Over the last 35 or so years, I have had the privilege of visiting many universities and higher education institutions wearing a variety of hats: as a legal adviser, as a conference delegate, as a member of the public for ‘open’ events, as a parent, as a student and, before that, as a school pupil.
One of the many wonderful things that I have experienced from these visits is the incredible diversity of the institutions, both in their physical architecture and in their different missions and activities. There are large multi-faculty universities and small specialist institutions. Some have leafy campuses and some are cheek-by-jowl in urban environments with other buildings and organisations. There are libraries, laboratories, lecture halls and living spaces. Some have ancient heritage and some have been established more recently. Each one has a unique history and purpose.
I have also seen a golden thread that runs through each institution. Each one is an independent, self-governing and autonomous body comprising their own governing body and trustees. Most ‘traditional’ universities and higher education institutions are charitable bodies and are duty-bound to pursue their main charitable purpose of the ‘advancement of education’, which includes both teaching and research.
The Higher Education & Research Act 2017 includes new provisions for granting degree awarding powers and university title to a broader range of new or ‘alternative’ providers, as they have come to be known.
During the passage of the bill, an amendment was tabled to include on the face of the legislation what might be seen as the quintessential features of a UK university: their autonomy. This includes the imperatives that they must uphold the principles of academic freedom and freedom of speech; that they “contribute to society through the pursuit, dissemination and application of knowledge”; and that they “must be free to act as critics of government and the conscience of society”.
The amendment was not pressed and did not become part of the Act. However, various amendments in lieu were made to protect institutional autonomy which Viscount Younger of Leckie recognised in his statement to the House of Lords is “so vital to the success of our higher education sector”. He went on to say:
“The strength of the university sector is based on its diversity and we should continue to recognise that a one-size-fits-all approach is not in the interests of students or wider society. In particular, for example, small and specialist providers that support the creative arts, theology and agriculture have allowed students with highly specialised career aims the opportunity to study at a university.”
The Act includes an express statutory duty on the new regulator, the Office of Students, to have regard to the need to protect the institutional autonomy of English higher education providers as it goes about its functions. “Institutional autonomy” has been defined in section 2 (8) of the Higher Education and Research Act 2017 for these purposes as:
- “a) the freedom of English higher education providers within the law to conduct their day to day management in an effective and competent way;
- b) the freedom of English higher education providers –
- i) to determine the content of particular courses and the manner in which they are taught, supervised and assessed,
- ii) to determine the criteria for the selection, appointment and dismissal of academic staff and apply those criteria in particular cases, and
- iii) to determine the criteria for the admission of students and apply those criteria in particular cases, and
- c) the freedom within the law of academic staff at English higher education providers-
- i) to question and test received wisdom, and
- ii) 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 providers.”
While institutional autonomy, so defined, has been upheld on the face of the legislation, the Government has also promised a new ‘accountability’ revolution which the Minister, Sam Gyimah MP made clear in his speech for the launch of the new regulatory framework for higher education on 28 February 2018:
“To put it simply, universities might be autonomous, but we all have a stake in our higher education sector. This is where the future of our country lies. The scrutiny that universities find themselves under is a sign of how much this matters to students and to the country as a whole. What may feel to some in the sector like a revolt is more like a revolution – a revolution pushing the sector towards greater responsibility and accountability to students.”
What remains to be seen is how these twin features of the new architecture – autonomy and accountability – will co-exist.
Mills & Reeve LLP are sponsors of the AHUA Spring Conference 2018, where Gary will delivering a session on the scope and implications of the new legislation and the regulatory framework that is being established by the Office for Students.