Category: Regulation

  • OfS consults on a condition of registration for subcontracted provision

    OfS consults on a condition of registration for subcontracted provision

    Cast your mind back to the end of January this year.

    The Department for Education proposed that all providers delivering a course via a franchise model to more than 300 students should register with the Office for Students.

    The rationale was straightforward. An increasingly large number of students were studying at, effectively, unregulated providers – with the connection to the lead provider achieved via an office in the registry and subject to varying (shall we say) levels of oversight in terms of quality, standards, and – frankly – probity (as we and others have extensively reported).

    That consultation concluded in April, and we have heard very little about these plans since. So when, just before summer recess, the Office for Students announced its own consultation on regulating franchise provision one could be forgiven for assuming that the two approaches would somehow link together.

    Information requirement

    What OfS has suggested addresses the other end of the issue – while DfE wants to register delivery providers, OfS wants to put a new condition of registration (E8) onto institutions with more than 100 students taught via subcontractual arrangements. The condition is not an arduous one – it basically suggests that a lead provider should have adequate governance and oversight of risks concerning subcontractual provision, and be prepared to share key information about these arrangements (a so-called “Comprehensive source of information”, or CSol). In return OfS can demand more information (“monitoring”) and make “directions” for the lead provider to start or stop doing stuff. All this would, consultation pending, come into force in January 2026.

    Now, it would be fair to wonder whether this kind of effective governance in the public interest is already covered in conditions E1 and E2, and the information end of things feels a little bit F3. It is neither unreasonable nor arduous to expect providers to have adequate governance or to publish information – though it is questionable (given the applicability of these existing registration conditions) that this will have any meaningful impact on provider activity.

    In other words, if you don’t have effective arrangements in place regarding subcontractual provision, you are already in breach of condition E2 and will face consequences. Just ask Leeds Trinity University, now £115,000 poorer as a result – and, as the consultation suggests, just the tip of a very large iceberg of provision where OfS has been regulating quietly behind the scenes.

    Rationale

    So why the need for E8? If providers are already required to be transparent around governance arrangements and oversight, why do we need another condition to do the same thing for subcontractual relationships? And if there are additional informational needs, or a need to limit what a particular provider can do, why not do a specific condition of registration relating to subcontractual activity? Or why not wait a few weeks to see whether DfE brings the people doing the actual course delivery into its regulatory ambit? OfS says:

    We consider that implementing a general ongoing condition of registration sends a clearer signal to the sector about our expectations for managing subcontractual partnerships now and in the future. Including our requirements in the regulatory framework in this way provides greater transparency for all providers and for other stakeholders.

    We are, once again, in the realms of vibes-based regulation: the purpose of this requirement is to make it look like OfS is finally doing something to address the problems with subcontractual provision that have been visible to the media since at least 2014.

    In the weeds

    You’ll look in vain within the consultation for any mention of OfS’ own long-promised publication of definitive data on the size and shape of franchised provision – now possibly coming in the last quarter of 2025 (following a very small pilot release last year). Where this gets interesting is the methodology for calculating where or not you are over the threshold (a total of 100 – headcount – students studying via subcontractual arrangements at relevant providers) as calculated by the OfS’ own student number methodology and that would be returned via HESES. While OfS has not yet been confident enough in this data to release it in full, it is somehow content to rely on it for regulation.

    The 100 isn’t an exact cut off: if you generally recruit more than 100 subcontractual students but happen not to one year, you are still in scope – likewise if you make changes to your plans so that you will recruit more than 100 (or are “materially likely” to do so) you are in scope already. Or if OfS decides you are in scope, you are in scope.

    To be clear, this isn’t all such arrangements. The use of the term “relevant” excludes by definition any provision in a state-funded school, FEC, sixth form, designated institution (FHEA 1992 section 28), provider of NHS services, local authority, or police and crimes commissioner. Also exempt in your calculation are students subcontracted to any provider with degree awarding powers authorised by or under an Act of Parliament or a Royal Charter (so all taught or research DAPs, basically).

    Back end

    For clarity, the traditional way in which subcontractual arrangements are regulated is via the registering provider – and these OfS proposals are an attempt to bring some of what should be going on already out a bit further into the open. The existing transparency conditions of registration (F1, which operationalises section 9 of HERA) don’t cover governing (or academic quality and standards) documentation. Indeed, OfS has been historically light on governance transparency – which is why it isn’t always easy to figure out what is going on inside a given provider.

    It’s not so long ago that OfS was lambasting providers for “gold plating” internal quality assurance processes in a long-sustained campaign to flush out those in the sector who cleave to the much older doctrines of the UK Quality Code. You know, nonsense like:

    Providers and their partners agree proportionate arrangements for effective governance to secure the academic standards and enhance the quality of programmes and modules that are delivered in partnership with others. Organisations involved in partnership arrangements agree and communicate the mutual and specific responsibilities in relation to delivering, monitoring, evaluating, assuring and enhancing the learning experience.

    A big chunk of the documentation that OfS is asking for here (in the comprehensive source of information) is basically documentary proof that a provider is compliant with principle 8 of the UK Quality code (including the QAA’s recent guidance), not that you will be thanked by the regulator for pointing this out. Perhaps some of that “gold-plating” was important after all.

    But there is one place where OfS goes further: it asks for a “strategic” rationale for entering into each subcontractual arrangement. We don’t get any guidance on what a suitable rationale would be, just that it must fit with a provider’s vision and strategic intent. Case law here is going to be fascinating.

    Front end

    From a student protection perspective OfS would gain powers to compel those franchising out provision to make changes to the terms of these agreements or the governance or process involved in running them – in extremis the regulator could require that an arrangement ends immediately, students have their fees refunded, and the registering provider steps in to teach out the remaining student. It can also tell you to stop recruiting students onto subcontracted out courses, or limit the number of students that can be recruited.

    This is a large improvement on current arrangements, which have largely been predicated on a provider having an up-to-date student protection plan and being able to deliver on it. The fee refund requirement, in particular, should make anyone that is knowingly partnering with someone offering students a sub-par experience sit up and pay attention.

    It’s not perfect, however: the January DfE proposal on franchising and partnerships was interesting precisely because it broke with established practice on subcontractual arrangements – those delivering teaching would be regulated, whether or not they were awarding the degrees in question. If OfS could intervene directly with a delivery provider, surely that would be quicker than going via the registration provider – the measures in this consultation would then be usable for purely punitive reasons (and, as above, duplicate other conditions of registration)

    OfS has followed the DfE lead in excluding most publicly funded provision from these regulations – it made sense to exclude schools, colleges, and the NHS from active regulation as they are already regulated elsewhere. If the purpose of these OfS proposals is to ensure that the universities that are subcontracting out do so with a level of strategic intent, it seems unlikely that someone is incapable of making a strategically poor or under-resourced commitment to work with an FEC or sixth form: surely these arrangements also deserve a level of scrutiny?

    And – frankly – why shouldn’t providers involved in subcontracting be required to publish information about it (rather than hold it until OfS asks for it)? The current concerns with this style of provision have developed precisely because agreements and fee-splitting agreements can remain obscure – a bit of public accountability for these kinds of decisions would do a lot to separate out the good and valuable subcontractual arrangements from the more questionable partnerships.

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  • Higher Education, High Hopes, and Heavy Bureaucracy

    Higher Education, High Hopes, and Heavy Bureaucracy

    by Phil Power-Mason and Helen Charlton

    UK higher education is pulled between its lofty ambitions for transformative learning and the managerialism that sometimes constrains their realisation. This tension defines the contemporary Higher Education workplace, where the mantras of “more with less” and “highly regulated freedom” collide with the desire for rich, personalised student experiences amidst fiscal belt-tightening, quantification, and standardisation. Bubbling through the cracks in any long-term political or economic vision for the sector is a professional identity steeped in ambivalence of purpose and position, one whose contradictions are nowhere rendered more vividly than in England’s higher and degree apprenticeships (HDAs). Conceived to braid university learning with workplace productivity, HDAs promise the best of both worlds yet must be delivered within one of the most prescriptive funding and inspection regimes in UK higher education. This provision also sits amidst a precarious and volatile political landscape, with continuous changes to funding rules, age limits and eligibility of different levels of study, and ‘fit’ within a still poorly defined skills and lifelong learning landscape.  

    At the heart of this ongoing policy experiment stands an until-recently invisible workforce:  Higher Education Tripartite Practitioners (HETP). These quiet actors emerged as a series of pragmatic institution level responses to the Education and Skills Funding Agency (ESFA, now subsumed into the Department of Education) related to progress reviews involving the provider, apprentice, and employer. Yet, as we argued in our paper at the SRHE International Conference in December last year, they have evolved into nuanced, often misunderstood boundary-spanners who simultaneously inhabit academia, industry, and compliance. Part coach, part conduit, part compliance specialist, they facilitate developmental conversations, broker cultural differences, and ensure every clause of the ESFA rulebook is honoured. The quality of this brokerage is decisive; without it even the most carefully designed apprenticeship fractures under audit pressure.

    Consider the core activities of HETPs. Much of their time is spent in close personal engagement with apprentices – fostering professional growth, guiding reflective practice, and offering pastoral support traditionally associated with mentoring. They encourage apprentices to think holistically, integrate theory with workplace reality, and map long-term career aspirations. Almost simultaneously, they must document progress reviews, monitor the evidence of every single hour of learning, and tick every regulatory box along a journey from initial skills analysis through to end point assessment.

    This duality produces a daily oscillation between inspiring conversations and tedious paperwork. The tension is palpable and exhausting, revealing a deeper struggle between two visions of education: one expansive, transformative, and relational; the other restrictive, measurable, and dominated by compliance. Fuller and Unwin’s expansive–restrictive continuum maps neatly onto this predicament, underscoring how universities are urged by policymakers to deliver high-skilled graduates for economic growth while simultaneously squeezed by intensifying regulation and managerial oversight.

    Little wonder, then, that HETPs describe their roles with the language of complexity, ambiguity, and invisibility. They are neither purely academic nor purely administrative. Instead, they occupy a liminal institutional space, mediating competing demands from employers, regulators, apprentices, and colleagues. Esmond captures the resulting “subaltern” status of these practitioners, whose contributions remain undervalued even as they shoulder the brunt of institutional attempts to innovate without overhauling legacy systems.

    Their experiences lay bare the contradictions of contemporary university innovation. Institutions routinely trumpet responsiveness to labour-market need yet bolt new programmes onto structures optimised for conventional classroom delivery, leaving HETPs to reconcile expansive educational ideals with restrictive managerial realities. The role becomes a flashpoint: universities ask boundary-spanners to maintain quality, build relationships, and inspire learners within systems designed for something else entirely.

