Rapid reaction to the First Amendment
It’s certainly a story when the House of Lords is packed, as it was on 9 January to discuss the first of well over 500 amendments to a Bill. Several speakers noted that they were adding themselves to the long list who spoke in the Second Reading debate on 6 December because they had not been available to speak then.
When it came to a vote on this first Amendment in Committee, the sheer numbers present became clear. The Amendment was approved by 248-221. A story indeed, as the press was quick to record.
As speakers noted in stressing its importance, the result will now govern much of what follows as the remaining amendments are debated.
Lord Stevenson of Balcamara, introducing the Amendment, put it plainly. ‘The purpose of the amendment is simple. The Bill before us does not define a university, and we think it will be improved if it does so.’
Speakers on both sides had tried to find an existing definition in English law and Baroness Wolf, who had looked hard, noted that ‘the Minister had kindly confirmed, in replies to Written Questions that the term is not defined in legislation’. A couple of corners where they might have looked suggest themselves. They may be worth adding here, for future reference of all concerned.
The distinction between providing ‘higher education’ and ‘being a university’: title and substance
Baroness Wolf in a second speech, seeking to bring their Lordships back to the matter in hand, reminded them that:
Absolutely rightly, the Bill distinguishes between degree-awarding powers and the title of “university”. So it should and so it must, because we are now in a world where many institutions which are not and will never wish to be universities give degrees. Further education colleges are a very obvious and important sector. We are also, I am delighted to say, moving into a world with degree apprenticeships.
The risk of not having a definition of ‘university’ in law, she reminded them, was that ‘we leave the decisions about what a university is to the bureaucrats of the Office for Students, who will make those decisions but will never actually have to make them public’.
This was not, as other speakers stressed, to seek to devalue other higher educaiton providers, but to clarify a difference in kind. Baroness Blackstone shared the concern to distinguish universities from a vast range of providers of higher education. For ‘many, many decades, higher education has embraced not only universities but many other kinds of institution’ she accepted approvingly.
The first existing legislative marker helps to clarify the important difference between ‘title’and ‘substance’, which worries many when they see that a company applying to Companies House to use the sensitive word ‘university’ has to do little beyond getting it accepted that its new title will not lead to its being confused with any existing university. The law as it stands confers university ‘substance’ as well as university ‘title’.
The Further and Higher Education Act 1992 s.77 (4) states that:
Any educational institution whose name includes the word “university” by virtue of the exercise of any power as extended by subsection (1) above is to be treated as a university for all purposes.
Subsection (1) requires that any such entity be an ‘educational institution’ and ‘within the higher education sector’ and allows both the Privy Council and the Companies House routes to grant permission for use of the word and thus the substantive ‘being’ of ‘university’ to the title-holders.
This provision had to be adjusted in 1998 to prevent ‘university colleges’ claiming that they were substantively universities. So the clause now adds ‘unless in that name that word is immediately followed by the word “college” or “collegiate”’. (Words added by 1998 c. 30, ss.40, 46(4) (with s. 42(8)); S.I. 1998/2215, art. 2).
When Lord Younger responding to the debate on behalf of the Government, could be seen to turn to a prepared script and begin to read, but he added some reference to speeches made that afternoon. His argument was that it would be dangerous to include a definition of a university in legislation. He may now have to think again.
Teaching-only or teaching-and-research: What should a university do?
The other concern which ran through the speeches was about what a university should ‘do’. Important here is the change of 2004 which allowed holders of only taught degree-awarding powers to gain university title, in England and Wales but not in Scotland or Northern Ireland. Lord Younger, linking the ‘teaching-only’ policy with the objective of encouraging specialist and single-subject providers, said:
I have to agree with the changes made under the Labour Government in 2004. As my noble friend Lord Willetts explained, those changes to the criteria for university title removed the requirement for universities to need to award research degrees and also removed the requirement for a university to have students in five different subject areas. The amendment would be a regressive step. The changes were rightly made to allow for a greater diversity of specialist universities in higher education, and recognised that teaching is a legitimate primary activity for a university.
Here too there is another bit of lingering legislation which seems not to have been spotted. The Universities of Oxford and Cambridge Act 1877 s.15 , setting up Royal Commissioners to revise the statutes of the two universities, stipulated that ‘the Commissioners, in making a statute for the University…shall have regard to the interests of education, religion, learning and research’. Universities of Oxford and Cambridge Act 1923 applied in its Schedule various provisions of the 1877 Act including this one. When I was admitted to a University Teaching Office in Cambridge in the 1980s this was still the defining requirement of the job.
Statute and statutes?
It would be a pity to end without mentioning the speech of Lord Broers, who as Cambridge Vice-Chancellor rode the bucking bronco of an unsuccessful attempt to change Cambridge’s statutes. ‘I support the proposed new clause’, he said, but regretted that it ‘does not mention governance, and whether universities not only are autonomous but have the right to determine how they govern themselves’. ‘We debated it intensely in Cambridge at one time’:
Universities should be allowed to determine their own form of governance, and some words need to be included in a clause like this to say that.
The Bill is startlingly silent on the role of the Privy Council in approving changes to university statutes, and indeed on whether it is expected that a university will in future be expected to have its own statutes at all. ‘Autonomy’ means having authority to make their own laws. WithIn those can be embedded its deepest sense of self, the identity which would ensure that it fulfilled the statutory definiton of a university which can now be hoped for.