Higher Education and Research Bill
Wednesday 18th January 2017
(7 years, 11 months ago)
Lords ChamberHigher Education and Research Act 2017 View all Higher Education and Research Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 76-IV(b) Amendments for Committee, supplementary to the fourth marshalled list (PDF, 71KB) - (18 Jan 2017)
The Earl of Listowel
“Fee limit condition: requirement for progressive reduction in fees for older care leavers
(1) A fee limit condition must include a requirement that any regulated course fees within the meaning of section 10 must, if payable by any person falling within subsection (2), reduce by 5% for each additional year of age, over the age of 21, of that person.(2) A person falls within this subsection if they are a care leaver, or an adult who has previously held care leaver status under the Children (Leaving Care) Act 2000.”
The Earl of Listowel (CB)
My Lords, I shall speak also to Amendments 138A, 229A, 229B and 449A in my name in this group. All these amendments deal with access to higher education and further education for young people who have been in the care of local authorities.
I intend to be as brief as possible but, before I begin, I thank the noble Baroness, Lady Goldie, for her kindness in making some comments on Monday despite my absence due to ill health. I appreciated what she said. I am grateful to learn that four-fifths of higher education institutions detail in their access policies particular measures for care leavers. Perhaps we might speak before Report about the other one-fifth that do not and what progress is being made in that area. The noble Baroness recognised in what she said that a low proportion of young people from care access university; in 2012 the figure was 5%, down from 8% a few years earlier. The figure in 2012 for all young people was 43% so clearly there is a disparity. She referred to problems about the data about care leavers attending university. I wonder whether it might be possible to anonymise it so that we understand how many care leavers are attending higher education without stigmatising them in doing so.
My amendments are probing. Amendment 122A would reduce annually by 5% fees paid by care leavers over the age of 21 so, for example, by the age of 41, a care leaver or care-experienced adult would no longer have to pay any fees. Amendment 449A would remove all fees for care-experienced adults. The purpose of both the amendments is to make it as easy as possible for older care leavers and care-experienced adults to access higher and further education.
The Government recognise in legislation that early trauma in childhood delays child development. That is why we have the Children (Leaving Care) Act 2000, which provides support for care leavers up to the age of 25, and the Children and Social Work Bill, which extends further rights for young people up to the age of 25. We recognise that early trauma delays development. Foster carers and adoptive parents tell me that many of their young people struggle early on, but in their late twenties, they can be thriving, with a family, being in employment or studying. They just start later.
Dr Mark Kerr, a care leaver himself and an academic, performed a study a while ago of care leavers who were 25 year-olds and found that about 30% had attended higher education. It may not be a particularly robust study, but it indicates that many care leavers and care-experienced adults will return to higher education later, especially if we make it as attractive as possible for them.
Amendment 138A would prioritise care leavers in student protection plans, in particular recognising their vulnerability. The context for this is that young people being taken into the care of local authorities will often have from their early years profound trauma which is continued repetitively over time. They have often had a very difficult start in life. When they enter care, that can also be a traumatic experience. I fear that often, still, despite good work from all Governments to improve the situation, they experience instability in care itself. There is a lack of access to mental health services, which would be very helpful to them in recovering from past trauma. Most of them have been in foster care. Foster parents have often had a poor experience of education themselves, as the academic, Professor Sonia Jackson, has noted. That is another disadvantage for those young people, as what happens in the home is very important in their education.
For example, the mother of a young woman of my acquaintance was a crack addict. When she spoke to her children, she would say, “If you don’t come and see me, I will commit suicide”. She would also say: “Drugs are much more important to me than you are”. She liked this young woman, saying that her father had abandoned her at birth and had never shown any interest in her. Fortunately, thanks to the work of her foster parents, she was reunited at the age of 16 with her father, who disagreed with that view and they have had a good relationship since, which has been extremely important to her success. She went on to university. She made a friend or two at the start of her course but, when they discovered that she had grown up in care, they did not want to know her. She felt stigmatised. She was shunned by them. She was devastated at first by that experience but, fortunately, she met more sympathetic young women, with whom she came to share accommodation, who were immensely supportive, because she experienced bouts of depression during her degree course. She has now graduated; she provides services for care leavers; and she sits on two boards as a trustee. She has recently married an accountant, a professional. My reflection on that is that her experience at university raised her aspirations, introduced her to a whole network of friends whom she would not otherwise have met and has clearly made a huge difference to her life.
