Although the prospect of a law to deal with essay mills has been welcomed across the higher education system, there has been surprisingly little scrutiny as to what the new measures actually are or how they would work.
What with the Skills and Post-16 Education Bill Lords report stage debate being delayed, I thought I might have a look. You’ll find the relevant amendments here – amendments 53-57 in the name of Baroness Barran. I should warn that although I have read and do read a lot of legislation I am not a lawyer.
In essence, there are five main new clauses that write these measures into the bill. The first and the last are concerned with defining key terms used in the middle three, which propose an offence of providing or arranging a relevant service, an offence of advertising a relevant service, and an offence related to bodies corporate and unincorporated associations. In reading proposed legislation my method is to look at the clauses that actually do stuff (in this case the three middle ones) and then apply the definitions as needed.
My definition is this
The first question then is key – what is this relevant service that underpins all these new offences? Well –
a service of completing all or part of an assignment on behalf of a student where the assignment completed in that way could not reasonably be considered to have been completed personally by the student.
The materials used here have to have been prepared in connection with an assignment and not have been published generally. So an answer to a very similar essay question you find on a website doesn’t count – it hasn’t been prepared in response to a specific assignment, and it is generally available on the website.
This opens up a whole world of further things that need to be defined. A student is a person undertaking a relevant course in a post-16 institution or sixth form in England, or anyone else over 16 who has been entered to take an examination relating to a regulated qualification in England.
There’s two important things to note here – to start with this refers to only the experiences of students in England (if you are based in England and running an essay mill selling services to students in Scotland, Belgium, or Cuba then you are not covered by this bill), and we should also note the measures extend far beyond higher education to cover pretty much any qualification a person may take from the age of 16 upwards.
A relevant assignment is something that the student is required to complete personally either as part of a course or to obtain a qualification. But we should pause at the word “personally” which here includes:
with any assistance permitted as part of the requirement (whether or not the assignment, if completed with that assistance, would otherwise be considered to be completed personally), and that assistance is “permitted assistance”
So personally does not mean “on your own”. If your course or award allows you to refer to a textbook, or work in a group, or use a specific website (perhaps provided by a professional body) this kind of assistance is “permitted” and thus does not come under the terms of this bill.
What about an example answer, published on a student support website? This wouldn’t count because it has been published generally and is available without payment. Likewise, if a student shared a particularly difficult question on a course forum or WhatsApp group and was given advice by others on that group, it doesn’t appear to count – even though this help has not been “generally published”. Buy the class nerd a few pints and have him go through the question with you? Difficult to say where that sits.
This is a rather knotty problem, and one which the government has solved by punting this issue back to providers and examiners to deal with. Is the support of other students “permitted assistance” as it relates to a particular assignment? Does this differ depending on if the support was sought from a volunteer in the library, on a class forum, on SnapChat or if beers were or were not provided? All down to whoever has set the assignment, and what constitutes “permitted assistance” for it.
The language around the “relevant assignment” ties the new offence of running or advertising an essay mill to a particular academic interaction. Someone will have needed to provide a student with materials that are then used to complete a particular assignment. And this will need to have been spotted – most likely by the academic who is marking said assignment.
No offence meant
With this as clear as mud let us move to the new offences:
It is an offence for a person to provide, or arrange for another person to provide, in commercial circumstances, a relevant service for a student in relation to a relevant assignment.”
So the person committing the offence is the person providing the service – not the student (the regulations are thankfully clear on that). And on conviction that person is liable to a fine – but there are defences.
- If you prove you don’t know (and could not with reasonable due diligence have known) that the student would use material to complete the assignment, or you don’t know that you weren’t offering “permitted assistance”, or you didn’t know that the student had to complete the assignment “personally” then that is a defence.
- If a student signed a contract or something similar that said they would not use the material provided to complete the assignment, or that the assistance you were giving was permitted, then that is a defence.
This is indeed all rather tricky to prove in any direction. The Crown Prosecution Service would have to prove that a student received materials to be used in a “relevant assignment” as part of a commercial interaction. The person who made the material would have to prove that they didn’t know the student was going to cheat with them, and may do so by showing that the student signed something to say they wouldn’t.
If you’ve ever looked at an essay mill website you’ll note that some of them say that materials are provided as “revision aids” or “example answers” and should not be submitted. If a student had to click a box to say that they understood that then it appears that you may be able to argue that no offence will have been committed. Which is rather a huge hole in the “criminalisation” of essay mills.
Note also “commercial circumstances” – this applies to a person who arranges the service acting within the course of a business, meaning (I think) for profit. Defining a business is a surprisingly slippery undertaking, which is why I am surprised it isn’t on the face of these amendments with all the other definitions.
It’s also an offence to advertise an essay mill, as long as it is at least partially to students. Again there is a fine for this. And this fine is for a person who does the advertising, not the company that does the advertising. If a student is given £50 quid to leave some fliers in the SU, the student is the person that has done the advertising and is thus liable to the fine.
The final “offence” measure simply allows the act to deal with unincorporated associations in the same way it does with bodies corporate. Standard stuff that means there is no need to delve into corporate structures or the lack of them.
What’s worrying me
It does feel like it is far less hassle to prove that someone is advertising an essay mill rather than that a student used an essay mill service to cheat. Indeed, the Advertising Standards Agency has already dealt with essay mills and their advertising practices on numerous occasions. The new powers add fines and a criminal record to the deterrents available. However the internet, and thus pretty much everything concerning the flow of information, cuts across borders. The idea of legislation making an offence in England for people in England to sell certain services to students in England is so parochial as to be laughable.
There are much, much, easier ways to stop students from being able to resort to essay mills and these primarily revolve around assessment design. I’ve been over this on the site before, but the arms race between cheating services and “detection technologies” is a battle of our own making – there are ways of constructing assessments that design out most opportunities for plagiarism and assess the skills and knowledge you want to assess.
As we all know, criminalising drugs means there are literally no more drugs – and it is certainly not the case that the entire industry has moved further and further underground and is providing more and more dangerous substances. So, criminalising essay mills is bound to be a success and will inevitably lead to the complete eradication of essay mills.
But here we are. We got some good headlines ahead of the conference, and it gave a bitty and unsatisfying Skills and Post-16 Education Bill a faint new lease of life. Putting students supporting each other on shakier legal ground and letting academics work (again!) as unpaid police feels like a small price to pay for that.