left to my own devices – occasional thoughts on higher education

The publication of David Behan’s independent review of OfS, and Behan’s subsequent appointment as OfS’s Interim Chair, are clearly big deals for the sector.  And although there are specific elements of his report, and indeed some significant sections (e.g. I agree with the concerns expressed on WonkHE about the academic quality and standards section), that I think miss the mark, overall there’s a lot of good stuff in the Behan report.

coming off the gold standard

There’s clearly change coming, and Behan flagged as much last month with his much publicised comments that the ‘golden age of universities is over’ (£).  There’s a debate that’s not worth getting into about whether and when there was a golden age; and one that is worth having about how far that perspective squares with where we think the government’s economic strategy is heading.

Clearly the ‘golden age’ comment is a simplification/summary of Behan’s view of the recent past, but it does beg the question of what he thinks the future looks like.

His article does give some sense of this, in a more detailed and nuanced way than his headline take on the past.  But if a soundbite is good enough for the past, what’s his soundbite view of the future?  Are we headed for a ‘silver age’ of higher education? A not particularly stirring rallying call for the sector.

the rules of the game

However Behan sees the near future of the sector working out, it seems that at least in the short term it’s going to be within the overall regulatory architecture set for the English sector by HERA.

The second recommendation in the Behan report is ‘that government and the OfS further consider the legislative powers and tools required to enable the OfS to effectively regulate against these priorities’, the priorities being ‘monitoring financial sustainbability, ensuring quality, protecting public money, and regulating in the interests of students’ [p.14]. There is also a specific recommendation on giving OfS ‘consumer enforcement powers’ [p.15], and OfS made a bid to the review to be given other investigatory powers [p.33].

I suspect though that given all the other challenges facing the new government, there is likely to be little enthusiasm for making such changes so that for now OfS is going to need to work within its existing powers.  And there’s significant scope for changes to how OfS has operated in the past, even within HERA.

the spirit of the game

Even though changes to the legislative framework for higher education regulation seem unlikely in the short term, and the challenges the sector faces means that its immediate and short-term focus must be on working with and lobbying government to address these, there also needs to be thought given to the medium term.  And in the medium term (e.g. a second term Labour government, should there be one) I think there’s a need for changes to or replacement of HERA.

There’s a fundamental problem with HERA, and it can be seen in the general duties it sets out for OfS.  Its first general duty is to protect institutional autonomy, a good but more complicated thing than it’s thought to be.  The second and third duties, though, are striking:

(b) the need to promote quality, and greater choice and opportunities for students, in the provision of higher education by English higher education providers,

(c) the need to encourage competition between English higher education providers in connection with the provision of higher education where that competition is in the interests of students and employers, while also having regard to the benefits for students and employers resulting from collaboration between such providers,

Higher Education and Research Act, 2017, Section 2(1)

There are positive readings of the first of these clauses. The second is nakedly political indeed ideological, and to some extent it casts a shadow on the first.  And the vision it sets for higher education is a narrow and impoverished one.

it doesn’t have to be this way

It’s striking how different this is to the equivalent legal frameworks in Scotland and Wales.

The legislation that forms the basis for the Scottish Funding Council sets only two duties, i.e. securing

(a) coherent provision by the post-16 education bodies (as a whole) of a high quality of fundable further education and fundable higher education; and

(b) undertaking of research among the post-16 education bodies.

Further and Higher Education (Scotland) Act 2005, Section 3

A completely different vision of higher education. It has its faults. Additionally it’s not exactly poetry. However, with its emphasis on coherence setting a whole sector perspective it more truly reflects the cooperative and collaborative genes that are central to UK higher education, than the atomised view embedded in HERA.

Of course it could be objected that Scotland has a funding council not a regulator, and that these are different things (though of course OfS does, as the Behan report explores [p.32], operate as a funding body as well as as a regulator).  However, Wales’s new Commission for Tertiary Education and Research (CTER) is both a regulator and a funder and its strategic duties are strikingly different from OfS’s.

As set out in the Tertiary Education and Research (Wales) Act 2022, CTER’s duties are:

• promoting life-long-learning;
• promoting equality of opportunity;
• encouraging participation;
• promoting continuous improvement;
• promoting research and innovation;
• promoting collaboration and coherence in tertiary education and research;
• contributing to a sustainable and innovative economy;
• promoting tertiary education through the medium of Welsh;
• promoting a civic mission;
• promoting a global outlook;
• promoting collaboration between providers and trade unions.

Again a hugely different set of duties to those in HERA, which encapsulate a far richer view of higher education and one much more in keeping with more established understandings of the purposes of higher education (though it does need to be acknowledged relative to this list from Wales, that HERA’s general duties do also include equality of opportunity).

so what?

To some extent it’s tempting to think that this doesn’t matter.  Few people read this legislation, and there are much more pressing things that need to be addressed in English higher education. And some would argue that HERA’s main faults are its failure to take a wider tertiary perspective, and/or the separation of education and research.

Of course there are much more pressing, urgent and critical matters that need to be addressed in relation to higher education.  Over the next few years the English higher education sector has to address these current challenges and do so within the current legislative framework.

But in the medium term the basis of regulation does matter.

These formal statements of the duties of funding bodies/regulators are national statements of the purpose of higher education. They also have a very real role in setting the framework, parameters and tone for regulations (e.g. every OfS consultation on a new piece of regulation includes an annex that sets out how the proposed additional regulation relates to the general duties set out in HERA).

This isn’t to argue that the market can be rolled back and cast out of higher education.  That’s both impossible and ridiculous.  Despite the different footing for their regulatory frameworks both Scottish and Welsh higher education are part of a higher education market.

It is to say, though, that the basis on which we regulate that market matters.  We need to recognise that in England the current basis as set out in the general duties of OfS is flawed, and while that might not be in the first tranche of issues to be tackled it is one that needs to be addressed.  Otherwise as a sector we’ll end up stuck in a silver age.  Or perhaps worse.