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March 03, 2011

Have ministers broken the law in their guidance to OFFA?

The Government has no authority in Law to use agencies like Office for Fair Access to involve itself in individual universities' detailed admissions policies or entry criteria. That's  the damning verdict of two influential authors of authoritative studies of OFFA's legal basis. William Cullerne Bown explains this latest twist in the access saga.

"If the Government really deems it necessary now to intervene ... in the detailed admissions policies and processes of, and also the exact entry criteria set by, universities, institution by institution, rather than having the previous and entirely legal focus, via its arms-length quango-like agency in the form of OFFA, solely on applications, then, clearly, it will need, in its impending White Paper on higher education, to consult over awarding itself appropriate powers under new legislation – since at present the Government simply has no authority in Law to seek to become involved, via the work of OFFA, in the way seemingly implied in the February 2011 letter of ‘guidance’." [my italics]

That is the opinion of Dennis Farrington and David Palfreyman of the Oxford Centre for Higher Education Policy Studies, authors of an earlier book on the legal framework established by the creation of the Office for Fair Access.

The quote is from a new pamphlet looking at the guidance given by ministers to OFFA last month. The paper is a gigantic rebuke to ministers, for if you accept the authors' reasoning, then it emerges that:

  • OFFA cannot require a university to change its entry criteria in any way
  • The existing legislation "firmly denies Government any authority or ability at all to interfere in university admissions" (as opposed to applications)
  • There is a serious question mark over whether the guidance in the letter sent to OFFA exceeds the government's legal powers
  • OFFA has a legal duty to resist attempts by the government to overstep the mark
  • Nonetheless, the 2010 Equality Act may have diluted the ability of applicants rejected as a consequence of affirmative action to mount a legal challenge to a university's admissions policy
  • Even if ministers decide to strengthen their powers by changing the law, they will run up against fundamental problems in reconciling their apparent desire to micro-manage with international standards of academic freedom.

In other words, it looks like David Willetts and Vince Cable have got themselves into a horrible, horrible mess. All that rhetoric about fair access for students from poor families turns out to be not just dubious policy but probably illegal.

This is all part of the backdraught I outlined last month. It's what happens when you make up policy as you go along. It's what happens when politicians (in this case Lib Dems) decide that improving their image is more important than respect for academic freedom - or even the law.


[BTW OFFA itself is publishing its guidance to universities on Tuesday and its head, Martin Harris, is keeping quiet until then.]


Here is BIS's response to the questions raised in the OxCHEPS paper, including specifically whether the ministerial guidance to OFFA is legal:

"The Government's student finance reforms were developed following Lord Browne's independent review of higher education funding and student finance. The sector was extensively consulted during the year-long review and the proposal debated at length in Parliament.

"Our student and university finance reforms are fairer than the present system and affordable for the nation. No one will be asked to pay upfront costs, there will be more financial support for poorer students and funding for universities will follow individual study choices leading to an increased focus on graduate outcomes.

"The Higher Education White Paper will focus on wider challenges facing the sector. We believe it is important to take more time to engage comprehensively with stakeholders before publishing our long-term vision for higher education."


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Wow - Are we sure that wasn't just the BIS out-of-office email auto-response? Am I missing something ... are they missing something!?

For an update on the legal assessment of the OFFA guidance of 8/3/11 to HEIs see OxCHEPS Paper 40 at the Papers page of the OxCHEPS website. DP, OxCHEPS (oxcheps.new.ox.ac.uk)

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