    Yet amidst these tensions lies opportunity. The very ambiguity of the HETP role highlights the limits of existing support systems and points towards new professional identities and career pathways. Formal recognition of boundary-spanning expertise – relationship-building, negotiation, adaptability – would allow practitioners to progress without abandoning what makes their contribution distinctive. Communities of practice could break the apprenticeship echo-chamber and enrich the wider HE ecosystem, while institutional investment in bespoke professional development would equip practitioners to navigate the inherent tensions of their work.

    Senior leadership must also acknowledge the strategic value of these hidden roles, reframing them not as incidental administrative burdens but as essential catalysts for integrated educational practice. Making such roles visible and valued would help universities reconcile expansive aspirations with regulatory realities and signal genuine commitment to reshaping education for contemporary challenges.

    Policymakers and regulators, too, have lessons to learn. While accountability has its place, overly rigid compliance frameworks risk stifling innovation. Trust-based, proportionate regulation – emphasising quality, transparency, and developmental outcomes – would free practitioners to focus on learning rather than bureaucratic survival. The current neo-liberal distrust that imagines only regulation can safeguard public value inflates compliance costs and undermines the very economic ambitions it seeks to serve.

    Ultimately, the emergence of HETPs challenges HE institutions to decide how serious they are about bridging academic learning and workplace practice. Recognising and empowering these quiet brokers would signal a genuine commitment to integrated, expansive education – an education capable of meeting economic demands without losing sight of deeper human and intellectual aspirations. HETPs are far more than practitioners managing checklists; they are a critical juncture at which universities must choose either to treat boundary-spanning labour as a stop-gap or to embrace the complexity and potential it represents.

    Dr Phil Power-Mason is Head of Department for Strategic Management at Hertfordshire Business School, University of Hertfordshire, where he leads a diverse portfolio spanning executive education, apprenticeships and professional doctorates. A practice-focussed academic with a passion for innovative workforce development, Phil has overseen significant growth in the school’s business apprenticeships, MBA, and generalist provision, while nurturing cross-sector partnerships and embedding work-aligned learning at every level. With a research background in educational governance and strategy, he is a Senior Fellow of Advance HE and co-convenor of national apprenticeship knowledge networks. Phil’s research and sector leadership focus on emerging pedagogic and HE workforce practices, driving collaborative solutions that meet employer, learner and university needs. An invited speaker at national forums and a frequent contributor to sector conferences and publications, he remains committed to transforming vocational and work-ready learning practice for the future. (herts.ac.uk)

    Dr Helen Charlton is Associate Professor of Work Aligned Learning and Head of Executive Education at Newcastle Business School, Northumbria University, where she leads the school’s business apprenticeships, executive CPD and distance-learning programmes. After almost a decade steering apprenticeship design and compliance, she stays keenly attuned to each fresh regulatory tweak – and the learning opportunities it provides. A former senior HR manager in the arts and not-for-profit sectors, Helen holds a Doctorate in Education and an MSc in Human Resource Management, is a Senior Fellow of Advance HE, a Chartered MCIPD, and a Chartered Manager and Fellow of the CMI. Her research examines how learners, employers and universities negotiate the tripartite realities of degree apprenticeships. (northumbria.ac.uk)

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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  • Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Just 44 days before duties on it go live, but some 389 days since it closed a consultation on it, the Office for Students (OfS) has finally published Regulatory advice 24 – its guidance to universities and colleges in England on freedom of speech that flows from the Higher Education (Freedom of Speech) Act (HEFoSA).

    The timings matter partly because it’s mid-June, there won’t be many (if any) big committee meetings left (let alone processes designed to engage with people on policy development ahead of approval), and it was OfS itself that fined the University of Sussex partly over the proper approval of some of its policies.

    And it’s not as if there are only minor drafting changes. An 11,773 word draft has become a 23,526 word final, and the list of 30 illustrative examples has grown to 52 – despite the fact that this new version omits all the duties on students unions (which the government announced last year it intends to repeal), and is now also silent on the free speech complaints scheme.

    All the detailed and prescriptive expectations in the original draft over how that should be promoted have gone – largely because we’re all waiting for Parliament to debate (sensible) changes that will cause students to have to use the Office of the Independent Adjudicator (OIA), rather than OfS, to resolve any complaints in this area.

    Alongside, there’s surely a record-breaking 788 paragraph analysis of responses and decisions off the back of the eleven question consultation, some alarming-sounding polling that will likely be making the news, and some short guides for students and staff.

    A lot of the new version of the guidance adds more detail into the examples – many are now more realistic, plenty are better at signalling the differences between “good ideas” and minimum expectations, and a whole host of them are now more accurately qualified with reference to key legal principles or tests, many of which have been emerging in case law since OfS started its consultation.

    That said, some are still so preposterous as to be useless. If there really is a college somewhere that requires students to seek written permission a month in advance to hand out leaflets or post flyers, where those flyers must be posted on a single designated noticeboard which is both small and on a campus where flyers may not be posted anywhere else, I’ll eat my hat – or maybe my pudding at the formal dinner at whichever Oxbridge college authors were reminiscing about when Example 38 was drafted.

    As there are 52 of them, this initial article doesn’t dive into all of the vignettes comprehensively – although doubtless a number of them (not least because of the judicious use of qualifiers like “depending on the facts of the case”) will continue to cause readers to cry “yeah but what about…” – which is presumably why OfS initially attempted to let lessons unfurl from the casework rather than publish guidance. And we may well end up looking at some of them in more detail in the coming days and weeks.

    What I have tried to do here is look at the major ways in which the guidance has developed, how it’s handling some of the bigger questions that both universities and their SUs were raising in responses during the process, and what this all tells us about OfS’ intended approach to regulation in this area as of August.

    As a reminder, we’re talking here about the duty to “secure” freedom of speech on campus (A1 in HEFoSA), and the expectations that OfS has around the requirements for a souped up Code of Practice (A2) for each provider. There’s no guidance (yet) over the “promote” duty (A3), and to the extent to which the previous version strayed into those areas, they’ve largely been removed.

    The sandbags are coming

    If we were to identify one theme that has dominated discussion and debate over the Free Speech Bill ever since then universities minister Michelle Donelan stumbled, live on Radio 4, into an apparent contradiction, it would be where free speech (to be protected and promoted) crosses the line into harassment – which of course, under a separate heavy new duty as of August 1st, is something to be actively prevented and prosecuted by universities. Middle grounds are no longer available.

    The good news is that the section on reconciling free speech duties with equality law, anti-harassment provisions, and other legal requirements is better than anything else OfS has published to date on the interactions and fine lines. So detailed, for example, are many of the sections that deal with harassment on campus that at times, it’s a lot more helpful than the material in the actual guidance on registration condition E5 (Harassment and Sexual Misconduct).

    People often, for example, find others’ conduct to be unpleasant or disagreeable – Para 47 reminds us that the concept of harassment in the Protection from Harassment Act 1997 is linked to a course of conduct which amounts to it, that a course of conduct has comprise two or more occasions, that the conduct must be “oppressive and unacceptable” rather than just “unattractive or unreasonable”, and must be of sufficient seriousness to also amount to a criminal offence.

    Similarly, the judgement of harassment isn’t purely subjective – it applies an objective test based on what a reasonable person would think, which helps provide a consistent standard rather than relying solely on individual perceptions.

    Hence in Example 1, a student publishes repeated comments on social media attacking another student based on lawful views, including “tagging” them in posts and encouraging others to “pile on”. The student’s speech is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment – and so carrying out an investigation into the student based on a policy that bans harassment would not breach the “secure” duty.

    Much of that flows from a newly reworked version of what counts as free speech within the law that translates some of the case law and principles set by the ECHR and the UK High Court in cases like Higgs v Farmor’s School. As such, while there’s still lines in there like “The Act protects free speech within the law – it does not protect unlawful speech”, there’s now much more helpful material on the different ways in which free speech might be curtailed or interfered with given other duties.

    To get there it outlines a three step test (with some wild flowchart graphics):

    • Step 1: Is the speech “within the law”? If yes, go to step 2. If no, the duty to “secure” speech does not apply.
    • Step 2: Are there any “reasonably practicable steps” to secure the speech? If yes, take those steps. Do not restrict the speech. If no, go to step 3.
    • Step 3: Are any restrictions “prescribed by law” and proportionate under the European Convention on Human Rights?

    There’s no doubt that it’s a more nuanced and balanced reflection of the legal position than we saw in the draft – albeit that it switches between “what to do in practice” and “what to say to students and staff in theory” in ways that are sometimes unhelpful.

    The problem is that the closer it gets to necessary complexity, the further away it gets from something that’s easy to understand by the very staff and students whose day to day conduct and confidence (what we might call the “culture” on campus) is supposed to be being influenced by the new duties.

    More importantly, as the examples unfurl, it’s both possible to spot numerous ways in which “it’s a balance” turns into Kafka’s cake and eat it, and to see how the “reasonably practicable steps” duty turns into something genuinely hard to understand in practice.

    Someone should do something

    One thing that’s not gone is a tendency in the examples to signal to the outside world that the new rules will tackle the things they’ve read about in the Times and the Telegraph – until you realise that they won’t.

    That Example 1 discussed above (highlighted in the accompanying press release) is a classic of the genre. On the surface it looks like OfS is tackling “mobbing”. But in reality, the whole point about pile-ons is that they’re almost never about one big evil ringleader engaging in conduct that is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment.

    It’s more often than not a hundred micro-oppressions having the cumulative effect of making the target feel terrible. Even if you argue that aspects of social media culture are within the influence (if not control) of a provider, in other parts of the guidance OfS seems to be saying that because each micro-act isn’t harassment, you shouldn’t be trying to meddle in the culture of the campus.

    That problem becomes amplified in the section on microaggressions. In 2019, the Equality and Human Rights Commission (EHRC) found microaggressive acts to be a key component of a culture of racism on campus – and both argued that they could have an impact on equality of opportunity and good relations between different groups, and that universities must not ignore microaggressions that do not meet the definition of harassment in the Equality Act 2010 because of the cumulative impacts of repetition.

    But as soon as universities started to tackle microaggressions by, for example, encouraging their reporting, various anti-EDI culture warriors started to raise concerns. Discussing a scheme launched by Sheffield SU to have their halls reps understand the concept, Spiked’s Joanna Williams argued:

    They will need an odd combination of extreme sensitivity to offence – alongside a high degree of insensitivity to interrupting conversations – to point out exactly where the speakers went wrong. Presumably, candidates will also have to sit some kind of test to prove their own thought purity on all matters concerned with race and ethnicity.

    The Command Paper that led to HEFoSA was also worried:

    Schemes have been established in which students are paid to report others for perceived offences.

    And as Report+Support tools started to open up avenues for students to raise issues such that universities could spot patterns, academics – among them a fairly obscure Cambridge philosopher called Arif Ahmed – started to complain:

    The encouragement to report ‘inappropriate’ or ‘offensive’ behaviour amounts to a snitches’s charter. Any risk-averse white person will simply not engage with anyone from an ethnic minority, in case an innocent or well-meaning remark is overheard, misunderstood and reported. Whatever Downing College may think, being offensive is not an offence.

