Category: Regulation

  • Higher education mergers are a marathon not a sprint

    Higher education mergers are a marathon not a sprint

    When the announcement came last Wednesday that the universities of Kent and Greenwich are planning to merge, the two institutions did a fine job of anticipating all the obvious questions.

    In particular, announcing that the totemic decision has already been taken on who should lead the new institution – University of Greenwich vice chancellor Jane Harrington – was a pragmatic move that will save a great deal of gossip and speculation that could otherwise have derailed the discussions that will now commence on how to turn “intention to formally collaborate” to the “first-of-its-kind multi university group.”

    But even with that really tricky bit of business out of the way, there is still a lot to work through. Broadly those questions fall into two baskets: the strategic direction and the practical fine detail. Practicalities are important for giving reassurance that people’s lives aren’t about to radically change overnight; albeit there are inevitably lots of issues that are either formally unknown at this stage or which can only be tackled in light of the evolution of the final agreement and organisational structure.

    With that in mind, it is really worth emphasising that the notion of a “multi university group” is a brand new idea, given a conceptual shape in the very recent publication Radical collaboration: a playbook from KPMG and Mills & Reeve, produced under the auspices of the Universities UK transformation and efficiency taskforce. The idea of a “multi university trust” explored in that report, derived from the school sector, posits the creation of a single legal entity that can nevertheless “house” a range of distinct “trading entities” with unique “brands” each with an agreed level of local autonomy.

    It answers the question of how you take two (or more) institutions, each with their own histories and characteristics and find ways to create the strength and resilience that scale might offer, while retaining the local distinctive characteristics that staff, students, and local communities value and feel a sense of affinity to. It also, as has been noted in the coverage following the announcement, leaves an option open for other institutions to join the new structure, if there’s a case for them to do so.

    “It is very positive to see institutions taking proactive steps to finding new ways to work together,” says Sam Sanders, head of education, skills and productivity for KPMG in the UK. “The group structure proposed is a model we have seen be successful elsewhere, where brand identity is retained but you get economies of scale, meaning institutions can focus on their core activities while sharing the burden of the overheads. If it goes well it could act as a blueprint for other similar ventures.”

    Sam’s reflection is that establishing a new entity might be the most straightforward part of the process: “The complicated part is moving to a new model that simultaneously preserves the right culture in the right places while achieving the savings you might want to see in areas like IT, infrastructure, and estates. These are multi-year agendas so everyone involved needs to be prepared for that.”

    The long and winding road

    With lots to work through, it’s really important to step back, and give space to the institutions to work this out. Because the big picture is about mapping what that critical path looks like from single-institution vulnerabilities to strength in numbers – and that is a path that these institutions and their governing bodies are, to a large extent, carving out as they go, potentially doing the wider sector a service in the process as others may look to follow the same path in the future.

    “The sector response has been overwhelmingly positive,” says Jane Harrington, who is already fielding calls from heads of institution who are curious about the planned new model. Both Jane and University of Kent acting vice chancellor Georgina Randsley de Moura have experience with group structures in schools and further education, knowledge they drew on in thinking through the options for formal collaboration – starting with ten different possible models which were narrowed down to two that were explored in more depth.

    “We started with what we wanted to achieve, and then we looked for models,” says Georgina. “We kept going back to our principles: widening participation, education without boundaries, high quality teaching and research, and what will make sense for our regions. Inevitably there is some focus in the news around finances and that is an important part of the context, but this would not work if our universities didn’t have values and mission alignment.”

    “We also had examples in mind of where we don’t want to end up,” adds Jane. “You see mergers where the brand identity is lost and it takes a decade to get it back. We have, right now, two student-facing brands that are strong in their own right. And in five or ten years time it might be that we have four or five institutions that are part of this structure – we don’t think it would make sense for them to become part of one amorphous brand.”

    It’s frequently observed that bringing together two or more institutions that are facing difficult financial headwinds may simply create a larger institution with correspondingly larger challenges. So having a very clear sense strategically of where the strengths and opportunities lie, as well as the where risks and weaknesses might also be subject to force-multiplier effects, is pretty important at the outset.

    It’s clear that there is an efficiency agenda in play in the sense that merging allows for the adoption of a single set of systems and processes – an area where Jane is especially interested in curating creative thinking. But the wider opportunities afforded by scale are also compelling, especially in being more strategic about the collective skills and innovation offer to the region.

    Kent and Medway local councils and MPs have also responded enthusiastically to the universities’ proposal, the two heads of institution tell me – not least because navigating politics around different HE providers can be a headache for regional actors who want to engage higher education institutions in key regional agendas.

    “There are cold spots in our region where nobody is offering what is needed,” says Jane. “But developing new provision is much harder when you are acting alone. This region has pockets of multiple forms of deprivation: rural, urban and coastal. The capacity and scale afforded by combining means we can think strategically about how to do the regional growth work, and what our combined offer should be, including to support reskilling and upskilling.”

    Georgina makes a similar case for combining research strengths. “Our shared research areas, like health, food sustainability, and creative industries, play to regional strengths,” she says. “When research resources are constrained, by combining we can do more.”

    We can work it out

    The multi university group is not, in theory, a million miles from a federation in structure in that in federations generally there is a degree of autonomy ceded by the constituent elements to a single governing body – but in a federation each entity retains its individual legal status. A critical difference is the extent to which a sharing economy among the entities would have to be painstakingly negotiated for a federation, which could erode the value that is created in collaborating. It could also raise tricky questions around things like VAT.

    But the sheer novelty of the multi university group also raises a bunch of regulatory questions, covered in all the depth you’d expect by DK elsewhere on the site – to give a flavour, can you use the word “university” for your trading entity without that existing as a legal entity with its own degree awarding powers?

    The supportive noises from DfE and OfS at the time of the initial announcement should give Kent and Greenwich some degree of comfort as they work through some of these questions. The sector has been making the argument for some time now that if the government and regulator want to see institutions seizing the initiative on innovative forms of collaboration, there will need to be some legal and regulatory quarter given, up to and including making active provision for forms of collaboration that emerge without a legal playbook.

    Aside from the formal conditions for collaboration, how OfS conducts itself in this period will be watched closely by others considering similar moves. While nobody would suggest that changing structure offers an excuse for dropping the ball on quality or student experience – and both heads of institution are very clear there is no expectation of that happening – OfS now has a choice. It can choose to be highly activist in requesting reams of documentation and evidence in response to events as they unfold, from institutions already grappling with a highly complex landscape. Or it can work out an approach that offers a degree of advance clarity to the institutions what their accountabilities are in this time of transition, and how they can/should keep the regulator informed of any material risks arising to students from the process.

    Despite the generally positive response, there is no shortage of scepticism about whether a plan like the one proposed can work. The answer, of course, depends on what you think success looks like. Certainly, anyone expecting a sudden and material shrinkage in costs is bound to be disappointed. Decisions will be made along the way with which some disagree, perhaps profoundly.

    But I think what is often forgotten in these discussions is that the alternative to the decision to pursue a new structure is not to carry on in broadly the same way as before, but to pursue a different but equally radical and equally contentious course of action. If the status quo was satisfactory then there would be no case for the change. In that sense, being as useful as possible in helping these two institutions make the very best fist that they can of their new venture is the right thing for everyone to do, from government downwards.

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  • How to do the perfect merger

    How to do the perfect merger

    As we reported on Wednesday, the University of Greenwich and the University of Kent have announced their intention to create a new “super-university” – tentatively called the London and South East University Group (LSEUG).

    It’s worth getting the terminology together. Also styled as a “multi-university group” (a clear nod, if not a direct parallel, to the “multi academy trust”) there will be one unified governing body, one academic board, one executive team, and one vice chancellor (which will be Jane Harrington, currently vice chancellor at Greenwich).

    Despite the “super-university” framing in press statements there is intended to be no changes for students and applicants – people will still apply to, and graduate from, either Kent or Greenwich. For all other purposes – regulation, funding, employment – the idea is of a single entity, but there is still a lot to be worked out.

    Further work on the details of the merger (and it does look like a merger, even though neither university uses that language) will lead to a decision on an implementation around the end of the calendar year. If everything goes to plan, the new structure and entity will be in place in time for the 2026–27 academic year.

    So staff at both universities are in for what will be a busy 12 months in quite a condensed timeframe.

    Everybody else

    And not just them. A university with dual identities but a single structure is not exactly an anomaly – the University of Coventry and its “CU” sub-brand, the University of South Wales and the Royal Welsh College of Music and Drama, the various FE groups (like Cornwall College) – but the degree to which we are looking at two trading names rather than two institutions will determine a lot of regulatory and funding decisions.

    For instance – how would Research England determine eligibility for the REF? Both constituent parts of the new entity entered the previous exercise, and both have developed an impact and publication profile in the years since. But it is very likely that Greenwich and Kent have two very different “research cultures”, even though scores for “environment” were similar in REF2021.

    The REF rules point, in England, to OfS Approved (fee cap) status plus research degree awarding powers (unless specific permission is granted) as the price of participation and access to QR funding.

    So would the new entity be able to maintain two OfS registrations and two sets of degree awarding powers? A “merger” is, as you might expect, a reportable event – and would lead to a reassessment of the financial sustainability and governance arrangements of both providers involved (as per section 144 of the Regulatory Framework).

    There would also need to be a reassessment of quality and standards – here OfS is clear that it would use the compliance history of previously registered provider(s) in assessing what would potentially be a new application for registration (para 372 here). All of this, of course, is subject to the usual vagaries of OfS judgement in an individual case.

    Beware of the leopard

    You’d have to be au fait with the footnotes to the analysis of responses to the 2022 consultation on quality and standards conditions(!) to know that:

    A merger or acquisition is a reportable event, and we would make a judgement about whether such an event resulted in any increased risk for any condition of registration for any of the providers involved. A merger or acquisition of two registered providers also requires a decision to deregister the dissolving entity – a decision to deregister a provider in these circumstances also means we consider whether any regulatory benefits or regulatory protection for students in relation to the deregistering provider transfer to the lead provider. Therefore, the relevance of any compliance history will be considered and, if appropriate, a new risk assessment will be completed as part of this process.

    There is not a playbook or a process for two universities merging – despite what feels like three years of Wonkhe articles suggesting that something like this could be on the cards – and despite the actual example of City St George’s University of London (which makes things a little easier by using only one, albeit unwieldy, trading name) there is no evidence of work being done in advance of what could well be a rush of other examples.

    I mention this not to take a pop at the Office for Students, but to suggest that this absence of a clearly defined regulatory path may be discouraging other registered providers from making similar decisions. If mergers are the financial stable future of the sector, there needs to be a simple process to allow them to happen.

    Compare, for example, the clear and straightforward guidance (and checklist) available from HESA.

    Outside privy

    Paragraph 306 of the current regulatory framework suggests that there are circumstances in mergers where university title is up for debate too. Both the University of Kent and the University of Greenwich have university title (you can tell that because they can both use the word “university” in their names) – Kent via a Royal Charter in 1965, Greenwich via a 1992 Order of the Privy Council.

