The definition of a university: how many new providers fit the bill?

Rapid reaction to the House of Lords debate on the Higher Education and Research Bill


G.R. Evans

The headline-grabbing result of the first session of the House of Lords in Committee on 9 January was a vote which defeated the Government. By a majority of 248-221 the Lords approved Amendment 1, which was to provide a first Clause defining ‘university’. The Amendment assumes that higher education teaching must have the support of scholarship and research. This is high stakes: many of those wanting to enter the market would not meet these criteria.

The Amendment by the House of Lords: functions of a University

Screen Shot 2017-01-17 at 18.00.16Were the Lords wise to seek a definition? In a blogpost in Times Higher Education, Nick Hillman thought not. Agreeing with some of those in the debate, he argued that there never had been a definition of university in English law, and that to have one would tend to prevent improvement and innovation.

However, Lord Krebs was voicing the majority opinion when he called on the Government two days later when debate resumed, to ‘define your terms’. More defining of terms was already in prospect when on Wednesday, the Lords tackled Clause 2.

What is a regulator?

There was a call to define ‘regulator’. Lord Stevenson of Balcamara said ‘it would be useful and comforting if the Minister could write to us explaining exactly what the term regulator implies. That would give reassurance to some of us who have been worrying about this issue’. Baroness Wolf noted a particular difficulty:

we are not quite clear whether [OfS] is a regulator or not, and we also have the Competition and Markets Authority. One question that I have is whether there are incipient conflicts between these two important and powerful bodies.

What is the meaning of higher education?

In framing Amendment 72, Lords called for another definition. This was to be a new Clause headed ‘Meaning of higher education’. It would come at the end of Clause 2, setting out the ‘general duties’ of the OFS, and say:

For the purposes of this Act, the provision of higher education by English higher education providers comprises higher education provision by—

(a) universities,

(b) colleges of further education, and

(c ) other higher education providers, both registered and unregistered.

It was in the list of Amendments (34-59 )‘not moved’ that evening.

The importance of research for universities

Where does this leave the definition of a university as approved by the Lords on 9 January? On 11 January, discussing the importance of ensuring that the new Office for Students (OfS) and the new UK Research and Innovation (UKRI) bodies would work together, speaker after speaker stressed the importance of the research element in higher education teaching, the stimulus it offered to students, the edge it gave to have the content of what was taught visibly touching the boundaries where knowledge was being expanded.

But two days earlier, Lord Younger, responding to the debate so far, took a different view:

while I agree that teaching should be informed and supported by scholarship and research, 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 …. The amendment would be a regressive step. The changes were rightly made … and recognised that teaching is a legitimate primary activity for a university. If we place barriers in the way of new and innovative universities, we risk diminishing the relevance and value of our higher education sector to changing student and employer needs—becoming a relic of the 20th century while the rest of the world moves on.

This is a significant speech, whose implications should not be lost sight of. It contrasts ‘must’ and ‘may’, a distinction which was made much of on 11 January in the attempts of peers to persuade the Government to make OfS’s duties expressly into ‘musts’. While the Lords’ Amendment speaks of UK universities, Lord Younger defended a change which applies only to those in England and Wales. There have been calls for more attention to be paid to ‘national differences’. This was the decision of 2004 to allow providers with only taught-degree-awarding powers to gain university title. This, he argued on 9 January, meant that teaching was recognised as ‘a legitimate primary activity for a university’. In reality it amounted to something more, a recognition that teaching might be the only defining activity of a university.

Neither Scotland nor Northern Ireland has so far seen advantage in moving in the same direction and removing the requirement for a provider to obtain powers to award research degrees before becoming eligible to call itself a university.

Teaching-only ‘universities’

In England university or ‘university college’ title has been bestowed on seven alternative providers, all – except the longstanding University of Buckingham which had gained its title decades earlier and before this change – with only taught degree-awarding powers. Arden University; BPP University Ltd.; University College of Estate Management; the University of Law Ltd; the London Institute of Banking and Finance’; Regent’s University, London.

Several of these fulfil another desideratum expressed by Lord Younger in the same speech, that ‘specialist’ universities should be encouraged. The Bill envisages even single-subject universities. Yet none of them can be said to be strikingly ‘innovative’. Apart from the long established College of Estate Management, which does what its name suggests, they all concentrate mainly on business and management, law, accounting and finance, sometimes with tourism, health and social care. This is exactly the range of subjects mainly offered at Level 4 and 5 in the hundreds of alternative providers which run Pearson-Edexcel courses.

Where do we draw the line?

The Minister’s claim that that the Lords’ Amendment represents merely the vested interest of a ‘cartel’ of publicly-funded research-active universities should not be taken seriously until the Government can provide a coherent and evidence-based account of the present reality and the acceptable range of future inclusion of novelties.

