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Fulfilling our potential: the Higher Education Green Paper

  • United Kingdom
  • Education - Briefings



BIS published its Green Paper Fulfilling our Potential: Teaching Excellence, Social Mobility and Student Choice on 6 November. The Paper is accessible here:

The government’s stated aims for the Paper and the consultation are to raise teaching standards, provide greater focus on graduate employability, widen participation in higher education, and open up the sector to new high-quality entrants.

Most of the Paper represents the policy of the Westminster government and applies to England only. A further briefing will be issued when the intentions of the Welsh Government regarding teaching quality assessment and a possible TEF are known.

The Paper has been widely commented upon in the media so this briefing will not repeat the summaries of the Paper’s proposals which can be found in the Paper’s Introduction and Executive Summary. Instead the briefing identifies the Paper’s key themes and the steps needed for the proposals to be implemented. It also suggests actions which higher education providers (“HEPs”) should be considering taking and ways in which Eversheds may be able to help.

Key themes

The regulatory framework for HE is not fit for purpose

The Paper starts from the basis that the regulatory framework of higher education which has been in place since the creation of the existing HE funding councils in 1992 is no longer fit for purpose. This is because since 2012 the bulk of HEPs' funding for teaching comes from tuition fees paid on behalf of students by the Student Loan Company rather than from funding council grants; in the same period there has also been a substantial growth in the number of “alternative providers” of HE  which do not receive HEFCE funding but whose courses have been approved by BIS under the Teaching and Higher Education Act 1998 for the purpose of student support. The government’s response, however, is not simply to replace the existing English funding council, HEFCE, with another, the Office of Students, but to see the new regulator’s role as being essentially the more limited one, of augmenting the market power of students, who are seen as at the heart of the HE system.

Strengthening students’ bargaining power

To increase students’ bargaining power HEPs will have to provide more and more robust information about their courses and how tuition fee income is spent. In addition the Paper proposes both carrots and sticks to encourage HEPs to improve teaching quality (which the Paper argues has been given less emphasis than research quality in some HEPs). The carrot is that if HEPs wish to have the ability to increase fees, they will have to submit to having their teaching quality assessed in a Teaching Excellence Framework. After the transitional year 2017-18 when HEPs will just have to show baseline adequacy of teaching, there will be two or three higher levels of assessed quality. Capped increases in fee levels (not exceeding the rate of inflation) will be set at each level.

The stick is that OfS will be given powers to intervene in HEPs considered to be in difficulty and ultimately to de-register any HEP. Although the Paper does not explicitly mention giving OfS the power to withdraw degree awarding powers granted on an indefinite basis by the Privy Council, it would seem that an HEP that had been de-registered as the result of intervention by the OfS would be unable to offer a course leading to a UK degree (except perhaps where the degree was awarded by another HEP with continuing DAPs).

While HEPs may have concerns about the regulatory proposals, HEPs are already having to improve the information provided to applicants and students in the light of recent changes to consumer law. Students, whose representative body the NUS has already indicated its opposition to the proposals, should also note that HEPs will not be able to increase fees for students once on their courses. It can also be said that the legal regulatory framework of HE has been due for updating for some time and the promised legislation will give an opportunity to make a range of helpful changes, including the freeing up of the powers of and constitutional arrangements for those post-1992 HEPs established as Higher Education Corporations (HECs).

Social mobility and widening participation

The Paper notes the progress made to date on social mobility and widening participation but sets out the government’s ambition for further progress, particularly in respect of the attainment of students from ethnic minority groups and progression of white males from disadvantaged backgrounds, and with the numbers of disadvantaged students gaining access to the most selective institutions. Suggested measures to improve the situation include the introduction of name-blind applications from September 2017, a more joined up approach to widening access and improvement of student success and the setting of targets for particular providers by the OfS. Failure to meet such targets might result in the OfS refusing to approve an access agreement, meaning that the provider could not charge higher level fees.

A single point of entry to the HE sector

The creation of a “single point of entry” into the HE system may be seen as a threat by some existing HEPs and an opportunity by some potential entrants. However, any concerns should not be in relation to the regulatory architecture (it is surely better that all entrants are considered by a specialist regulator rather than a wide ranging government department) but with the substantive criteria, the evidence required to demonstrate compliance, and the mechanism used to assess the evidence. The consultation offers  the chance for HEPs to influence the decisions to be made on these issues.

