Regulation has been a continually important part of the higher education debate in the last decade. Many words and much emotion have been poured over a succession of government policy proposals, from the 2010 Browne Report (with its infamous, evidence-light, Chapter 6), through Green and White Papers, and now the Higher Education and Research Bill.
We can understand the nature of the debate more clearly by returning to the 1996 Report of the Committee on Standards in Public Life, chaired by Lord Nolan, which dealt with (inter alia) universities and further education colleges. I was secretary to this committee in later incarnations under Sir Nigel Wicks and later Sir Alistair Graham, and I learned important lessons about consultation and evidence-based policy development. I also learned that independent oversight is a precious flower, but not always appreciated by politicians or some of their attendant civil servants.
Nolan’s Second Report is historically interesting because it is an early call for students to be given the right to complain to an independent body. It thus helped to create the climate for the formation of the OIA in the next decade. But its discussion of university autonomy is equally interesting, and while much about universities has changed since then, the principles (in my view) still hold up.
Nolan argued that there was a clear distinction between the autonomy of a higher education institution “as an institution” on the one hand, and the principle and practice of academic freedom or judgment on the other. While academic judgment is a cardinal principle protected in statute, the freedom of action of institutions “will be circumscribed by the extent of their dependence on public funds, and the public has a legitimate interest in their governance arrangements.” The principle of academic freedom “does not justify a lower level of accountability for higher education institutions”. As a result, “we agree with the maxim that ‘the exact counter-balance to autonomy is accountability.’”
This is not ethno-centric ‘chappism’ from the vaults of the British Establishment. The Nolan analysis is not always trumpeted by university leaders, be they academics or managers, but it is nevertheless embedded in policy and decision making. It informed the 2014 revision of the Higher Education Code of Governance, and also the 2015 Good Governance Institute’s Review of Governance for Plymouth University. At Plymouth, well-publicised “trust and confidence issues between the board of governors, the vice chancellor, and the executive in 2014 were mirrored by a breakdown in staff’s confidence in the executive.”
The Nolan analysis, set out in more modern terms, also appears at the heart of OECD studies on university governance. For Henard and Mitterie, for example, autonomy and accountability have to be in balance: “autonomy in university governance is not an absolute.” It operates within a framework of higher education law, not only to ensure accountability, but also to safeguard and enhance public trust threatened by ‘institutional and managerial dysfunctions’.
Governance is broader than simply abiding by legislation. It encompasses the structures, relationships and processes through which policies for tertiary education are developed, implemented and reviewed. This includes internal measures (academic and managerial self-governance), and where these fail or are dysfunctional, external measures (state and market regulation and oversight).
One of the many delights of working in higher education is participating in conversations about regulatory reform. These have stopped and started over an eight-year period, and are more or less emotionally charged given the content and evidence-base of the pertinent White Paper or new policy proposal dominating sector discussions at any one time.
Political philosopher Michael Oakeshott pointed out that the key feature of a conversation is not the search for “a truth” to be discovered, but an “intellectual adventure” to properly understand the positions of those participating. Universities’ representative bodies – who are generally conservative advocates for world-renowned institutions – have majored on the need for and primacy of autonomy and self-regulation, and waxed lyrical about the ‘bureaucratic burden’ of regulation. The word ‘crippling’ has subsequently been added by scribblers in the Cabinet Office.
By contrast, as an ombudsman, I always began from the need for accountability and external oversight, arguing that continued or enhanced public trust is incompatible with self-regulation on its own. This was evidenced by the spectacular collapse of the Press Complaints Commission, to take just one example, and on which I wrote a comparative analysis of regulation in universities and newspapers.
However, by the time we have moved from principles to details, the distance between the positions is greatly diminished, even if the opening perspective, language, and direction of travel are different. There is, for example, very little of the substantive content of the 2015 Regulation Report of the Universities UK Regulation Task and Finish Group for supporters of accountability to take exception to. This continues to be the case even if responses to occasional institutional dysfunctional behaviour might be different.
What participants to the conversation usually have in common is a respect for the cardinal principle of academic freedom, and an appreciation that without it universities would lose essential elements of their key characteristics. This point is well made by Stefan Collini in his magisterial, ‘jeremiad’ polemic, ‘What are universities for?’.
And so it is with many critiques of the current government’s Higher Education and Research Bill, about which exemplary colleagues have energetically and acutely exercised their concerns “like whippets in a meadow on Sunday afternoon”. While the critics’ headline points are chastening (even lurid), an appreciation of their wider positions is revealing and thought-provoking.
The criticisms of the current bill are better understood and refined if they are set against a number of questions deriving from the Nolan analysis:
- Bearing in mind that academic freedom and academic judgement are cardinal but limited concepts (not everything an academic says or does constitutes an academic judgement) are the specific proposals themselves really a threat to that freedom and judgement?
- Is the criticism that proposals ‘serve the pleasure of politicians’ attributable to the proposals themselves or separately to (any) government’s use of the power of public appointment where Nolan set out rules of fair and open competition?
- Would the measures pass a public interest test in being necessary to improve the accountability of universities, where the outcome of self-regulatory action or inaction has been sub-optimal or where the policy proposal is only deliverable through legislation?
The point of these questions is not to generate particular answers but to encourage draft legislation to be measured against the Nolan maxim that “the exact counter-balance to autonomy is accountability”. The sometimes legitimate objection that a proposal ‘adds to the regulatory burden’ is supplemented by a tougher inquiry into why the proposal has emerged in the first place.
This does not betray a bias against autonomy towards accountability. I accept, as Collini reminds us, that we need to be wary of the “empty formalism” associated with some measures to make universities accountable. But this is different from being sceptical about accountability itself. Our universities are competent and world-renowned. They should continue to be underpinned by the cardinal principle of academic freedom, without which they would be broken shells. But, where appropriate, and with an abundance of caution, their accountability should be strengthened to ensure continued public trust in their operation and growth.