Go back

Force majeure

The OfS reveals a slimmed-down regulatory framework, but the Coronavirus Bill holds powers in reserve

First, the good news for the government. If GDP continues to shrink at the current rate, the UK will hit the 2.4 per cent target for research expenditure by the end of the month.

It won’t really. That’s just Playbook’s little joke to keep our spirits up in these testing times. We have no figures on the extent of the UK’s economic contraction at the moment, so we can say no more on that.

Instead, we begin today with the news that the Office for Students has acted swiftly—after the passing of the Coronavirus Bill in parliament last night—to announce details of a revised regulatory framework. The speed of the announcement is in contrast to other parts of the higher education landscape, where partial or delayed announcements have created uncertainty for universities.

Playbook’s inbox has been inundated with requests for details about output and impact case study deadlines for the now postponed Research Excellence Framework. We’re probably getting what we deserve for suggesting the exercise should be delayed in light of the Covid-19 outbreak, but we have no answers on this at the moment and are confident that the funding councils will make an announcement as soon as decisions have been finalised.

Back to the regulator. The OfS says that “to reduce burden on providers during this period of unprecedented disruption, routine reporting requirements are being suspended where possible”. For the duration of the pandemic, it will instead prioritise the short-term financial risk to providers and the interests of students.

We suspect the regulator may be busy in the coming weeks, with some of the smaller higher education providers working on minimal margins. Larger universities ought to be able to weather the storm with income from student fees and allocations from research funders set for the remainder of the academic year.

However, that situation could change should the crisis continue into the summer months and start to affect student recruitment. International student income will almost certainly take a considerable knock next year—as Fiona McIntyre and Chris Parr report from the virtual Universities UK International Higher Education Forum—and the research effort could be severely disrupted if grant capture slows at universities where historical success rates with the research councils have been baked into the business plan.

Traditionally, senior management teams look to set their budgets for the coming academic year in July, revising them, if necessary, in September in light of actual student recruitment. There is no guarantee that we will be out the other side of this by July or have much certainty about what happens next.

For the moment, the OfS will be looking at: “issues of acute short-term financial risk; where [providers] cease or suspend courses without providing equivalent alternative study options; [and] where they are unable to award qualifications or credit as they had planned”. Our fingers are crossed that this does not apply to many universities, but the OfS does have 394 registered providers, all with different levels of financial wellbeing.

This morning, vice-chancellors will be receiving a letter from Susan Lapworth, director of competition and registration at the OfS, detailing the revisions to the regulatory framework and requesting that universities ensure vulnerable students’ interests are protected at this time.

The letter says that higher education providers “should make all reasonable efforts to enable students to complete their studies, for achievement to be reliably assessed, for qualifications to be awarded securely, and to enable a fair and robust admissions process for 2020-21 entrants”. Regulatory intervention is threatened for institutions that behave irresponsibly.

The rule of thumb in this crisis is Wheaton’s Law. Vice-chancellors who misbehave at this time will be remembered for their actions, just as surely as Tim Martin of Wetherspoon and Mike Ashley of Sports Direct will be remembered for theirs.

Lapworth’s missive stresses the importance of care for the most vulnerable students, including “students suffering from coronavirus or who need to self-isolate, international students, and students unable or less able to access remote learning for whatever reason, together with care leavers, those estranged from their families, and students with disabilities”.

The letter is accompanied by guidance for universities about what does and does not need to be reported to the regulator at this time.

Lapworth’s circulars are becoming quite the memorable event. This one follows her epistle of 17 March, which offered an olive branch to universities and colleges that had abandoned face-to-face teaching in defiance of Department for Education advice.

As one vice-chancellor said to Playbook recently, don’t you think it is interesting that such a letter did not come from the chair or the chief executive of the OfS? Vice-chancellors, of course, are past masters at knowing when to allow a lieutenant to deliver news of a volte-face.

Emergency powers

Lapworth’s letter goes some way to providing comfort about the implications for universities of the emergency powers contained in the Coronavirus Bill rushed through parliament yesterday. As Fiona McIntyre reports, the powers handed to the regulator by the bill are extensive.

The powers of the Coronavirus Act 2020 also apply to the devolved governments of the UK, which can similarly direct universities.

The bill allows for the temporary closure on health grounds of educational settings—including universities. It also allows the government to force an educational setting to open through a “temporary continuation direction”. Quite why that particular power would be necessary is probably best left to our readers’ imaginations.

What is certain is that these are sweeping powers, unseen in peacetime in the UK, that effectively suspend certain issues of institutional autonomy. In a sign of the scale of this crisis, education secretary Gavin Williamson said on 18 March that the government would support vice-chancellors in “making the right decisions”. A week later, an emergency enabling bill has been passed, handing power to the government to close universities or keep them open.

In her report, Fiona speaks to Smita Jamdar, head of education at the law firm Shakespeare Martineau, who says that “being required to stay open despite considering it not to be advisable based on the specific circumstances of the institution could be very challenging to the whole concept of autonomy”.

Jamdar comments that a university should have the right contractual provisions to ensure it “doesn’t get exposed to liability” while following government orders.

“Contracts with staff, students, suppliers and so on would need to be reviewed to ensure that a temporary closure order was a proper force majeure event”. Insurance policies should be reviewed “if institutions are required to continue when they don’t consider it safe” to do so, she adds.

Fiona writes: “If the government decided to prop up struggling universities, it could pay universities registered with the OfS under the ‘approved fee cap’ category (£9,250) through existing powers. But this would not apply to institutions approved to charge a maximum of £6,000 tuition fees or any not registered with the OfS.” All of which suggests that the OfS is going to need whatever extra powers come its way to prop up parts of higher education.