Next steps

The Paper provides few details on how the TEF will operate: these are to be provided in a “technical consultation” to be issued in 2016. The Paper does, however, indicate that HEFCE’s proposals for new quality assessment arrangements will function as the means of assessing baseline quality. The Paper also reserves detailed consideration of the role of the OfS in relation to research pending the outcome of the Nurse Review of the research councils, while indicating that the REF will continue, though probably in slimmed down form.

It remains to be seen whether the Paper’s proposals will need to be modified in the light of the savings BIS will have to make as the result of the Public Spending Review, though given the modest cost to the public purse of HE sector regulatory bodies other than HEFCE – since most cost is borne by the HE sector through subscription to QAA and OIA – the merger of HEFCE and OFFA to form OfS may be sufficient.

It is also not yet clear whether the fairly tight timetable for introduction of the TEF in 2017-18 will allow for the issue of a White Paper and/or draft Higher Education Bill, or whether the Universities Minister will proceed straight to presenting a Bill to Parliament once BIS has considered the responses to the consultation.

What HE institutions should be doing

As suggested above, the Paper offers the opportunity for HEPs to comment, in particular on the criteria and possible metrics for the TEF, and we would encourage both existing and aspiring HEPs to do so. The Paper also asks for comment on the extent to which OfS should be able to contract out its responsibilities, as HEFCE currently does to QAA in relation to quality assessment. HEPs may wish to comment on the importance of HE quality assessment being undertaken by academic peers if UK HE is to retain its high international standing. The consultation offers the chance for publicly funded HEPs to make suggestions for legal changes that might put them on a more level footing with the private sector (of which for public accounting purposes they are a part.) The possibility of being taken outside the Freedom of Information Act is the most controversial possibility here.

All HEPs should check that they have reviewed the information they provide to applicants and students to ensure the terms of the student contract are compliant with recently strengthened consumer law and CMA guidance. They should also ensure that data that are likely to form metrics for the TEF, such as graduate destinations and NSS response data, are on their websites.  

HEPs, including in particular those which are selecting rather than recruiting providers, should consider their success in meeting their widening participation targets and the desirability of taking further steps, such as closer engagement with schools and colleges where potential applicants from disadvantaged groups are to be found; also the effectiveness of their student support measures in helping such students, once admitted, to meet their potential.

HEPs which are HECs should be considering whether this is the most apt legal form and whether their constitutional documents could usefully be updated and streamlined.

It was a central part of HEFCE’s proposals for future arrangements for quality assurance that the governing bodies of HEPs take greater responsibility for academic standards and where necessary equip themselves to engage more effectively with their senates or academic boards. The proposed regulatory structure is designed to ensure students can trust that their HEP is financially secure and soundly run as well as providing a good quality education. Accordingly robust governance arrangements complying with the CUC Code (or comparable governance code for alternative providers) need to be put in place and maintained. A review of governance, including academic governance, should be undertaken if not done in the last four years.  

How Eversheds can help

Eversheds is the leading provider of legal and regulatory advice to the HE sector and can help in a range of ways, for example by assisting with:

  • reviews of student contract documentation and related student procedures and HEPs’ compliance with the Consumer Rights Act 2015 and CMA guidance
  • claims by students and applicants, for example alleging breach of contract, misrepresentation or discrimination
  • reviews of organisational structure and performance management procedures. These may be needed to improve teaching performance in some areas of provision.
  • reviews of governance in line with a University’s duty under the CUC Code to carry out a governance and effectiveness review every four years.  Details of this service are available on request.
  • applications for degree awarding powers and university title
  • reviews of legal structure and constitutional documents, including the appropriateness of an HEC retaining statutory corporation form and the flexibility of its current instrument and articles
  • challenges to outcomes of reviews by QAA and other quality assessment bodies. Eversheds does not act for such bodies in relation to their assessment activities.
  • disputes in relation to funding with HEFCE and other funding bodies. Eversheds does not act for such bodies in relation to their assessment activities.

We will be monitoring the development of the legislation and issuing further briefings in due course.