Tag Archives: House of Lords

A Motion of Regret: a constitutional avenue to ensure that fee rises are decoupled from TEF?

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Opinion piece by G. R. Evans

On April 4 the Higher Education and Research Bill left the Lords for the Commons after its Third Reading and on the same day the Technical and Further Education Bill also went back to the Commons with some Lords’ amendments.  The following day the Lords debated a Motion of Regret.

This is a rarely used but powerful constitutional device. Because the Parliament Acts of 1911 and 1949 apply only to primary legislation, the House of Lords retains powers of veto (though not powers of amendment) over secondary legislation. It rarely uses those powers, not least because to do so might easily tempt any Government to amend the law to remove them.  But when used they may be ‘fatal’ not only to the specific piece of secondary legislation being vetoed, but with more far-reaching policy consequences.

The Higher Education and Research Bill now faces a period of ping-pong, for it seems unlikely that without some hard nudging, the House of Commons will simply approve the Bill in the radically amended form in which it will now reach the elected House. One of the most contentious of the Lords’ successful Amendments is like to be Lord Kerslake’s Amendment 19 to Clause 11 passed on Division on 6 March,  263 to 211, decoupling the right to charge higher inflation-linked tuition fees to TEF performance.

So Lord Stevenson’s Motion of Regret could prove important as a nudge. It runs as follows:

That this House regrets that the Higher Education (Basic Amount) (England) Regulations 2016 and the Higher Education (Higher Amount) (England) Regulations 2016 together with retrospectively changed loan conditions for existing students are further incremental burdens on students that risk worsening the opportunities for young people from low-income backgrounds, mature students and those undertaking part-time courses; and calls on Her Majesty’s Government to report annually to Parliament on the impact on the economy of the increasing quantum of graduate debt, estimates of payback rates, and the estimate of the annual cost to the Exchequer of the present system.

The Motion refers to the  21st Report from the Secondary Legislation Scrutiny Committee (January 2017), which sets out the various areas of concern in paras.7-14, to which Lord Stevenson spoke in the debate.  As he noted, the Regulations were ‘negative instruments’ – that is legislation which passed unless challenged – and ‘the time for praying against them has long passed’. However, the Secondary Legislation Scrutiny Committee had drawn these Instruments to the special attention of the House:

on the ground that they give rise to issues of public policy likely to be of interest to the House.

Lord Stevenson summarised his argument at the beginning of a lengthy speech in which he was able to rehearse, with close reference to the Committee’s detailed concerns, many of the themes which had occupied members of the House of Lords in the debates of the preceding four months while the Higher Education and Research Bill had been before them:

I am going to argue that the neoliberal marketisation of our higher education system is wrong in principle, because higher education is not a market; that it loads students with personal debt; that it will not improve opportunities to study for young people from disadvantaged and low-income backgrounds, mature students and those who wish to undertake part-time courses; and that linking fee rises, thereby increasing the personal debt of students, to only one of the attributes of a good university is a mistake. I will end by arguing that the cost of these polices to the public purse is now so complex and uncertain that it is virtually impossible to challenge what the Government are doing: we need more and more regular information and I call on the Government to provide it.

Baroness Garden spoke next, to endorse what he had said, emphasising ( in line with one of the Lords’ amendments to the Bill) that:

We on these Benches totally reject the idea of linking fees to teaching excellence framework gradings, as the noble Lord, Lord Stevenson, set out. They are an untried and untested form of assessment which should not be used to determine fees. There appears to be no correlation between increased fees and improved teaching quality.

Lord Bew added his support a little later.

Lord Willetts spoke at some length in defence of his own policy-changes and their consequences.  Lord Younger reminded the House that:

the parliamentary process is still ongoing, and I look forward to Peers’ further engagement on this matter. Our policy intention remains to link maximum fees to the quality of provision via the teaching excellence framework as part of our wider reform package, as we are doing through these regulations. It is counter to government policy to see fee caps rise under any other circumstances.

Lord Stevenson, wriggled uncomfortably under the flow of personal compliments he received because he was, as Baroness Garden noted,  with ‘much regret’, ‘stepping down from his Front-Bench role’. Bringing peers back to the matter in hand, he concluded by emphasising the significance of his choice of an unusual constitutional device:

I have now realised, after nearly seven years here, that the way to tackle these issues is by tabling this sort of Motion because in the normal cut and thrust of debate and in the discussion of legislation and questions, one can never get down to a serious debate about serious issues.

