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Playbook is partially successful in its freedom of information appeal over the OfS Brexit analysis

Regular readers will know that we recently used the Freedom of Information Act to request a copy of the Office for Students’ analysis of the impact of a no-deal Brexit on higher education in England. The analysis is contained in an annex to the chief executive’s report in OfS board papers from 26 September 2019.

Our first FOI request was refused in November on the grounds that disclosure was “not in the public interest”. Playbook appealed against that decision, and a redacted version of the document has now been made available to us by the OfS.

The analysis is a report on the government of Boris Johnson and its likely policy focus for higher education—the contents of the non-redacted sections will come as little surprise to the well-informed readers of Playbook. Fiona McIntyre has taken a look and provides us with a summary.

However, we are now on the other side of a general election, with a majority Conservative administration, and the political landscape looks a little different.

In certain respects, the OfS Brexit report is now a historical document. A number of the policy issues discussed in it are either resolved or no longer relevant, which is why the OfS is no longer prepared to defend non-disclosure of the analysis. However, despite the injunction of the Conservative election to “get Brexit done”, a no-deal scenario remains a distinct possibility.

In the Queen’s speech, the government announced plans to legislate so that the transition period ensuring alignment between the European Union and the UK could not be extended beyond 31 December 2020—as if they had learned nothing from the self-inflicted wounds of working against the time limits of the Article 50 process. This makes the window for securing a future trade deal with the EU extremely tight—to the point of impossible.

Accordingly, a no-deal Brexit is still a highly likely outcome and the first crunch point will come in June when the UK government will have to indicate its willingness to buy into EU schemes in the union’s next budgetary cycle, including Erasmus+ and Horizon Europe. While Johnson may now have an 80-seat majority to pass his Withdrawal Agreement Bill, the impact of a no-deal Brexit remains a live issue for higher education.

What the regulator of universities in England thinks that impact will be is therefore of the greatest importance, especially when the government has already been forced by parliament to release its own Yellowhammer impact analysis, which foresees considerable damage to economic growth across the UK.

As with any such FOI release, the real interest of the OfS report lies not in the passages that have now been made available but in the sections that have been redacted. The justifications of the appeal panel’s decisions on redaction provide us with an idea of what the OfS is continuing to hold back.

The report is entitled The New Government, and the first half is devoted to the personalities now in post at the Department for Education. The report notes that “with Brexit—along with crime and the NHS—the top priorities of the new government, there are unlikely to be significant policy changes in education”. That was before the Conservative election manifesto.

The report then runs through education secretary Gavin Williamson’s letter to the OfS. The details of Williamson’s requests on the Teaching Excellence Framework, admissions and unconditional offers are all in the public domain.

The first significant redaction not related to the personal details of junior OfS staff comes with paragraph 17, the opening sentences of a section subtitled The Wider Political Context. The non-disclosure of this passage is justified on the grounds that publication would hinder the OfS’s ability “to have frank dialogue” with government.

Does the redacted passage refer to the administration of Theresa May? The prospects for an election and a possible Labour government? Who knows, but you have to wonder how sensitive or frank that dialogue really is.

The OfS says “it is crucial that there is a ‘safe space’ to hold these discussions without the threat of disclosure, particularly when a decision or policy has not yet been decided upon”. The OfS’s newfound appreciation of safe spaces might come as news to some universities and student unions.

Whatever the blistering content, the appeal panel believes that publication of the paragraph “would have an adverse impact on the [OfS’s] ability to perform its function as a regulator”. That is quite the claim and one that we will be testing in a further and final appeal to the Information Commissioner’s Office.

There then follows a paragraph detailing Johnson’s past role as shadow universities minister and Dominic Cummings’s time as an adviser to Michael Gove at the Department for Education. The next paragraph (19) is also redacted because “releasing this paragraph would disclose views on the uncertainty of ongoing political events, such as Brexit. Having these viewpoints made public would hinder the OfS in deciding the best approach forward when these political events are decided upon in the future.”

Could it be that the OfS imagines that Brexit might have a negative impact on English universities? Or has the regulator identified the hitherto unknown upside of leaving the EU for higher education? Either way, the views of the OfS remain a secret.

The report then moves on to a section on the budget and spending review, which outlines the details of the fast-tracked one-year spending review for 2020-21. The second half of the section is redacted because it refers to “ongoing discussions between the OfS and government departments on the themes of budgets and spending”.