Amendment 229A would make it a priority for governing authorities to attract care-experienced young people and provide them with the right finances to be successful in their courses. Amendment 229B would ensure that such students were offered 12 months of accommodation.
These amendments are necessary because in so many ways the lives of young people in care are impoverished—often emotionally impoverished—and there may well be low expectations of what they can achieve. They lack positive role models; the milieu where they grew up may have seen a great deal of dependency on welfare, and drugs and alcohol may have been involved. We need to do all we can to give them positive role models to reach out to them at school, into children’s homes, or wherever, and show them that it is possible for them to go on to university.
Such young people also suffer because, as the Government have recognised, the system of personal advisers who hold the pathway plan for care leavers is faulty. There are no real professional standards about who personal advisers need to be; it is pretty much up to the local authority who they are. From my experience and knowledge, those advisers provide a very hit-and-miss service. Sometimes they are very good but they are the ones who help young people into employment, housing and education, so that is all the more reason why universities need to do as much as possible to reach out to them.
Accommodation is necessary, as often these young people have no family to turn to or their relationships may be destructive. Above all things in their lives, they need stability and a firm foundation. That is why having 12 months’ accommodation would be so important to them. There are all sorts of challenges for the future lives of these young people, having left care. They have no family, poor support, as I have mentioned, and they are often caught in the housing trap nowadays as more and more local authorities are without their own local council homes. They may be placing young people in private rented accommodation. Once those young people try to get a job they find that they are trapped because as soon as they start getting into employment, housing benefit reduces and they cannot afford to keep their home.
There are all sorts of challenges for these children. The advantage of access to higher and further education gives them a far better chance of succeeding into the future and avoiding the particular risk that they themselves will go on to be parents who have their own children removed into care and we just repeat the old system. I look forward to the Minister’s response. I beg to move.
Baroness Brown of Cambridge (CB)
I rise to speak in support of the desire of the noble Earl, Lord Listowel, for there to be a strong focus in the Bill on care leavers as a very special group of students. When we were developing our strategy for care leavers at Aston University, I was absolutely horrified to discover that care leavers at 19 were very much more likely to be in prison than at university. It seems to me that supporting care leavers at university is a much better way of spending public money than supporting them at Her Majesty’s pleasure.
I hope the Government can put something in the Bill such as the noble Earl described, or something in every university’s access agreement, to ensure that this group of very special people get a really good opportunity to be socially mobile and successful.
Lord Willetts (Con)
Noble Lords on all sides of the House appreciate the personal commitment of the noble Earl, Lord Listowel, to this issue. However, I have to say that there has always been a long queue of people who wish, for various reasons, to exempt students from fees. My view has always been that this is an extremely dangerous route to go down. Students do not pay fees, and as soon as one implies in some way that fees are a barrier to students getting into university, one feeds a misconception that can do enormous damage. Indeed, if students from care were not, through the Exchequer, repaying these fees, that would be a loss of revenues for the university. The noble Earl, Lord Listowel, has recognised that because his Amendment 449A provides an alternative means of financing their education out of public expenditure.
We have heard from the noble Baroness, Lady Brown, quite correctly, that we need to support more care leavers in university. If there were ever any public expenditure of the sort the noble Earl envisages in Amendment 449A, rather than devoting it to a group of students being exempt from fees that they are not going to pay anyway, it should be devoted to helping people leaving care to go to university. Exempting them from a fee that they are not going to pay anyway, or will pay only if they are in a well-paid job afterwards, is not the most effective way to help care leavers.
Lord Watson of Invergowrie (Lab)
My Lords, I, too, pay tribute, as I have in the past, to the noble Earl, Lord Listowel, for his hard work in many areas, particularly in respect of care leavers. We worked together last year quite effectively on the Children and Social Work Bill, and made some progress in terms of government concessions; I hope that we might have some success here as well.
I am slightly disappointed to hear what the noble Lord, Lord Willetts, said about exemption from fees, as that is not what is sought here, as I see it. The amendment seeks a limit on or exemption of part of the fees, but not an entire reduction. In the circumstances that is important, because we have to understand that for people leaving care even to get to university is quite an achievement in many cases. Only 5% of care leavers make it to university, compared with 38% of the population as a whole at that age. So it is incumbent on us to do what we can to offer some assistance.
