Last week, universities in Wales raised the alarm over a proposed piece of legislation that seeks to grant substantial new powers over Welsh institutions.
The Higher Education (Wales) Bill, laid before the Welsh Assembly on 19 May, would give the Higher Education Funding Council for Wales statutory powers to replace the leverage it once had over universities through direct teaching grants, which has dwindled as a consequence of a switch to student fees and grants.
But Higher Education Wales (HEW), which represents Welsh universities, thinks it goes far beyond simply replacing the funding council’s existing powers.
Currently, in return for being allowed to charge students tuition fees, Welsh institutions have to draw up “fee plans” that detail their proposed spending on supporting “equality of opportunity and the promotion of higher education”, which are accepted or rejected by Hefcw.
This is similar to the situation in England, where universities must present their plans for widening access to the Office for Fair Access.
The latest guidance for submitting fee plans focuses mainly on widening access. But it also encourages universities to detail their plans in areas including internationalisation, mental health support, teacher training and “the student experience generally”, thus going beyond just widening access.
Under the terms of the new legislation, Hefcw would be able to issue what the explanatory notes to the bill call a “compliance direction” to ensure that an institution is sticking to its fee plan.
Amanda Wilkinson, director of HEW, believes that because of the broad terms of fee plans, such spending directives “may not be limited to access-type work and could potentially be much wider” although their exact scope is currently “unclear”.
According to the bill’s notes, a directive would not relate to plans that had been successfully implemented, even if they had not managed to widen access. But examples of measures that could attract intervention are “failure to deliver summer schools and outreach activities, failure to provide pastoral or study skills support or failure to honour bursary commitments”.
In addition to the directive, if a university “persistently” fails to deliver on its fee plan, approval can be withdrawn, leaving the university with no money to teach new undergraduates.
To make the system less “burdensome”, fee plans will eventually be extended to last for five years rather than the current maximum of two. But Hefcw will monitor their effectiveness over the defined period.
Another area that the bill seeks to regulate is the financial administration of universities. Currently, Hefcw attaches a contract to its grants and requires universities to seek its permission before entering certain financial commitments, such as selling land or buildings.
In place of this, the bill would establish a financial code, to be drawn up by Hefcw. But its “general principles” will be set out in guidance from ministers, for example on what kinds of transactions must be approved by the funding council. The code will also have to be signed off by ministers.
The bill would allow Hefcw to “direct” universities “to take action or refrain from action as necessary to deal with or prevent failure to comply with the code”. No clues are given in the explanatory notes to the bill as to exactly what Hefcw might be able to order a university to do.
The legislation would also give Hefcw a power to “secure access to a regulated institution’s premises, records and persons” to make sure that it is complying with the code.
If a university fails to comply with a Hefcw directive, the funding council would have the power to take out an injunction against it, or to cease the provision of teaching funding.
But to balance these new powers, Hefcw will have to give universities a warning if it plans any “enforcement action” against them. Universities can request a review of any Hefcw enforcement, carried out by a person or panel appointed by the minister.
Threat to status
HEW fears that the new powers in the bill are so extensive that they could threaten universities’ status in the national accounts as Non Profit Institutions Serving Households and also as charities.
If the Office for National Statistics decides that the government has a sufficient amount of corporate control over universities, it could remove their NPISH status and reclassify them as part of the public sector. This could mean that any surpluses they accumulate would go to the Welsh government.
Another HEW concern is the fact that the bill leaves many details – such as the power to direct universities to comply with their fee plans – to be fleshed out at a later date using government regulations, which it said would not be scrutinised by the Assembly.
Simon Thomas, Plaid Cymru shadow education minister, voiced similar concerns. He argued that because Hefcw is in effect not independent from the Welsh government, “it would have been more honest to give these powers to a minister [rather than Hefcw] and bring them [the minister] before the Assembly” to scrutinise their use. He expressed fears over “weak universities dependent on day-to-day agreement and micromanagement by the government”.
The bill has received a warmer welcome from the National Union of Students in Wales. In a statement, a spokesman says the bill “rejects the marketisation of education” and “will help ensure that higher education in Wales delivers what students and the Welsh economy need most”. But it echoes HEW’s concerns that any government regulations added in later will need “more detail and scrutiny”.
It is thought that Welsh universities have had only minimal discussion with the government over the bill since March, and they had not seen a draft of it before it was presented to the Welsh Assembly.
According to one source who has followed the bill’s development, the situation between universities and the government is now “tense”.
But a Welsh government spokesman said that most universities in Wales had responded to a technical consultation on the bill last year. “There is nothing in these proposals that would threaten the academic or institutional autonomy of HEIs, or their charitable status,” he said.
The Welsh government has also launched a consultation on the bill, which closes in just under a month. It is likely to receive a substantial number of submissions.