The new regulatory framework

It’s been quiet on this blog lately, as I haven’t managed to put together the time to start and finish a whole blog post. The new regulatory framework may not seem quite as newsworthy as it did when I started this post, but to be honest it was never very exciting anyway – the focus of this blog is on regulation and funding in English HE, so we only ever aspired to the lowest values of ‘newsworthy’.

The new regulatory framework for English Higher Education, to be honest, looks a bit of a mare’s nest. Here it is set out on one side of A4 courtesy of HEFCE’s recent publication on the subject.

Some aspects of this diagram are just weird (for instance the OIA apparently doesn’t have a relationship with HE providers, although the HE provider I work for is in weekly correspondence with the OIA, and pays a subscription fee to it as well), others are carried over from pre-existing muddle (the mix of golden rectangles that are UK-wide, and plain ones which are England only), others are rather disappointing (the location of the PSRBs, the NHS and Ofsted to name but three). After some obligatory throat-clearing, I’ll come back to these second two points below.

So first the throat-clearing. In calling this the ‘new’ regulatory framework I might be taken to imply that there was an ‘old’ regulatory framework, but in truth there wasn’t. Like any self-respecting ancien regime, the pre-reform system for regulating HE in England had grown up over many years by a series of historical processes (of which compromise was the most important). It was never a consistent or coherent ‘framework’. So the new framework didn’t start from the best place possible. Secondly you have to consider the tools that BIS and HEFCE had to hand to build this thing: with no new legislation that means essentially the existing legislation and the goodwill of other agencies. Thirdly, it is important to remember that the new framework has been constructed with one primary end in mind – to control the risk of over-recruitment on SLC-funded programmes. This it will do perfectly well.

Let’s start with the disappointments. Unlike Paul Greatrix, I don’t think I am actually surprised to see the focus of the framework is on extending regulation over alternative providers rather than rationalising or reducing regulation of the old HEIs. Nonetheless it is a disappointment to see that key funding and regulatory bodies remain outside the framework – not just the Home Office, or the NHS (that box labelled ‘HEE/LETBs’ for the uninitiated), but even bodies within the BIS ambit such as Research Councils. This isn’t surprising because the Government has given the Home Office, NHS and Ofsted quite big fish of their own to fry. The fund of goodwill that HEFCE may have had to hand in the NHS won’t buy much at a time when the Government’s own fundamental changes to NHS organisation have consumed so much attention. No-one has ever been able to think up a good way to restrain the PSRBs (Professional, Statutory and Regulatory Bodies) without new legislation. Indeed keeping track of them is hard enough: the HEFCE-approved list doesn’t even include all the PSRBs that accredit provision at my institution, let alone across the whole sector.

For the existing HEIs, then, the new framework looks a lot like the old framework – we continue to be accountable in a great many directions to a great many different bodies, some of which (HESA, HEFCE and QAA, for instance) are reasonably good at co-ordinating their action whilst others (the NHS, Ofsted, the UKBA (as was) march to their own drum. This is a disappointment, but it isn’t a surprise.

That’s enough about disappointment, what about muddle? I’ve already cleared my throat once but, for the avoidance of doubt, let me say that muddle was a feature of the pre-reform regulation of English HE too. But from a student perspective, rather substantial muddle still remains.

The new framework is genuinely new for the alternative providers – the group who are neither HEIs nor FE Colleges. However the framework is not completely new for them either. Numerically, the largest group of alternative providers are the providers who have their provision validated by an existing institution. Within the sector, we normally call them ‘collaborative partners’, but BIS has traditionally called them ‘listed bodies’. The list of listed bodies is here. It isn’t necessarily a very useful list, as it is only updated every two years or so, whilst institutions agree new validations (and end old ones) all the time. For listed bodies which are just listed bodies – those with postgraduate or part-time portfolios, for instance, there seems to be no change planned. They will continue to be validated by their partner HEIs and (in principle) regulated by those same partner HEIs. On the basis of this regulation-at-one-remove, HEFCE choose to regard them as falling within the new framework.

Other alternative providers may either be validated in this way, or have their own degree awarding powers. A couple have the university title. Where the new framework really affects them is in their access to designation for SLC funds. This is the process by which they secure access for their students to student loans, and it is changing in a fairly major way. But to understand all the details you need to look both at the new HEFCE document, and the recent BIS guidance on application of student number controls to alternative providers. That, I think, is material for another post.

