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Why higher education needs a strong regulator

  • 20 January 2021
  • By Paul Layzell

This blog was kindly contributed by Professor Paul Layzell, Principal, Royal Holloway University of London and former Chair of AQA. You can find Paul on Twitter @RHULPrincipal.

Three years after the creation of the Office for Students (OfS), has higher education’s regulator come of age?

When formed, I shared the view that, if higher education was going to have the OfS as its regulator, it needed to be a strong regulator. This conviction was borne out of seven years’ experience as chair of exam board AQA and our experiences with Ofqual, the then newly formed exams regulator.

Like the OfS, Ofqual was borne out of a predecessor body that had to move from industry partner to industry regulator, with new powers to ‘maintain standards and confidence in qualifications in England’. 

Ofqual’s early years were challenging as it sought to apply its regulatory powers, hampered by a lack of technical competence in critical areas, having previously worked more closely with industry partners.

Recognising poor regulation would not help learners, nor the industry, so at AQA we set out to help the regulator become stronger and more engaged. We encouraged Ofqual to recruit staff with the necessary technical skills and an understanding of the sector it was regulating so that, with industry partners, we could jointly find pragmatic solutions to difficult problems. 

Over time, a new form of cooperative working emerged which respected the roles of regulator and the regulated and delivered positive outcomes for learners, which the regulator alone could not have achieved. While sharing the common goals of a positive experience for learners and good regulation, a careful path was navigated to avoid regulatory capture, where ‘a special interest is prioritised over the general interests of the public, leading to a net loss for society.’

Today, Ofqual is a strong and engaged regulator, that acts with competence and confidence, although, as we saw in the Summer 2020 results season, political intervention and the court of public opinion can create challenges for even the best working relationships.

Attending a recent OfS event – ‘Regulator and regulated: what’s the right relationship?’ – the OfS demonstrated it had grasped the challenge of regulatory capture, but still had other areas in which it needed to develop: competence and confidence.

OfS’s technical competence has been challenged most recently with its proposed ‘Start to Success’ proposals. Its suggested metric is a classic example of reducing the rich and varied experience of higher education to a single datapoint. It has made elementary errors in statistical manipulation and builds in naive assumptions about the nature of success – assumptions not held by the current generation of students it seeks to support.

OfS has also not fully developed its emotional intelligence and learned how to get the best out of the sector. Its helpful suspension of regulatory interventions at the start of the COVID-19 pandemic was soon discarded by a return to full-blooded regulation in Autumn 2020. In the eyes of the OfS, the challenges of delivering higher education in a pandemic had been ‘solved’. Its disconnection from the sector resulted in it paying little regard to hard-working university staff delivering teaching and supporting learning in new and novel ways, under very difficult circumstances. As a result, the launch of five consultations over the Christmas holiday period looks heavy-handed and misjudged.

After three years, the OfS has yet to have the confidence to fully engage with its sector, resulting in weakened outcomes. With strong views about higher education coming from the heart of government, the OfS may be right to be cautious. However, if it is to deliver its purpose and become a strong and confident regulator, the OfS needs to engage more effectively with its sector. The experience of Ofqual shows there is a path which can lead to an engaged regulator, without regulatory capture. The OfS could achieve the same by focusing on six issues that I believe are important to students, funders, and the future of higher education.

First, the OfS needs to set out regulatory objectives in a language and tone that engages and draws the sector closer, rather than alienate and create barriers. Lack of clarity leads to misunderstanding, inefficiency, and suspicion. Regulation needs to be deliverable and to do this the OfS needs to demonstrate they understand how universities work and how regulatory requirements can be implemented.

Second, there is widespread agreement that the university admissions system needs change. With consequences for multiple stakeholders, neither Universities UK, nor UCAS, nor universities themselves can make the changes alone. This presents an ideal opportunity for the OfS to show leadership, bringing together the multiple parties into a sector-wide task force and an independent chair. 

Third, the OfS needs to be bolder in explaining the value of a degree beyond simple, narrow measures or complex metrics. If it is the independent, arms-length regulator it should be, the OfS must have the confidence to describe the rich and wide-ranging benefits of higher education. Although the OfS has a duty to address government concerns, it must also serve the needs of students whose interests go beyond narrow governmental measures.

Fourth, the OfS should work more closely with the sector and its designated quality body, the QAA, in demonstrating degree quality and standards. Clumsy attempts at creating crude measures of teaching excellence have undermined the international standing of UK degrees and done little to raise confidence domestically.

Finally, the OfS needs to be more imaginative about how higher education will work in a post-pandemic, digitally enabled world. As universities make rapid transformations in how they support the needs of tomorrow’s students, the existing regulatory apparatus and its underlying assumptions are not fit for purpose. While an on-campus, three-year undergraduate degree may remain the mainstream experience for many students, current regulation often works against blended learning, flexible study, micro-credentials, and distance learning, thereby hampering the chances of students with more diverse needs than mainstream students.

As it enters its fourth year, the OfS could become a stronger and more engaged regulator for students, funders and the sector. It needs to be more proportionate and more independent from government; tough on the sector where there is good reason but building a greater shared understanding of expectations and collaborative working. This will serve the best interests of all stakeholders. 

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