Here comes the Tertiary Education and Research (Wales) Bill

So here it is at last – the legislative underpinnings of the future of Welsh higher education.

Of course, the clue being in the title, there’s more to it than that. Recent years have seen a Great Britain-wide move towards bringing higher education together in regulation with other forms of adult learning (although arguably Scotland got there first with a unified Scottish Funding Council in 2006), and Wales is very much in the vanguard.

A big promotion

We covered the launch of the draft bill back in July last year – the consultation ran through to December, giving ample opportunity to feedback on proposals. There’s been a few tweaks to the text as a result of this process – most notably a detailed set of strategic duties for the new Commission for Tertiary Education and Research (CTER, pronounced “sea-tear”). The new regulator is to be charged with:

• Promoting lifelong learning
• Promoting equality of opportunity
• Encouraging participation in tertiary education
• Promoting continuous improvement in tertiary education and research
• Promoting collaboration and coherence in tertiary education
• Contributing to a sustainable and innovative economy
• Promoting tertiary education through the medium of Welsh
• Promoting a civic mission
• Promoting a global outlook

Yes, that is a lot of promotion – you could be excused for checking if this is in fact to be an advertising agency, rather than a register-driven regulator. These statutory directions (along with a further statement of strategic priorities from ministers) form an envelope within which the commission will develop a strategic plan to be approved by ministers. It is possible to see this as a tight ministerial leash, though it could equally be a spur to broad “promotion” statements like those above. Time will tell.

The comparison with regulation in England is a lazy one that we will generally strive to avoid, but it is difficult to know what other lens through which we should view the newly beefed up sections on academic freedom and freedom of speech. We’re a long way off the new world of the Freedom of Speech (Higher Education) Act – the new wording (s15-16) largely replicates the HERA language (s2 (4) and s2 (8)) – but the clarity (and the “have regard to” hedge) takes us part of the way there.

Access and opportunity

One popular complaint about the draft TER(W) Bill was that the “access and opportunity plans” (previously “fee and access plans”) were cumbersome, ineffective, and had an overlap with outcome agreements that felt a lot like duplication of effort. The new text removes this aspect of regulation almost entirely – there’s a new high level registration condition on equal opportunity (2:31(2)) instead, adding another to the lengthy list of mandatory registration requirements (to which CTER may choose to add others).

The register system of regulation can be perceived as being distant, mechanistic, and – at times – adversarial. The Welsh government is clearly looking for a more responsive and collaborative approach – the smaller sector (registered providers will top out not long past 20, and there are no intentions to open up the sector to alternative provision that I can see) that Ministers designed and implemented in the late 00s means that there is scope for a more flexibility and more conversation.

The Tertiary Education and Research Commission will be the ones – should it wish – to designate a body to exercise assessment functions for higher education providers (known elsewhere as the designated quality body) though ministers do get the power of veto. The language is of assessment and action plans, situating the quality assurance approach very much in the Quality Assurance Agency tradition recently reaffirmed by HEFCW. The face of the bill does not include any provisions relating to higher education data – a long list of powers to share information in 6:128 does not include HESA. A surprising omission.

The student voice

One of the big focuses in the Bill is on learner voice and protection, where we have some innovation and some dangers respectively. On the former the idea is that all providers will have to meaningfully engage students in their governance, including we assume through the SU. That should be straightforward, notwithstanding the odd row about which rooms the SU President is in and whether the SU’s officers are diverse enough. SUs are also going to want to see a guarantee of student-led as well as provider-led engagement.

On the latter, we have a direct lift from England’s student protection plans (with the English duty on student transfers bolted on) that looks more problematic. Students have come to realise that the bigger dangers than course or provider closure are temporary but significant interruptions (pandemics, strikes, floods and so on) and the old Trigger’s Broom/Theseus’ ship problem of minor course changes that are major when added up. That will need fixing if the provision is to be meaningful.

One aspect considered to be “missing” from the English system is matters of duty of care, welfare, safety, mental health and so on. It’s an aspect that’s also largely missing here. There are three ways it could go in. The first would be to amend the arrangements for “student protection plans” to include the protection of students from harm (based around a risk assessment carried out in partnership with the SU etc). The second would be to ask for a separate registration condition on the issue on the face of the Bill. The third would be for it to be included explicitly in the definition of ”quality”. You can bet that MSs will want it in here somewhere.

The bill will now make its way through Senedd – starting with consideration at the Children, Young People, and Education Committee beginning on 18 November