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The Bill begins its Peer Review

  • 12 December 2016

This guest blog on the Second Reading of the Higher Education and Research Bill in the House of Lords has been kindly provided by G.R.Evans.

The Lords really spoke their minds on the Higher Education and Research Bill in their Second Reading debate on 6 December. Peers packed in 69 speeches through an afternoon and a long evening, topped and tailed by Lord Younger’s introductory remarks and his concluding summary. At the end he promised Peers a ‘letter’ (‘a long one, I suspect’) about points raised and ‘factsheets’. Adhering with obvious reluctance to the ‘advisory’ five minutes each, the Lords made it abundantly clear that they would have a lot more to say at the Committee stage.

Speakers noted with approval – several times – that Jo Johnson was standing there listening throughout, apart from a short stretch sitting in the gallery as the evening wore on.  It is to be hoped that he was concentrating. The speeches offered a substantial body of highly expert opinion. Almost every speaker had higher education ‘interests’ to declare, some so numerous that as Baroness O’Neill put it, speaking at half past nine in the evening,  ‘if I declared all my interests, it would take the full five minutes’. A few formal courtesies apart, almost every speech was critical: from every party, the cross-benchers, one Lord Spiritual and some hereditaries.

The themes ran strongly.  On the crude measure of the frequency with which some key terms were used, ‘autonomy’ hit 94, plus 7 for ‘autonomous’ institutions (including one for ‘autonomous’ funding councils). Concerns about the potential for interference by present or future Secretaries of State with institutional ‘independence’ (23 mentions plus 18 for ‘independent’) got that office 29 mentions. Several Lords joined Baroness Wolf in expressing the concern that even if the present Government behaved itself, the proposed powers might ‘well be abused by Governments in the not-so-distant future’ (50 mentions).  This, as Lord Patten put it, ‘reinforcing’ the point, was a matter of ‘trust’.

Those with a long-term memory of the Lords in battle array before a piece of higher education legislation will recollect having heard that concern before.  Peers put the Secretary of State back in his cage in 1992, over the proposal to allow political interference in ‘particular courses’. Raising that very concern again in 2016, Lord Patten quoted  Ralph Waldo Emerson: ‘The louder he talked of his honour, the faster we counted our spoons’.

In the same broad area of the need to defend universities from Government control, the ‘Haldane principle’ prompted 21 mentions.  Lord Mandelson wanted it ‘hardwired into the Bill’. Lord Waldegrave wanted to see it ‘on the face of the Bill’.  In published material on the present proposals the Haldane principle has been discussed almost exclusively with reference to the funding of research, but both Lord Triesman and Baroness Warwick spoke of the important broader principle that the Office for Students should be a ‘buffer’ body, as HEFCE has been since 1992.

A second main cluster of concerns focussed on the dangers inherent in the proposals to hand the grant (and potential removal) of degree-awarding powers and  university title to the Office for Students. That it was to be allowed to revoke the royal charters of universities got 27 mentions. Royal charters commanded a respect not apparently equalled by statute. The prospective powers which would also allow the Office for Students to override by statutory instrument the powers of the ‘statutory corporation’ universities created from 1992 were not  mentioned.

The proposed use of statutory instruments in preference to primary legislation drew a good deal of fire. Baroness Findlay reminded peers that statutory instruments may be ‘placed before Parliament, but they probably will not get much scrutiny’. The heat concentrated on the notion that the Office for Students should in effect be given the powers of a Minister, but without accountability to Parliament. Lord Macdonald called for reconsideration of the proposal that ‘such critical powers’ as the removal of degree-awarding powers and university title ‘should be exercised by the Office for Students through the device of a statutory instrument’. Lord Lisvane  found it hard to believe that clauses 40-45 had ‘survived unamended in the Commons’:

This is not an ordinary Henry VIII clause…where there is at least the involvement of Ministers answerable to Parliament. Clause 43 would empower a body corporate to make secondary legislation amending or even repealing primary legislation without ministerial consent and without any parliamentary scrutiny.

