Why the Office for Students needs to show its independence

On 1 January the Office for Students (OfS), the new public body that regulates and funds universities, started work and Justine Greening, the Secretary of State for Education, appointed six new board members.  

Representatives of academic and student unions and opposition MPs have criticised the choice of Toby Young, a journalist and co-founder of the West London Free School, as one of the six. Their objection is that it was politically motivated, that he is unqualified for the position and they also highlighted apparently derogatory remarks he has made about women, disabled and gay people and working-class students.

Some of Young’s previous statements indeed appear inconsistent with the OfS’s objective to “promote equality of opportunity in connection with access to and participation in higher education.”

Since the announcement, Young has said that he regrets some of the tweets, that some previous statements have been distorted and that he is “committed to widening participation and increasing social mobility and have proved that by [his] actions many times since.” He also says he has founded four free schools and runs a charity which aims to set up schools in areas of educational underperformance.

The Minister for Universities, Jo Johnson, will have to consider whether any of Young’s past comments that have surfaced affect the working of the board. He has said that he was “confident that the OfS has a board that will champion choice and competition, and put the interests of students at the heart of regulation.”

The sensitive role of a regulator

The row over Young’s appointment is a distraction from the more important point: whether this new organisation can manage the difficult task of balancing the Government’s aim of making changes in the higher education sector while maintaining the autonomy of universities.

As an Executive Non-Departmental Public Body, the OfS receives its funding from the Department for Education. This makes it less independent than most other regulators - such as the Office of Qualifications and Examinations Regulation (Ofqual) or the Office for Standards in Education, Children's Services and Skills (Ofsted) - which are Non-Ministerial Departments. These are instead funded directly by Parliament, making it harder for a department to use funding to influence a regulator.

But the OfS is established by primary legislation, and if its board feels its independence from the department is in question, it can refer to that legislation, including its duty “to protect the institutional autonomy of English higher education providers.”

Unlike schools, whose curriculum is set by the Education Secretary, universities set their own curriculum.

However, the OfS has a sensitive regulatory role in registering and de-registering universities, which used to take place through secondary legislation.

Johnson has said that as “a condition of registration with the new regulator, we are proposing that all universities benefitting from public money must demonstrate a clear commitment to free speech in their governance documents” and that the OfS will use its regulatory powers to ensure that free speech is upheld.

It would obviously be undesirable for the Government to be in a position of deciding whether free speech is being upheld in particular cases. As Johnson has said “the right to disagree is the cornerstone of intellectual and political freedom” - and that needs to include the right to disagree with the government.

That is why the OfS needs a board which is independent from government - and be seen as such.

The governance code

Like the other members of the OfS board - including its chair Sir Michael Barber, an Associate at the Institute for Government - Young was appointed under the Governance Code for Public Appointments.

This code allows government ministers to make appointments, but they need to consider the advice of Advisory Assessment Panels. Changes introduced in 2016 mean ministers can appoint candidates considered unappointable by a panel, but they must justify their decision publicly.

In the case of Young, there has not been any public justification, so it seems that the Advisory Assessment Panel’s advice was accepted and the usual procedures were followed.

The fact that Young describes himself as a Conservative should not be a barrier to being appointed, just as membership of the Labour Party was not a barrier to appointment while Labour was in government.

In an interview with the IfG following the announcement of the new board members, Barber said he wanted to see a diversity of views and backgrounds in appointees to the board, and that it would take collective decisions under his leadership.

Because the OfS does not have as much institutional independence as other regulators, it is important that its Board shows it has the skills, character and robustness to perform its role independently of government.