    Several years on, Arif Ahmed is OfS’ Director for Freedom of Speech and Academic Freedom, asserting that his appointment and approach isn’t “political”, and launching actual regulation (Example 39) that says this:

    University A promotes an anonymous reporting process. Students are encouraged to use a portal to submit anonymous reports to senior staff of “microaggressions”, which is not further defined. The portal includes free text boxes in which reporters may name or otherwise identify the individuals being accused. University A says that it may take action against named (or identifiable) individuals on the basis of any anonymous report that it receives.

    …Depending on the circumstances, the existence of the reporting mechanism and portal may discourage open and lawful discussion of controversial topics, including political topics and matters of public interest.

    …Reasonably practicable steps that A could now take may include remove the free text boxes from the anonymous reporting portal to be replaced with radio buttons that do not permit submission of any identifying data.

    There is a legitimate, if contested, political view that structural racism is fictional, harmful or both – and that what flows from it is division via concepts like microaggressions. There’s another view that to tackle racism you need to interrogate and tackle not just skinheads hurling abuse and painting graffiti, but the insidious yet often unintended impact of stuff like this (EHRC again):

    A recurring theme in our evidence was students and staff being dismissed as “oversensitive” and their experiences of microaggressions viewed as isolated incidents rather than a cumulative and alienating pattern of repeated slights and insults.

    Many staff and students reported that racial harassment doesn’t only happen overtly. All too often, offensive comments were justified by perpetrators as “jokes” or “banter”. The damaging effect of repeated microaggressions is often made worse by a lack of empathy and understanding when individuals decide to speak up about their treatment.

    In that “debate”, OfS has picked the side that we might have expected Arif Ahmed to pick. Whether he’s legally justified in doing so is one question – but let’s not pretend that the agenda is somehow apolitical.

    And for my next trick

    All of this is possible because of a central conceit in the guidance that relates back to a long-running theme in the rhetoric surrounding culture on campus – what we might call a “maximalist” approach to describing free speech, and a “minimalist “ (specific, legal thresholds) approach to harm and harassment.

    Anything goes unless it specifically breaks this specific law, and if you pretend otherwise you might end up “chilling” free speech.

    You might. But while insisting on an objective test to determine whether harassment has happened is a central feature, no such test of objectivity is then applied to whether a chilling effect has occurred – it becomes, in effect, about “potential” and feelings. Hence in its Sussex investigation, OfS said:

    …a chilling effect arose as a result of the Trans and Non-Binary Equality Policy Statement and the resulting breach of condition E1. By “chilling effect”, the OfS means the potential for staff and students to self-censor and not speak about or express certain lawful views. Staff and students may have self-censored as a result of the policy because they were concerned about being in breach of the policy and potentially facing disciplinary action for expressing lawful views.

    So having established that “harassment” has to amount to something objectively criminal, while “chilling” is in the eye of the Director, OfS is able to get away with railing against another newspaper favourite – by all but outlawing requiring academic staff to issue trigger warnings. Example 50:

    Depending on the facts, issuing a “content note” (informing attendees about sensitive material) in advance of this event may not be a reasonably practicable step for A to take. A standing requirement to use content notes may encourage more intrusive investigation of the content of seminars, readings or speaker events. An expectation of content notes may also discourage academics from exposing students to new controversial material (so as not to risk wrongly including no, or the wrong type of, content note).

    You could of course just as easily argue that failing to issue “content notes” could have a chilling effect on some students’ active participation. Alternatively, you could double down and chuck in a minimalist little qualifier for cover:

    However, there may be occasions when the use of specific content notes may be helpful to enable students to access material, if there is evidence that they are in fact helpful.

    The point isn’t to debate whether they work or not – the point is that OfS suddenly gets to pick and choose what it thinks could chill, while demanding that rules reflect specificity and extremity over individual conduct for harassment. It’s culture war politics shoehorned into regulation, with the law lingering around in the background.

    Is the process the punishment?

    You might remember a major news story in 2021 when a student at Abertay was investigated after other students complained that she made “hateful, discriminatory, sexist, racist and transphobic” remarks during an online seminar on gender politics.

    Following an investigation, it was determined that Lisa Keogh had a case to answer in relation to “making inappropriate comments” which “could be construed as discriminatory” – but after a panel reviewed recordings made available from the seminar, it found no evidence of discrimination:

    As a result, the board found there was insufficient evidence to support the allegations made against you on your behaviour in class and, therefore, decided to not uphold the charge of misconduct.

    Keogh’s argument was that she should never have been subject to formal processes in the first place – and so sued.

    Her case was basically that the university acted in breach of the Equality Act 2010 by pursuing her for “expressing her gender critical beliefs” and caused “stress at the most crucial part of my university career” – but Dundee Sheriff Court dismissed her case, with Sheriff Gregor Murray saying that university was entitled to take steps to investigate complaints:

    The number, nature and timing of the allegations, and the involvement of at least three final year students who were about to sit examinations, all placed the university in exactly the type of “tricky territory” that entitled it to investigate immediately.

    The defender was entitled to take steps to investigate complaints. It could not be guilty of discrimination simply because it did so. Following investigation in this case, the complaint against the pursuer was not upheld.

    Cases like that then get mangled into examples like Example 40 in the guidance. In the vignette, a professor expresses views that upset some students – they bring a complaint, there is a lengthy investigation process, and at the end of the process the university finds that there is no case to answer.

    This should have been clear to investigators at the outset, but the university was concerned that closing the investigation quickly would further offend the students who complained. The prospect of a lengthy investigation with an uncertain outcome may deter students and staff from putting forward unpopular views on controversial topics.

    Again, you can just as easily argue that rapidly dismissing students’ genuinely held concerns would have a chilling effect on their confidence to complain, and that students making formal complaints of this sort is so rare that a university would be wise to carefully investigate whether there’s an underlying fire accompanying the smoke.

    But as above, OfS seems to be saying “if students weren’t describing specific behaviours that would meet the harassment test, don’t even investigate” – applying a specific and objective test to harassment while being speculative and partial over its chilling test.

    A useful tool, but not that useful

    The original draft was fairly silent on antisemitism – an obvious issue given the high-profile nature of the coverage and political commentary on it, not least in the context of protests surrounding the war in Gaza.

    Notwithstanding the specific stuff on “time, place and manner” (see below and here) and what OfS might be counting as an “essential function” of a university (again, see below), what I would say is that if there’s a debate about whether action A, protest B or leaflet C amounts to antisemitism, it’s pretty obvious that those advocating the adoption of the IHRA definition are seeking to have it used when making a judgement.

    Some will argue (like Arif Ahmed once did) that universities should not adopt the definition:

    This “definition” is nothing of the kind; adopting it obstructs perfectly legitimate defence of Palestinian rights. As such it chills free speech on a matter of the first importance. I hope the Secretary of State reconsiders the need for it; but these new free speech duties ought to rule it out in any case.

    We’ve covered his mysterious conversion before – and wondered how that might manifest in any final guidance. It doesn’t, at all – but what we do get in the consultation commentary is this astonishing paragraph:

    We do not comment in this guidance on the IHRA definition of antisemitism or on any other proposed non-legally binding definition that a provider or constituent institution may wish to adopt. Nonetheless, we have adopted the IHRA definition because we believe that it is a useful tool for understanding how antisemitism manifests itself in the 21st century. The IHRA definition does not affect the legal definition of racial discrimination, so does not change our approach to implementing our regulatory duties, including our regulatory expectations of registered providers. A provider that adopts any definition (of anything) must do so in a way that has particular regard to, and places significant weight on, the importance of freedom of speech within the law, academic freedom and tolerance for controversial views in an educational context or environment.

    Some will argue that adoption – either by OfS or providers – has precisely the kind of chilling effects that are railed against at length throughout the guidance. Others will argue that adoption as a kind of interesting window dressing without using it to make judgements about things is pointless, raises expectations that can’t later be met, and allows antisemitism to go unchecked.

    I’d argue that this is another classic case of Kafka’s cake and eat it – which dumps a deep set of contradictions on universities and requires attention and leadership from regulators and politicians. We are still not there.

    Practicably reasonable

    As well as that central thread, there are various other issues in the guidance worthy of initial note.

    A major concern from mission groups was the way in which the new duty might play out over transnational branch campuses – especially those with rather more oppressive legal regimes over expression than here.

    We might have expected OfS to use some sort of “what’s practicable relates to the law in the country you’re delivering in” qualifier, but it has somehow managed to square the circle by simply stating, with no further qualification (P13) that:

    HERA does not require providers or constituent institutions to take steps to secure freedom of speech in respect of their activities outside England.

    It’s an… interesting reading, which is maybe related to the usual territorial extent qualifiers in legislation – the consultation commentary is similarly (and uncharacteristically) silent – but what it does appear to do is contradict the usual prescription that it’s about where the main base of the provider is, not where it’s provision is, that sets the duties.

    Even if some legal workaround has been found, it does start to call into question how or why OfS can regulate the quality of your provision in Dubai while not worrying about freedom of speech.

    Another section with a mysteriously short sentence is one on the original Donelan conundrum:

    The OfS will not protect Holocaust denial (by visiting speakers or anyone else).

    That’s a carefully worded sentence which seems to be more about OfS making choices about its time than an explanatory legal position. Unlike in many other countries, holocaust denial is not in and of itself illegal in the UK – although in the weigh up, Article 17 of the ECHR removes protection from speech that is contrary to fundamental convention values, and cases in the UK have tended to be prosecuted under other legislation such as section 127 of the Communications Act 2003 when the content is deemed “grossly offensive”.

    Quite why OfS has not chosen to explain that is unclear – unless it’s worried about revealing that all sorts of other types of grossly offensive stuff might fall under the balancing provision. And more to the point, as I’ve often said on the site, most holocaust deniers don’t announce that the title of their talk in Room 4b On Tuesday evening will be “the holocaust is a fiction” – which opens up the question of whether or not it’s OK to outlaw holocaust deniers who may or may not engage in actual holocaust denial when they turn up.

    The sole example in the guidance on the weigh-ups over external speakers and extremism is one where the proposed speaker is a self-professed member of a proscribed group. It’s easy to say “well it’s fine to ban them” – what we don’t have here is anything meaningfully helpful on the real cases being handled every year.

    And some of the media’s hardy perennials – universities doing things like signing up to charters with contested “values” or engaging in contested work like decolonisation – are also either carefully contorted or preposterous.

    Hence Example 51 describes a university that [overtly] requires that all teaching materials on British history will represent Britain in a positive light – one of the many not as clever as the authors think they are inversions of the allegations often thrown at woke, UK history hating academics.