Where does Jo Johnson think the boundaries of higher education diversity should be set? Hamburger University is real enough, and McDonalds offers a Foundation Degree in the UK, ‘certified by Manchester Metropolitan University’, but that presumably counts as one of the ‘cartel’ keeping innovative specialist providers from moving straight to their own probationary degree-awarding powers and then to university title. The Faculty of Astrological Studies published its examination results at the recent Winter Solstice when ‘Saturn its lord and god of the harvest, is elevated in the sky together with the Sun in the ingress chart for London’. If this provider would not be eligible to seek degree-awarding powers and university title should the Government be able to explain why not?

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Lobbying on behalf of alternative providers: what is going on?

Guest blogpost by G. R. Evans


Original photo by James Boyes from UK - Brighton v Spurs Amex Opening 30/7/11 Uploaded by Kafuffle, CC BY 2.0,

Original photo by James Boyes from UK – Brighton v Spurs Amex Opening 30/7/11 Uploaded by Kafuffle, CC BY 2.0,


Who ‘represents’ providers of UK higher education?

Alex Proudfoot, the CEO of an organization called Independent Higher Education, was invited as a witness to the Committee evaluating the Higher Education and Research Bill. His views were taken seriously and were quoted in prepared statements by the Minister during the discussion. So who exactly does Alex Proudfoot represent? Is Independent Higher Education the voice of the ‘alternative providers’? The evidence suggests there are reasons for doubt, not least of which is that it appears to have no significant membership among the 117 alternative providers listed on the HEFCE Register.

The Higher Education and Research Act is intended to create a single system of higher education provision in England. In the evidence session held at the Committee stage of the Higher Education and Research Bill on 6 September, witnesses appeared on behalf of three ‘interest groups’ representing existing providers, Universities UK, GuildHE and Million Plus.  In addition, there was Alex Proudfoot  its CEO and Paul Kirkham its Vice-Chair, representing a newcomer called ‘Independent Higher Education’.

The other witnesses represent well-established interest groups. Universities UK (formerly the Committee of Vice-Chancellors and Principals) is the Vice-Chancellors’ longstanding membership organisation. The Vice-Chancellors elect a 24-person Board and a President from among themselves. UUK does not exclude alternative providers which have university title. For example, Regent’s University may be found there. GuildHE, founded in the 1970s as the Standing Conference of Principals, now has about three dozen full and associate members, some now with university title. Million Plus describes itself as the ‘association for modern universities’. It lists about 20 members, all post-1992 universities, none of them alternative providers.

A first attempt to create an interest group for alternative providers was led by Aldwyn Cooper, Vice-Chancellor of Regent’s University in January 2015, initially representing eight providers with degree-awarding powers or university title. This took the loose title of the Independent Universities Group, but has encountered difficulties in defining a common cause. IfS did not join it and it became uncomfortable about including the University of Law after that was taken over by Global University Systems. It was not invited to give evidence to the Committee in September 2016.

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Consequences for institutional autonomy and academic freedom

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)),


(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:

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.

Speedy entrances and sharp exits: letting in more alternative providers

No. 3 in a series of Guest posts by G. R. Evans


Alternative providers from Key: Blue have University Title; Brown have Degree-Awarding Powers; Pink offer designated courses; Violet deliver HE as a franchise only.

One of the most controversial suggestions in the White Paper of May 16 is a change to the long-standing policy that on the rare occasion higher education providers get into difficulties the funding council will support them to put right what has gone wrong, in order that students may complete their courses and obtain degrees of lasting repute and value. The White Paper sees new providers as ‘challenger’ institutions and approves of ‘provider exit’, provided there are protections for students affected. The Higher Education and Research Bill includes detailed provisions for the future OfS to register and de-register providers.

Making it easier and quicker for new providers to gain degree-awarding powers or university title

In the House of Lords debate on the Queen’s speech on May 19, Baroness Brinton expressed a concern about the proposal to make it easier to gain degree-awarding powers or university title:

The White Paper relaxes much of the protective structure to ensure quality that has been one of the key reasons the UK’s institutions have an enviable reputation. The new degree-awarding powers mechanism must maintain that protection. We await the detail, to see how this will operate, but I have concerns that allowing start-up universities to set up quickly might not provide the security that students deserve.’

That ‘detail’ was partly provided with the publication of the Bill. One speaker on 19 July had personal experience of the development of a private provider. Mark Field explained that he had spent the past eleven years on the advisory board of the London School of Commerce. It had been a positive experience, he said. However, he argued strongly for ‘the proposals to relax the criteria for validating degree-awarding powers’ to ‘be examined thoroughly’. ‘I have some sympathy with the view that because the title of a university is much respected, it should be clearly protected and defined,’ he added.

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