TWO requirements handed to the draftsmen of part two of the Teaching and Higher Education Bill were to ensure that institutions make new home and European Union undergraduate entrants pay tuition fees, while limiting the fee to be charged to the maximum prescribed by government.
Both these requirements in principle permit the secretaries of state to intervene directly in institution-student contractual arrangements. The bill has to be able to fulfil them while at the same time minimising interference with institutional autonomy. This is a tricky problem: it is obvious that the draftsmen did not get it right the first time around, since government amendments are to be introduced in the Lords at committee stage and later in the bill's progress will make significant changes to the text of the second reading.
To carry out its objectives the government has to change to some degree the terms of the relationship between itself, the funding councils and the institutions. There is no doubt that under the arrangements set out in the two further and higher education acts of 1992, the necessary intervention in internal affairs of institutions could have been subject to legal challenge. The funding mechanism maintains the long-established principle of autonomy coupled with proper accountability for the use of public funds. While the previous government made some attempt to secure legislative authority for a greater degree of intervention, the outcome in 1988 and 1992 was that the secretaries of state could not intervene directly in institutional affairs and that they and the funding councils had to respect institutions' rights to raise funds from other sources.
An appropriate way of ensuring that the government can intervene and impose proportionate financial penalties if institutions flout the spirit of the bill is one matter: taking a sledgehammer to hard-won sections of the 1992 acts protecting autonomy is quite another.
One hopes the government might agree that it is dangerous to retain a clause (18) which in effect gives carte blanche to politicians of any persuasion to interfere in the admission of students to particular courses. I have spent many hours in cold rooms in Eastern Europe persuading emergent democracies that our governments just do not do that: I would like to go on singing that particular song.
The original text did not specify which groups of students were to be charged fees: the draftsmen left that to the secretary of state to spell out. Better in my view that the bill should be clear that it relates to restricted groups, principally home/EU full-time undergraduates and PGCE students, with regulations dealing with special cases, for example those on sandwich courses. The reserve powers of the secretary of state can then only be used in relation to these groups and there is no risk of interference with postgraduate, part-time or overseas fee levels. Again, a democratic restraint on potential abuse of executive authority.
The definition of what constitutes a fee which might be considered to be a "top-up" was so broad that it was open to legal challenge. Amendments must be introduced to exclude charges for field trips, etc, and hopefully that would extend to cost recovery for unfunded events such as graduation: it would certainly be a pity if we had to cut back on one of the highlights of any proud parent's life because we had no means of covering the cost.
I suggest one way round this would be to protect the categories of fees already in existence when the bill was introduced but the secretary of state might reasonably intervene in the unlikely event that "backdoor" charges were to be introduced.
I am not sure that the proposed legislation will affect the powers of the chartered institutions to "demand and receive fees". Obviously the promoters of the bill intend that the charter power should be attenuated in respect of a particular group of institutions' members. This is to be done by imposing a condition on institutions, presumably by inserting an additional paragraph in the financial memoranda, the terms of which are accepted by the institutions as a quid pro quo for receipt of funding. The memoranda are in some sense "contracts" between the funding councils and the institutions and as such state explicitly that they do not require institutions to act in a manner inconsistent with charters and statutes. Will the mechanism adopted by the bill validly prevent a university's council choosing to exercise its charter power? There is some old authority to the effect that unless a public general statute expressly restricts the way in which a chartered corporation may act, it may continue to discharge all the powers of a natural person and such additional powers as are granted by its charter. Is all this not the thin end of the wedge so far as the chartered bodies are concerned?
So, there are many t's to be crossed and i's dotted before this legislation reaches the Commons.
Dennis Farrington is deputy secretary, University of Stirling but writes in a personal capacity.