provision elsewhere. Jim Dickinson had blogged for Wonkhe on 11 May 2020 that: “… the headlines in the DfE package were all about treating the issues facing the higher education sector as a liquidity crisis rather than a solvency crisis. Optimists figure this is because it’s only Part One of any plan, and Numbers 10/11 of Downing Street prefer to sort things in terms of impacts of immediate problems than assessing the size and scope of modelled/potential problems which they assume a) might not be as bad as they look, and b) discourage efficiencies and sacrifices if “cushioned” too early, or for too long. … And then, as if by magic, David “somewheres or anywheres” Goodhart appears – with a Policy Exchange report that’s officially on “skills”, but is really on reorganising tertiary. … Research funding for the “best”; mergers, shorter strings and localism for the “rest”.”

Jack Grove in THE on 11 May 2020 wrote: “English universities at risk of financial collapse will receive significant government assistance only if they agree to merge or to accept a “further education future”, vice-chancellors have predicted. … some university leaders … fear that the reintroduction of student number controls − which allow universities to recruit 5 per cent more this autumn than they did last year − signals the Treasury’s intention to intervene far more in higher education, which might include denying some institutions access to research funding.”

The doomsayers were vindicated when Minister Michelle Donelan made a speech on 1 July 2020, in the grossly inappropriate context of an online conference about improving HE opportunities for disadvantaged students. Richard Adams reported for The Guardianon 1 July 2020 on her speech: “Since 2004, there has been too much focus on getting students through the door, and not enough focus on how many drop out, or how many go on to graduate jobs. Too many have been misled by the expansion of popular-sounding courses with no real demand from the labour market,” Donelan said. “Quite frankly, our young people have been taken advantage of, particularly those without a family history of going to university. Instead some have been left with the debt of an investment that didn’t pay off in any sense. … And too many universities have felt pressured to dumb down – either when admitting students, or in the standards of their courses. We have seen this with grade inflation and it has to stop.”

The government is poised to offer new policies on skills and qualifications for school-leavers in England, rebalancing away from universities and emphasising social mobility through skilled, well-paid jobs secured through further education and apprenticeships. A white paper on further education is promised, along with a green paper on higher education that will limit courses where a high percentage of students drop out or where few go on to graduate-level employment. Donelan’s comments appeared to repudiate her own government’s guidance to the Office for Students. Asked about the use of contextual admissions by universities to help under-represented groups gain entry, Donelan said: “To be frank, we don’t help disadvantaged students by levelling down, we help by levelling up.”

Chris Husbands (VC, Sheffield Hallam) spoke for many in a powerful rejoinder in The Guardian on 2 July 2020: ‘University changed my family’s life. So why do ministers want fewer people to go?’ As Alison Wolf, now once again a government adviser, pointed out long ago, the oft-mooted expansion of non-university technical education is always regarded as a good thing – ‘for other people’s children’. We must wait and see whether this time the government initiative will be any different from the many other times similar things have been attempted. This time her daughter Rachel Wolf, another long-term adviser to the Prime Minister who co-wrote the 2019 Conservative manifesto, is also making the running. Whether the government has wasted the crisis remains to be seen.

Rob Cuthbert is Emeritus Professor of Higher Education Management, University of the West of England and Joint Managing Partner, Practical Academics