    From what we know so far the London and South East University Group (name not yet confirmed) will bring the two current institutions (the University of Kent, the University of Greenwich) under one structure. If the name of the overall structure contains the word “university” it will need to have approval for its new use of the word university in a company name.

    I’d love to draw a parallel with City St George’s but that one is just weird – City didn’t use its 1966 university title after 2006 (it used City, University of London), St George’s Hospital Medical School never used its 2022 university title, it was St George’s, University of London), but the combined provider uses the 1966 City title despite still being a member of the University of London, because as of the 2022 University of London Act you can now have university title within the University of London.

    It isn’t made clear in any of the guidance, but generally only a legal entity can hold university title. A lot depends on the chosen company structure of the new body – if we are reversing two existing companies into a new entity then I’d honestly be surprised if it wasn’t the new entity that needs university title: and the existing ones (referring as they do, to existing names) wouldn’t be enough.

    Could we have one entity with two university titles? Generally not, but to offer consistency to students and applicants you’d hope some arrangement could be made, at least over the short to medium term.

    Though OfS nominally gets to determine university status these days, in legal reality it issues a recommendation to the Department for Education that it can offer a response of “non-objection” to the Registrar of Companies (at Companies House) who makes the final determination. That’s a lot of people to get to agree.

    Sandbox

    The mere act of doing something that hasn’t quite been done this way before causes administrative problems. For all the OfS’ processes aim to provide the legendary “level playing field”, in practice it has been helpful if your provider looks quite a lot like existing providers. LSEUG, with its Greenwich and Kent sub-brands, does not look like any current provider and as such it could face a bumpy ride – via a series of exceptions and special cases – into good standing with OfS.

    A special case should not be a worry, and if – as many predict – this merger is the first of many there will be a number of precedents set that should make it easier for future providers in a similar situation. That’s great for them, but not much comfort for the team across Kent and Greenwich that will be arguing the case with OfS, DfE, and others on a number of rules and requirements.

    At its best, regulation should apply reliably and equally to everyone. But there is a case, where regulation needs to evolve, to establish a sandbox where new ways to assure against the various OfS and DfE concerns can be developed and deployed. And perhaps that could help make regulation less onerous for everyone.

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  • Sledgehammers, screwdrivers, and primary legislation

    Sledgehammers, screwdrivers, and primary legislation

    There might well be a new Higher Education Bill on the way.

    But it wouldn’t be a grand vision for the future of the sector, or a radical change to the way the government controls it.

    It would be an exercise in tidying up and optimising the rats’ nest of legislation and regulation that currently governs higher education in England. Changes will be minor and focused on efficiency – more a screwdriver than a sledgehammer. This approach was foreshadowed by the Behan review, which recommended that:

    Government and the OfS further consider the legislative powers and tools required to enable the OfS to effectively regulate.

    In this respect it might be similar to higher education related bills in recent years: the 2024 Higher Education (Freedom of Speech) Act, the 2022 Skills and Post-16 Education Act, and the 2023 Lifelong Learning (Higher Education Fee Limit) Act were all screwdriver-esque, making changes to existing legislation rather than breaking new ground.

    This will be my testimony

    The last sledgehammer bill was the 2017 Higher Education and Research Act (HERA) – but even laws as long and unwieldy as that have to modify the legislative landscape in order to keep things running smoothly. It made modifications to the 1986 Education (no 2) Act, the 1988 Education Reform Act, the 1992 Further and Higher Education Act, the and 2004 Higher Education Act, plus many other minor and consequential amendments to all kinds of other law.

    Some of this is at a surface level – if you create a new organisation like OfS or UKRI you need to change or make references to make sure it can use existing powers or is exempt from existing safeguards. Some of it is deeper and more profound – fee increases were made under the powers in the 2004 Act until these were repealed in 2018 by secondary legislation linked to HERA. And, when the time comes to use the funding method described in the 2023 Act, this situation will change again at the stroke of a pen.

    It’s generally considered better parliamentary practice to use primary legislation (as in, bills that become acts) to modify other primary legislation – it can be done using secondary legislation (statutory instruments) but this tends to look like the government is trying to hide something. Witness, for example, the partial repeal of the Higher Education (Freedom of Speech) Act, which very nearly made Toby Young at the Free Speech Union need to change his trousers.

    Dog’s breakfast

    I’m not the first to say this, but HERA is an absolute bin fire of an act. It is long, unwieldy, maddeningly unclear, and occasionally self-contradictory. A lot of what is contained in the bill no longer applies to the way higher education is regulated in practice. Indeed, there are a number of ways in which the Office for Students does not comply with the law.

    My favourite example of this is section 38, which requires the Office for Students to monitor the availability and use of arrangements for students to transfer between providers. OfS is meant to report on the conclusions it has drawn from this monitoring annually – it doesn’t. It decided to stop doing this during the Covid-19 pandemic in 2020, and have never bothered to start again despite how interested the government now are in people doing stackable credit bearing modules via the lifelong learning entitlement.

    So, given this, one thing a new bill could do would be to reinforce section 38, requiring the annual collection and publication of data relating to student transfers, and empowering OfS to do any other things (via an expansion of condition F2) it may need to do to make credit transfer between registered higher education providers as simple and as painless as possible.

    Similarly there are bits of HERA that are now clearly never going to be used. Asking OfS to regulate student unions is now generally seen as a non-starter, and it never really was viable. So Sections 69B, A5, and A6 (as inserted by the freedom of speech bill) probably need to go)

    What else?

    The messiness around academic quality and standards in HERA has been well documented, and this was even before the demission of the designated quality body and the slightly questionable position of the Behan review regarding OfS permanently taking on the old role.

    If this is what is to happen, it seems silly (as Behan noted) to have all of the fine-grained documentation about the duties and responsibilities of a designated body that will likely never exist again on the statute book. The references to the DQB should be removed.

    However, part of the point of the DQB was to ensure that the sector itself (including students) had more of a role in setting and maintaining academic standards, and that quality assurance would meet international standards, so it would be reasonable to hope that the opportunity would be taken to put these points into law directly. We need a new clause requiring OfS to comply with international standards, to more regularly review quality and standards on a cyclical as well as a needs-based basis, and to include the views of staff and students within quality reviews. It may be reasonable to note that OfS may choose to appoint a body itself to discharge these very specialised responsibilities.

    Behan also recommended that the appointment of the chief executive officer should be a matter for OfS board rather than ministers, and that an appointed chief executive should be able to get on with appointing their own executive team rather than having two directors appointed for them by ministers. This is the way most other arms-length bodies operate, and would do a lot to make the OfS look more independent of government.

    Currently HERA requires that the Secretary of State appoints (as per Schedule 1 2 (1) of HERA) the chief executive, the Director for Fair Access and Participation (currently John Blake), and the Director for Freedom of Speech and Academic Freedom (currently Arif Ahmed). The DFAP rule is a hangover from the days of the Office for Fair Access, and the DFSAF comes from the ministerial overreach that characterised the debates around freedom of speech. New legislation should modify schedule one of HERA to make it easier for the OfS to appoint (and manage) its own senior team.

    Money matters

    Is there a chance that a new higher education bill could deal with the enormous financial strain both students and providers are under?

    The uprating of the family income thresholds for access to maintenance loans is long overdue, to the extent that the total amount paid out as maintenance loans and the average amount paid out per student is forecast to drop even as the number of UK domiciled undergraduate students increases. These thresholds can be increased using a statutory instrument – amending part 6 of the 2011 Education (Student Support) Regulations – but this has never happened.

    It would be good to build a requirement to increase these thresholds by inflation each year into primary legislation, and perhaps take the opportunity to rethink the operation of the current system in parliament. Writing the regulations anew would clear up the mess that is the 2011 regulations and allow for a one off above inflation boost so that the rules do the job they were originally intended to under the scrutiny of parliament.

    While we are at it, HERA requires (via a last minute intervention from Jo Johnson – remember him?) that even inflationary increases to fee levels are voted on in parliament, a situation that allowed for Michelle Donelan’s damaging “fee freeze” that, arguably, is the main contributing factor to the current financial crisis.

    So let’s put a requirement to maintain the real-terms value of fees into primary legislation, via an amendment to the new (per credit) rules in the Lifelong Learning (Higher Education Fee Limits) Act, ideally before these are implemented into HERA (something that needs to happen quite soon).

    Access planning

    What OfS does around access and participation is largely constrained by how the Office for Fair Access worked before HERA: institutions prepare an access and participation plan, this is assessed by the OfS, and only those with a qualifying plan are allowed to charge the higher fee limit.

    In practice the requirement to submit an access plan is placed on providers in the Approved (Fee Cap) registration category only (so a big chunk of the sector is not required to do very much on access except via means related to outcome metrics in condition B3). The current push to collaborate regionally and work with schools to raise aspirations and standards there is, arguably, in breach of section 36 of HERA (the freedom to decide not to work regionally and with schools isn’t one of the three carveouts in subsection 1, but the institutional autonomy duty is not exclusive).

    What OfS wants to do, what may or may not actually work, and what ministers might like to see do not always align, and what was once an uncontested boon (attracting underrepresented groups into higher education) has become deeply problematised in contemporary political discourse. What would be useful would be to loosen the constraints placed on OfS access and participation work in HERA, but to set out clear duties (rather than specified methods) on the face of the bill.

    Legislation saves the nation

    There are clearly more short, sensible, things the government could do in a screwdriver style higher education bill. I would hope that the legislation could start in the House of Lords – allowing the knowledge and expertise of peers to shape the parameters of debate in the Commons stages.

    But it would be a brave government that publishes a higher education bill (of whatever sort) that isn’t able to offer some kind of a response to the financial troubles faced by the sector. While there are issues with current legislation, even a bill that does a lot of good leaves ministers open to the accusation that they are just tinkering around the edges. A screwdriver bill might make sense, but the need for a sledgehammer remains acute.

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  • Partnership? Students in Scotland need protection

    Partnership? Students in Scotland need protection

    It’s easy to trace differences in culture back much further – arguably right back to Bologna in 1088, and the Rectors of the Ancients in the 15th Century.

    But at the very least since 2003, students’ unions in England have looked North of the border jealously at a country so committed to student partnership that it created a statutory agency to drive it.

    Partnership at all levels thrives when there’s will, time, and frankly, money. It’s tougher to reflect the principles of students having power when times are tight – when the excel sheets no longer add up, when restructures have to be planned, and when cuts have to be crafted to the facilities and services that students have been inputting on for years.

    Beyond the potentially apocryphal stories of truly student-led institutions in ancient times, students in any system are bound to be treated as, and regard themselves as, at best junior partners – with, both at individual and collective levels, a significant power asymmetry.

    In such scenarios, when leaders spend their days choosing between any number of awful options, it’s often going to be the least institutionally risky path that’s taken. And the danger is that students – who previously might have relied on partnership to secure their interests – now really need protection instead.

    I spend quite a bit of time here lamenting the implementation of protection measures for students in England. But in conversations with students and their leaders in Scotland, I’m now finding myself repeatedly reflecting on the fact that at least, in England, there are some.

    3 months to open your email

    Take complaints. The Office of the Independent Adjudicator (OIA) doesn’t always generate the answer that student complainants would like – it often feels too distant, and at least temporally, hard to access.

