Higher education reforms and Brexit have become inextricably linked
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The Brexit Bill is not the only one to have suffered a rough ride in the Lords in recent months.
At the same time their Lordships were also considering the Higher Education and Research Bill. Here they were equally rebellious.
The fates of the two Bills are closely linked. When David Cameron was clearing the legislative slopes to avoid anything politically contentious prior to the EU vote, the HE Bill was chosen as something that could reunite the Tories post-referendum.
Led by Jo Johnson, a Remainer and brother of Boris, the Bill was thought to appeal to the market instincts of Tory MPs while taking aim at a bête noir of Conservative backbenchers.
It legislates for the entry of 'challenger institutions', or 'private providers', into the English university scene. Higher education in Scotland, Wales and Northern Ireland is the preserve of the devolved assemblies.
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The background to the Bill was five years of Coalition rule in which the Government ran scared of discussing higher education in public following the early decision to treble tuition fees and the student protests that followed. At the same time Theresa May's Home Office targeted international students in a derisory attempt to reduce net migration to 'the tens of thousands'.
While May was ordering the deportation of 40,000 students whose only crime was sitting a Home Office approved language test, the Department of Business, Innovation and Skills was covering up a scandal in which for-profit colleges were drawing down Government loans for Romanian and Bulgarian students who never set foot on campus.
Fast forward to 2016 after six years of reforms associated with controlling the spiralling cost of the student loan book and Government attempts to create preferential conditions of market entry for private providers, it was universally recognised that a new legislative framework was required for higher education. This was contentious enough but then Brexit happened.
The Higher Education and Research Bill moved through its early readings on golden wings in the months after the referendum. With a distracted and seemingly uninterested opposition, the minister was able to refuse all amendments no matter how sensible.
But the HE Bill was in trouble the moment the Supreme Court affirmed Gina Miller's case that a parliamentary vote was required to trigger Article 50. Suddenly a Bill, previously unconstrained by legislative competition, would be squeezed for time as the PM tried to stick to her self-imposed March deadline for Brexit.
Their lordships were not content and sensed an opportunity.
Independent of the Bill, Jo Johnson has introduced the Teaching Excellence Framework. This awards universities gold, silver or bronze for teaching quality based on metrics on employability, student retention, and outcomes from the National Student Satisfaction survey. Performance in the TEF was to be linked to full or partial inflationary rises in tuition fees.
The minister hoped this would address the 'lamentable' teaching he claims goes on in our universities and inform students about where to study. The NUS saw a system in which students who expressed satisfaction with their teaching would be charged more, while students at less TEF-friendly universities would be cut a drift.
Vice Chancellors welcomed any new increase in fees.
The TEF is flawed. You cannot measure the intangible benefits and the complex, life-changing experience of a university classroom.
TEF metrics are proxy measures for teaching quality but they tell us nothing about the vistas that are opened when first generation students with difficult backgrounds are taught in metropolitan modern universities, or the transformations that happen when young minds are opened to knowledge and alternative futures.
The TEF reduces a vibrant rainbow sector of mixed provision to a facile one-size-fits-all institutional colour on a medal chart. But of course, the point of the TEF was never to assess the quality of university teaching but instead to control the cost of the student loan book by putting a cap on increases while seeming to create a market of choice where none can or should exist.
It is profoundly ironic that it is not demonstrating students or lobbying academics that might have scuppered the TEF but the Government's own obsession with a Hard Brexit.
At the Conservative party conference in September, the once Remain-friendly Amber Rudd, now May's successor at the Home Office, called for only 'the best' universities and courses to be allowed to recruit international students. The university sector feared that the TEF ratings would be used to discriminate between the right to recruit international students, adding financial and educational insults to reputational injury.
The HE Bill began to come unstuck in committee stage in the Lords.
As the Bill moved into report stage, amendment after amendment began to pile up and it became clear that if it were to progress concessions would need to be made.
As late as the morning of March 6, Universities UK (the umbrella body for Vice Chancellors) declared itself satisfied with the minister's give-aways stating that sector concerns had been addressed and that they could now back the Bill. Perhaps, they could sense a possible tuition fees rise was in danger of slipping away.
That same evening, Labour, Liberal Democrats and cross-bench peers mobilised to vote through an amendment that decoupled any fee rise from the TEF. If left uncorrected this would in effect kill off the TEF.
Significant Scottish universities immune to fee fluctuation in England (including Glasgow, Edinburgh, St Andrews and Aberdeen) have already declined to participate in the TEF. Without the incentive of increased fees we might expect most universities in England to now withdraw as well.
The Government has the choice to accept the amendment or to seek to overturn it in the Commons. The PM is not known for taking defeat well and her instincts might be to face down the Lords but she would risk making things worse for the sake of little political gain.
It would push the issue of exorbitant tuition fees up the political agenda again at a time when her Government is supposed to be standing up for the Jams - the just about managing.
A three-line whip on something as relatively obscure as the TEF might begin to look like a Government losing control.
A game of ping-pong with the Lords at the same time as the progress of the Brexit Bill would mean the HE legislation could rapidly run out of time. If not passed by the start of the new parliamentary session in early May the Bill would be lost and need to start again.
Ministerial heads would roll at that point. Far better to accept the amendment or to offer a compromise to the Lords that does the same work and quietly dump the TEF.
It is remarkable that a key part of the Government's reforms of HE might be lost because of their refusal to accept the High Court's first ruling on Article 50.
This is only the early days of Brexit discussions and all that might be lost is an excessively complicated way to index-link university tuition fees.
But as the Brexit process becomes more complicated how much more of their legislative programme will be lost? This was the first, relatively simple hurdle and they have fallen flat. Under such circumstances a beleaguered PM might be tempted by an early election against a flailing opposition.
The Lords also passed an amendment that would require universities to register students to vote. The suppression of student voter registration had become an issue under Cameron and it came back to bite him in the referendum. Strong student votes might yet have an important role to play in determining the fate of May's Government and Brexit.
And universities are not yet out of the Brexit woods. While six months later Rudd's promised consultation on international students is yet to appear, the latest batch of recruitment figures show that nearly 10,000 fewer EU students signed up for courses in the UK this year and 40,000 fewer visas were granted to non-EU students.
A recent report by Oxford Economics for Universities UK suggests that spending by international students generated £25.8bn in gross output for the UK's economy in 2014/15.
It looks as if our universities are still at risk of being collateral damage in a Hard Brexit.
• Professor Martin McQuillan is deputy vice chancellor of research and innovation at Kingston University
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