Higher education in Wales: preparing for a new tertiary education and research framework

The Tertiary Education and Research (Wales) Act 2022 received Royal Assent on 8 September.  The Act will provide a new framework for tertiary education in Wales including higher education, further education and other post-16 training.  The Act introduces some of the most significant changes to the regulatory regime in Wales since devolution.

The provisions of this wide-ranging Act are not fully in force yet and it is expected transitional arrangements will be put in place to assist with implementation. The Welsh Government’s intention is for the new tertiary education regulator, the Commission for Tertiary Education and Research (CTER) to be established in 2023.   An implementation timetable is awaited; whilst the Act provides a structural framework, much of the detail remains to be finalised through further regulations and consultation.  

As well as establishing CTER, the Act will see the repeal of the Higher Education (Wales) Act 2015 and the dissolution of HEFCW.  

CTER is given eleven strategic duties including matters such as encouraging participation in tertiary education and promoting equality of opportunity and research and innovation. The Act requires CTER and the Welsh Ministers to have regard to the importance of protecting the academic freedom of higher education providers and of their academic staff.  Some of the other key provisions for higher education are outlined below.

The Register

1. The Act establishes a register of Tertiary Education Providers in Wales.  The categories of registration will be specified by the Welsh Ministers.  Providers will need to satisfy conditions of registration covering matters such as quality of provision, governance, financial sustainability, supporting and promoting student and staff welfare.  Specific conditions of registration may be imposed on providers.
2. The categories of registration will include fee limit categories.  An ongoing condition of registration will require that regulated course fees do not exceed the applicable fee limit. The Welsh Government has outlined an intention to introduce two categories of registration:
   1. “higher education (core)”, requiring providers to have charitable status.  Core providers will be eligible for higher education funding from CTER, and be designated automatically for student fee and maintenance support at the higher level (currently £9,000 per year in Wales for full-time undergraduate study). 
   2. “higher education (alternative)”, with automatic designation for fee and maintenance support at the lower level (currently £6,165).
3. Registered providers within a fee limit category will be required to publish an approved fee limit statement.   It is believed that other providers will be primarily regulated through terms and conditions attached to grant funding from CTER.
4. CTER may give directions to a registered provider’s governing body where it is satisfied that the governing body has failed, or is likely to fail, to comply with an ongoing registration condition.  Directions are enforceable by injunction.  This is backed up by the power to de-register a provider in specified circumstances.

Equality and outcomes

The Act also:

1. Removes the requirement for fee and access plans to access student support, but introduces a mandatory registration condition on equal opportunity.  This requires delivery of measurable outcomes as regards participation, student retention, reducing attainment gaps and provision of support for students from underrepresented groups when finishing their course.  The Welsh Government’s intention is that the Act will introduce a more outcomes focused approach to access and participation, which is less bureaucratic and prescriptive.
2. The Welsh Ministers may require CTER to enter “outcome agreements” with entities CTER intends to provide financial resources to, setting out the activities the recipient will carry out pursuant to CTER’s strategic plan.

Quality, complaints, learner protection and engagement

The Act also includes:

1. Requirements on CTER to ensure the quality assessment of higher education in Wales. 
2. Power for CTER to request that registered providers put in place “learner protection plans” setting out arrangements to protect the interests of students should their course cease to be provided for any reason, and for supporting students wishing to transfer to another course.
3. Powers for CTER to take appropriate steps to ensure that relevant providers have procedures in place for investigating complaints and for publicising their complaints procedures.
4. The requirement for CTER to publish a “Learner Engagement Code” (LEC) concerning the involvement of students in decisions that may be of concern or interest to them.  A mandatory ongoing condition of registration will require compliance with the LEC.

Governance and research

The Act also:

1. Includes powers for the Welsh Ministers to reform certain requirements for the governing documents of Higher Education Corporations.  The Welsh Ministers intend that these powers will allow HECs similar flexibility to respond to good governance and best practice guidance as other types of higher education provider in Wales.
2. Gives CTER functions to support research and innovation – including through its strategic duties, strategic plan and powers to provide financial support to specified providers and others.  CTER will be advised by a Research and Innovation Committee.

The detailed requirements under the new regulatory regime will become clearer in further regulations and guidance from the Welsh Ministers and CTER.