Sledgehammers, screwdrivers, and primary legislation

There might well be a new Higher Education Bill on the way.

But it wouldn’t be a grand vision for the future of the sector, or a radical change to the way the government controls it.

It would be an exercise in tidying up and optimising the rats’ nest of legislation and regulation that currently governs higher education in England. Changes will be minor and focused on efficiency – more a screwdriver than a sledgehammer. This approach was foreshadowed by the Behan review, which recommended that:

Government and the OfS further consider the legislative powers and tools required to enable the OfS to effectively regulate.

In this respect it might be similar to higher education related bills in recent years: the 2024 Higher Education (Freedom of Speech) Act, the 2022 Skills and Post-16 Education Act, and the 2023 Lifelong Learning (Higher Education Fee Limit) Act were all screwdriver-esque, making changes to existing legislation rather than breaking new ground.

This will be my testimony

The last sledgehammer bill was the 2017 Higher Education and Research Act (HERA) – but even laws as long and unwieldy as that have to modify the legislative landscape in order to keep things running smoothly. It made modifications to the 1986 Education (no 2) Act, the 1988 Education Reform Act, the 1992 Further and Higher Education Act, the and 2004 Higher Education Act, plus many other minor and consequential amendments to all kinds of other law.

Some of this is at a surface level – if you create a new organisation like OfS or UKRI you need to change or make references to make sure it can use existing powers or is exempt from existing safeguards. Some of it is deeper and more profound – fee increases were made under the powers in the 2004 Act until these were repealed in 2018 by secondary legislation linked to HERA. And, when the time comes to use the funding method described in the 2023 Act, this situation will change again at the stroke of a pen.

It’s generally considered better parliamentary practice to use primary legislation (as in, bills that become acts) to modify other primary legislation – it can be done using secondary legislation (statutory instruments) but this tends to look like the government is trying to hide something. Witness, for example, the partial repeal of the Higher Education (Freedom of Speech) Act, which very nearly made Toby Young at the Free Speech Union need to change his trousers.

Dog’s breakfast

I’m not the first to say this, but HERA is an absolute bin fire of an act. It is long, unwieldy, maddeningly unclear, and occasionally self-contradictory. A lot of what is contained in the bill no longer applies to the way higher education is regulated in practice. Indeed, there are a number of ways in which the Office for Students does not comply with the law.

My favourite example of this is section 38, which requires the Office for Students to monitor the availability and use of arrangements for students to transfer between providers. OfS is meant to report on the conclusions it has drawn from this monitoring annually – it doesn’t. It decided to stop doing this during the Covid-19 pandemic in 2020, and have never bothered to start again despite how interested the government now are in people doing stackable credit bearing modules via the lifelong learning entitlement.

So, given this, one thing a new bill could do would be to reinforce section 38, requiring the annual collection and publication of data relating to student transfers, and empowering OfS to do any other things (via an expansion of condition F2) it may need to do to make credit transfer between registered higher education providers as simple and as painless as possible.

Similarly there are bits of HERA that are now clearly never going to be used. Asking OfS to regulate student unions is now generally seen as a non-starter, and it never really was viable. So Sections 69B, A5, and A6 (as inserted by the freedom of speech bill) probably need to go)

What else?

The messiness around academic quality and standards in HERA has been well documented, and this was even before the demission of the designated quality body and the slightly questionable position of the Behan review regarding OfS permanently taking on the old role.

If this is what is to happen, it seems silly (as Behan noted) to have all of the fine-grained documentation about the duties and responsibilities of a designated body that will likely never exist again on the statute book. The references to the DQB should be removed.

However, part of the point of the DQB was to ensure that the sector itself (including students) had more of a role in setting and maintaining academic standards, and that quality assurance would meet international standards, so it would be reasonable to hope that the opportunity would be taken to put these points into law directly. We need a new clause requiring OfS to comply with international standards, to more regularly review quality and standards on a cyclical as well as a needs-based basis, and to include the views of staff and students within quality reviews. It may be reasonable to note that OfS may choose to appoint a body itself to discharge these very specialised responsibilities.

Behan also recommended that the appointment of the chief executive officer should be a matter for OfS board rather than ministers, and that an appointed chief executive should be able to get on with appointing their own executive team rather than having two directors appointed for them by ministers. This is the way most other arms-length bodies operate, and would do a lot to make the OfS look more independent of government.

Currently HERA requires that the Secretary of State appoints (as per Schedule 1 2 (1) of HERA) the chief executive, the Director for Fair Access and Participation (currently John Blake), and the Director for Freedom of Speech and Academic Freedom (currently Arif Ahmed). The DFAP rule is a hangover from the days of the Office for Fair Access, and the DFSAF comes from the ministerial overreach that characterised the debates around freedom of speech. New legislation should modify schedule one of HERA to make it easier for the OfS to appoint (and manage) its own senior team.

Money matters

Is there a chance that a new higher education bill could deal with the enormous financial strain both students and providers are under?

The uprating of the family income thresholds for access to maintenance loans is long overdue, to the extent that the total amount paid out as maintenance loans and the average amount paid out per student is forecast to drop even as the number of UK domiciled undergraduate students increases. These thresholds can be increased using a statutory instrument – amending part 6 of the 2011 Education (Student Support) Regulations – but this has never happened.

It would be good to build a requirement to increase these thresholds by inflation each year into primary legislation, and perhaps take the opportunity to rethink the operation of the current system in parliament. Writing the regulations anew would clear up the mess that is the 2011 regulations and allow for a one off above inflation boost so that the rules do the job they were originally intended to under the scrutiny of parliament.

While we are at it, HERA requires (via a last minute intervention from Jo Johnson – remember him?) that even inflationary increases to fee levels are voted on in parliament, a situation that allowed for Michelle Donelan’s damaging “fee freeze” that, arguably, is the main contributing factor to the current financial crisis.

So let’s put a requirement to maintain the real-terms value of fees into primary legislation, via an amendment to the new (per credit) rules in the Lifelong Learning (Higher Education Fee Limits) Act, ideally before these are implemented into HERA (something that needs to happen quite soon).

Access planning

What OfS does around access and participation is largely constrained by how the Office for Fair Access worked before HERA: institutions prepare an access and participation plan, this is assessed by the OfS, and only those with a qualifying plan are allowed to charge the higher fee limit.

In practice the requirement to submit an access plan is placed on providers in the Approved (Fee Cap) registration category only (so a big chunk of the sector is not required to do very much on access except via means related to outcome metrics in condition B3). The current push to collaborate regionally and work with schools to raise aspirations and standards there is, arguably, in breach of section 36 of HERA (the freedom to decide not to work regionally and with schools isn’t one of the three carveouts in subsection 1, but the institutional autonomy duty is not exclusive).

What OfS wants to do, what may or may not actually work, and what ministers might like to see do not always align, and what was once an uncontested boon (attracting underrepresented groups into higher education) has become deeply problematised in contemporary political discourse. What would be useful would be to loosen the constraints placed on OfS access and participation work in HERA, but to set out clear duties (rather than specified methods) on the face of the bill.

Legislation saves the nation

There are clearly more short, sensible, things the government could do in a screwdriver style higher education bill. I would hope that the legislation could start in the House of Lords – allowing the knowledge and expertise of peers to shape the parameters of debate in the Commons stages.

But it would be a brave government that publishes a higher education bill (of whatever sort) that isn’t able to offer some kind of a response to the financial troubles faced by the sector. While there are issues with current legislation, even a bill that does a lot of good leaves ministers open to the accusation that they are just tinkering around the edges. A screwdriver bill might make sense, but the need for a sledgehammer remains acute.