Now with a bang, but with a quietly murmured “content”. The Higher Education and Research Act (2017), as of five minutes past two today, confirmed in all but name.
Later in the afternoon, the grandly titled ‘Royal Assent’ brought a little more fanfare with it, the announcement being made at the prorogation ceremony in Norman French. La Reyne le veult, apparently. Let it never be said that our legislative process doesn’t create indifference by obfuscation.
We are sure there was considerably more excitement (or perhaps just exhaustion) when the Department for Education and BEIS bill team dragged itself to the pub. We wish them well.
“It represents the most important legislation for the sector in 25 years”, opined Viscount Younger, concluding the final sequence of debate in the upper chamber. Given the likely election outcome, the 2017 Act will be the legislative basis for all higher education activity for a long time to come. Let’s remind ourselves of what it does:
- A new regulator and funding council for universities, entitled the Office for Students, will be set up next year. OfS will hold the statutory responsibility for quality and standards, approve new entrants to the sector by managing the Register of Higher Education Providers, and also the awarding of university title and degree awarding powers.
- The OfS will be empowered to make arrangements for assessing of the quality of teaching in universities, in an exercise currently branded as the Teaching Excellence Framework (TEF). TEF is already underway (results to be released in June), and currently will rate universities as Gold, Silver or Bronze. It will be reviewed independently by the end of 2019.
- Until 2020, the government is expected to allow tuition fees to increase by the rate of inflation for universities participating in TEF and meeting minimum eligibility requirements. After 2020, this can be linked to results in the TEF.
- The OfS will be able to designate an independent body to carry out its statutory duties in relation to quality and standards.
- The OfS will incorporate the functions of the Office for Fair Access. Universities will be required to publish information on the fairness of their admissions, and also information that could be considered “helpful to international students”. The OfS will also have powers in relation to monitoring the financial sustainability of higher education providers, and improving their efficiency.
- Universities will now be able to charge higher annual fees for courses that are taught over a shorter period of time, also known as ‘accelerated degrees’. The Student Finance Company will now be enabled to make alternative methods of financing available for those unable to take out students loans, particularly for those who require ‘Sharia-compliant’ finance.
- The seven research councils, Innovate UK, and the research functions of HEFCE, will be brought under a “single strategic research body”: UK Research and Innovation (UKRI). The research councils will maintain their existing composition within UKRI, but be subject to a single accounting officer. They will continue their existing duties, with added responsibility for interdisciplinary collaboration. A new body, Research England, will be responsible for quality-related (QR) research funding.
Wonkhe has followed the adventures of this particular legislation through thick and thin, full of legislative drama and drudgery. You can learn more about the Bill, its implications, and its legislative journey in the links below.
Provisions
Higher education bills we’ve known and loved
The Higher Education White Paper
Ten things you might have missed about the White Paper
Standing up for standards in the new higher education system
UKRI if you want to: how to read the new research landscape
TEF and tuition fees – myths and reality
The market is free, yet everywhere it is in chains
Growing concerns over blueprint for UKRI and research
The Incredible Machine – Our visual guide to the TEF
Creating a level playing field not as easy as it looks
Free Rein? The question of academic freedom
Johnson revs up plans for fast-track degrees
Give him credit? Course switching gets a nudge
Higher education must learn from other sectors on living with a regulator
Comment
Big and really rather bossy: the new regulatory burden
Amidst the chaos, the HE Bill is a raft that can take us to calmer waters
Making it work: Five reasons to back UK Research & Innovation
University autonomy works and should not be compromised
Why part-time study should be a priority in the HE Bill
The ancient argument, royal charters and universities
Legislation
When wonkery came to Westminster
Jo Johnson: Why I amended the Higher Education and Research Bill
Path clears for HE Bill as government announces major changes
Devil in the detail as the Bill enters final stages of scrutiny
Government defeated in the Lords over TEF and fees
They came in like a wrecking ball? Government defeated again in Lords
Higher Education and Research Bill enters another uncertain week in the Lords
Agreement reached on HE Bill as it heads to final stages of debate
Under section 26 of the Higher Education Act 2004, a draft of the regulations to increase either the higher or basic amount must be laid before, and approved by a resolution of, each House of Parliament unless the increase is no greater than is required to maintain the value of the amount in real terms.
http://www.legislation.gov.uk/ukpga/2004/8/section/26
Regulations were made in December 2016 to increase the basic and higher amounts, but only for “eligible institutions” defined in the regulations.
http://www.legislation.gov.uk/uksi/2016/1206/contents/made
http://www.legislation.gov.uk/uksi/2016/1205/contents/made
The Higher Education and Research Act repeals section 26 of the Higher Education Act 2004. Does this mean those regulations are automatically revoked (lapsed)?
