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Consultation On a Higher Education Governance Bill - Analysis of Written Responses

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1. Executive Summary

1.1 A review of the governance of higher education in Scotland was undertaken by a panel of stakeholders on behalf of the Scottish Government and chaired by Professor Ferdinand von Prondzynski, Principal of Robert Gordon University. The review report, submitted to Scottish Ministers in 2012, contained 17 recommendations aimed at strengthening the higher education sector in Scotland.

1.2 Some of the review recommendations have already been taken forward, for example, the Scottish Code of Good HE Governance ("the Code") which has been implemented, on a "comply or explain" basis.

1.3 Scottish Ministers propose legislation to take forward further elements of the review recommendations and issued a consultation on 7 November 2014 to seek wider views on proposals for inclusion in a higher education governance bill. The proposals are intended to build on the strengths of the sector by creating provisions to modernise and strengthen governance and embed principles of democracy and accountability into the sector.

1.4 Views on the proposals were sought by 30 January 2015 and will inform the provisions for inclusion in a Higher Education Governance Bill. 125 responses to the consultation were received, just over half (53%) from individuals, many of whom indicated that they were from a higher education institution (HEI). One quarter (25%) of responses were submitted by universities and university representative bodies. The remaining responses were from other organisations such as unions, student representative bodies, business and industry bodies and local authorities.

1.5 Respondents provided views on topics of relevance to them, and not all provided responses to every question posed. A summary of views submitted in response to the consultation follows.

Privy Council

1.6 The majority (62%) of respondents who addressed the issue did not think that the mechanism for approving higher education governance changes through the Privy Council should be retained. Several universities, however, felt that the case for change was not clear.

1.7 Just over half (55%) of respondents who provided a view considered that the functions of the Privy Council relating to governance changes to Scottish HEIs should be transferred to a committee operating entirely in Scotland. This was envisaged as providing more flexibility, transparency and bringing decision-making closer to implementation on the ground. Opponents were not convinced that a Scottish-based committee would operate with greater efficiency and effectiveness than the current arrangements, and expressed concern over what they perceived to be the risk of political interference.

1.8 Views were mixed on whether the proposed committee should comprise the First Minister, Lord Advocate and the Lord President of the Court of Session, with almost all universities who provided a view opposing this proposal, and all unions and most of the student representative bodies supporting it. Several respondents advocated widening the committee membership to include those with more HEI-specific experience to ensure greater depth and expertise.

1.9 Just over half (56%) of those who addressed the issue agreed that any such committee should be subject to the scrutiny of the Scottish Parliament.

1.10 Universities were largely in favour of individual HEIs being afforded greater autonomy to make changes to their governance without seeking permission from the Privy Council or a replacement Scottish committee. This was seen as separating decisions from political interference and promoting greater autonomy. Unions in particular opposed this proposal which they felt could lead to undemocratic governance decisions which lacked transparency.

Academic freedom

1.11 Views were mixed on whether the principle of "academic freedom" currently defined in legislation should explicitly refer to freedom to encourage new ideas. Almost all universities who responded on this topic opposed it. A common view from opponents was that the current definition has served the test of time and already allows for new ideas to be encouraged.

1.12 Amongst the student representative bodies and unions who supported the proposal for change emerged the prevailing view that this would encourage diversity of opinion and would make clear that such ideas are permissible in the face of any future threat to academic freedom from within institutions.

1.13 Views were also mixed on whether HEIs should be required by legislation to adopt a statement on their implementation of the statutory protection of academic freedom which they should present to the Scottish Funding Council (SFC) as a condition of grant. 51% of those who responded disagreed with this proposal. Whilst most of the universities opposed this proposal, all of the business and local authority respondents, unions, and most of the student representative bodies agreed with it.

1.14 A recurring theme was that academic freedom should not be limited solely to the area in which an academic is employed and by the HEI in which they work.

Role of Principals

1.15 The majority (91%) of those who provided a view opposed the proposal to describe the head of the university as the "Chief Executive Officer" in legislation. This title was perceived as belonging to the business rather than the HEI sector and considered unnecessary as the Chief Executive Officer functions of the Principal are already well understood. Many considered that changing the title to Chief Executive Officer could lead to confusion and is not a legislative priority.

1.16 A majority (83%) of those who commented agreed that if the role of the Principal is set out in legislation as Chief Executive Officer then the working job title should continue to be "Principal".

Chair of governing bodies

1.17 The majority (91%) of those who addressed the issue agreed that a pool of candidates for the position of chair of the governing body should always be selected through an open and transparent process. A recurring theme was that legislation was not required to articulate this as the Code already sets this out and compliance with the Code is a condition of grant.

