Some rewiring for mansions

Higher Education and the Law
March 5, 1999

This book, billed as a guide for busy managers (and administrators) is an annotated collection of essays written by solicitors providing commentary on legal issues that concern and, particularly in the student area, increasingly beset higher education institutions.

Editors David Palfreyman and David Warner make up for the lack of practical experience from the contributors, jumping into chapters at appropriate points to try to redress the balance in what otherwise appears to be a marketing tool for the contributing firms. It would be a serious mistake for readers to assume that the authors are the only experts in this field, but what they have to say is generally correct and of interest.

This is not a "right riveting read". It raises the occasional chuckle: for example John Hall's comparison of chartered institutions to "labyrinthine mansions" in need of "comprehensive replumbing and rewiring", while their statutory counterparts are "giant tower blocks with design faults caused by their speed of construction".

The book is exclusively about English law. One Scots case of note is misspelt and the outcome incorrectly summarised. But some authors have clearly burnt the midnight oil reading the 1,000-plus pages of the United States "bible" of higher education law (Kaplin and Lee), which is extensively quoted and used as the basis for a number of propositions.

A collection of essays on cognate topics is bound to suffer from some repetition, although there are no major conflicts on fundamental issues such as the existence of a student contract. There are a few simple - though in the context of a work written by lawyers worrying - mistakes. It is news to me that "charters and statutes will usually specify how to convene a meeting" and in visitorial institutions, surely the courts have no jurisdiction to regulate meetings. David Isaac's statement that "visitorial proceedings are speedy when compared to the hearing of a non-urgent case in the High Court" will be news to the student waiting eight years for the Privy Council Office and also begs the question: when can a student case not be "urgent?" Paul Pharoah correctly states that the "student contract" has not been raised in judicial review applications, but cites the irrelevant case of Gill Evans, a senior academic, as an example. Some statements are questionable, such as Tim Costello's that since the 1988 reforms "all higher education institutions have been private bodies" or tendentious, for example Jonathan Leslie's that chartered institutions have "a relatively weak management structure". Simon Arrowsmith is correct that both J. Williams (1910) and I (1994, 1998) confused two colleges but then the authors make the same mistake in their case list.

The coverage of student issues tells us nothing new. The less said about the Education Act of 1994 the better, so why spend a whole chapter discussing it? There is outline coverage of "business" activities of institutions: trading companies, mergers, acquisitions and the private finance initiative. After lengthy discussion of PFI, Costello concludes that unless it is likely to be a significantly cheaper option, a higher education institution would be wise to choose conventional procurement: advice unlikely to be news to finance directors. Curiously, franchising of courses is also considered to be a business, rather than an academic activity, although the advice given in that chapter, largely echoing that of the former Higher Education Quality Council, is sound and sends a further warning to institutions, if they needed one, about the risks inherent in supplying higher education services at second-hand.

In relation to "core business", any textbook in an area developing and changing as rapidly as this is bound to be a "snapshot" at a particular moment. Published before the Teaching and Higher Education Act of 1998, it was unable to take account of changes in student funding arrangements and the powers and duties of the funding councils, clarification of charitable status and increased protection for the title "university" following on recommendations of Dearing and the Council of Europe.

I was disappointed that the European law chapter written by Euan Temple et al disposed of the European Convention on Human Rights and the Council of Europe in one sentence. The Human Rights Act will have profound consequences foreducation and it is unfortunate that discussion of at least the draft of it was wholly omitted. Likewise, various important conventions (for example, Lisbon) are totally ignored.

To conclude, in the round of higher education monographs this hardback is fairly priced at Pounds 65, although whether in the end it adds much to the existing literature on the subject or persuades managers to seek advice from the contributing firms, only the reader can decide.

Dennis Farrington is deputy secretary and clerk to the court, University of Stirling.

Higher Education and the Law: A Guide for Managers

Editor - David Palfreyman and David Warner
ISBN - 0 335 19876 7
Publisher - Open University Press
Price - £65.00
Pages - 374

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