He gave notice that it might need to be used again on this topic when the missing supplementary information had been published:

I just want something simple. If we cannot interpret this system on the basis of the DfE’s published accounts, perhaps tabling another Motion at an appropriate time agreed with the Minister, because he is a friend as well, would be the way forward. However, in the interim, we should get things started by testing the opinion of the House on whether it would like to see more information on this interesting area.

The Motion of Regret was carried on Division by 174:162.

Government’s letter to the Lords re TEF: A reply

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Opinion piece by Dorothy Bishop

The Higher Education and Research Bill (HERB) has had a rocky passage through parliament. As explained here, a Bill goes through several stages before it becomes law, with debate in both the House of Commons and the House of Lords, as well as Committee work that involves detailed line-by-line scrutiny of the text.  The Lords are primarily the revising chamber and they have passed a series of major amendments to HERB. The government has incorporated some of these amendments, but on its return to the Commons, the Bill may lose the Lords’ changes, and, as discussed in the Times Higher, there could be some to-and-fro before the Commons votes through a final version.

We have featured a series of posts on this blog discussing the amendments that have been proposed over the past two months:

One topic that particularly exercised the Lords was the new Teaching Excellence Framework (TEF). Introduction of the TEF did not require legislation: it was a manifesto commitment. Specifically, the Conservative manifesto stated: ” “We will ensure that universities deliver the best possible value for money to students: we will introduce a framework to recognise universities offering the highest teaching quality; encourage universities to offer more two-year courses; and require more data to be openly available to potential students so that they can make decisions informed by the career paths of past graduates”. Accordingly, the TEF is already underway in a preliminary form. Nevertheless, numerous objections have been raised to it. Many of these were stated in the response to the initial Green Paper introducing the idea, including our own response. Yet, as documented in an earlier post, these objections were largely ignored. However, the Lords, who include many people with considerable experience in Higher Education, continued to have concerns.

At last, it seems, the Government are taking the concerns seriously. Jo Johnson, the Minister responsible for HERB, and Viscount Younger of Leckie, a Conservative Peer who is the Lords Spokesperson for Higher Education, have written a letter on 3rd March to offer clarification of questions that had been raised about the TEF in the House of Lords.

As someone who has voiced repeated concerns about the TEF, I offer here an analysis of the points made in that letter. For detailed sources please see these slides from a lecture on this topic.

Page 1. Para 2a states ‘The TEF is essential to driving up standards of teaching. All those who spoke during the Committee stages of the Bill agreed that teaching quality is of paramount importance.’

We can all agree that teaching quality is of paramount importance in our Universities – this is motherhood and apple pie. However, the statement that the TEF is essential to drive up teaching standards contains two shaky premises: that standards need ‘driving up’, and that the TEF would achieve this. We only need to introduce sector-wide measures to address teaching if there is evidence it is inadequate. I have argued elsewhere that this case has never been made. In a speech in 9th September, Johnson talked of ‘patchiness in the student experience’ but presented only anecdote to support his case. In the Green Paper, it was claimed that both students and employers were dissatisfied with teaching, yet the evidence was cherry-picked and mis-represented the sources from which it came.

The Government is fond of treating Higher Education as a market, yet their ideas for improving the market are ones that few businesses would adopt. Anyone operating a widget factory knows that to maintain quality control, you don’t give every widget a detailed inspection: you adopt a process of sampling a small proportion, so you can be ready to check the production process if you find an unacceptable level of problems. Even Jo Johnson accepts that our Universities are world-leading, yet he wants to impose a further burden of evaluation to complement the Research Excellence Framework (REF). This will take money and resources from research and teaching and so be counterproductive. I would suggest that instead of a TEF we need:

  • A system of quality control that will scrutinise any institutions that show signs of failing (e.g. because of high level of complaints). We already have this with the Quality Assurance Agency (QAA).
  • Incorporation of some information about teaching quality in the REF Impact section – see this proposal by Roger Brown.
  • Disincentives for Universities to use zero-hours contract staff for teaching; this could include a section on staff well-being and moral in the Environment section of the REF.
  • Incentives for sharing good and innovative teaching practices

Page 1 para 1b. ‘The TEF will provide the financial and reputational incentives for providers to prioritise teaching excellence and student outcomes. Genuine and clear differentiation between providers and a link with fees are essential to achieving these outcomes.‘

The downside of yet another ranking system are simply ignored here. What is needed is a diverse higher education system, with different institutions developing their own specialised approaches to suit the very varied needs of our population. A crude ranking, further subdivided into Gold, Silver and Bronze, treats higher education as some kind of horse race, where quality can be measured on one dimension.