1.18 It was generally agreed that the position of chair should be advertised openly and that this would help to attract a wider pool of candidates, although a few respondents emphasised that care should be taken to place adverts appropriately in order to reach potential candidates from protected characteristic categories.

1.19 There was much opposition to the proposal that the selection process for chair should culminate in an election by a group of representatives of key stakeholders both internal and external to the university. Overall, over three-quarters (78%) of those providing a view did not agree.

1.20 A common view amongst unions, student representative bodies and individuals was that all staff and students should be given one vote each in an open election for chair. They expressed concern that prior selection of candidates by a panel other than staff and students could result in candidates going forward for election who are not those preferred by staff and students.

1.21 A prevailing counter-view, largely from universities, was that election by stakeholders other than governing bodies of HEIs ran contrary to good governance and could lead to chairs being appointed who do not have the confidence of the governing body to whom they are accountable.

1.22 Concern was expressed that the electoral model proposed may lead to factions and divisions between institutional groups which were particularly damaging in smaller HEIs. A common view was that potentially high calibre candidates could be put off by the electoral process proposed.

Remuneration for elected chairs

1.23 Around half (48%) of those who provided a view welcomed the proposal that universities offer suitable remuneration for elected chairs.

1.24 Most universities opposed the proposal, with a common view being that the post of chair is essentially a voluntary one, with those putting themselves forward doing so on a "pro bono" basis as part of a public service commitment. Supporters, however, argued that remuneration could provide the basis for wider diversity of applicants for chair in terms of enabling wider access to those on low incomes. A recurring view amongst supporters of and opponents to the proposal was that modest, out-of-pocket expenses should be provided to elected chairs.

Membership of governing bodies

1.25 The consultation proposed that legislation should require the governing body to provide positions for a minimum of two students, nominated by the student association/union, at least two directly elected staff members, as well as one member nominated by academic and related unions and one by administrative, technical or support staff unions, and up to two alumni representatives. Of those respondents who considered this proposal, two-thirds (67%) opposed it.

1.26 Universities were predominant amongst opponents and argued largely that trade unions should not be involved in nominating staff for membership of governing bodies as this would lead to such staff representing the stance of the nominating union rather than bringing their independent perspective to the table. Reserving or "ring fencing" places on the governing body for staff who are in unions was also perceived to be contrary to the principles of equal opportunity and inclusivity.

1.27 A prevailing view, amongst universities and individuals in particular, was that additional legislation is not required to embed the principle of equality in establishing the membership of the governing body. The existing Code and the Public Sector Equality Duty were perceived as sufficient in this regard.

1.28 A recurring comment was that although HEIs can influence equality outcomes to some degree, this is largely restricted to the selection of "lay" members of the governing body, as others are almost all elected by staff and students or are ex officio.

1.29 Around one-third of those addressing the issue of equality appeared to support the introduction of membership quotas, at least in relation to gender balance, with suggestions that at least 40% of membership should comprise women. Others, however, felt that quotas may be difficult to implement and counter-productive in prioritising gender over skills and expertise.

Composition of academic boards and appointment of members

1.30 Of those who addressed this issue, a majority (57%) agreed that the academic board should be the final arbiter on all academic matters in all HEIs. However, most of the universities who commented disagreed with the proposal, arguing that "academic matters" is difficult to define, and legislation may be counter-productive in muddling rather than clarifying roles. Overlaps and grey areas were perceived between academic decisions and decisions fundamental to the sustainability of the institution as a whole, with some respondents considering that it is too difficult to legislate on when the academic board should have the final word.

1.31 Views were relatively evenly divided over whether with the exception of the Principal and the Heads of School who should attend ex officio, all other members of the academic board should be elected by the constituency that they represent. Whereas not one university agreed with this proposal, all unions, business and most student representative bodies supported it. Student representative bodies in particular perceived the impact of the proposal to be an increase in the accountability and transparency of the academic board.

1.32 A majority (57%) of those who provided a view were in favour of the proposal that elected members should form a majority of the total membership of the academic board. There was general support for embedding equality principles into the establishment of such bodies but many respondents also cautioned that this brought challenges, and requested further debate and shared information on good practice.

1.33 Views were almost evenly split between those agreeing that academic boards should have no more than 120 members and those disagreeing. Some questioned what the rationale was for imposing a consistent approach to a cap on membership across HEIs, arguing that institutions should be able to set their own size of board, based on their structure and needs.

Additional comments

1.34 Respondents were invited to submit further comments over and above those in direct response to the questions posed. Three overarching themes emerged:

  • questioning of the evidence to support the need for the changes proposed in the consultation;
  • time should be given to allowing the Code to bed in and its impact evaluated;
  • opposition to attempts to impose a "one size fits all" approach to the governance of HEIs.