    It also has a tendency to seek resolution when it’s sometimes justice that should prevail – and increasingly feels like providers are paying students off (often with NDAs for non-harassment complaints) before they get there.

    But in Scotland, students have to use the Scottish Public Services Ombudsman (SPSO). As I type, “due to an increase in the volume of cases” it is currently receiving, there is a delay of 12 weeks in allocating complaints to a reviewer.

    Some comfort that will be to the international PGT who has cause to complain in month 10 of their studies, only to have to encounter a complaint, an appeal, and then a further 12 weeks just to get the SPSO to open their letter. UKVI will have ensured they’re long gone.

    It’s clear that few get as far as the SPSO. When it investigates a complaint, it usually reports its findings and conclusions in what it calls a decision letter – and these findings are published as decision reports. Since May 2021, just ten have been published.

    Either students in Scotland have much less to complain about than their counterparts in England and Wales, or universities in Scotland are much better at resolving complaints, or this is a system that obviously isn’t working.

    Never OK

    Then there’s harassment and sexual misconduct. Just under a year ago Universities Scotland’s update on anti-harassment work suggested a system of protection that’s patchy at best.

    37 per cent of institutions weren’t working with survivors to inform their approach, 21 per cent didn’t have policies allowing for preventative suspension where necessary, and only 71 per cent of institutions had “updated their policies” following guidance from UUK on staff-student relationships – which could still mean all 19 universities are permitting staff to pursue students.

    Universities Scotland acknowledges that most identify funding as a barrier, but England’s regulator makes clear that providers “must” deploy necessary resources, with higher-risk institutions expected to invest more. If you can’t fund student safety properly, perhaps you shouldn’t be operating is the message in England.

    And there’s no sign that Scotland will be taking part in the prevalence research that’s been piloted in England.

    Cabinet Secretary Jenny Gilruth’s praise for Scotland’s “partnership approach” suggested either complacency or a failure to grasp that Scotland is sliding toward being significantly less robust than England in protecting students. When partnership fails to deliver safety, protection becomes essential – and on harassment, it feels like Scotland is failing to provide either adequately.

    Best practice should not be voluntary

    Or take mental health. While Wales has responded to parliamentary concerns about consistency by accepting recommendations for a “common framework for mental health support” backed by registration and funding conditions, Scotland continues to rely on voluntary approaches that deliver patchy outcomes.

    The Welsh government’s response to its Children, Young People and Education Committee shows what serious commitment looks like. New MEDR registration conditions will require clear expectations for student wellbeing, supported by data collection requirements, evaluation frameworks, and crucially, funding considerations built into budget allocations.

    There’s partnership rhetoric – but it’s partnership backed by regulatory teeth. Wales has grasped what Scotland appears to miss – that “best practice should not be voluntary” when student lives are at stake, as one bereaved parent told Westminster’s Petitions Committee.

    The Welsh approach is set to recognise that students need “parity of approach” and “consistency between departments, institutions, and academic teams” – something that purely voluntary frameworks cannot deliver.

    Scotland’s reliance on institutional goodwill for mental health provision increasingly looks naive. Maintaining flexibility for institutions to design services suited to their contexts, is one thing – but Wales will ensure baseline standards that students can depend on regardless of which university they attend.

    The contrast is stark – Wales will treat student mental health as a regulatory priority requiring systematic oversight, while Scotland appears content to hope that partnership alone in a context of dwindling funding will somehow deliver consistency. When partnership fails to protect the most vulnerable students, Wales will have built backup systems – Scotland has built excuses about funding pressures that Welsh universities face too.

    Promises promises

    Then there’s consumer protection – or, as I like to rebrand it, delivering on the promises made to students. It’s easy to assume that students in Scotland aren’t covered – but plenty do pay fees, and those that don’t are supposed to be protected too.

    But over two and a half years since the Competition and Markets Authority revised its guidance to universities on compliance, there seems to be a nationwide problem. Of the 16 universities I’ve looked at in Scotland, 15 still include contractual terms limiting liability in the event of a strike involving their own staff – something CMA has advised is unlawful, and which OfS is effectively enforcing in cases like Newcastle.

    In a year when strikes are more likely, why should students in Scotland not be afforded the same rights to the education they’ve signed up for than their English counterparts?

    The CMA also bans clauses that limit compensation for breach of contract to the total paid in fees – something that would be very attractive in Scotland for obvious reasons. Yet 14 of the country’s universities continue to publish contractual terms that apparently allow them to with impunity. Several have highly problematic clauses on in-contract fee increases too.

    And CMA’s guidance on “variation clauses” – that should not result in too wide an ability to vary the course or services that were offered when students signed up – looks like it’s been flouted too.

    I’m no lawyer, but most universities in Scotland seem to be affording themselves the right to pretty much change anything and everything – and when finances are as tight as they are, that means students and their complaints about cuts can be bottom of the risk register, if they feature at all.

    You’re the voice

    Or take student voice itself. The mandatory Learner Engagement Code required by the Tertiary Education and Research (Wales) Act 2022 could be transformative – moving from “should” to “must” with genuine comply-or-explain mechanisms, protected status for student representatives, and mandatory training on rights and responsibilities for all students. Or it could emerge as something weak and vague, disappointing everyone who fought to get student engagement into primary legislation.

    But at least there is one. At minimum, Wales recognises that student partnership requires legal backing, not just goodwill that evaporates when finances get tight. Scotland’s partnership model, for all its historical reputation, increasingly looks like an expensive way of avoiding the hard work of building systems that actually protect students when partnership fails.

    However flawed, students in England now have new rights over freedom of speech – including a right to not be stopped from speaking on the basis of “reputational impact” on the provider. Several Scottish universities seem to have extraordinarily wide exemptions for “disrepute” and “reputation” that are almost certainly in breach of the Human Rights Act.

    You could even, at a stretch, look at cuts and closures. For all the poor implementation and enforcement of a system designed to protect students when their campus, course, university or pathway is closed in England, at least the principle is in place. Student Protection Plans are required in Scotland by SAAS for private providers – but not of universities. Why?

    We voted against Brexit

    I could go on. Scotland regularly positions itself as more European than England, particularly in higher education where the “partnership approach” is often presented as evidence of continental-style governance. Scottish politicians invoke European models when defending their policies, suggesting Scotland’s collaborative approach mirrors sophisticated systems across the continent.

    Yet European student rights frameworks put Scotland to shame. In Serbia, students have the legal right to nutrition, rest and cultural activities. In Sweden, students enjoy the same workplace protections as employees under the Work Environment Act. In Lithuania, there’s a minimum amount of campus space allocated per student by law, and student representatives hold veto power over university senate decisions – if they use it, a special committee reviews the issue and a two-thirds majority is required to override.

    In Latvia, students’ unions receive at least 0.05% of the annual university budget by law, with legal rights to request information from any department on matters affecting students. In Poland, students have guaranteed rights to study programmes where at least 30 per cent of credits are elective, and universities must consult student governments when appointing managers with student affairs responsibilities. Student protests and strikes are specifically protected, with mediation rights.

    In the Netherlands, universities must inform the national confidential inspector whenever staff may have engaged in harassment involving students – and any staff hearing about allegations must report them to management. Spain mandates every university has an independent ombudsperson with statutory reporting duties. In Croatia, universities are legally obliged to provide students’ unions workspace, co-finance their activities, and offer administrative support. And Austrian students make up significant proportions of curriculum committees by statute, ensuring programmes remain flexible and career-relevant.

    Can I get the Bill

    It’s not as if there isn’t a legal vehicle that could improve things. The Tertiary Education and Training (Funding and Governance) (Scotland) Bill is weaving its way through the Scottish Parliament as we speak – but it couldn’t be weaker in protections for students if it tried.

    • Section 8 allows the new Council, when conducting efficiency studies, to consider “the extent to which the needs and interests of students are being met” and then issue recommendations to universities and colleges. But recommendations are not binding.
    • Section 11 amends the 2005 Act to require the Council, in exercising its functions, to “have regard to the desirability of protecting and promoting the interests of current and prospective learners.” Again, this is a duty on the Council, not directly on universities, and is about regard rather than enforceable standards.
    • Section 18 allows Scottish Ministers to designate private providers so that their students can access public student support. That’s a consumer-style protection, but it’s about access to funding rather than quality or rights.
    • Section 19–20 updates the rules around how student support is administered and delegated — but again, that’s more about machinery than protections.

    There’s no new regulatory framework for how universities behave towards students (on contracts, teaching quality, complaints handling, etc.). There are no rights conferred directly on students — no duty of fair treatment, no consumer protection-style obligations, no statutory complaints rights.

    Universities themselves are not made subject to enforceable duties in the Bill, beyond existing general oversight via the Funding Council. And while the Council can give guidance (section 10) and issue recommendations (section 8), institutions are only required to “have regard” rather than comply.

    Cakeism in Scotland

    Models of student partnership have served Scotland well over the decades – and should continue to. After all, learning outcomes take two to tango – and that’s true from the classroom right up the boardroom.

    But right now here in 2025, partnership often feels like a luxury for when rivers of money start flowing back in – and even the most well meaning and moral SMT or Court has a duty to protect the institution before it protects its students.

    Ultimately, partnership and protection should not feel like mutual exclusives, or something a country should choose. It’s perfectly possible, and in the current funding climate, deeply desirable, for students to have both.

    Scottish ministers – through a new section of the Funding and Governance Bill – should legislate to make it so.

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  • You’re not on the list

    You’re not on the list

    The pause in accepting applications to the Office for Students register is to be lifted on 28 August and, as Jim Dickinson notes, new providers now have a whole set of extra conditions that will apply to them.

    As was spotted at the consultation, it will become odd that 430 or so “old” providers have less stringent rules than those who join the register afresh. OfS is very clear – the new rules protect students and taxpayers.

    Meanwhile DfE is suggesting raising the stakes of the register by requiring both larger providers who teach via franchise, and those who want to deliver courses funded by the Lifelong Learning Entitlement (LLE) to join the register..

    Why a Register?

    One of the enduring regulatory mechanisms of English higher education is the list or register. From the outset of the regulated and funded system after the First World War there’s been a list that you needed to be on. These were invariably linked to hierarchies of status and funding. There were criteria with serious cut-offs: getting on the UGC funding list, making the list to be one of the colleges of advanced technology, or one of the polytechnics, or one of the colleges to be incorporated (and funded by PCFC) or to be allowed onto the HEFCE list.

    The intention with the OfS register was slightly different. It was both more encompassing, many more providers were due to join, including those that didn’t want funding (or the encumbrances of funding) as there was no opt out. But it turned out that you could opt out; many providers have existed (some might say flourished) outside the register via the franchise route. Even benefits that were supposed just to be for those on the register – say the use of “university” in your title – have been granted to providers not on the register.

    What’s recently vanished is the idea of a new (possibly lighter touch) category of registration for providers to offer the LLE. Back at the start of the OfS a registered (basic) category fell away. Given concerns about the behaviour of a few providers in the current registration categories, an Approved-lite wasn’t plausible.

