The Higher Education and Research Bill, 2016 – Key Points – Sherrill Stroschein

Introduction

The Higher Education and Research Bill 2016 reads quite differently from the government’s White Paper and the Green Paper that preceded it, in terms of ordering and emphasis. The Teaching Excellence Framework (TEF) proposals, for example, are not outlined in detail here, but rather are reserved as a policy to be designed by the Office for Students (OfS) to be created by this legislation. As the TEF proposals are not addressed in detail in the Bill they are not covered here, but one should keep in mind that they remain lurking behind the discussion that follows.

The establishment of the OfS and an outline of its functions takes up a large part of Part 1 of the 4-part bill. In sum, the OfS is to establish a register of HE providers, with three different registration categories linked to the fees they can charge. The OfS will decide the initial categories, with the TEF envisioned as feeding into the ongoing categorisation process.

One of the provisions of note is that HE providers are expected to support the OfS via a type of subscription, which raises some conflict-of-interest questions. Should a regulator be financially dependent upon the entities that it categorises? Regulatory bodies in the best practice of most countries are envisioned as being truly independent of the entities they regulate. (Even were this standard practice for some UK regulatory bodies, this does not mean that it remains a good idea – witness the debates about press regulation.)

In a stage further than envisaged in the Green Paper, universities currently regulated by the Privy Council would lose that relationship and instead fall under the sole powers of the OfS. HEFCE and the DFA would be dissolved with these functions taken under the OfS. Although these changes are discussed as setting up “arms-length” regulations, the centralisation of functions and the removal of the Privy Council responsibilities clearly indicate that universities would lose autonomy with regard to their relationship to the government.

Academic freedom

Academic freedom takes two different forms in the Bill, one form that academics would recognize and one form that is confusing (and confused). In an outline of principles of public interest that the OfS is supposed to recognize, academic freedom is outlined in Clause 14 as the ability of staff to test and question received wisdom without placing themselves in jeopardy of losing their posts.

That said, academic freedom appears in strange ways in Clauses 2 and 35, as the ability of institutions to determine course content and delivery, appointment and dismissal of staff, and to determine student admissions criteria. The bill reads as if Clause 14 was inserted to allay concerns by critics, while the authors of the bill as a whole were uncertain about the meaning of academic freedom as a concept, save as allowing some room for decision-making within the new bureaucratic structure. This detail should not be taken lightly, as Clause 14 simply outlines principles that should be in a list published by the OfS, but a stronger mechanism to protect actual academic freedom is not outlined.

Regulation and legal status

The main regulatory mechanisms available to the OfS are

  1. fines for violating registration conditions, and
  2. probation and potential de-registration of a HE provider.

The process is described as “risk-based regulation”, with a light-touch regulation that is described as focusing on providers in trouble. Fines are a widespread measure with regard to corporate malfeasance. But it remains unclear how imposing fines on a struggling HE provider will be at all helpful to the students enrolled there.

Similarly, de-registration appears to be intended as a disincentive to bad behaviour, but it remains unclear how actually applying it and de-registering a provider would be in student interests. In order to be registered, HE providers are expected to have a “student protection” plan in place in the event of course closure. As with the previous papers, the actual details of such a plan in light of real-world student considerations remain undeveloped here.

One question raised by the Bill regards the legal status of these entities. With the removal of the Privy Council authority, HE corporations may change their governance structures “provided that in doing so they do not cease to be a charity” (HE Bill Explanatory Notes p. 50). There is a tension inherent in the Bill with regard to charities, corporation, non-profits, and for-profits.

  • Where is the line between a corporation and a charity? What is the role of each?
  • Are HE providers in these different categories qualitatively different?
  • How will one OfS regulate these aspects?

It appears that the effort to uproot existing structures raises new questions and complications.

Research

Part 3 of the Bill intends to implement a new framework for research funding in the UK. Existing research councils will be placed under an umbrella called the UKRI (UK Research and Innovation). The UKRI would include the different current research councils (such as ESRC) as well as UK Innovate, which is a department which has a business focus with regard to innovation. There are some indications that some in the business community are concerned that UK Innovate would then be subsumed under a research agenda (rather than a business agenda).

From the academic perspective, one might have concerns that this integration could overly import a business agenda into research. There are also some concerns about the government’s increased proximity to setting research agendas via the UKRI.

There is also a clause that the UKRI could provide research services to third parties, which raises questions about whether research might be exploited in a way that could potentially harm academic freedom with pressure from commercial imperatives.

Positives?

Are there any good things in the bill? Well, there is a nod to the idea of improving access to under-represented groups. However, the proposals are not developed here and it is not clear how this intent would be enacted in practice. Part 2 of the bill includes a good idea to extend student financing to groups who do not accept the practice of interest, thus creating a Sharia-compliant line of financing for students (HSBC does this for mortgages as well).

Student loans

On a concluding note, student loans / finance come with the stipulation that bankruptcy will not eliminate these loans – there will only be forgiveness in terms of the conditions of the lender or, well, death. Student loan longevity has had significant import in the US on generations who are paying student debt well into their 50s, 60s, and beyond. The UK government has the responsibility to ensure that at least these indebted will not regret their decision to seek higher education.

But this bill generates more questions than answers about how that outcome will be reached.

Sources

See also

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About Sean

Senior Research Fellow, Survey of English Usage, University College London
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