No 4 in a series of Guest posts by G. R. Evans

The problem-areas flagged up here are technical but they are also of fundamental importance to academics because they affect academic freedom and the institutional autonomy of providers of higher education. These are topics which have repeatedly engaged Members of Parliament and peers in heated debate in the framing of previous higher education legislation and are likely to do so again.

It has taken determined resistance over many decades to protect these two things which academics discover to be immensely important when they find them threatened. One is independence from state control for universities. The other is the freedom of individual academics to determine what to teach and how to teach it, and on what to do research.

The history of these protections

When universities first accepted public funding it was with the protection that they should have freedom from Government interference when they chose how to spend it. A ‘Haldane buffer’ was set up, to advise Government, receive the state’s funding in response, and deliver it in the form of a ‘block grant’ to each institution. This protection was maintained for nearly a century, with the University Grants Committee acting as ‘buffer’ from 1919-1989, the Universities Funding Council 1989-1992 and then the four funding councils set up under the Further and Higher Education Act 1992 [FHEA]. Each institution has remained free to spend its grant as it chooses, subject to the requirements of FHEA s.65 (2).

It was taken for granted in 1992 that the block grant would cover both teaching and research and the provision of the infrastructure of laboratories and libraries needed for both purposes. The same principle ensured that the ‘teaching and research’ needs of research students would be provided within the infrastructure the grant was to fund.

The tripling of tuition fees for undergraduate students in English universities England from 2012 made a de facto a policy-change designed to transfer the burden of paying for their teaching to the undergraduate students receiving it. The block grant continues to cover both teaching and research in the devolved administrations, but in England only the ‘research’ element of direct public funding and a decreasingly small sum for teaching survives .

Consequence 1: The introduction of new-style ‘regulation’ and the risk to institutional autonomy

The FHEA s.65(4) provided the four UK funding councils with a sanction if an institution was found to be mis-spending its block grant. The funding council could ‘require the repayment, in whole or in part, of sums paid by the council if any of the terms and conditions subject to which the sums were paid is not complied with’, and charge interest if the repayment was not made promptly. This ‘conditions of grant’ sanction was used when it was found in 2008 that London Metropolitan University had been in receipt of funding for more students than it actually had, and it was eventually required to repay £30m.

The change from direct public ‘block grant’ funding to tuition-fee funding for teaching made the ‘conditions of grant’ sanction no longer applicable.

Then came talk of the need to make HEFCE into a ‘regulator’. This first appeared as a proposal in the White Paper of June 2011, Students at the heart of the system. Chapter 6 of this document described ‘a new fit-for-purpose regulatory framework’ for England only, including the statement that:

As the balance of public investment shifts from grants to loans, the Government must maintain control of its financial exposure [emphasis added].

This is in itself a perfectly proper objective for a Government. But in this instance it was taken to be achieved best by ceasing direct public funding of higher education teaching and moving the responsibility for payment to students through their tuition fees. This had the disadvantage of requiring Government to fund those fees through student loans, which might not be repaid for many years, or at all.

Since that time, HEFCE has begun to describe itself on its website as ‘the lead regulator for higher education in England’, and to define its ‘powers’ more fully, extending them to the furthest limits of its statutory duty as in FHEA ss.62-70.

Meeting the need for regulation for ‘alternative’ providers

Bringing the alternative providers into the regulatory system is one of the principal changes proposed in the Higher Education and Research Bill. Meeting this need seems to have had a disproportionate effect on its framing. No direct ‘regulatory’ powers or responsibilities can lie with HEFCE under the FHEA in the case of ‘alternative’ providers, because they are defined as providers not in receipt of direct public funding. The ‘conditions of grant’ sanction therefore cannot apply.

HEFCE has a role in the process by which alternative providers may apply for course ‘designation’. Students on a Designated Course are able to access Student Loan Company funding, though the providers of these courses are not deemed to be in receipt of the direct public funding to which conditions of grant apply. Regulation of alternative providers lies with Government and HEFCE can only, as it puts it, ‘assist’.

The Higher Education and Research Bill proposes to replace HEFCE (though not the other UK funding councils) by an Office for Students (OfS). This is to have extensive regulatory powers, including the de-registration of established higher education providers.

Consequence 2: Awareness of perceived ‘regulatory’ threats to institutional autonomy and academic freedom

In the Second Reading debate the Secretary of State offered a broad reassurance:

Academic autonomy is the bedrock of success for our higher education sector. The Bill introduces measures to safeguard the interests of students and taxpayers, while protecting academic freedom and institutional autonomy. It enables the OfS to be independent of Government and the sector, as a regulator should be. It will be an arm’s length non-departmental public body, just as the Higher Education Funding Council for England is now.

This seems to confuse the new ‘regulator’s’ independence of Government with protection of institutional independence or autonomy.

