Skip to main contentCambridge University Reporter

No 6226

Thursday 26 May 2011

Vol cxli No 30

pp. 813–874

Report of Discussion

Tuesday, 17 May 2011

A Discussion was held in the Senate-House. Pro-Vice-Chancellor Dr Jennifer Barnes was presiding, with the Registrary’s Deputy, the Senior Proctor, a Pro-Proctor, and seventeen other persons present.

The following Reports were discussed:

Report of the Council, dated 18 April 2011, on undergraduate UK/EU fees, funding, and student finance (Reporter, 2010–11, p. 698).

Professor G. R. Evans (Emeritus Professor of Medieval Theology and Intellectual History):

Madam Deputy Vice-Chancellor, that pile of Graces lies before a slightly bewildered world because of what looks very like a ‘political’ misjudgement in the Old Schools. ‘What is going on in Cambridge?’ they are asking at BIS, shaking their heads and resolving that all this autonomy has to stop. ‘They are clearly not fit to run their own show.’ (I think we may be confident that a sense of irony will not prevent their minds running in this direction.)

Who in the Old Schools seriously thought so egregious an attempt to prevent the Regent House from exercising its right to amend legislation would be taken lying down? A stand-off with the University’s democracy has resulted. Senior Management Team, it is better to avoid this sort of thing. It does not look good.

I would hesitate to describe this as an instance of that managerial heavy-handedness so alien to Cambridge, any tendency to which is rightly jumped on by a Regent House roused like a tiger from its slumbers. But surely equally important has been the distraction of energies from the need to stand up to Government and make it do its research and define its terms and think before it speaks, and not make proposals requiring a U-turn within hours like the one about letting the rich buy ‘extra’ places. Oxford had a two-and-a-half-hour Discussion on 10 May, to be published in the Gazette on 19 May, in which speakers had a good deal to say to Government. And a Resolution of No Confidence is now to be proposed: ‘Congregation instructs Council to communicate to Government that the University of Oxford has no confidence in the policies of the Minister for Higher Education’.

Statute K, 5 was invoked when the amendments were thrown back in the faces of those members of the Regent House who had signed them, and the Vice-Chancellor appointed the Rouse Ball Professor of English Law as his deputy to consider the representation.

I have Professor Feldman’s permission to quote from his carefully considered judgement of 25 April. His proposed clarification of the meaning of the regulation under which the Vice-Chancellor may rule amendments inadmissible should, I suggest, be referred to the group currently considering the revision of the Statutes and Ordinances. The topic should also become the subject of an urgent Report to the Regent House. Unclarity must be not be allowed to continue about this important freedom of the University’s governing body to seek to amend proposed legislation without the attempt being barred by executive action of a Vice-Chancellor who, in Cambridge, is not a Chief Executive. Professor Feldman says:

There remains the suggestion that I might myself clarify the meaning of Regulation 11(a) . . .and this may be thought a useful starting point in future cases, although of course it is not binding in any way.

He suggests that:

the “main purpose” of a Grace [should be] established in a practical, commonsense way, taking account of the text of the Grace, the reasons for presenting it, the intentions of its proponents so far as they can be discovered, the likely use to which it will be put by those who would have to implement it if it is approved, and any published documentation relating to it, and without resorting to technicalities.

And he recognizes that there may well be different views of the purpose of a Grace.

There is much more on which members of the Regent House will wish to reflect and I hope the full text will be published in the Reporter so that they may do so.


Some of the Graces in the pile awaiting attention, the present Report reminds us: ‘require expenditure from University funds additional to that already authorized’. Money will be a particular focus of this term’s Discussions:

The Council has also been kept informed of progress with the planning round for 2011/12 and will consider and approve an Allocations Report for publication in the usual way at its meeting on 16 May.

As I imagine it already has.

I hope everyone will keep an eye on this Report and all published statements about the University’s finances, read them when they are published, and speak to that Report in Discussion – which will presumably be timetabled two weeks from now – with reference to student funding questions. There is in addition, for your file, the Notice in response to the Discussions on the Annual Reports of Council and General Board just published.1

The Allocations Report may raise some points of relevance to the arguments presented in the present Report, those which seek to counter postings by Bruce Beckles and others on the web forum provided by the Council at an earlier stage of Cambridge’s debate about the setting of its future tuition fees. As a non-mathematician, and someone who has always found financial statements difficult to understand, I have nevertheless had a strong sense that there was and is something to question in the assurances we were and continue to be given.

One matter any fool can find concerning is the admission that the huge high-profile Anniversary fund-raising drive, and of course the continuing work of the Development Office, has not been aimed at raising money for ‘discretionary or general recurrent expenditure; much of it was to endow posts in perpetuity or for capital purposes’.

Regulation 12 of the regulations for Composition Fees

The present Report invites speakers to comment on Regulation 12. This was designed to simplify the process of approving sequential inflation-related additions to the tuition fee as set under earlier legislation. It was a device for its time, and enacted in response to legislation which is being replaced. It needs a rethink now. This would be so in any case, but it certainly needs it after the way it was used in the unedifying offer of Hobson’s choice to the Regent House in its vote last term. The regulation was transformed from a practical convenience to a bargaining counter and a lever, giving the Regent House no alternative but to agree to a policy proposed by the Council.

Mr M. B. Beckles (University Computing Service) (read by Dr J. E. Scott-Warren):

Deputy Vice-Chancellor, I am one of the proposers of three of the Graces considered by this Report. In addition, several of the paragraphs of this Report are responses to remarks I made in a previous Discussion. The main purpose of this Report seems to be two-fold: (1) to re-assure Regents that the financial landscape depicted by the Council is not, as it might appear to some, a rather tawdry work of fiction; and (2) to persuade Regents that the Graces submitted by over a hundred of them are too confusing to allow the rest of the Regent House to vote on them without further direction from the Council.

In regard to (2) I observe that we are an institution blessed with an unusually high number of Nobel Laureates, Fellows of the Royal Society, Fellows of the British Academy, and members of other august bodies, all generally held to be really rather clever individuals. It is therefore somewhat patronizing of the Council to suggest that allowing these Graces to be put to the Regent House will be ‘unhelpful to the Regent House’.1 I only have a B.A. in Mathematics, and am not a member of any learned society, but I find myself perfectly able to comprehend the proposed Graces and come to a coherent position on them without further ‘advice’ from the Council. I’m sure other Regents can do the same.

However, since this Report was published, I believe that it has been decided that all these Graces should now be put to the Regent House, which, whilst certainly welcome, should have happened much sooner. I can see no good reason for the delay thus far and hope that these Graces will now be put as soon as possible, as at least one of them is time-critical. (It may be worth noting that my understanding is that the Graces will be put along with an additional Grace proposed by the Council. This is somewhat ironic given the Council’s belief, expressed in this Report, that putting several Graces ‘in relation to the same subject matter . . . will be unhelpful to the Regent House and will not produce the best legislative result’.2)

Moving on, I note that paragraph 8 of this Report contains a rather long-winded reply to a question I asked in the Discussion of 8 March 2011.3 My question was whether members of the Council had a copy of the online comments – or a detailed summary of these comments – on proposals for setting the undergraduate fee prior to the meeting at which said proposals were considered by the Council. Since clarification for Regents seems to be the order of the day, let me clarify this answer: stripped of excuses, it reads ‘no, they didn’t’. So much for that particular ‘consultation’ with the rest of the University.

Turning now to the further financial and other contextual information revealed by this Report (paragraphs 9–13), I note that, alas, the information is of a quality consistent with that previously provided. Some of it is irrelevant, and some may well be misleading (particularly since Regents apparently can’t make decisions without appropriate ‘advice’). In paragraph 9 we are now told that the funding projection being used for how much we would have received under the old funding regime is, in part, based on an assumption of ‘a small annual increase in student numbers’. This is remarkable for two reasons.

