Not content: Lords give the Bill a very rocky first day

This morning, for the first time since it was published on the 19th May 2016, the Higher Education and Research Bill contains words that have not been written or authorised by Jo Johnson.

After nursing the Bill through each Commons stage, the Lords Committee has added a new cross-party clause dealing with institutional autonomy and the definition of a university which passed by 248 to 221 votes – a significant defeat for the government.

Votes are not usually called at the Lords Committee stage, and last time this happened was on day one of the Committee for the Health and Social Care Bill 2012, where a vote was won by the government.

The text itself (amendment 1) was, on one level, uncontroversial. It simply restated a widely held position about the nature of a university, with reference to academic freedom of speech, thought and expression, free from government intervention. The stipulation that universities must make a contribution to local, national and global society was equally uncontroversial, the requirement that an “extensive” range of academic subjects must be provided is perhaps slightly unwieldy (what of the LSE, Arts University Bournemouth, St George’s University, The University of Law…?). Not for nothing did Lord Myners suggest it “barely achieves a Lower Second”.

But, as Baroness Wolf noted in a wide-ranging debate (which manages to deal with a grand total of one amendment of more than five hundred over three hours), a central failing of the Bill was that it “has nothing to say about universities”. The language of “providers”, while pragmatic and inclusive, does not offer any words for the wider, Humboldtian or Newmanite, grand idea of the University. This crack in the language allowed peers from all political angles to indulge in wider criticisms of the general movements in higher education policy over the last seven or so years.

The issue arises when you consider the amendment as a component of a piece of legislation. How will it be enforced? What are the penalties for non-compliance? Who decides if a given “university” is in compliance? While not an out-and-out ‘wrecking amendment’, the new clause certainly has some of the same characteristics. It’s clearly a symbolic move rather than anything that can result in practical policy, but it also demonstrates the Lord’s willingness to challenge the fundamentals of the Bill.

And what of Jo Johnson, and his powerful attachment to the letter of his initial draft Bill? Throughout the process only he has been permitted to tweak the text. How will he respond to a well-meant if ungainly new clause? – likely the first of many amendments that a newly emboldened Lords opposition (and cross-bench HE experts, of which there are many) will add. Viscount Leckie’s summary speech on the amendment shared many of the intransigent hallmarks of his Minister – it has to be expected that such an approach will be punished in a similar way as we proceed to at least five further dates (11th, 16th, 18th, 23rd, 25th January) of debate.

On day one of what is shaping up to be an entire box set of Lords Committee debates, exactly one amendment was debated, and one vote was lost. So opponents of the Bill shouldn’t be celebrating just yet. But how long can this process continue before the Bill itself is lost – withdrawn to redrafting, only to begin the process through the Commons again? With more than 500 amendments yet to be debated, the government can not allow the Bill to end up entirely incoherent, and the prospect of a string of defeats will give them pause.

Yet, so much of the Bill is time critical – the process of regulatory body realignment is well underway, the TEF is now seen as a done deal, private providers are champing at the bit for their level(led) playing field – a delay would have huge implications. The portrait of the future of English HE we have built up in our minds since the Browne Review and the two White Papers may be ripe for reimagining.

Without a timely Bill, neither HEFCE nor OFFA could be wound up, nor the OfS or UKRI established. The TEF could still exist, but without a link to tuition fee levels, but many of the changes to the “market entry” processes (degree awarding powers, fee eligibility, university title) could not be made. Finally, Sharia-compliant fee loans could not be offered.

With so much riding on its successful passage, the government will need to do everything it can to ensure the Bill becomes law. That they will need to offer compromise is now clear, but exactly how they choose to do so in the weeks ahead will be fascinating to watch. We’ll know more as the government responds in the next debate on the 11th January.