    Consultation

    As you’d expect, the OfS says “We have decided to implement our proposals in broadly the form on which we consulted” There are tweaks, of course, particularly splitting out the initial tests on governance and management. These are at the heart of many of the problems we’ve seen – in particular how governance interacts with directors who may also be the proprietors of a for-profit business.

    Being on the register is a major kitemark: the guarantee of quality. The framing of the new conditions is that the old ones weren’t sufficient. We can see that the Department for Education has been working around the register – the replacement for the DET (the FE training course, which was the source of many problems) being limited to providers with degree awarding powers, and those without TEF Gold and Silver going through a tougher process to run LLE modules.

    A group of providers who have previously tried to get on the register will have to try again. OfS has stopped formally refusing applications.

    We can see some of the providers who now franchising were refused in the past and so could the Public Accounts Committee (who were not amused). OfS took the unusual step of publishing a case note on Oxford Business College’s application to register, clearly indicating there was no way they were getting on the list, but only after OBC had withdrawn their application and DfE turned off the funding taps. It’s worth noting that OBC’s purported governance arrangements (including a former VC as its chair) seemingly vanished away when it started to unravel. OfS has reduced the period before you can apply again, but it’s clear they want to stop half-baked applications.

    Leaving the Register

    There remains an issue in that it turns out that that threat of being removed from the register isn’t much of a threat if you are exiting HE and entering administration. OfS used the formulation “The provider no longer wishes to access the benefits of OfS registration” for the first colleges that left, Applied Business Academy as “The provider is no longer able to provide higher education” and Brit College as “The provider will no longer seek to meet the conditions required to remain registered as a higher education provider in England”. Brit, another registered provider, has had its courses de-designated by the DfE.

    If the loophole of providing HE while not being on the register is closed, then there will be plenty of pressure on the system. We’ve seen plenty of complaints about the time it takes to register and we will need to see whether OfS’ proposals make this better. OfS’s performance data does not record a time taken to resolve an application, but we’ve seen some take four years. Clearly they think that some providers are under-prepared for the registration process and also that they want to speed up the refusal (or forced withdrawal) process.

    We can only see some of the issues that OfS and DfE are dealing with; these new conditions and processes are designed to close loopholes. As an example, we saw OfS refuse registration to Spurgeon’s College because its finances were poor, only to have to admit them a few months later after they had secured a loan. Spurgeon’s is now in administration. There’s increased requirements for financial information in the application process. It’s hard to look at the list of prohibited behaviours linked to C5 on student fairness without imagining a lot of these have been reported to OfS at some point.

    Gas panic

    The OfS register sits in the background – on the web site this is literally the case as it lurks under “for providers” and “regulatory resources”. The way it manifests itself could do with a spruce up – the web version is marked in “beta” mode (as it has from 2022) and parts of the functionality and data need an overhaul. Checking the OfS register is never quite like looking up whether your engineer has a safe gas certificate, but an increasing number of students have found their HE experience has blown up.

    It’s hard to argue against protecting students and taxpayers, but the 429 providers already on the register should take a look at these conditions As Jim Dickinson notes there’s a challenge here on fairness for all providers and it’s hard to imagine that OfS won’t want to see both the fairness and governance and management aspects of the new E conditions apply to all providers pretty soon.

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  • OfS consults on a condition of registration for subcontracted provision

    OfS consults on a condition of registration for subcontracted provision

    Cast your mind back to the end of January this year.

    The Department for Education proposed that all providers delivering a course via a franchise model to more than 300 students should register with the Office for Students.

    The rationale was straightforward. An increasingly large number of students were studying at, effectively, unregulated providers – with the connection to the lead provider achieved via an office in the registry and subject to varying (shall we say) levels of oversight in terms of quality, standards, and – frankly – probity (as we and others have extensively reported).

    That consultation concluded in April, and we have heard very little about these plans since. So when, just before summer recess, the Office for Students announced its own consultation on regulating franchise provision one could be forgiven for assuming that the two approaches would somehow link together.

    Information requirement

    What OfS has suggested addresses the other end of the issue – while DfE wants to register delivery providers, OfS wants to put a new condition of registration (E8) onto institutions with more than 100 students taught via subcontractual arrangements. The condition is not an arduous one – it basically suggests that a lead provider should have adequate governance and oversight of risks concerning subcontractual provision, and be prepared to share key information about these arrangements (a so-called “Comprehensive source of information”, or CSol). In return OfS can demand more information (“monitoring”) and make “directions” for the lead provider to start or stop doing stuff. All this would, consultation pending, come into force in January 2026.

    Now, it would be fair to wonder whether this kind of effective governance in the public interest is already covered in conditions E1 and E2, and the information end of things feels a little bit F3. It is neither unreasonable nor arduous to expect providers to have adequate governance or to publish information – though it is questionable (given the applicability of these existing registration conditions) that this will have any meaningful impact on provider activity.

    In other words, if you don’t have effective arrangements in place regarding subcontractual provision, you are already in breach of condition E2 and will face consequences. Just ask Leeds Trinity University, now £115,000 poorer as a result – and, as the consultation suggests, just the tip of a very large iceberg of provision where OfS has been regulating quietly behind the scenes.

    Rationale

    So why the need for E8? If providers are already required to be transparent around governance arrangements and oversight, why do we need another condition to do the same thing for subcontractual relationships? And if there are additional informational needs, or a need to limit what a particular provider can do, why not do a specific condition of registration relating to subcontractual activity? Or why not wait a few weeks to see whether DfE brings the people doing the actual course delivery into its regulatory ambit? OfS says:

    We consider that implementing a general ongoing condition of registration sends a clearer signal to the sector about our expectations for managing subcontractual partnerships now and in the future. Including our requirements in the regulatory framework in this way provides greater transparency for all providers and for other stakeholders.

    We are, once again, in the realms of vibes-based regulation: the purpose of this requirement is to make it look like OfS is finally doing something to address the problems with subcontractual provision that have been visible to the media since at least 2014.

    In the weeds

    You’ll look in vain within the consultation for any mention of OfS’ own long-promised publication of definitive data on the size and shape of franchised provision – now possibly coming in the last quarter of 2025 (following a very small pilot release last year). Where this gets interesting is the methodology for calculating where or not you are over the threshold (a total of 100 – headcount – students studying via subcontractual arrangements at relevant providers) as calculated by the OfS’ own student number methodology and that would be returned via HESES. While OfS has not yet been confident enough in this data to release it in full, it is somehow content to rely on it for regulation.

    The 100 isn’t an exact cut off: if you generally recruit more than 100 subcontractual students but happen not to one year, you are still in scope – likewise if you make changes to your plans so that you will recruit more than 100 (or are “materially likely” to do so) you are in scope already. Or if OfS decides you are in scope, you are in scope.

    To be clear, this isn’t all such arrangements. The use of the term “relevant” excludes by definition any provision in a state-funded school, FEC, sixth form, designated institution (FHEA 1992 section 28), provider of NHS services, local authority, or police and crimes commissioner. Also exempt in your calculation are students subcontracted to any provider with degree awarding powers authorised by or under an Act of Parliament or a Royal Charter (so all taught or research DAPs, basically).

    Back end

    For clarity, the traditional way in which subcontractual arrangements are regulated is via the registering provider – and these OfS proposals are an attempt to bring some of what should be going on already out a bit further into the open. The existing transparency conditions of registration (F1, which operationalises section 9 of HERA) don’t cover governing (or academic quality and standards) documentation. Indeed, OfS has been historically light on governance transparency – which is why it isn’t always easy to figure out what is going on inside a given provider.

    It’s not so long ago that OfS was lambasting providers for “gold plating” internal quality assurance processes in a long-sustained campaign to flush out those in the sector who cleave to the much older doctrines of the UK Quality Code. You know, nonsense like:

    Providers and their partners agree proportionate arrangements for effective governance to secure the academic standards and enhance the quality of programmes and modules that are delivered in partnership with others. Organisations involved in partnership arrangements agree and communicate the mutual and specific responsibilities in relation to delivering, monitoring, evaluating, assuring and enhancing the learning experience.

    A big chunk of the documentation that OfS is asking for here (in the comprehensive source of information) is basically documentary proof that a provider is compliant with principle 8 of the UK Quality code (including the QAA’s recent guidance), not that you will be thanked by the regulator for pointing this out. Perhaps some of that “gold-plating” was important after all.

    But there is one place where OfS goes further: it asks for a “strategic” rationale for entering into each subcontractual arrangement. We don’t get any guidance on what a suitable rationale would be, just that it must fit with a provider’s vision and strategic intent. Case law here is going to be fascinating.

    Front end

    From a student protection perspective OfS would gain powers to compel those franchising out provision to make changes to the terms of these agreements or the governance or process involved in running them – in extremis the regulator could require that an arrangement ends immediately, students have their fees refunded, and the registering provider steps in to teach out the remaining student. It can also tell you to stop recruiting students onto subcontracted out courses, or limit the number of students that can be recruited.

    This is a large improvement on current arrangements, which have largely been predicated on a provider having an up-to-date student protection plan and being able to deliver on it. The fee refund requirement, in particular, should make anyone that is knowingly partnering with someone offering students a sub-par experience sit up and pay attention.

    It’s not perfect, however: the January DfE proposal on franchising and partnerships was interesting precisely because it broke with established practice on subcontractual arrangements – those delivering teaching would be regulated, whether or not they were awarding the degrees in question. If OfS could intervene directly with a delivery provider, surely that would be quicker than going via the registration provider – the measures in this consultation would then be usable for purely punitive reasons (and, as above, duplicate other conditions of registration)

    OfS has followed the DfE lead in excluding most publicly funded provision from these regulations – it made sense to exclude schools, colleges, and the NHS from active regulation as they are already regulated elsewhere. If the purpose of these OfS proposals is to ensure that the universities that are subcontracting out do so with a level of strategic intent, it seems unlikely that someone is incapable of making a strategically poor or under-resourced commitment to work with an FEC or sixth form: surely these arrangements also deserve a level of scrutiny?

    And – frankly – why shouldn’t providers involved in subcontracting be required to publish information about it (rather than hold it until OfS asks for it)? The current concerns with this style of provision have developed precisely because agreements and fee-splitting agreements can remain obscure – a bit of public accountability for these kinds of decisions would do a lot to separate out the good and valuable subcontractual arrangements from the more questionable partnerships.

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  • Higher Education, High Hopes, and Heavy Bureaucracy

    Higher Education, High Hopes, and Heavy Bureaucracy

    by Phil Power-Mason and Helen Charlton

    UK higher education is pulled between its lofty ambitions for transformative learning and the managerialism that sometimes constrains their realisation. This tension defines the contemporary Higher Education workplace, where the mantras of “more with less” and “highly regulated freedom” collide with the desire for rich, personalised student experiences amidst fiscal belt-tightening, quantification, and standardisation. Bubbling through the cracks in any long-term political or economic vision for the sector is a professional identity steeped in ambivalence of purpose and position, one whose contradictions are nowhere rendered more vividly than in England’s higher and degree apprenticeships (HDAs). Conceived to braid university learning with workplace productivity, HDAs promise the best of both worlds yet must be delivered within one of the most prescriptive funding and inspection regimes in UK higher education. This provision also sits amidst a precarious and volatile political landscape, with continuous changes to funding rules, age limits and eligibility of different levels of study, and ‘fit’ within a still poorly defined skills and lifelong learning landscape.  

