Making the Rules

Words by G.R Evans, Emeritus Professor of Medieval Theology, University of Cambridge and author of discussions of university governance and Histories of Oxford and Cambridge.

 

Unvisited information?

Staff and students may not ask themselves how their university or other provider of their higher education is run until they encounter a difficulty.  In many years of work in helping to resolve higher education disputes I have been asked again and again what can be done about a problem. The enquirer simply did not know where to look. A member may look for support to  a student or trade union, but the inequality of arms is always apparent. Human Resources normally support the institution not individual members of staff. For various categories of employee there may be a ‘grievance’ procedure operated by the institution. Students are normally able to find ‘complaints procedures’ online but again these are largely conducted by the institution.

For an individual who wants to have a say in the resolution of a dispute published procedures are normally to be found online and also the names of senior administrators but will a distressed individual know enough to go to ‘About’ in search of links to those?  Once found, About may offer a sub-heading on ‘Structure and Governance’, but most higher education providers fill their websites with bids to attract applicants and reputation-building claims.  Information about the running of the institution may be linked to a variety of descriptions and take patient searching to find. Type the name of any ‘provider’ and try. For example the University of Reading’s ‘About us’ will require much scrolling through sub-sections to get down to ‘Academic and Governance Services’, and more below that to arrive at the High Level Organisational Structure . In that cluster of sub-sections may be found Officers of the University and Ordinances,  which have to be downloaded as a pdf before they can be explored. 

BPP University, an early ‘alternative provider’, explains its governance some way down under ‘About’ and, separately, its ‘Senior Team’ , whose members are described as ‘organising, directing and managing’ it. This separation of ‘governance’ and ‘management is now of the first importance.  Until a quarter of a century ago administrators in universities tended to see themselves a ‘civil servants’ to the academics but once that role becomes one of ‘management’ a gulf opens up, moving ‘governance’ to an area where ‘statutes’ or ‘ordinances’ or ‘articles of association’  remain in force but may rarely be turned to or enforced. 

The legislative level of the rules of a higher education provider is important in ensuring that academic staff can have a say in its governance.  At the top are Statutes,  found only in universities created before1992. In a Ministerial Statement  on ‘Higher Education (deregulation of Governance) on 7 February 2006 the Minister for Higher Education and Lifelong Learning announced that:

while the Government cannot require institutions to liberalise their governance arrangements, we very much hope that they will bring forward proposals that will relieve them of the obligation of having all amendments to their governance arrangements agreed by the Privy Council.

Since 2006 there has been a consequent tendency to lower the level of this internal legislation from Statute to ‘regulation’ or ‘ordinance’. This has the effect of removing or lessening certain protections, most noticeably those of the Education Reform Act 1988 s.202 against  dismissal of academics.

Below Statutes come a variety of lesser provisions and protections, in whose creation and enforcement academic staff may have little or no say but which are often embedded in their contracts of employment.

Rule-making in different kinds of higher education provider

There are now four or five kinds of university and many more ‘higher education providers’ which are not universities, each with its own system of governance.  The Office for Students’ Register of providers explains the category to which each belongs and whether it has to right to call itself a university under Higher Education and Research Act 2017 ss.56-60. The Act (ss.43-55) also sets out the rules governing the power to grant degrees. The authority to make rules for the governance of these bodies depends on their type. 

1. The civil corporations 

 Oxford and Cambridge are in a category of their own.  Their Vice-Chancellors are not Chief Executives. They are exempt charities in the form of civil corporations which founded themselves more than eight hundred years ago. In both the legislative governing bodies are still communities of several thousand academic and (today) senior academic-related staff,  Congregation in Oxford and the Regent House in Cambridge. These bodies must approve and can always amend or create legislation. They do this by debate on proposals put to them,  followed by voting. Their decision is final. 

 Statutes are made by these democratic bodies under the Oxford and Cambridge Act 1923. In Oxford some of these need to be approved by the Privy Council. in Cambridge all Statutes need that approval.  

Not all the business of these universities can be conducted directly by their democratic sovereign bodies. Both Universities have Councils of about two dozen, in Oxford made up of  Congregation members member elected by Congregation or ex officio, with five external members; in Cambridge consisting of members elected by and from the Regent House, plus four external members. The Councils have powers and Committees reporting to them, which are listed and defined in the Statutes.  

Oxford has subordinate Regulations, made by its Council or occasionally directly by Congregation. These are published in the Oxford University Gazette for approval at a meeting of Congregation. If there is no objection they are approved.  An objection prompts a debate, followed by a live vote. All speeches are published verbatim in the Gazette for the historical record. Congregation can always vote to refuse to approve a Council Regulation. The vote is binding unless a postal vote is called, when the result of that note becomes binding.