Firstly, even under the old funding regime we were apparently making a significant loss per student (almost 50%).4 So increasing student numbers would only increase the absolute magnitude of that loss, making it even more difficult to balance our books. That’s hard to reconcile with the ruthless, fiscally responsible approach the Council has alleged we must adopt in these challenging times.

Secondly, the second report of the Planning and Resources Committee’s Working Group on Fees, Bursaries, and Widening Participation, on which the University was invited5 to make the comments I referred to earlier, implicitly assumed that Home/EU undergraduate numbers remained constant at around 11,000. Furthermore, the projection of the old funding regime used in that report and in the Council’s Notice of 23 February 2011 is of ‘funding as it would have been if the series of recent cuts had not occurred and the funding regime introduced in 2006 had continued simply tracking inflation’.6 No mention of increased student numbers there. Perhaps it is true, to horribly misquote Emerson, that ‘consistency is the hobgoblin of fiscally responsible minds’.

Paragraph 9 continues with what, if this sorry saga was a reality television series, could only be described as an instance of ‘jumping the shark’,7 informing us that ‘despite cash increases in T Grant funding, the University’s share of the sector total has been steadily falling, from 1.47% in 2005/06 to 1.28% in 2010/11’. The relevance of this eludes me, particularly since over this period the sector as a whole has grown by about 6% or more (in terms of Home/EU undergraduate numbers)8 whilst Home/EU undergraduate numbers in Cambridge have stayed roughly constant.9

(Just in case any of those easily misled Regents the Council worries about are listening, what this means is that during this period the size of the Home/EU undergraduate sector has increased but the number of students we educate hasn’t; consequently one would expect our share of the sector’s total income from HEFCE to decrease. Which it has. One can only imagine that, in a desperate attempt to find some metric by which they could claim the University was hard done by, the Council have started to quote any figures, however irrelevant, which show some sort of decrease.)

I could continue to debunk the remaining paragraphs of this section of the Report, but I find myself rapidly losing the will to live. I’ll therefore restrict myself to addressing only two further failings of this section.

In paragraph 12 we are told that ‘very little of [the £1bn raised through the 800th Anniversary Campaign] was for discretionary or general recurrent expenditure; much of it was to endow posts in perpetuity or for capital purposes’. Firstly, a portion of the alleged cost of educating an undergraduate are capital costs,10 so these unspecified ‘capital purposes’ may well be relevant to meeting those costs. Secondly, the average annual amount given in ‘unrestricted donations’ for the financial years from 2006–07 to 2009–10 was £11.7 million.11 This is a small portion of £1bn, but a vastly significant amount where undergraduate education is concerned, if the Council is correct that ‘£1m on general income for educational purposes, on the other hand, is substantial’ (para. 12 again).

Thirdly, in the Cambridge 800th Anniversary Campaign Report 2009–2010,12 we are proudly told that ‘gifts, large and small, . . . are making a difference . . . increasing the number and level of bursaries and scholarships available to students; enhancing initiatives to encourage applicants regardless of their financial circumstances’ (page 3). That’s great news, but slightly hard to reconcile with the claim that so little of the money raised is available for undergraduate education, given that the cost of that education frequently includes the cost of ‘student support’ (e.g. bursaries).13 Clearly we are not being given the whole story.

Finally in this section, in paragraph 13 the Council claim that the cost of charging a cohort of 3,000 students £6,000 rather than £9,000 per annum is an ‘opportunity cost’ of about £8m (per year) ‘when bursary costs are taken into account’. Leaving aside this rather odd use of the term ‘opportunity cost’, this would only be true if we were to either somehow gain an extra £2m by charging the maximum fee (which is clearly not the case) or if we would have to spend an extra £2m if we charged the lower amount. That doesn’t appear to be true either. The only explanation for this I can come up with is that the cost of bursaries has been double-counted. If the amount spent on bursaries is unaffected by the level of fee we charge then it will cost us a fixed amount. Charging a fee of £9,000 rather than £6,000 indisputably means we will have an extra £6m in income. We can certainly use that income to pay for bursaries – and so will not have to meet that particular cost from elsewhere – but we could equally well use it to pay our lecturers’ salaries. The Council could, with equal justification, claim that the ‘opportunity cost’ of charging the lower amount is the entirety of the portion of the salaries budget attributable to undergraduate teaching.

Furthermore, simply because we charge students £6,000 in 2012/13 doesn’t mean we have to continue doing so for the rest of their undergraduate career (as the Council erroneously suggest I implied). Now, on hearing such a suggestion, one’s immediate response might be that it is unfair to significantly increase the fee from one year to the next. If you believe this, then you should be absolutely outraged about the Access Agreement we’ve submitted to OFFA. Paragraph 3 of the Report under Discussion blithely informs us that ‘£6,000 fee waivers will be offered to first-year students only’. This means that for those students who receive such waivers, their fee will increase by £6,000 (plus inflation) in their second year. But surely, I hear you cry, it would only be reasonable to impose such a large fee increase on students from the richest backgrounds? Fairness is, alas, too costly in these financially difficult times, and it is precisely those from ‘particularly disadvantaged backgrounds’14 who will have to shoulder a £6,000 fee increase in their second year.

I’d like to close with two pleas. Another Regent and I submitted representations under Statute K, 5(a) representing that the Vice-Chancellor was wrong to rule inadmissible the amendments proposed by ourselves and others to last term’s Grace on fees.15 I hope the judgement that resulted from these representations will be published in due course (although I understand that it has already been circulated amongst the Council). One of the hopes expressed in the judgement was that the Council would, of its own accord, without the need for a further Grace, publish ‘a detailed Report’ that ‘demonstrates the financial need for a fee level of £9,000’ and ‘that makes clear all assumptions made and provides all relevant data (including the data on which any graphs are based)’16 in the very near future. So, my first plea: please will the Council fulfil this hope? This makes at least the third time they’ve been asked to do this.

And my final plea: the current pattern of providing inadequate information, the information being shown to be inadequate by speakers at a Discussion, and the Council then providing further inadequate information, repeat ad nauseam, is neither a productive use of the Council’s time nor of Regents’. If the Council would treat us like fellow academics – and conduct themselves as befits those engaged in academic discourse – rather than as an electorate of ignorant peasants who have to be cajoled and misled into voting the way we ought, then the current adversarial pattern of interaction between the Council and the Regent House could cease. Until then, I remind the Council of the Royal Society’s motto: ‘Nullius in verba’.


Mr O. J. Holland (graduate student at St Catharine’s College) (read by Dr J. E. Scott-Warren):

It is heartening to see that such a significant minority of Regents voted against the proposals to raise tuition fees in the recent Grace. The problem with lines in the sand is that they are ephemeral and easily scuffed over. For now, it seems, we are compelled to remain in the desert: for those who voted for the proposals, as much as for those who voted against, the lone and level sands stretch far away. But if there are Regents amongst the minority who are serious about their discontent, and are equally serious about achieving the goal of free higher education for all, might I urge upon them the necessity of organization and continuing patience in explanation?

I noted, with interest, the Council’s response to remarks I made during the previous Discussion on 8 March where the Council claims that ‘[i]t fully understands’ my concern about ‘the dangers of higher education being viewed by Government solely as a commodity’ – not a word which I recall using, but so it goes.1 The Council goes further and states that it has ‘no doubt that these concerns will be shared by many in the University and on the Council’. Metaphysical subtleties and theological niceties aside, I find it odd that the Council then proceeds to rationalize its pragmatism of despair with reference to the University’s position in a competitively cut-and-thrust market place, describing its ‘core mission’ as being to ‘propose a way forward . . . that will – in its opinion – best protect the University’s ability to fulfil its purposes and compete at the highest levels of international excellence in teaching and research.’ Who defines these purposes? For whom? And how are they defined? I accept that the women and men of the Council are obliged to make decisions in circumstances not of their own choosing, but have they considered whether a situation of coerced competition might, in fact, be actively detrimental to the pursuit of ‘excellence in teaching and research’?