    At the heart of this ongoing policy experiment stands an until-recently invisible workforce:  Higher Education Tripartite Practitioners (HETP). These quiet actors emerged as a series of pragmatic institution level responses to the Education and Skills Funding Agency (ESFA, now subsumed into the Department of Education) related to progress reviews involving the provider, apprentice, and employer. Yet, as we argued in our paper at the SRHE International Conference in December last year, they have evolved into nuanced, often misunderstood boundary-spanners who simultaneously inhabit academia, industry, and compliance. Part coach, part conduit, part compliance specialist, they facilitate developmental conversations, broker cultural differences, and ensure every clause of the ESFA rulebook is honoured. The quality of this brokerage is decisive; without it even the most carefully designed apprenticeship fractures under audit pressure.

    Consider the core activities of HETPs. Much of their time is spent in close personal engagement with apprentices – fostering professional growth, guiding reflective practice, and offering pastoral support traditionally associated with mentoring. They encourage apprentices to think holistically, integrate theory with workplace reality, and map long-term career aspirations. Almost simultaneously, they must document progress reviews, monitor the evidence of every single hour of learning, and tick every regulatory box along a journey from initial skills analysis through to end point assessment.

    This duality produces a daily oscillation between inspiring conversations and tedious paperwork. The tension is palpable and exhausting, revealing a deeper struggle between two visions of education: one expansive, transformative, and relational; the other restrictive, measurable, and dominated by compliance. Fuller and Unwin’s expansive–restrictive continuum maps neatly onto this predicament, underscoring how universities are urged by policymakers to deliver high-skilled graduates for economic growth while simultaneously squeezed by intensifying regulation and managerial oversight.

    Little wonder, then, that HETPs describe their roles with the language of complexity, ambiguity, and invisibility. They are neither purely academic nor purely administrative. Instead, they occupy a liminal institutional space, mediating competing demands from employers, regulators, apprentices, and colleagues. Esmond captures the resulting “subaltern” status of these practitioners, whose contributions remain undervalued even as they shoulder the brunt of institutional attempts to innovate without overhauling legacy systems.

    Their experiences lay bare the contradictions of contemporary university innovation. Institutions routinely trumpet responsiveness to labour-market need yet bolt new programmes onto structures optimised for conventional classroom delivery, leaving HETPs to reconcile expansive educational ideals with restrictive managerial realities. The role becomes a flashpoint: universities ask boundary-spanners to maintain quality, build relationships, and inspire learners within systems designed for something else entirely.

    Yet amidst these tensions lies opportunity. The very ambiguity of the HETP role highlights the limits of existing support systems and points towards new professional identities and career pathways. Formal recognition of boundary-spanning expertise – relationship-building, negotiation, adaptability – would allow practitioners to progress without abandoning what makes their contribution distinctive. Communities of practice could break the apprenticeship echo-chamber and enrich the wider HE ecosystem, while institutional investment in bespoke professional development would equip practitioners to navigate the inherent tensions of their work.

    Senior leadership must also acknowledge the strategic value of these hidden roles, reframing them not as incidental administrative burdens but as essential catalysts for integrated educational practice. Making such roles visible and valued would help universities reconcile expansive aspirations with regulatory realities and signal genuine commitment to reshaping education for contemporary challenges.

    Policymakers and regulators, too, have lessons to learn. While accountability has its place, overly rigid compliance frameworks risk stifling innovation. Trust-based, proportionate regulation – emphasising quality, transparency, and developmental outcomes – would free practitioners to focus on learning rather than bureaucratic survival. The current neo-liberal distrust that imagines only regulation can safeguard public value inflates compliance costs and undermines the very economic ambitions it seeks to serve.

    Ultimately, the emergence of HETPs challenges HE institutions to decide how serious they are about bridging academic learning and workplace practice. Recognising and empowering these quiet brokers would signal a genuine commitment to integrated, expansive education – an education capable of meeting economic demands without losing sight of deeper human and intellectual aspirations. HETPs are far more than practitioners managing checklists; they are a critical juncture at which universities must choose either to treat boundary-spanning labour as a stop-gap or to embrace the complexity and potential it represents.

    Dr Phil Power-Mason is Head of Department for Strategic Management at Hertfordshire Business School, University of Hertfordshire, where he leads a diverse portfolio spanning executive education, apprenticeships and professional doctorates. A practice-focussed academic with a passion for innovative workforce development, Phil has overseen significant growth in the school’s business apprenticeships, MBA, and generalist provision, while nurturing cross-sector partnerships and embedding work-aligned learning at every level. With a research background in educational governance and strategy, he is a Senior Fellow of Advance HE and co-convenor of national apprenticeship knowledge networks. Phil’s research and sector leadership focus on emerging pedagogic and HE workforce practices, driving collaborative solutions that meet employer, learner and university needs. An invited speaker at national forums and a frequent contributor to sector conferences and publications, he remains committed to transforming vocational and work-ready learning practice for the future. (herts.ac.uk)

    Dr Helen Charlton is Associate Professor of Work Aligned Learning and Head of Executive Education at Newcastle Business School, Northumbria University, where she leads the school’s business apprenticeships, executive CPD and distance-learning programmes. After almost a decade steering apprenticeship design and compliance, she stays keenly attuned to each fresh regulatory tweak – and the learning opportunities it provides. A former senior HR manager in the arts and not-for-profit sectors, Helen holds a Doctorate in Education and an MSc in Human Resource Management, is a Senior Fellow of Advance HE, a Chartered MCIPD, and a Chartered Manager and Fellow of the CMI. Her research examines how learners, employers and universities negotiate the tripartite realities of degree apprenticeships. (northumbria.ac.uk)

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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  • Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Just 44 days before duties on it go live, but some 389 days since it closed a consultation on it, the Office for Students (OfS) has finally published Regulatory advice 24 – its guidance to universities and colleges in England on freedom of speech that flows from the Higher Education (Freedom of Speech) Act (HEFoSA).

    The timings matter partly because it’s mid-June, there won’t be many (if any) big committee meetings left (let alone processes designed to engage with people on policy development ahead of approval), and it was OfS itself that fined the University of Sussex partly over the proper approval of some of its policies.

    And it’s not as if there are only minor drafting changes. An 11,773 word draft has become a 23,526 word final, and the list of 30 illustrative examples has grown to 52 – despite the fact that this new version omits all the duties on students unions (which the government announced last year it intends to repeal), and is now also silent on the free speech complaints scheme.

    All the detailed and prescriptive expectations in the original draft over how that should be promoted have gone – largely because we’re all waiting for Parliament to debate (sensible) changes that will cause students to have to use the Office of the Independent Adjudicator (OIA), rather than OfS, to resolve any complaints in this area.

    Alongside, there’s surely a record-breaking 788 paragraph analysis of responses and decisions off the back of the eleven question consultation, some alarming-sounding polling that will likely be making the news, and some short guides for students and staff.

    A lot of the new version of the guidance adds more detail into the examples – many are now more realistic, plenty are better at signalling the differences between “good ideas” and minimum expectations, and a whole host of them are now more accurately qualified with reference to key legal principles or tests, many of which have been emerging in case law since OfS started its consultation.

    That said, some are still so preposterous as to be useless. If there really is a college somewhere that requires students to seek written permission a month in advance to hand out leaflets or post flyers, where those flyers must be posted on a single designated noticeboard which is both small and on a campus where flyers may not be posted anywhere else, I’ll eat my hat – or maybe my pudding at the formal dinner at whichever Oxbridge college authors were reminiscing about when Example 38 was drafted.

    As there are 52 of them, this initial article doesn’t dive into all of the vignettes comprehensively – although doubtless a number of them (not least because of the judicious use of qualifiers like “depending on the facts of the case”) will continue to cause readers to cry “yeah but what about…” – which is presumably why OfS initially attempted to let lessons unfurl from the casework rather than publish guidance. And we may well end up looking at some of them in more detail in the coming days and weeks.

    What I have tried to do here is look at the major ways in which the guidance has developed, how it’s handling some of the bigger questions that both universities and their SUs were raising in responses during the process, and what this all tells us about OfS’ intended approach to regulation in this area as of August.

    As a reminder, we’re talking here about the duty to “secure” freedom of speech on campus (A1 in HEFoSA), and the expectations that OfS has around the requirements for a souped up Code of Practice (A2) for each provider. There’s no guidance (yet) over the “promote” duty (A3), and to the extent to which the previous version strayed into those areas, they’ve largely been removed.

    The sandbags are coming

    If we were to identify one theme that has dominated discussion and debate over the Free Speech Bill ever since then universities minister Michelle Donelan stumbled, live on Radio 4, into an apparent contradiction, it would be where free speech (to be protected and promoted) crosses the line into harassment – which of course, under a separate heavy new duty as of August 1st, is something to be actively prevented and prosecuted by universities. Middle grounds are no longer available.

    The good news is that the section on reconciling free speech duties with equality law, anti-harassment provisions, and other legal requirements is better than anything else OfS has published to date on the interactions and fine lines. So detailed, for example, are many of the sections that deal with harassment on campus that at times, it’s a lot more helpful than the material in the actual guidance on registration condition E5 (Harassment and Sexual Misconduct).

    People often, for example, find others’ conduct to be unpleasant or disagreeable – Para 47 reminds us that the concept of harassment in the Protection from Harassment Act 1997 is linked to a course of conduct which amounts to it, that a course of conduct has comprise two or more occasions, that the conduct must be “oppressive and unacceptable” rather than just “unattractive or unreasonable”, and must be of sufficient seriousness to also amount to a criminal offence.

    Similarly, the judgement of harassment isn’t purely subjective – it applies an objective test based on what a reasonable person would think, which helps provide a consistent standard rather than relying solely on individual perceptions.

    Hence in Example 1, a student publishes repeated comments on social media attacking another student based on lawful views, including “tagging” them in posts and encouraging others to “pile on”. The student’s speech is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment – and so carrying out an investigation into the student based on a policy that bans harassment would not breach the “secure” duty.

    Much of that flows from a newly reworked version of what counts as free speech within the law that translates some of the case law and principles set by the ECHR and the UK High Court in cases like Higgs v Farmor’s School. As such, while there’s still lines in there like “The Act protects free speech within the law – it does not protect unlawful speech”, there’s now much more helpful material on the different ways in which free speech might be curtailed or interfered with given other duties.

    To get there it outlines a three step test (with some wild flowchart graphics):

    • Step 1: Is the speech “within the law”? If yes, go to step 2. If no, the duty to “secure” speech does not apply.
    • Step 2: Are there any “reasonably practicable steps” to secure the speech? If yes, take those steps. Do not restrict the speech. If no, go to step 3.
    • Step 3: Are any restrictions “prescribed by law” and proportionate under the European Convention on Human Rights?

