Higher education bills we’ve known and loved

How have previous pieces of higher education legislation shaped the sector we know today? What’s changed, what’s stayed the same, and what will be affected by the upcoming Higher Education and Research Bill? We thought with a new Bill heading to Parliament, now would be a good time to look back through the ghosts of HE legislative past.

Education Act 1962

• Imposed a duty on all local authorities to give grants to qualifying students from their area to enrol on qualifying courses anywhere in the UK.

The Prime Minister was Harold Macmillan, and the Minister of Education was David Eccles. This hugely important legislation ended the ‘postcode lottery’ for getting a grant depending on where you grew up. It can be no coincidence that this was seen as an essential move towards expanding opportunity at a time when people born during World War Two were reaching young adulthood, and in economic affairs the country was emerging from ‘austerity.’

Science and Technology Act 1965

• Established the procedures for creating Research Councils by Royal Charter, although only the Medical Research Council, the Science Research Council and the Natural Environment Research Council are actually named; others came later, including splitting up the SRC.

The Prime Minister was Harold Wilson, and the Secretary of State was Tony Crosland. The context was Wilson’s totemic speech, as leader of the opposition in 1963, on the ‘white heat of the scientific and technological revolution’. Crosland took forward legislation to enact change in the funding regime for science. The impact at the time was debatable, though clearly the structural instruments put in place here have been long-lasting. The proposed Higher Education and Research Bill will significantly amend and reform this legislation to create a ‘nested’ structure with existing chartered Research Councils and some other bodies under the umbrella of a new statutory body, ‘UK Research and Innovation.’

Education (No. 2) Act 1986 & Education Reform Act 1988

1986 Act

• Established statutory protection of freedom of speech within the law in universities and colleges, for members, students, employees and visiting speakers; and makes ‘every person connected with the government of the institution’ responsible for securing it

1988 Act

• Removed the polytechnics from local authority control and created the new legal form ‘Higher Education Corporation’, which most of the polytechnics then became
• Abolished the Inner London Education Authority; the polytechnics it controlled became Companies Limited by Guarantee
• Set up the Universities Funding Council (UFC) and the Polytechnics and Colleges Funding Council (PCFC)
• Ended academic tenure rights (by setting up a body of five people – the ‘University Commissioners’ – with sweeping powers to amend the statutes of any university)
• Made it a criminal offence to purport to offer a degree without the proper authority, and made the directors of companies guilty of the same if they allow the company they control to do this

The Prime Minister was Margaret Thatcher, and the Secretary of State was Kenneth Baker. These are worth taking together as they were part of the same political context of public sector reform. The 1985 Jarratt Report had been commissioned by the vice chancellors’ national body and recommended adoption in the universities of stronger central management structures, and the abolition of academic tenure. At the same time, the government was ‘at war’ with many local authorities and in many cases the polytechnics within them were equal in size and budget alone to their other divisions combined.

The polytechnic directors had a separate lobby, which was pressing for freedom. But a single funding council was seen by vice chancellors and conservative elements as going ‘a bit too far,’ hence, a binary system remained, but polytechnics were less constrained within that system. Two parallel admissions systems emerged as well – though this was not a statutory matter. Freedom of speech protections went across all institutions and had their roots in conservative reaction to ‘no platform’ policies and related practices in some institutions. It may yet be this final aspect that becomes most relevant to today’s debate, as ‘no platform’ is a hot issue once again and we may see new measures proposed by the government, or by parliamentarians through amendments.

Further and Higher Education Act 1992

• Merged the UFC and PCFC to form HEFCE; the new body to be appointed by the Secretary of State, taking into account the ‘desirability’ of having members of the board who have shown ‘capacity in the provision of higher education’.
• Established a duty on HEFCE to ‘secure that provision is made for assessing the quality of education’ it funds or may fund, and established a statutory committee within HEFCE to advise on this duty.
• Also gave the Secretary of State fairly sweeping powers to confer supplementary functions on HEFCE and to interpret whether a particular function is a proper function of it, and gave HEFCE powers to require information from institutions and carry out efficiency studies.
• Established the powers of the Privy Council in relation to university title and degree awarding powers.

