Introducing the Draft Tertiary Education and Research Bill for Wales

The Welsh government has published a wide-ranging draft bill covering tertiary education and research which proposes meaningful policy changes for providers and students in Wales.

It was originally planned that the bill would progress into legislation this year; delays arising from Covid-19 have prompted the unusual step of publishing the bill for consultation, with the expectation that the proposed new regulatory body for post-compulsory education should be established by 2023.

The newly published Draft Tertiary Education and Research Bill (DTERB) has two clear antecedents. The first is the Hazelkorn Review – the 2016 examination of the regulatory structures in Welsh post-compulsory education. The second is the (English) Higher Education and Research Act (HERA). Hazelkorn’s proposals were consulted on at great length following a 2017 White Paper (“Public Good and a Prosperous Wales”).

A commission for tertiary education and research

The essential feature of the bill is establishing a new regulatory body to oversee all tertiary education in Wales. Kirsty Williams, Education Minister sets out in her introduction to the Commission that the intention is to develop “a more effective, more efficient, and more coherent post-compulsory education and training system in Wales”.

Ellen Hazelkorn’s proposed Tertiary Education Authority (TEA), has morphed into the final proposal for a Commission for Tertiary Education and Research (CTER), with responsibility for planning, funding, and regulating universities, sixth forms, colleges, apprenticeships, adult community learning and research and innovation. The hope is that such a body will be able to create a system that is easier to navigate and more consistent for learners, more efficient for government, and more strategic for Wales.

Like the Office for Students, CTER will be able to maintain a register of providers, with conditions of registration; require the production of access and opportunity plans, as a condition of a higher fee limit; make arrangements for quality assurance provided by a designated body; and enjoy a power of entry and inspection.

Like HERA, the bill gives a definition of academic freedom, even though the duty in relation to this (with respect to higher education only) is only, as in England, to give regard to the idea. So although the letter of the proposed law includes a recognition that providers can define the content of courses, the criteria for admission to these courses, and the criteria for the appointment of academic staff – the wiggle room that OfS claims in England would exist in Wales too. And we do not get HERA’s specific safeguards against the prohibition of specific courses.

And like OfS, CTER would act with regard to ministerial priorities communicated via a statement from ministers – very much like the current “grant letter” arrangement. But in Wales, ministers will have the right to approve (or not) the strategic plan of the commission, and this plan needs to be updated whenever ministers update their priorities.

We are already seeing a regulatory structure that gives greater credence and more direct application to the whims of government. Any student of Welsh policy will know that its national system of HE has sailed closer to ministerial fiat than comparators elsewhere in the UK – the draft bill does nothing to stop this drift.

There’s a definition of “civic mission” on the face of the Bill, defined as generalised “action for the purpose of promoting or improving the economic, social, environmental or cultural well-being of Wales” but it’s expected that this mission will be discharged through the normal activities of the commission, rather than coming with levers attached in its own right.

A further duty of the commission is to ensure that adequate provision is made for tertiary education provision in the Welsh language and actively encourage residents of Wales to take up such provision, and providers to offer it.

Registration – that’s what you need

The administrative lacuna that resulted in the old HEFCE register, and the lust for a private-sector driven expansion, never really became an issue in Wales – so it is slightly surprising to see a dash for the spreadsheets now.

CTER is required to set conditions of registration in various categories (Higher Education [Advanced], Higher Education [Basic], Funded [FE and local authorities], and Contracted [apprenticeship and training]) , measure applicants against these conditions, and monitor ongoing compliance.

One innovation is that the register is required to specify the date of registration – a feature missing from the OfS version and roundly cursed by those wanting to monitor the progress of registrations. Though the commission has the final say on the rules, the bill requires that it is satisfied as to the quality of education, the effectiveness of governance, and the financial stability of the applicant.

The same system of specific ongoing conditions will exist as in England, though there is a very welcome clearer statement of the right to a review of decisions relating to whether the provider is registered in the first place, the application of specific ongoing conditions of registration, and any decision to remove a provider from the register.

The stipulated mandatory ongoing conditions cover quality, financial stability, governance and management, notification of changes, learner protection plans, responses to CTERs guidance and data requests, alongside compliance with the Learner Engagement Code – all familiar to those who know the work of OfS.

The threat of de-registration hangs above this new system, but surprisingly it is ministers and not the regulator that get to decide whether or not a provider gets the chop in unusual cases. Generally a two-strikes rule prevails, with CTER getting out the big marker pens if a second breach (in any category) of registration conditions happens after a first has seen action. Again, ministers do get the final say were a decision to remove is made, they can make transitional or saving provisions – or even require that an institution is treated as if it were registered even where it is not. We can only speculate as to why this strange provision exists – it could be argued that it leaves the door open to an “important” provider being removed (or choosing to remove itself) from the register yet still being subject to certain rules, or even still receiving funding

Access, fees and quality assurance

One or more categories of registration will come with the condition that the institution must produce an Access and Opportunity plan, setting out fee levels and measures planned to improve participation, retention, and attainment of under-represented groups, and provide financial assistance to students.