    Meanwhile Example 52 nudges and winks at the Stonewall Charter by describing a department of a university that applies for accreditation to a charter body with links to the fossil fuel industry, where the accreditation process requires it to sign up to a set of principles that include:

    Fossil fuel exploration is the best way to meet our future energy needs.

    The text underneath is fascinating. Once you’ve got the “depending on the circumstances” qualifier out of the way, we learn that “institutional endorsement of this principle may discourage expression of legally expressible views”. That’s your “chilling” allegation again.

    But rather than warning against signing it, we merely get:

    …not implementing the provisions of any accreditation that risks undermining free speech and academic freedom is likely to be a reasonably practicable step that university B should now take.

    Replace that with the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, and you can see why the fudge above will satisfy no-one.

    I’ve read the para in the guidance several times now, and each time I read it I resolve different things. Either the university can take a position on contested ideas as long as these aren’t imposed on staff, or it can’t because taking the position on contested ideas would chill staff. Flip a coin.

    It’s that sort of thing that makes the otherwise helpful section that clarifies that you can have a code of conduct for staff and students so silly. Codes of conduct are fine as long as any restrictions on speech reference a legal rule or regime which authorises the interference, that the student, member, member of staff or visiting speaker who is affected by the interference has adequate access to the rule, and if the rule is:

    …formulated with sufficient precision to enable the student, member of staff or

    visiting speaker to foresee the circumstances in which the law would or might be applied, and the likely consequences that might follow.

    I’d tentatively suggest that while that makes sense, OfS’ own guidance represents a set of rules where forseeing how it might respond to a scenario, and the likely consequences that might follow, are clear as mud.

    To clear up protest and disruption rights, OfS stresses viewpoint neutrality, uses its “time, place and manner” confection we first saw last year, and also has a new oft-repeated “essential functions” of higher education qualifier of:

    …learning, teaching, research and the administrative functions and the provider’s or constituent institution’s resources necessary for the above.

    I can’t really call whether OfS thinks the sports hall counts, or whether it thinks the encampment is OK there, but not in a seminar room. Either way, it’s another of those vague definitions that feels open to abuse and interpretation by all sides of a dispute and by OfS itself.

    Another allegation thrown at universities is often about EDI training – Example 53 sets up the idea that an online EDI induction asks if white people are complicit in the structural racism pervading British society, where the only answer marked correct is “True” – a candidate who ticks “False” is required to re-take the test until they have explicitly assented to “True”.

    Maybe I’m being naive, but if that’s grounded in a real example I’d be more worried about that provider’s wider approaches to teaching and assessment than its approach to free speech.

    This university is a vile hell-hole

    A few other fun bits. Fans of reputation management will be disappointed to learn at Example 22 that a social media policy requiring staff to not to post material that is “unnecessarily critical”, coupled with a strong but lawful pop at the provider’s employment practices in a public post on social media, would represent a “protect” policy breach and a “protect” practice breach if the staff member ends up with a warning.

    Meanwhile, notwithstanding the silence over whether full-time SU officers are members or students of a provider, Example 23 has a student representative posting unfavourable commentary on university management on the SU’s website, along with some student testimonials describing students’ experiences of accommodation:

    University Z requires the student to remove this post on the grounds that if the post is reported more widely in the media, this would threaten University Z’s recruitment plans.

    That that would be a breach may feel like a problem for the small number of universities whose senior managers directly threatened SU officers over TEF student submission drafts.

    But more broadly, like so many other examples in the guidance, neither the staff nor the student example get at broader culture issues.

    You might argue that “reasonably practicable steps” in both cases might involve specific commitments to enable dissent, or more explicit encouragement of public discussion over controversial issues.

    You could certainly argue that much of the committee discussion marked “confidential” should be nothing of the sort, and that non-disclosure agreements imposed on settled-with complainants outside of the specific ban on those in sexual misconduct cases should be outlawed.

    You could also argue that in both cases, fears over future funding – your salary for the staff member, your block grant for the SU officer – are classic chillers that need specific steps to be taken. Alas, none of that sort of “why” stuff appears.

    There’s also still a whole bunch of headscratchers. What happens when three different providers have three different sets of policies and codes and all franchise their provision to a fourth provider? Should providers be inspecting the reputation rules in the employment contracts of their degree apprentices or other credit-based work based learning? Now the requirement to tell all new students about all this has been softened, isn’t there still a need to include a lot of FoS material in the still compulsory training to be offered as per E5? And so on.

    In the complaints scheme consultation, there was some controversy over the definition of visiting speakers – including when an invitation manifested as an actual invitation and who was capable of extending one. On this, OfS has actually decided to expand its definition – but neatly sidesteps the Amber Rudd dilemma, namely that while it’s easy to expect people in power to not cancel things because some object, it’s a lot harder to make a volunteer student society run an event that it changes its mind about, regardless of the reason.

    And when the guidance says that OfS would “generally” expect providers to reject public campaigns to punish a student or member of staff for lawful expression of an idea or viewpoint that does not violate any lawful internal regulations, we are still stuck in a situation where some basic principles of democracy for anyone elected on campus – staff, but more often than not, students – come into direct conflict with that expectation even if they are “organised petitions or open letters, an accumulation of spontaneous or organised social media posts, or long-running, focused media campaigns”.

    Changing the culture

    There may well be plenty more to spot in here – legal eagles will certainly be pouring over the document, expectations on all sides may need to be reset, and all in a context of very tight timescales – not least because much of the material implies a need for a much wider review of related policies than just “write a compliant Code”.

    Everyone should also think carefully about the YouGov polling. There are some important caveats to be attached the results and some of the splits based on wording, assumptions and whether it’s even reasonable to expect someone teaching something highly technical to be wading into the sex and gender debate. And whether you’re teaching, researching or otherwise supporting, it must be the case that not all subject areas include as much scope for controversy and “debate” than others.

    But even if you quibble over the N equalling 184, when 24 per cent of those who do not feel free in their teaching cite fear of physical attack, there is a problem that needs urgent interrogation and resolution.

    [Full screen]

    (Thanks as ever to DK for the visualisation of the YouGov polling – sample size 1234 adults and weighted for teaching staff in England, by age, gender, region, and contract type)

    We also still have the debate over the partial repeal of the Act to come too, some additional complexity over complaints to resolve, and as I note above, huge questions like “so can we adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism or not” remain unanswered – as well as a set of inevitable conflicts to come over the practical application of the Supreme Court ruling on the meaning of “woman” in EA2010.

    I should also say that I’ve not had time to properly interrogate the research aspects in the guidance – but we’ll get to that with my colleague James Coe in the coming days.

    What I’m mainly struck by – other than the ways in which a particular set of (contested) views on campus culture have been represented as apolitical – is the way in which, ultimately, much of the material comes down to the regulatory realities of expecting authority to behave.

    In some senses, that’s not unreasonable – governors and leaders hold considerable influence and power over students and staff, and what they ban, or punish, or encourage or celebrate can have important impacts that can be positive for some, and negative for others.

    But to the extent to which there really is a problem with free speech (and academic freedom) on campus, much of it feels much wider and organic than the hermetically sealed campus community assumptions at play in documents of this sort.

    I won’t repeat so many of the things I’ve said on the site over the past few years about confidence being key to a lot of this – suffice to say that the freedom ideal at play in here feels like something that is easier to experience when steps have been taken to improve people’s security, given them time and space to interact meaningfully with each other, and act specifically to boost their bravery.

    Not only should some of the solutions be about resolving conflicts and integrating the concerns into a more stable definition of what it is to be a member of staff or a student, of all the agendas in higher education, it strikes me that this area remains one where solutions and sticks and games of blame abound, but causal analysis feels hopelessly weak.

    In the absence of alternative guidance on the “promote” duty, if I was high up in a university, I’d be resolving to interrogate more carefully and listen more closely before I pretended that my shiny new Code of Practice will do anything other than tick the boxes while making matters worse.

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  • University governance needs more imagination

    University governance needs more imagination

    University governance is not broken – but it does need to change.

    There are places where governance is not working very well. There are places where it is working exceptionally well. And in most cases the governance system works in the same way it always has but with a different and deeper set of issues.

    It may be that the resilience of “business as usual” is not a sign of stability – but a sign of a wider dysfunction.

    University governance is built with committees, a senate (usually), and a council. Information can flow up and down the chain with no more urgency than a stream trickling down a hill. The idea of a university being a deliberate (or slow) decision maker is not a design fault – but the entire purpose of the system.

    The challenge is that the moment we are working in is highly unpredictable. This means that the slowness inherent in the governance of universities is a barrier to making timely decisions. In turn, the lack of speed kills. If universities cannot make decisions quickly then they will be forever fighting yesterday’s battles as even bigger challenges come over the horizon.

    It is true that university governance can be slow. It is also the case that governance is no more than the collective will of people, accepted practice, navigating within a system which is continually changing because of the people and practices within it.

    It is not that governance is fundamentally broken – but that in places, it has not caught up with the world we are in or the issues we are dealing with. The institutional governance memory has largely been about growth, and now it is about changing shape, and in some cases contraction.

    And it is struggling to catch up for three main reasons. Intra-organisational dynamics, regulatory pressure, and a lack of experience and guidance in responding to this particular crisis.

    People

    The relationship between the vice chancellor and the chair of council is a critical one and one that can make or break the quality of governance. Usually, not a policy is passed, a major programme commenced, or in the most detail orientated a contract signed, without the permission of one of these two people.

    That critical relationship cannot be to act, consciously or otherwise, as gatekeepers – and instead needs to work to sharpen the focus of the wider discussion and decision making on the art of the possible in responding to the greatest aspirations and the most sizable threats.

    Sometimes the funnel of chair and vice chancellor contracts the necessary information, context and ambition rather than flipping the funnel around to allow a wider and richer understanding of the specific problem and the potential answers to it.

    A trend across the sector is that the strain placed on organisations is placing significant pressure on this relationship. Sometimes this pressure is forcing the chair and vice chancellor ever closer together and making them engage like never before. On the other hand, this pressure can spill into real disagreements and arguments.

    Neither excessive closeness nor distance is helpful for good decision making. One allows governance by relationship above process which can lead to decisions being too narrow or having considered too few sides. The distance makes issues fraught and honest conversations difficult.

    The role of the registrar has never been more crucial in this dynamic. They are the third leg of the stool that can facilitate private conversation but crucially, particularly now, can turn debates into issues that can be fed into the university governance system with a structure and purpose that reaches beyond the vice chancellor and chair in isolation. The registrar, or equivalent, is too often perceived as clerking or secretariat – rather than a function and role that can influence culture.

    The idea isn’t that governance should be conflict free, but that systems are robust enough to turn conflict into decision. In times like these strongly held disagreement is inevitable, sometimes it is even good as it shows things are being deeply felt, but governance cannot function where personal relationships dominate a governance system. The future is one which – as you might expect us to say – ever more deeply engages the registrar as the translator of discussion into decision.

