Will the green paper lead to EVEL legislation?

There’s lots written already on the HE green paper and no doubt more to come. My first two-penn’orth is on the question of scope.

David Kernohan on Wonkhe points out, rightly, that the impact of the green paper will not be restricted to England. Quite apart from Sir Paul Nurse’s research review, the impact of the green paper proposals, if enacted, would be felt in universities across the UK. For example, differentials of funding, student information, and perceived status could all increase. If the rest of the world routinely understood the nuances of the UK’s nations (and that fact that England does not equate to Britain, and vice versa) this might also impact upon international issues.

A number of the proposals in the green paper would require primary legislation. HEFCE has a statutory basis in the 1992 Further and Higher Education Act, for instance, so abolishing it needs an amendment to that Act. Would any legislation be considered under the English Votes for English Laws (EVEL) procedure?

EVEL was introduced earlier this parliamentary session, and essentially gives English (and Welsh, sometimes) MPs a veto on legislation which affects only England (and Wales too, on some occasions). It was meant to answer the West Lothian question, but of course it doesn’t provide a satisfactory answer – it was hurriedly thought through to deal with politics, not governance.

It means that legislation which affects only England (or England and Wales in variant b) cannot be passed without the assent of English (and Welsh) MPs, but it doesn’t mean that legislation affecting England (and Wales) will necessarily be passed just because it has a majority of English (and Welsh, sometimes) votes. Any bill still needs to be passed by Parliament as a whole, and as the UK government is finding out at the moment in relation to Sunday trading, that isn’t a given.

The green paper has mixed messages here. Firstly, and one would think unambiguously,

46. Higher education is a devolved matter in Scotland, Wales and Northern Ireland so most of the proposals in this document apply to England only. However, the funding delivered through the Research Councils and some broader elements of research policy are reserved matters, so the proposals in Part D have UK-wide applicability. (pp16-17)

But then consider later on, in relation to TEF:

16. Our intention is that the TEF develops over time to be comprehensive and open to all HE providers in England, including alternative providers and further education colleges delivering HE provision. As part of this consultation, we are also discussing with Devolved Administrations, whether and how they would like to be involved in the TEF. (p21)

Let’s be blunt – they won’t really have a choice. Universities in Wales, Scotland and Northern Ireland are operating in the same environment as those in England – students are making choices between them, research funders are comparing them. It is in their interest to be in an environment which broadly mirrors that in England.

Devolved administrations will know this, and whilst in Scotland there is an attempt to follow a different path, Wales and Northern Ireland have adopted policies which recognise the connection with the English environment. Sometimes the devolved administration has done it better than England. Despite some worries about close scrutiny, for example, Wales has a simpler approach to access than England, with HEFCW signing off fee plans (the equivalent of access agreements) as a condition of funding.  The link between higher fees and the public interest, which is what OfFA was set up to ensure, is (pleasingly) clearer and easier across Offa’s dyke.

More significantly, perhaps, is that even though HE is a devolved matter, it isn’t a fragmented system in the eyes of staff and students. Cross border flows of both are real, ideas and practices are shared. I’d hope that when it comes to primary legislation, the bill isn’t regarded as EVEL.

Which isn’t to say that it won’t be evil – there’s lots to argue about in the green paper - but please, Mr Speaker, let’s make it an inclusive debate.