The appeal panel deploys the ‘safe space’ defence for denying the publication of this passage, particularly “as the information concerns general ideas which have not been fully formulated and will therefore prejudice the OfS’s ability to make effective decisions with and advise higher education providers in the future”. Should we take it, then, that the redacted sentences refer to the government’s response to the Augar report and a possible cut in tuition fees? Let’s hope we don’t have to wait 20 years to find out.

Full English Brexit

The report then moves on to the regulator’s analysis of the “impact of no-deal Brexit”. Back in September, you will recall that the government was ramping up the rhetoric for a no-deal exit through a national advertising campaign, before Johnson chose to change tack and just cede Northern Ireland to the EU.

After the analysis notes the revised Brexit advice to universities and the chief executive’s membership of the high-level stakeholder working group on Brexit, the second paragraph is redacted. “The paragraph refers to a media report about providers potentially closing in the event of a no-deal Brexit. Although the report is in the public domain, the [appeal] panel and the chief executive concluded that disclosing this paragraph would impair the OfS’s ability to have free and frank discussions in the future, as well as a ‘safe space’ to consider the registration of providers and to decide upon future applications to join the OfS register.”

But isn’t this the crux of an analysis of the impact of a no-deal Brexit on higher education? The panel’s justification states that “disclosure would therefore result in the OfS’s approach to the closure of providers being in the public domain”. Well, yes, and this would be a bad thing because…?

The panel says “this would hinder the OfS’s ability to both discuss future provider closures on a case-by-case basis and to deliver its core statutory functions”. The redacted paragraph (22) cannot be much more than three sentences long; would its publication really undermine the legal purpose of the OfS? Or is it more likely to suggest that some providers would go out of business in the event of a no-deal Brexit?

There then follow four paragraphs on the facts and figures of EU students and staff in English universities, and arrangements for continued funding of certain schemes in the event of a no-deal Brexit. EU students make up 5.7 per cent of the total student population, while EU staff make up 17.4 per cent of the academic workforce and 6.5 per cent of professional staff in England’s universities. Big numbers, but we knew them already.

Paragraph 26 refers to the settlement scheme for EU citizens living in the UK. The final lines of the paragraph have been redacted: “The sentence refers to uncertainties around Brexit where the decision has not been resolved. Depending on national decisions on Brexit, the OfS would need to have its own discussions free from the threat of disclosure about how to support affected students.”

The sentences immediately before the redaction refer to those entering the country after Brexit who will need to apply for European temporary leave to remain—essentially a three-year study and work visa to be followed by whatever a future immigration scheme has in store for EU nationals. The question is: Do the free and frank exchanges between the OfS and government involve the OfS having a pertinent opinion on the post-Brexit rights of university students and staff? If so, what is it and why can’t the EU citizens studying and working in our universities know what it is?

The next two paragraphs refer to the more than 11,000 UK students in EU universities and reassurances received by the Foreign Office on future tuition fee regimes for them. The report says that “where they are unable to continue their studies following a no-deal exit, it may be possible for them to transfer to a provider in the UK”. The OfS says it expects the number of enquiries from affected students to rise in the run-up to Brexit.

A section is then redacted in the following paragraph (28), on continued funding for Erasmus+. The panel says that “these sentences again refer to the potential consequences of a no-deal Brexit scenario which is not yet decided. Disclosing these sentences would mean that the views of the OfS and the Department for Education would be known…” Which is, of course,  the whole point of an FOI request and the principle upon which parliament compelled the government to release the Yellowhammer report.

Paragraph 29 refers to possible loss of funding for Erasmus, the European Solidarity Corps and research programmes. Paragraph 30 is redacted in its entirety “because it concerns speculation about how students may be impacted by a potential no-deal Brexit scenario”. It would obviously never do for those affected students to know what the OfS thinks might happen to them in the event of a no-deal Brexit.

The OfS is legally mandated to act in the best interests of students. The continued secrecy over what the OfS really thinks that Brexit means for students is a very curious interpretation of that mandate: “As this paragraph refers to the uncertainty of political events, the OfS would need to have discussions about how it can best support and give free and frank advice to students as Brexit and higher education policy progresses.”

If the regulator for higher education feels unable to tell students how they might be affected by a no-deal Brexit for fear of embarrassing itself or the UK government, maybe the free and frank advice that EU nationals studying in the UK need to hear is to get out while they still can.