1.2.11 “If an enabling Act, or the enabling section of it, is repealed, instruments made under it will lapse unless they are saved, i.e. continued in effect. Such savings are often to be found in repealing acts, and the Interpretation Act 1978, section 17(2)(b), contains a general saving for instruments made under provisions which are repealed but re-enacted. Subordinate legislation may also become spent, either because it was expressed to have effect only for a limited period, or because it has ceased to have any effect. Many instruments become spent but are not specifically revoked.”
https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwi0mtvgj8jTAhWlIMAKHZ4kCGwQFggmMAA&url=http%3A%2F%2Fwww.opsi.gov.uk%2Fsi%2Fsi-practice.doc&usg=AFQjCNGaxzKFVcoTJr6giCB5bQfJqMUY6g
Does anyone know whether the above regulations which raised the higher amount to £9,250 and the basic amount to £6,165 for eligible institutions were saved by the Higher Education and Research Act or have lapsed (in which case new regulations will need to be laid under the Higher Education and Research Act and moreover approved by vote of both Houses of Parliament as regulations increasing fees even in real terms are now subject to the affirmative procedure rather than the negative procedure which real terms increases were subject to under the 2004 Act)?
The Higher Education and Research Act 2017 has now been published:
http://www.legislation.gov.uk/ukpga/2017/29/pdfs/ukpga_20170029_en.pdf
Does anyone know why section 119(2)(i) (regulations that may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament)
“regulations under paragraph 2 or 3 of Schedule 2 (regulations prescribing the higher amount, basic amount or floor amount), except regulations to which paragraph 5(2)(b) of that Schedule applies (regulations increasing the higher amount to an amount greater than that required to maintain its value in real terms)”
and paragraph 5(2)(b) of Schedule 2 have been kept separate because all paragraph 5(2) says is that “no regulations may be made under paragraph 2 increasing the higher amount unless—
(a) the Secretary of State is satisfied that the increase is no greater than is required to maintain the value of the amount in real terms, or
(b) each House of Parliament has passed a resolution that, with effect from a date specified in the resolution, the higher amount should be increased to an amount specified in the resolution, and the increase is an increase to the specified amount with effect from the specified date.”
Doesn’t section 119(2)(i) render paragraph 5(2) of Schedule 2 pointless?
FYI I put these questions to the DfE and basically section 26 of the Higher Education Act 2004 allowing inflationary rises in the fee limits without a parliamentary vote remains in force (allowing the regulations which increased the fee limits to £9,250 and £6,165 in 17/18 to take full effect) until regulations are made under the HE&R Act 2017 to bring into force the repeal of section 26 of the 2004 Act and commence the new provisions in the 2017 Act which require a parliamentary vote to raise fees. Given the current composition of parliament with minority Government, one wonders whether they will delay the repeal of the current arrangements to allow inflationary fee increases without the need for a parliamentary vote to continue under the 2004 provisions until they start differentiating fees under the HE&R Act 2017 from 2020?
https://www.whatdotheyknow.com/request/higher_education_and_research_ac#incoming-990116
As the Higher Education and Research Act changed the Parliamentary procedure for increasing the fee limits from the negative procedure to the affirmative procedure, a vote needs to be won in both Houses of Parliament to raise the higher amount beyond £9,250 IF the Government bring into force the new provisions which would repeal the existing provisions in section 26 of the Higher Education Act 2004. With English votes for English laws, the Government won’t have the DUP votes to win a vote in the House of Commons so I don’t think there’s a Parliamentary majority to raise fees even by inflation.
The Government can get round this for the time being by delaying bringing into force the new fee limit provisions in the Higher Education and Research Act 2017 and thereby continuing to give effect to the 2004 legislation that doesn’t require them to win a Parliamentary vote to raise fees by inflation. This is the legislation under which the fee caps were raised to £9,250 and £6,165 and they could continue to raise fees under this legislation for the time being until they want to differentiate fees based on TEF results from 2020 at the earliest which would then require the provisions in the Higher Education and Research Act to be brought into force.
Whether they will do this or bring into force the Higher Education and Research Act fee limit provisions to force a vote on inflationary rises in the fee caps for 2018/19 remains to be seen…
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Jenny L L
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