The greatest legal challenges for HE in 2021

Following a turbulent year for the higher education sector – and the world at large – we ask three leading HE legal specialists what they see as the biggest legal challenges facing universities in 2021

A testing time for institutional autonomy and academic freedom?

Smita Jamdar looks to financial, global, civic and cultural challenges for the year ahead

 

1. The fall-out from Covid-19

There are still many areas of university life that could throw up legal issues in the wake of the pandemic. Student dissatisfaction could lead to complaints and claims for refunds for accommodation, tuition or a sub-par experience.

The financial impact of loss of research and commercial income, as well as any reduced student fee income, could lead to restructuring, mergers and collaborations for some. The worst-affected could find themselves in the DfE’s punitive restructuring scheme, which could raise some profound and existential questions about what it means to be a university.

More positively, the move to blended learning could result in innovative methods of delivery, which have an impact on universities’ commercial and estates strategies.

 

2. A global reset

Across the world, the UK’s international relationships are being revisited, most obviously through Brexit, but also in the increasingly strained relationship with China and with the desire to strengthen other key relationships with non-EU nations. Equally, many of those nations are changing their own approach to global relations, with an increasing focus on regionalisation.

Universities pride themselves on their global outlooks and character, and their international strategies will need to be refreshed and strengthened to navigate a path through government policy, new immigration requirements and the complex legal framework of international partnerships.

 

Equalities minister Liz Truss has said diversity efforts should be based on ‘facts’ not ‘fashion’. Photo courtesy of Unsplash

 

3. Finding their place in the levelling-up agenda

Universities could be key to unlocking the potential of some of the left-behind areas that government says it wants to focus on. However, there isn’t necessarily a consensus about their value, and other civic actors such as FE colleges or local business organisations may be seen as a more natural repository for public investment.

Universities will need to review their approach to civic participation and consider what their specific role in civic rebirth is or should be. This will involve partnerships with other institutions, with the university not always in the dominant or driving seat. Managing the risks of these relationships in a proportionate and pragmatic way will be key.

 

The financial impact of loss of research and commercial income… could lead to restructuring, mergers and collaborations for some

 

4. The culture wars

As far as government is concerned, universities have found themselves on the wrong side of the argument on a number of issues, such as freedom of speech, cancel culture, and allegations of being too ‘woke’, with threats of further legislation to force universities into line. Most recently, we have seen a pronouncement by the equalities minister, Liz Truss, that the focus on minority rights needs to end. The next year may test the principles of institutional autonomy and academic freedom, as well as the commitment to liberal values and human rights, as never before.

Smita Jamdar

Partner & head of education, Shakespeare Martineau
www.shma.co.uk

Smita Jamdar is a recognised leader in her field, specialising in constitutional, governance and regulatory advice which helps educational institutions thrive in a rapidly changing landscape. She has helped institutions to innovate and develop, to widen their reach, build institutional resilience, and deliver the best outcomes for students and other stakeholders.

Smita has also been recognised in the Legal 500 2020 as a leading individual in education.

 


 

HE lawyer Jane Byford hopes the sector has a smoother ride in 2021

 

Stop the rollercoaster, I want to get off!

Following a turbulent and tumultuous year for HE, Jane Byford points to three top areas of legal concern

 

1. Covid-19

With mass vaccinations now being rolled out to save lives and allow restrictions to be lifted, life may return to some kind of normality before too long.

Until then, during the third national lockdown, universities are still facing course-delivery issues and possible claims for reimbursement of tuition fees and accommodation costs. With a question mark hanging over exams in 2021 and the deferral of students on oversubscribed courses from 2020 to 2021, we can anticipate some admissions issues, too.

From a staff perspective, home working is still the norm for many and the world of Microsoft Teams and Zoom video calls should continue. It has been demonstrated that many roles that had not previously been thought of as ones that could be carried out remotely can be, which opens up the prospect of more employees working more flexibly on a permanent basis.

 

Make sure your university has headroom in its bank facilities to help cope with short-term shocks

 

2. Brexit

The legal issues arising from Brexit are likely to dominate the first part of 2021.

Universities should be considering the position of existing EEA national staff in order to ensure they can continue living in the UK. If your university holds a student sponsor licence, you will also need to make sure that existing EEA national students have the right to continue studying in the UK after free movement rules no longer apply in the UK.