Following the redacted paragraph, the report notes: “Universities UK is researching this issue. It has indicated that providers who may be affected are generally replying [sic] on their EU delivery partners to mitigate the risks involved.” Do these removed sentences refer to the possibility of students failing to complete their studies or not having their qualifications recognised across the EU?

The report continues: “Data from the Higher Education Statistics Agency for 2017-18 indicates that there are around 63,000 undergraduates and postgraduate students located in the EU who are studying for an English higher education qualification. This covers students registered at an English provider—but who study at an overseas campus, or another location or via distance learning—and those registered at an overseas partner organisation—but who study for an award from an English provider.”

It would seem that the redacted paragraph may refer to the legal exposure of English universities over students completing their course in the event of a no-deal Brexit. The report concludes with the short paragraph 32: “OfS regulation extends to the students being taught under these arrangements. We are currently establishing our approach to regulating transnational education and will consider how we will respond to this issue.”

Perhaps these lines have not been redacted because of the risk of the OfS’s opinion being made public because the regulator does not yet have an opinion on how it would meet its statutory obligations for overseas franchise students left high and dry by a no-deal Brexit.

That is the end of the OfS report, and Playbook is grateful to the appeal panel and the chief executive for making this limited version of the analysis available. However, the redactions raise more questions than the publication of the report answers.

There clearly remain significant legal issues for EU students and staff in the event of a no-deal Brexit. Failure to publish in full the views of the higher education regulator and champion of students adds to the anxiety felt by EU nationals in our universities.

They will conclude from this partial release of the OfS’s analysis that the impact of Brexit will be so grave that it cannot be stated publicly or that the OfS has no reassuring words to offer EU nationals in the event of a no-deal Brexit. Only the truly naive would imagine that this report has now been made partially available because a no-deal Brexit is finally off the table.

Playbook will continue to pursue the contents of the missing passages in this document through an appeal to the Information Commissioner’s Office.

And finally…

Since we have been away, you might have thought that peace was breaking out in the dispute over the Universities Superannuation Scheme, as both the University and College Union and Universities UK agreed to talks chaired by Joanne Segars to discuss the recommendations of the Joint Expert Panel’s second report.

However, the re-ballot of universities over possible strike action continues, with UCU members at 13 institutions due to complete their voting by 28 January, and a further 23 pending. In a new year’s message, Jo McNeill and Mark Abel, the two vice-chairs of the UCU higher education committee, said that “the crucial task is to escalate the action”.

Speaking of the strikes over both pay and pensions, McNeill and Abel said that “the employers will be hoping that Labour’s defeat has sapped our morale and we fail to bring more members into the fight. But we always knew that we would have to escalate whoever was in Downing Street…Escalation is also about upping the number of days of action in the second wave. December’s sector conference voted for 14 days of USS strikes in February and March. The HEC due to take place on 30 January must now endorse that decision.”

It is unclear whether the views of McNeill and Abel are shared by other senior office holders in the union. Is the USS dispute about to become a proxy protest against the Johnson government, rather than a discussion about the appropriate use of double discount rates in actuarial valuation? Happy new year, readers—glad to be back?

Stories you might have missed

Fiona McIntyre took a look back at our biggest stories of 2019, as picked by the news team, and at those with the most views on Twitter.

She also wrote that universities have been told to improve student retention as dropout rates are rising, and that the former United States secretary of state and presidential candidate Hillary Clinton has been appointed chancellor of Queen’s University Belfast.

Over Christmas it was announced that graduates would be able to make repayments for their student loans online from 2020, cutting out the possibility of overpaying for their studies, and that union members and employers would meet in the new year for talks to try to avoid further industrial action in 2020.

Mico Tatalovic took a look at our top science and research stories in 2019 according to Twitter, and what the top science search terms on Google for the year revealed.

With Christmas behind us and all eyes on the year ahead, Mico asked what’s in store for higher education under the majority Conservative government. He also reported that the government had hinted at creating a UK ‘MIT of the north’ in Leeds, and that science scooped 14 per cent of the New Year Honours.

As rumours of a wholesale overhaul of the civil service reach fever pitch, the prime minister’s chief adviser has put out an open call for researchers to join him and other ‘unusual’ people at the heart of Westminster, wrote Sophie Inge.

She added that the Duke of Cambridge announced a “multimillion-pound” environmental prize as part of “a decade of action to repair the Earth”, and that Chinese researcher He Jiankui was sentenced to three years in prison for carrying out human embryo gene-editing.