So there is only one really major change to the way the sector is being regulated. The rest of the framework consists of an attempt to map the regulation that has always existed (or rather, as I explained above, to map a part of it). When you see how complex this map can be, I think you will be even less surprised that so much regulation has been left outside the framework.

Here’s Figure 3 from the Framework. This is an example of how HEFCE think their Register of HE providers will look. There are ten different regulatory requirements outlined here (each of which can either apply or not apply). Maths was never my strongest subject, but I think that makes 1,024 different potential regulatory regimes that can apply to English HE providers. The risk flag is red only in extraordinary circumstances but it can be green, amber or an ordinary flavour of red, none of which HEFCE intends to publish. The risk flag will actually make a much bigger difference to how HEFCE treats you than the distinction between taught DAPs and Foundation DAPs, so all in all well over 4,000 different regulatory regimes can be captured in this little table. However this is an incomplete example, because HEFCE also tell us that certain optional elements of the regulatory framework will also be captured (for instance some alternative providers may choose to opt into membership of the OIA, and others may choose to opt out). So in truth there are literally tens of thousands of different combinations of regulatory requirements that could apply to different providers.

This table being just an example for illustration, the ‘click here to see regulatory requirements for each type of designation’ button naturally doesn’t work yet. For the listed bodies (those with an ‘X’ in ‘courses validated by recognised body’) making that work is going to be more than just a technical challenge, because the regulatory requirements in question are imposed by the universities who validate the provision. HEFCE and QAA can make only the most generic statements about the kinds of conditions and requirements there are likely to be unless they collect these data from the institutions themselves.

HEFCE’s idea is that the Register will not only show which regulations each provider is subject to, but also clearly identify any with which they are not currently in compliance. Again, for the listed bodies, only the validating institutions know whether that body is in compliance or not. To state the obvious, keeping this list current is going to be a very large and complex burden for HEFCE. I would not be at all surprised if elements of this concept were to change quite significantly between now and 2014, when the Register is due to be published.

But that’s mostly an institutional perspective on how the new framework can be made to function. There’s a separate, student perspective on what the new framework will achieve even if we can make it function. Let me give some examples.

Suppose that I wish to train as a teacher, and decide that a school-based ITT route is right for me. Some SCITTs award the PGCE, and others do not. If there is no PGCE awarded, then the matter is straightforward and I am not covered by the regulatory framework at all. If the PGCE is awarded, then it will have been validated by some university or other, and therefore my activity is covered by the regulatory framework. But what cover do I have? The university will be monitored carefully for financial soundness and risk by HEFCE, but the SCITT provider I am actually training with will not. The university will be a member of the OIA, but I may well find that its complaints procedures explicitly exclude collaborative students like me, and therefore that I personally have no recourse to the OIA. There is no way for me to know this without reading the university’s complaints procedure itself. The SCITT itself may be a listed body but in practice this gives me no particular protection: neither BIS nor HEFCE directly monitors the listed bodies.

Or suppose that I decide to study at an overseas institution’s London campus. Here things seem more straightforward, as HEFCE is clear that organisations with foreign degree awarding powers which operate in England are not covered by the Framework. Except for Richmond which is both validated by the Open University and accredited by the US Commission on Higher Education of the Middle States Association of Colleges and Schools, and therefore appears as a Listed Body. Of course if you looked you would see registration with the Charities Commission and accreditation by the British Accreditation Council (BAC) proudly listed on the website. Would you be concerned if Richmond’s future listing in the HEFCE Register doesn’t confirm either of those? Would it make you suspicious that Richmond is not being quite straight with you, or perhaps that BAC and the ‘Charities Commission’ are not bona fide organisations? Of course you would be wrong to have such suspicions, because neither BAC nor the Charities Commission fall within the regulatory framework.

Or a third example. Suppose I am contemplating applying to do a degree with an alternative provider that has Degree Awarding Powers. Those powers are due to expire before I expect to graduate. Will the Framework make that plain to me? If it does, won’t the provider feel (quite understandably) that this is scaremongering rather than regulation, and piling insult on top of the existing injury of time-limited DAPs.

We have left the metaphor of the 'level playing field' a long way behind now. Perhaps instead we will have to come to think of a regulatory multiverse, in which thousands of parallel universes of regulation exist through which staff and students wander like doomed Byronic heroes. Some of these planes of existence are quite stable, pleasant places. Others are changing more rapidly. This begs the question, of course, whether HEFCE are the Lords of Law or the Cosmic Balance.