Around 18 months ago, the Office for Students launched a consultation into the publication of information about higher education providers. As a result of the provisions of the Skills and Post -16 Education Act (the Skills Act), the OfS has launched a short supplemental consultation which is due to close on 9 June 2022. The results will be analysed alongside the responses to the earlier investigation.
There are three specific aspects of the consultation that are of particular concern. The first is the proposal to publish information about the opening of an investigation (i.e. before any finding of regulatory breach has been made), the second is to publish “provisional decisions”, and the third is to publish the decision to refer a matter to another regulator for consultation.
What did the Skills Act say about publication?
The Skills Act amends the Higher Education and Research Act 2017 and expressly confirms the OfS’s power to publish “notices, decisions and reports given or made in the performance of its functions”. This does not affect any other power of the OfS to publish such a matter. In deciding whether to publish a notice, decision or report, the OfS must consider:
the interests of students, prospective students and graduates
the interests of providers
the need to avoid publishing information about a particular body or individual, where publication would or might, in the opinion of the OfS, seriously and prejudicially affect the interests of that body or individual; and
the public interest
The Skills Act expressly authorises the publication of decisions to conduct an investigation, subject to the same considerations, with the additional safeguard that if the OfS subsequently terminates an investigation without taking any action, it must publish that fact too.
The Skills Act includes provisions protecting the OfS from defamation claims arising from publication of information about providers, unless malice can be shown. But there is an important qualification to this protection where the publication relates to the opening of investigations.
The OfS is not protected from claims for defamation in relation to the publication of the decision to conduct the investigation if it includes any information other than -
a statement of the decision to investigate
a summary of the matter to be investigated, and
the identity of the provider, body or individual under investigation
What are the potential issues with the proposal to publish the opening of an investigation?
The OfS’s supplementary consultation indicates that it will “normally” expect to publish information about the opening of an investigation, and in so doing will have regard to the matters it set out in its earlier consultation under Annex C.
Annex C referred broadly to factors similar to those in the Skills Act, summarised above, but they are not identical. Annex C also merely states that the OfS would normally have regard to these factors, rather than as required by the Skills Act, that it “must” consider them.
By stating it will “normally” publish, the OfS may also create doubt that it will apply its mind objectively and properly to the statutory considerations. After all, the Skills Act indicates that each decision to publish should be based on the statutory considerations, rather than creating a blanket presumption in favour of publication with limited exceptions, which is what a statement that something will normally be published implies.
This is particularly so given that the factors set out at Annex C made sense when applied to a finding of regulatory breach, but make far less sense when applied to a decision to investigate. There is also no clear articulation of the threshold for launching an investigation – does the OfS have to be satisfied that there is a prima facie case of breach, or is it merely making enquiries as a result of a particularly pearl-clutching tabloid newspaper column, for example?
For example, Annex C states that one of the reasons publication may be in the student interest is so that prospective students have information to help them make an informed choice about the value of the course and provider in question. How does the knowledge that there is an investigation underway assist a prospective student, especially given the very basic information that the Skills Act anticipates will be published? It would of course be wrong for anyone to infer or imply that the opening of an investigation equated to a settled conclusion of breach. Isn’t it therefore more likely that it will confuse prospective students who can hardly be expected to understand what level of confidence they can have that the alleged breach has in fact occurred?
What are the potential issues with the publication of provisional decisions?
The main problem with the proposal to publish provisional decisions is that it is not at all clear what these are. The supplementary consultation refers only to provisional decisions about sanctions, which it describes as “provisional” in the sense that the sanction may be subject to appeal. Regulatory Advice 15 (Monitoring and Intervention) includes one reference to provisional decisions in different terms: “we expect there to be cases where the evidence the OfS already holds is sufficient to reach a provisional decision that there is a breach of a condition….in such a case, the OfS would be unlikely to seek further evidence and the provider would be invited to submit further information it considers relevant as part of a formal representations process.”
There needs to be a much clearer explanation of how and when a provisional decision might be made, how this relates to the opening of an investigation and how it differs from the process for reaching a final decision.
What are the issues with publishing referrals to other regulators?
By definition, the OfS is likely to refer matters to other regulators where it does not have the power, capability or the competence to act on its own account. Just as it is difficult to see how the Annex C factors apply to a decision to commence an investigation, so too is it hard to apply them to a referral to another regulator. For example, one of the factors against publication listed in Annex C is that it may prejudice the investigation of another regulator, but at the point of referral by the OfS, it would not be possible to know what might prejudice such a putative investigation.
It is also the case that at least some of these other regulators or enforcement agencies have their own publication standards. Some, for example, will not publish until they have opened an investigation themselves, or until they have commenced enforcement proceedings. It is difficult to see what possible public interest there would be in publishing information ahead of the point at which the statutory regulator responsible for investigation of the matter in hand considers it appropriate to do so.
There is definitely a strong student, sector and public interest in transparency in regulation. But it is important that the reliable conclusions can be drawn from the information published by a regulator, to protect the interests of providers and their students and to maintain public confidence in the system of regulation itself. For the reasons set out above, the OfS’s current proposals fall short in both respects.
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