Government ministers are not ‘politicising’ the Office for Students (OfS) when they talk about their priorities and expectations for the HE regulator, according to its interim chief executive, Susan Lapworth.
“The OfS is an independent regulator,” she wrote in a blog for the Higher Education Policy Institute (Hepi).
“We must and do exercise our functions independently of government. We are scrupulously careful about this. And ministers respect its importance.”
Director of regulation at the OfS since 2018, Lapworth was responding to points raised at the closing debate at last week’s Hepi annual conference.
Diana Beech (CEO at London Higher and a former director of policy and advocacy at Hepi) and David Green (vice-chancellor of the University of Worcester) were warmly applauded when they argued that university autonomy was being eroded by government and regulatory interference.
“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,” wrote Lapworth, who, besides serving a seven-month stint as interim chief executive, is also director of regulation at the OfS.
“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?
“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.”
Ministers are not ‘politicising’ the work of the OfS when they make use of these lawful mechanisms to express their priorities and expectations – Susan Lapworth
Noting that she had already written about autonomy, she went on to outline the five mechanisms which the higher education and research act (Hera) provides for ministers to exert influence over the OfS’ work:
- Ministers appoint the members of the OfS board
“It is 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.”
- Ministers routinely issue statutory guidance to the regulator about the performance of its functions, considering the its institutional autonomy as they do so
“The OfS’ 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.”
- Ministers can issue general directions to the OfS about the performance of any of its functions, and with which the OfS must comply
“That’s not yet happened in the life of the OfS and ‘being directed’ sounds dramatic and perhaps something to be avoided. 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.”
- Ministers attach terms and conditions to the public funding the regulator allocates to providers
“This mechanism 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.
- 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.”
Lapworth noted that she was neutrally laying out ministerial powers as directed by Hera and would have written the same things no matter the government of the day.
“Ministers are not ‘politicising’ the work of the OfS when they make use of these lawful mechanisms to express their priorities and expectations,” she concluded.
“Rather, they are making proper use of the powers parliament gave to them and that feels entirely democratic to me.”