If there is some truth in the Council’s profession of a residually social democratic commitment to the idea of higher education as a social good, and the importance of defending this idea during a fresh neo-liberal assault, might I ask that the Council be more forthcoming, transparent, and public about the position it takes when lobbying the Government? Indeed, such transparency might then enable all those concerned to have a full and frank discussion about strategy and tactics. Failing that, might I encourage the Council to consider making reference to the following words from Timon of Athens in its next round of communications with the Government?

                                       Thou cold sciatica

Cripple our senators, that their limbs may halt

As lamely as their manners. Lust and liberty

Creep in the minds and marrows of our youth,

That ‘gainst the stream of virtue they may strive,

And drown themselves in riot! Itches, blains,

Sow all the Athenian bosoms; and their crop

Be general leprosy! Breath infect breath,

That their society, as their friendship, may

Be merely poison!

(Timon of Athens, Act 4, Scene 1)

Dr J. E. Scott-Warren (Senior Lecturer in the Faculty of English and a Fellow of Gonville and Caius College):

Madam Deputy Vice-Chancellor, I would like to take this opportunity to congratulate the University Administration in the successful forcing-through of their proposals with regard to the fee level and the access agreement for submission to OFFA by the deadline of 19 April. It was a stroke of genius to ask the Regent House to ‘[confirm] by Grace, through a ballot, that it supports the Council’s intention to submit an Access Agreement to the Director of Fair Access to Higher Education for approval in order that the provision of Regulation 12 of the regulations on University Composition Fees comes into effect so that the higher amount of £9,000 can be charged’.1 This magnificently nebulous formulation left it completely unclear what the Grace was centrally about, and what exactly it would mean for the Regent House not to support it. Set against this fog of words was the absolute clarity of the voting papers, the bulk of the flysheets, and the email messages that were sent to members of several Departments and Faculties, all of which suggested that a ‘non placet’ vote would mean that no Access Agreement could be submitted to OFFA, and that the result would be financial disaster. So Regents were offered a choice which was, effectively, no choice, and which (even had the non placets carried the day) would not have done anything to alter the regulation that stipulates that Cambridge must charge the higher fee. While the government endlessly defers the publication of its White Paper on Higher Education, we jump to it.

Then there was the decision to announce the details of the financial package available to future students at the Council’s meeting of 14 March 2011, some weeks after the Council’s Grace had been announced.2 This made the framing of amendments to the Grace almost impossible, and paved the way for the Vice-Chancellor’s extraordinary exercise of his power to rule the various amendments inadmissible. Again, it seems that the key aim of the University Administration was the stifling of any input from the Regent House; there could be no attempt to palliate the highly controversial package of measures which was on the table. The result of this was much anger, and the submission of the array of Graces which are discussed in the final section of the Council’s Report of 28 April. I hope that these Graces will be allowed to proceed to a ballot as soon as possible, and that the University Administration will see this as an opportunity to restore some of the trust that they have forfeited in recent months. That is to say, I hope that they will not editorialize on the ballot paper; that they will not issue instructions to Regents via their Faculties and Departments, instructing them to vote in a particular way; that they will not attempt to stifle any proposed amendments; in short, that they will make this an opportunity for some element of choice and consultation to re-enter our proceedings.

I want to end by quoting Dr Sally Mapstone, Pro-Vice-Chancellor for Education in the University of Oxford, who reported at the Congregation of 10 May 2011 that ‘in a series of public statements, the University has reiterated its deep concern about the government’s reductions in direct public investment in teaching at universities and the transfer of so much of that funding mechanism to the student loan book’.3 I continue to be ashamed to be a member of a University that has made no comparable statements about the recent cuts to higher education funding.

Dr B. Burchell (University Senior Lecturer in the Department of Sociology, and Fellow of Magdalene College):

Deputy Vice-Chancellor, I am concerned about the lack of evidence-based discussion on the mechanisms that will be used to reach our OFFA target of 61–63% intake of UK resident undergraduate students coming from state schools.

Between 2003 and 2008 this percentage was remarkably consistent at around 57%, give or take small fractions, despite a considerable effort being put into outreach work by the Colleges and the University. In 2009 and 2010 this figure limped up to around 59%. This represents an increase of approximately two percentage points in seven years, about a third of one per cent per year. Even in order to hit the bottom end of the target range (61%) by 2016, this rate of increase needs to be maintained, and in order to hit our intermediate milestones on our OFFA document, this needs to be considerably enhanced.

It is far from obvious to me how this will be achieved. There is widespread concern that the new fee regime, post-Browne, will be a disincentive for higher education, particularly from those families with average or below average incomes, going to state schools. Meanwhile, our ‘competition’ (the other Russell Group universities) will be trying harder to attract state school pupils away from Cambridge. And, under the current government, it is unlikely that there will be an increase in the quality of state school teaching that would help us to achieve our targets. So, we’ll be swimming against the tide; if we were to do little more than ‘business as usual’, as in the last few years, it is likely that we would see a significant decrease in this crucial figure.

The Graces calling for a substantial increase in spending on outreach work, although proposed last term, have not been submitted to the Regent House. The Access Agreement proposed to OFFA does not appear to allocate a significant increase in spending on outreach activities. Nevertheless, I am pleased that there will be further opportunities to discuss the expenditure on outreach this term. I hope that the University’s proposed budget for outreach work is based on realistic plans, and not simply optimism. I have looked carefully at the evidence on how to widen participation in higher education coming from both OFFA and from the University, and I must say, I find the whole thing very unconvincing. Rather than a clear strategy to achieve our target, I see little more than some anecdotes based on things that may have worked in the past, but we can’t really tell because the data and research methods were inadequate. Even if we are able to achieve this target (that has never been achieved before) it is not at all clear to me how this will be achieved without additional spending on outreach work.

Perhaps I’ve missed something, and the University and Colleges do have a cunning plan that will solve our admissions problems. If so, why wasn’t it deployed in the years 2003 to 2008, when all of the attempts to open access to the University showed no results whatsoever? If there is a detailed, evidence-based plan making it clear why and how this can be achieved, I hope that it will be revealed before these Graces are put to Regent House.

I therefore ask Council, if they do happen to recommend a Grace that involves spending on outreach work being maintained only at current levels, then this needs to be based on a detailed document as to how the promised increase in state-school admissions will be achieved within the proposed outreach budget, and that this case be communicated clearly and with detail to Regent House.

Consultation on options following the abolition of the default retirement age: a joint consultative paper, dated 3 May 2011 (Reporter, 2010–11, p. 723).

Professor M. H. Kramer (Professor of Legal and Political Philosophy and Fellow of Churchill College):

Although I attended the 10 May open meeting on the elimination of any mandatory retirement age, and although I have written to the Working Group to present my full response to their consultation document that has been published in the Reporter, I am appearing here as well because I strongly dissent from most of the views expressed in that consultation document. If the University responds to the new law in the manner envisaged in that document, it will certainly face litigation, and it will almost certainly lose in the litigation.

I will not seek to reply to every assertion in the consultation document, but I will reply to several of those assertions.

(1) My opening several observations will focus on the data concerning the United States in paragraph 7 of the consultation document. However, let me begin by remarking that the article from the journal Nature Chemical Biology, which is cited as if it were condemnatory of the elimination of the retirement age in the USA, is in fact enthusiastically and unequivocally supportive of that elimination:

The arguments in favor of abolishing mandatory retirement restrictions for university faculty are compelling. First, discrimination on the basis of age is an untenable position. Second, from a more practical perspective, many professors are productive educators and researchers well beyond traditional retirement ages. These senior scientists [and humanities people] bring experiences and knowledge that can make them inspiring teachers and mentors for students and postdoctoral researchers.

Established faculty members understand academic institutions and disciplinary cultures and thus may serve as invaluable resources to colleagues, particularly junior faculty. Finally, given their expansive knowledge built through years of learning and research, many senior professors are uniquely positioned to make continued advances at the frontiers of science.