Page 1 para 2-3 notes that ‘It is important that we treat fairly those who have already decided to take part….The assessment process is already well underway and to change the “rules of the game”… would be extremely unfair on those who have invested their time and effort to participate this year’

I’m tempted to respond, ‘Well, whose fault is that, Minister’. It is Johnson who has chosen to implement an ill-thought-through evaluation system, with threats to participating organisations that they will lose their ability to raise fees unless they take part. And he also promised that TEF would not be onerous. But now we are told that those institutions who have taken part would have invested time and effort and so it would be unfair to stop. One is reminded of someone who orders a meal that makes them sick but persists in eating it, because the money has been spent.

What is really unfair is to adopt a system of evaluation that is based on unsuitable metrics, is incapable of making meaningful distinctions between institutions, yet which has the potential to damage the standing of a University.

Page 2, para 2. ‘We recognise the genuine and considered concerns raised by noble Lords about the TEF, in particular around the speed at which it is being implemented and on the use of metrics and ratings….a genuine lessons-learned exercise will take place after this trial year.’

Well, at last it seems there is recognition that the TEF in its current form is unworkable. Criticism has come from individuals who might be expected to support it; see e.g. this account of an interview with Chris Husbands, Chair of the TEF Panel on Jan 25th in the Times Higher:

‘“I do not think student satisfaction is an accurate proxy for teaching quality,” said Professor Husbands, a former director of the UCL Institute of Education who was named chair of the TEF panel by the Department for Business, Energy and Industrial Strategy in August 2016.

Professor Husbands drew attention to US studies that show that student satisfaction scores are heavily influenced by non-academic factors, including the sex or ethnicity of a lecturer.

“Student satisfaction seems to be driven by the physical attractiveness of academics rather than anything else,” he said of the US research findings.’

And Stuart Croft, VC at Warwick on Jan 31st wrote in the Times Higher ’…the metrics are flawed. This is not renegade opinion, but rather the overwhelming view of those actually involved in higher education….Yet the government has us over a barrel. It has linked the TEF to tuition fees and, potentially, our ability to recruit international students.’

Page 3. Para 1 states that ‘…the TEF is about much more than metrics. Providers submit additional evidence alongside their metrics and this evidence will be given significant weight by the panel.’

But what is the reliability and validity of the ‘additional evidence’? This seems like encouragement to Universities to tell plausible stories about their teaching and try to anticipate which buttons they need to hit to convince a panel that they are Gold rather than Silver and Bronze. There is huge scope here for subjectivity at best and corruption at worst.

Page 3. Para 2 state ‘All of the metrics used in the TEF are trusted, widely used and well established in the sector….. The NSS is just one of three principal sources of metrics data being used, and we have explicitly said that the NSS metrics are the least important. The TEF does not use in any way the overall ‘satisfaction’ rating, about which the House has rightly expressed concern, but instead uses specific questions from the NSS, related to teaching and learning.’

It’s hard to know where to start with this. There are numerous issues with using the NSS for assessing teaching quality, and changing the items that are used does not solve them. There are problems with validity – does the measure assess what it is supposed to measure, bias – are ratings affected by the teacher’s gender, race or disability, and sensitivity – is the spread of scores adequate for differences between institutions to be meaningful? Statistical criticisms have been made by both the Royal Statistical Society and the Office of National Statistics. We are told in para 2 that ‘the Government has already taken a number of steps to ensure that the statistics being used are robust, including commissioning a report by the Office of National Statistics.’ They seem to think that the ONS will somehow be able to magically transform an unreliable, insensitive scale into a meaningful indicator of teaching quality. Statisticians are good, but not that good. Furthermore, all the statistical problems that afflict the TEF are magnified with small samples, and small samples are going to be inevitable if we move, as we have been told we must, to subject-specific assessments.

It is depressing, though not surprising, to find that the letter ends by telling us the university sector must be ‘shaken out of its complacency’. It’s an easy but lazy point to say that opposition to the TEF is just the response of a complacent group of academics who are set in their ways, because it means you don’t actually have to consider the arguments. I suspect that Johnson would be surprised to find just how passionately many of us care about our Higher Education system. If he could grasp that point, he might start to take note of us when we tell him his superficial and rushed approach to evaluating teaching is resisted because of the considerable potential it has for harm.