    There’s no doubt that it’s a more nuanced and balanced reflection of the legal position than we saw in the draft – albeit that it switches between “what to do in practice” and “what to say to students and staff in theory” in ways that are sometimes unhelpful.

    The problem is that the closer it gets to necessary complexity, the further away it gets from something that’s easy to understand by the very staff and students whose day to day conduct and confidence (what we might call the “culture” on campus) is supposed to be being influenced by the new duties.

    More importantly, as the examples unfurl, it’s both possible to spot numerous ways in which “it’s a balance” turns into Kafka’s cake and eat it, and to see how the “reasonably practicable steps” duty turns into something genuinely hard to understand in practice.

    Someone should do something

    One thing that’s not gone is a tendency in the examples to signal to the outside world that the new rules will tackle the things they’ve read about in the Times and the Telegraph – until you realise that they won’t.

    That Example 1 discussed above (highlighted in the accompanying press release) is a classic of the genre. On the surface it looks like OfS is tackling “mobbing”. But in reality, the whole point about pile-ons is that they’re almost never about one big evil ringleader engaging in conduct that is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment.

    It’s more often than not a hundred micro-oppressions having the cumulative effect of making the target feel terrible. Even if you argue that aspects of social media culture are within the influence (if not control) of a provider, in other parts of the guidance OfS seems to be saying that because each micro-act isn’t harassment, you shouldn’t be trying to meddle in the culture of the campus.

    That problem becomes amplified in the section on microaggressions. In 2019, the Equality and Human Rights Commission (EHRC) found microaggressive acts to be a key component of a culture of racism on campus – and both argued that they could have an impact on equality of opportunity and good relations between different groups, and that universities must not ignore microaggressions that do not meet the definition of harassment in the Equality Act 2010 because of the cumulative impacts of repetition.

    But as soon as universities started to tackle microaggressions by, for example, encouraging their reporting, various anti-EDI culture warriors started to raise concerns. Discussing a scheme launched by Sheffield SU to have their halls reps understand the concept, Spiked’s Joanna Williams argued:

    They will need an odd combination of extreme sensitivity to offence – alongside a high degree of insensitivity to interrupting conversations – to point out exactly where the speakers went wrong. Presumably, candidates will also have to sit some kind of test to prove their own thought purity on all matters concerned with race and ethnicity.

    The Command Paper that led to HEFoSA was also worried:

    Schemes have been established in which students are paid to report others for perceived offences.

    And as Report+Support tools started to open up avenues for students to raise issues such that universities could spot patterns, academics – among them a fairly obscure Cambridge philosopher called Arif Ahmed – started to complain:

    The encouragement to report ‘inappropriate’ or ‘offensive’ behaviour amounts to a snitches’s charter. Any risk-averse white person will simply not engage with anyone from an ethnic minority, in case an innocent or well-meaning remark is overheard, misunderstood and reported. Whatever Downing College may think, being offensive is not an offence.

    Several years on, Arif Ahmed is OfS’ Director for Freedom of Speech and Academic Freedom, asserting that his appointment and approach isn’t “political”, and launching actual regulation (Example 39) that says this:

    University A promotes an anonymous reporting process. Students are encouraged to use a portal to submit anonymous reports to senior staff of “microaggressions”, which is not further defined. The portal includes free text boxes in which reporters may name or otherwise identify the individuals being accused. University A says that it may take action against named (or identifiable) individuals on the basis of any anonymous report that it receives.

    …Depending on the circumstances, the existence of the reporting mechanism and portal may discourage open and lawful discussion of controversial topics, including political topics and matters of public interest.

    …Reasonably practicable steps that A could now take may include remove the free text boxes from the anonymous reporting portal to be replaced with radio buttons that do not permit submission of any identifying data.

    There is a legitimate, if contested, political view that structural racism is fictional, harmful or both – and that what flows from it is division via concepts like microaggressions. There’s another view that to tackle racism you need to interrogate and tackle not just skinheads hurling abuse and painting graffiti, but the insidious yet often unintended impact of stuff like this (EHRC again):

    A recurring theme in our evidence was students and staff being dismissed as “oversensitive” and their experiences of microaggressions viewed as isolated incidents rather than a cumulative and alienating pattern of repeated slights and insults.

    Many staff and students reported that racial harassment doesn’t only happen overtly. All too often, offensive comments were justified by perpetrators as “jokes” or “banter”. The damaging effect of repeated microaggressions is often made worse by a lack of empathy and understanding when individuals decide to speak up about their treatment.

    In that “debate”, OfS has picked the side that we might have expected Arif Ahmed to pick. Whether he’s legally justified in doing so is one question – but let’s not pretend that the agenda is somehow apolitical.

    And for my next trick

    All of this is possible because of a central conceit in the guidance that relates back to a long-running theme in the rhetoric surrounding culture on campus – what we might call a “maximalist” approach to describing free speech, and a “minimalist “ (specific, legal thresholds) approach to harm and harassment.

    Anything goes unless it specifically breaks this specific law, and if you pretend otherwise you might end up “chilling” free speech.

    You might. But while insisting on an objective test to determine whether harassment has happened is a central feature, no such test of objectivity is then applied to whether a chilling effect has occurred – it becomes, in effect, about “potential” and feelings. Hence in its Sussex investigation, OfS said:

    …a chilling effect arose as a result of the Trans and Non-Binary Equality Policy Statement and the resulting breach of condition E1. By “chilling effect”, the OfS means the potential for staff and students to self-censor and not speak about or express certain lawful views. Staff and students may have self-censored as a result of the policy because they were concerned about being in breach of the policy and potentially facing disciplinary action for expressing lawful views.

    So having established that “harassment” has to amount to something objectively criminal, while “chilling” is in the eye of the Director, OfS is able to get away with railing against another newspaper favourite – by all but outlawing requiring academic staff to issue trigger warnings. Example 50:

    Depending on the facts, issuing a “content note” (informing attendees about sensitive material) in advance of this event may not be a reasonably practicable step for A to take. A standing requirement to use content notes may encourage more intrusive investigation of the content of seminars, readings or speaker events. An expectation of content notes may also discourage academics from exposing students to new controversial material (so as not to risk wrongly including no, or the wrong type of, content note).

    You could of course just as easily argue that failing to issue “content notes” could have a chilling effect on some students’ active participation. Alternatively, you could double down and chuck in a minimalist little qualifier for cover:

    However, there may be occasions when the use of specific content notes may be helpful to enable students to access material, if there is evidence that they are in fact helpful.

    The point isn’t to debate whether they work or not – the point is that OfS suddenly gets to pick and choose what it thinks could chill, while demanding that rules reflect specificity and extremity over individual conduct for harassment. It’s culture war politics shoehorned into regulation, with the law lingering around in the background.

    Is the process the punishment?

    You might remember a major news story in 2021 when a student at Abertay was investigated after other students complained that she made “hateful, discriminatory, sexist, racist and transphobic” remarks during an online seminar on gender politics.

    Following an investigation, it was determined that Lisa Keogh had a case to answer in relation to “making inappropriate comments” which “could be construed as discriminatory” – but after a panel reviewed recordings made available from the seminar, it found no evidence of discrimination:

    As a result, the board found there was insufficient evidence to support the allegations made against you on your behaviour in class and, therefore, decided to not uphold the charge of misconduct.

    Keogh’s argument was that she should never have been subject to formal processes in the first place – and so sued.

    Her case was basically that the university acted in breach of the Equality Act 2010 by pursuing her for “expressing her gender critical beliefs” and caused “stress at the most crucial part of my university career” – but Dundee Sheriff Court dismissed her case, with Sheriff Gregor Murray saying that university was entitled to take steps to investigate complaints:

    The number, nature and timing of the allegations, and the involvement of at least three final year students who were about to sit examinations, all placed the university in exactly the type of “tricky territory” that entitled it to investigate immediately.

    The defender was entitled to take steps to investigate complaints. It could not be guilty of discrimination simply because it did so. Following investigation in this case, the complaint against the pursuer was not upheld.

    Cases like that then get mangled into examples like Example 40 in the guidance. In the vignette, a professor expresses views that upset some students – they bring a complaint, there is a lengthy investigation process, and at the end of the process the university finds that there is no case to answer.

    This should have been clear to investigators at the outset, but the university was concerned that closing the investigation quickly would further offend the students who complained. The prospect of a lengthy investigation with an uncertain outcome may deter students and staff from putting forward unpopular views on controversial topics.

    Again, you can just as easily argue that rapidly dismissing students’ genuinely held concerns would have a chilling effect on their confidence to complain, and that students making formal complaints of this sort is so rare that a university would be wise to carefully investigate whether there’s an underlying fire accompanying the smoke.

    But as above, OfS seems to be saying “if students weren’t describing specific behaviours that would meet the harassment test, don’t even investigate” – applying a specific and objective test to harassment while being speculative and partial over its chilling test.

    A useful tool, but not that useful

    The original draft was fairly silent on antisemitism – an obvious issue given the high-profile nature of the coverage and political commentary on it, not least in the context of protests surrounding the war in Gaza.

    Notwithstanding the specific stuff on “time, place and manner” (see below and here) and what OfS might be counting as an “essential function” of a university (again, see below), what I would say is that if there’s a debate about whether action A, protest B or leaflet C amounts to antisemitism, it’s pretty obvious that those advocating the adoption of the IHRA definition are seeking to have it used when making a judgement.

    Some will argue (like Arif Ahmed once did) that universities should not adopt the definition:

    This “definition” is nothing of the kind; adopting it obstructs perfectly legitimate defence of Palestinian rights. As such it chills free speech on a matter of the first importance. I hope the Secretary of State reconsiders the need for it; but these new free speech duties ought to rule it out in any case.

    We’ve covered his mysterious conversion before – and wondered how that might manifest in any final guidance. It doesn’t, at all – but what we do get in the consultation commentary is this astonishing paragraph:

    We do not comment in this guidance on the IHRA definition of antisemitism or on any other proposed non-legally binding definition that a provider or constituent institution may wish to adopt. Nonetheless, we have adopted the IHRA definition because we believe that it is a useful tool for understanding how antisemitism manifests itself in the 21st century. The IHRA definition does not affect the legal definition of racial discrimination, so does not change our approach to implementing our regulatory duties, including our regulatory expectations of registered providers. A provider that adopts any definition (of anything) must do so in a way that has particular regard to, and places significant weight on, the importance of freedom of speech within the law, academic freedom and tolerance for controversial views in an educational context or environment.

    Some will argue that adoption – either by OfS or providers – has precisely the kind of chilling effects that are railed against at length throughout the guidance. Others will argue that adoption as a kind of interesting window dressing without using it to make judgements about things is pointless, raises expectations that can’t later be met, and allows antisemitism to go unchecked.

    I’d argue that this is another classic case of Kafka’s cake and eat it – which dumps a deep set of contradictions on universities and requires attention and leadership from regulators and politicians. We are still not there.

    Practicably reasonable

    As well as that central thread, there are various other issues in the guidance worthy of initial note.

    A major concern from mission groups was the way in which the new duty might play out over transnational branch campuses – especially those with rather more oppressive legal regimes over expression than here.

