There was much rejoicing back in January when the government was defeated over the first amendment to the Higher Education and Research Bill to be put to the vote in the House of Lords. That amendment introduced a definition of the functions of UK universities into the text of the bill which included their freedom “to act as critics of government and the conscience of society”. Its effects were dispersed and diffused in subsequent re-wordings, but it was the first of several major amendments to command support in the Lords.
At the end of April, however, in the “wash-up” before parliament was dissolved on May 3rd, the bill became law, and much of the effect of those amendments was lost. What should we note about that process, and where does it leave us?
It is worth recalling that the bill was always intended as a consolidation on the new system for funding university teaching, based primarily on tuition fees and loans, that was introduced in 2012. It was widely recognised during the parliamentary debates that some adjustment to the regulation of the higher education sector was needed in the light of that, and that students who were being required to invest financially in the courses they took needed access to adequate information about those courses and an appropriate regime of consumer protection. But the bill that had been brooded over in the Department for Business, Innovation and Skills (BIS) for five years before it was presented to parliament in May 2016 was much more ambitious than that. It sought to make it easier to establish new institutions that would provide training in particular specialised skills considered necessary to drive the economy forward, and it included measures to incorporate the research councils into a new overarching funding body, along with the agency that acts as a facilitator for the practical application of research outcomes, Innovate UK.
Only when we make the comparison with other documents that have promoted the market approach to higher education in recent years, however, does the untrammelled dogmatism that characterised the approach of BIS become fully apparent. The Browne Review of 2010 was content to present its case in terms of generalities, assuring us that competition “generally raises quality”. When the Competition and Markets Authority was asked to comment in 2015 on the operation of higher education as a market it warned of the risks of “excessive regulation”, but had the candour to acknowledge that it was not in a position to pronounce on what “quality” actually meant in an academic context. Unhampered by any such humility, BIS adopted the precept that the quality of a higher education institution could be measured in terms of its through-put and customer satisfaction ratings, and on that basis it put forward its plans for a “Teaching Excellence Framework” (TEF) that lacked any means of assessing the excellence of teaching, relying instead on statistics that strongly correlate with other factors – social background, personal motivation, the state of the job market, etc. – but which, as the Royal Statistical Society warned in July 2016, bore no reliable relation to the quality of teaching that the scheme purported to assess.
In the drafting of the bill, moreover, the insistence on a competitive “level playing field” gave rise to instances of over-zealous regulation that left senior Conservatives (Lord Patten and Lord Waldegrave) fuming. Since evidence already existed of the risk of fraudulent activity by private for-profit providers, the new regulator – the “Office for Students” – was to be equipped with powers to take action in cases of perceived fraudulent activity – powers that would apply equally to all universities and would include the authority to enter and search the premises of higher education institutions. And since, in an open market, there was also the risk of institutions failing to maintain the high standards that are expected of British universities, the regulator would be equipped with the authority to deprive them of their degree-awarding powers; this authority, too, would apply equally to all universities. In this way, what was described in the bill as an Office for Students grew into an Office for Everything Else: a regulator whose powers of intervention in the sector extended to the power to validate degrees awarded by the institutions it regulates, an enforcer of the market approach to higher education which also carried ultimate responsibility for quality control.
The distribution of power in the Commons being what it was, it fell to the Lords to rein in the presumptuousness of the bill’s authors, which they did during the first three months of 2017 in the course of debates that lasted well over 60 hours. The amendments carried by the Lords would, if they had been allowed to stand, have
- established a clear sense of what a university is and of the nature of its role in society (Lord Stevenson, Hansard);
- ensured that rigorous independent scrutiny was applied to any scheme for evaluating the quality of education and teaching in universities (Lord Blunkett, Hansard);
- prevented the creation of consolidated league tables of English higher education providers on the basis of any such scheme (Lord Blunkett, Hansard);
- decoupled the fixing of course fees from any such ranking procedure (Lord Kerslake, Hansard);
- made the authorisation of any new provider by the Office for Students subject to an assurance from its Quality Assessment Committee that the institution in question is able to maintain the standards expected of a UK degree (Baroness Wolf, Hansard);
- strengthened the scope for an institution to appeal at law against a revocation of its degree-awarding powers by the Office for Students (Lord Judge, Hansard);
- given students a statutory entitlement to be added to the electoral roll (Baroness Royall, Hansard); and
- ensured that international students are not counted as long-term migrants to the UK (Lord Hannay, Hansard).
None of these amendments was accepted by the government – and it was rumoured that the government would have rather seen the bill as a whole fail than accept the last one. But in the pressurised days immediately before the dissolution of parliament a number of compromises were made. What, then, is the situation that universities are left in now that the bill has become law?
The conception of the TEF has not changed significantly, but it will now be required to undergo a full independent review of its procedures, its metrics, and its impact on institutions, over the next twelve months. The provision for ranking universities on the basis of their scores in the TEF also remains, but the use of this process in the setting of differentiated fee levels will be deferred until 2020, evidently in the hope that the evaluative procedures of the TEF can be sufficiently developed by then that they will command greater confidence. And in an important limitation of executive power, any ministerial decision on the setting of fee levels will now also be subject to the express approval of both Houses of Parliament.
The Office for Students retains its power to revoke universities’ degree-awarding powers as well as to grant them, but there is now clear provision for institutions to appeal at law against what they see as an unfair decision. The Office for Students is now also required to obtain advice from an independent authority on matters relating to the quality of provision in institutions seeking registration, so the potential for conflicts of interest has been reduced a little – although the body in question is not established as independent within the Act, but will be “designated” by the Secretary of State on the recommendation of the Office for Students. And while there is to be no uniform process for adding students to the electoral roll, there will be a procedure for encouraging institutions to facilitate this process.
The thorough revision that this legislation underwent has, then, given universities and those who lobby on their behalf some breathing space and the opportunity to press for more sensible approaches to quality assurance before the TEF begins to bite in 2020. Vigilance and robust advocacy will be needed in the months ahead, however, if the capacity of universities to educate is not to be strangled by an ill-conceived and inappropriate regulatory regime. In the meantime, the news of planned redundancies at the University of Manchester that broke on May 10th suggests that the mere prospect of the TEF, coming on top of other financially significant developments, is already prompting university managements to treat selected members of their staff, not as integral components of the academic community under their charge, but as assets that may be disposed of on the basis of purely financial calculations. Whatever reassuring gestures the new law makes towards academic freedom and institutional autonomy, its overall effect will add nothing to the value of a degree course, but a great deal to the precariousness of an academic career.
David Midgley is a retired Professor of German at the University of Cambridge and a member of the Council for the Defence of British Universities.
The Convention for Higher Education 