In praise of parliamentary scrutiny and defence of institutional autonomy

Reading this article in the THE
 made me yearn wistfully for the days when there was actual legislation for higher education (however imperfect), that was subjected to actual parliamentary scrutiny, rather than shadowy and vague policy developments (often reactive) that are adopted without proper challenge or legal basis, which has been the leitmotif of regulatory development in the HE sector in England over the last few years. 

That may just be the lawyer in me and I can entirely see that others might regard an absence of legislation as being optimal for preserving institutional autonomy. But not, in my view, when the result is a de facto encroachment into autonomy in a number of ways, often without clear legal basis.

Over the last few years we have seen a number of developments, often with the consent of the sector, that undoubtedly have the potential to erode the principle of institutional authority. These include:

  • The Financial Memorandum in 2010 giving HEFCE the power to require the governing body to nominate a new accounting officer “in extremis” (a reaction to the London Met clawback crisis) ;
  • The extension in the same document of the definition of institutions at “higher risk” to include concerns around risk management, control and governance arrangements;
  • The development of the unsatisfactory quality policy so that a “does not meet UK expectations” finding needs to be reported as a “serious incident” under the institution’s charitable reporting obligations and could be used to trigger a Charity Commission inquiry and intervention;
  • The requirement in the 2014 Memorandum of Accountability and Assurance  to inform HEFCE of any “material change, including significant developments that could impact on the mutual interests of the HEI and HEFCE”. The evolution of this requirement is instructive: in 2008 the obligation was only to report “material adverse events”; by 2014 it is any “material change” and the HEI is obliged not only to consider “adverse” in the context of its own interests, but also of HEFCE’s.
  • An obligation on the accountable officer to inform HEFCE about major changes in strategy, plans for major restructuring and merger. Not only does this raise the (no doubt in practice highly unlikely) spectre of meetings at which Vice-Chancellors are asked to defend their strategic plans to HEFCE officers, but it also needs to be compared to the deregulation offered to FE colleges who are now free to take decisions to merge and dissolve without funding council or Secretary of State consent.
  • The development of a “voluntary” agreement relating to designation for student support
    ,   whereby if HEFCE is not satisfied that an institution is complying with a range of obligations it can require the institution to make specified changes to how it conducts itself, having taken “appropriate advice” (from whom it is not clear), failing which HEFCE can invite the Secretary of State to de-designate the institution.

Taken together that’s quite a list of powers, especially when built on HEFCE’s relatively narrow statutory duties. HEFCE can (although I accept it’s unlikely to do so) put pressure on a governing body to change its Vice Chancellor by questioning the individual’s suitability to continue as accounting officer. If the governing body refuses to change accounting officers, could this be regarded as a failure of governance and trigger HEFCE’s institutional engagement strategy ultimately leading to publication of the institution’s non-compliance or withdrawal of funding, or even de-designation for the purposes of student support (see below)? If there is a problem with quality, HEFCE can invite the Charity Commission (which will rely heavily on HEFCE’s input in deciding how to proceed) to begin an inquiry that could result in an intervention, including removing and replacing the governing body.  It isn’t clear what HEFCE will do if it isn’t happy with an institution’s strategic plans, having been notified of them, but presumably this could include triggering “institutional engagement” and the consequences referred to above and below. Finally, in its monitoring and compliance role for the purposes of designation for student support, HEFCE has the power to require institutions to make changes, to commission and seek to impose action plans and to “discuss changes to strategic plans and market positioning”.  Further non-compliance by a single institution could lead, according to the agreement, to new statutory regulations giving the Secretary of State the power to de-designate any institution, a power that is questionable at present.  

None of this is likely to happen, I accept, but it could. And it has all happened without any democratic scrutiny, and on the basis of piecemeal agreement with the sector. The provisions above compare to the powers that were intended to be given to HEFCW that concerned the Welsh Assembly as unacceptable incursions into institutional autonomy and “micromanagement”.  Perhaps some parliamentary scrutiny of what’s going on in England might not be a bad thing.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
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Comments -
  1. Gravatar

    Interesting post, Smita

    This looks to my (non-lawyerly) eyes like an extension of Henry VIII powers, but updated to take account of agencies. So rather than a minister making regulations by fiat which are at least seen by parliament, agencies are given broad powers which then get increased by memo and guideline, with far less publicity.

    But, to put the other side of the argument, if the specific instances you listed had needed to go through parliament, then possibly very little would have happened, because of politics and time pressure. And for at least some of them non-action would have been worse than action. (The 2010 financial memorandum did need updating; there were elements of charity regulations which needed codifying post Charities Act)

    I don't have an easy answer to all of this, mind you ...

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