Force majeure is the legal defence of unforeseen circumstances that can force a contract to be broken. Lawyers up and down the land, if they are able to dodge homeschooling and get some work done, are poring over the force majeure clauses of contracts for their clients, which are about to be triggered across the economy as the Covid-19 disruption continues.

Film fans will remember the 2014 movie Force Majeure about the aftermath of an avalanche in the French Alps, famous for a scene in which a family sits at a café balcony, watching the snow accelerate down the slope. The pater familias reassures his children that everything is under control, before the veranda is engulfed and they make a panicked bolt for the exit.

Force majeure literally means superior force, whether that is an avalanche, the coronavirus or the emergency powers of the British state. Last week, vice-chancellors may have been sitting on the café balcony thinking that this situation was being carefully managed. Now, they are locked down at home after a dash to save what they could of their institution for the moment.

An Avalanche Is Coming was, of course, the title of Michael Barber’s book about the marketisation of higher education. The chair of the OfS surely did not have this situation in mind.

And finally…

Yesterday’s remote sitting of the House of Commons science and technology committee was an object lesson in how not to do videoconferencing. Chief scientific adviser Patrick Vallance, speaking via Skype from a featureless meeting room somewhere in SW1, sounded like Norman Collier and was mostly inaudible.

The most eye-catching testimony came from Imperial College London’s Neil Ferguson, a member of the Scientific Advisory Group for Emergencies. The modelling produced by his research group has generated considerable conversation during the pandemic.

In his evidence to the committee, Ferguson said that the strategy now being pursued by the government meant that, according to the Imperial modelling, intensive care unit capacity in the NHS would not be breached at a national level. If true, that is very welcome news—but it is quite the hostage to fortune.

Other forms of public health science are available. As Sophie Inge’s report on the evidence session suggests, it is to be hoped that the evidence base from other disciplines is being given as much consideration as the epidemiological models.

On Research Professional News today

UK universities must confront the “financial abyss” as they face up to the impact of the coronavirus outbreak, the vice-chancellor of the University of Exeter has said. Chris Parr and Fiona McIntyre cover this and other news from Universities UK’s International Higher Education Forum.

Fiona adds that more universities and halls of residence owners are letting students break their contracts as the coronavirus outbreak forces them to return home, but several providers are yet to decide whether students will have to pay for rooms they are not using.

Fiona also reports on the sweeping powers handed to the Office for Students by the Coronavirus Bill.

As researchers support the Covid-19 effort, they need support in return, writes Sarah Richardson.

Sophie Inge reports that the editor-in-chief of The Lancet has again blasted government scientists for ignoring evidence of a possible coronavirus pandemic in January.

Together with Rachael Pells, Sophie adds that as the Covid-19 pandemic devastates the UK economy and the government response consumes vast amounts of capital, the scientific community will need to wait to see if pledges in the budget made at the start of the crisis will be honoured.

Crises demand agility in linking research and decision-making, say Geoff Mulgan and Joanna Chataway, while Kyungmee Lee says the coronavirus has caused an academic recession.

Ben Upton brings us news that a knowledge and innovation community set to be launched by the European Institute of Innovation and Technology in 2025 should focus on “water, marine and maritime sectors and ecosystems”, and human rights groups have repeated their calls for the release of academics jailed in Iran and Egypt, as concerns grow for the health of prisoners around the world in light of the worsening Covid-19 pandemic.

An open-access tracking initiative backed by a group of universities, research libraries and other academic institutions has defended ‘transformative’ publishing agreements, saying that these deals covering subscription and open access are helping to shift academic publishing towards greater openness. Pola Lem has the story.

She adds that the Cesaer group of science and technology universities has adopted a work plan for 2020-21 that focuses on the contribution its members can make to achieving the UN Sustainable Development Goals, and that Albania and North Macedonia have come a step closer to joining the European Union after politicians in the bloc provisionally agreed to open accession negotiations with the two countries.

In the news

The BBC reports that the University of York has launched a coronavirus student fund.

ITV News says that the University of Northampton has given rooms to the NHS for staff and patients.

In The Guardian, hundreds of thousands of UK students are calling for tuition fee refunds.

The Telegraph says that students are campaigning for refunds and that a student faces an investigation after attending a party dressed as a Holocaust victim.

i News says that the University of Oxford’s coronavirus study is not conclusive and needs more data.

A coronavirus analysis in The Times pits Team Oxford against Team Imperial. The Times also reports that the Unite student housing group will take a hit on student rents, and there is a comment piece on digital learning in universities. 

Times Higher says that the coronavirus is shining a spotlight on the UK’s science advice system and that constant ‘emergency mode’ is heaping pressure on researchers. There is also a feature on the growing pains of university-industry collaborations.

The day ahead

The Office for National Statistics is publishing data on sickness absence rates among public sector workers.

University College London’s Institute of Education has cancelled its event on mapping pedagogic practices for and with international students.

The 2020 Scholars At Risk conference is now being held online today and tomorrow.

The University and College Union issues revised guidance on working from home.

UK medical authorities issue a joint statement on the deployment of final-year medical students during the Covid-19 crisis.

The Nursing and Midwifery Council issue a similar statement on nursing students.

The Institute of Student Employers publish survey results on employment during the pandemic.

Research England’s Engagement Forum has been postponed.

The Westminster parliament has now entered a period of recess for four weeks.

The Playbook would not be possible without Martyn Jones, Harriet Swain and Fiona McIntyre.

Thanks for reading. Have a great day.

You are welcome to forward this message to a colleague but setting up an automatic instruction to circulate it outside your institution would violate the terms and conditions of use. If you received the 8am Playbook via a colleague and now wish to sign up for a personal copy, please email clientservices@researchresearch.com with SUBSCRIBE 8AM PLAYBOOK in the subject line. You can unsubscribe at any time.