(2) The references to Harvard in the Working Group’s consultation document are highly misleading, since Harvard is as much of an outlying institution on this matter as on the matter of its endowment. At Harvard and Columbia, the proportion of faculty members who remain in their positions past the age of 70 (the formerly mandatory retirement age) is approximately 10%. However, across the American university sector as a whole – including the other elite American universities – the proportion is slightly under 2%. In the Cambridge Law Faculty, that proportion would amount to one person at any given time. Quite risible is the notion that younger scholars’ opportunities would be curtailed to any appreciable degree by such a rate of retention of older scholars.

(3) Especially misleading is the consultation document’s suggestion that the dearth of younger tenure-track and tenured faculty members at Harvard (and elsewhere in the USA) is due to the elimination of the mandatory retirement age. That dearth is due almost entirely instead to two factors that are unrelated to the elimination of the mandatory retirement age.

First, the use of adjunct faculty positions as alternatives to tenure-track positions for younger scholars has been a hugely growing phenomenon in the USA for the past three decades. It is a straightforward cost-cutting measure, rather than something to which the universities have resorted because of the elimination of the mandatory retirement age. (Its inception, or acceleration, began about two decades, or at least a decade-and-a-half, before the elimination of the mandatory retirement age.) Second, the process of obtaining a Ph.D. in the USA – which has always been much lengthier than the corresponding process in this country – has become more and more protracted as cutbacks in funding have obliged doctoral students to take on ever greater burdens of teaching to fund their studies and to support themselves. The trend toward the elongation of the process of obtaining a Ph.D. in the USA is longstanding. It was under way in the late 1970s, and it has continued ever since. (A third factor behind the dearth of younger tenure-track and tenured scholars is applicable to professional schools in the USA, in fields such as law and medicine, and business and dentistry. Entry into the tenure-track ranks of the aforementioned schools by people below their mid-30s is rare, because those who teach in such schools are expected to have extensive professional experience – considerably greater professional experience than would typically be expected in the UK, where the students studying these subjects are undergraduates rather than postgraduates as in the USA.)

(4) Before I move on, I’ll briefly summarize the gist of what has been said so far. All the Working Group’s concerns derive from an underlying assumption that a large proportion of elderly academics will choose to work for quite some time past the age at which they would previously have been required to retire. The data in paragraph 7, concerning the United States, are the only support offered for that underlying assumption in the consultation document. Those data do not withstand scrutiny.

(5) Let me now move to the matter of performance management. I believe that the Working Group have greatly overstated the onerousness of a proper system of performance management. After all, we’re not talking about the fine-grained judgements that have to be reached on applications for promotions and the like. Rather, we’re talking about relatively coarse-grained judgements about each academic’s competence to perform his or her job capably. For those coarse-grained judgements, the two main techniques of performance management already in place are perfectly satisfactory. One of those techniques is the monitoring of each academic’s research in connection with the Research Excellence Framework (formerly the Research Assessment Exercise). We have to undertake that monitoring in any event, and it is more than sufficient for the purpose of gauging each academic’s competence as a researcher. The second already-existent technique of performance management is the use of course-evaluation questionnaires to monitor the satisfaction of students with their lectures. Such questionnaires are an imperfect tool, of course, but they are central to performance management in American universities, and they are perfectly satisfactory for enabling us to reach coarse-grained judgements about academics’ competence. Some faculties may have to take the questionnaires a bit more seriously than they have been taken heretofore, but in my view such a change will be clearly salutary in its own right. At any rate, the general point here is that the performance management required for gauging the competence of academics of all ages is already largely in place in the sundry faculties.

(6) To be sure, some academics will continue to work past the retirement age, and a few of them might not be competent to carry on (either because they never were competent or because they have become incompetent). Can an Employer Justified Retirement Age, recommended by the Working Group, be a suitable and lawful means of avoiding such unpleasantness? For several reasons, the correct answer to this question is negative.

(a) First, an affirmative answer to the question would largely undermine the purpose of the new law. As the government emphasized in its January 2011 response to consultation, ‘the Government does not agree that [a retirement age] should be used as an alternative to fair and consistent performance management’ (p. 9). Given that clear expression of the government’s purpose, it is highly unlikely that any court would uphold the Employer Justified Retirement Age on the basis recommended by the Working Group.

(b) Second, the reliance of the Working Group on the Seldon case – both in the consultation document and at the 10 May open meeting – is very dubious for several reasons.

(i) The ‘collegiality’ element of the Court of Appeal judgment in the Seldon case is very widely regarded by UK labour lawyers as extremely feeble. We’ll see whether the Supreme Court, in the appeal currently being heard, upholds the Court of Appeal’s completely unargued assertion that ‘there is a very great difference between employees or partners who are under-performing but not by reason of age, and employees or partners who are doing their best but it is no longer good enough because old age has caught up on them’.

(ii) A more obvious point is that the Seldon case is being decided under the 2006 regulations rather than under the new law. Thus, even in the unlikely event that the collegiality element of the Seldon judgment is upheld by the Supreme Court, the Working Group cannot safely assume that that element will be transferable to cases governed by the new law. As I’ve already indicated, such a transfer from the 2006 context to the new context would largely undermine the purpose of the new law.

(iii) Even in the unlikely event that the collegiality element of the Seldon judgment is upheld by the Supreme Court, and even in the more unlikely event that that element of the judgment is subsequently deemed to be applicable to cases governed by the new law, there is a ‘very great difference’ (to use the Court of Appeal’s language) between a private organization such as a law firm and a public body such as Cambridge University. Quite outrageous is the proposition that we should not have a proper system of performance management for academics of all ages in the University. Large quantities of public funds are being expended on these people. If the University responds to litigation by arguing that it needs to have an Employer Justified Retirement Age in order to avoid proper performance management for its expenditures of those public funds, it deserves to be laughed out of court – especially since an appropriate system of performance management is not repressive or onerous, as I have already remarked.

(7) The invocation of considerations of academic freedom by the Working Group in paragraphs 15 and 16 of the consultation document is a red herring. Any proper system of performance management for gauging the competence of academics – through the techniques already mentioned and indeed already in place – will not be penalizing anyone for engaging in controversial research or for espousing unpopular positions.

(8) In paragraph 6 of the consultation document, the Working Group express concern about ‘an increased risk of litigation over dismissals or other action taken under [performance-management procedures].’ A proper system of performance management should not leave the University vulnerable to any meritorious litigation. In any event, any risk of litigation engendered by the outright elimination of the mandatory retirement age is more than offset by the risk of litigation that would be engendered by the procedures envisaged in paragraph 22 of the consultation document. Either the requests envisaged in that paragraph will be granted perfunctorily, or they will not be. If the Working Group anticipate that the requests will be granted routinely, then the rationale for a mandatory retirement age is undermined. Contrariwise, if the Working Group anticipate that a significant proportion of such requests will not be accepted, there is a manifest risk of litigation. Thus, the Working Party’s expressed worry about litigation does not tell in favour of its own preferred way of proceeding.

(9) Despite what I have just said about paragraph 22 of the consultation document, that paragraph does at least fleetingly mention ‘the possibility of part-time working agreements’. Flexible arrangements for academics toward the end of their careers have been in place for many years in American universities. Some of those arrangements are mentioned in the penultimate paragraph of the Nature Chemical Biology article that has been cited by the Working Group. Those arrangements are entirely consistent with the outright elimination of any mandatory retirement age. (As I’ve already noted, the aforementioned Nature Chemical Biology article is unequivocally supportive of the elimination of a mandatory retirement age.) Instead of concentrating on trying to justify the retention of a mandatory retirement age, the members of the Working Group would have been well advised to concentrate on developing the sorts of arrangements that are mentioned in the Nature Chemical Biology article.

Professor G. R. Evans (Emeritus Professor of Medieval Theology and Intellectual History):

Madam Deputy Vice-Chancellor, in 1988, under the Education Reform Act, academics entering into new contracts on appointment or promotion lost tenure, being left only with the protection offered by Statute U and its Model Statute counterparts in the other universities then existing. Now, there is a threat that their academic and academic-related fingers may be prized off the cliff edge where they continue to cling – by ‘performance management’. You yourself could be dismissed, humiliatingly and certainly contentiously, on ‘capability’ grounds (‘health or performance’):

The University could put in place enhanced performance management procedures to make up for the loss of power to bring employment to an end through retirement.

