In 2013 I wrote a consultancy report (Cook, 2013) for the Cooperative College, which demonstrated that there was no legal barrier to the establishment of a Cooperative University in England. I also laid-out the possible routes to creation of such an institution as being one of three main routes: establishing one and growing it from a modest capital base, founding one with a capital endowment, or converting an existing institution to co-operative status.
At that time, the principal difficulty in establishing a ‘Co-operative University’ stemmed from obtaining the right to use two protected titles: both ‘Co-operative’ and ‘University’ are legally restricted terms. Of the two, the term ‘University’ is the more closely protected, with substantial impediments to its adoption. As a result, my report concluded that the creation of a legal entity that is formally recognised as both a cooperative and a university would be most easily achieved through the strategy of converting an existing HE provider to co-operative status, thereby avoiding the difficulties involved in obtaining university title (UT), and concentrating on achieving co-operative status, which is legally simpler (though perhaps requiring culture change – itself not an insignificant barrier).
The passage of the new Higher Education and Research Bill (Sajid Javid, Secretary of State for Business, Innovation and Skills, 2016) through Parliament will change this conclusion. The government intends to lower barriers to entry to the Higher Education sector. Founding a new cooperative university with a modest capital base will become feasible, and arguably more practical than the conversion of an existing university to cooperative status.
For cooperators, the salient features of the Bill are as follows: it will be more rapid and easier to establish a new HE provider with degree-awarding powers. Potentially from very early on in operation, with a clear path for building an academic record that leads to obtaining UT. A level playing field is being created where diversity of provision and student choice are prized.
In the “Success as a Knowledge Economy” White Paper (Department of Business, Innovation and Skills, 2016) that preceded the Bill we see some of the aspirations and clues to how the Bill will affect operations spelt out in more detail. This includes lots of aspirations that will be of interest to co-operators, such as widening access, increasing the proportion of attendance at university, levelling the playing field to encourage new market entrants, driving up the status of teaching and ensuring quality. Crucially, it also creates provision to allow much smaller institutions to become universities, with para 14 stating:
This means that a small cooperative organisation like the Social Science Centre in Lincoln, could now see a route to becoming a university in name, and this appears to be in-line with the government’s intentions, with other parts of the White Paper arguing that the legislation allows for a return to small communities of scholars establishing as universities:
However, not everything in the White Paper is written on the face of the Bill – some of the statements will depend on the way in which the regulatory framework it establishes is operated by the Office for Students, and the minimum student numbers required is among these matters of interpretation.
In Being a University, Ron Barnett argues that ‘the idea of the university has continually to be revisited and reimagined’ (2011, p.2). This legislation, for all that it increases the regulatory scaffold and burden for higher education in England, allows precisely this re-imagining to occur. It reduces the requirement for a university to be a large, established institution with 1,000 or more students, and creates the possibility of revenue streams to support the development and emergence of new forms and ideas of the university. This draft legislation has arguably come not a moment too soon, because as Barnett writes: ‘we desperately need more imagination to be brought to bear in identifying new ideas for the development of the university’ (ibid, p.5). In Success as a Knowledge Economy, the government intends to enable a return to ‘the historic concept of universities as small, academic communities’ (Department of Business, Innovation and Skills, 2016, p.30). The stage is set for experimentation with the form of the University.
Parallels can be drawn with the cooperative schools movement, which utilised the legislation on Academies to become in a very short period of time, the third largest schools grouping in England, smaller only than the Church of England and Roman Catholic schools foundations. On that occasion, the prospect of Local Authority-controlled assets passing to private academy trusts was the motivation to establish a cooperative alternative. In this case, the prospect of existing universities potentially passing into the hands of profit-seeking businesses (or perhaps a belief that universities have grown into managerialist bureaucracies, coupled with the sense that something can now be done about this) may have a similar galvanising effect. The main inhibitors to the creation of cooperative universities are imagination and culture on one hand, and the general complexities involved in growing a new institution to university scale on the other. By levelling the playing-field, creating a Register that acts as a pathway to UT, establishing a stronger market in validation, and reducing the minimum numbers of students required, this legislation creates the conditions for entrepreneurial higher education folks to reinvent the university. Clearly a wide range of universities may be invented as a result of new legislation. Now is an opportunity to demonstrate that a cooperative higher education can have wide appeal.