More staff and students will need universities to sponsor their visa applications in the future, so more resources may be required to ensure sponsor licence compliance and to assist with the sponsorship process.

 

Is your HEI ready to handle the new, post-Brexit sponsorship process?

 

3. Financial pressures

The worst-case scenario of students not turning up at the beginning of the academic year, possible university insolvencies and mergers did not materialise. However, many universities are facing ongoing financial pressures, particularly those whose income relies significantly on overseas students.

It is important to make sure your university has headroom in its bank facilities to help cope with short-term shocks – basically a revolving credit facility you can tap into if needed.

Workforce planning is also a key issue, with many universities considering whether their current structure is what they need going forward and whether their staff requirements are likely to be different.

Hopefully 2021 will be a less tumultuous one than 2020, with the rollercoaster at least slowing down a little.

 

Jane Byford

Partner, VWV
www.vwv.co.uk
Jane Byford, who heads up VWV’s HE practice, has developed a special interest and expertise in advising universities and FE colleges on employment issues. Jane is part of the VWV Coronavirus Response team and provides specialist support to higher education institutions on the challenges posed by coronavirus.

 


 

Handle changes to course delivery carefully to avoid litigation. Photo courtesy of Unsplash

 

Managing change

Stephen Hocking points to managing the change to blended learning as one of the key challenges for 2021

 

The greatest challenges are arising as a result of the transition to hybrid learning that many universities have had to accelerate in response to Covid-19. The switch from traditional lecture hall to computer screen, now no longer optional, doesn’t in itself mean a reduction in standards; it is the way the change is handled that is the key to avoiding litigation.

Failure to manage the switch effectively can lead to legal action in many forms. There are direct legal actions from students in the county court, almost certainly using consumer legislation.

 

There are direct legal actions
from students in the county court, almost certainly using consumer legislation

 

Then there are informal and, in themselves, probably unlawful ‘self-help’ remedies such as rent strikes.

Formal grievances and complaints, possibly backed up by a reference to the OIA, have to be included, as does regulatory action from the OfS, with assessment of quality and standards in HE put for the first time on a clear statutory footing.

Quality of governance is fundamental. HE institutions are unusual in having a dual governance model with academic and organisational governance supported by their own structures. It is essential to ensure that each element of the governance jigsaw respects the autonomy of the other, but also that their goals and interests are fully aligned. The case for digital innovation needs to be made twice and bought into twice: once on academic grounds, and once on organisational grounds, and neither can dominate the other.

 

Data privacy: remain vigilant

 

A further vital element is involvement and communication. Particularly for students and potential students, it may be impossible to give too much information (provided that the information is clear and usable). Digital innovation offers the potential for courses and delivery that are not just incrementally better than what has gone before but fundamentally different. But if this is not made clear upfront, an institution will be exposed to the risk of backward-looking claims and complaints that what is offered is not what was promised – and whether what is offered is an improvement may not be relevant.

Early exploration of all the legal risks around the process of digital transformation helps ensure that the wider context is carefully considered, and can give assurance to an institution that is likely to be feeling uncomfortable and uncertain. This list of other key considerations can serve as an initial checklist:

● Data: data interrogation and analysis lie at the heart of change and continual vigilance to ensure compliance with data privacy is critical

● IP: arguably an institution’s most valuable commodity and one which needs careful protection

● Continuity: a digital mindset means even more exposure to technology. Digital resilience and possible speed of recovery need to be reviewed and probably improved

● Security: the prevalence of technology substantially widens the attack surface. There is no traditional perimeter; instead a disparate network, a potentially open door through which attackers can infiltrate

● Supply chain: third parties have to meet organisational standards and values, with relationships being carefully considered and embedded. Contracts need to offer appropriate safeguards and future proofing

● Regulatory: communicating with the regulators will help ensure they understand what you are hoping to achieve and that you are trying to comply.

 

Stephen Hocking

Partner, DAC Beachcroft
www.dacbeachcroft.com

Stephen Hocking is a public law expert, specialising in the education sector and a partner at international law firm DAC Beachcroft. Stephen advises public-sector and publicly funded bodies on public law and related commercial law matters.

He also defends judicial review and procurement challenges.

 


 

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