Why we should all care what happens to Cardiff Met

To describe the HE landscape in Wales as highly political could be considered as much an understatement as suggesting that G4S may have got their Olympic planning a bit wrong. Therefore it is easy to see Leighton Andrew’s announcement of a consultation into the non-consensual dissolution of Cardiff Metropolitan University as merely the latest flexing of political muscle in a game of merger “who blinks first”. Legally, however, it raises all sorts of profoundly interesting and difficult issues which in my view should give us all pause for thought.
The Minister undoubtedly has the power to do what he is proposing, courtesy of the Education Reform Act 1988 (ERA). The principal relevant limitation is that he must consult the corporation in question and funding council before ordering a dissolution. I hope I don’t appear unduly cynical in suggesting that, given the history of this particular saga, the Minister is unlikely to be swayed by the views of the corporation and the views of the funding council are already fairly clear, so the consultation may be unlikely to produce anything that significantly affects the Minister’s thinking.
So are there any other limitations on the power? Possibly.
First, there is the fact that ERA also provides that under the Articles of Government of all statutory HEIs, the Board of Governors is the sovereign decision-making body on matters of strategy and direction, into which category a decision to merge (or not) must surely fall. They are obliged to exercise their functions reasonably and properly (and in accordance with their duties as charity trustees). What should take precedence where there is a conflict between what a Board of Governors decides to do and what a Minister believes is the right thing to do?  If the Minister’s power to dissolve trumps institutional autonomy on the question of merger, why should it stop there? Why not on other questions of strategy and direction, where those do not sit well with political priorities or resource considerations?
Secondly, there is the public-law obligation on the Minister to exercise lawfully & fairly the discretions and powers conferred on him. There are also possibly even human-rights considerations, in terms of an institution’s right to peaceful enjoyment of its possessions.  However compelling the case for merger or reconfiguration is, in what circumstances should the state be permitted to terminate the legal existence and remove the assets of any institution, but particularly one described by the author of the latest independent report as “well led and financially sound” although facing a challenging future?
Thirdly, although not strictly a legal constraint, we have seen in England changes to the powers to dissolve FE corporations, following which the Office for National Statistics(ONS)/National Audit Office (NAO) reclassified FE colleges as private sector. These changes removed the Secretary of State’s power to dissolve FE colleges, and made that the sole preserve of the governing body, albeit that in extreme circumstances, the Secretary of State can direct a governing body to decide to dissolve the corporation.  Similar changes are planned for FE in Wales. In neither England nor Wales are any such changes proposed for HE, arguably an anomalous position. Might the Minister’s decision to exercise the power to dissolve encourage the ONS to consider reclassifying post-1992 universities as public sector?  That would be an undesirable outcome for government and institutions alike.
These are questions that extend far beyond the particular case. It is often said that hard cases make bad law, but it could equally be said that political expediency sets dangerous precedents. That’s why, for me, it’s not just about the future of Cardiff Met, but something that should concern the sector as a whole.
Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
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From → General Interest

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