R v Higher Education Funding Council, ex parte Institute of Dental Surgery
Jurisdiction | England & Wales |
Judge | MR JUSTICE SEDLEY,LORD JUSTICE MANN |
Judgment Date | 30 July 1993 |
Judgment citation (vLex) | [1993] EWHC J0730-3 |
Docket Number | No: CO-423-93 |
Court | Queen's Bench Division (Administrative Court) |
Date | 30 July 1993 |
[1993] EWHC J0730-3
Before: Lord Justice Mann and Mr Justice Sedley
No: CO-423-93
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
CROWN OFFICE LIST
MR D PANNICK QC and MR J HERBERG (instructed by Church Adams, Tatham & Co., Fulwood House, Fulwood Place, London WC1V 6HR) appeared on behalf of the Applicant.
MR M BELOFF QC and MISS C BOOTH (instructed by Beachcroft Stanleys, 20 Furnival Street, London EC4A 1BN) appeared on behalf of the Respondent.
Friday, 30th July 1993
I am sorry you have been kept waiting a few moments. I will ask Mr Justice Sedley to give the judgment of the Court.
This is an application for judicial review of a decision of the Universities Funding Council as it then was, published on the 17th December 1992, to place the Institute of Dental Surgery, the applicant, at level 2 in its assessment of the quality of institutional research. The decision has direct implications for the level of government funding and indirect implications for the level of outside funding which the Institute can expect in the year 1993/4. Brooke J gave leave on the 3rd March 1993 to apply, with expedition, for a declaration that the respondent Council had erred in law in its assessment of the applicant Institute; certiorari to quash the decision, and mandamus to require the successor body, the Higher Education Funding Council, to reconsider the matter.
The applicant Institute is a college of the University of London. Uniquely in the United Kingdom, it is entirely dedicated to postgraduate teaching and research in dentistry. The Universities Funding Council (UFC) was established by section 131 of the Education Reform Act 1988. It was established as a body corporate consisting of fifteen members appointed by the Secretary of State, six of them being engaged and experienced in higher education. By sub-section (4) the Council was made responsible for administering central funds made available to it for the support of eligible activities, these being defined by sub-section (5) as including the provision of education and the undertaking of research by universities. Sub-section (6) gave the Council power to make grants for the prescribed purposes to the governing bodies of universities. Sub-section (7) provides:
"In exercising their functions in relation to the provision of financial support for activities eligible for funding under this section, the Council shall have regard to the desirability of not discouraging any university in respect of which grants are made under sub-section (6) above from maintaining or developing its funding from other sources."
Sub-section (9) places an obligation on the governing body of any university to give the Council such information as it requires for the foregoing purposes.
By section 235(1) a university is defined so as to include a college, so that the Institute of Dental Surgery acquires independent status for grant purposes.
These functions remain in place, but the body initially exercising them, the Universities Funding Council, was dissolved on the 1st April 1993 by section 63(1) of the Further and Higher Education Act 1992, and its extant property, rights and liabilities were transferred to one of the two bodies corporate established by section 62(1), the Higher Education Funding Council (hereafter HEFC) for England (the other was a similarly named council for Wales). Sections 65 and 66 of the Act of 1992 confer upon the new bodies functions broadly similar to those of their predecessor. Section 70(1) requires the Council to establish a Quality Assessment Committee to advise it on the performance of an express duty to provide for assessing the quality of education in institutions falling within its remit; but no such obligation is spelt out on assessing the quality of research. The HEFC thus has a free hand in devising proper means of arriving at its decisions on the funding of research in higher education. Although, unusually, it appears to have no express power of delegation, Mr David Pannick Q.C. for the applicant has realistically accepted that without devolving its functions to a considerable number of suitably qualified people the Council cannot function, and he has taken no point on the system which was adopted and to which we will come.
In consequence of this change in the identity of the respondent, the decisions impugned and the object of relief sought have been amended without objection. Also without objection the form of the order of mandamus sought has been expanded by amendment so as to require the respondent body not only to reconsider the matter but to give reasons for the assessment decision.
The Universities Funding Council was in its time the successor of the University Grants Committee (UGC) which in 1984 had adopted a policy of selective funding of research in order to make the best use of available funds. To implement the policy, the UGC in 1986 undertook a research assessment exercise with the object of rating institutions according to the quality of their research and of awarding grant accordingly. A similar exercise was carried out in 1989 and again in 1992.
On the 6th March 1992 the UFC issued to all interested institutions a circular letter 5/92 announcing the form to be taken by the 1992 Research Assessment Exercise. It included the following paragraphs:
"1. Circular Letter 22/91 set out preliminary proposals for the next Research Assessment Exercise and invited comments. This circular describes how the Exercise will be conducted and invites higher education institutions (HEIs) to make submissions.
2. Nearly 300 replies were received from HEIs, professional and learned bodies, subject associations, individuals and other interested parties. They have been taken into account in defining the arrangements for the 1992 Exercise.
Purpose of the Exercise
5. The purpose of the Exercise is to produce research ratings, which will be used by the new Higher Education Funding Councils (HEFCs) for England, Scotland and Wales, and in respect of institutions in Northern Ireland, by the Department of Education for Northern Ireland, in the determination of grant for research with effect from 1993/94. The White Paper in May 1991, and the subsequent letters from the Secretary of State for Education and Science to the Chairmen of the two Funding Councils, expressed the Government's wish to see increased selectivity in the allocation of research resources. The assessments made as a result of this Exercise will assist in this.
Conduct of and timetable for the Exercise
6. The 1992 Exercise will follow broadly the same approach as in 1989, with information provided by HEIs as the basis for peer review assessment of research quality by a number of specialist panels. Institutions are invited to list up to two publications and up to two other forms of public output for each member of staff whose research is to be taken into account, and these will contribute to the basis for the judgements of research quality. As in 1989, panels will also have available to them a range of data to take into account in making their judgements. However, compared to 1989, there are a number of significant changes to the Exercise, which are described below.
Coverage: research to be assessed
8. Account will be taken of the full range of research (applied, strategic and basic) as defined at Annex A. Although research covers a continuous spectrum between applied and basic, the two extremes are nevertheless distinct. In the case of engineering and science only (units of assessment 12-16, 20-23, and 27-34 in Annex B), panels will be asked to assign separate ratings for applied and for basic/strategic research. In these units of assessment institutions are therefore asked explicitly to categorise research output as either applied or basic/strategic although final judgements will be made by the relevant assessment panels. In this context we are concerned that full recognition should be given to work of direct relevance to the needs of commerce, industry, and the public and voluntary sectors.
Units of Assessment
12. The subject areas to be used as the units of assessment are listed at Annex B………….
Assessment panels
14. Each unit of assessment will be assessed by a panel with appropriate specialist membership including non-academic members where appropriate. Panels, which may assess work within a group of related units of assessment, will operate on a 'core plus adjunct' model where the core panel (typically 5-8 members) is joined by a number (typically 2-3) of specialist advisers to cover specific areas as required. It will be the core panel which has responsibility for grading submissions. The names of the members of the panels and the specialist advisers will be published.
Assessment ratings
15. The assessments made must reflect as far as possible the specific characteristics of each subject area, but at the same time the ratings applied must mean the same across all subjects. As for the 1989 Exercise the ratings will therefore be made on a common five-point scale (see paragraph 11) with common definitions of the points, as given in Annex C. However, as it is expected that no research funding will be allocated in respect of any department which receives the lowest rating of the assessment scale, for funding purposes the ratings are expected to run from 0-4 instead of 1-5. More specific guidance will be given to panels than in 1989, a draft of which is given at Annex D: in...
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