Worse, everyone would face the possibility of being ejected on such grounds, since to confine these processes to older academics would be discriminatory and therefore unlawful: ‘In effect, this could mean putting in place a system of regular, career-long performance reviews.’ It is admitted that that could be costly in litigation (for academics as well as the University) and would be hard to reconcile with academic freedom, with ‘individual academics having the security to carry out research which may be controversial or unpopular without fear of sanction or recrimination.’

This means they are putting the choice thus: freedom, relative security, and an agreed retirement age; or the opportunity to choose when you go, and in effect an end to academic freedom and the worry of being ‘reviewed’ so that you may find yourself out on your ear at any time; and with respect to the previous speaker, I think he is much too sanguine about what that really means.

Brian Leftow, in the Oxford Magazine of Second Week, Trinity Term, offers an illuminating analysis of the US experience with retirement arrangements for ‘Faculty’ to set beside the remarks we have just heard. He warns the Magazine’s readers that Oxford too is threatening ‘performance management’ as a way of ejecting those who wish to linger when they have ceased to be welcome:

I’ve discussed retirement with a number of people over the last months. All but two personally preferred not to be put out to grass before their time. But most feared that the alternative would be ‘performance management,’ and were willing to go quietly to avoid it.

He suggests that there would be resistance in Oxford because Oxford has been here before, or somewhere very close:

In 2005, the University [Oxford] attempted to bring in a form of ‘performance management’. Academics brought the plan to a vote in Congregation and defeated it. Any scheme of ‘management’ enough dons reject will face the same fate. We must recall that if any such thing arrives here, it can only be in a form the majority of academics explicitly approve. We have that power. Thus in pragmatic terms, ‘performance management’ is a red herring. It can neither be imposed against our wills or (if for some reason we agree to it) take a form we find unacceptable.

Here, too, of course.

Mr N. M. Maclaren (University Computing Service) (read by R. S. Haynes):

Madam Deputy Vice-Chancellor, I welcome this consultation, and not just because I shall be affected personally and shortly. I shall keep these remarks short, because I have already made more detailed ones by email, and shall mention only the aspects that directly affect changes to Statutes.

From responses at the open meeting, it seems that the remit of the Working Group is extremely narrow, and covers only the reference to a retirement age in Statute D, I, 11 and the corresponding rules for Assistant Staff. That is a serious mistake, if the University is going to claim objectivity for an Employer Justified Retirement Age. The higher courts tend to be unsympathetic to attempts to bypass legal constraints by separating apparent and actual practice. I regard it as essential that the Working Group address the whole issue of a ‘retirement age’ – not just a single date in Statutes – and request the Council to expand its remit to cover that.

My first point is that the most serious problems with discouragement of innovation occur because people in critical positions discourage those with alternative or radical approaches, and not because some old fogey is preventing a post from being refilled. Many people in this University will have observed this effect. That leads me on to some anomalies in the Statutes and Ordinances.

Irrespective of retirement as such, there is a strong case for a relatively low and hard maximum age for the positions which have most control over new developments, such as Heads of Institution and membership of senior committees. Those are rarely posts as such, and so it might be legally easier to retain such a restriction, or even to lower the current age for it. Currently, this seems to be 70 at appointment (Statute A, III, 7; IV, 8; and VI, 3) and so is 70 for the Council and effectively 73 for other bodies, which is thoroughly anomalous. As far as I can see, Heads of School do not have to be Officers and can be of any age, which is another anomaly.

I believe that the proposal for changing our Statutes needs to address the age limits for membership of senior committees, or this reason proposed for preserving a retirement age will not be objective.

My second point is that this proposal and the open meeting made much of being able to request to work beyond the normal retirement age, and implied that this would become more important. Unfortunately, the current policies and procedures are purely arbitrary, and some aspects of them could be regarded as being discriminatory. It is easy to imagine a request being opposed because an applicant has views that have offended his or her Head of Institution, for example.

Whether such requests are granted is clearly a major part of what retirement means in practice, and it will be argued that the legislative changes also mean that this policy and the procedures need to be objective. Without some reasonably objective principles, at the very least, the University could well have a hard time in the courts – and give the press a major opportunity to damn the University for being an Old Boys’ Club.

It would be irrational to separate the procedures for considering such requests from those for removal from office on medical grounds and redundancy, as most of the reasons not to grant such requests will be physical, psychological, or lack of requirement! Thus the principles and procedures should be included as part of the Statute U revision, with the comparable inclusions for Assistant Staff. It should be pointed out that the current policy states precisely that for the appeals process!

I believe that these two suggestions together address many of the issues raised in the consultation, and I should favour a scheme along the following lines:

1. The current regulations for membership of the Council (Statute A, IV, 8) and Boards (Statute A, VI, 3) would be set at the retirement age, not rather above it.

2. Statute D, I, 11 would state that Officers would relinquish their offices at the retirement age, both because holding an office is the key to most controlling positions and because the University would in principle be able to refill the position with someone new.

3. It would also be changed to say that they could change to part-time working at the retirement age, by agreement with the University and subject to rules made in Ordinances, if they did not wish to retire completely. In some cases, of course, ‘part-time working’ would be effectively full-time!

4. There should be a clear commitment that equivalent rules would be created for Assistant Staff.

5. The forthcoming revision of Ordinances would tidy up the situation with regard to other staff in controlling positions, which is an area that needs attention anyway.

6. The basic right of staff to a proper, objective process to handle requests to be employed beyond the retirement age, would be kept in (or inserted into) Ordinances, with appropriate revision.

If the above were adopted, only very small changes would need to be made to Statutes A and D, provided that there were also a clear statement of intent. If necessary, another small change could be made to Ordinances to establish an interim process. Because the situation with regard to Assistant Staff is not currently in Statutes and Ordinances, only a clear statement of intent is needed.

Lastly, there are a very small number of positions where the holder can be expected to do little else, and there is no possibility of refilling while there is someone doing any of that class of work. But those are far rarer than is often asserted, and a well-known legal maxim is that hard cases make bad law. Let us choose a flexible, general approach.

Mr M. B. Beckles (University Computing Service) (read by Dr J. E. Scott-Warren):

I am not close to the current retirement age and so am not immediately affected by any of the options proposed in this consultative paper. I can see some merit in the arguments for having no retirement age, as well as in those for having an Employer Justified Retirement Age (EJRA). However, what I cannot see any merit in is in having the retirement age being different between different categories of permanent staff. I believe some of the differences we already have between the terms and conditions of different categories of staff are iniquitous, and we would do well not to worsen that situation. If there is any category of permanent staff for which there is to be no retirement age, then that should be the case for all permanent staff; similarly if there is to be an EJRA then it should be the same age for all permanent staff.

I also have a concern that, in the recent past, the University has shown itself to sometimes handle these consultations in a sub-optimal manner. So I would appreciate it if the Council could reassure us that, at the meetings which are part of the consultation exercise being carried out, notes are being taken of the comments made by staff. I’m sure I don’t need to remind the Council of a series of apparently consultative meetings held some time ago at which no such notes were taken. I also think it would be helpful if the Council were to publish the results of the consultation exercise (suitably anonymized if necessary). So, will the Council look into this aspect of the consultation and take appropriate action?

In addition, I think it might be useful to solicit comments on the consultative paper via Forum, the University’s discussion service.1 (Of course, were this to be done, it would be essential that all the relevant individuals actually read any comments made (or a detailed summary of them) on Forum, unlike the previous time this option was explored.) Please will the Council and the Working Group consider this option?