 

 

 

 

 

 

 

Update on Amendments to the Higher Education and Research Bill

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David Midgley has kindly provided this useful summary of recent developments:

The text of the Bill as amended by the Lords in report stage is now available at https://www.publications.parliament.uk/pa/bills/lbill/2016-2017/0112/17112.pdf.

The most significant changes with regard to the regime proposed for higher education are these:

  • Lord Kerslake’s amendment of 6 March to the effect that the TEF “must not be used to rank English higher education providers as to the regulated course fees they charge”, carried by 263 votes to 211, which is now Clause 12;
  • Lord Blunkett’s amendment of 8 March, carried by 280 votes to 186, which requires any “scheme to assess and provide consistent and reliable information about the quality of education and teaching” to be subject to rigorous independent scrutiny, and precludes it from being “used to create a single composite ranking of English higher education providers” – this has become Clause 27;
  • Baroness Wolf’s amendment of 8 March, carried by 201 votes to 186, which makes explicit the role of the Quality Assessment Committee in relation to the authorisation of any new provider and requires such a provider to have been “established for a minimum of four years with satisfactory validation arrangements in place” before authorisation may be issued – this has been incorporated into Clause 47 (as sub-sections 12 and 13); and
  • Lord Judge’s amendment of 8 March, carried by 185 votes to 151, which has the effect of strengthening the power of appeal against a revocation of degree-awarding powers and/or university title – the relevant clause is now Clause 49.
  • Also of considerable importance for the future of universities is Lord Hannay’s amendment of 13 March, carried by a noteworthy 313 votes to 219, which seeks to protect the position of international students in British higher education – this appears as Clause 90 in the latest version of the Bill.
  • Also carried on 6 March, by 200 votes to 189, was Baroness Royall’s amendment, which requires that all eligible students should have “the opportunity to opt in to be added to the electoral register”, which has now been incorporated into Clause 16.

 

Rival sanctions? The Office for Students and the Competition and Markets Authority

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Preamble: The Higher Education and Research Bill will reach undergo line-by-line examination in the House of Lords on 6th March, when it reaches the Report Stage. This post is the second in a series of opinion pieces by G. R. Evans, reflecting on the Amendments tabled prior to this stage.

Opinion piece

by G. R. Evans

The Competition and Markets Authority (CMA) is a non-ministerial government department which works ‘to promote competition for the benefit of consumers, both within and outside the UK.’ Its stated aim is ‘to make markets work well for consumers, businesses and the economy.’

It has undertaken consultations on the fairness of student contracts with higher education providers. CMA advice for higher education providers on how to comply with consumer protection law  was published in March 2015, with guidance on consumer rights for students.

In a Press Release on 8 February, the Competition and Markets Authority drew attention to a compliance agreement reached with the University of East Anglia, stating:

‘Students will receive a fairer deal at the University of East Anglia (UEA) after the CMA secured changes to the university’s contract terms.’

The Press release explained that changes to modules at UEA had been found to have:

made significant changes to the content of a course – by introducing compulsory modules thus limiting students’ choice of optional modules – and not adequately informing prospective students who had received course offers about the changes.

The University has cooperated fully in amending its practice.

The CMA gives details on its case page of six agreements with universities reached since November. Not all were in England (one was with Glasgow).

There are, however, unanswered questions about how the CMA will work with the new Office for Students. Under the Higher Education and Research Bill the Office for Students will be able to suspend or de-register providers which are found to be in breach of their general or specific ongoing registration conditions, conditions which may be imposed by the OfS itself. It is far from clear whether these conditions will or may include compliance with CMA guidance. Perhaps it should be.

When he was questioned by the Education Select Committee at a Pre-Appointment Hearing on February 21 Sir Michael Barber was asked how he envisaged the OfS working with the CMA when he became the OfS Chair. He admitted he had not yet given the matter much thought.

Universities UK have begun some work on ‘how to ensure that fair terms and conditions are sufficiently flexible to allow courses to evolve’:

In order to understand this issue from the student perspective we are doing some work with the polling company ComRes.

This is not, however, the only area in which the CMA Guidance expresses concerns. Another became the subject of a finding and an adjustment in 2016. An agreement had been reached with UCL :

UCL will ensure that students are not prevented from graduating or re-enrolling because of non-academic debts, following action by the CMA.

A further area of concern to the CMA is the now very common claiming by higher education providers of the intellectual property of students, that is if the terms of the student contract (or the also common) inclusion in its statutes and regulations to which the contract binds the student) of a provision to ‘assign all intellectual property rights (IP) for any of [the student’s] work to the university, regardless of the circumstances’(3.6) .

