HE and Research Bill: threat to chartered universities overstated

There is without a shadow of a doubt much to be concerned about in the Higher Education and Research Bill in terms of its potential impact on the autonomy, independence and reputation of English universities.

However, one potential concern, about the effect of the bill on universities established by Royal Charter, has perhaps been overstated in recent debate.

Lord Patten, for example, wrote this in last week’s Observer: “Worst of all is the power given to the Office for Students to revoke the…royal charters that have established our universities. How can it be right to allow institutions, some of very ancient standing, to be abolished with only weak parliamentary scrutiny? Did Thomas Cromwell write this part of the bill?”

With the greatest of respect to Lord Patten, I don’t think that is what the bill empowers the OfS to do. The bill confers powers on the OfS to intervene in matters covered by Royal Charters in the following ways:

a)    To revoke an authorisation to grant degrees
b)    To revoke an authorisation to use “university” title.

My reading of what the bill’s proposed measures mean in practice is as follows:

1. It is currently an offence to award degrees unless they are “recognised awards”. There is a statutory list of recognised bodies and listed bodies, whose awards are so recognised. This list (obviously) includes universities authorised to award degrees by Royal Charter. The effect of revocation of this authorisation by the OfS is therefore that the relevant university’s degrees cease to be recognised. It would not, of itself, lead to or require any change to the university’s charter, much less revoke it as suggested by Lord Patten.
2. As regards “university” title, under both the existing and the proposed new law, institutions must not “when making available (or offering to make available) educational services do so under a name which includes the word “university” unless the inclusion of that word in that name is authorised by or by virtue of any…Royal Charter…”  (s39 Teaching and Higher Education Act 1998). The proposed change in the bill will give the OfS the power to revoke the authorisation to use the word in the name of the university in this context, so that it is prevented it from using the name when making or offering to make available its educational services. As far as I can see, it will not prevent the use of the word in the name in other contexts, eg, ownership of land or IP rights or commercial/employment contracts, nor will it mean the university in question is “abolished” as a legal entity.

Here are a few further contextual thoughts:

• This would not be the first time that an Act of Parliament provides for aspects of university charters to cease to have effect. The previously exclusive jurisdiction of the university visitor, for example, has been virtually wiped out in relation to student and (most) staff disputes by Acts of Parliament.
• Through earlier reforms, the principle that DAPs and UT are not perpetual is well established, and all recently awarded DAPs have been on a renewable basis. It is logically difficult to justify the continuation of a differentiated system: either all DAPs/UT should be irrevocable, or all should be revocable. I doubt that anyone would now seriously argue for the former, and so we are stuck with the latter by default. The key will be to build in safeguards so as to limit the circumstances in which they may be revoked, and here beefing up the protection of institutional autonomy and the role of the designated quality body in the bill may be key.
• Although the bill is silent on the point, there appears to be nothing to stop any institution whose authorisation to award degrees or to use “university” title has been revoked from reapplying for fresh authorisation as and when the matters that gave rise to the revocation have been addressed. In saying this, I don’t seek to downplay how institutionally traumatic revocation would be, but simply make the point that it would not necessarily be fatal.
• As regards the authorisation to award degrees, the OfS will not only have the right to revoke it, but also to vary it, leaving open the possibility that it might decide to revoke for a fixed period or in relation to particular subjects. We may see the evolution of a more nuanced system of control than the nuclear option of all-out revocation.

There are, as I said at the outset, a lot of things to be concerned about in the bill. Disproportionate or draconian impact on chartered universities is not, however, one of them.

It is far more important to ensure that the threat of revocation of DAPs and UT can never be used for ulterior purposes, to undermine autonomy, academic freedom, independence or challenge to government. The principles at risk are, or should be, of shared importance across institutional form and mission group type, and the sector should advocate its position with a clear and unified voice.

Smita Jamdar is partner and head of education at law firm Shakespeare Martineau. This post originally featured on their blog.