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The Higher Education and Research Act 2017 passed into law on 27th April. But the ease with which it slipped through both Houses in the week before the dissolution cannot disguise the fact that its passage through parliament was exceedingly rough. Between December and March the bill was subjected to well over 500 amendments before a version was arrived at that both the Commons and the Lords could accept. What can we learn from this process, and where does it leave our universities?
The issues the bill was designed to address are complex. It was apparent to all factions in the parliamentary debates that, following the introduction in 2012 of a funding system for teaching that is primarily based on tuition fees and loans, the regulation of the higher education sector needed some adjustment. The more that students are required to invest financially in the courses they take, the more they need an appropriate regime of consumer protection. And since universities had been encouraged by the financial incentives established in recent years to concentrate on research, it could fairly be argued that some action was needed to redress the balance and ensure that adequate time and attention is also devoted to teaching.
Yet the reforms proposed by the then Department for Business, Innovation and Skills (BIS) did not end there. The bill presented to parliament in May 2016 also included measures to reorganise the research councils and incorporate them into a new overarching funding body, along with Innovate UK, the agency that facilitates the practical application of research outcomes. It also sought to make it easier to establish new institutions that would provide training in the specialised skills thought necessary to drive the economy forward. But beyond that point, an extraordinary muddle seems to have been generated by the insistence on subordinating educational requirements to a very crude application of economic logic.
The Browne Review in 2010 sought to apply the dynamics of the market to higher education, offering the mollifying reflection that “competition generally raises quality.” However, in the plans that BIS devised, that proposition hardened into the dogma that the only way to gauge the quality of a higher education institution was in terms of its throughput and customer satisfaction ratings. As a result, universities were confronted with the “Teaching Excellence Framework,” (TEF) a scheme that lacked any means of assessing teaching excellence. Instead, it relies on figures that strongly correlate with other factors—social background, personal motivation, the job market, and so on—but which, as the Royal Statistical Society warned BIS, bore no reliable relation to quality of teaching.
In the drafting of the bill, moreover, the government’s desire to encourage private investment in higher education gave rise to further perversities. Due to the known risk of fraudulent activity by private for-profit providers, the new regulator—the “Office for Students”—was to be equipped with powers to take action against this, including the authority to enter and search the premises of higher education institutions. And since, in an open market, there was also the risk of institutions failing to maintain the high standards of British universities, the regulator would have the authority to deprive them of their degree-awarding status. But these powers were also to apply to existing universities. In this way, the proposed Office for Students grew into an Office for Everything Else: a regulator that was also a validator of last resort for degree courses, an enforcer of the market approach that also carried ultimate responsibility for quality control.
It was left to the House of Lords to exercise the due care and attention that had been palpably lacking in the original design of the bill, which they did during the first three months of 2017 in the course of debates lasting well over 60 hours. The amendments carried by the Lords would, if they had been allowed to stand, have ensured that rigorous independent scrutiny was applied to any scheme for evaluating the quality of education and teaching in universities; prevented any such scheme from being used to create a consolidated ranking of English higher education providers; decoupled any such ranking procedure from the fixing of course fees; defined the role of any quality assessment body in relation to the authorisation of any new provider; strengthened the scope for an institution to appeal against a revocation of its degree-awarding powers by the Office for Students; given students a statutory entitlement to be added to the electoral roll; and ensured that international students are not counted as long-term migrants to the UK. None of these amendments was accepted by the government—and it was rumoured that it would have rather seen the bill fail than accept the last one. But in the parliamentary “wash-up” at the end of April a number of compromises were made. What, then, is the situation that universities are left in now that the bill has become law?
The conception of the TEF has not changed significantly, but it is now to undergo a full independent review of its procedures, its metrics, and its impact on institutions in the first year of its operation. The provision for ranking universities on the basis of their scores also remains, but the use of this process in setting different fee levels will be deferred until 2020, in the hope that the evaluative procedures will command greater confidence by then. Any ministerial decision on the setting of fee levels will now also be subject to the express approval of both Houses of Parliament.
The Office for Students retains its power to revoke universities’ degree-awarding powers as well as to grant them, but there is now clear provision for institutions to appeal. That Office is now also required to obtain independent advice on the quality of provision in institutions seeking registration, so the potential for conflicts of interest has been reduced a little. And while there is to be no uniform process for adding students to the electoral roll, there will be a procedure for encouraging institutions to facilitate this process.
The thorough revision that this legislation underwent has then given universities some breathing space and the opportunity to press for more sensible approaches to quality assurance before the Act begins to bite in 2020. However, vigilance and persistent advocacy will be needed in the months ahead if the capacity of universities to educate is not to be unduly constrained by an ill-conceived and inappropriate regulatory regime.