    Regulators and regulation

    Governments and regulators have not been helpful in enabling the evolution needed in university governance. On the one hand, there is a reflexive defence to non-intervention because universities are autonomous institutions. And to be fair, when regulators and governments do something universities do not like it is also a defence they reach for. Autonomy is true at an institutional level but regulators seek to impede institutional autonomy all of the time through sector wide regulation.

    Taking Covid as an example, the Office for Students introduced a range of temporary market stabilisation measures which covered, amongst a range of other matters, “matters that may affect or distort decision making by prospective or current students in respect of their choice of higher education provider or course.” It isn’t enormously helpful that the regulatory environment can sometimes feel like either no intervention or extreme intervention.

    The space that is interesting is what does regulatory stewardship look like – neither the laissez faire of institutional failure nor the clunking foot of, well, boots on the ground.

    The overriding temptation is to introduce more regulation in a period where the sector is struggling. The logic is that universities are exposed to greater risk and the way to protect students from risk is to build boundaries around what universities can and cannot do.

    The problem is that universities do not have the resources to cope with any more regulatory burden. In fact, owing to the financial pressures they are under, universities have less resources than ever to deal with new regulatory burdens. This isn’t about the bonfire of the redtape, or a chainsaw as some world leaders prefer, but it is about an informed debate about how to sharpen the focus of an enormous regulatory burden.

    Introducing new regulation increases the chances that universities will fall foul of new regulations but that hardly seems like the point. There should be as much energy in reducing red-tape as there is in creating it in order to give universities the space to breathe. The sector is having to reduce its size and it can’t function with a regulatory burden designed for a time when it was much bigger.

    The effect of this would also be to free up the regulators time to focus on a narrower range of issues. The obvious rebuke is which things should any regulator spend less time on. The question, though helpful, misses the wider point that regulatory burden is created as much by approach as by the areas regulators choose to spend their time on. OfS Chief Executive Susan Lapworth made the case back in 2022:

    Your autonomy shouldn’t be a theoretical idea that you mobilise defensively to ward off regulation. It should be a living, active practice that you use to make your own decisions with confidence. So I’m encouraging you to think about whether the idea of self-directed autonomy might be a useful way to think about how you respond to regulation.

    Three years on, it’s fair to say that governing bodies often do not feel like they have sufficient insight into what the regulator believes to be the appropriate exercise of that autonomy. For example, it would be enormously useful for the OfS to provide an annual summary of the key issues they are dealing with – a bit like the OIA’s annual report on trends and outcomes.

    Reducing regulation, revealing potholes, and more clearly differentiating between issues of governance and those of leadership will help. It is also important to be clear that at times the sector has been caught in a trap of doing the same activity and expecting different results.

    Partners

    Even in the most extreme circumstances the sector now finds itself in radical discussions couched in terms of partnerships with the people that the sector has always worked with. It might be that some of the answers to the current crisis are not within the sector.

    There is an opportunity to explore partnerships with different kinds of public and private organisations. Traditionally, in universities, these have grown up within schools and faculties as research or teaching partnerships. It’s less frequent that senior leaders and their governing bodies seek out partnerships of mutual convenience to address a challenge.

    Now would seem to be the time to look at whether there may be partnerships with private providers on pre-degree teaching, PBSAs on addressing housing shortages, local authorities on a place-based marketing campaign, the local chambers of commerce on brokering land assets, and so on.

    Again, the challenge in realising this work is a governing one. Universities just have less muscle memory of trying to building these kinds of strategic partnerships – more imaginative partnerships require a different set of approaches.

    The first is absolute clarity from governing bodies regarding the problems they are trying to solve – and the discipline to stay within those core priorities. It is not enough to say that the problem is cash shortage caused by recruitment challenges. The deeper question is which qualifications are recruited to, the types of programmes on offer, and how clearly the link between income and programmes can be defined. Only then is it possible to look at which partners might be worth working with.

    The other challenge is that the regulatory environment is not always amenable to partnership. There is the issue of CMA compliance, where providers are reluctant to enter sensible conversations for fear of falling foul of regulations. A simple guide on the framework for who universities can work with in what circumstances would go far. Clearly, the current situation where the CMA is obligated to maintain the rules of a market which isn’t functioning properly is far from ideal.

    Breaking not broken

    People, regulation, and new partners are the three ingredients to move the university governance cycle on. It is easy to say universities need outside direction and internal commitment to meet the moment we’re in – but harder to pull off in practice.

    What universities have in their favour is that they have structures and processes that have been tried and tested. Now is the moment to adapt them.

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  • What we’ll be talking about at The Festival of Higher Education 2025

    What we’ll be talking about at The Festival of Higher Education 2025

    We’re not going to lie, we had to think really hard about what we want this year’s Festival of Higher Education to be about.

    If you’ve been to the event – returning to the University of London’s iconic Senate House this November – you’ll know by now to expect thoughtful analysis, discussion of the biggest issues facing higher education, and to hear from some key people who are leading and influencing the policy and political landscape. You can also expect to connect with people outside your professional area of work, find out about something new, drink buckets of coffee, and enjoy a jolly good party, if that’s your thing.

    None of that’s changing, obviously. Our reflections have been much more about the journey the HE sector has been on in the last year, and the potentially tough road ahead. The Westminster government has promised a package of higher education reform, possibly pegged to an annual inflationary uplift in undergraduate tuition fees, but there will most likely be no major injection of public funds. The straws in the wind from the last few years suggest that the steady trend in recruitment towards growth in home and international students is ebbing.

    When will there be good news?

    That means that across the UK higher education institutions are having to think hard, perhaps harder than they ever have before, about their core purpose and mission, about securing quality and excellence in education, continuing cutting edge research and scholarship, and deepening their compacts with their communities and regions to make the value of that education and research real to people.

    There is both potential and pain in that journey. If the HE sector was going to transform it would rather not be doing it under these circumstances. But with the right ideas and energy higher education should be able not just to cling on but to thrive – with a renewed sense of purpose and new ways of achieving the core mission for the generations to come.

    We think that potential can better be achieved through connection – with external perspectives, with the articulation of shared challenges, and with people and ideas who might be able to help. And that’s what we will be focused on as we develop the agenda for this year’s Festival of Higher Education. We can guarantee that this year’s agenda will be packed full of fresh ideas, innovation and inspiration!

    The Festival should offer the chance to hear from voices outside the sector who can speak to the wider public policy imperatives and global trends that UK higher education will need to think through. It should create space for deep reflection and new perspectives on the organisational challenges higher education is grappling with. And it should open up new thinking about the connections and relationships inside institutions and how to sustain and enhance academic community during times of change.

    Thematic, systematic

    Making that concrete, we think there are several really key policy themes that need to be unpacked.

    Economic growth and regional/national development – the number one priority of not just the Westminster government but arguably of all governments. Higher education is one of the most important tools available in efforts to create flourishing economic ecosystems but we need a stronger articulation of the role of higher education in developing skilled graduates, how institutions connect up in their regions and nationally, and how the innovation grown in universities is seeded in the wider economy.

    The regulatory environment and the relationship between the state and higher education institutions – with a new chair at the Office for Students, Medr implementing a new regulatory framework in Wales and reorganisation of FE/HE sector agencies in Scotland there are wide open questions about how best to find the balance between public accountability for quality, access and governance, and institutional freedom to innovate and offer something distinctive and sustainable – including deciding what not to do.

    The future student learning experience – as labour market opportunities for graduates evolve in response to AI, costs of study put increasing pressure on the traditional HE route and on students’ wellbeing, and governments consider how to upskill and reskill to increase opportunity throughout individuals’ lives, higher education institutions will need to think about the kind of educational and personal development experiences future students will need to help them build the lives they want.

    Organisational effectiveness of higher education institutions – it doesn’t sound that inspiring when you put it that way, but looking at challenges around effective governance and leadership for the current moment, the drive for efficiency and better use of data to inform decisions, and most importantly how higher education professionals experience their working environment, and are meaningfully engaged in change agendas, you realise just how important a theme this is. Evolution and adaptation might not be enough for many institutions – leadership teams and governing bodies will need to equip themselves to drive transformational change.

    Higher education in an increasingly uncertain world – while the Trump administration attacks US universities the shockwaves are being felt in the UK and beyond. The ongoing war between Russia and Ukraine; the growing risk of conflict between China and Taiwan; conflict in Gaza and wider Middle East tensions all have an impact on campuses in the UK. How can UK universities chart a path through this global turmoil?

    We’re certainly not claiming that a single event will answer all these challenges in their entirety. But we think these are the issues that are driving higher education change – and for that change to be experienced as renewal rather than decline, there’s still plenty of value in taking the time to talk and think about them outside your normal day to day.

    We remain immensely hopeful about the future for UK higher education – and we promise to create an event that you can sign up to now, confident that we’ll be working to build two days of insight, inspiration and fun that will be a highlight of your year. Join us – you won’t be disappointed.

    Reduced rate early bird tickets for the Festival of Higher Education are available until Friday 20 June and thereafter at the normal rate – click here for more information and to buy your ticket.

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  • Can we use LEO in regulation?

    Can we use LEO in regulation?

    The Institute for Fiscal Studies answers the last government’s question on earnings data in regulation. David Kernohan reads along

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  • The Harvard experience: could it happen here?

    The Harvard experience: could it happen here?

    by GR Evans

    On 1 May 2025 The Guardian headline read: ‘Trump administration exploits landmark civil rights act to fight universities’ diversity initiatives‘. What prevents a British King or Prime Minister from attempting to impose sanctions on universities?

    US higher education is exposed both to presidential and to state interference. Government powers to intervene in US HE reside in presidential control of federal funding, which may come with conditions. Trump cannot simply shut down the Department of Education by executive order but it seems he can direct that the Department’s grant- and loan-giving functions are taken on by another government department.

    As early as 2023 Donald Trump had said ‘We are going to choke off the money to schools that aid the Marxist assault on our American heritage and on Western civilization itself’. In response to campus protest he removed $400m of Columbia’s federal funding in March 2025 on the grounds that the University had failed to address the alleged ‘persistent harassment of Jewish students’. In April 2025 he gave orders to Ivy League universities, threatening withdrawal of funding if their teaching and research did not comply with Government policy as the President defined it and that their appointments should have regard to those expectations.

    On 8 April the Washington Examiner reported a planned attempt to counter such action by legislation, that is to prevent Trump’s directives taking effect by amending the Higher Education Act of 1965 ‘to prohibit political litmus tests in accreditation of institutions of higher education and for other purposes.  On 10 April the Chronicle of Higher Education foresaw an Executive Order.