In a world that has adjusted to ‘a loss of grand narratives’ (Lyotard,  1987, in Barnett, 2011, p.16) universities ‘have to have recourse to a language about themselves’ (Barnett, 2011, p.16) that opens up authentic possibilities for their futures. ‘[U]niversities have to decide how they are to be in the world.’ (ibid, p.16). Will these be the ruling neoliberal ideologies of ‘competition, efficiency, income generation’ (ibid, p.16) or can they ‘hope to furnish some authenticity for themselves’ (ibid, p.16) through the language, values and principles of the cooperative movement? (see ICA, 1995)
Section-by-section reading of the Bill
The main part of the rest of this blog is a line-by-line reading of the Bill (Sajid Javid, Secretary of State for Business, Innovation and Skills, 2016), and the numbers I use reference the various sections of the Bill as it is laid before Parliament. I should add that nothing here is a particular endorsement of the Bill, as provisions that aid the creation of Cooperative Universities could aid other organisations more, or have unintended consequences that are perhaps undesirable. This is intended to be a lay-person’s reading and commentary on the Bill with an interest in utilising its provisions for the practical establishment of cooperative universities in England.
See the References section of this post for more information about the Bill, or to find a link where you can download a copy.
2(1)(a): The newly-established Office for Students (OfS) will have a duty to “promote quality, and greater choice and opportunities for students, in the provision of higher education”. This, amongst other things, aids the arguments for a diversity of corporate forms in the HE sector, which naturally includes co-operative forms.
2(1)(b): co-operative universities will be expected to operate in a competitive framework, but only insofar as this is in the interests of students. While seemingly trivial, this last point does make it easier to envisage associations of new small cooperative universities working together in a non-competitive way to serve student interests.
2(1)(c): Cooperative universities will be able to do a number of things ‘out of the box’ that other corporate forms struggle with: key amongst these is providing financial transparency for members (which of course could, arguably should include students). This could become a great asset, as the evidence shows that the raising of fees has dented perceptions of value for money considerably.
2(1)(d): The equality and access requirements will place some (pro-social) restrictions on the rules for participation in the cooperative university, one would imagine. Though it is not clear how this duty will be interpreted – could be at the level of the student having access to market, or a duty on an institution to have fair admissions, though this latter tempered by 2(3)(c).
2(3)(a): preserves academic freedom around how courses are run, the curriculum, the assessment, etc. This appears to offer a fairly strong protection from government interference in learning, as does all of 2(4)
2(5): It is not entirely clear, but if cooperative universities were homogenous enough in their corporate forms to comprise a ‘description’ of HEPs, then it is not inconceivable that the Secretary of State could advise the OfS to treat them in a particular way, different to other HEPs, but still within the terms of the final Act.
3(1)-(4): Cooperative HEPs would have the option of being on or not on the register, but there are advantages and disadvantages in both cases, though I believe more advantages to be gained from registration than operating outside the framework. Cooperative universities could (theoretically) be in their own part of the register, but it is unlikely that a part will be created for them prospectively. We should therefore expect cooperative HEPs to be registered alongside other HEPs.
The conditions in 3(3)(a)-(d) for entry in the register are cumulative – all the conditions must be met. Interestingly, entry on the register is available to 3(3)(b) organisations that intend to become HEPs. This means that the barrier to this first tier of recognition – entry on the register – is available to any cooperative that intends to become an HEP, and has a governing body that asks to be registered, as long as it satisfies the initial registration conditions, and any requirements placed upon it in the light of 3(5), or 5.
3(5): gives the OfS and the Secretary of State (via guidance) the power to determine the way the application process works, and this will no doubt be used to establish some basic threshold conditions, to avoid abuse of the process. Registration rules can be revised 3(7)(a), and conditions can be applied (b). We do not know what will be included in this, but one can imagine certain financial, student numbers, staff capabilities, legal and other conditions being put in place to avoid applications that are frivolous, vexatious, or have low prospects of success. How these judgements will be made is not clear, but given the very small size of some Alternative Providers, with around 50 HE students in a single discipline, it is hard to believe that the bar will be set very high – thus far the governments aims have been to support challenger institutions to enter the market for HE course provision.
4: details more about the registration procedure. Again, this gives the government a lot of room to innovate, as it really only specifies time periods (28 days) and that reasons have to be given if registration is not permitted. Given the existence of the Public Sector Mutuals programme under the coalition and the present government, and given that corporate form is likely to be the only (legally) distinctive feature about a cooperative, it is hard to see any grounds for discrimination that would not impact equally on similar-sized organisations.
