The White Paper and Bill gives the new Office for Students power to take away degree awarding powers and university title. The Government could be facing quite a challenge by if the implication is that that the new regulator could infringe on the historic status of our ancient universities.
Bristol is a good example of the charters of the early twentieth-century university foundations, it reads:
“There shall be from henceforth for ever in Our said City of Bristol a University by the name and style of “The University of Bristol”
The confident Edwardians being clear that the university was ‘forever’. Now, for the first time in 100 years, there may need to be a caveat to that claim.
Universities in the UK are constituted through three means: most are designated by the Privy Council under the terms of the Further and Higher Education Act (FHEA) 1992; a smaller group received royal charters (again managed by the Privy Council); the final smallest group are universities by right of act of parliament – mostly affirming much earlier charters and papal bulls. Universities have ceased to exist; charters have been surrendered, but in each case on the occasion of a merger.
The White Paper affirmed the Governments’ view that ‘There is no compelling reason for incumbents to be protected from high quality competition’ (p8) and raised the prospect that degree awarding powers and university title might be revoked.
The Higher Education & Research Bill enacts these ideas, it revokes much of the FHEA, as might be expected, but its powers to revoke degree awarding powers and university title go further, much further. It says in section 56:
(1) The OfS may by order revoke any authorisation, consent or other approval given by or by virtue of—
(a) an Act (other than the Companies Act 2006), or
(b) a Royal Charter,
to an institution in England to include the word “university” in its name.
(2) That is the case even if the authorisation, consent or other approval was granted for an indefinite period.
This gives the OfS the power ‘by order’ to revoke aspects of royal charters or acts of parliament. This power is given to OfS ‘in particular’ if a body designated under the FHEA ceases to offer higher education – the market exit option that the Government is keen on. However, as drafted, the power still, remains that OfS might revoke the authority of, say, Oxford, to call itself a university. The Bill does provide that OfS must inform the governing body of the ‘university’ that it intends to do this, must allow it to make representations, and allows that an appeal might be heard by a tribunal.
It is administratively neat that the government intends to give OfS powers to tidy up any market exit, whether that be by the Universities of Oxford, Bristol, or Suffolk. It might be assumed that if OfS took it upon itself use its powers to revoke the right of Bristol to call itself a university, it would be very unlikely to be doing it against the wishes of the university. This is not clear however.
We are told that this Bill has been so long in coming because of fear of the response it would get in Parliament. The former coalition would not risk a prolonged discussion about higher education. One can only imagine the debate in the House of Lords, for example, if the bill is really intended to give the OfS the power to remove Oxford’s university title.
But as they say ‘Quis custodiet ipsos custodes?’ who will guard the guards themselves? And will a university close only to reopen as a new incumbent ‘under new management’? It’s an open market after all.