Cambridge has subordinate legislation in the form of Special Ordinances and Ordinances.  The Council or the General Board publishes a Report to the University in the Cambridge UniversityReporter, its organ of historical record, containing Recommendations. There is then a Discussion at which any member of the University may speak, including students. The discussion is published verbatim in the Reporter, again for the historical record. Council normally publishes a Notice in response in the Reporter and if it chooses may publish a Grace (a legislative proposal). Ten days are allowed for Regent House signatures to be collected to object (creating a Non Placet) or propose an Amendment. If that happens a postal ballot follows. If there is no objection the Grace is approved.

 In Oxford two members of Congregation may ask a Question, which must be answered by the Council in the Gazette. Supplementary Questions may be asked, all published in the Gazette. Each Oxford and Cambridge college is a separate corporation approving its own Statutes, with a democratic Governing Body of its Fellows taking decisions.  Its Master, President or Provost is not a Chief Executive.

2. Chartered universities

The  (pre-1992) chartered universities were created by royal charter and have Statutes approved by the Privy Council.  Each has a governing body of about two dozen with a Chair, meeting a few times a year. The Council has external membership, which is normally in the majority.  Its primary responsibilities are usually set out in an Ordinance under its Statutes.  It meets a few times a year.

Although the Vice-Chancellor is a Chief Executive, the Council forms the ultimate decision-making authority. The Chair of the Council commonly works collaboratively with the Vice-Chancellor. Much of the Council’s  detailed work is delegated to Committees which report to the Council.

These universities also have also larger bodies in the form of a Senate or Academic Board made up of heads of departments and faculties, administrative staff,  elected representatives and students. This body has its own subordinate committees of Boards which report to the Senate. It  deals with academic matters but does not decide the principal rules of governance.

3. Statutory Corporations

The universities created under Further and Higher Education Act 1992 are statutory corporations. Each has an instrument of government complying with s.72 and Schedule 7A (now new Schedule 6) of the Act,  providing for the constitution of the corporation. Also see Higher Education and Research Act 2017 Schedule 8. 

These universities have  governing bodies of up to 24 with an external Chair. This forms the ultimate decision-making authority. These are the university’s only ‘members’. Up to two may be teachers at the institution nominated by the academic board and up to two may be students at the institution nominated by the students at the institution’. At least half must be ‘independent’ (external) members. The Vice-Chancellor is the Chief Executive and may be a member of the Governing body if he chooses. This body makes the rules of the university’s governance.

The providers which have Statutes

Types 1-3 are exempt charities under Charities Act 2011 and the Office for Students is their Regulator. An exempt charity is a body under charity law obligations, but not regulated by the Charity Commission. Instead a regulator deemed more suitable by virtue of its sectoral expertise (the OfS in this case) regulates compliance with charitable obligations, under a memorandum of understanding with the Charity Commission. The OfS publishes a list of the list of exempt charities it regulates.

The exempt charities normally designate the members of their Councils as the trustees. This is controversial in Oxford and Cambridge. In the case of Oxford and Cambridge their Councils as trustees remain subject to their legislative governing bodies which can override any decision they make.  Oxford and Cambridge colleges are charities but not exempt charities. Statutes and subordinate legislation  made under them in these universities are usually easy to find online.

 Alternative providers 

Alternative providers  are Higher Education providers which do not receive recurrent funding from the Office for Students or other public body and are not further education colleges. They may or may not be universities. They may or may not have degree-awarding powers. They may also be charities or, alternatively, ‘for profit’ or ‘not-for-profit’ companies.

There is a now large and growing number of alternative providers with a wide range of modes of governance. It can be difficult to find the procedures and rules under which these providers operate. The information is usually under ‘About Us’ of ‘Home’. Arden University for example has a link to ‘Our Policies, Standards and Procedures’ under ‘Home’, giving further details of management structures.

The Office for Students’ Key Performance Measures do not include under ‘Efficient Regulation’ provisions governing the making of rules as a requirement or expectation. 

Conclusion

It is therefore by no means easy for academics to have a say in the design of their university’s governance, with the exception of members of the sovereign bodies of Oxford and Cambridge.  UCU and other trade unions tend to concentrate on employment matters rather than governance.  Student unions may make themselves felt in various ways but it is rare for a governance matter to rise high among student concerns and controversies.  

The concept of ‘senior leadership’ has grown stronger, with Chief Executive Chancellor’s and Pro-Vice-Chancellors, often together with a Registrar, forming an executive oligarchy. The Board or Council exercises governance powers with the disadvantage that its members are preponderantly external, meet only a few times a year, and have limited understanding of the texture and priorities of the life and work of a university.  The Chair of the Board is likely to work closely with the Vice-Chancellor and the Registrar ( as Secretary to the Board ).

 The Committee of University Chairs  ( to which neither Oxford nor Cambridge belongs, having no Chairs) has produced and revised a Higher Education Code of Governance adhering to the Nolan Principles and including a Statement of Primary Responsibilities. This lists nineteen, beginning with ‘to set and agree the mission, strategic vision and values of the institution with the Executive’. The direct involvement of academics is remote throughout this list.


G.R Evans is Emeritus Professor of Medieval Theology, University of Cambridge and author of discussions of university governance and Histories of Oxford and Cambridge.