5: and 6: says a little more about the latitude that the OfS have to impose and change conditions of registration, including for particular ‘descriptions’ of provider, but interestingly also places a (weak) requirement upon it to consult with sector bodies. It is therefore in the interest of early registered cooperatives to establish an appropriate sector organisation or apex body to serve in this capacity, as a relative priority. Alternative Providers have not yet achieved this, and as a result arguably present to government in a fragmentary way, but it should be easy for coops to adopt this approach early on. 7: argues that the approach should be risk based, so the more rapidly coops establish appropriate collective control mechanisms, collaborative approaches, financial risk sharing and resource sharing, etc., as has been done in the cooperative schools movement) the lower the risks are likely to be and the lower therefore the likely regulatory burden.
8: indicates that the registered provider will require an effective governing body, and will be subject to a requirement to provide information. This could mean anything from a copy of the published accounts through to something like a HESA data return, and is probably the legal gateway through which all providers will be required to submit statistical information in future.
9: sets an absolute floor for data requirements in 8: of requiring transparency about the publication of application information, for equalities monitoring purposes.
10: provides the enabling mechanism for fee caps to be put in place, and for there to be different fee caps for different descriptions of providers. In some cases, this could also mean (in effect) no cap, and this is clearly the case for international students and most postgraduates. Caps are in relation to regulated courses only. 11: provides that these caps must be published.
12: details how access and participation plans will be put in place to permit higher fees to be charged for regulated courses. This is not entirely dissimilar to the way Offa’s Access Agreements work currently, but in a level playing field for all providers.
13: details other conditions of registration, and raises some interesting provisions, namely that there can be fees for registration; that there might have to be a plan in place to support students if the provider exits the sector; requirements to subscribe to designated bodies (presumably like HESA or the QAA); requirements to meet certain quality standards; and public interest conditions.
These 14: public interest governance conditions can be applied, and there can be different conditions applicable for different descriptions of providers. Academic Freedom is also enshrined in this section, but of course might not apply to all descriptions of provider.
15: tells us that financial penalties can be levied if conditions of registration are broken.
16: and 17: tell us that registration can be suspended and how this will be administered, including that it can be very rapid if necessary to protect public money 17(8), and that this can lead to 18: and 19: de-registration. An appeal 20: can be mounted.
21: in addition, renewal of an access and participation plan can be refused, which could curtail an important income stream.
22: A provider can also be voluntarily de-registered.
23: The OfS appears to have the power to make a wide range of provision for quality and standards assessment, but where there are specific conditions applying to a registration, then it must do this. 24: a committee will be set up for this purpose, and this committee will advise OfS and have a majority of HE-sector representatives who are not members of OfS.
25: a quality and standards rating scheme for HE provision will be put in place. This is the “TEF”.
26: Specifies that a designated body (think the QAA) can perform quality assessment functions on behalf of the OfS, and says something about the contractual arrangement for this. 27: permits designated bodies to charge fees, and makes some provisions about the limits of these fees, perhaps in recognition that a market is not being created for the provision of these services.
28, 29, 30, 31, 32, 33, 34 and 35: Establish the conditions for access and participation plans, and linking these to the power to charge certain levels of fee for regulated courses.
36: permits the Secretary of State to demand a report on equalities issues.
37, 38 and 39: empowers the OfS to fund activity, and the terms and conditions that surround this. This includes a provision 37(1) for one provider to be paid to run education at another, perhaps in connexion with a suspension or exit. This seems similar to the provisions for academies in the Schools sector, and will be familiar to cooperators in the schools movement.
40: authorises the OfS to grant degrees, classified into taught, research or foundation degrees. This can be a general power, a power in a specified area or discipline, or a closely-specified authorisation. 40(6) enables these powers to be time-limited, or indefinite. 40(4) and (5) write into legislation that FE colleges offering foundation degrees must ensure these support progression to more advanced study.
40(10): gives the OfS the power to author Statutory Instruments, and 43(1) allows these to override previous Acts of Parliament and Royal Charters. This levels the playing field considerably.
41(1): deals with franchised provision, and places closer government control on it. 46: extends the OfS’s power to oversee and require one body to validate the degrees of another, and 47: gives to the OfS its own reserved powers to validate taught and foundation degrees – powers not dissimilar to those of the CNAA, but not intended to be used much – expediency and the Secretary of State’s approval are required. While this does not directly affect co-operators, it does tend to level the playing field for smaller organisations that face difficulties or expense in getting accreditation by a third party institution.