The amendments proposed by the noble Earl, Lord Listowel, cover a number of areas, which together create a package which would be of considerable assistance. People leaving care are some of the most vulnerable young adults, and they need help and encouragement to make their own way in life after a childhood that has often been devoid of the kind of settled home environment that many of us simply take for granted. For that reason, it is surely right that any care leaver who succeeds in gaining the passes necessary to be offered a university place should not be denied it due to financial constraints. I take the point that the noble Lord, Lord Willetts, made about a university degree leading to higher earning, and that is the general backing that the Government, and Conservatives generally, give for tuition fees. That has some traction, but in this case you are dealing with people who have had many difficulties in their lives.
We also have to think about the question of accommodation, which another of the noble Earl’s amendments touches on. Some universities already discount fees; some do not charge fees to care leavers. But another issue is what happens outwith term time. As the noble Earl said in speaking to Amendment 229B, the question of accommodation can be a crucial factor. All too often, care leavers who begin a course of study do not complete it because they have been unable to settle during holiday periods, having no settled home to go to, to the extent that they do not feel able to resume their studies.
Being in care does not prevent young people achieving a successful life, but those who have spent time in the care system are less likely than other children to achieve academic success. In many cases, there has been a gradual improvement in educational outcomes, but the rate of care leavers going to university has hardly changed in recent years. Children in care have the wealthiest parent of all—the state—yet it fails them in the most fundamental aspect of child development: education. The noble Earl’s Amendment 122 should not be seen as a cost to the public purse. In the longer term, care leavers who complete their courses will put back more than they have received—an argument understood in Scotland. Last year, the Scottish Government decided that all young people who have experience of care and who meet the minimum entry standards will be offered a place at university. Of course, although fees are not an issue in that part of the UK, those students are awarded a full bursary, which will be worth £7,600 from academic year 2017-18.
That is an example of the extra, targeted help to those who most need it, so that young people who have had life experiences that most of us can barely imagine are given an enhanced chance to succeed in building a life for themselves. Reduced tuition fees should, I believe, be automatic for care leavers, although I accept what the Minister said on Monday about not all care leavers wishing to self-identify as such. There are various reasons for that and I hope we can at least try to understand them, but we should do all that we can to minimise those reasons in offering a helping hand into higher education. The group of amendments of the noble Earl, Lord Listowel, would provide a powerful means of doing so.
Viscount Younger of Leckie (Con)
My Lords, I am grateful for the opportunity to speak to this issue and I thank the noble Earl, Lord Listowel, for raising it. Everyone who wants to and has the ability should be able to go to university, including care leavers. We know that care leavers face specific difficulties accessing and succeeding in higher education; universities take their responsibilities in this area very seriously and progress has been made. Care leavers are recognised as a priority group by universities and a particular focus is placed on supporting them during the admissions process. It is not appropriate for government to interfere in providers’ admissions processes, as they are autonomous institutions. We are, however, introducing the care leaver covenant, so that organisations can set out the commitment that they make to care leavers. We see this as the main vehicle for engaging the higher education sector in the wider effort to improve care leavers’ outcomes. I will not have time to go into all the issues that arise under the covenant but we would like to see some more practical things being offered, such as providing dedicated contact time to support accessing and completing courses of study, and organising outreach activities, taster sessions and staff awareness sessions. We see this as primarily being the way forward.
As the noble Baroness, Lady Brown, said, support for care leavers in access arrangements has grown considerably over the years. Around 80% of the access agreement actions that are agreed between the Director of Fair Access and a provider to widen participation as a condition of charging higher fees include activity to support access and success in higher education for care leavers. These include pre-entry visits to the institution, taster sessions—as I mentioned earlier—summer schools, and academic support to raise attainment. Universities frequently prioritise care leavers for financial and other support for students. Provision often includes substantial cash bursaries and fee waivers, and a named contact to assist care leavers.
As the noble Lord, Lord Watson, said, most higher education institutions offer year-round accommodation for care leavers, as stated by the Buttle Trust. For those institutions that do not offer year-round accommodation, local authorities are required, as corporate parents, to ensure that suitable accommodation is available during vacation periods, as set out in the Children Act 1989. Given that this duty already exists for local authorities, we should not duplicate it for higher education institutions.
I turn to Amendments 122A and 449A. In addition to support for accommodation outside term time, local authorities must provide financial assistance to the extent that the young person’s educational needs require it, as well as a £2,000 higher education bursary. Students defined as care leavers in the student support regulations are treated as independent students when their living costs support is assessed. This means that most care leavers qualify for the maximum living-costs support package for their higher education course. For 2016-17 this was around £8,200 and £10,702 in London. Given the nature and extent of support that is offered to care leavers to equalise support and opportunity, I do not therefore consider it necessary to provide tuition fee reductions or grants for care leavers. Like other eligible students in higher education, care leavers qualify for loans to meet the full costs of their tuition.
