left to my own devices – occasional thoughts on higher education

Never knowingly under-regulated.

I don’t think I owe a royalty to John Lewis for borrowing and modifying their (fairly) recently reinstated slogan, and it feels like it fits the last couple of weeks in UK higher education given the dizzying speed at which additional external regulatory requirements appear to be landing on the sector at the moment.  To quote the title of this post …

when is a regulation not a regulation?

At the end of last month OfS announced its intention to develop and publish by the start of 2027 ‘a statement of expectations relating to disability … [including] our expectations relating to mental health as a disability’.  This isn’t regulation as such, but OfS has made it clear that:

We will monitor the impact of the statement of expectations … If we see evidence to suggest that a university or college may not be meeting these expectations, we may take action, including considering if this suggests a breach of one of our conditions of registration.

So it’s not regulation, but providers need to meet its requirements?  It feels that it lands in the territory of difference without distinction.  However, that’s a shade of grey the sector is unlikely to need to live with for long, given that (as Jim Dickinson has pointed out) we seem to be on a clear trajectory towards this new statement becoming embedded directly in the Regulatory Framework.

… always three at a time

Then last week brought not one but two further expansions of regulatory reach.

OfS finally (the consultation indicated we would get this in autumn 2025, rather than spring 2026) published its new Ongoing Registration Condition E10 on Subcontracting.  While this was undoubtedly an issue that needed to be addressed, there were good arguments that this could have been done effectively without as notable an expansion of the Regulatory Framework as E10 constitutes.

And this came hot on the heels of the government’s Social Cohesion Plan. This declared the intention to ‘further strengthen’ OfS’s monitoring of the Prevent Duty. It also announced DfE commitments to ‘using its enforcement powers and will issue directions to providers under s30 of the Counter Terrorism and Security Act 2015 where necessary to secure compliance with the Prevent Duty’ in respect of schools and universities; as well as issuing ‘non-statutory guidance on Managing External Speakers and Events with regard to the Prevent Duty’.

where are we heading?

While an argument can be made for each of the above (or at least aspects of them), overall I’m not entirely sure how these actions line up with a government that this time last year was talking of the need to pare back regulation to support economic growth; and the contribution that higher education can and does make to economic growth.

And I worry that this is unlikely to be the end of the regulatory expansion, and that we may be in for more of the same for a while yet.

the road we’re taking

It feels that in the UK higher education has a political profile that it has not had for some time, but much of this is not in a good way.

The higher education funding model is broken, both for students and for providers.  The impacts of this for both are huge, but those on students have, and are likely to continue to have, much greater immediate political salience.  As well as leading to the genuine, and in many ways well-founded, anger and campaigning of students and graduates, this is and will continue to add fuel to the fire of those who (some in good faith, many in bad) wish to attack the higher education sector as a whole.  Too large.  Too esoteric.  Too old-fashioned.  Too woke.

Government, politicians and other policy makers will not be able, due to the very real fiscal and political constraints under which they are operating, to address the fundamental issue of the broken funding model.  But in the face of continued and likely growing ill feeling government will still feel the need to be seen ‘to do something’ about higher education; and in those circumstances, and in the spirit of politicians’ logic, one of the levers they will reach for will be further regulation of the sector to give the appearance of concern and action.

And that’s before we add in the known knowns of regulatory development in the OfS’s 2025-26 Business Plan, e.g. new (replacement) registration conditions on student consumer protection and new registration conditions relating to governance.

questions and answers

The danger with writing a blog is the tendency to repeat oneself.  It’s a trap I’m sure I fall into, but when I do so I try to say similar things in different ways.  On this issue, on this occasion, though I’m not sure I can do much more than repeat what I wrote over a year ago; and say that these questions remains as, if not more, important now as they were in February 2025:

Is the regulatory structure for higher education in England founded on the right principles and approach? Have we created a regulatory system with its own internal logic and momentum that damages rather than protects higher education at a system level?  How does the regulatory system align with and support broader national objectives?

The current answers remains no, yes and it doesn’t.  Somehow, we need to find different answers to those questions.