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Issue 02 · July 2026
- The new CUC code of higher education governance – and why board culture matters
- Treating students fairly: condition C6 and the argument so far
- Legal developments: the international student levy, marketing to students, NDAs and union ballots
- Dates and deadlines: the OfS fee charging model and changes to the OIA Scheme
- Plus: tell us what you think of HE Counsel so far
Welcome to the second edition of HE Counsel, our newsletter looking at higher education through the lens of the law and regulation, produced by Wonkhe and powered by Mills & Reeve.
With a new sector-led code of higher education governance for England and Wales from CUC, we’re looking at the way that board culture can eat structure for breakfast. Regulatory condition C6 on treating students fairly is on its way – we bring you up to date with the argument so far. Plus all the legal developments from inside and outside HE, and your opportunity to let us know what you think of HE Counsel so far.
Governance gets its moment in the sun
The launch of the new Committee of University Chairs’ Code of Higher Education Governance marks the higher education sector’s response to concern within government that boards are insufficiently alert to the challenges facing institutions and the sector more generally – or prepared to respond with a sufficient degree of robustness.
Government engagement with the financial condition of the sector has been haphazard – a single annual inflationary fee uplift (with future uplifts promised but not yet delivered), offset by cuts to the Strategic Priorities Grant and to capital funding, plus a new international student levy scheduled from 2028. Regulators have amped up their work on financial sustainability, mostly behind the scenes, albeit working without the benefit of funding to support transformation, or a special administration regime for higher education providers facing insolvency.
Governing bodies might reasonably feel that there is only so much even the best performing board can do to discharge its duties under these circumstances. Nevertheless, close attention to the structure, skills, and culture of the governing body is a prerequisite for the kind of strategic transformation institutions will increasingly need to undertake.
The new Code notably places greater weight on board culture than its predecessor, an area that arguably carries the greatest risk in terms of preparedness to facilitate strategic change, and the lowest scope for straightforward corrective intervention. Boards that can navigate the structural tensions inherent in their composition, the trade-offs involved in making choices about strategic priorities, and the imperative to stay within the limits of their oversight, while maintaining a sense of collective purpose, may consider themselves high-performing indeed.
On Wonkhe
| Navigating tricky dynamics to find the best board culture for extraordinary times Poppy Short and Debbie McVitty reflect on how board dynamics can play out at times of strategic change, and what can be done to maintain a positive board culture. |
| The code of higher education governance has had a complete rewrite The Committee of University Chairs has refreshed the higher education governance code. Iain Cornish, who chaired the review’s steering committee, sets out what’s changed and why. |
| What are the responsibilities and liabilities of boards of governors during times of strategic change? The public critique of higher education governance is making some boards anxious – working through what can reasonably be expected from governors when sustainability is on the line. |
Treating students fairly
Consultation has now closed on the Office for Students’ new proposed condition of regulation C6: treating students fairly, with the new condition expected to be implemented this year. The sector response has been supportive of the principle, but has warned that the proposals require providers to operate in excess of current consumer protection thresholds and that bringing ancillary services, including those provided by third parties, into scope will be very hard to manage.
There is also concern about the pacing of the rollout of the new condition, which in its current form would require a widespread audit of current practice, at pace, as well as the creation of new materials. And there are questions about exactly how OfS would assess compliance, and the degree of flexibility the regulator would bring to bear in its judgement of whether a provider had met the expected standard.
For those getting up to speed, Mills & Reeve has a cheat sheet for what’s being proposed, and there’s a longer summary on Wonkhe, plus Jim Dickinson – who keeps a close eye on the sector’s execution of its consumer law obligations – is concerned the proposals strengthen students’ rights on paper without building the confidence or mechanisms to exercise those rights.
Legal developments of note
| Legislation | International student levy: draft legislation laidDraft legislation has been laid before Parliament for implementation of the international student levy, alongside the government’s response to the technical detail consultation. We’ve noted the details on Wonkhe. |
| Plans published | OfS sets out how it will regulate FE collegesThe Office for Students has set out its plans for how it will regulate further education colleges delivering higher education courses, and invited affected colleges to register with the regulator. |
| Guidance published | ASA tips on marketing to studentsThe Advertising Standards Authority (ASA) has published (very cheesy) guidance on marketing to students – Mills & Reeve has the overview. |
| Consultation closed | Restrictions on non-disclosure agreementsConsultation has now closed on the government’s proposed restrictions to the use of non-disclosure agreements being brought in by the Employment Rights Act. Section 6 of the Victims and Courts Act 2026 also restricts the use of non-disclosure agreements in the case of disclosing criminal conduct (albeit the section is not yet in force). |
| Research | Tackling workplace harassmentThe Equality and Human Rights Commission (EHRC) has published new research into effective ways to tackle workplace harassment. |
| Coming | Electronic and workplace balloting for union ballotsThe government has put an Order before Parliament to introduce electronic and hybrid voting in certain union-related ballots, and introduce workplace voting for industrial action ballots, along with a draft code of practice on electronic and workplace balloting for statutory union ballots. The first phase of implementation is anticipated to come into effect from August 2026. |
In the courts
Are exam results personal data?
This was one of the questions before the First Tier Tribunal in Coombs v Information Commissioner [2026] UKFTT 785 (GRC). The tribunal did not accept the Information Commissioner’s position that the uniqueness of certain exam scores rendered the corresponding individuals identifiable, confirming that exam results alone could not provide a realistic means of identifying that candidate, which would require knowledge of an individual’s date of birth and a unique score.
Hot topic: edtech and data protection
A voluntary audit of 28 edtech providers working in primary and secondary education carried out by the Information Commissioner’s Office found significant gaps in data compliance. In particular, some edtech providers need to set out how data would be processed and protected in greater detail, identify more consistently a legal basis for the use of data for product improvement and other non-educational purposes, and to manage their sub-processors more robustly. The report, though not undertaken with HE edtech providers, offers pointers for HE institutions managing contracts with their edtech partners, especially as regards seeking assurances on data handling and protection.
Coming up: dates and deadlines
| 21Jul | OfS fee charging model: consultation deadlineIt’s the deadline to respond to the Department for Education’s consultation on the Office for Students’ fee charging model. |
| 31Jul | Changes to the OIA Scheme: consultation deadlineIt’s the deadline to respond to the Office of the Independent Adjudicator’s consultation on changes to its Scheme. |
| 1Sep | OfS freedom of speech complaints scheme commencesThe Office for Students’ freedom of speech complaints scheme for staff, non-student members, and visiting speakers is due to commence – guidance is expected imminently. |
Mills & Reeve is the UK’s leading law firm for education clients, supporting universities on everything from strategic transformation and financial challenges to day-to-day legal and regulatory issues. Our large, multi-disciplinary team advises over 130 institutions, bringing the depth and breadth to handle whatever a university needs, however complex or routine.
If anything in this issue raises a question for your institution, the team is happy to talk it through.
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