I will move on to Amendment 138A. Student protection plans should play an essential role in ensuring that institutions have made the necessary steps to protect all their students, by offering real protection to students should their provider or course close. The OfS will issue guidance on student protection plans, which is expected to include advice on what additional or alternative protective measures should be considered for particularly vulnerable groups of students or those from disadvantaged backgrounds, such as care leavers.
Given the existing measures to support care leavers, the focus on them as a priority group by the Government, universities and the Director of Fair Access, the financial and pastoral support provided by universities, the care leaver covenant, and the progressive and relatively advantageous student finance offering that we have in place, I hope that noble Lords are in no doubt about our aspirations for care leavers to go to and succeed at university. I am not therefore convinced that these amendments are necessary to deliver our goals and I ask the noble Earl to withdraw his amendment.
The Earl of Listowel
My Lords, I thank the Minister for his response. I am grateful to all noble Lords who have spoken in this debate, particularly to my noble friend Lady Brown, who highlighted the fact that more care leavers go to prison than into higher education. I imagine that is still the case and it should give us pause for thought. I very much welcome the detail of the Minister’s response. I will withdraw the amendment but may come back on Report with a couple more to press some of these issues a little further. I beg leave to withdraw the amendment.
Baroness Goldie
Baroness Goldie (Con)
My Lords, as the Government have set out previously in this and the other place, as well as in publications, our policy is that increases in tuition fee limits must be earned by demonstrating excellent teaching quality through participation in the teaching excellence framework.
These amendments correct a small drafting error in Schedule 2 to ensure that this policy is achieved. Under the amended wording, a sub-level amount can be set at the same level as the floor level, meaning that the Secretary of State can create a fee limit that applies specifically to providers that do not participate in TEF—either because they choose not to, or because they are ineligible—and set that limit as equal to the floor level.
Let me be clear: the floor level is the baseline, minimum fee limit, which is £6,000 for those providers without an access and participation plan and £9,000 for those with an access and participation plan. We have no plans to increase these values. Within the sphere of high-quality rating, providers who achieve a gold or silver rating will get a 100% inflationary uplift, and those who achieve a bronze rating will be recognised with a 50% inflationary uplift. Without these amendments, any sub-level amount assigned to non-participating providers would need to be greater than the floor amount. That would mean that these non-participating providers would derive benefit for no reason. That is unfair and contrary to our policy intent. That is why I am speaking to these amendments. I beg to move.
Lord Stevenson of Balmacara (Lab)
My Lords, will the noble Baroness reflect on the point she made as she concluded her remarks when she said that the fees would remain at £6,000 and £9,000 respectively, and gave the reasons for the two different fees and the reason for the amendment? She went on to say that the Government had no plans to increase these. She knows that is not right. A statutory instrument has already been laid—a negative instrument—which we shall debate shortly in this House which seeks to increase these figures by inflation to quite significant sums above £6,000 and £9,000. Will she confirm that that is the case?
As I am on my feet, and reflecting back on the debate we had on the first group of amendments this evening, I say that it was clear from the Minister who responded that he was making play of two reasons why he would not consider the arguments made all around the Committee on the link between the TEF and the increases in fees. One of them was simply that it was a good cause but he repeated the other several times and ended up having to defend it quite vigorously—namely, that this matter was contained in the Conservative Party manifesto at the last general election. The dinner break followed very shortly afterwards and I checked the Conservative Party manifesto. I am afraid that he is wrong on that point. The manifesto says:
“We will ensure that universities deliver the best possible value for money to students: we will introduce a framework to recognise universities offering the highest teaching quality; encourage universities to offer more two-year courses; and require more data to be openly available to potential students so that they can make decisions informed by the career paths of past graduates”.
It does not make a connection between the TEF and the quality of the courses, which would mean that only those with a good rating in the TEF would get increased fees. I therefore ask him to withdraw that when he next has the opportunity to do so, because he has misled the House a little on this. It does not matter in the great scheme of things—he was going to reject the amendment anyway—but we should have the right reasons for doing that, and that was not the case.
Baroness Goldie
My Lords, briefly, in response to the noble Lord, Lord Stevenson, on the specific matter he raised on the values for the floor levels, I can confirm that there are no plans to increase the floor level—I want to make that clear—and the inflationary uplift will be at the higher level. I hope that that clarifies the position.
