Tsar-tsar galore...

January 31, 2003

... but politicians' penchant for regulators won't fix universities'

woes, argues Christopher Hood

Another week, another regulator. The new access regulator who has emerged from the political wrangling over top-up fees will join a growing army of more than 130 arm's-length regulators of public organisations in Britain.

Access audits will be added to teaching quality audits and research assessment exercises as the new so-called tsar squeezes in among the other crowned heads of educational regulation.

Discontent over this news is understandable. Ministers lecture universities about flexibility then saddle them with regulatory demands that make them feel like the man who staggered through the London Marathon in a 200lb antique diving suit.

The government makes much of its principles of policy consultation and "better regulation", yet it casually slips in another regulator in a last-minute political compromise with no consultation with those affected or assessment by its own Regulatory Impact Unit.

Moreover, for a government that is often said by its critics to slavishly follow American world views, there is a striking contrast with the US approach to higher education since its world-beating universities are largely unregulated. The only thing they must report to the federal government is campus crime. Equal-access issues are left to statute and the courts.

Still, there is something to be said for regulation here. Principles of merit and access cannot be dismissed as trivial; there is more than one way of defining and assessing "merit", and access to higher education is hardly less important than access to telecommunications networks, a sector that has been regulated for 20 years.

There is no instant panacea that can be adapted from elsewhere. The US approach is based on a culture of endowments, alumni contributions and cross-subsidisation of students, with high fees financing scholarships for the less wealthy. This may be a model for England to follow, but getting there could be compared to the transition to competition in utilities, which no one expected to happen without regulation.

The alternative French or German approach - which nominally offers universal access to students who have passed the general entrance exam, subject to later attrition - is hardly practicable in England at current levels of capacity. Random selection by lottery among eligible candidates - the way "equality" works in some military drafts - is not likely to find favour either.

Regulation in principle could also provide a transparent and stable framework, fine-tuned by experts working at arm's length from politicians.

Given that there is no special legal protection for academic freedom in the UK, it could be argued that this approach is particularly appropriate for universities and could act as a buffer between them and government.

But "in principle" argument is one thing, practical experience quite another. Observation of other regulators suggests all too many reasons for scepticism. The recent sagas of the rail regulator and the Qualifications and Curriculum Authority show the difficulties of achieving regulatory independence from ministers when the politics of blame runs hot, particularly when the regulator is a single individual and the rules are not clearly defined.

In those cases, the operating frameworks have been anything but transparent and stable - and the same goes for university teaching quality and RAE measures. To expect access regulation to be substantially different - especially given the disagreements over the definition of "fair access" and which processes can deliver it, coupled with uncertainty about how challengeable the proposed arrangements will be in the courts - would be a triumph of hope over experience.

If an access regime is to be stable, transparent and independent, the standards should be enshrined in statute, not regulation; regulators should be subject to a strict open-government regime; and the standards should be monitored and applied by a commission whose members are appointed for staggered terms, not by a single individual. (Naturally, the commissioners should be chosen in a way that is consistent with the principles they themselves apply.) Regulation by a tsar with uncertain powers is not the answer.

Christopher Hood is professor of government at the University of Oxford. He writes in a personal capacity.

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