Two of the world’s major DNA sequencing equipment companies have agreed to terminate a takeover agreement in the wake of probes by competition authorities, reported Robin Bisson.

Pola Lem told us that Maastricht University in the Netherlands said it was still recovering from a “serious cyberattack” launched against it on 23 December.

Pola also reported that Fudan University, one of the most prestigious and top-ranked universities in China, has come to a tentative agreement with the Hungarian government to open a campus in Budapest.

Elsewhere, Pola told us that Coalition S, the group of funders behind the radical open-access initiative Plan S, would develop a tool for authors to identify journals that conform to the plan, the group’s ‘champion’ Johan Rooryck told Research Professional News.

In the news

The BBC reports that university lecturers in Scotland are to be balloted over pay, that a think tank has accused half of apprenticeship courses in England of being “fake”, that students in India have been injured in university violence, and that Hillary Clinton has been appointed chancellor of Queen’s University Belfast. There are features about a lecturer who dropped out of school at 17, two young apprentices with different experiences, and why students in the US are becoming less interested in learning about the UK.

In The Guardian, Jo Johnson warns against cutting university tuition fees, a report says that millions have been spent on fake apprenticeships, anti-abortion activists are increasingly targeting UK university students, and Bristol students have been told to study at the SS Great Britain due to overcrowding.

The Financial Times looks at what to do if you fail to get into Oxbridge and how to work out the true cost of a university education. It also covers the fake apprenticeships story.

In The Telegraph, the Scottish National Party’s cap on university places is attacked and there’s advice on why getting a degree isn’t the way to futureproof your career.

The Independent says that a dismissed Oxford professor has won an ageism battle and that the government is to launch a new student loan repayment system in 2020.

In The Times, lecturers in Scotland are to vote on a strike over pay, graduates are facing a fight for jobs as recruitment cools, a group in Ireland wants students to earn more for part-time work, fake apprenticeships are exploiting the £3-billion levy, and Bristol students are “all at sea” over the shortage of study space. University of Buckingham vice-chancellor Anthony Seldon writes that we must teach students to look after their own mental health.

The Sunday Times reports on the Oxford ageism battle.

In The Scotsman, Abertay University shows the biggest rise in the proportion of students dropping out in the past five years.

The National says that Scottish university lecturers are to vote on a strike over pay.

In the Belfast Telegraph, student dropout rates at Queen’s and St Mary’s are rising, and students have been fined £130,000 for late library books.

The week ahead

Monday

The Student Education Conference 2020 is taking place at the University of Leeds today and tomorrow.

The University of Bristol is launching its Transforming Education Systems for Sustainable Development Network Plus, which will bring researchers, non-governmental organisations and government agencies together.

Tuesday

From 2.30pm, there will be questions in the House of Lords’ main chamber on protecting opportunities to work in Europe for British citizens resident in the UK and abroad, as well as questions on the Conservative Party’s manifesto promise to deliver 50,000 more nurses in the NHS.

Wednesday

Ursula von der Leyen, president of the European Commission, will give a talk at the London School of Economics and Political Science from 11.15am on building another future for the EU-UK partnership.

From 2.30pm, questions will be asked in the House of Lords’ main chamber about a broader definition of R&D in the creative industries.

The University of Reading hosts the ASE Annual Conference, one of Europe’s largest science education gatherings, until Saturday.

The Access, Success and Progression Conference is taking place at the University of Bristol.

Thursday

A Westminster Forum event on improving provision for care leavers is taking place from 8.30am.

Also from 8.30am, there is a Westminster Forum event on rare diseases and specialised commissioning in England, including genomics, research and access to medicine.

The Office for Students will launch a consultation on harassment and sexual assault at universities.

The career development service AGCAS’s Heads of Service Conference 2020 is being held in Leeds on Thursday and Friday.

The International Conference on Information Management and Processing for scientists and scholars to present ideas is being held in London from Thursday to Saturday.

Friday

The Institute for Fiscal Studies is holding a one-day series of public economics lectures for students in London from 9.30am.

Aston University is hosting the 25th Annual Admissions and HE Guidance Conference, for teachers and school and college leaders to hear about the state of higher education.

On Saturday and Sunday, an international conference on social sciences, entrepreneurial economics and business management is taking place in London.

The Playbook would not be possible without Martyn Jones, Harriet Swain and Fiona McIntyre.

Thanks for reading. Have a great day.

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