University challenge

The Higher Education Bill (the bill) is about to move into the report stage in the House of Commons. Since the publication of the white paper ‘The Future of Higher Education’ in January 2003, the proposals have hardly been out of the headlines.

We hear much about so-called top-up fees and fear of increasing student debt. The new fee arrangements are, however, only part of what is actually contained in the new bill. Conversely, some measures which are much publicised, such as the reintroduction of a maintenance grant for students, are not to be found in the bill at all.

Legal work on the bill began in earnest shortly after the publication of ‘The Future of Higher Education’. My team of departmental lawyers in the Department for Education and Skills (DfES) worked with policy colleagues within the department to determine exactly what the bill would have to contain to realise the various proposals set out in the white paper.

This involved an analysis of existing powers. For example, Section 22 of the Teaching and Higher Education Act 1998 (the act) contains a power for the secretary of state to make regulations about student support. The new maintenance grant is a measure that can be achieved using this regulation-making power, so secondary legislation only, rather than primary legislation, is required and a bill is not necessary to achieve the policy.

On the other hand, Section 26 of the act provides a mechanism that requires higher education institutions to charge a fixed fee for most of their courses. This meant that the variable fee proposal needed to be included in the bill to achieve the necessary change in primary legislation.

The proposal to establish the new director of fair access to higher education likewise required inclusion in the bill, as did the less well-known creation of an arts and humanities research council and the proposed new arrangements for the handling of student complaints by higher education institutions.

What, then, will the legal effect be of the bill? Part one contains entirely new provisions to facilitate the establishment of an arts and humanities research council. The provisions are modelled on those in the Science and Technology Act 1965, which established the existing research councils. The operations of the current Arts and Humanities Research Board will be transferred to the new council.

The aim of these provisions is to put research in the arts and humanities on an equal footing with scientific research.

Part two of the bill provides a new system for the review of student complaints. Currently there is the anomalous situation that students in most of the so-called ‘old’ universities can complain to the university’s visitor, who has traditional powers to hear such complaints, but whose decisions are usually final, without further recourse to the courts. Modern universities (for example, former polytechnics which became universities after 1992) do not have visitors. If a student’s complaint cannot be resolved through any internal procedure, the student had to issue court proceedings.

Under the bill all students, no matter where they pursue their studies, will have access to the same independently provided scheme for the consideration of complaints. This will be run on similar lines to existing ombudsman schemes, with the body designated to review the complaints making recommendations following the consideration of the complaints. Access to the courts will be preserved for all and the jurisdiction of the visitor will be abolished in respect of student complaints.

Part three contains the provisions which have been the subject of much publicity – those relating to fees for higher education and the establishment of the office of the director of fair access to higher education. The structure of the fee provisions follows the existing mechanism in Section 26 of the Teaching and Higher Education Act 1998 (the act). Clause 22 of the bill enables the secretary of state to impose a condition of grant on the higher education funding bodies.

They will then, under Clause 23, in turn impose a condition of grant on the higher education institutions. The condition is that they must either charge no more than the basic amount in fees or they can charge up to a higher amount, if they have first had a plan for doing so approved by the director of fair access.

In the plan, institutions will have to set out the fee limit for their courses and also what measures they will undertake to attract applications from prospective students from groups that are under-represented in higher education. Should institutions breach their approved plan, the director has the power to direct the funding bodies to reduce an institution’s grant.

Part four of the bill makes various provisions relating to student support. These include amendments to existing provisions which will have the effect of excluding student loans from bankruptcy debts. This means that such loans will not be provable in a bankruptcy and will continue to have to be repaid after a bankrupt’s discharge.

This part of the bill also allows student loans to be paid to higher education institutions. This enables the deferral of all student fees, so students do not have to pay before starting a university course, but only upon graduation and earning above a certain threshold, which will be set out in regulations.

A further element of this part is the transfer to the National Assembly for Wales of student support functions. This follows the devolution settlement, under which previously, the majority of education functions had been transferred to the National Assembly in relation to Wales.

Last, but not least, the bill enables student support authorities to supply information to higher education institutions and other bodies exercising functions of a public nature. Currently, students applying for student support have to provide detailed information as part of their application, substantiated by documentary evidence. The student then has to give much of the same information to other institutions connected with higher education. This can be a burdensome and wasteful process. The new provisions are designed to offer the student, if they wish to take advantage of them, a simplified process, in line with the Government’s goal that each piece of information has to be provided to it only once to make dealings with public agencies easier.

The bill contains a number of regulation-making powers. This is in line with current practice of having the basic structure in primary legislation and much of the detail, especially where it relates to procedural matters, in statutory instruments. The regulations are drafted by my team. We worked on these in parallel with finalising the text of the bill, so that drafts could be published during the committee stage. While this increased the workload during the bill’s early stages, it resulted in a better informed debate.

The role of a Government Legal Service lawyer
Involvement in a bill with such heavy public interest is one of the interesting aspects of the work of my team of lawyers in the Department for Education and Skills.

There was, of course, a long lead-in time before the Higher Education Bill (the bill) finally saw the light of day. In early 2003, my team instructed parliamentary counsel, who are drafting specialists, on the content of the bill. For the rest of the year, counsel worked on the drafting, in discussion with my team, policy teams and other departments.

The bill was introduced in the House of Commons on 8 January 2004. For the secretary of state to give the necessary human rights statement under Section 19 of the Human Rights Act 1998, we consider human rights throughout.

The lawyers’ closest involvement in the parliamentary stage starts when the bill moves into committee. In the House of Commons, a standing committee is selected for each bill, which analyses the provisions line by line in a process taking several weeks. MPs table detailed amendments to the text of the bill. For each one, a written note has to be provided for the minister, setting out the effect of the amendment and how it relates to the policy. A member of my team, together with policy colleagues, attended the committee sittings.

Next, the bill is reported to the whole House of Commons, where the amendment process is repeated. At the time of writing, we are dealing with the first batch of more than 100 amendments. After a third reading, the bill passes to the House of Lords, where the stages are substantially the same, except that the committee stage usually involves a committee of the whole house and the sittings take place in the chamber itself.


Carola Geist-Divver is head of the Higher Education and Student Support Division within the Legal Adviser’s Office in the Depart-ment for Education and Skills, part of the Treasury Solicitor’s Office