    A letter to Harvard dated 11 April signed on behalf of the Department of Education and other federal agencies asserted that the United States had ‘invested in Harvard University’s operations’ because of ‘the value to the country’ of its work, but warned that ‘an investment is not an entitlement.’ This letter, if accepted, was to constitute ‘an agreement in principle’. Governance was to be ‘exclusively’ in the hands of those ‘tenured professors’ and ‘senior leadership’ who were ‘committed to the ‘changes indicated in this letter’. Its ‘hiring and related data’ and its student ‘admissions data’ were to be ‘shared with the federal Government’. International students ‘hostile to American values’ were not to be admitted and those already admitted  were to be reported to federal authorities. Policies on diversity, equity and inclusion were to end and student protest restricted.

    Harvard and other Ivy League Universities were indignant. Harvard in particular rode the headlines for some days, objecting to the Government demand that it immediately agree:

    to implement the Trump administration’s demands to overhaul the University’s governance and leadership, academic programs, admissions system, hiring process, and discipline system—with the promise of more demands to come

    and thus ‘overtly seek to impose on Harvard University political views and policy preferences advanced by the Trump administration and commit the University to punishing disfavored speech’. There were reports that US academics were seeking to escape to employment in Canada,  the UK or Europe.

    The American Association of Colleges and Universities(AACU), founded in 1915 as the Association of American Colleges, now has a wide-ranging  and international membership. It is a loose counterpart to the British Universities UK which also has a membership including an extensive range of higher education providers. The AACU issued a Call for Constructive Engagement on 22 April, 2025, but litigation was already in hand, with the President and Fellows of Harvard seeking declaratory and injunctive relief on 21 April. Harvard is listed as the plaintiff with a considerable list of defendants identified (paras 15-30). In its submission Harvard argued that:

    American institutions of higher learning have in common the essential freedom to determine, on academic grounds, whom to admit and what is taught, how, and by whom

    and that such ‘American institutions of higher learning’ were ‘essential to American prosperity’.

    It stressed a ‘longstanding collaboration between universities such as Harvard and the federal government dating back to the Second World War’. It pointed to Harvard’s success in using federal funding to achieving significant research outcomes. The recent ‘broad attack of Government’ on ‘universities across America’, not only on Harvard and the other Ivy League Universities listed, had affected the ‘critical funding partnerships’ that made this invaluable research possible.

    This case was being brought because, it was argued, the Government had been using ‘the withholding of federal funding as leverage to gain control of academic decision making at Harvard’. Harvard cited the Government’s letter of 11 April as demanding governance reform and a ‘third-party’ audit ‘of the viewpoints of Harvard’s student body, faculty, and staff’, followed by the hiring of new Faculty and admission of students whose views were satisfactory to the Government. It had asserted that teaching should be ‘to the Government’s satisfaction as determined in the Government’s sole discretion’ and to that end Harvard  should ‘terminate or reform its academic “programs” to the Government’s liking’. The Government had since ‘launched multiple investigations and other actions against Harvard’.  

    The Government had ‘within hours of the Freeze Order ‘ended ‘$2.2 billion in multiyear grants and $60M in multiyear contract value to Harvard University’ and Harvard began receiving ‘stop work orders’. In order to bring a case against the Government it was essential for Harvard to establish that the Government’s action constituted a breach of public law. To that end it stated that the ‘Court has jurisdiction over Harvard’s claims’ because the University did not ‘seek money damages or an order mandating specific performance of any contract’, but:

    an order declaring unlawful and setting aside sweeping agency action taken in violation of Harvard’s constitutional rights under the First Amendment and its rights guaranteed by statute and regulation.

    Harvard stressed that even though it is a private university its research is federally funded ‘through a grant process administered by federal agencies’. It cited Title VI of the Civil Rights Act of 1964 which requires ‘a detailed and mandatory statutory framework’ of procedures to be followed. Harvard had its own procedures, added to or created in August, September and November 2024. Specifically in March 2025, Harvard released updated “Frequently Asked Questions” clarifying that both Jewish and Israeli identities are covered by the University’s Non-Discrimination Policy.

    Harvard explained that it had attempted ‘collaboration’ in the weeks following the government letter and the Federal Task Force’s press release announcing campus visits. It had sought to arrange a meeting on the campus and that was scheduled for late April 2025, yet on April 20 it was reported that the ‘Trump administration has grown so furious with Harvard University’ that ‘it is planning to pull an additional $1 billion of the school’s funding for health research.’

    Trump’s threatened sanctions concerned the future of Harvard’s funding. Harvard has endowments  of c$53 billion so any threat from Trump to reduce federal funding posed a limited risk to its future. However he made a further proposal on 18 April to remove Harvard’s exemption from Government tax on its income, which could have hit its normal operation harder.

    The US counterpart to HMRC is its Internal Revenue Service (IRS). The IRS may grant tax-exempt status to a charitable, religious, scientific or literary organization, on condition that it refrains from campaigning or seeking to modify legislation. However, the President is not permitted to direct the IRS to conduct an investigation or audit. To that extent the counterbalancing of executive, legislative and judicial powers in the US seems to be holding.

    Harvard was making its challenge at a time when the balance between the executive and the judiciary in the US had come into question in a number of cases where Trump’s executive orders sought to override the courts. It claimed that ‘the Freeze Order is part of a broader effort by the Government to punish Harvard for protecting its constitutional rights. … multiple news outlets have reported that the Internal Revenue Service is considering revoking its recognition of Harvard’s tax exempt status’. Representing 86 universities, the Presidents’ Alliance has filed an Amicus brief supporting the litigation.

    Harvard sought in its litigation to have the Freeze Order declared unconstitutional and also the ‘unconstitutional conditions’ sought to be imposed  in the April 3 and April 11 and any action taken under it so far, also banning any future orders in the same vein. It pleaded six Counts, first a violation of the First Amendment in that the letters had targeted the ‘academic content that Harvard professors “teach students”’. Count 2 was that ‘even if the prerequisites of review under the Administrative Procedure Act were not satisfied, federal courts have the “equitable power” to “enjoin unconstitutional actions by state and federal officers.”’ Count 3 was that Title VI does not permit wholesale freezing of a recipient’s federal financial assistance. Instead, it requires that a “refusal to grant or to continue assistance” be “limited in its effect to the particular program, or part thereof, in which . . . noncompliance has been so found.” Count 4 was the Government’s failure to ‘comply with their own regulations before freezing Harvard’s federal financial assistance’. Count 5 alleged that the action had been arbitrary and capricious and Count 6 that it had been ultra vires.

    At Indiana University a professor of Germanic studies was recently investigated under a state law after a student accused him of speech in support of Palestine.

    Could this happen in the UK?

    English higher education providers have their autonomy protected by the Higher Education and Research Act (2017)s.2 [HERA]. This legislation created the Office for Students, a non-departmental public body, whose nearest US counterpart is the Higher Learning Commission, an independent agency founded in 1895 which accredits higher education institutions. The University of Michigan, for example seeks, renewal of its accreditation from the Higher Learning Commission every ten years.

    The Office for Students is both regulator and funder, and distributes Government funding to higher education providers. This may take into account ‘particular policy areas and government priorities. Yet HERA outlaws any attempt by the OfS to impose the restrictions Trump sought to impose on the universities of the USA.  English higher education providers must be free:

    (i) to determine the content of particular courses and the manner in which they are taught, supervised and assessed,

    (ii) to determine the criteria for the selection, appointment and dismissal of academic staff and apply those criteria in particular cases, and

    (iii) to determine the criteria for the admission of students and apply those criteria in particular cases.

    Academic staff in England also enjoy ‘freedom within the law’:

    (i) to question and test received wisdom, and

    (ii) to put forward new ideas and controversial or unpopular opinions,

    without placing themselves in jeopardy of losing their jobs or privileges they may have at the providers.

    There is some Government oversight. In protecting ‘the institutional autonomy of English higher e providers’, the Office for Students is subject to the ‘guidance’ of the Secretary of State, though Government requirements are held off by the legislative fencing.  The guidance of a higher education provider by the Office for Students:

    must not relate to—

    (a) particular parts of courses of study,

    (b) the content of such courses,

    (c) the manner in which they are taught, supervised or assessed,

    (d) the criteria for the selection, appointment or dismissal of academic staff, or how they are applied, or

    (e) the criteria for the admission of students, or how they are applied.

    The legislation adds that:

    guidance framed by reference to a particular course of study must not guide the OfS to perform a function in a way which prohibits or requires the provision of a particular course of study.

    This seems to place universities safely out of reach of the kind of restrictions Trump sought to impose on Harvard and other Ivy League Universities, but the Office for Students is potentially able not only to set its Government funding levels but also affect its students’ access to loans from the Student Loans Company. That can certainly be at risk, for example in the case of the Oxford Business College, whose funding (via franchise arrangements) was blocked in April 2025 when it was found to have abused the student loan system by admitting unqualified students. (US accreditors do hold a lot of power, because universities must be accredited by a federally recognized agency in order to access federal student aid.)

    Access to Government funding through the OfS requires listing by the Office for Students on its Register as an approved provider. The Office for Students did not impose its Conditions of Registration on pre-existing universities before including them in 2018 on its first Register under HERA. It simply treated them as proven acceptable providers of higher education. Each university duly publishes an account of its compliance (eg at Oxford) with the requirements which enable it to remain on the Office for Students Register. What might happen if they were found not to have done so? Short of removal from its Register the OfS has been known to impose fines, notably of more than £500,000 in the recent case of the University of Sussex when it was alleged to have failed to follow its own procedures designed to protect academic freedom.

    Government oversight of the work of HE providers may overlap with or sit uneasily beside forms of ‘accreditation’ and ’qualification’. The accreditation of qualifications in the UK may be the responsibility of a number of ‘agencies’ external to HE providers, some of which are bodies offering professional qualifications. For example the Solicitors Regulation Authority keeps its own register of qualified solicitors. A university degree may not constitute a ‘qualification’ without the completion of further recognised study, some of which may be provided by the university itself, for example the Postgraduate Certificate in Education.

    An area of ‘accreditation’ undergoing significant reform and expansion in the UK covers ‘skills’, including  apprenticeships. Not all universities offer their own apprenticeships, though they may recognise some of those available from other providers at Levels 4 and 5. Nevertheless ‘skills’ are potentially at risk of Government intervention. At the beginning of March 2025, the House of Lords was debating whether  ‘skills’ might benefit from the establishment of a ‘new executive agency’.

    It was recognised that there would need to be a report from the Secretary of State  ‘containing draft proposals’ for an agency, ‘to be known as “Skills England”. Ian Sollom MPobjected that that that would represent ‘a significant centralising of power in the hands of the Secretary of State, without providing proper mechanisms for parliamentary oversight or accountability.’ A ‘statutory, departmental body would have more clout’, he argued.

