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Alastair Merrill
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University of St Andrews
Education
Educational Establishments etc. (Part 2, Chapter 1)
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Part 2 of the Bill contains provisions that would allow Ministers considerable control over the detailed operation of University activities. These include the proposals in section 8 to confer additional functions on Universities; to require Universities to admit specified individuals or categories of individuals to particular programmes and courses of study; and to stipulate term dates, holiday dates and examination dates.
It is difficult to see the connection between the granting of such powers and the protection of public health during a pandemic. Nor is it clear how Ministers could use these powers competently, and without risks of unintended consequences, given the diversity of the HE sector and the specific needs and complexities of individual institutions and their students.
The policy outcomes of the bill could better be met by learning from the experience of where universities worked successfully with the Scottish Government during the pandemic, where institutions could make practical decisions that were informed by detailed knowledge of local circumstances, within an overall framework of guidance. This enabled Universities to keep classrooms and laboratories amongst the safest environments throughout the pandemic, with, in our institution and many others, no instances of Covid transmission in a teaching or learning setting.
Government is simply not in a position to make the kind of detailed judgements that would be required by making regulations at this level of detail. Attempting to do so would bring a high risk of unintended consequences that could adversely affect student outcomes and potentially run foul of the legal instruments defining institutions’ powers and responsibilities.
Section (10) dealing with student accommodation similarly gives Ministers the authority to make decisions that should be taken locally as part of incident management. Universities have worked closely with Public Health and Scottish Government in the effective management of outbreaks of Covid in student accommodation, and the case for statutory powers has not been made. The powers in this section take no account of individual students’ rights as tenants, and it is unclear how they intersect with existing tenancy legislation. For many students, their University residence is their home; others, as we saw during earlier lockdowns, were unable to travel back to their normal homes. This measure as drafted could result in students effectively being made homeless by the state.
The sweeping “catch all” clause (8(5)(j)) would allow Minsters to “require the taking of actions in general terms, or require the taking of particular actions, that the Scottish Ministers consider appropriate”. This is worryingly broad in its scope, and through regulations, would provide Ministers with power to direct or control Universities’ activities. Without strict and explicit safeguards, this could seriously undermine institutional autonomy and arguably academic freedom – as well as potentially posing a threat to institutions’ charitable status.
The Procedure for Regulation at Section 12 purports to provide safeguards to ensure Parliamentary scrutiny and approval, but subsection (2) allows Ministers to avoid the affirmative procedure for “reasons of urgency”. Since the whole purpose of the Bill is to provide powers to deal with an emergency situation, it would be a simple side-step to avoid any challenge or scrutiny of the application of these sweeping powers.
Universities Scotland have set out an alternative proposal for an emergency powers framework that would build on the successful co-operation and engagement that we have seen over the past two years between institutions and Government. We strongly believe that this would be a more effective approach to realising the Bill’s stated policy outcomes than powers that would encourage Government micromanagement of how Universities run their operations.
It is difficult to see the connection between the granting of such powers and the protection of public health during a pandemic. Nor is it clear how Ministers could use these powers competently, and without risks of unintended consequences, given the diversity of the HE sector and the specific needs and complexities of individual institutions and their students.
The policy outcomes of the bill could better be met by learning from the experience of where universities worked successfully with the Scottish Government during the pandemic, where institutions could make practical decisions that were informed by detailed knowledge of local circumstances, within an overall framework of guidance. This enabled Universities to keep classrooms and laboratories amongst the safest environments throughout the pandemic, with, in our institution and many others, no instances of Covid transmission in a teaching or learning setting.
Government is simply not in a position to make the kind of detailed judgements that would be required by making regulations at this level of detail. Attempting to do so would bring a high risk of unintended consequences that could adversely affect student outcomes and potentially run foul of the legal instruments defining institutions’ powers and responsibilities.
Section (10) dealing with student accommodation similarly gives Ministers the authority to make decisions that should be taken locally as part of incident management. Universities have worked closely with Public Health and Scottish Government in the effective management of outbreaks of Covid in student accommodation, and the case for statutory powers has not been made. The powers in this section take no account of individual students’ rights as tenants, and it is unclear how they intersect with existing tenancy legislation. For many students, their University residence is their home; others, as we saw during earlier lockdowns, were unable to travel back to their normal homes. This measure as drafted could result in students effectively being made homeless by the state.
The sweeping “catch all” clause (8(5)(j)) would allow Minsters to “require the taking of actions in general terms, or require the taking of particular actions, that the Scottish Ministers consider appropriate”. This is worryingly broad in its scope, and through regulations, would provide Ministers with power to direct or control Universities’ activities. Without strict and explicit safeguards, this could seriously undermine institutional autonomy and arguably academic freedom – as well as potentially posing a threat to institutions’ charitable status.
The Procedure for Regulation at Section 12 purports to provide safeguards to ensure Parliamentary scrutiny and approval, but subsection (2) allows Ministers to avoid the affirmative procedure for “reasons of urgency”. Since the whole purpose of the Bill is to provide powers to deal with an emergency situation, it would be a simple side-step to avoid any challenge or scrutiny of the application of these sweeping powers.
Universities Scotland have set out an alternative proposal for an emergency powers framework that would build on the successful co-operation and engagement that we have seen over the past two years between institutions and Government. We strongly believe that this would be a more effective approach to realising the Bill’s stated policy outcomes than powers that would encourage Government micromanagement of how Universities run their operations.