    We might have expected OfS to use some sort of “what’s practicable relates to the law in the country you’re delivering in” qualifier, but it has somehow managed to square the circle by simply stating, with no further qualification (P13) that:

    HERA does not require providers or constituent institutions to take steps to secure freedom of speech in respect of their activities outside England.

    It’s an… interesting reading, which is maybe related to the usual territorial extent qualifiers in legislation – the consultation commentary is similarly (and uncharacteristically) silent – but what it does appear to do is contradict the usual prescription that it’s about where the main base of the provider is, not where it’s provision is, that sets the duties.

    Even if some legal workaround has been found, it does start to call into question how or why OfS can regulate the quality of your provision in Dubai while not worrying about freedom of speech.

    Another section with a mysteriously short sentence is one on the original Donelan conundrum:

    The OfS will not protect Holocaust denial (by visiting speakers or anyone else).

    That’s a carefully worded sentence which seems to be more about OfS making choices about its time than an explanatory legal position. Unlike in many other countries, holocaust denial is not in and of itself illegal in the UK – although in the weigh up, Article 17 of the ECHR removes protection from speech that is contrary to fundamental convention values, and cases in the UK have tended to be prosecuted under other legislation such as section 127 of the Communications Act 2003 when the content is deemed “grossly offensive”.

    Quite why OfS has not chosen to explain that is unclear – unless it’s worried about revealing that all sorts of other types of grossly offensive stuff might fall under the balancing provision. And more to the point, as I’ve often said on the site, most holocaust deniers don’t announce that the title of their talk in Room 4b On Tuesday evening will be “the holocaust is a fiction” – which opens up the question of whether or not it’s OK to outlaw holocaust deniers who may or may not engage in actual holocaust denial when they turn up.

    The sole example in the guidance on the weigh-ups over external speakers and extremism is one where the proposed speaker is a self-professed member of a proscribed group. It’s easy to say “well it’s fine to ban them” – what we don’t have here is anything meaningfully helpful on the real cases being handled every year.

    And some of the media’s hardy perennials – universities doing things like signing up to charters with contested “values” or engaging in contested work like decolonisation – are also either carefully contorted or preposterous.

    Hence Example 51 describes a university that [overtly] requires that all teaching materials on British history will represent Britain in a positive light – one of the many not as clever as the authors think they are inversions of the allegations often thrown at woke, UK history hating academics.

    Meanwhile Example 52 nudges and winks at the Stonewall Charter by describing a department of a university that applies for accreditation to a charter body with links to the fossil fuel industry, where the accreditation process requires it to sign up to a set of principles that include:

    Fossil fuel exploration is the best way to meet our future energy needs.

    The text underneath is fascinating. Once you’ve got the “depending on the circumstances” qualifier out of the way, we learn that “institutional endorsement of this principle may discourage expression of legally expressible views”. That’s your “chilling” allegation again.

    But rather than warning against signing it, we merely get:

    …not implementing the provisions of any accreditation that risks undermining free speech and academic freedom is likely to be a reasonably practicable step that university B should now take.

    Replace that with the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, and you can see why the fudge above will satisfy no-one.

    I’ve read the para in the guidance several times now, and each time I read it I resolve different things. Either the university can take a position on contested ideas as long as these aren’t imposed on staff, or it can’t because taking the position on contested ideas would chill staff. Flip a coin.

    It’s that sort of thing that makes the otherwise helpful section that clarifies that you can have a code of conduct for staff and students so silly. Codes of conduct are fine as long as any restrictions on speech reference a legal rule or regime which authorises the interference, that the student, member, member of staff or visiting speaker who is affected by the interference has adequate access to the rule, and if the rule is:

    …formulated with sufficient precision to enable the student, member of staff or

    visiting speaker to foresee the circumstances in which the law would or might be applied, and the likely consequences that might follow.

    I’d tentatively suggest that while that makes sense, OfS’ own guidance represents a set of rules where forseeing how it might respond to a scenario, and the likely consequences that might follow, are clear as mud.

    To clear up protest and disruption rights, OfS stresses viewpoint neutrality, uses its “time, place and manner” confection we first saw last year, and also has a new oft-repeated “essential functions” of higher education qualifier of:

    …learning, teaching, research and the administrative functions and the provider’s or constituent institution’s resources necessary for the above.

    I can’t really call whether OfS thinks the sports hall counts, or whether it thinks the encampment is OK there, but not in a seminar room. Either way, it’s another of those vague definitions that feels open to abuse and interpretation by all sides of a dispute and by OfS itself.

    Another allegation thrown at universities is often about EDI training – Example 53 sets up the idea that an online EDI induction asks if white people are complicit in the structural racism pervading British society, where the only answer marked correct is “True” – a candidate who ticks “False” is required to re-take the test until they have explicitly assented to “True”.

    Maybe I’m being naive, but if that’s grounded in a real example I’d be more worried about that provider’s wider approaches to teaching and assessment than its approach to free speech.

    This university is a vile hell-hole

    A few other fun bits. Fans of reputation management will be disappointed to learn at Example 22 that a social media policy requiring staff to not to post material that is “unnecessarily critical”, coupled with a strong but lawful pop at the provider’s employment practices in a public post on social media, would represent a “protect” policy breach and a “protect” practice breach if the staff member ends up with a warning.

    Meanwhile, notwithstanding the silence over whether full-time SU officers are members or students of a provider, Example 23 has a student representative posting unfavourable commentary on university management on the SU’s website, along with some student testimonials describing students’ experiences of accommodation:

    University Z requires the student to remove this post on the grounds that if the post is reported more widely in the media, this would threaten University Z’s recruitment plans.

    That that would be a breach may feel like a problem for the small number of universities whose senior managers directly threatened SU officers over TEF student submission drafts.

    But more broadly, like so many other examples in the guidance, neither the staff nor the student example get at broader culture issues.

    You might argue that “reasonably practicable steps” in both cases might involve specific commitments to enable dissent, or more explicit encouragement of public discussion over controversial issues.

    You could certainly argue that much of the committee discussion marked “confidential” should be nothing of the sort, and that non-disclosure agreements imposed on settled-with complainants outside of the specific ban on those in sexual misconduct cases should be outlawed.

    You could also argue that in both cases, fears over future funding – your salary for the staff member, your block grant for the SU officer – are classic chillers that need specific steps to be taken. Alas, none of that sort of “why” stuff appears.

    There’s also still a whole bunch of headscratchers. What happens when three different providers have three different sets of policies and codes and all franchise their provision to a fourth provider? Should providers be inspecting the reputation rules in the employment contracts of their degree apprentices or other credit-based work based learning? Now the requirement to tell all new students about all this has been softened, isn’t there still a need to include a lot of FoS material in the still compulsory training to be offered as per E5? And so on.

    In the complaints scheme consultation, there was some controversy over the definition of visiting speakers – including when an invitation manifested as an actual invitation and who was capable of extending one. On this, OfS has actually decided to expand its definition – but neatly sidesteps the Amber Rudd dilemma, namely that while it’s easy to expect people in power to not cancel things because some object, it’s a lot harder to make a volunteer student society run an event that it changes its mind about, regardless of the reason.

    And when the guidance says that OfS would “generally” expect providers to reject public campaigns to punish a student or member of staff for lawful expression of an idea or viewpoint that does not violate any lawful internal regulations, we are still stuck in a situation where some basic principles of democracy for anyone elected on campus – staff, but more often than not, students – come into direct conflict with that expectation even if they are “organised petitions or open letters, an accumulation of spontaneous or organised social media posts, or long-running, focused media campaigns”.

    Changing the culture

    There may well be plenty more to spot in here – legal eagles will certainly be pouring over the document, expectations on all sides may need to be reset, and all in a context of very tight timescales – not least because much of the material implies a need for a much wider review of related policies than just “write a compliant Code”.

    Everyone should also think carefully about the YouGov polling. There are some important caveats to be attached the results and some of the splits based on wording, assumptions and whether it’s even reasonable to expect someone teaching something highly technical to be wading into the sex and gender debate. And whether you’re teaching, researching or otherwise supporting, it must be the case that not all subject areas include as much scope for controversy and “debate” than others.

    But even if you quibble over the N equalling 184, when 24 per cent of those who do not feel free in their teaching cite fear of physical attack, there is a problem that needs urgent interrogation and resolution.

    [Full screen]

    (Thanks as ever to DK for the visualisation of the YouGov polling – sample size 1234 adults and weighted for teaching staff in England, by age, gender, region, and contract type)

    We also still have the debate over the partial repeal of the Act to come too, some additional complexity over complaints to resolve, and as I note above, huge questions like “so can we adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism or not” remain unanswered – as well as a set of inevitable conflicts to come over the practical application of the Supreme Court ruling on the meaning of “woman” in EA2010.

    I should also say that I’ve not had time to properly interrogate the research aspects in the guidance – but we’ll get to that with my colleague James Coe in the coming days.

    What I’m mainly struck by – other than the ways in which a particular set of (contested) views on campus culture have been represented as apolitical – is the way in which, ultimately, much of the material comes down to the regulatory realities of expecting authority to behave.

    In some senses, that’s not unreasonable – governors and leaders hold considerable influence and power over students and staff, and what they ban, or punish, or encourage or celebrate can have important impacts that can be positive for some, and negative for others.

    But to the extent to which there really is a problem with free speech (and academic freedom) on campus, much of it feels much wider and organic than the hermetically sealed campus community assumptions at play in documents of this sort.

    I won’t repeat so many of the things I’ve said on the site over the past few years about confidence being key to a lot of this – suffice to say that the freedom ideal at play in here feels like something that is easier to experience when steps have been taken to improve people’s security, given them time and space to interact meaningfully with each other, and act specifically to boost their bravery.

    Not only should some of the solutions be about resolving conflicts and integrating the concerns into a more stable definition of what it is to be a member of staff or a student, of all the agendas in higher education, it strikes me that this area remains one where solutions and sticks and games of blame abound, but causal analysis feels hopelessly weak.

    In the absence of alternative guidance on the “promote” duty, if I was high up in a university, I’d be resolving to interrogate more carefully and listen more closely before I pretended that my shiny new Code of Practice will do anything other than tick the boxes while making matters worse.

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  • University governance needs more imagination

    University governance needs more imagination

    University governance is not broken – but it does need to change.

    There are places where governance is not working very well. There are places where it is working exceptionally well. And in most cases the governance system works in the same way it always has but with a different and deeper set of issues.

    It may be that the resilience of “business as usual” is not a sign of stability – but a sign of a wider dysfunction.

    University governance is built with committees, a senate (usually), and a council. Information can flow up and down the chain with no more urgency than a stream trickling down a hill. The idea of a university being a deliberate (or slow) decision maker is not a design fault – but the entire purpose of the system.

    The challenge is that the moment we are working in is highly unpredictable. This means that the slowness inherent in the governance of universities is a barrier to making timely decisions. In turn, the lack of speed kills. If universities cannot make decisions quickly then they will be forever fighting yesterday’s battles as even bigger challenges come over the horizon.

    It is true that university governance can be slow. It is also the case that governance is no more than the collective will of people, accepted practice, navigating within a system which is continually changing because of the people and practices within it.