Might or should the OfS impose sanctions on a provider the CMA found to be non-compliant? It may be wise to think this through before the Higher Education and Research Bill has reached the end of its journey towards royal assent.

The mysterious letters in the library

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Opinion Piece

by G. R. Evans

The Higher Education and Research Bill has now had seven sessions before the Lords in Committee, ending on 30 January. As Lord Willetts acknowledged, it has become ‘famous’ for the sheer number of ‘letters’ promised to various Peers at the Committee stage, by those tasked with undertaking the role of the Minister in the Commons: Lord Younger (Spokesperson on Higher Education in the Lords), Baroness Goldie (who stood in for him from time to time) or Lord Prior. Lord Prior was appointed Parliamentary Under Secretary of State at the Department for Business, Energy and Industrial Strategy only on 21 December 2016 and he too found himself unable to provide answers on 30 January when the Lords were discussing UKRI, which is to be the responsibility of his own Department of State. (‘Rather than ad lib on this, I had better consult officials and write to the noble Lord’).

These ‘letters’ occupy an anomalous place in the legislative process. The steps by which a Bill passes into an Act of Parliament ready for Royal Assent are fully transparent in every respect but this. First the Commons then the Lords have their First and Second Readings and their Committee stages, the debates are now broadcast live and a verbatim account may be read in Hansard the next morning. But when a Minister cannot give an adequate response to a question raised in debate he may simply offer to write one of these clarificatory ‘letters’ which, unlike Written Answers to Questions put by MPs or peers, do not appear in Hansard.

The assiduous reader of Hansard may want to know what the promised letter says. Even Lord MacKay of Clashfern, who has been a member of the House of Lords since 1979, declared himself not sure in the debate on 30 January:

My noble friend mentioned a letter. I was at a meeting last week with a number of people interested in the Bill and its progress [the CDBU Annual Lecture given by Martin Wolf]. They mentioned the letters referred to in Hansard. They asked where they could see them. I was not certain, but I assume they are in the Library.

It is possible to find out. Such letters may indeed be deposited in the Library of the House of Commons or the House of Lords by a Minister or by the Speaker. However, the online search for a deposited letter is a slow business because one may search under only limited fixed headings. There seems no systematic linkage of a given letter with the exact passage in the debate to which it refers, though it would surely be easy enough to provide that link.

It all looks rather a muddle. In the case of the letters so far written to Lords during the Committee stage some appear in duplicate with more than one number; some with the same text are written separately to different Lords by name. Appendices said in a letter to be attached to it are often not there.

There seems no easy way for Lords to discover what has been deposited, no routine notification of deposit of a particular letter, no listing of letters outstanding and not yet written (as there is for Questions requiring Written Answers). Deposited papers are not ‘presented or laid formally before Parliament’ though the public may access them and members of either House may now ask to have a particular letter by email. So there is some degree of transparency and orderliness. But at the crucial final stages of the Bill it will be hard work for Commons, Lords or general public to be confident that all the Government’s arguments including those in the letters are marshalled together for detailed review. The ‘all Bill documents’ link on the Bill’s website does not include them. It should.

These letters on points which baffled Government spokesmen in debate are surely too important to be treated so casually in the legislative process. If as appears to be acknowledged, the number promised in the committee stage of the Higher Education and Research Bill is quite exceptional, the need to examine the role of such letters in an otherwise transparent legislative process seems clear.

It is especially important in the case of the Higher Education and Research Bill, of which Baroness Deech said at the end of the final Committee session that it ‘is not much more than a framework, albeit a very heavy framework, on which later policy is to be hung’:

Now that we have reached the end of the Committee with so many gaps in the Bill, can the Minister assure us that there will be some process of post-legislative scrutiny to ensure that this experiment is working?

Those gaps might indeed be filled by the promised letters, of which comparatively few appear yet to be available, but where they are so numerous and extensive they should surely be provided, online, in a consolidated set. Lord Watson put his fear frankly:

the Minister sought to reassure noble Lords that he will reflect on all amendments. That will be of very limited value if, at a later date, he simply comes back on Report or in letters to say that, having reflected, he is not minded to accept the amendments’ (Lord Watson, 11 January).

Those letters surely ought to set out the process of ‘reflection’ in giving their promised answers or Government will have failed shamefully to explain itself.

 

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

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

by

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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House of Lords debate on the Higher Education and Research Bill

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Rapid reaction to the First Amendment

by

G.R.Evans

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.