Does university governance need incremental or radical change?

Universities are complicated things. There’s people, and buildings, and behaviours, and lab coats and banking covenants. And all sorts of other things too.

They’re so complicated, in fact, that when something goes wrong in one of them it’s often fiendishly difficult to work out how, or why – or how that thing might be prevented in the future. But the buck does, conveniently, stop somewhere. And that somewhere is usually the “governing body”.

That collection of people (usually the “council” or the “board of governors”) is convenient because it provides a focal point for accountability – to regulators, funders, staff, students, and the public. It also provides a way to resolve competing interests and priorities – because whilst a private sector board might debate how to enhance shareholder value, at least that’s it’s obvious purpose. If only things were that obvious in HE.

The English regulator hasn’t been hugely impressed with the governance it’s seen in its short life. Its (initial provider) “registration process and outcomes” themes and analysis document said that there was “a lack of convincing evidence about the adequacy and effectiveness of providers’ management and governance arrangements”. Following a bunch of issues in Wales, minister Kirsty Williams subtly asked HEFCW to “consider a protocol or framework … to enable the development of a ‘no surprises’ culture… particularly where significant announcements are planned by institutions”. And the Scottish Government got so impatient with its university sector’s efforts to improve governance that it ended up imposing a bunch of requirements in legislation.

Time for a review

For some time, to both improve and provide assurance about governance, the Committee of University Chairs (CUC) has maintained a voluntary code of governance for the sector. It’s standard stuff – boards assess themselves against it and, on an “apply or explain” basis, identify things they are not doing or can improve on. Consultants pop in every few years and use it to assess a board’s effectiveness, and compliance with it appears in the annual accounts as a way of signalling that all is tickety boo.

That’s not, of course, a perfect process. De Montfort’s external review in 2015 found “the standard of governance to be high”, but less than four years later OfS found “weaknesses and failings in the university’s management and governance arrangements which were significant and systemic” as it oversaw an eye-widening statement of governance failure and an associated action plan to address it.

So now CUC has launched a public consultation on a revised Higher Education Code of Governance. The new, shorter, (draft) code is supposed to mark a shift – from a focus on governance processes to the behaviours and relationships that underpin them, and aims to have “general relevance” to institutions in all four UK regulatory systems. It will be accompanied by a series of “illustrative practice notes”, covering points of interest such as whistleblowing policies, governance practice as it relates to student engagement, and the measurement of institutional performance.

Those interested can find a copy of the code, the proposed contents for the “Governance Handbook”, the consultation questions and a link to the submission form on the CUC website – and contributions really are welcome from anyone with an interest in the reputation of the UK Higher Education sector by 12:00 on Friday, 13 March.

Of particular interest here is what’s different to the last major iteration.

After some preamble, the Code has a go at setting out some “core values” and “objectives” of higher education governance that are shared across the sector – and here we get some 2020 language tweaks. “Protecting the collective student interest” now has “ensuring student outcomes reflect good social, economic and societal value” bolted on the end. The old “available to all those who are able to benefit from it” becomes “enabling anyone with an interest in accessing higher education to enter into, succeed in and progress from academic studies”. And the “achievement of equality of opportunity and diversity throughout the institution” gets remixed into “diversity and inclusive practices”.

But it’s in the “primary elements” of governance where things get interesting.

Who’s in charge

In the 2014 iteration, there were seven of these “primary elements” – accountability, reputation, sustainability, academic assurance, control, equality and diversity and effectiveness. Interestingly, this time around we’re down to six – effectively “academic assurance” has been rolled up into “sustainability”, and this isn’t just a bit of neat formatting.

The underpinning assumption about the respective roles of academic boards/senates and boards of governors/councils has basically long been that academic endeavour is run autonomously by a group of scholars (with some token students and professional services types bolted on), whilst the stuff around it – the buildings, the money and so on is handled by the governors.

But things have changed. It’s the governing body that’s accountable. Academic governance is important, but in OfS’ registration review, “academic governance often appeared to be a reporting protocol rather than a robust approach of the governing body to testing the assurances it receives in this area”. The old code talked of sound academic governance being based upon collegiality, governors respecting its role, and “receiving assurance” that academic risks were being effectively managed – backing off, in other words.

The new one makes clear that these days it’s the governors themselves that have to provide assurance on academic standards and the integrity of academic qualifications, so now it will “work with” the Senate/Academic Board to maintain standards and continuously improve quality”. It’s a subtle but hugely important shift, and not one that it’s clear that most academic boards/senates have grasped, or that most boards of governors/councils are really capable of.

There are lots and lots of other little changes, most of which are about keeping the “musts” and moving the “coulds or shoulds” into some proposed “illustrative practice notes”, many of which are still to be developed – it’s the Quality Code and its supplementary “advice and guidance” all over again.