51, 52, 53, 54: These sections confer a wide range of powers to the OfS in terms of University Title (UT), giving it the power to confer and revoke titles, under a wide range of circumstance. This section is a game-changer for the prospect of a cooperative university, because it provides a clear set of powers that would enable a registered provider with a cooperative legal form to be granted UT, using a statutory instrument.
56: Grants powers of entry and search where a provider is in receipt of public funds!
57: Extends the duty to provide information to the OfS to unregistered providers. This in essence means that the OfS can require information from any English HE provider.
58: this section on cooperation and information is more about how the OfS must work with other parts of government.
59: creates provision for the publication of information about higher education in England by a designated body. This is likely to be an enabling framework for the Higher Education Statistics Agency.
60: creates provision for a designated body to publish information. Again, this is understood to be an enabling framework for the Higher Education Statistics Agency, and 61: permits the designated body to charge fees.
62: creates a general power for the OfS to undertake an efficiency study on a registered provider, and to require the cooperation of the provider.
63, 64 and 65: create powers for the OfS to charge fees to registered providers, and to recover its costs where taking hard regulatory action.
66: The Secretary of State can make grants to the OfS, but these are circumscribed.
67: The OfS is expected to publish its regulatory framework and the general conditions and circumstances for continued compliance with general conditions of registration. Relevant bodies must be consulted.
68: The Secretary of State may designate further powers to the OfS, with some constraints.
69: The Secretary of State may give directions to the OfS.
70: The Secretary of State may require the OfS to give it information or advice.
71: Gives the Secretary of State the power to require information about applications and offers from UCAS, or another body, and 72: provides that this information can be published.
73: Disestablishes HEFCE and 74: disestablishes OFFA.
75: A section of definitions that 75(1) clarifies the geographical and logical extent of the Bill, and which has the effect of bringing overseas higher education providers operating within England into the scope of HE legislation for the first time. While this does not affect co-operators directly (unless the University of Mondragon wishes to set-up shop in London) it does create a level playing field, and ensure that students at foreign universities operating in England (like Richmond) are within the scope of the protections offered by English HE legislation, for the first time. It also has the effect of re-introducing the word ‘institution’ as the baseline terms for training providers of any sort, meaning that this word can be used once again to refer to all ‘alternative providers’ and universities and colleges.
76: covers powers of designation. This appears to allow for bodies corporate that might not appear to be very much like universities to be designated as providers. It is difficult to understand how the provisions here might interact with the concept of registration, but this section could possibly be used to designate a large company with a well-founded in-house learning programme as coming within the orbit of this legislation.
77: offers further definition and clarification, including a helpful reminder of the definition of [tuition] fees 77(2) as not including board and lodging, field trips, graduation ceremonies or things that the Secretary of State takes a view on.
78 and 79: Are of interest to co-operators. They move the language of student financial support in HE away from being purely about loans, to include ‘Alternative Payments’. This creates a framework for a national cooperative loan scheme, run by the Student Loans Company, to provide a Sharia-compliant ‘Takaful’ loan scheme. This will permit (in particular) Muslim students who wish to access public finance and obey Sharia law on the charging and owing of interest, to do so in a way comparable to students who have student loans. This provision enables the state to establish a cooperative financial fund to be run by the SLC. However, this scheme will likely be open to all, and it will be interesting to see if there is a large take-up of the co-operative scheme rather than the existing capitalist one.
80: appears to make the setting of student financial support a matter for the Secretary of State, rather than Parliament.
81: places all registered institutions within the scope of the Office of the Independent Adjudicator.
