The Committee of University Chairs have recently been consulting on their proposed new Code of Governance. The regulated higher education landscape – particularly in England – has changed almost beyond recognition since the Code was published 2014, and even since it was revised in 2018. The regulatory expectations on governors, the diversity of providers and perturbations facing the higher education means that good governance has never been more important.

As GuildHE responds to the CUC Consultation on the proposed new Code of Governance I wanted to highlight a few points.

 The Code should apply to all providers
 The Code should enable English institutions to meet the OfS Public Interest Principles
 The Code should be clear and concise whilst still being useful to governors

The Code should apply to all providers

The 135 current members of the Committee of University Chairs (according to their website 16th March 2020) represent universities across the UK. Whilst this membership has expanded beyond just the publicly-funded institutions of the pre-HERA landscape, with several private universities in membership, there is clearly still a long way to go before it represents the full diversity of providers across the country, with 394 providers currently on the Office for Students’ register of providers in England. Revising the Governance Code is a good opportunity for CUC to consider its broadening its membership to allow other providers to become members or risk diluting the relevance of the CUC and its Code.

If it is intended for the Code to be considered as an all-provider document it will need to considered in the context of the wide range of providers that are now part of the regulated sector. A couple of minor examples include for private providers whether the delivery of high- quality research should be described as a “Core value” at the heart of higher education provider delivery with an increasing number of teaching-focused institutions? Or even whether the Nolan Principles, which are valuable in their own right, but designed for public life, should be expected apply to for-profit institutions? There is also a question from further education colleges delivering higher education whether this would supersede or be in addition to the AoC Code of Good Governance and how these would sit alongside each other with being overly burdensome.

It is important to recognise that governance failures anywhere impact on the reputation of UK HE as a whole and so with the regulated sector having changed so much, particularly in England, that the Code must move on and be relevant to all providers. 

Meeting the OfS Public Interest Principles

The 2017 Higher Education and Research Act (para 13(1)(b)) outlined the need for “a public interest governance condition” which the Office for Students published in the Regulatory Framework under Condition E1 and the Public Interest governance principles in Annex B. Given that English providers will be judged against these principles and registration Conditions E 1, 2, 3, 4, 5 and ongoing monitoring in the regulatory framework it will be important to ensure that meeting the Code enables English institutions to be fully compliant with the OfS’s expectations.

Most elements of the OfS’ Public Interest Principles are embedded in the Code at various points, but it would be important to ensure that the OfS consider that compliance with the revised Code would meet their public interest governance principles and ongoing conditions of registration. There is therefore an important mapping exercise between the Code and the OfS’s guidance. For example, in relation to freedom of speech the current references in the draft Code are only within the context of academic freedom. However, the OfS Public Interest principles makes reference to “The governing body takes such steps as are reasonably practicable to ensure that freedom of speech within the law is secured within the provider.” and something closer in language should be considered.

Secondly, in paragraph 5.13 there is no indication for how often there should be a review of governance effectiveness. Most Codes – e.g. the UK Corporate Code – offer a timeframe against when this should happen, is this something that the OfS might expect more clarity on?

Code length

The Code is clearly much shorter than previous iterations and is very much a headline, principles-based document. This is clearly intended to enable the Code to be considered UK-wide – however higher education institutions in different devolved nations will need to consider the Code in the context of their legislative and regulatory environment – and also apply to the increasing diversity of higher education providers, which as an over-arching ambition should be welcomed.

However, it will be important that the Handbook(s) that sit alongside the Code should contain the kinds of examples, evidence and actions that made the previous Code so useful. It will be worth considering whether there is a single Handbook covering all providers or whether there might be useful segmentation, either by theme, nation or type of provider/governance structure.

It is however also worth reminding ourselves that the previous system of a short code and a lengthy handbook was something that the CUC has previously moved away from and it might be preferable to have a single code document with short examples of “how to” (i.e. the current style).  There is a concern that the proposed Handbook could be rather lengthy.

Conclusions

The amended Code has gone a long way to meeting some of the points highlighted above, but there is still a way to go to ensure that the Code does truly apply to all providers, meets the needs of the OfS and gets the balance right between brevity and usefulness. It is important to remind ourselves that the Code will only ever be a guide for institutions’ governing bodies but given the changes facing the sector it will be important to get this right rather than having to tweak the Code every couple of years.