Curiously, what it doesn’t mention (perhaps because it’s supposed to be UK-wide) is arguably the (English) Higher Education and Research Act’s “rival” code – the “Public Interest Governance Principles”. These are described in principle by OfS with a bunch of “one size doesn’t fit all”, “comply or explain” behaviours set out by the regulator in its framework – and cover much of the same ground, like “academic freedom”, “accountability” and “value for money”. Over in the voluntary sector, the charity governance code was developed in partnership by a group that had the regulator “sleeves rolled up” as a non voting member. It would be fair to say that in our sector, the regulator has been somewhat more distant from the development of this code.

Charity case

And that comparison – with the charity sector – is interesting for other reasons too. Via our work with SUs, I know quite a bit about the Charity Governance Code and NUS’ minor iteration of it for SUs. And it’s worth saying that the level of ambition around assurance and improvement – especially in relation to the behaviours and relationships that underpin them – is different. Significantly different.

Take accountability. In the CUC code that’s about accountability for things. But over in the voluntary sector, it’s about accountability to – beneficiaries, staff, volunteers, members, donors, suppliers, local communities and others. There has to be a strategy for regular and effective communication with these stakeholders about the charity’s purposes, values, work and achievements, including information that enables them to measure the charity’s success in achieving its purposes. The board has to ensure that stakeholders have an opportunity to hold the board to account through agreed processes and routes, and ensures there is suitable consultation with stakeholders about significant changes to the charity’s services or policies. Why not in universities? Why is it so hard to name any university’s Chair?

Or take effectiveness. The CUC code does discuss size, composition and skills. But the charity code suggests boards’ look at their “ability to work together as a team, including individuals’ motivations and expectations about behaviours”. Trustees have to “take time to understand each other’s motivations to build trust within the board”, and where significant differences of opinion arise trustees “take time to consider the range of perspectives and explore alternative outcomes”. A “formal, rigorous and transparent procedure” has to be in place to appoint new trustees to the board, and any reappointment has to be subject to a “particularly rigorous review”. Rigorous is not quite the word I’d use for some of the HE reappointments I’ve heard about.

Or take inclusion and diversity. The CUC code does talk about equality and diversity legislation, fostering good relations and receiving an annual equality monitoring report. But over in the voluntary sector, the board “takes part in training and/or reflection about diversity”, makes a “positive effort to remove, reduce or prevent obstacles to people being trustees”, the chair “regularly asks for feedback on how meetings can be made more accessible” and publishes “an annual description of what it has done to address the diversity of the board and the charity’s leadership and its performance against its diversity objectives, with an explanation where they have not been met”. Why are our students’ unions all doing this, but not their “parent” universities?

Perhaps the biggest issue of all – for almost all members of governing bodies – is the way their input is, or isn’t valued. Many years ago, when I completed an MSc in voluntary sector governance, I asked over 100 trustees of HE, FE and charity boards where their expertise or passion was used – in item selection, item development or item approval. Guess which came out on top – and guess how happy they were about it as a result.

Structures too

And the issue isn’t just about structures. If nothing else, that civic agenda probably requires us to think seriously about whether a single body – which is always under pressure from some to become smaller – is really the right approach.

As a reminder, Lincoln’s “Permeable University” thinking in their 21st Century Lab project proposes something much more radical:

Governance in the 21st Century is complex and multifaceted. Expecting a single body to complete all aspects of oversight is no longer fit for purpose. Rather a family of inclusive governance structures relevant to specific needs is necessary. Ensure strong communication across each part of the structure with clear lines of responsibility and terms of reference, drawing in diverse voices, for a more appropriate framework in the current climate.

Use full breadth of governance bodies to broaden representation: Boards in themselves cannot be representative of all communities but there needs to be appropriate debate and diversity threaded throughout the governance structures.

When will I see you again?

Maybe I’m being unfair, and much of this sort of stuff will appear in the IPNs. It is doubtless hard for CUC to reflect the full diversity and ideas and approaches across its membership, and when something is supposed to apply to the whole sector across the whole UK, there will be all sorts of tensions – not least between approaches that are seen to have “always worked” with the risks of innovation.

But that tension between valuing that which has been long-established, and that which could-be-established, has long been on my mind – and I’m left with the lingering sense that the biggest problem of all with university governance won’t get solved via this code.

Back in 1998 when I was the 20-year old student member of the governing body at UWE, a (highly respected, “great and good”) lay member tapped me on the shoulder after one meeting and said “Jim! Thank God you asked all those questions. Most of us wouldn’t dare.”

Taken aback a bit, I asked him (and of course it was a “him”) why others didn’t ask the questions that I did. “Because we’re already supposed to know the answers”, he said.

I never saw him again.