The Higher Education and Research Act 2017 (Further Implementation etc) Regulations 2019

The Higher Education and Research Act 2017 (Further Implementation etc.) Regulations 2019 were approved on June 5th in the Lords, having been given the green light in the Commons in the previous week. They are due to take effect on August 1st 2019.

The Higher Education and Research Act 2017 among other things, created the Office for Students (OfS), abolished the Higher Education Funding Council for England (HEFCE) and the Director of Fair Access to Higher Education, required the OfS to establish a register of English higher education providers, and replaced the old HEFCE funding regime with a new funding and regulatory regime for higher education.

The main purpose of the statutory instrument is to make legislative amendments that are needed as a consequence of the reforms made by the Act, in particular to amend provisions that refer to repealed provisions or obsolete concepts and to replace references to HEFCE or the Director and research funding councils with references to the OfS or UKRI, as appropriate; it also amends the Charities Act 2011 and applies the Regulators’ Code to the regulatory functions of the OfS.

Education Act 1994

It also makes a minor amendment to the Education Act 1994, which concerns students’ unions. Until now, the act generally applied to FE/HE institutions in the public sector, defined in relation to the Further and Higher Education Act 1992. Because HERA is generally concerned with a “level playing field” for institutions and the OfS it created is concerned with regulation of providers who have access to subsidised student loans, a change has been made to the Education Act 1994 on the “Establishments” to which Part II of the act (Students’ Unions) applies.

The Act will now cover:

any registered higher education provider of a description prescribed by regulations made for the purposes of section 39(1) of the Higher Education and Research Act 2017.

The section of HERA that it refers to is as follows:

(1)The OfS may make grants, loans or other payments to the governing body of an eligible higher education provider in respect of expenditure incurred, or to be incurred, by the provider or a qualifying connected institution, for the purposes of either or both of the following –

(a)the provision of education by the provider;

(b)the provision of facilities, and the carrying on of other activities, by the provider, which its governing body considers it is necessary or desirable to provide or carry on for the purposes of, or in connection with, education.

OfS funds eligible higher education providers – those registered in the Approved (fee cap) category of the OfS Register – for certain activities as defined above. Being registered as an Approved (fee cap) provider is a prerequisite for a provider to be eligible for OfS funding under Section 39(1) of HERA, and now the Education Act 1994 Part II (Students’ Unions) applies to all of those providers.

What does the Education Act do in relation to students’ unions?

The Education Act 1994 (Part II) does three main things:

• It specifies those institutions to which the act applies;
• It defines what “counts” as a students’ union for the purposes of the law;
• It then details a number of provisions/rules that determine how any SU should operate

In other words – if either of the first above two do not apply, then the list of rules do not apply (at least in law) either. That doesn’t necessarily mean that charity law does not apply – charity law is quite separate although some bits of the act overlap with general charity law provisions.

So what counts as an SU?

The act says that a students’ union is:

• an association of the generality of students at an establishment to which this Part applies whose principal purposes include promoting the general interests of its members as students; or
• a representative body (whether an association or not) whose principal purposes include representing the generality of students at an establishment to which this Part applies in academic, disciplinary or other matters relating to the government of the establishment.

This was drawn deliberately quite broadly to attempt to ensure that students’ unions were unable to evade regulation. One of the unintended consequences is that where (often in colleges or smaller providers) there is not something “called” a “students’ union” but there is (for example) a regular meeting of course reps or a student council, that would probably “count” as a students’ union, if that was ever tested in law.

Legal advice for Association of Colleges in the 1990s suggested that any student representative body that was “learner led” in nature would count.

Note that qualifying paragraphs are also included:

References in this Part to a students’ union include an association or body which would fall within subsection (1) if for the references to the generality of students at the establishment there were substituted a reference to the generality of undergraduate students, or graduate students, at the establishment; or the generality of students at a particular hall of residence of the establishment.

This means (for example) that each of the Junior Common Rooms at Oxford is a “students’ union” in its own right; similarly institutions where there is a postgraduate association that is separate to the main SU effectively have two students’ unions in law.

This does not mean that the act requires that all universities and colleges in the Approved (Fee Cap) part of the OfS register have an SU and that they fund it – it doesn’t. It just creates regulation when there is something that fits its definition of an SU. Practically, in order to meet wider regulatory duties in the OfS regulatory framework (for example on student involvement in governance) most providers will have a set of meetings or structure that fits the definition of students’ union.

The SU does not have to be financially or legally separate from the provider to “count” as an SU under the legislation – although they often are and usually are in universities.

What are the requirements?

It is worth noting that these are not requirements placed directly on students’ unions – they are in fact placed on institutions who (through reasonably practicable steps) are to ensure that SU constitutions and practices reflect the provisions.

The requirements are:

The governing body of every establishment to which this Part applies shall take such steps as are reasonably practicable to secure that any students’ union for students at the establishment operates in a fair and democratic manner and is accountable for its finances.

This is straightforward and usually consists of informal discussions between the SU and university, and the formal posting of reports/accounts/financial statements to the governing body. It is worth noting that “fair and democratic manner” have not ever been tested in law – but this has tended to mean some focus on elections.

the union should have a written constitution;

the provisions of the constitution should be subject to the approval of the governing body and to review by that body at intervals of not more than five years;

This should set out the structure of the SU and basic provisions relating to office holders and elections to those offices.

a student should have the right—

(i)not to be a member of the union, or

(ii)in the case of a representative body which is not an association, to signify that he does not wish to be represented by it, and students who exercise that right should not be unfairly disadvantaged, with regard to the provision of services or otherwise, by reason of their having done so;

This section is often misinterpreted. It does not refer to office holders or representatives, but the pool of people from which those positions might be drawn – usually the generality of the student body at an institution.