“Reviews of admissions and access
The OfS must undertake or commission regular reviews, in consultation with relevant bodies, of—(a) the university admissions system, and(b) the numbers of, and range of provision available to, part-time and mature students.”
Lord Stevenson of Balmacara
My Lords, I will be brief. Although the phrasing of the amendment is quite broad, the intention behind it is relatively straightforward and quite narrow. In keeping with earlier debates that we have had in Committee, our feeling was that we should do all we can to make sure that those who have a commitment to extend access to higher education to as many people as possible would share the view—I think the Government also share it—that there would be value in having a more flexible system that would, in particular, include more part-time students. It therefore seemed that there was a bit of a gap, which this proposed new clause is intended to fill. With regard to access and participation, there would be a duty on the OfS to make sure that the system of admissions ensured that those who wished to apply for university were fully apprised of the fact that there were alternative models for how they pursued their higher education careers. They should think in terms of part-time or flexible courses, since that might be in some ways better than trying to do a full-time, three-year course immediately after leaving school.
I am sure that that is in the Government’s mind and that they would accept that the underlying thinking behind this is right. The amendment may not be the best way of providing this, but I thought it was worth putting it in as a probing amendment to make sure that we get on the record the Government’s commitment to this type of approach and to the idea that the architecture of regulatory and other bodies involved in the process has this as part of their thinking. I beg to move.
Lord Lucas (Con)
My Lords, I am happy to support the noble Lord, Lord Stevenson, on this amendment. It is only the OfS that will do these things when they need doing and keep an eye on them, and it ought to be part of what it is meant to do. It is far too easy for schools, colleges and universities to continue with their current practices and to grouse about what is happening. However, no individual or small collection of individuals ever has sufficient incentive to kick against the current system and to try to get a motion for change going. An example of that is post-qualification admission. I speak to a lot of schools, and a large number of them would like to move to post-qualification admission. Nothing will happen unless the OfS or a similar body decides to take a look at it. I hope that my noble friend can reassure me that, should the OfS or the Government wish to take a look at these things, they can do so without any powers beyond those provided in the Bill.
Baroness Garden of Frognal (LD)
My Lords, I support both the amendments in this group. I think that the arguments for post-qualification admissions are very strong and need further review. I would also welcome a mention in the Bill of part-time and mature students, who deserve to be given full consideration and are too often overlooked. I think that there is merit in both the amendments.
Baroness Goldie
My Lords, I thank noble Lords for tabling a set of amendments relating to admissions. By way of preface, I listened carefully to the points made previously by your Lordships about the importance of retaining the independent and autonomous state of higher education providers. Noble Lords will recall that I yearn to see something comparable in Scotland, but I am afraid that we have lost that.
One consequence of independence is that providers are then responsible for their own admissions decisions and, rightly, government has no power to interfere in this area. Universities are best placed to identify the candidates with the talent and potential to succeed at an institution or on a particular course, and the Bill makes it clear that this will continue. Indeed, Clause 2 ensures that the Secretary of State must have regard to the need to protect the freedom of higher education providers to determine their own admissions criteria. Clause 35 carries forward an important requirement from existing legislation that, like the current Director of Fair Access, the OfS will have a duty to protect academic freedom and institutional autonomy over admissions.
No doubt concerns would be raised across this House and the sector about the OfS overstepping its powers if a requirement regarding admissions were included in the Bill, and those concerns would be justified. The OfS will, as part of its broader duties, want to look strategically across the HE sector and to consider the implications arising from the admissions cycle. However, we would expect the OfS to work with bodies such as UCAS to ensure that the right information was available to inform a broader picture.
UCAS is a charity, established by HE providers, with a clear role in university admissions. It can and already does undertake and publish reports into admissions on behalf of the sector. Through the Bill we are introducing a transparency duty on registered HE providers, requiring them to publish application, offer and drop-out rates broken down by socioeconomic background, ethnicity and gender, and to provide the OfS with these data.
My noble friend Lord Lucas raised post-qualification applications—an issue that has been around for a number of years. As I said earlier, the autonomy of institutions in relation to admissions is enshrined in law. The current system has many strengths, including that prospective students can apply after they have their results, through clearing.
UCAS conducted its own review of the introduction of post-qualification applications and gave a clear recommendation not to move to this system. Should further investigation of the system be desired, it is for higher education providers to instigate it. The OfS could potentially be involved, but I suggest that such a requirement should not be set out in legislation.