    An Institute for Apprenticeships and Technical Education (IfATE) already existed, but it was concerned with qualifications up to Level 5, short of degree-level 6. ‘Skills England’ was intended to begin work in April 2025. ‘When Skills England calls, will anybody answer the phone?’ asked HEPI, pointing to ‘limited autonomy, complex cross-departmental coordination, tensions between national and local priorities, and competing objectives between foundational and higher-level skills need’. Its ‘cross-departmental working’ with Government was unclear.

    It looks as though some universities, at least, are safe from any initiative to interfere from above with the right to self-government and to determine what to teach and research. Harvard records a ‘revenue base’ of $65billion, with ‘federal funding ‘ as its largest source of support for research. The research income of Oxford, for example, is £778m, with commercial research income of £148m. That cannot compare with Harvard, but at least Oxford and some others will remain free to choose how to use that income for its academic purposes.

    This is a modified version of an article first published by the Oxford Magazine No 477 in May 2025, republished with the permission of the editor and author.

    SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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  • A new regulatory framework is more than Medr by numbers

    A new regulatory framework is more than Medr by numbers

    Medr, the new-ish regulator of tertiary education in Wales, is consulting on its new regulatory system (including conditions of registration and funding, and a quality framework).

    You have until 5pm 18 July 2025 to offer comments on any of the many ideas or potential requirements contained within – there’s also two consultation events to look forward to in early June.

    Regulatory approach

    As we are already aware from the strategy, Medr intends to be a principles-based regulator (learning, collaboration, inclusion, excellence) but this has been finessed into a regulatory philosophy that:

    integrates the strengths of both rules-based (compliance) and outcome-based regulation (continuous improvement)

    As such we also get (in Annex A) a set of regulatory principles that can support this best-of-both-worlds position. The new regulator commits to providing clear guidance and resources, transparent communication, minimising burden, the collaborative development of regulations and processes, regular engagement, proactive monitoring, legal and directive enforcement action, the promotion of best practice, innovation and “responsiveness”, and resilience.

    That’s what the sector gets, but this is a two way thing. In return Medr expects you to offer a commitment to compliance and integrity, to engage with the guidance, act in a transparent way (regarding self-reporting of issues – a “no alarms and no surprises” approach), practice proactive risk management and continuous improvement, collaborate with stakeholders, and respect the authority of Medr and its interventions.

    It’s all nicely aspirational, and (with half an eye on a similar regulator just over Offa’s Dyke) one appropriately based on communication and collaboration. Whatever Medr ends up being, it clearly does not want an antagonistic or suspicious relationship with the sector it regulates.

    Getting stuck in

    The majority of the rest of Annex A deals directly with when and where Medr will intervene. Are you even a regulator if you can’t step in to sort out non-compliance and other outbreaks of outright foolishness? Medr will have conditions of registration and conditions of funding, both of which have statutory scope for intervention – plus other powers to deal with providers it neither registers nor funds (“external providers”, which include those involved in franchise and partnership activities, and are not limited to those in Wales).

    Some of these powers are hangovers from the Higher Education (Wales) 2015 Act, which are already in force – the intention is that the remaining (Tertiary Education and Research Act 2022) powers will largely kick off from 1 August 2026, alongside the new conditions of funding. At this point the TERA 22 powers will supersede the relevant remaining HEW 2015 provision.

    The spurs to intervention are familiar from TERA. The decision to intervene will be primarily based on six factors: seriousness, persistence, provider actions, context, risk, and statutory duties – there’s no set weight accorded to any of them, and the regulator reserves the right to use others as required.

    A range of actions is open in the event of an infraction – ranging from low-level intervention (advice and assistance) to removal from the register and withdrawal of funding. In between these you may see enhanced monitoring, action plans, commissioned reports and other examples of what is euphemistically termed “engagement”. A decision to intervene will be communicated “clearly” to a provider, and Medr “may decide” to publish details of interventions – balancing the potential risks to the provider against the need to promote compliance.

    Specific ongoing registration conditions are also a thing – for registered providers only, obviously – and all of these will be published, as will any variation to conditions. The consultation document bristles with flowcharts and diagrams, setting out clearly the scope for review and appeal for each type of appeal.

    One novelty for those familiar with the English system is the ability of the regulator to refer compliance issues to Welsh Ministers – this specifically applies to governance issues or where a provider is performing “significantly less well than it might in all the circumstances be reasonably expected to perform, or is failing or likely to fail to give an acceptable standard of education or training”. That’s a masterpiece of drafting which offers a lot of scope for government intervention.

    Regulatory framework

    Where would a regulator be without a regulatory framework? Despite a lot of other important aspects in this collection of documents, the statement of conditions of registration in Annex B will likely attract the most attention.

    Financial sustainability is front and centre, with governance and management following close behind. These two also attract supplemental guidance on financial management, financial commitment thresholds, estates management, and charity regulation. Other conditions include quality and continuous improvement, regard to advice and guidance, information provided to prospective students, fee limits, notifications of changes, and charitable status – and there’s further supplemental guidance on reportable events.

    Medr intends to be a risk-based regulator too – and we get an overview of the kinds of monitoring activity that might be in place to support these determinations of risk. There will be an annual assurance return for registered providers, which essentially assures the regulator that the provider’s governing body has done its own assurance of compliance. The rest of the returns are listed as options, but we can feel confident in seeing a financial assurance return, and various data returns, as core – with various other documentation requested on a more adhoc basis.

    And – yes – there will be reportable events: serious incidents that must be reported within five working days, notifiable (less serious) stuff on a “regular basis”. There’s a table in annex B (table 1) but this is broad and non-exhaustive.

    There’s honestly not much in the conditions of registration that is surprising. It is notable that Medr will still need to be told about new financial commitments, either based on a threshold or while in “increased engagement”, and a need to report when it uses assets acquired using public funds as security on financial commitments (it’s comforting to know that exchequer interest is still a thing, in Wales at least).

    The quality and continuous improvement condition is admirably broad – covering the involvement of students in quality assurance processes, with their views taken into account (including a requirement for representation on governing bodies). Responsibility for quality is expected to go all the way up to board level, and the provider is expected to actively engage with external quality assurance. Add in continuous improvement and an expectation of professional development for all staff involved in supporting students and you have an impressively robust framework.

    We need also to discuss the meaning of “guidance” within the Medr expanded universe – providers need to be clear about how they have responded to regulatory guidance and justify any deviation. There’s a specific condition of registration just for that.

    Quality framework

    Annex C provides a quality framework, which underpins and expands on the condition of registration. Medr has a duty to monitor and promote improvement in the quality and standards of quality in tertiary education, and the option in TERA 2022 to publish a framework like this one. It covers the design and delivery of the curriculum, the quality of support offered to learners, arrangements to promote active learner engagement (there’s a learner engagement code out for consultation in the autumn), and the promotion of wellbeing and welfare among learners.

    For now, existing monitoring and engagement plans (Estyn and the QAA) will continue, although Medr has indicated to both that it would like to see methodologies and approaches move closer together across the full regulatory ambit. But:

    In due course we will need to determine whether or not we should formally designate a quality body to assess higher education. Work on this will be carried out to inform the next cycle of external quality assessments. We will also consider whether to adopt a common cycle length for the assessment of all tertiary education.

    There is clarity that the UK Quality Code applies to higher education in Wales, and that internal quality assurance processes need to align to the European Standards and Guidelines for Quality Assurance (ESG) – external quality assurance arrangements currently do, and will continue to, align with ESG as well.

    To follow

    Phase two of this series of consultations will come in October 2025 – followed by registrations opening in the spring of 2026 with the register launched in August of that year. As we’ve seen, bits of the conditions of registration kick in from 1 August 2027 – at which point everything pre-Medr fades into the storied history of Welsh tertiary education.

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  • OfS continues to sound the alarm on the financial sustainability of English higher education

    OfS continues to sound the alarm on the financial sustainability of English higher education

    For the third year in a row, the English higher education sector’s collective financial performance is in decline.

    That is the conclusion of the latest annual assessment of the sector’s financial sustainability from the Office for Students (OfS), based on finance returns for 2023-24.

    Overall, after stiff warnings this time last year about the risks of system-wide provider deficits if projected student number growth failed to materialise, OfS says that many providers are taking steps to manage their finances, by reducing costs and downgrading recruitment growth projections. It remains unlikely, says OfS, that a large provider will become insolvent in the coming financial year.

    But 43 per cent of providers are forecasting a deficit for the current financial year 2024–25, and there is an overall decline in overall surplus and liquidity – albeit with the expectation of growth in the years ahead. While larger teaching-intensive and medium sized providers were more likely to report a deficit, there is also quite a lot of variation between providers in different groups – meaning that institution type is not a reliable guide to financial circumstances.

    Recruitment woes

    Student recruitment is the most material driver of financial pressure, specifically, a home and international student market that appears insufficient to fill the number of places institutions aspire to offer. The broad trend of institutions forecasting student number growth in hopes of offsetting rising costs – including national insurance and pension contributions – makes it unlikely that all will achieve their ambitions. There’s evidence that the sector has scaled back its expectations, with aggregate forecast growth until 2027–28 lower than previous forecasts. But OfS warns that the aggregate estimate of an increase of 26 per cent in UK entrants and 19.5 per cent in non-UK entrants between 2023–24 and 2027–28 remains too optimistic.

    Questioned further on this phenomenon, OfS Director of Regulation Philippa Pickford noted that there is significant variation in forecasts between different providers, and that given the wider volatility in student recruitment it can be really quite difficult to project future numbers. The important thing, she stressed, is that providers plan for a range of possible scenarios, and have a mitigation plan in place if projections are not achieved. She added that OfS is considering whether it might give more information to providers upfront about the range of scenarios it expects to see evidence of having been considered.

    Storing up trouble

    While the focus of the financial sustainability is always going to be on the institutional failure scenario, arguably an equally significant concern is the accumulation of underlying structural weaknesses caused by year-on-year financial pressures. OfS identifies risks around deferral of estates maintenance, suspension of planned physical or digital infrastructure investments, and a significant increase in subcontractual (franchising) arrangements that require robust governance.

    All this is manifesting in some low-key emergency finance measures such as relying on lending to support operating cashflow where there is low liquidity at points in the year, selling assets, renegotiation of terms of covenants with lenders, or seeking injections of cash from donors, benefactors or principal shareholders. Generally, and understandably, the finance lending terms available to the sector are much more limited than they have been in the past and the cost of borrowing has risen. The general increases in uncertainty are manifest in the increased work auditors are doing to be able to confirm that institutions remain a “going concern.” Such measures can address short-term financial challenges but in most cases they are not a viable long term strategy for sustainability.

