Ministers should not politicise the work of the OfS: discuss

You don’t need to hang around on higher education Twitter for long before certain positions become familiar. One of these is that the Office for Students (OfS) is an independent arm’s length body and it is therefore wrong of ministers to ‘politicise’ its work.

This argument is in my mind today because it featured in the entertaining debate that closed HEPI’s student experience conference last week. Diana Beech and David Green argued university autonomy was being eroded by government and regulatory interference with strong support from many in the audience. It’s not hard to see why people might pose ministers’ strong interest in the higher education sector against the desire of universities to protect their autonomy. And you can imagine the OfS stuck in the middle, as the filling in a regulatory sandwich.

So how does the OfS avoid being eaten for lunch? I’ve written previously about autonomy, so thought I would address the other side of the argument: the role of ministers.

As a regulator and a creature of statute, our job is to work within the law. That sounds obvious, but this debate is often conducted without any acknowledgement of what the law actually says.

Yes, the OfS is an independent regulator. We must and do exercise our functions independently of government. We are scrupulously careful about this. And ministers respect its importance.

But that’s only part of the story. The Higher Education and Research Act (HERA)  provides five mechanisms through which ministers can exert influence over the OfS’s work and we must operate within these parameters.

Firstly, ministers appoint the members of the OfS board: the OfS chair, independent members, the Chief Executive, the Director for Fair Access and Participation, and, subject to the passage of the Higher Education (Free Speech) Bill, another future director. These are all subject to the normal processes for public appointments. It is, though, hardly a surprise that ministers would wish to appoint people broadly aligned with the policy preferences of the government of the day. And a democratically elected government gets to make those decisions. But once appointed, we all ensure that OfS decisions are taken independently.

Secondly, ministers routinely issue statutory guidance to the OfS about the performance of its functions – we publish these guidance letters on our website. There are some constraints on the formulation of guidance, for example, ministers must consider institutional autonomy. The OfS’s obligation is to ‘have regard’ to that guidance as it performs its functions. In other words, we consider it alongside other relevant factors, including our general duties, and reach our own independent view about the appropriate way forward. Ministers’ views are therefore influencing our decisions rather than determining them.

Thirdly, ministers can issue general directions to the OfS about the performance of any of its functions and we must comply with such a direction. That’s not yet happened in the life of the OfS and ‘being directed’ sounds dramatic and perhaps something to be avoided. But this provision mirrors those in place for other regulators, such as Ofcom, and we should see it as simply a tool that could be appropriate in some circumstances. And, again, there are matters ministers must consider in formulating a direction. So, nothing to be feared as a point of principle and nothing the OfS would be concerned about in practice.

Fourthly, ministers attach terms and conditions to the public funding the OfS allocates to providers. We’re all used to the Government’s priorities being expressed through this mechanism as it formed the core of the Higher Education Funding Council’s funding regime over many years. Again, HERA imposes some constraints on ministers; for example, they must take care not to require the OfS to fund in a way which prohibits or requires the provision of a particular course.

Fifthly, ministers may require information from the OfS about any of its functions or obtained in the performance of any of its functions. This reflects ministers’ need for information to inform, for example, policy development and implementation. The OfS must provide information in response and does not have discretion to refuse.

My description here of the five statutory powers given to ministers in HERA is intended to be factual and politically neutral: I would make the same points in the same way for a government from a different party with different policy preferences. So, ministers are not ‘politicising’ the work of the OfS when they make use of these lawful mechanisms to express their priorities and expectations. 

Rather, they are making proper use of the powers Parliament gave to them and that feels entirely democratic to me.