    It is not that governance is fundamentally broken – but that in places, it has not caught up with the world we are in or the issues we are dealing with. The institutional governance memory has largely been about growth, and now it is about changing shape, and in some cases contraction.

    And it is struggling to catch up for three main reasons. Intra-organisational dynamics, regulatory pressure, and a lack of experience and guidance in responding to this particular crisis.

    People

    The relationship between the vice chancellor and the chair of council is a critical one and one that can make or break the quality of governance. Usually, not a policy is passed, a major programme commenced, or in the most detail orientated a contract signed, without the permission of one of these two people.

    That critical relationship cannot be to act, consciously or otherwise, as gatekeepers – and instead needs to work to sharpen the focus of the wider discussion and decision making on the art of the possible in responding to the greatest aspirations and the most sizable threats.

    Sometimes the funnel of chair and vice chancellor contracts the necessary information, context and ambition rather than flipping the funnel around to allow a wider and richer understanding of the specific problem and the potential answers to it.

    A trend across the sector is that the strain placed on organisations is placing significant pressure on this relationship. Sometimes this pressure is forcing the chair and vice chancellor ever closer together and making them engage like never before. On the other hand, this pressure can spill into real disagreements and arguments.

    Neither excessive closeness nor distance is helpful for good decision making. One allows governance by relationship above process which can lead to decisions being too narrow or having considered too few sides. The distance makes issues fraught and honest conversations difficult.

    The role of the registrar has never been more crucial in this dynamic. They are the third leg of the stool that can facilitate private conversation but crucially, particularly now, can turn debates into issues that can be fed into the university governance system with a structure and purpose that reaches beyond the vice chancellor and chair in isolation. The registrar, or equivalent, is too often perceived as clerking or secretariat – rather than a function and role that can influence culture.

    The idea isn’t that governance should be conflict free, but that systems are robust enough to turn conflict into decision. In times like these strongly held disagreement is inevitable, sometimes it is even good as it shows things are being deeply felt, but governance cannot function where personal relationships dominate a governance system. The future is one which – as you might expect us to say – ever more deeply engages the registrar as the translator of discussion into decision.

    Regulators and regulation

    Governments and regulators have not been helpful in enabling the evolution needed in university governance. On the one hand, there is a reflexive defence to non-intervention because universities are autonomous institutions. And to be fair, when regulators and governments do something universities do not like it is also a defence they reach for. Autonomy is true at an institutional level but regulators seek to impede institutional autonomy all of the time through sector wide regulation.

    Taking Covid as an example, the Office for Students introduced a range of temporary market stabilisation measures which covered, amongst a range of other matters, “matters that may affect or distort decision making by prospective or current students in respect of their choice of higher education provider or course.” It isn’t enormously helpful that the regulatory environment can sometimes feel like either no intervention or extreme intervention.

    The space that is interesting is what does regulatory stewardship look like – neither the laissez faire of institutional failure nor the clunking foot of, well, boots on the ground.

    The overriding temptation is to introduce more regulation in a period where the sector is struggling. The logic is that universities are exposed to greater risk and the way to protect students from risk is to build boundaries around what universities can and cannot do.

    The problem is that universities do not have the resources to cope with any more regulatory burden. In fact, owing to the financial pressures they are under, universities have less resources than ever to deal with new regulatory burdens. This isn’t about the bonfire of the redtape, or a chainsaw as some world leaders prefer, but it is about an informed debate about how to sharpen the focus of an enormous regulatory burden.

    Introducing new regulation increases the chances that universities will fall foul of new regulations but that hardly seems like the point. There should be as much energy in reducing red-tape as there is in creating it in order to give universities the space to breathe. The sector is having to reduce its size and it can’t function with a regulatory burden designed for a time when it was much bigger.

    The effect of this would also be to free up the regulators time to focus on a narrower range of issues. The obvious rebuke is which things should any regulator spend less time on. The question, though helpful, misses the wider point that regulatory burden is created as much by approach as by the areas regulators choose to spend their time on. OfS Chief Executive Susan Lapworth made the case back in 2022:

    Your autonomy shouldn’t be a theoretical idea that you mobilise defensively to ward off regulation. It should be a living, active practice that you use to make your own decisions with confidence. So I’m encouraging you to think about whether the idea of self-directed autonomy might be a useful way to think about how you respond to regulation.

    Three years on, it’s fair to say that governing bodies often do not feel like they have sufficient insight into what the regulator believes to be the appropriate exercise of that autonomy. For example, it would be enormously useful for the OfS to provide an annual summary of the key issues they are dealing with – a bit like the OIA’s annual report on trends and outcomes.

    Reducing regulation, revealing potholes, and more clearly differentiating between issues of governance and those of leadership will help. It is also important to be clear that at times the sector has been caught in a trap of doing the same activity and expecting different results.

    Partners

    Even in the most extreme circumstances the sector now finds itself in radical discussions couched in terms of partnerships with the people that the sector has always worked with. It might be that some of the answers to the current crisis are not within the sector.

    There is an opportunity to explore partnerships with different kinds of public and private organisations. Traditionally, in universities, these have grown up within schools and faculties as research or teaching partnerships. It’s less frequent that senior leaders and their governing bodies seek out partnerships of mutual convenience to address a challenge.

    Now would seem to be the time to look at whether there may be partnerships with private providers on pre-degree teaching, PBSAs on addressing housing shortages, local authorities on a place-based marketing campaign, the local chambers of commerce on brokering land assets, and so on.

    Again, the challenge in realising this work is a governing one. Universities just have less muscle memory of trying to building these kinds of strategic partnerships – more imaginative partnerships require a different set of approaches.

    The first is absolute clarity from governing bodies regarding the problems they are trying to solve – and the discipline to stay within those core priorities. It is not enough to say that the problem is cash shortage caused by recruitment challenges. The deeper question is which qualifications are recruited to, the types of programmes on offer, and how clearly the link between income and programmes can be defined. Only then is it possible to look at which partners might be worth working with.

    The other challenge is that the regulatory environment is not always amenable to partnership. There is the issue of CMA compliance, where providers are reluctant to enter sensible conversations for fear of falling foul of regulations. A simple guide on the framework for who universities can work with in what circumstances would go far. Clearly, the current situation where the CMA is obligated to maintain the rules of a market which isn’t functioning properly is far from ideal.

    Breaking not broken

    People, regulation, and new partners are the three ingredients to move the university governance cycle on. It is easy to say universities need outside direction and internal commitment to meet the moment we’re in – but harder to pull off in practice.

    What universities have in their favour is that they have structures and processes that have been tried and tested. Now is the moment to adapt them.

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  • What we’ll be talking about at The Festival of Higher Education 2025

    What we’ll be talking about at The Festival of Higher Education 2025

    We’re not going to lie, we had to think really hard about what we want this year’s Festival of Higher Education to be about.

    If you’ve been to the event – returning to the University of London’s iconic Senate House this November – you’ll know by now to expect thoughtful analysis, discussion of the biggest issues facing higher education, and to hear from some key people who are leading and influencing the policy and political landscape. You can also expect to connect with people outside your professional area of work, find out about something new, drink buckets of coffee, and enjoy a jolly good party, if that’s your thing.

    None of that’s changing, obviously. Our reflections have been much more about the journey the HE sector has been on in the last year, and the potentially tough road ahead. The Westminster government has promised a package of higher education reform, possibly pegged to an annual inflationary uplift in undergraduate tuition fees, but there will most likely be no major injection of public funds. The straws in the wind from the last few years suggest that the steady trend in recruitment towards growth in home and international students is ebbing.

    When will there be good news?

    That means that across the UK higher education institutions are having to think hard, perhaps harder than they ever have before, about their core purpose and mission, about securing quality and excellence in education, continuing cutting edge research and scholarship, and deepening their compacts with their communities and regions to make the value of that education and research real to people.

    There is both potential and pain in that journey. If the HE sector was going to transform it would rather not be doing it under these circumstances. But with the right ideas and energy higher education should be able not just to cling on but to thrive – with a renewed sense of purpose and new ways of achieving the core mission for the generations to come.

    We think that potential can better be achieved through connection – with external perspectives, with the articulation of shared challenges, and with people and ideas who might be able to help. And that’s what we will be focused on as we develop the agenda for this year’s Festival of Higher Education. We can guarantee that this year’s agenda will be packed full of fresh ideas, innovation and inspiration!

    The Festival should offer the chance to hear from voices outside the sector who can speak to the wider public policy imperatives and global trends that UK higher education will need to think through. It should create space for deep reflection and new perspectives on the organisational challenges higher education is grappling with. And it should open up new thinking about the connections and relationships inside institutions and how to sustain and enhance academic community during times of change.

    Thematic, systematic

    Making that concrete, we think there are several really key policy themes that need to be unpacked.

    Economic growth and regional/national development – the number one priority of not just the Westminster government but arguably of all governments. Higher education is one of the most important tools available in efforts to create flourishing economic ecosystems but we need a stronger articulation of the role of higher education in developing skilled graduates, how institutions connect up in their regions and nationally, and how the innovation grown in universities is seeded in the wider economy.

    The regulatory environment and the relationship between the state and higher education institutions – with a new chair at the Office for Students, Medr implementing a new regulatory framework in Wales and reorganisation of FE/HE sector agencies in Scotland there are wide open questions about how best to find the balance between public accountability for quality, access and governance, and institutional freedom to innovate and offer something distinctive and sustainable – including deciding what not to do.

    The future student learning experience – as labour market opportunities for graduates evolve in response to AI, costs of study put increasing pressure on the traditional HE route and on students’ wellbeing, and governments consider how to upskill and reskill to increase opportunity throughout individuals’ lives, higher education institutions will need to think about the kind of educational and personal development experiences future students will need to help them build the lives they want.

    Organisational effectiveness of higher education institutions – it doesn’t sound that inspiring when you put it that way, but looking at challenges around effective governance and leadership for the current moment, the drive for efficiency and better use of data to inform decisions, and most importantly how higher education professionals experience their working environment, and are meaningfully engaged in change agendas, you realise just how important a theme this is. Evolution and adaptation might not be enough for many institutions – leadership teams and governing bodies will need to equip themselves to drive transformational change.

    Higher education in an increasingly uncertain world – while the Trump administration attacks US universities the shockwaves are being felt in the UK and beyond. The ongoing war between Russia and Ukraine; the growing risk of conflict between China and Taiwan; conflict in Gaza and wider Middle East tensions all have an impact on campuses in the UK. How can UK universities chart a path through this global turmoil?

    We’re certainly not claiming that a single event will answer all these challenges in their entirety. But we think these are the issues that are driving higher education change – and for that change to be experienced as renewal rather than decline, there’s still plenty of value in taking the time to talk and think about them outside your normal day to day.

    We remain immensely hopeful about the future for UK higher education – and we promise to create an event that you can sign up to now, confident that we’ll be working to build two days of insight, inspiration and fun that will be a highlight of your year. Join us – you won’t be disappointed.

    Reduced rate early bird tickets for the Festival of Higher Education are available until Friday 20 June and thereafter at the normal rate – click here for more information and to buy your ticket.

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