The Office for Students needs support to assert its independence

The government’s response to the House of Lords Industry and Regulators Committee’s inquiry into the work of the Office for Students (OfS) is underwhelming. The inquiry was clear: England’s higher education regulator lacks independence from ministers, and at times implements political priorities rather than regulating in the interests of students and the sector. This does not make for effective, independent regulation. If ministers are serious about higher education, they should take on board the recommendations.

There are some encouraging signs, and the Office for Student’s own response ¹⁹ //committees.parliament.uk/publications/42303/documents/210336/default/  accepts many of the Lords' recommendations. ²⁰ //committees.parliament.uk/publications/41379/documents/203593/default/  But this will only take it so far. Credible independence will ultimately come down to the willingness of government to hold back from giving day-to-day steers – and to the OfS board asserting itself should this not prove the case. In this regard, the responses to the inquiry are far less promising.

Greater transparency of decision making should help to clear the air 

Some of the contention about the OfS stems from confusion about its mandate. The legislation which established it allows for considerable discretion over how it defines and balances its objectives, setting out functions it must perform as well as a list of duties it must “have regard to”, but with no overriding aim or order of priority. ²¹ Establishment of the Office for Students, www.legislation.gov.uk/ukpga/2017/29/part/1/crossheading/establishment-of-the-office-for-students/enacted  The regulator’s opaque definition of “the student interest” also risks giving the appearance of being a convenient cover for ministers’ political priorities.

The OfS argues that it already sets out its reasoning when it publishes outcomes to consultations, but has committed to explaining more fully how it approaches balancing its duties in individual decisions. It also committed to better articulating how it defines and deploys the concept of “the student interest”, changing how it engages with students and reporting annually on how this has influenced its work. This increased transparency should bolster the integrity of decision making and universities’ confidence in its independence. 

The OfS could go further by clarifying its roles as regulator and funding body

There are gaps in the Lords’ report, however. The OfS’ dual roles as both regulator and funding body create confusion regarding its relationship with the government and the extent of its authority over higher education providers. Both on paper and in practice, these roles are not well distinguished. There has been some slippage between the OfS’ readiness to reflect government priorities in grant allocation and to impose new registration conditions on providers. 

For instance, after the higher education minister publicly criticised the decision of some universities not to dock marks for poor written English in 2021, ²² Minister 'appalled' by move on bad spelling’, 15 April 2021, www.bbc.co.uk/news/uk-england-humber-56761589  the OfS quite reasonably felt obliged to respond – but did so by publishing a report asserting that the assessment of spelling, punctuation and grammar was mandated by its general registration requirements for course quality, referencing “reports in the press” as a factor prompting its review of this issue. ²³ Spelling, punctuation and grammar, 2021, www.officeforstudents.org.uk/media/1482/assessment_practices_english_higher_education_providers.pdf, pp. 3, 11.  

Beyond the commitments it has already made to clarify its decision-making processes to providers, the OfS should also consider how it might more clearly distinguish its roles as funder and as regulator, and communicate what input from government and what expectations of universities are appropriate in each case.

Asserting independence will ultimately come down to the OfS board

In the context of political interest it is necessary – if difficult – for the OfS to set out its own view of the limits to its role and purpose, and to push back on ministers. This, along with building public credibility, will require the active support of its board. 

If there is a practical connection to be made between the political alignment of the OfS’ chair – who retains the Conservative whip in the House of Lords – and the regulator’s current difficulties, it is that such alignment makes the board less likely to act robustly, privately and publicly. 

The Lords’ report is right to suggest that resigning a party whip should be a requirement for joining the board of an independent regulator. ²⁴ //committees.parliament.uk/publications/41379/documents/203593/default/, p. 83.  So it is disappointing that the government has no plans to change the code of conduct for board members of public bodies – and notable that in its response, the OfS makes no mention of the role of its board in asserting its independence. If the OfS is serious about building credibility around its relationship with government, its board should reflect upon its role in this. 

The government should take responsibility for how it works with, and through, the OfS

In its response the government defends ministerial guidance given to the OfS to date, and states that it does not see the need to take further steps to ensure the OfS operates – and is perceived to operate – independently of government. 

Ministers may legitimately claim it is their democratic right to intervene in the OfS’ work. But while calling for the regulator to implement specific policies – from cracking down on ‘mickey mouse’ degrees to policing sexual harassment on campuses – is a good way to generate headlines, it does not make for good and independent regulation. 

Ministers should follow the Lords’ inquiry’s call to set high-level, strategic objectives, let the OfS decide how to deliver them, and review progress down the line. Frequent meddling undermines the rationale for setting up a regulator in the first place. As well as being politically contested, this approach will distract the OfS from achieving its aims, making it more likely that a future government might deem the organisation unhelpful or ineffective – and therefore choose to reform or scrap it. This would be to the detriment of students and the higher education sector.