Higher education issues that were once the provision of a university ethics committee or the SU – freedom of expression, say, or student wellbeing – are increasingly hitting in-trays in the legal services department.
What else might be added to the pile in 2022?
We interrogated some of the sector’s sharpest lawyerly minds to find out the three issues that top their list of biggest legal challenges for the coming year.
Smita Jamdar, partner and head of education at Shakespeare Martineau
More intrusive regulation and enforcement
The Office for Students (OfS) has explicitly stated that it intends to make much more use of its enforcement powers and has highlighted quality and standards and equality of opportunity as two areas where it intends to take more robust action.
Whilst the OfS registration process focused on these issues at a provider level, which universities found easy to navigate, the focus will now shift to non-compliance at the course or department level – and this may bring many otherwise high-quality providers into scope for enforcement action. The example given in the OfS’s consultation on its new strategy is action to close courses that do not meet the new suite of detailed quality conditions.
Universities will need to ensure that they are able to swiftly identify and address non-compliance at a local level, which may prove particularly problematic for large institutions with substantially devolved and distributed authority across academic units.
Whilst the OfS registration process focused on these issues at a provider level, which universities found easy to navigate, the focus will now shift to non-compliance at the course or department level
– Smita Jamdar, Shakespeare Martineau
Continuing culture wars
From the proposed Higher Education (Freedom of Speech) Bill, which is likely to become law during the course of next year, to government attacks on perceived “wokeness” in teaching and research (e.g. decolonisation and critical race theory), to challenges to institutional affiliations with organisations such as Stonewall and Athena Swan, universities will continue to find themselves at the heart of a range of societal and cultural flashpoints. These entail balancing a range of legal issues: statutory duties and institutional autonomy, human rights, equality provisions, enforcement of contractual rights and obligations towards staff and students.
Many universities have yet to define and assert their role in levelling-up communities, that, whether led by government or not, needs to happen across the UK. There will be some legislative movement as the skills and post-16 bill completes its passage through parliament. Aspects such as local skills improvement plans and the roles of HE and FE will require navigation.
The introduction of a lifelong learning entitlement could have a profound impact on what universities offer and to whom. More broadly, in each of the pillars of levelling-up identified by government (improved local leadership, public services, standards of living, and civic pride), universities can play a transformative part. This will require a reassessment of arrangements for partnerships and strengthening collaborative networks while mitigating legal risk and safeguarding the institution’s sustainable future.
Underpinning all these challenges is the need for a joined-up response across universities’ governance, institutional and academic leadership, administration and legal teams, and marketing and communications professionals. For institutions often described as a series of fiefdoms united by a common heating system, this may be the most enduring legal challenge of all.
Nicky Fairbairn, partner in the education team at DAC Beachcroft
Digital transformation is especially focused on how teaching is delivered. Covid required an emergency rush online; the post-pandemic scenario is more complex. At one extreme, a few expect life to return to the innocent days of 2019; at the other, digital is the only way forward. The answer lies somewhere between, with subtle differences for different institutions.
While students favour a physical learning experience, this doesn’t necessarily mean a return to the lecture hall. Rather, a return to the seminar room and research lab, for a more personalised and intense experience, with more flexible working areas able to accommodate changing requirements; and a congruent impact on the future shape of campuses, employment contracts, intellectual property and data protection.
It is important that students have unambiguous explanations about how they are going to be taught. Without this, establishments are vulnerable to claims of misselling. Clarity is especially important post-Covid as there is a sense that, even if legal contracts haven’t been broken, emotional contracts have been compromised and expectations clouded; fertile ground for discord.
It is important that students have unambiguous explanations about how they are going to be taught. Without this, establishments are vulnerable to claims of misselling
– Nicola Fairbairn, DAC Beachcroft
In a recent boardroom survey we undertook with In-House Lawyer, wellbeing rose from low on a list of priorities to almost the highest. Businesses are much more concerned about the provision of mental health support for employees.
Universities also have a legal duty of care to students and can be exposed to negligence claims and referrals to the Office of the Independent Adjudicator (OIA) for Higher Education; the Equality Act requires that students with mental health issues are treated no less favourably. Well-being policies and procedures should be accessible, transparent and understood.
Improved standards pertaining to the environmental agenda mean not just more environmentally conscious property management, but also delivery of new buildings and the use of non-impactful construction materials.
The drive for net zero has long been on the agenda for the education sector, and estate managers well-know the need for extended compliance. However, the costs are significant, with consequences for other areas of investment around the campus.
Understanding what other organisations are doing to address these challenges can help short-circuit the route to a solution. Facilitating these cross-sector discussions is another way we can support the changes required.
Bettina Rigg, head of higher education at Browne Jacobson LLP
Despite the pandemic, the UK’s university sector remains a major force on the global stage. However, to maintain its pre-eminent position it faces a series of growing and highly complex challenges in the year ahead.
Rebuilding the cohesive and diverse university community that was severed by the pandemic will be a leadership priority, as will a greater focus on the health and wellbeing of both staff and students.
2022 is also likely to see universities reconsider their stakeholder value proposition on the global stage and the role they have to play in levelling-up in their regions whilst also grappling with their roles and responsibilities under a raft of existing and impending legislation spanning everything from freedom of speech through to national security.
Jane Byford, head of higher education at VWV
Freedom of expression and academic freedom
The impending implementation of the Freedom of Speech Act amidst widespread media coverage of disputes between academics and students – about issues such as transphobia, antisemitism and Islamophobia – suggest challenging times ahead, with freedom of expression and academic freedom priority issues for universities in 2022.