In closing, I’d like to draw the Working Group’s attention to the article on university EJRAs in the current issue of Oxford Magazine.2 The author of this article, Professor Leftow, correctly points out that some of the statistical data relating to US universities used to argue that the lack of a retirement age gives ‘cause for concern’3 is being misinterpreted. When taken in context of the radical reduction of tenured posts in US universities, some of the apparent ‘graying’ of US academia can be explained without imputing a significant distorting effect to the abolition of the retirement age in 1987. Furthermore, Professor Leftow points out that the relevant limiting factor on recruiting younger academics is the rate at which new posts become available. This depends on the number of posts which become vacant (by whatever means) each year and not on the retirement age (at least until our staff live forever). I believe that where the Working Group has relied on statistical arguments (e.g. paragraphs 7, 12, 17, etc.) these should be revisited.

Finally, with regard to the legality of an EJRA for the University, and bearing in mind that this requires that ‘the employer is able to show that it is objectively justifiable as a proportionate means of achieving a legitimate aim’,4 as well as the Acas explanation of the standard for ‘proportionate’5 in this context, I can do no better than to quote Professor Leftow’s article:

The problem the University faces is this. Both Oxford and US universities are universities. So presumably whatever legitimate aims Oxford has, US universities have. Thus to justify an EJRA, Oxford would have to maintain either that no US university achieves all its legitimate aims, or that all US universities which do so employ only unreasonable means. This is a hard task. I do not think it can be done.

I ask that the Working Group consider this argument in conjunction with the advice it is taking on the legal considerations of adopting an EJRA (para. 26).


Professor S. F. Deakin (Professor of Law and Fellow of Peterhouse) (read by Dr J. M. Whitehead):

The abolition of the national default retirement age places the onus on the University to justify the retention of its long standing practice of having a normal retirement age (currently 67 for some employees and 65 for others). Using the age of an employee to determine their access to employment gives rise to a possible breach of discrimination law. However, uniquely among the ‘protected characteristics’ set out in the Equality Act 2010 and the EU Framework Directive on Equal Treatment, direct discrimination on the grounds of age can be justified. The justifying factor must be legitimate, and its use by the employer must be proportionate; that is, the employer must show that the discriminatory act or practice is an effective means of reaching that legitimate goal, and interferes as little as possible with the non-discrimination principle.

The report of the working group set up to consider the implications of the abolition of the national default retirement age considered a number of possible reasons for retaining an ‘employer-justified retirement age’ within the University. One of the most important of these justifying factors is the need to maintain employment opportunities for early career researchers and lecturers, and promotion possibilities for those in mid-career. Turnover among academic grades in Cambridge is around a third of the national average for all employments. At present, the number of retirements from academic posts in the University is around half the number of those taking up such positions for the first time in a given year. Thus making retirement optional would almost inevitably have an impact on the filling of academic posts in the University. It would particularly reduce the number of more senior posts falling vacant, thereby affecting internal promotion prospects as well as the opportunities for Departments to appoint from outside. In the case of assistant and academic-related staff, turnover rates are closer to the national average. However, here as well, the end of compulsory retirement could be expected to reduce job and promotion opportunities more widely in the University.

The University clearly gains from having a balanced age profile, but, more generally, fairness to early- and mid-career researchers is a matter to which the University should have regard when considering its retirement policy. The University has a duty to consider the wellbeing of all its employees and, as a leading research university, the implications of its decisions on the state of UK higher education more generally.

There are other factors to consider. For example, if retirement were to become optional, the University would probably have to change its approach to performance appraisal, making it a more regular process for all staff at all stages of their employment with the University (any such changes could not be confined to those at or near the current normal retirement age). Dismissals for under-performance, or redundancies incorporating an element of selection based on performance, would probably become more common. For academic staff, such a move could potentially come into conflict with the values of autonomy and freedom of expression in research which are widely accepted in the University and underpinned by our employment statute, Statute U. A number of other potential justifying factors, including the impact on the diversity of employment in the University, are set out in the working party’s report.

The report also considers the arguments in favour of the removal of the University’s normal retirement age. It would facilitate compliance with the principle of non-discrimination on the grounds of age, in so far as it affects retirement policy. The University would benefit from the extended employment of experienced and highly qualified members of staff whose services it might otherwise lose. The removal of the retirement age would be of benefit to employees whose financial circumstances in old age, notwithstanding access to the pension schemes in which the University participates, might not be secure.

The working party has suggested three options for consideration if the retirement age were to be retained. The first is the retention of a normal retirement age for academic and academic-related officers (that is, those covered by Statute U); the second involves the extension of the retirement age to other grades of academic and academic-related staff; and the third would extend it to assistant staff as well. If any one of these options were to be adopted, it would be combined with a flexible and progressive procedure for requests to carry on working beyond the normal retirement age, which, the report suggests, would be set at 67 for all affected members of staff.

These are complex and finely-balanced issues. The purpose of the consultation paper is to set out the options. Under the law as it has recently been amended, the practice of a normal retirement age remains lawful. However, the onus is on the employer, in a way that it has not been before, to justify its practice. It is without doubt useful for the University to reconsider this long-standing practice to see if it is still in the best interests of the University to retain a retirement age.

Dr S. J. Cowley (Department of Applied Mathematics and Theoretical Physics):

Deputy Vice-Chancellor, from a personal point of view many of us may have welcomed the abolition of the Default Retirement Age (DRA). The flexibility of when to retire has many attractions. Indeed, given the decision last year by HMG and the USS to devalue our pensions by changing the uprating index from the RPI to the CPI, my initial reaction was to estimate how much longer I might choose to work to restore my pension entitlements: about 18 months. Then last week the USS Trustees voted to devalue our pensions further, inter alia by introducing caps on the indexation. Having flexibility as to when to retire then becomes even more attractive. For let us suppose in 12 years’ time, when I am due to retire, we have returned to an era of high inflation such as the 1970s. If I retired at that point then my pension might be significantly devalued in a few years as a result of the indexation caps (e.g. see my article with Susan Cooper in issue 305 of the Oxford Magazine, A rational reaction, given that salaries tend to track inflation better than capped indices, would be to delay my retirement for, say, five, ten, or even fifteen years.

However, what might be in the best interests of the individual may not be in the best interests of the institution. When it comes to the DRA, we need to get the balance right. Hence, notwithstanding the example I have just given (by which the management of the university sector as a whole seems to have shot itself in both feet as a result of the law of unintended consequences), I am attracted to an Employer Justified Retirement Age (EJRA) for University officers, assuming this is legally possible; this is for two reasons given in the consultation document.

First I believe that there are merits in the argument for a mix of collaborators across a range of generations, including significant numbers of younger staff (see paragraphs 12 and 14). I am only 54, but I would be kidding myself if I did not recognize that I am not as innovative as I was 20 years ago (although that might be offset by extra experience). There is a rationale as to why Fields Medals are awarded to those 40 years of age and under (even if Andrew Wiles was the exception that proves the rule; he was 41 when he proved Fermat’s Last Theorem). Even Margaret Thatcher recognized the need for rejuvenation in universities with her ‘New Blood’ scheme in the early 1980s.

One way to look at this might be that the University can afford so many person-years of academic staff. I do not know what the average age of appointment to a lectureship is, but for the sake of argument let’s say 32; and suppose such a person (or her or his replacement) retires 35 years later at age 67. Further, suppose that as a result of the removal of the DRA she or he stayed on for another five years. This uses up some of the person-years of academic staff that the University can support. If everyone did that then the number of posts would reduce by 12.5% or so.

Of course my example is hypothetical. We need much firmer statistics, and until then some might argue that my assumption of another five years is wide of the mark. However, let me float some reasons as to why my assumption might not be unreasonable. At present an academic is eligible for a USS pension at 65, but almost all academics I know prefer to stay on to 67. There has just been a Voluntary Severance Scheme; if rumours are correct there has been a very low take-up of academic staff. Cambridge is a very agreeable employer, and academics do not want to retire. This, combined with the pensions changes, mean that I would not bet against an increased average retirement age, a reduction in the number of established academics and, as a result, a fall-off in the essential innovative ‘New Blood’ infusion to the University. Much as it might not be in my own best interests, this leads me to believe that an EJRA may be justified.

