The third edition of Farrington and Palfreyman’s The Law of Higher Education recently landed on my doormat with a satisfyingly hefty thump. At 911 pages, it is as comprehensive and in-depth an analysis as would be expected from these esteemed authors of an area of law that has undoubtedly sprawled over recent decades.
It’s sometimes hard to recall that it wasn’t always like this. The stereotype of the university as an ivory tower, happily isolated from the rest of society, extended at one stage as far as being isolated from much legal attention.
The first edition of Farrington’s Law of Higher Education, a much slimmer tome, was published in 1994, around the same time I joined the firm as a trainee solicitor. The ebb and flow of higher education law has thus been a constant backdrop to my career.
The way it was
In 1994, many of our now well-established modern universities were less than five years old as independent corporations and little over a year into awarding their own degrees. The Higher Education Funding Council for England (HEFCE) was barely out of nappies as a funding council and the idea of regulating the sector rather than funding it would have been considered, to coin a famous judicial quote about legal deference to academic matters, jejune and inappropriate.
The Quality Assurance Agency for Higher Education (QAA) was barely a twinkle in the sector’s eye. The notion of a contract between universities and their students was still being debated, although such limited case law as there was tended to support the idea of such a legal relationship, if vague as to its actual parameters and implications.
But students in chartered universities had no access to general legal recourse if they were dissatisfied with their experience. That relationship was predominantly governed by the arcane and mysterious Visitor, a position considered to have untrammelled jurisdiction to advise on the application of the institution’s internal laws, investigate concerns, and offer redress for grievances.
Student complaints were eventually excluded from the visitorial jurisdiction by the Higher Education Act 2004 but until then, education lawyers spent a disproportionate amount of time striking out claims from disgruntled students baffled as to why they couldn’t just sue their universities as their peers at the newer universities could.
Not that student litigation was that prevalent. One of the great challenges of advising the sector has always been its (perhaps understandable) reluctance to get into court and establish some useful judicial clarification of broad legal concepts such as what exactly the terms of the contract were – a question not comprehensively answered until the Consumer Rights Act 2015 – or what exactly the extent of the duty of care is – a question still to be comprehensively answered.
The idea that students should be allowed to complain was still sufficiently contested that it warranted a recommendation in 1997’s Dearing Report which ultimately led to the creation of the Office of the Independent Adjudicator for Higher Education (OIA) and the demise of the Visitor as an adjudicator of student complaints.
Students as consumers
The other significant Dearing recommendations related to tuition fees, from which so many legal consequences flowed. Not only did it put beyond doubt that students had a contract with their universities but it brought them within the sphere of consumer protection, just as the Unfair Terms in Consumer Contracts Regulations 1999 extended the tentacles of legal control from the realm of disclaimers and exclusions of liability into the wider terms of the contract: at a stroke, sector practices such as withholding degree certificates, collective responsibility for communal damage, and excessively wide variation clauses all came under the legal microscope.
The sector was not exactly swift to respond to these changes even as tuition fees went through their £3,000 and £9,000 iterations, and consumer protection compliance did not really get sustained sector attention until the Competition and Markets Authority produced its guidance for higher education in 2015.
In truth the real expansion in higher education law and regulation mostly occurred after 2010, as we saw ever stricter immigration controls, the introduction of the Prevent duty, HEFCE incrementally moving from friendly funder to wannabe regulator, and the evolution of quality and standards from an enhancement carrot to a regulatory stick.
The introduction of the Higher Education and Research Act in 2017 was supposed to settle higher education law and regulation for at least a generation but within two years, its fundamental premise – facilitating easier market entry – was already under question. And developments this year around freedom of speech and “low-value courses” suggest that this government will not be slow in bringing forward new legislation or regulation.
So, even as I welcome the arrival of the third edition of the Law of Higher Education, I am sure the authors are already contemplating the fourth. Given the direction of travel over the past few decades, and to coin the movie slogan from Jurassic World, it will undoubtedly be bigger, louder, with more teeth.