Different institutions and SUs have taken the right to opt out to mean different things over the years, and this line has never been formally tested. In some cases a view has been taken that the only thing a student could be excluded from would be SU elections; others have taken a stronger line and argued that access to many SU services and facilities should be denied as alternative facilities are often available. So few students have opted out over the years that little attention has ever been paid to these differences.

a person should not hold sabbatical union office, or paid elected union office, for more than two years in total at the establishment;

appointment to major union offices should be by election in a secret ballot in which all members are entitled to vote;

These two clauses concern elected officers of the SU, and are frequently misquoted and confused. In the case of the “paid union office” rule this has generally been taken to mean any officer that receives benefits that are taxable – although some have taken a wider definition and argued that any office named in the constitution that even gets a small bursary “counts” here (ie some paid course reps or part-time officers often receive a stipend). There are also some institutions that have multiple students’ unions that have flouted this rule over the years, as some students have held paid union office for longer than two years when looked at from an institution – wide point of view.

That clause is often confused with the second one. “Major union offices” has no further definition but in smaller students’ unions has tended to mean the executive committee or any named positions, such as student President, Treasurer or Social Secretary. Crucially, many providers have in the past appointed (rather than elected) key offices, or have elected offices from a representative council of students. Under EA94 these positions must be elected by a ballot of the student membership in which all members are entitled to vote.

the governing body should satisfy themselves that the elections are fairly and properly conducted;

This is self – explanatory and in most unions simply means that the SU appoints a suitable returning officer and reports on elections to the university to assure that they have operated in accordance with the constitution. Different institutions have more intrusive arrangements – some insist on hearing election appeals and some appoint the RO. Note that the Office of the Independent Adjudicator has accepted some complaints from students about elections but only where the institution has not properly undertaken whatever duties it has given itself here.

the financial affairs of the union should be properly conducted and appropriate arrangements should exist for the approval of the union’s budget, and the monitoring of its expenditure, by the governing body;

financial reports of the union should be published annually or more frequently, and should be made available to the governing body and to all students

These items tend to consist both of informal discussion and formal presentation of reports and audited accounts.

Each such report should contain, in particular—

a list of the external organisations to which the union has made donations in the period to which the report relates, and

details of those donations;

This is an interesting section and the definition of “donation” has, again, never been tested. Generally this clause gets confused with that on affiliations (see below) but in fact means any organisation where an unrestricted donation has been made.

the procedure for allocating resources to groups or clubs should be fair and should be set down in writing and freely accessible to all students;

In theory every SU should publish the process for allocating resources to any sub groups that it supports. Note that the implication is that this will include:

• (Objective) rules for the (evaluation of and) approval of groups
• The (objective) criteria that will be used to judge funding allocation

There are also requirements around affiliations:

if the union decides to affiliate to an external organisation, it should publish notice of its decision stating—

the name of the organisation, and

details of any subscription or similar fee paid or proposed to be paid, and of any donation made or proposed to be made, to the organisation, and any such notice should be made available to the governing body and to all students;

where the union is affiliated to any external organisations, a report should be published annually or more frequently containing—

a list of the external organisations to which the union is currently affiliated, and

details of subscriptions or similar fees paid, or donations made, to such organisations in the past year (or since the last report),and such reports should be made available to the governing body and to all students;

there should be procedures for the review of affiliations to external organisations under which—

the current list of affiliations is submitted for approval by members annually or more frequently, and

at such intervals of not more than a year as the governing body may determine, a requisition may be made by such proportion of members (not exceeding 5 per cent.) as the governing body may determine, that the question of continued affiliation to any particular organisation be decided upon by a secret ballot in which all members are entitled to vote;

These clauses were aimed squarely at NUS at the time and it is worth noting that “affiliation” is not a concept that has ever been tested – but definitely covers affiliation to the National Union of Students..

there should be a complaints procedure available to all students or groups of students who –

are dissatisfied in their dealings with the union, or

claim to be unfairly disadvantaged by reason of their having exercised the right referred to above, which should include provision for an independent person appointed by the governing body to investigate and report on complaints;

complaints should be dealt with promptly and fairly and where a complaint is upheld there should be an effective remedy.

In tandem with many arm’s length organisations at the time, the government was keen that complaints were handled properly. Larger SUs now have multiple procedures that might cover general complaints, election complaints, complaints about staff and complaints about other students. Legal advice over the years has suggested that regardless, all such procedures should include the provision “for an independent person appointed by the governing body to investigate and report on complaints”.

Additional arrangements

Finally, the governing body of every establishment has to:

prepare and issue, and when necessary revise, a code of practice as to the manner in which the requirements set out above are to be carried into effect in relation to any students’ union for students at the establishment, setting out in relation to each of the requirements details of the arrangements made to secure its observance.

In some cases the university has taken the constitution itself to be the code of practice, but in most a simple document is issued that sets out how the above provisions are realised. It also has to bring to the attention of all students, at least once a year:

the code of practice currently in force

restrictions imposed on the activities of the union by charity law

details of how the 1986 Education Act re Freedom of Speech works at that institution;

detail on how to opt out of the union;

details of any “arrangements it has made for services of a kind which a students’ union at the establishment provides for its members” to be provided for students who are not members of the union.

In reality this duty has tended to be fulfilled by referring to the Code of Practice in enrolment (and re-enrolment) documentation.

Charity Law

Finally, almost all students’ unions are charities and where their income in a given year (gross, not net) reaches above £100,000 they should be formally registered with the Charity Commission. This applies even if the administration of the charity (ie the banking) is carried out on behalf of the union by the provider. SUs whose income is under £100k are “excepted” from having to register. The Charity Commission operational guidance on students’ unions is available here.