The limited definitions of ‘academic freedom’ available in current legislation are re-used in the Higher Education and Research Bill without reference to the intention of the legislation in which they were first included.

The Bill includes at s.2 a duty to protect academic freedom of ‘providers’ and at s.35 a duty to protect academic freedom. Both need careful review in Committee.

Institutional autonomy: course design

At s.2 (2) of the new legislation, OfS will be required to have regard to guidance given it by the Secretary of State. He or she is in turn required to have regard to the need to ‘protect academic freedom’. The specifics which follow all relate to institutional ‘academic freedom’, which would be more conveniently and less confusingly described as ‘institutional autonomy’.

The Secretary of State is not to interfere with a provider’s freedom ‘to determine the content of particular courses and the manner in which they are taught, supervised and assessed’; the appointment of academic staff or the admission of students. The Robbins Report of 1963 identified as fundamental the right of a university to determine on academic grounds who may teach, who may be taught, what may be taught and how it should be taught’ (Report of the Committee on Higher Education (1963), 702.). These four essentials have been respected ever since.

At the time of the passing of the FHEA there was significant Parliamentary challenge to the inclusion of powers for a Secretary of State to set conditions of grant framed by reference to particular courses of study. The result was FHEA s.68(3) which states that such terms and conditions:

may not be framed by reference to particular courses of study or programmes of research (including the contents of such courses or programmes and the manner in which they are taught, supervised or assessed) or to the criteria for the selection and appointment of academic staff and for the admission of students.

However, the Higher Education and Research Bill s.2 (4) enlarges the powers of a Secretary of State to offer ‘guidance’ ‘framed by reference to particular courses of study’. If the Bill is to modify this protection there must be a clear statement of the justification for doing so and the intention of the change.

Assessing degree ‘standards’ and the protection of institutional autonomy                                                      

In the Second Reading debate, Andrew Smith drew attention to Clause 23 of the Bill, which provides for the assessment of ‘standards’ as well as ‘quality’. This, he pointed out, ‘is an extension of regulatory power that infringes institutional autonomy. The Government need to tell us what its purpose is and how it will be used.’ That purpose, it emerges, is connected with the new OfS powers to register or deregister providers.

The Bill’s s.23 states that ‘“Standards” has the same meaning as in section 13(1)(a)’. That section occurs among the provisions about provider registration. Initial or ongoing registration conditions ‘may, in particular include:

a condition relating to the quality of, or the standards applied to, the higher education provided by the provider (including requiring the quality to be of a particular level or particular standards to be applied).

1. 23 continues on the ‘registration’ theme by requiring the OfS to:

assess, or make arrangements for the assessment of, the quality of, and the standards applied to, higher education provided by—

(a) institutions who have applied to be registered in the register for the purposes of determining whether they satisfy any initial registration condition applicable to them relating to the quality of, or standards applied to, higher education provided by them (see section 13(1)(a)),

and

(b) registered higher education providers for the purposes of determining whether they satisfy any ongoing registration condition of theirs relating to the quality of, or standards applied to, higher education provided by them (see section 13(1)(a)).

Academic freedom: the need for better wording

The Bill includes a separate clause 35 importing a ‘duty to protect academic freedom’. This repeats in different wording points made in s.2 and seems to refer to institutional autonomy. ‘Academic freedom’ insofar as it applies to individual academics appears only in s.14 (7) of the Bill among the ‘public interest governance conditions’ with which a provider’s governing documents must be ‘consistent’ , ‘so far as applicable to the provider’. S. 14 (7) contains the provision that the list must include the principle that:

academic staff at an English higher education provider have freedom within the law:

(a) to question and test received wisdom, and

(b) to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at the provider.

This wording is taken from Education Reform Act 1988 s.202 and has hitherto applied only to academic staff at universities then existing.

Its original purpose was to provide a protection against dismissal of academic staff for ‘managerial’ reasons when academic tenure was removed by the same Act. This, like the provision that the Secretary of State must not seek directly to control particular courses, was hard fought for in Parliamentary debate.

It seems clear that much more careful review of definitions and legislative provisions and their purposes is now needed in the case of both ‘institutional autonomy’ and ‘academic freeom’.  This is a part of the Bill which bears the marks of drafting in haste. These matters are too important to be left unrevised.

The Public Bills Committee has requested submissions on the Bill, which can be emailed to: scrutiny@parliament.uk

Points to raise:

• Drafting review seems to be a main need, to ensure that it is as clear as possible what is protected under the headings of ‘institutional autonomy’ and ‘academic freedom’.
• The proposed admission to the higher education sector of a variety of alternative providers, the vast majority without even taught degree-awarding powers, demands review and definition of the characteristics of a provider entitled to the protection of its institutional autonomy.