The Prime Minister was John Major, and the Secretary of State was Ken Clarke. This legislation underpins the core elements of the HE system we have today. It created a single funding council supporting a unitary sector and laid the ground (following some toing-and-froing covered recently by Registrarism) for our current quality assurance regime.

The 2016 Bill will make big changes here, abolishing HEFCE and replacing it with an Office for Students, to consolidate a shift from the ‘grant-making state’ to the ‘regulatory state’ in relation to HE teaching. In keeping with that, the OfS will lose all responsibility in the area of research, innovation and knowledge exchange. The OfS and UKRI will collaborate in the role of monitoring the heath of higher education institutions ‘in the round’. The OfS will also obtain powers that the 1992 Act allocated to the Privy Council.

Education Act 1994

• Created a cross-sector Teacher Training Agency and set out measures relating to teacher training.
• Established a range of requirements in relation to students’ unions, including term limits for sabbatical officers, requirements to hold referenda on affiliations to external bodies (e.g. NUS), periodically or on receipt of a qualifying petition, fair allocation of resources to clubs and societies, etc.

The Prime Minister was John Major, and the Secretary of State was John Patten. In 1992, John Major was unexpectedly returned to power with a slight majority, and proceeded to wage war on three great evils facing the country – ‘benefit fraudsters, motorway road cones, and students’ unions’. There were also roots in the same Thatcherite thinking that underpinned parts of the 1986 and 1988 Acts.

The resultant draft legislation on students’ unions was extremely restrictive and authoritarian, and NUS mounted a huge campaign against the Bill. In the end, the government overplayed its hand, with a broad coalition of opposition emerging including conservative peers and vice chancellors (who were against the incursion into their own autonomy apart from anything else). The final Act imposed some new restrictions and requirements but did not presage the all-out destruction of a student movement in Britain, as per the original intention. Suggestions that the current government might have another attempt at this appear to have been confounded.

Teaching and Higher Education Act 1998

• Established the core architecture of income-contingent loans.
• Imposed a requirement on institutions to charge ‘specified students’ (i.e. full-time home undergraduates) a fee ‘equal to the prescribed amount’ (which was £1000).

The Prime Minister was Tony Blair and the Secretary of State was David Blunkett. The Labour Party had come to power in 1997 and immediately, and controversially, introduced fixed fees of £1000 per annum for FTUG programmes in England. At the same time, they reformed student loans to make their repayment less onerous, introducing the basic features of the system we have today (though it has been revised in some important respects); but crucially there was no loan available specifically to cover the £1000 fee.

The argument was that higher education represented a large ‘middle-class subsidy’ which should be curbed. There was an ongoing and widespread ‘doorstep backlash’, and NUS was seen as complicit. It is worth noting that the fee was intended to be truly fixed, not variable, except reductions for means-testing – it was not open to institutions to actually charge less than £1000, but a grant from government paid it up for qualifying students.

Higher Education Act 2004

• Established the statutory post of Director of Fair Access.
• Enabled institutions to charge ‘top-up’ fees more than £1000, if they obtained approval from the Director of Fair Access for their ‘plan to promote equality of opportunity in higher education’ (which we now know as ‘Access Agreements’), up to a maximum limit defined by Parliament.
• Gave the Secretary of State the power to specify a student complaints scheme, and designate a body to run it (which was then applied to the OIAHE); also required institutions to comply with obligations imposed on it under the approved scheme, including a requirement to pay fees to the designated body.
• Removed any right to have SLC loans cancelled in the event of bankruptcy.

The Prime Minister was Tony Blair, and the Secretary of State was Charles Clarke. This legislation extended the fees system so that institutions could charge higher fees, conditional on meeting new obligations to support fair access for students from disadvantaged backgrounds. The political left, including NUS and also much of the Labour Party (which were at that time more closely connected), hated the fees proposals and campaigned vociferously against them. The political right hated the new access duties (branding them the ‘OF-TOFF’ regime). At the vote after the second reading, the government’s majority was reduced from more than 170 to just five.

After the Act had become law, Parliament set the new maximum fee level at £3000; unlike 1998 it was explicitly envisaged that a variable prices market would emerge between £1000 and £3000, but this was always a very dubious notion, and it proved fallacious. In 2010, Parliament moved again under this legislation to endorse a Con-Lib coalition proposal to increase the maximum to £9000.