It hasn’t taken long for the first test of the strength of protections for institutional autonomy in the Higher Education and Research Act.
It came just before Easter in the guise of a press release stating that Education Secretary Damian Hinds had written to 23 institutions in connection with the practice of “conditional unconditional” offers, defined by UCAS as an offer which is originally conditional but becomes unconditional if the applicant selects the institution in question as their first choice.
In the press release the education secretary expressed his view that such offers were not in the interests of students and so was asking institutions to end the practice. He claimed that students were being subject to undue pressure and pressure selling and that this risked breaching consumer protection law. He also stated that such offers had a detrimental impact on students both in terms of their performance at A level, and in terms of their freedom of choice of university or other post-compulsory route. He announced his intention to ask the Office for Students (OfS) to conduct a review of admissions processes to consider institutions’ offer-making behaviour and recommend changes where necessary.
The question that many have asked is whether he has any power to do this.
The letter of the law
The Higher Education and Research Act confers no powers on the education secretary to take action against or otherwise intervene in individual institutions. Instead, it creates a framework whereby the power to take action against institutions in a broad range of areas rests with OfS. The education secretary has the power to give guidance to OfS to which it must have regard in performing its functions. It follows from this that the guidance must relate to matters which form part of OfS’s functions, which, arguably, maintaining the performance of students at A level does not.
The power to give guidance is expressly constrained: the guidance “must not relate” to, among other things, the criteria for the admission of students or how they are applied. This is relatively straightforward. If guidance does relate to these matters it is unlawful. It is difficult to see how guidance designed to end the practice of unconditional offers could do anything other than relate to admissions criteria or how they are applied.
Confusingly, there is also a general obligation on the education secretary to have regard to institutional autonomy, which is defined as including the freedom to “determine the criteria for the admission of students and apply those criteria in particular cases.”
A duty to “have regard to” something is less prescriptive than the prohibition referred to above. Broadly, this means that in issuing any guidance to OfS, the education secretary must be able to demonstrate that he has considered institutional autonomy, and, where his guidance nonetheless appears to restrict the freedom referred to above, there is clear justification as to why he has made the decision to nonetheless frame the guidance as he has. Any interference with institutional autonomy must go no further than is needed to achieve the justification. This therefore does not prevent an intervention in relation to admissions, but requires some justification for the same.
In my view, the mandatory prohibition on guidance relating to the criteria for admission and how they are applied trumps the broader duty to have regard to institutional autonomy. The education secretary has no power to direct institutions to end the practice of making conditional unconditional offers or to require OfS to direct institutions to do so. He could, however, ask OfS to look at the narrower question of whether there is evidence of “pressure selling” or the more general question of whether there was any actual evidence (as opposed to anecdotes) that outcomes for students admitted via a conditional unconditional offer were any worse than those admitted via conditional offers.
If the education secretary purports to exercise a power he does not have, or exercises a power in breach of the constraints imposed by statute, the remedy lies by way of judicial review. An order quashing the decision complained of could be sought, or alternatively a declaration that the intervention is unlawful.
Clearly, no-one would want to bring a judicial review simply on the basis of a letter or a press release alone, but it might be something to consider if the education secretary tries to enforce his request to institutions to stop the practice or if any guidance he gives OfS relates to the criteria for admissions or how they are applied.
There will be many out there who don’t think that defending the right to make unconditional offers is the hill that anyone should choose to die on. But if there is no objection to how the education secretary has dealt with this case, there is a risk that it could be taken as the sector being willing to accept interventions of this sort, prompting more of them in areas which the sector finds more unpalatable. The rule of law is the basis for all our rights, and we should be vigilant in holding ministers to compliance with it.