Sherlock Holmes & the Case of the Delayed Response to Consultation

Smita Jamdar

I’ve been been looking forward to the Government’s response to the consultations on the HE White Paper and the Technical Consultation nearly as much as I am looking forward to Series 3 of the BBC’s very wonderful Sherlock (and if by some wholly unlikely chance you’re reading this Messrs Gattiss & Moffat, please can you get on with it....).  To be fair, the Government’s response was almost as long in the making as Series 2. The question is: was it worth the wait? Applying Sherlock’s trademark deductive brilliance(!), here are what I see as some of the more interesting points from a legal perspective:

  • There will be no primary legislation. The Government instead intends to implement its reform agenda through non-legislative means. There are of course limits to what can be done without primary legislation. A concern has to be that reform through non-legislative means is either incomplete (and therefore leaves open more questions than it answers) or seeks to pursue significant change without proper public scrutiny.
    The response to the consultation promises around 7 further reviews or consultations which will bring in further reforms. Not only does this risk “consultation–overload”  but the length of time the latest response has taken (and the fact that some of the policies, such as unconstrained recruitment of high-achieving students, have already been implemented ahead of the response to the last consultation) raises questions about how meaningful these future consultations will be in informing policy development.
  • An immediate change is the reduction of the numbers criterion for university title to 1000 FTE HE students of whom at least 750 are studying for a degree. It remains the case that at least 55% of the institutions overall student body must be studying on HE courses.
  • There will be changes to the criteria for university college title to introduce a good governance requirement.
  • There will be a new suite of guidance for the award of degree awarding powers.
  • One of the future consultations will be on how to extend student number controls to alternative providers, i.e designated private providers and FE colleges with no direct grant funding relationship with HEFCE.
  • There is no appetite to exempt universities from the requirements of FOI, nor it appears is there any appetite to extend FOI to cover private providers who are designated for student support purposes. Instead, the intention is to maintain the status quo so that FOI will apply to any institution in receipt of HEFCE grant funding.
  • On the continuing application of EU procurement rules, the response is a little more encouraging. Although keen to stress that institutions should take their own legal advice on the point, the Government view is that student loans represent a contractual arrangement between students and the government and are thus not a form of public subsidy. They should not be classed as public funding. If correct this will enable many HEIs to argue that they fall below the 50% public funding threshold required to engage the public procurement regime.  The question of whether or not this is a correct interpretation will be considered further in this month’s HE bulletin.

All in all, this reviewer’s view is that the response isn’t worth the wait. Many of the more difficult issues have either been avoided altogether, or deferred to await the outcome of future reviews and consultations. With the exception of the reduction in the numbers criterion for university title, we’re not much clearer on how the Government’s reform agenda in key areas will be delivered than we were before. All that’s without even mentioning a complete lack of deadpan snarkiness, Spencer Hart suits, and challenging plot twists. I do hope the return of Sherlock is much more fulfilling.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
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