The Office for Students’s new power: a ‘necessary and proportionate’ response to the pandemic, or not wasting a crisis?

This blog was kindly contributed by Dr Dean Machin, Strategic Policy Adviser at the University of Portsmouth. He writes in a personal capacity. Dean has previously blogged for HEPI on free speech, HESA and student voting.

On 4 May, the same day as the Government announced a support package for universities, the Office for Students (OfS) announced plans to implement a new ‘time-limited ongoing condition of registration’.

Universities that engage ‘in any form of Conduct which in the opinion of the OfS could reasonably have a material negative effect on the stability and/or Integrity of the English higher education sector’ will be liable to fines up to the maximum legislation permits.

Which ‘conduct’?

One target is unconditional offer-making, but there are several others on the OfS’s ‘non-exhaustive’ list. They include:

• practices that ‘risk distorting student decision-making’ (although ‘distortion’ is not defined);
• bypassing, or ‘seeking to bypass’ UCAS; and
• trying to ‘gain an unfair commercial advantage’ by attempting ‘to circumvent the spirit or purpose [as opposed to the content?] of … primary or secondary legislation’.

The OfS is explicit that the new condition is necessary only because of the pandemic. Have the listed behaviours increased non-trivially since 11 March? 11 March is significant because it is the date the World Health Organisation declared a pandemic and because it is the date to which the new regulation will be back-dated.

Retrospective rules are morally and legally problematic. ‘Ought implies can’, as philosopher David Hume showed: an obligation can only exist if it possible to fulfil it. But, between 11 March and 4 May, universities could not know that they might be engaging in conduct the OfS may find unacceptable

From 4 May to whenever the change is implemented (early June probably), universities know that some of their conduct might be judged as unacceptable. But as the new condition is complex, and as there are no criteria about how the OfS will form its ‘opinion’, or what constitutes a ‘material negative effect’, universities can only second-guess what the OfS will decide.

You might think that backdating a ‘broad and onerous‘ condition will probably increase the short-term instability in the sector and could only be warranted by a great deal of sector-wide evidence of poor conduct. There is evidence that a minority of universities engaged in egregious unconditional offer-making. But if there is evidence of more widespread sector malfeasance, the consultation does not present it.

We have known about egregious unconditional offer-making for some time – at least since the Government moratorium on unconditional offer-making on 23 March. If Government felt it knew enough to take action then, why has the OfS taken so long to propose anything?

It’s only temporary

The new condition will expire one year after it comes into effect (plus the backdating). However, subject to a further consultation, the OfS can extend it. As the new condition will either succeed in stamping out poor conduct (proving its value) or fail (suggesting it should be tightened), the sector should expect the new condition to exist for some time.

The student interest

The new condition is for the benefit of students but the student interest is barely mentioned in it. The condition covers the ‘stability and/or Integrity’ of the sector: ‘stability’ and ‘Integrity’ cover ‘matters relating to admissions practices including offers to students’ but also ‘financial and economic matters’ and ‘matters relating to good governance’.

There are also two further, enormously wide, conditions:

‘matters that may directly or indirectly have an impact on the interests of past, present or future students’; and;

‘matters that may negatively affect public trust and confidence in’ the higher education sector.

It is worth repeating: no criteria is given about how the OfS will form its ‘opinion’ on non-compliance or what constitutes a ‘material negative effect’.

The OfS says that in ‘the exceptional circumstances’ of the pandemic, students’ interests ‘outweigh the autonomy of providers’. Clearly, the student interest could justifiably override university autonomy but whether at any particular time it does depends on the facts of the case. If the facts are not as the OfS claims, then, the regulatory change is unnecessary.

On what basis does the OfS have a reliable grasp of students’ interests in the pandemic? The OfS cannot just assume that it intuitively understands them.

The general point is this: anyone – the OfS, vice-chancellors, politicians – can claim that what they are doing is ‘in the student interest’. But they might be wrong. Before 23 June 2016 many people might have said ‘it’s not in the public interest for the UK to leave the EU’. Then the public were asked and they disagreed.

How does the OfS know that the student interest requires such a sweeping regulatory power? Has the OfS consulted students and applicants about what they think about universities’ post-11 March conduct? Will the OfS ask students when forming its ‘opinion’ on condition breaches? If so, how? The OfS does have a student panel but it has not met since January and will not meet until September.

The key questions

Is the OfS’s proposal really about students’ interests in the pandemic, or a long-standing desire to eradicate conduct of which the OfS disapproves? The OfS might be right to disapprove but is the middle of a global pandemic, and an existential crisis for many universities, really the time for this? The OfS is clear that the new condition is needed because of the pandemic. It would be very serious for a regulator to mislead the public about its reasons for a retrospective regulatory change.

The OfS could address these concerns by answering some questions.

• Will the OfS publish its evidence that the proposed non-compliant conduct has systematically and non-trivially increased since 11 March?
• Given the Government’s prompt action on 23 March, why has the OfS taken so much longer to act?
• Will the OfS publish the criteria it will use to form its opinion on whether the new condition is violated and what constitutes a material negative effect?
• Will the OfS explain how it understands the ‘student interest’ in this area and what steps it has taken to get students’ views on the student interest in the pandemic?
• Has the OfS considered the effect on students’ interests of fining universities potentially millions of pounds just at the time they are expecting a significant decline in income? This question should be viewed in light of the fact that the Government support package for universities includes no extra funding.
• Finally, if the problems the condition seeks to solve are pandemic-specific and created by the conduct of a small number of universities, why is the condition ‘broad and onerous‘ and why will it be in force until at least the middle of 2021?

The OfS’s ability to impose the new condition does not require answers to these questions. However, if the OfS wants to show that the new condition is needed for students, then presumably it can answer them. Equally, if the OfS remains committed to avoiding ‘placing any unnecessary burdens on providers as they work to minimise the impact of the virus on their students and staff‘ it should answer them.