Why the new higher education bill is not the solution for improving the state of legal education

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By Polly Botsford on

Will the negative consequences outweigh its good intentions?


There is a torpedo-like public bill making its stealthy way through the House of Commons right now: it’s called the Higher Education and Research Bill.

But the Bill is intended to raise standards and make universities more accountable. So what’s wrong with that? As Alex Aldridge has argued on Legal Cheek, there are reasons to be concerned about the state of legal education, about law schools as cash cows and poor teaching standards.

So isn’t this Bill a good thing? May be; the risk is that unintended (and negative) consequences will outweigh the good intentions.

If we look at teaching standards, the Government proposes to introduce the Teaching Excellence Framework (TEF), a system whereby metrics are used to assess the quality of providers’ teaching provision; only those universities ranking highest on the TEF will be able to raise tuition fees.

But these are the metrics: first, student satisfaction (through the national student survey), second, student drop-out rates and third, the employment rates for graduates in the first six months. Just one look at those metrics and one can see huge problems with them.

When you look at student satisfaction, it is, clearly, a very good idea to understand the student experience and to give students a louder voice. But you may also find that lecturers ‘play to the gallery’ to gain popularity rather than do a good job of teaching.

And consider timing. If a student were asked about their course just a few days after finishing it compared with, say, a few years later, would their answer be the same? Many junior lawyers may well reflect that an unpopular, demanding tutor taught them more in the long run than their more popular chilled-out counterparts.

Or take the employability point. Whether or not you get a job six months after graduating may have nothing to do with the standards of teaching you have just experienced. One of the biggest influences on your employability will be the health of the job market which you choose to go into.

The TEF will, in the words of one commentator, lead to: “the tyranny of metrics”, that universities and teaching staff will become obsessed with these indicators – and that ‘managing’ them will become a full-time occupation (just look at the ‘management’ of stats on train punctuality or hospital waiting-times).

Mike Boxall is an expert on higher education at PA Consulting Group and has analysed the Bill in great detail. His conclusion is damning:

Judging teaching quality on simplistic metrics will produce a reductionist and commoditising approach to teaching, when what is needed is more imaginative, innovative and relevant teaching.

Let’s take another of the Bill’s proposals. The Government wants to “deliver greater competition and choice” for students by reducing red tape and making it easier for new entrants to the higher education market. But it appears that we have all forgotten the debacle that market liberalisation like this produced just a few years ago.

In 2010, the Government at the time made changes designed also to encourage new entrants into the market: private colleges were to be allowed to take on students with Government loans in order to increase the choice of qualifications and flexible study. The number of providers expanded massively: within three years, the number of students claiming support for courses at alternative providers rose from 7,000 to an astounding 53,000.

By 2015, it was clear, however, that there had been a massive abuse of public money. There were scandals of EU and other international students getting student loans through these colleges who were not eligible for them (equating to wasted public money of £3.84m). The Public Accounts Committee’s report at the time reads:

Whistleblowers told us that some institutions admitted students with unacceptably low fluency in English who were therefore not equipped to pursue qualifications for which they had enrolled …

One wonders what these students would have put down in a student satisfaction survey.

The Government would argue that the drafters of this new Bill have learnt lessons from this particularly depressing cock-up. It envisages cool brands like Google or well-established private providers like BPP or Pearson expanding into the undergraduate market but experts say that there is no guarantee that these are the new entrants you’ll get.

Private providers are also more likely to cherry-pick what they teach and will be far more commercially focused. It could be that they don’t even bother to teach the non-commercial modules — or to put it in headline-speak: ‘for-profit providers may not turn out to be particularly interested in human rights law’.

This is a real concern for students whose interests are not primarily where the money is and who already feel marginalised by their university careers offices because they are not gunning for the magic circle. Universities absolutely do need to adapt to a new era of student-as-consumer; tuition fees changed the relationship between institutions and undergrads forever.

But surely Brexit has taught us one thing: that the law of unintended consequences is probably the most important law of all.