The term 'higher education' is generally taken to mean education that leads to the award of a degree. The term can be broader than that, however, and also refers to post-graduate courses, Higher National Diplomas and higher professional qualifications amongst other things. A more comprehensive list of the types of courses usually included in the term 'higher education' is provided in Schedule 6 to the Education Reform Act 1988 (see Higher education courses and powers to award degrees).
Much of the law relating to higher education applies to Wales in the same way that it does to England, save that subordinate legislation making powers now rest primarily with the Welsh Ministers in relation to Wales. There is, however, a large amount of subordinate legislation that applies only to Wales. Most notably student support regulations made by the Welsh Ministers create a distinct system of student loans and grants.
The National Assembly for Wales has wide competence to make primary legislation in relation to higher education under section 108 of, and Schedule 7 to, the Government of Wales Act 2006, although it should be noted that Research Councils are specifically excepted from the National Assembly's legislative competence. The National Assembly has passed the Further and Higher Education (Governance and Information) (Wales) Act 2014 and as further legislation follows (passed by both the National Assembly in relation to Wales and the UK Parliament in relation to England) there is likely to be a greater divergence between higher education law in Wales and England.
Universities are largely autonomous institutions that are mostly able to devise and deliver curriculums as they choose. Legislation relating to higher education, therefore, is limited largely to the establishment and governance of higher education institutions and the provision of financial resources to institutions and students.
In Wales, higher education is usually provided by institutions in the higher education sector. Commonly, these are known as universities although there is no requirement to use this name and indeed permission must be sought from the Privy Council before an educational institution can call itself a university. There are currently nine universities in Wales (including the Open University in Wales). These are a mixture of older universities established by Royal Charter and more modern universities that were established as higher education corporations. Part II of the Education Reform Act 1988 and Part II of the Further and Higher Education Act 1992 make provision for the establishment and constitution of higher education institutions.
Higher education in Wales may also be provided in further education colleges and, in limited circumstances, in schools. Although courses may be offered in a number of different educational institutions, degrees and other recognised awards may only be awarded by institutions specifically authorised to do so.
In Wales, higher education institutions are financed through a combination of Welsh Government funding (provided via the Higher Education Funding Council for Wales), student fees and income in the form of sponsors, donors and project partners etc.
Institutions that wish to receive funding from the Higher Education Funding Council for Wales (HEFCW) have to comply with the terms and conditions imposed on the funding. These conditions include a limit on the amount of fees that can be charged to certain students and a requirement for the institution to create a plan for how the governing body will promote equality of opportunity and attract increased applications from groups under-represented in higher education. Failure by institutions to comply with these conditions can result in a reduction or withdrawal of funding.
Institutions that provide higher education are able to charge fees to students. They are generally free to set their own fees but, as mentioned in the paragraph above, an institution that receives funding from HEFCW will have to comply with fee limits set by the Welsh Ministers. The fee limits are set out in the Student Fees (Amounts) (Wales) Regulations 2011 (SI 2011/885) and the current maximum fee level is £9,000 per year. This fee cap does not apply to all courses of higher education or to all students, for example institutions are able to charge higher fees to some overseas students and the fee cap does not apply to postgraduate courses other than courses of initial teacher training.
The Higher Education (Wales) Act 2015 received Royal Assent on 12 March 2015. There will be a two year transition period as provisions of the Act are brought into force. The Act makes changes to the regulatory framework for higher education in Wales to allow HEFCW to enforce institutions’ compliance with fee and access plans without relying on providing funding to the institutions.
The link between funding and approved plans is removed and instead the Act will require higher education institutions to have an approved fee and access plan in place for their courses to be designated courses for the purposes of student support. Fee and access plans will have to specify fee limits for qualifying courses and must include such provisions relating to the promotion of equality of opportunity in connection with access to higher education as are specified in regulations made by the Welsh Ministers.
HEFCW will have new express powers of intervention under the Act that are not linked to their role in providing funding to institutions. These powers will enable HEFCW to issue directions to governing bodies of higher education institutions to comply with fee limits and/or reimburse fees that have been paid to the institution to the extent that they exceed the applicable fee limit. In addition, HEFCW will be able to issue directions to the governing bodies of higher education institutions if they are satisfied that the governing body has failed to comply with requirements in relation to the promotion of equality of opportunity and higher education set out in the institution’s fee and access plan.
HEFCW will also have powers of intervention in relation to the quality of education provided at higher education institutions (again, no longer linked to funding from HEFCW to the institutions) and will be able to issue guidance or give directions in the case of inadequate quality.
Students taking higher education courses in Wales are expected to contribute to the cost of their education by paying fees. To help them pay these fees, students ordinarily resident in Wales on the first day of the first academic year of their course may be eligible for grants and loans from the Welsh Government. Students may also be eligible for means tested grants or loans for living costs. The detailed criteria for eligibility for the different loans and grants that may be available are set out in student support regulations made by the Welsh Ministers under powers set out in section 22 of the Teaching and Higher Education Act 1998. Generally speaking, UK or EU nationals who are studying for their first higher education qualification at a publicly funded institution in the UK and who are ordinarily resident in Wales will be eligible for support to meet the fees for their course and to contribute to their living costs. Students studying at privately funded institutions may in some circumstances be eligible for support towards their living costs and a loan towards their tuition fees.
Although higher education does receive some direct public funding, this is a lower proportion of its overall funding when compared to primary, secondary or further education. As a result higher education is generally more independent from government. Higher education institutions in Wales are largely free to establish their own curriculums and programmes of study. The Welsh Ministers can indirectly impose conditions on any public funding an institution does receive but the types of conditions that may be imposed are limited to ensure the protection of academic freedom of institutions.
The principal statutes that contain provisions applicable to higher education in Wales are listed under 'key legislation'.