Second, as a result of Statute U, it is remarkably hard to dismiss an officer. As the decision over the reform of Statute U demonstrated last year, there are strong, and widely accepted, reasons (centring around the preservation of academic autonomy and freedom) for maintaining Statute U in its present form. If the DRA was to be abolished then at some point there would have to be a way of dismissing staff, and the checks and balances deliberately built into Statute U might have to be eased. Some form of strengthened performance management (some might argue including salary, as well as job, review) would have to be considered. Further, the provisions in the Equality Act 2010 make it unlawful to discriminate against workers because of age, and this would seem to imply that this strengthened performance management would have to apply to the whole workforce. Would this strengthen the University as a place of learning and research?

As Susan Cooper wrote in issue 309 of the Oxford Magazine:

The relative freedom that we have in how to go about our work and even to choose what to do stands in stark contrast to ‘performance management’. The importance of initiative and creativity are central to our role but defy measurement and, worse, would be damaged by an attempt to measure them.

[And I don’t really think that student questionnaires and the REF are a good measure of either research or teaching.]

The current system squares the circle by combining a very competitive selection to get an academic job in the first place with a permanent contract that ends at a definite retirement age once you get in. In a sense we pay for those years of freedom with the competition at the beginning and a fixed retirement age at the end. A selection panel can look at a person’s accomplishments at say age 35 and take a reasonable gamble on expected average performance to age 65, but not when there is no limit. Take away the limit and you call into question the feasibility of academic freedom.

I agree; the DRA is a quid pro quo for the protections of Statute U.

Professor D. M. Thompson (Emeritus Professor of Modern Church History) (read by the Senior Proctor, Mr J. A. Trevithick):

Madam Deputy Vice-Chancellor, as a recently retired Professor, who has at least until the current academical year continued to lecture and supervise, I would like to offer a few observations on the current consultation. I certainly support the introduction of an EJRA for established staff at the current age of 67; my uncertainty about other categories is largely due to less familiarity with the current age-structures of the groups concerned. My principal reason for supporting this is the first adduced by the Working Party, namely inter-generational fairness. Over the years I have heard many comments from my colleagues across the Atlantic about the deadening effect which their lack of a retirement age has on providing adequate incentives for younger scholars, and the promotion of new scholarship itself. I believe that the equality and diversity agenda is also important, although this will probably be a less compelling argument in, say, twenty-five years’ time. If my memory serves me rightly, the retirement age was raised to its present level just after the Second World War as a response to the shortage of young scholars at that time; so short-term solutions have a habit of sticking!

But to return to inter-generational fairness, it is worth noting that the current policy of freezing posts on retirement (for financial reasons) has a similar effect in removing opportunities for younger scholars. Moreover, provided that this is within the law, I would hope that any provision which might be made to retain established staff who have reached the retiring age, would be made in such a way as still to release the established post occupied, i.e. by creating a new, presumably research-related, post for the person who would have retired to replace the established one. This would ensure that the established post would be available to fill, subject, of course, to other financial considerations.

My last observation is related, but different. In talking about established staff we are presumably talking about University Teaching Officers. In the years since the Research Assessment Exercise was established, I have been aware that, because of the Funding Council’s distinction between teaching-related and research-related grants (even though there now seems to be little left of the former), a tendency has developed for the teaching of undergraduates increasingly to be left to College Teaching Officers. What I noticed particularly in my last decade as a Fellow of Fitzwilliam College was that this tendency, which originally began in the humanities, had begun to spread to certain science subjects as well. University representatives continue to pay lip-service to the belief that research and teaching belong together, and many of us still believe it. However, practice in some Faculties is creeping back to the nineteenth- or even eighteenth-century model, where College Fellows do the teaching and Faculty appointees occupy themselves in other ways. As we reflect on the implications of retirement, we should take care lest this separation is further accentuated by the difference between the University and the Colleges.

Professor P. A. McNaughton (Sheild Professor of Pharmacology and Head of Department) (read by Dr. O. A. Scherman):

Madam Deputy Vice-Chancellor, David Attenborough is still making outstanding programmes for the BBC at the age of 85, 20 years after he ‘should’ have retired. Many research studies have shown that people age mentally at very different rates. Forcing University academics to retire at age 67, an arbitrary date at which some are still going full steam ahead, will cause a loss of talent to the University.

In deciding how to react to recent legislation on the retirement age, the temptation will be to engineer a legal device which effectively still forces retirement at 67, and this is indeed the approach announced in the Reporter of 5 May. The approach may perhaps achieve legality but it is certainly outside the spirit of the recent Government legislation. A more imaginative approach could secure the work of valuable academics past age 67, while not at the same time cluttering up the system with those past their sell-by date.

The principal and only important criterion (apart from legality) must be the academic benefit to the institution – how can we advance Cambridge’s world place as a research-led teaching University? The answer has to be: by retaining the services of those who are still at the top of their game in teaching, research, and even possibly in administration, while losing those who are not. The idea that young people coming in as new appointees will always be better than older academics near retirement is clearly false. Each case is different.

Some sort of test of ability for older academics is therefore inevitable. Tests of ability are already used in the University, for instance in the promotions process, or in the shape of staff votes at five-yearly renewals for roles such as Head of Department. High performance in all the three areas of teaching, research, and administration is essential if academics are to continue to be employed past retirement age. We should accept that the loss of high-performing academics simply because they have reached an arbitrary retirement age is a price too high.

Tuesday, 24 May 2011

A Discussion was held in the Council Room. Deputy Vice-Chancellor Dr Kate Pretty was presiding, with the Registrary’s Deputy, the Senior Proctor, the Junior Proctor, and five other persons present.

The following Report was discussed:

Second Report of the Council, dated 18 May 2011, on undergraduate UK/EU fees, funding, and student finance (Reporter, 2010–11, p. 785).

Professor G. R. Evans (Emeritus Professor of Medieval Theology and Intellectual History) (read by Mr M. B. Beckles):

I favour Grace H, I think, though I am not sure it can last; the legislation which seems likely to follow the publication of the White Paper may require a further change to the Ordinance. And the Government’s ELQ requirements may not last much longer either. But the principle would be established that there should be an annual Grace with reasons given. That would be a distinct improvement on the existing Regulation 12.

Mr M. B. Beckles (University Computing Service):

Madam Deputy Vice-Chancellor, I am one of the proposers of three of the Graces considered by this Report. I would like to thank the Council for consulting with some of the proposers of the Graces labelled A to G. And I echo their hope that ‘the process that [they have] undertaken to consult widely over these important matters can be a template for determining future matters of controversy within the University’ (para. 1), although I feel that it has taken rather longer than one might have hoped for some parts of that consultation to happen. (I’d also like to re-iterate, as I have suggested in previous Discussions, that, where online fora are used to gather opinions of members of the University, it is essential that the comments in those fora are read and considered before making the relevant decisions.)

In this Report the Council recommends that Regents vote against Graces A to G, and instead vote for the Council’s Grace, Grace H. I’d first like to observe that, as I have previously pointed out in earlier Discussions, the quality of financial information Regents have received in the context of the debate on undergraduate fees and student support has not been adequate. It is therefore difficult to see how Regents could now have much confidence that adequate funding for student support and outreach has now been provided, or that increasing the level of support or outreach will have the dire consequences hinted at in this Report. As I said in last week’s Discussion, given that we do not seem to be given the whole story regarding the disposition of the £1bn raised by the 800th Anniversary Campaign,1 we cannot be confident that our financial situation really is so unfortunate that there is simply no possibility that we can spend the amount required to continue attracting the best students under the new fees regime. I would suggest that Regents bear this in mind when considering Graces A and B.

