Source: Patrick Welham

A failure in regulation in one sphere of life should give people in other sectors pause for reflection: if it can happen to them, why not us?

The Higher Education Policy Institute this week publishes my analysis of the Leveson inquiry’s lessons for higher education complaints-handling and regulatory arrangements. In light of the phone-hacking scandal, Lord Justice Leveson found that the Press Complaints Commission had not monitored compliance with the Press Code, nor given guidance in its adjudications about the public interest. Crucially, its chair, the committee overseeing the code and the body that controlled the PCC’s finances all lacked independence from the newspaper industry.

Before the 2004 Higher Education Act, complaints-handling across universities also lacked independence, consistency and transparency. Change was incremental and hard won: there was no philosopher’s stone moment.

Once a new system, the Office of the Independent Adjudicator, was put in place, replacing university visitors (and others) as the complaints handler of last resort, a few vice-chancellors were nervous. One ruefully noted that his university’s visitor had been the Archbishop of Canterbury and inquired about the religious denomination of the attendant independent adjudicator. Disraeli’s observation that he was “the blank page between the Old Testament and the New” would have been an apt response.

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Back to the newspaper industry. The PCC had aligned itself with the press, “effectively championing its interests”, according to Leveson. When it did investigate major issues it sought to head off or minimise criticism, and its attempts to probe phone hacking lacked credibility.

Leveson proposed an independent successor body with a dual role: promoting high standards of journalism and hearing individual complaints in order to protect the rights of individuals. The scheme would be backed by legislation. In essence, what Leveson proposed for the newspapers was not very different from the system adopted for higher education in 2004.

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Before Leveson, the need for independent self-regulation of the press was a consistent theme in the reports of previous inquiries. His conclusion that it was “essential that there should be legislation to underpin an independent self-regulatory system” was unsurprising – but it provoked the considerable ire of the industry.

The newspapers claimed that press freedom is incompatible with legislation and their resistance has led to the substitute route of a Royal Charter. The whole saga, with the industry “drinking in the last-chance saloon” of self-regulation for at least 25 years, is reminiscent of the uncertainties and ironies of Flann O’Brien’s classic 1940 novel The Third Policeman.

Universities’ resistance to independent self-regulation backed by legislation was more measured and nuanced. It took the form of scepticism and delay in the years leading up to the 2004 Act, and centred on concerns about protecting academic judgement. This resistance has since dissolved. The sector sees the value of having an independent complaints handler as part of the regulatory framework and acknowledges the OIA’s usefulness in relieving universities of the “burden” of complainants for whom internal processes have been exhausted.

The OIA fulfils the classic ombudsman function. Our focus on tests of procedure and reasonableness, and the fact that we do not scrutinise narrow academic judgements, ensures that respect for institutional autonomy is preserved. From another perspective, the National Union of Students, a long-time proponent and supporter of the scheme, has seen the OIA not only as a device to deliver individual redress, but also as a bulwark against successive governments’ marketisation reforms.

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But independence is the golden thread that runs through the OIA’s authority. It reflects the public’s insistence that when making complaints against professionals, “a fair system led by independent people” engenders the greatest trust. Of course, independence without competence is a wasted asset, undermining public trust and delaying the resolution of complaints (timely resolution is another key factor in public satisfaction with ombudsman schemes).

As the PCC showed, the absence of independence results in unenquiring minds and uncritical support for entrenched vested interests. The OIA, whatever the constraints of the 2004 Act, has not had a problem in “speaking truth unto power” in adjudications in favour of students and on the few (but important) occasions when universities have failed to comply with its findings.

What counts is that the student experience is manifestly safeguarded without undermining academic judgement. In my view, the experience of the OIA scheme over the past 10 years suggests that the general thrust of what Leveson proposed for the newspaper industry was not a “leap in the dark” but a principled and pragmatic response to an untenable set of circumstances. The higher education sector should take confidence from the Leveson debates that its complaints-handling arrangements are well judged and in relatively good order.

Three cheers for Leveson and long live independent self-regulation backed by legislation.

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