By Rob Cuthbert

The Higher Education and Research Bill (HERB) has begun its Committee stage in the House of Lords. With 500 amendments tabled for line-by-line scrutiny, six days were set aside through to 25 January 2017, but on the first day, 9 January, only one amendment was considered. It was however a pivotal proposal, about the nature and purpose of universities, with the rarity of being taken to a vote – the first time since 2012 (on a health bill) that there had been a vote at this stage in the Lords. Debate is likely to be both heated and confused, because the Bill embodies two key contradictions – between centralised control and free market forces, and between two very different appeals to legitimacy: emotion and personal belief, or evidence.

In HE the neoliberal tendency often gets the blame, but, as Paul Temple points out in this issue of News, neoliberalism is not easily reconciled with the centralising and controlling inclinations which are a key part of the Bill. Times journalist Matt Ridley departed from his usual science and environment beat to devote a column on 9 January 2017 to the Bill, headlined ‘Universities are being nationalised by stealth’.  As a hereditary peer Viscount Ridley was no doubt heading for the House of Lords for the Bill’s first day. The Bill is indeed ‘a Whitehall power grab’, as he argued.

So far, so easy to understand. Whitehall’s civil servants always want more control. But why would politicians enamoured of the market choose to go along with it? David Willetts (encouraged by the Browne Review) had a mystical belief in the market’s ability to ‘drive up the quality of teaching’ by making students better-informed, but since this runs against almost all the evidence, we are entitled to be sceptical. Nevertheless that view has become entrenched in Whitehall, surviving a change of Minister and the restructuring of government departments.

Andrew McGettigan says that, in interpreting the Bill’s provisions for degree-awarding powers, unless and until there is further justification from the Government, “we are left with the suspicion that the driving motive is to bring the timings of that procedure into alignment with investment cycles.” But perhaps the policy is as much about ambition and incompetence. Willetts, always aspiring to be a full member of Cabinet, may have truly believed, what it was convenient for him to believe, under the Cameron government. By the time Jo Johnson took his place the policy was firmly established and he also believed, or deemed it politic to believe, that HE needed a shake-up and the quality of teaching in HE was indeed ‘lamentable’. The HE and Research Bill kept its precious place in the Parliamentary timetable, when much else fell, and the TEF was a manifesto commitment which Johnson had in effect inherited and could do no other than pursue.

It is now widely agreed that the ‘Teaching Excellence Framework’ proposals will not help to identify excellence or teaching quality. (In a public lecture on 13 October 2016 David Willetts advertised Johnson’s wish for better measures for TEF than those currently available.) Summarising much comment by others (see elsewhere in this issue of News), McGettigan Critical Education blog post on 12 January 2017 said: “What’s proposed in the TEF is a suite of imperfect proxies for teaching quality – only one of which (completion rates) is a good indicator of something awry, but that may be more about recruitment and the financial strain of fulltime study rather than teaching quality per se.” Dorothy Bishop (Oxford) wrote a coruscating blog on 12 December 2016 about Johnson’s ‘lamentable performance’ under Treasury Committee questioning about TEF and his Green Paper, destroying his dubious statistical assertions about the ‘lamentable’ variability of the quality of teaching.

The 9 January vote in the House of Lords was about something even more fundamental: what it is to be a university, and what quality in higher education means. The Minister argued his case on 11 January 2017 in The Daily Telegraph: “The Bill aims to breathe new life into our higher education sector by encouraging innovation and putting in place incentives to drive up the quality of teaching, not at the expense of academic freedom but in a manner wholly in keeping with it.” Andrew McGettigan turned his fire on the ‘encouraging innovation’ part, with a post on 5 January 2017: “The government’s insistence on accelerating the process by which new providers enter the funded system runs against all the evidence [of bad or corrupt practice] we have accrued.” And we know thanks to a recent HEPI report that the ‘level playing field’ supposedly to be created by the Bill will in fact still not include almost three-quarters of the private providers already operating in the UK.

Smita Jamdar, partner and head of the education team at lawyers Shakespeare Martineau blogged for WonkHE about the Bill when it was published, concluding: “Some, maybe even a lot, of this may change as the Bill works its way through Parliament, but the main principles on which it is founded are unlikely to. We will undoubtedly be left with a more explicitly regulated, less autonomous and less stable English higher education sector, with greater risks for prospective students, students and graduates alike. I only hope that the upside, whatever Ministers think that might be, is worth it.”

So will the Higher Education and Research Bill simply become another of the Blunders of Our Governments? Whitehall mandarin David Normington’s review of the book by Ivor Crewe (Essex) and the late lamented Anthony King said: “If risks are never taken, then nothing will ever change. But the best Ministers I worked for combined activism with a real desire to listen to, and license, dissenting voices; and to test policy ideas to destruction. We need more of that kind of Minister, and more encouragement to civil servants to make the obligation to “speak truth to power” a reality.” Fine words, but no parsnips buttered yet. Where, in the HE and Research Bill, are the ministers ‘with a real desire to listen’, and where are the civil servants prepared to speak truth to power?

Alison Wolf’s amendment to the Bill said:

“UK universities: functions

(1) UK universities are autonomous institutions and must uphold the principles of academic freedom and freedom of speech.

(2) UK universities must ensure that they promote freedom of thought and expression, and freedom from discrimination.

(3) UK universities must provide an extensive range of high quality academic subjects delivered by excellent teaching, supported by scholarship and research, through courses which enhance the ability of students to learn throughout their lives.

(4) UK universities must make a contribution to society through the pursuit, dissemination, and application of knowledge and expertise locally, nationally and internationally; and through partnerships with business, charitable foundations, and other organisations, including other colleges and universities.

(5) UK universities must be free to act as critics of government and the conscience of society.”

The Minister’s response, instantly echoed by HEPI’s Nick Hillman (the former special adviser to David Willetts), was to say: “We must avoid … hasty attempts to incorporate into primary legislation unprecedented declaratory statements about the nature and purpose of universities. While it had the best of intentions, the new clause promoted on Monday would inadvertently hem them in and stifle innovation. Restricting opportunities for change, variety and diversity works against autonomy, not for it.” But universities, as conceived in the new clause, have achieved innovation, variety and diversity on a massive scale, for the last 50 years and more. ‘Evidence’ to the contrary seems to consist of insupportable assertions about teaching quality and a trail of failure and malpractice among new for-profit entrants to the HE sector.

Oxford Dictionaries made ‘post-truth’ their word of 2016:

“ADJECTIVE: Relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief: ‘in this era of post-truth politics, it’s easy to cherry-pick data and come to whatever conclusion you desire’”

It seems the Bill relies indeed on ‘appeals to emotion and personal belief’. When Government resisted Wolf’s amendment, it went to a vote which the Government lost. Will the amended Bill survive unchanged as and when it returns to the Commons? If not, then the Higher Education and Research Bill may become the first academic case study in the era of post-truth politics.

Rob Cuthbert is Emeritus Professor of Higher Education Management, University of the West of England, and Joint Managing Partner, Practical Academics rob.cuthbert@btinternet.com,