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Internationalisation, National Security and Risk – A New Era?

on Wednesday, 29 June 2022.

The invasion of Ukraine is a stark reminder that national security cannot be taken for granted, even in Europe.

Commentators are divided on whether this will lead to the end of globalisation but it does seem likely that it will have a significant impact on internationalisation, which is of particular importance within the context of higher education.

Internationalisation – Benefits and Risks

Back in 2019, the Government published its International Education Strategy. In part a response to concern about threats to the UK’s attractiveness as an education destination following Brexit, it emphasised the economic imperative to remain open and competitive.  In 2021, a strategy update was released to reflect the impact of the pandemic, whilst reiterating objectives of growing the annual value of education exports to £35 billion by 2030 and increasing the number of international higher education students studying here to at least 600,000 per year.

Achieving these goals requires the maintenance of world-class standards and ensuring that international students and researchers feel welcome, and are able to get – and stay – here. The benefits must also be balanced against the risks that international activity in this context creates for people, institutions and the sector as a whole. As the 2020 Universities UK guidance on internationalisation emphasises, potential financial, legal and reputation consequences mean that both institutional success and the security and prosperity of the UK is at stake.

Existing Protections

Of course, explicit recognition of these risks within the education sector is not new and a range of government agencies and departments already address the tangible and non-tangible aspects of national security and impact on higher education activity.

The protection of physical assets falls within the purview of the Centre for the Protection of National Infrastructure (CPNI) and the National Cybersecurity Centre, which is part of GCHQ. Their combined remits cover physical, personnel and cyber security and recent output includes the guidance ‘Informed Investment’ and ‘Trusted Research’. Turning to people, the Foreign Commonwealth and Development Office runs the longstanding Academic Technology Approval Scheme (ATAS), which applies to all international students and researchers who are subject to UK immigration control and intend to study at postgraduate level in sensitive subjects. Research output falls under the remit of the Department for International Trade, which runs the Export Joint Control Unit, regulating the trading of sensitive materials such as military goods, software and technology and affects academic research in these fields. The Intellectual Property Office also performs an important role in this area, issuing policy and guidance in addition to granting rights and supporting their enforcement.

National Security

More recent is recognition of the need for a security regime capable of responding to known and novel threats to national interests. This is reflected in the new National Security and Investment Act 2021, which is designed to be a flexible addition to the existing security landscape and eschewed the opportunity to define explicitly what national security is considered to be.

The UK’s implementation of this legislation lags behind the US by several decades and seeks to build on rather than duplicate what is already in place. Taking over a modified remit from the Competition and Markets Authority, the Department for Business, Energy and Industrial Strategy (BEIS) is tasked with running the Investment Security Unit (ISU). It is the ISU that will scrutinise and, if necessary, intervene in acquisitions and investments which create significant national security concerns where other remedies would not be appropriate. The relevance of this to higher education is explained in extensive guidance, identifying 17 sensitive areas of the economy deemed most likely to create national security concerns. As qualifying entities, universities whether charitable or private are potentially caught, as are subsidiary and spin out companies. Qualifying assets may be tangible or intangible including designs, software and algorithms, as well as land and equipment.

Whilst it is accepted that these new measures to enhance national security are needed, some remain sceptical that the right balance between protection and bureaucracy has been struck. The possibility of further work for universities under a new Foreign Influence Registration Scheme created via a proposed amendment to the Higher Education (Freedom of Speech) Bill has fuelled these concerns. It remains to be seen, however, if this will ever be implemented given the recent lack of progress through Parliament.

Why Comply?

There are a number of reasons why HEIs should comply with the new regime. Not least among these is the possibility of significant financial sanctions of up to £10 million or 5% of global turnover (whichever is higher) as well as injunctions or criminal proceedings. It is also important to note that the new requirements go beyond what is already in place. Unlike export control requirements, there is no need for an export, nor for a non-UK acquirer or a minimum value threshold.

There are also wider benefits of compliance, such as helping to address significant public concern about institutions working with and appearing to become reliant on foreign powers with the potential to become hostile. This goes further than creating reputational risk to individual providers and could impact the integrity and trust placed in the UK higher education sector as a whole.

What Are Universities For?

Beyond national security concerns these issues go to the heart of what higher education is for and shed light on its key components. From a legal perspective, they also emphasise a range of obligations and some universities have drawn up principles to help meet them.

Assessing and mitigating risks is a key part of discharging an institution’s duty of care to its people, be they students, researchers or staff. Defending academics from surveillance and intimidation is an essential part of upholding the principle of academic freedom – the legal right of academics to freely express opinions and distribute knowledge and truth without restriction. Safeguarding funding by scrutinising international relationships that may create public interest concerns is essential to the maintenance of institutional autonomy. The same goes for promoting transparency and managing potential conflicts of interest which might otherwise facilitate interference with, or the wrongful exploitation of, research. Similarly, ensuring intellectual property is protected can have a national security and a commercial dimension which must be reflected adequately in due diligence, policies, and research and partnership agreements.

Key Takeaways

Politics, disease and war have combined recently to have profound global effects to which the UK higher education sector is not immune. The economic imperatives of internationalisation remain clear, but so too do the complex and still evolving risks that arise from it.

Navigating these issues is about more than ensuring institutions comply with legislative and regulatory requirements. It goes to the heart of what higher education is for and underlines the importance of preserving fundamental values such as institutional autonomy and academic freedom at a time when these are under significant scrutiny and pressure.

A version of this article first appeared in University Business on 11 May 2022.

For more information on internationalisation and national security, please contact Kris Robbetts in our Higher Education team on 07795 662 796, or complete the form below.

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