    OfS reiterates the message that providers are obligated to be financially sustainable while delivering a high quality student learning experience and following through on all commitments made to students – but it’s clear that frontline services are in the frame for cuts and/or that there is a limit to the ability to reduce day-to-day spending or close courses even when they are loss-making if there is likely to be an impact on institutional mission and reputation. Discussions between OfS and directors of finance point to a range of wider challenges around increased need for student support, the difficulty of recruiting and retaining staff, the increasing costs of conducting research, and shifts in the student accommodation rental market. Some even pointed to the cost of investment in AI-detection software.

    The future is murky

    The bigger picture points to long term (albeit unpredictable) shifts in the underlying financial model for HE. Philippa Pickford’s view is that institutions may need to shift from taking a short-term view of financial risks to a longer-term horizon, and will need to grapple with what a sustainable long term future for the institution looks like if the market looks different from what they have been used to. Deferral of capital investment, for example, may keep things going for a year or two but it can’t be put off indefinitely. There’s a hint in the report that some institutions may need to invest in greater skills, expertise and capacity to understand and navigate this complicated financial territory – and OfS is taking an increased interest in multi-year trends in financial performance, estates data and capital investment horizons in its discussions with providers.

    The situation remains, however, that OfS is primarily empowered to monitor, discuss, convene and, if necessary, issue directives relating to student protection. Activity of this nature has ramped up considerably in the past year, but financial sustainability remains, at base, individual providers’ responsibility – and system-level intervention on things like changing patterns of provision, or management of the wider impact of institutional insolvency, nobody in particular’s. Government is, of course, aware of the problem but has not yet given a steer on whether its upcoming HE reform measures, expected to be published in the summer after the spending review, will grasp the nettle in delivering the support for transformation the sector hopes to see.

    OfS has now said that it is talking to government to put forward the view that there should be a special administration regime for higher education. This signals that while the immediate risks of institutional closure or “disorderly market exit” are low, the pressures on a small number of institutions remain considerable. On the assumption of little or very modest changes in the funding model in the upcoming spending review, and ongoing competitive pressures, there will almost inevitably be losers.

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  • What is a ‘governing document’ in the University of Sussex?

    What is a ‘governing document’ in the University of Sussex?

    by GR Evans

    The  Office for Students has found that the Trans and Non-Binary Equality Policy Statement  of the University of Sussex involves breach of two of the relevant OfS Regulatory Requirements in late March 2025, and imposed an unprecedentedly substantial fine. The first of those criticised (OfS Condition E1) concerns the duty to protect freedom of speech and academic freedom:

    The provider’s governing documents must uphold the public interest governance principles that are applicable to the provider.

    A further OfS Condition (E2) requires that ‘the provider must have in place adequate and effective management and governance arrangements’ so as  to ‘operate in accordance with its governing documents’.

    On 9 April 2025 the Vice-Chancellor of the University of Sussex published a fierce criticism of the unprecedented decision of Office for Students that it had failed to comply with one of its own ‘policies’. The Vice-Chancellor considered that the policy in question was:

    a really small statement, of which we have many dozens, if not hundreds, of similar policies and statements. Whereas the governing documents of the university  are its charter and statutes and regulations.

    There was press coverage about the ensuing uncertainty. UniversitiesUK, as the ‘collective voice’ of universities promised to write to the OfS to ask for clarity as its decision appears to find that it is a ‘failure to uphold freedom of speech and academic freedom’ if a university has ‘policies’ to prevent ‘abusive, bullying and harassing’ material or speech.

    The University has notified the OfS of its intention to apply for judicial review.  Among the grounds Sussex relies on is that the Office for Students did not have powers to treat ‘documents that are not a provider’s “governing documents”’ as creating the public interest governance condition necessary to permit the OfS to seek judicial review. The OfS defines ‘governing documents’ somewhat inadequately as ‘set out in’ its ‘Regulatory Framework’, where  ‘the provider’s governing documents must uphold the public interest governance principles that are applicable to the provider. In this case it held:

    that the University of Sussex breached ongoing condition of registration E2 because it failed to have adequate and effective management and governance arrangements in place to ensure that it operates in accordance with its governing documents.

    The definition of ‘governing documents’ is therefore of the first importance if a precedent is to be set by this OfS decision. The Higher Education and Research Act (2017) s.3(8)(a) protects the autonomy of higher education providers, defining it as ‘the freedom of English higher education providers within the law to conduct their day to day management in an effective and competent way’. Sussex was created among the batch of new universities of the 1960s.

    The Act created a new Regulator, the Office for Students, stating that the Regulator ‘must have regard to’ the ‘need to protect the institutional autonomy of English higher education providers’. This requires a fine balance if the OfS is to avoid intrusion upon a provider’s autonomy.

    The institutional autonomy of higher education providers gives them control of the drafting of their internal legislation. External authorities may insist on particular points in certain cases. For example medical qualifications set by a provider cannot constitute a qualification to be a doctor unless they are recognised by the General Medical Council.  But the right to create its own rules (within the law) largely lies with the provider, who may design them  and order them in its own preferred hierarchy.  The Office for Students may not interfere.

    Nevertheless the creation of ‘governing documents’ must carry certain implications about the source of the internal or external authority to create, review or amend them.  It is suggested that ‘Sussex contends that these are matters for our old friend the Visitor, a traditional legal role in UK university governance, who in Sussex’s case is the actual King’, and:

    cites longstanding legal authority confirming that the Visitor has exclusive jurisdiction over internal governance questions, including interpretation and application of the university’s own rules, and says that unless Parliament clearly removes or overrides that jurisdiction, external bodies like OfS can’t interfere.

    Where the Monarch is not the Visitor it is normally a Bishop.

    However a Visitor is not essential to the law-making of a higher education provider. ‘Alternative providers’ may not have Visitors. As eleemosynary bodies their Colleges normally have Visitors of their own but neither Oxford nor Cambridge has a Visitor. Under the Oxford and Cambridge Universities Act of 2023, both Universities create their own Statutes. In Oxford’s case those which are King-in-Council Statutes require the consent of the Privy Council on behalf of the King. In Cambridge all its Statutes require that consent to their creation or modification. Their subordinate legislation, most Regulations in Oxford (some of Oxford’s Regulations may be created by its Council) and Special Ordinances and Ordinances in Cambridge, simply require the consent of their governing bodies, Oxford’s Congregation of over 5000 and Cambridge’s Regent House of over 7000 members.

    The rules at the top of a provider’s hierarchies may constitute governing documents but it is far from clear how far down that status applies. For purposes of management ‘procedural or process documents’ explain the required ways of doing things and the processes which must be followed’. Among these are Codes of Practice and ‘Guidance documents’. This seems to be where the Trans and Non-Binary Equality Policy Statement fits, as approved by the Executive Group in 2018, 2022, 2023 and 2024 and placed under the heading of Equality, Diversity and Inclusion(revised in 2022, 2023 and 2024).  Is it a governing document in this lowly position?

    Also found relevant by the Office for Students in the Sussex case was the exercise of powers of delegation. It identified ‘a pattern of decisions taken at the university to adopt and/or revise policies without proper delegated authority’, both that its:

    Prevent Steering Group approved and adopted the 2021 version of the University’s Freedom of Speech Code of Practice despite not having delegated authority to do so

    and also that ‘the 2023 version of the External Speakers Procedure was approved by the University Executive Group, despite that group not having delegated authority to do so’.

    Like similar universities Sussex has an Executive Team composed of a Vice-Chancellor, Pro-Vice-Chancellors, their deputies, Deans of Schools and Faculties, with senior academic-related staff headed by a University Secretary, a Financial Officer and various Directors. These are not directly responsible for framing its legislation but may have authority to apply it, though not necessarily powers to delegate its application.

    The Office for Students could turn to the University’s rules about delegation in framing its criticism. Sussex has given thought to that. Sussex’s Council approved a Scheme of Delegation in March 2018. ‘Responsibility’ may be delegated by the Council except for the appointment of the Vice-Chancellor and President; ‘the variation, amendment or revocation of the Charter or Statutes’; and responsibility for approving the University’s annual audited accounts or the appointment of Auditors. The Scheme of Delegation clarifies where roles and responsibilities are allocated between Council and its Committees, among Committees, and between Council and Senate. The ‘Executive’ and a University Executive Group are described as exercising ‘leadership’ and there is also a University Leadership Team, though ‘leadership’ is undefined.

    Sussex has also given thought to overall responsibilities for supervision of the exercise of its internal rules. It has chosen to describe them collectively as ‘policies’. It is recognised to be ‘important that a clear and consistent approach is taken to drafting and updating policies across the institution’ details the requirements for the creation, approval, review, and updating of policies.  However it clarifies the difference between policies and other associated documents, sets out responsibilities relating to policies, and details the requirements for the creation, approval, review, and updating of policies. An overarching Policy on Policies has been agreed by the ‘University Executive Team and Council’. This consists in a Policy on the Creation and Management of University Policies (‘Policy Framework’).

    The aim of the University’s Policy Framework is to make clear what a policy is and what policies should be used for, to differentiate between policies and other types of documents (e.g. procedural documents, codes of practice, etc), and to outline the process that should be followed when drafting, reviewing, and updating policies. An outline of where responsibilities lie in relation to policies is also included.

    This suggests that if pressed Sussex might take all these to constitute its ‘governing documents’, while recognising distinctions among them.

    Nevertheless Sussex distinguishes governance and management. ‘A policy is a high-level statement of principles, requirements or behaviours that apply broadly across the University’ and ‘reflects institutional values’, thus supporting ‘the delivery of the University’s strategy’.  It  reflects ‘legal and regulatory obligations, sector standards, or high-level operational requirements’. These create obligations.

    Among them Sussex lists ‘Regulations’, which  must be made ‘pursuant to the Charter’. These contain detailed rules governing a wide variety of actions of, or on behalf of, the University falling under governance but extending into management: staffing procedures, student disciplinary and appeals procedures, the Students’ Union, the composition of Council and Senate, titles of degrees and Schools, roles of Heads of Schools, lists of collaborative institutions, academic titles and dress, the various degree courses awarded by the University, and general University regulations (library, ICT, administrative). These Regulations are updated annually and approved by Council and/or Senate. Next come written ‘Resolutions’ which Council members may choose to approve or not, ‘in accordance with procedures set out in the Regulations’, though amendments to the Charter and the Statutes and certain Regulations require ‘a three-fourths majority’.

    For purposes of management ‘procedural or process documents’ going beyond these categories explain the required ways of doing things at Sussex and ‘the processes which must be followed’. Among these are Codes of Practice and ‘Guidance documents’. This seems to be where the Trans and Non-Binary Equality Policy Statement fits, as approved by the Executive Group in 2018, revised in 2022, 2023 and 2024. placed under the heading of Equality, Diversity and Inclusion.  Are they still among ‘governing documents’ with a constitutional role in the University’s  governance? An application for a judicial review will take a considerable time to produce a recommendation even if it supports Sussex’s argument

    SRHE member GR Evans is Emeritus Professor of Medieval Theology and Intellectual History in the University of Cambridge.

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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