82: This section for clarity, deregulates post-92 HE providers that are Higher Education Corporations (HEC) within the meaning of the 1992 Act. It enables the HEC to change its governing documents (which gives a HEC freedoms closer to those of a university established by Royal Charter or Act of Parliament). However, there is a strong provision that the HEC may not stop being a Charity, which will please many, but could have a side-effect of preventing post-1992 universities converting to an appropriate cooperative status, unless provision is made through amendment of other Acts. Schedule 2 of the Charities Act 1993 (http://www.legislation.gov.uk/ukpga/1993/10/schedule/2) defines what are known as ‘Exempt Charities’ – these are Charitable organisations for whom, in essence, the principal regulator is not the Charities Commission. It includes provision for the HE sector, and the Cooperative sector. Since there are provisions in the Cooperative and Community Benefit Societies Act 2014 for a Society for the Benefit of the Community (or BenCom) to also be a charity, it may be that a HEC could convert to a society for the benefit of the community status without revoking or altering its exempt charitable status. However, there is a risk (to my untutored legalistic eye) that this is not so, based upon the following reasoning:
Schedule 8 Section 8 of the HE and Research Bill inserts a change into the Education Reform Act 1988 (http://www.legislation.gov.uk/ukpga/1988/40/section/125A). This in turn references the Charities Act 1993’s definition of exempt charities (http://www.legislation.gov.uk/ukpga/1993/10/schedule/2) which in Schedule 2 (y) references older cooperative Acts than the 2014 Act:
Arguably, therefore, a provision needs to be made in the 1993 Act to update Schedule 2 (y) to reference the 2014 consolidation Act. While there are a large number of outstanding changes to be made to this Act, nothing from the 2014 Act appears in the list of pending changes. Arguably, for a cooperative (BenCom) university to exist by way of a conversion from an existing HEC, and for there to be a level playing-field with other providers, the cooperative university should be unambiguously identified as an exempt charity, and hence regulated in the same way as other registered providers. There is a later Charities Act 2011 (http://www.legislation.gov.uk/ukpga/2011/25/schedule/3), which does reference the 2014 Act, but unfortunately, the list of exempt charities is categorised in a different way, and it is not immediately clear whether a cooperative university would be an exempt charity in the meaning of the 2011 Act.
This refers exclusively to the creation of UK Research and Innovation (UKRI), a single successor to the currently separate Research Councils. There is little of specific interest to cooperators here.
There is little of interest here, other than to note that the Act extends to England and Wales only, apart from some minor revisions to older primary legislation which is in any case now under devolved administration, even though it’s in force.
Schedule 1: Deals with the organisation of the OfS
2(2)(d) does invite the Secretary of State, when considering appointments to OfS, to consider the desirability of appointing a person with experience of “promoting choice for consumers or other service users, and encouraging competition, in industry or another sector of society,” but no equivalent around cooperative values.
Schedule 2: Deals with the conditions through which limits may be set to fees in respect to providers with certain quality ratings in TEF, and with access plans.
Schedule 3: Deals with monetary penalties that can be imposed
Schedule 4: In three Parts, deals with ‘Designated bodies’ that can conduct assessment of HE activities on behalf of the OfS, and refers to the processes for identifying, appointing and controlling bodies like the QAA.
Schedule 5: Explains the powers of entry and search in more detail, and essentially explains that the OfS can get a warrant to enter and search premises, and remove things. This toughens-up the regulatory capability of the OfS.
Schedule 6: In three Parts, deals with ‘Designated bodies’ that can publish information about HE on behalf of the OfS, and refers to the processes for identifying, appointing and controlling bodies like HESA.
Schedule 7: Covers cost-recovery for the OfS’s regulatory duties.
Schedule 8: Covers HECs, and is discussed in more detail in the notes to 82: above.
Schedule 9: Deals with the organisation of UKRI.
Schedule 10: Dealt with the transfer of staff and property of HEFCE, the Research Councils and so on to UKRI and the OfS.
Schedule 11: Minor and inconsequential changes. This is where we should see an item addressing the notes to 82: above.
27: indicates that only some registered providers will be brought within scope of the Freedom of Information Act 2000.
Schedule 12: More minor and inconsequential changes.
Barnett, R. (2011). Being a university. London: Routledge.
Cook, D. (2013). Realising the Cooperative University (Consultancy report). The Co-operative College & The Institute of Education, University of London. Retrieved from https://coopuni.wordpress.com/2013/12/09/creating-a-co-operative-university-in-england/
Department of Business, Innovation and Skills. (2016). Success as a knowledge economy: teaching excellence, social mobility and student choice. Retrieved from https://www.gov.uk/government/publications/higher-education-success-as-a-knowledge-economy-white-paper
ICA: International Co-operative Alliance. (1995). Co-operative identity, values & principles. Retrieved 21 June 2016, from http://ica.coop/en/whats-co-op/co-operative-identity-values-principles
Sajid Javid, Secretary of State for Business, Innovation and Skills. Higher Education and Research Bill 2016-17 — UK Parliament, Pub. L. No. Bill 004 EN 2016/17 (2016). Retrieved from http://services.parliament.uk/bills/2016-17/highereducationandresearch.html