These issues can be complex, sensitive and extremely difficult to manage. Long-established legal duties will be extended, including a broadening of the protection provided by academic freedom and an expectation of greater proactivity in ensuring freedom of speech within the law.
The OfS will have an extended regulatory remit, set to include complaints about freedom of speech and academic freedom. How this will be reconciled with the jurisdiction of the OIA, which has expressed concern about concurrent regulation, remains to be seen. In the meantime, universities should review and update their freedom of speech codes of practice and consider how complaints will be handled internally.
The new subsidy control bill is making its way through parliament and is expected to become law in 2022. It will implement a domestic subsidy control system which the government wants to be more flexible and less bureaucratic
– Jane Byford, VWV
Subsidy Control Bill
Many universities receive grants for research and development (R&D), capital projects and innovation hubs. Structuring grants to comply with subsidy control rules is important to protect against the risk of clawback and avoid time-consuming and painstaking audits.
The interim subsidy control regime put in place by the UK-EU Trade and Cooperation Agreement has been difficult to navigate in the absence of guidance on how R&D will be treated. While the previous EU state aid regime had drawbacks in terms of rigidity, it provided block exemptions for R&D and research infrastructure. Universities also benefitted from clear guidance on when they fell outside the scope of state aid rules and when they might be subject to them.
The new subsidy control bill is making its way through parliament and is expected to become law in 2022. It will implement a domestic subsidy control system which the government wants to be more flexible and less bureaucratic. It has also indicated that it wants to enable strategic interventions in its priority areas, including R&D, which is good news for universities.
The hope is that R&D will be categorised as a streamlined subsidy, which will mean a simpler and faster route to demonstrating compliance. Universities should review areas where subsidies may be a potential issue, carry out subsidy control assessments and update policies to take account of the new regime.
National Security & Investment Act
The national security & investment act 2021 obliges UK universities to consider risks to national security when transferring ownership of spin-out companies, intellectual property, land, or moveable property.
Although the term ‘national security’ is undefined, the Department for Business, Energy & Industrial Strategy (BEIS) has listed 17 sensitive areas of the economy – including advanced materials, robotics, quantum technologies, artificial intelligence and synthetic biology – many of which are researched intensely by universities.
If a university transfers a business entity involved in one of these areas, the acquirer will have to give advance notification to BEIS; failure to notify a qualifying acquisition could render the deal void. When transferring an asset, voluntary advance notification should be considered.
Whilst universities will not be responsible for notifying BEIS, they will need to comply with its requests for information and also with any remedial orders that it issues. Handling this legislation is primarily a matter of compliance for universities and they should concentrate on ‘trigger events’: a transfer of control of an entity or an asset that touches one of the 17 sensitive areas.
BEIS has published useful guidance for the HE sector on the application of this new legislation, in particular on funding students, research funding agreements and sponsorships, research centres, spin-out companies and subsidiaries and donations.
Rachel Soundy, corporate partner in the HE team at Bevan Brittan
The online opportunity
After a significant period of lockdown-related online learning delivery, followed by a recent bounce back to in-person delivery, 2022 will be the year that UK HE institutions have to decide how and to what extent they embrace blended and online learning. For institutions supporting online programmes, the focus is likely to be on delivering high-quality content helping student engagement and progression.
A more permanent and intentional move towards blended or online programme delivery raises significant questions, well beyond the immediate technological and financial implications. How can institutional culture and a sense of belonging be conveyed to students virtually, and how can student wellbeing and progression be supported in the online world? Outsourced delivery arrangements will need to cater for these aspects as well as ensuring quality and standards are maintained.
2022 will see further cybersecurity challenges made against HE institutions. It is, therefore, critical that virtual learning environments are implemented hand in glove with robust cybersecurity systems to ensure that increasing virtual access to learning does not result in additional security challenges.
Universities will also need to decide how they measure and report carbon emissions, particularly scope 3 emissions, and to what extent this should include academic and student air travel
– Rachel Soundy, Bevan Brittan
The sustainability challenge
COP26 shone a spotlight on the importance of the HE sector in generating the knowledge and skills to tackle climate change and drive sustainability nationally. Whilst the sustainability challenge is not new to the sector, the target of transitioning to carbon neutrality and discussions about what the pathway involves gained significant traction in 2021, which will continue into 2022.
Alongside supporting innovation and research into sustainability – incorporating climate literacy into the curriculum and examining approaches to institutional portfolio investment – universities will face the significant challenge of how to make their campuses sustainable in the long term. Options will be shaped by an institution’s mission and values but may well involve investment in decarbonisation, collaborations with private organisations to fund infrastructure development and examining supply chain emissions.
Universities will also need to decide how they measure and report carbon emissions, particularly scope 3 emissions, and to what extent this should include academic and student air travel. The introduction of a sector-wide reporting framework is key to this but in its absence collaboration and sharing of best practice is vital.
Local and global connectivity
In the post-recovery era, HE institutions will increasingly need a dual focus on their local and global communities. The UK government’s drive towards increasing access and participation within HE has a strong regional aspect to it, with universities encouraged to engage more with local schools and communities. This is likely to lead to further collaborations between universities, regional employers and local FE colleges and schools in 2022.
Globally, the international student recruitment market will pick up its pace as more English-speaking destinations open up following national lockdowns. The UK HE sector will need to strongly promote the benefits of studying with – not necessarily physically in – a UK HE institution to maintain the UK’s share of the international student recruitment market.
2022 will also see more UK research-focused HE institutions actively pursuing research collaborations with overseas institutions, fuelled by local research funding pressures and the continuing headwinds of Brexit. These collaborations may well involve an agreement about the use of shared campus space to enable institutions to have a regional study site for overseas students in the event of further national lockdowns.