Should the OfS account for what it chooses to make visible?

By Daniel Snowden, CEO / 20 August 2026

Lucy Powell, the new Education Secretary, inherits a higher education sector under sustained pressure: fragile finances, contested questions about quality and value, persistent participation gaps, concerns about student mental health, and continuing evidence of harassment and sexual misconduct. She takes on the portfolio as the OfS prepares to launch a widely publicised and highly symbolic freedom of speech complaints scheme on 1^st September 2026. Perhaps one task for the new Minister should be to examine whether the OfS’s leveraging of public attention remains consistent with its own regulatory philosophy. 

Regulators shape behaviour not only through formal rules and enforcement, but through agenda-setting, signalling and attention. Public attention is a scarce resource that influences institutional behaviour and therefore ought to be deployed according to the same principles that govern other forms of regulatory intervention. Over recent years, freedom of speech has become one of the most visible public expressions of OfS regulation. Dedicated leadership in the form of a Director for Freedom of Speech and Academic Freedom, extensive communications activity and high-profile interventions have made it central to a wider public story of university life. The new complaints scheme will deepen that infrastructure and further embed this issue in public consciousness, inviting a question over the balance of visibility the regulator seeks to generate. Based on recent actions, the OfS appears to accept the premise that public attention can shape provider behaviour. Its own principles, therefore, should require that attention to be leveraged according to evidence, risk and student interest.

To be clear, freedom of speech and academic freedom are foundational to higher education and clearly should remain within the purview of the regulator. But the actions of the OfS in recent years raises questions around adherence to its core risk-based and principles-based model centred on the student interest. That is where the comparison with the regulatory approach to harassment, sexual misconduct and inappropriate staff-student relationships becomes important. That comparison matters because the OfS’s regulatory model depends on the credible ordering of risk. If public salience becomes detached from prevalence, severity and student concern, providers may reasonably struggle to distinguish between issues that are most visible and issues that are most harmful. 

There is no requirement to debate the relative strength of evidence here - on the regulator’s own risk-based criteria, harassment and sexual misconduct present stronger evidence of prevalence, direct harm, under-reporting and student concern. Yet they have not received comparable public regulatory salience. These issues were framed publicly as matters requiring operational compliance responses that universities could address within their own spans of control, while freedom of speech became a defining public narrative. That asymmetry raises questions about how the OfS understands risk, harm and student interest. It has not simply prioritised the visibility of freedom of speech; it has elevated one risk above others in public discourse in a way that appears difficult to reconcile with its stated principles.

One explanation is that the OfS adopted different theories of change. Freedom of speech was treated as a cultural and constitutional issue requiring visible signalling. Harassment and sexual misconduct were treated more as procedural challenges requiring policies, systems and compliance. But harassment and sexual misconduct are also cultural issues: awareness, reporting behaviour, confidence in support and institutional expectations all shape outcomes. The recent enforcement action taken against the University of Sussex illustrates the point. This generated national coverage, political debate and discussion extending far beyond sector boundaries. The OfS was not merely enforcing compliance; it was shaping the public agenda.

The subsequent legal reversal makes this all the more important. A highly visible intervention attracted significant judicial criticism and revision of the regulator’s approach. It should also have generated a broader lesson on the governance of symbolic regulation: visibility can influence behaviour, but it carries risk when it is not securely grounded in evidence, proportionality and due process. Given the role that public awareness plays in influencing institutional and student behaviours, and the potential damage to providers in getting this wrong, shouldn’t regulators be accountable for how they seek to harness that awareness?

Having demonstrated the regulatory power of public attention, the OfS appears to have leveraged it in a way that is difficult to reconcile with the relative strength of evidence, prevalence of harm and direct student concern across its wider remit. Harassment and sexual misconduct are cultural as well as procedural issues. Visible regulatory attention could affect reporting confidence, staff behaviour, student awareness and institutional norms in the same way that publicity around freedom of speech has sought to influence institutional behaviour. 

University leaders will increasingly need to navigate these mixed signals to ensure their balance of focus remains proportionate. This may involve the need to separate substance from visibility to ensure institutional priorities are shaped by evidence of student harm and risk, not simply by the issues attracting the greatest regulatory or political interest. This should also help to avoid the trap of equating regulatory compliance with effective risk management. The most resilient institutions will maintain their own evidence-based assessment of where student interests are most affected, even when the public spotlight falls elsewhere.

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