JOINT DEGREES: THE LEGAL ISSUES

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JOINT DEGREES THE LEGAL ISSUES

• Nicholas Saunders, Senior Associate, Eversheds
  LLP
• nicholassaunders_at_eversheds.com
• 20 June 2005

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Introduction

• From franchising to integrated programmes
• Key issue can institutions pool their academic
  powers and make a joint award?
• Where do institutions get their powers to award
  degrees?

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Power to Award Degrees in the UK

• Distinguish from the legal basis of the
  institution and its title
• Can come from Royal Charter or by decision of the
  Privy Council under the Further and Higher
  Education Act 1992, Section 76/Further and Higher
  Education in Scotland Act 1992, Section 48

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Degree Awarding Powers Emanating From the Charter

• Doctrine of ultra vires does not apply
• Chartered body can do anything within the general
  law which an ordinary individual can do
• Limitations in Charter are essentially matters
  between the institution and the Sovereign
• Breach could be grounds for revocation of a
  Charter
• But intentionally breaking the express terms of a
  Charter is likely to be courting the wrath of the
  Privy Council Office and may well also be a
  breach of trust
• Consider asking the visitor for his/her views
  where Charter silent

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Statutory Power to Award Degrees

• Ultra vires rule applies eg no power to award
  higher doctorates to those who have not studied
  or researched at the institution
• But Section 76(5)(b) of FHEA 1992/48(4)(a)
  FHEA(S) 1992 provides that power to grant awards
  includes power to do so jointly with another
  institution

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Overseas Collaborative Partners

• For a review of the difficulties encountered by
  universities in continental Europe see the survey
  by Tauch and Rauhvargers (European University
  Association, 2002)
• Outside Europe ask QAA, British Council,
  Association of Commonwealth Universities
• Eversheds has an extensive network of overseas
  offices and associated firms in continental
  Europe and the Middle and Far East

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Possible Solutions to the Powers Problem

• Petition Privy Council for a change to the
  Charter
• Double degrees
• Award own degree plus further joint certificate
  or joint commitment to recognising the other
  institutions award
• Create an Academic Federation of HEIs able to
  obtain UK degree awarding powers in its own right
  probably not acceptable to many overseas
  institutions
• Identify or create an umbrella organisation to
  apply for UK degree awarding powers again, more
  likely to be acceptable to institutions without
  their own UK degree awarding powers

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The Way Forward

• Addressing limits on chartered universities
  powers should be part of the Governments
  contribution to the Bologna process
• Could the EU speed up the process of recognition
  of qualifications across Europe?

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Overseas Collaborations Generally

• Consider joint degrees issues within the context
  of academic, financial and legal due diligence
• Complying with English law and the QAA Code of
  Practice is not enough!
• Ensure compliance with local law and tax
  requirements, allow for the time and cost of the
  necessary investigations, advice and
  documentation within the project plan and budget
• For long term collaborations, consider the
  appropriate legal structure for the partnership
• Remember the legal relationship(s) with the
  students!

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Conclusion

• We will be pleased to work with you, QAA and UUK
  to liaise with the Privy Council Office and the
  DfES to take these matters forward without
  further delay to help the HE sector operate more
  effectively in the global marketplace

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