One innovation in the process is the ability to specify your own fee limit alongside the submission of plans at a course level of granularity. This would allow a provider to set different maximum fees for different courses. We don’t get this spelt out but the implication is that certain courses at a provider could charge lower fees and be subject to a lower level of A and O plan – an Equality of Opportunity statement.

The regulator itself has the option to require specific actions by subject – the example in the explanatory notes is one of widening access to “well-paid careers” like medicine, law, and accountancy. The commission also has a duty to monitor access and opportunity activity in non-registered providers.

Recently, the Welsh HE sector has been required to have teaching quality assurance carried out against a specified quality assurance framework by a body complying with rules set by the European Association for Quality Assurance in HIgher Education (ENQA) – which means, in practice in the UK, the QAA.

Although established schools and training inspector Estyn will handle the non-HE parts of the requirements to quality assure placed on CTER, the HE requirement changes to the possibility of an English-style fee-charging designated body – which the guidance anticipates will be the QAA.

All quality assurance engagement will be based around visits at intervals, with timings to be specified in regulation, and it is anticipated that as much coordination as possible between the FE and HE systems will come about via CTER, Estyn, and the HE designated quality body working together.

Funding teaching and research

CTER will not shy away from its role as a funding body. This will be based on a system of registration (the new register for HE, and existing requirements in other sectors) rather than outcome agreement though the latter will be used to monitor performance. Deciding between two systems of registration by plumping for both at once is seldom good policy, and we may find that in practice the system pivots to one more than the other.

There’s a lot of concern about the terms and conditions of funding, which can be applied to funding given to the commission by ministers. Section 79 sets out how this is permitted to happen – which largely appears to duplicate the (largely unused) terms under which the government can demarcate funding distributed via HEFCW currently.

Ministers can fund a limited range of HE courses directly – this is largely as is currently possible, representing a significant climbdown from the consultation where the government could do pretty much what it wanted.

Unlike the creation of OfS, which saw the amputation of research and third stream funding and subsequent grafting to a UK wide research body, CTER will retain HEFCW’s responsibility for research. The scope of this would be widened by the new bill to support innovation – which means funding can flow to a greater range of organisations working in collaboration with a registered provider. Broadening the definition, as it were, of research in this way makes a great deal of sense if you are taking the whole research ecosystem into account – but given the vanishingly small likelihood of more money being found, we have to also consider the fact that this will mean a smaller slice of the pie for HE.

We’re also drifting slowly away from the QR model of general research funding – ministers will be able to specify that funding allocated via the council is for research in particular areas (the examples in the guidance are broad enough – “social science”, “nuclear research”), though the detail is for a newly constituted Research and Innovation Wales Committee (RIW, Welsh for “slope” or “hillside”). In UK research funding this is an unprecedented move – in the past funding councils and regulators have been content to offer the blue skies end of dual support, without getting into being a research council.

We should also mention the Welsh Apprenticeship – a job with training to an industry standard, rather than a qualification. CTER gets the IoATE-style responsibility for setting, maintaining, and monitoring the apprenticeship frameworks that underpin this offer.

What to make of it

It is surprising that, in developing a shiny new regulator, the Welsh government appears so keen to assign power to ministers. It’s a theme that keeps coming back throughout the draft bill, and one that arguably undermines that way in which CTER will be able to regulate and make decisions. Though we are clearly dealing with an arms-length body, and the stipulations around sector autonomy and academic freedom are welcome if not completely binding, there is a decided keenness for government to get involved directly in quite detailed aspects of regulation.

The wider scope of CTER compared to OfS, or even the Scottish Funding Council, gives more scope for cross-sector thinking and synergy. It’s become clear through the extensive consultation and bill development process that it is a harder job than was initially anticipated. All post-compulsory education is clearly not identical – the idea of a single approach to regulation has obvious attractions but it is not yet clear how much benefit it brings.

And benefit needs to be another consideration. All machinery of regulation changes have an opportunity cost and bring about friction as processes and ideas are embedded. But this needs to end at a point where a new system is able to do more (or better) than the previous one was able to.

The possibility of taking a true cross-sector look at tertiary provision is there, but I am not convinced that the letter of the bill quite makes that happen. Much depends on the way the new regulator acts and relates to the sectors it controls, and much of that depends on ministers having the wisdom to keep their hands off and wait.