Peers objected that the question ‘What is a university?’ was being begged in the legislation.  Lord Hennessy took the House back to the ‘Humboldt principle’ that ‘the essence of a university is the precious symbiosis between research and teaching’, a point of concern to a number of speakers in connection with the proposal radically to separate them, to the extent of placing them in two departments of state.  He developed the point:

Scholars joined up for the thrill of the intellectual chase and its enthusiastic, contagious transmission to their students—for the poetry of university life and not for its plumbing.

The Bishop of Winchester had quoted the 1991 definition, that a university is:

‘a self-critical, cohesive academic community with a proven commitment to quality assurance supported by effective assurance and enhancement systems’.—[Official Report, Commons. 16/12/1991; col. 31W.]

It should not be missed that in his concluding remarks, Lord Younger quoted a different version of this definition, saying that a university is:

‘an institution that brings together a body of scholars to form a cohesive and self-critical academic community’.—[Official Report, Commons, Higher Education and Research Bill Committee, 15/09/16; col. 271.]

‘That is the definition I have, and I shall stick with it,’ he added.

The shift from ‘community’ to ‘institution’ as the basis for the definition of a university is increasingly important in view of the concerns now being expressed about the changes in the make-up of academic employment, from the 1991 assumption that a university would have a long-serving community’ on permanent teaching-and-research contracts to the present trend towards short-term, zero-hours and hourly-paid contracts.  The peers were onto that.  As Lord Stevenson put it, ‘the academic staff’s engagement with students has many of the attributes of gift relationships, said by Titmuss to be among the most powerful social forces that bind social groups together.’ Lord Storey commented that ‘keeping lecturers on zero-hours and fixed-term contracts does not bring out the full teaching potential of a university lecturer’. Baroness Garden deploted ‘zero-hours contracts’,  ‘academics needing multiple jobs just to make a living’ and ‘pressures which can do nothing to improve the quality of their teaching’. She called for ‘higher levels of job security’ for academics’.  Lord Watson spoke in the same terms, contrasting these practices with the absence from the Bill of ‘mention of scholarship or the pursuit of truth’.

The publication on 9 December of the Teaching qualifications data for academic staff in higher education institutions 2014-15 included a mention by HEFCE of the Competition and Markets Authority’s advice that institutions should provide information about ‘the general level of experience or status of the staff involved in course delivery’ will support the Lords in their endeavour to give hard meaning to the term ‘academic’ in the staffing of higher education institutions.

‘Academic freedom’ got 31 mentions in the debate, partly out of regret that it remains inadequately defined, but often in untidy couplings with institutional autonomy. It was the institutional arrangements that were prompting the most concern, because it is there that a revised regulatory framework was likely to chafe. ‘Institution(s)’ had 161 mentions; ‘provider(s)’ 62; ‘university(ies)’ 632.

The rush to admit new private providers to degree-awarding powers and university title, and particularly the plan to grant probationary powers (8 mentions), drew  fire. ‘How do you test entry into the market if you do not know what the subsequent quality will be?’ asked Lord Patel, enlarging on the scale of a student’s investment, personal and financial. Lord Storey spoke of the danger of ‘devaluing’ UK degrees with ‘subprime qualifications’.

The listing of speakers meant that it was not until the evening wore on  that attention turned fully towards UKRI and the proposals for revamping the provisions for research funding, which got ‘UKRI’ most of its 110 mentions at that late stage.  But peers had not been ignoring it earlier on. The artificial disjunction of teaching and research in the Bill proved a major concern throughout.

The Second Reading was a mere taster for the Committee stage of the whole House. That promises to be a memorable addition to the record of the House of Lords in saving Governments from themselves when they try to interfere too far in the freedoms of universities which have proved essential to their functioning as a ‘social good’ (Baroness Chakrabati) and a ‘national asset’.  As Baroness Kennedy put it, expressing the general view of the House:

Our higher education system is one of our great national assets. We have to understand how important it is and guard it preciously. I am afraid the Bill falls far short in the eyes of many.

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