Regarding Graces C and D, I would urge Regents to consider giving these Graces their support. The Council’s reasons for opposing these Graces seem to me to essentially boil down to the rather petulant ‘if the Regent House exercises its mandate to govern then it makes our life difficult’. I don’t know how other Regents feel about this, but, personally, I’m all broken up over that. In particular, with regard to these two Graces, the Council has become a cheerleader for the government’s mantra of ‘student choice’, in sharp contrast with the criticism this ideology has attracted from across the sector, including from many Regents. Arguing against Grace C seems particular odd given that, with their Grace H, the Council have accepted the need for Regent approval in setting undergraduate fees in future years. Shouldn’t we Regents, as the governing body of the University, have oversight of the student support arrangements as well as of the tuition fees?

And whilst noting that the requirements of Grace D have largely already been met – so why the opposition? – the Council have conveniently neglected to mention how this was achieved, namely by mass student protest, supported by Graces, and amendments of Council’s Grace on fees, signed by a large number of Regents. So I ask those Regents who felt last term that preserving student bursaries was that important to consider whether it really makes sense to abandon those gains now, rather than consolidating them by voting for Grace D.

Regarding Grace E, I cannot pretend that I am happy with the wording of this Grace, but, on balance, I think it would be better that it passed. Why? Firstly, because I think our access targets are currently too low, and I remain unconvinced by the claims that the HESA benchmarks in this area – and curiously, we only dispute the validity of this set of HESA benchmarks and not any of the others – is somehow inappropriate for this University. Secondly, if we only aim for the absolute minimum target we think we can persuade the Office for Fair Access (OFFA) to accept, then the situation will never improve. I understand, even if I do not agree with, the argument that setting an ambitious target in our Access Agreement is dangerous as we may well be fined if we fail to meet it. This is all the more reason to have a higher internal target, one which will not attract external financial penalties should we fail to achieve it. Finally, once again we are expected to take a substantial claim on faith, in this case the claim that we can achieve higher targets ‘only by operation of an admissions quota system’ (para. 6). As I said last week: ‘Nullius in verba’. We are a University of academics – we neither can, nor should, take anyone’s claims on good faith alone.

Regarding Grace F, I observe that we would not now be having a ballot on this had the Vice-Chancellor not unreasonably chosen to exclude it from the earlier ballot. And, in the absence of detailed financial information regarding undergraduate education and funding, or a commitment from the Council to produce some before the eventual heat death of the universe, this Grace represents the last chance to be sure that we are making the correct decision in respect to undergraduate tuition fees in 2012–13. I therefore urge Regents to support it.

The Council’s Grace H is presented as an alternative to Grace G. I am happy to say that Grace H is almost one that I could support. Why ‘almost’? Well, careful reading has revealed a few problems with the wording of the proposed replacement Regulation 12. I explain these below, and I urge the Council to correct these before putting the Grace before the Regent House.

Firstly, the proposed regulation states: ‘The University Composition Fees . . . shall be subject to approval by Grace’. At first sight this may seem fine, but observe that a Grace which merely proposed that the existence of University Composition Fees for Home and EU undergraduate students be approved would satisfy the letter of the regulation. Such a Grace would presumably then allow the Council to set the amount of the fees without further input from the Regent House. Although we might have faith in this Council not exploiting this apparent loophole, when drafting legislation it is wise to have in mind what future, less scrupulous, Councils may do. I believe this loophole is probably the result of simple oversight and is easily corrected. If, as in the current Regulation 12, the replacement regulation makes clear that it is the ‘rate’ (that is, the amount) of the fees then this loophole is effectively closed. So I think the proposed regulation should read: ‘The rate of University Composition Fees . . . shall be subject to approval by Grace’.

Secondly, condition (ii) of the proposed replacement regulation is, I believe, missing a word. That condition requires that ‘the fees to be charged shall not exceed any limit prescribed by law’. At first sight this seems entirely reasonable (if, perhaps, redundant). However, I do not think the Council actually mean ‘any limit’. For consider that both the basic amount (now £6,000 p.a.) and the higher amount (now £9,000 p.a.) in the Higher Education Act 2004 are specified in that Act as limits2. The basic amount is the limit for fees above which institutions must have an agreed Access Agreement, whilst the higher amount is the limit on the maximum fee that may be charged. So, as written, the proposed new regulation could be taken as meaning that the fees cannot be more than the basic amount. I do not think this was the Council’s intention, and so, I respectfully suggest, they have probably omitted a word like ‘relevant’ or ‘appropriate’ between ‘any’ and ‘limit’.

Whilst noting that Grace G does not suffer from these problems, I also hope that, now I have raised them, the Council will correct these oversights prior to putting the proposed replacement regulation before the Regent House. However, I do have a few other reservations about Grace H which I feel are worth airing here. Firstly, the proposed financial information to be provided will, at best, tell us about the costs of educating an undergraduate. This is only half of the information we need: we also need to know – or have reasonable projections for – income which can be spent on undergraduate education and support, both direct income and from investments, endowments, etc.

Secondly, the proposed replacement regulation would put us in an odd situation respecting the fees if the Grace approving them did not pass. What would happen then? It’s not at all clear, and it seems perverse to move from the existing Regulation 12, which determines the fees in all situations, to a new regulation that introduces unnecessary uncertainty. Perhaps this could be corrected by introducing a ‘failing which’ clause at the appropriate point – such a clause could for instance say that the fees would then remain at their previous rate. I also note that this uncertainty gives the Council a potent weapon in forcing through a Grace setting the fees. If such a Grace were not submitted until close to the time the fees needed to be finally determined, then Regents would have no option but to pass it, or else plunge the University into chaos for the forthcoming academic year, since there would be no time to propose a new Grace. Now, have we in recent history seen a Council engage in such manoeuvrings? Hmmm. . . (And I note that Grace G was carefully constructed to avoid this problem, something the Council – no doubt inadvertently – have overlooked.)

Finally, and most seriously, the proposed replacement Regulation 12 perpetuates a current iniquity in the present arrangements for fees, namely the situation with regard to undergraduates who have a required year abroad as part of their course. Currently, and under the proposed replacement regulation, such students have to pay half the full fee for this year. So at present they pay just over £1,500, and for students starting in 2012–13, they will pay around £4,500. What do they get for this non-trivial sum? Well, having now spoken to some MML undergraduates, I learn that they get a ‘notional four hours of supervision’, usually by email, during their year abroad. Given that our supervision rates are about £30 for a supervision of a single undergraduate,3 the situation at the moment is clearly one of profiteering on the part of the University. But, for students starting in 2012–13, the situation will be shamefully iniquitous and clearly unreasonable. Given that in Grace H, the Council has taken the opportunity to completely rewrite Regulation 12, should they not take the opportunity to revisit this area?

Furthermore, the intention of the proposed replacement regulation – with which I am entirely in accord – seems to be to explicitly involve the Regent House in setting the fees. Given that, is it not appropriate that we also be involved in setting the fees for undergraduates who have a year abroad? Why should they be exempt from our concern? Is it simply because they are not here in person that we aren’t expected to care about them? (That would be a somewhat odd attitude for a University where, at any given time, so many of its academics are working abroad.)

There is a very simple fix for this: insert the words ‘no more than’ – and later in the clause, a comma – at the appropriate point of condition (iii), so that it reads:

for such students who are undertaking a required period abroad the rate shall be no more than half the full amount charged under this regulation, or such other amount as may be determined by the Secretary of State for this category; and

This would mean that those proposing a Grace to set the fees would also be able to set the fees for students who have a required year abroad.

(In passing, I note that Regents may wonder why Grace G, which also proposes amending Regulation 12, does not address this situation either. As one of the drafters of Grace G, I confess that, at the time Grace G was drafted, I was unaware of the iniquitous situation undergraduates who have a year abroad currently face, and so it did not occur to me to seek to remedy it. Once Grace G had been proposed, I was contacted by affected undergraduates who explained their concerns to me. I apologize unreservedly for not seeking to discover whether there were any other problems with the existing Regulation 12 prior to seeking to change it.)

In conclusion, I urge Regents to carefully consider Graces A and B, to support Graces C, D, E, and F, and to support Grace G. And, if the Council correct the two errors of wording in Grace H that I mentioned above, to consider also supporting Grace H.