The Government agree that part-time and adult education bring enormous benefits to individuals, the economy and employers. Our reforms to part-time learning, advanced learning loans and degree apprenticeships provide significant opportunities for mature students to learn. Allowing new providers to enter the system should result in greater choice of HE provision for part-time and distance learning, which can greatly assist mature learners. Under Clause 2, when carrying out its functions the OfS has a general duty to have regard to the need to promote greater choice and opportunities for students, which would include more choice and opportunities with regard to part-time and mature provision. However, it is important that we keep the duties of the OfS broad and overarching so as not to overburden the organisation and so that we can enable it to function efficiently and flexibly.
Having regard to what I have just said, I very much hope that the noble Lord will feel able to withdraw Amendment 128.
Lord Lucas
My Lords, I am sorry that the Government take the attitude they do to post-qualification admission. It seems to me that this is something in which schools and students should have a voice and that it should not be entirely down to universities. It distorts school education very substantially and therefore I think that it is not only the interests of universities that should be taken into account. However, I accept that the Government think differently.
Since the noble Baroness is in the business of dispensing bad news to me at the moment, can she confirm the rumour that we are to sit well past midnight on Monday?
Baroness Goldie
I have always regarded the noble Lord as my friend and I shall do my best not to alienate that happy relationship. Your Lordships will be aware that this is very significant legislation— I understand that it is unprecedented in terms of amendments. Although I have no precise timings for Monday, it may help your Lordships to know that I am given to understand that we can anticipate a long sitting, but until when, I cannot be precise about.
Lord Stevenson of Balmacara
I am sure that the usual channels will come up with an equitable solution for all concerned. I think it would be for the benefit of the House, and indeed for our ability to cope, if we all cut down our speeches quite a lot more than we are currently doing, but that is not a matter for debate at the moment. I will do my best to live up to my aspirations, although I am not very good at it.
I simply want to say that I agree with what the Minister said about the amendment because I did not ask for any additional burdens to be placed on the OfS or any issues to be raised about the autonomy of individuals and institutions and their admissions. What I asked for was that some regard should be given by OfS to commissioning regular reviews, in consultation with those bodies, in order that there be better information about the advantages of part-time and mature student routes and courses that would appeal more to those with more flexibility. However, I think that enough has been said on the record to make sure that this issue has been picked up. With that, I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, with this amendment we move to registration conditions, and a number of issues arise in this and subsequent groups in relation to these conditions. The conditions are very important and I do not think that we should skip too quickly over them, despite what I just said about trying to move forward quickly. As well as my amendments, to which other noble Lords have very kindly added their name, this group includes an interesting amendment from the right reverend Prelate. They affect some important issues and it is worth pausing slightly on each amendment as we go through.
Amendment 132 picks up the hopefully unlikely situation that if a provider was to close—or, as does happen, a course closes—there should not be any reasonable financial loss transferred to individual students. There are one or two scare stories about how difficult it is sometimes to extricate students who have commitments, particularly when a course has an overseas engagement. The amendment is valuable in that it picks up on an area that is not covered well in the Bill. However, it may not be necessary to press it if sufficient reassurances about the processes that would be applied can be given when the noble Baroness comes to respond.
Amendment 133 was an attempt to use the registration conditions contained in the Bill to, in this particular clause, try to sketch out a bit more what was meant by saying that there is a vision of what universities are in the United Kingdom. The amendment lists a range of issues that one would hope to see in these institutions, which may or may not be attractive to the Government in trying to help with their understanding of it. It is a probing amendment and deals with something that is of interest. We will read what they say in due course and think about bringing it back, if necessary.
Amendment 134 would enable the OfS to set stricter requirements for new providers to get on to the register by looking in more detail than is perhaps given in the Bill at the moment at previous history and the forecast of future sustainability. The problem we come up against is that, in considering challenger institutions, we are often talking about very small and relatively recently formed organisations, some of which may not even have proper corporate status or, indeed, the issues related to that, which I gather have been touched on in the Minister’s recent letter about what was required of an institution intending to register as a university—that was very helpful. This plays back against a little of that because there will be concerns about small institutions. They may be unwarranted but size is a factor in what may be required to sustain an institution. We need to think about track records and these entry requirements might be worth considering in that context.
With Amendment 138 we are again back to the question of what happens in the event of the failure of a course or institution. It is more about courses and focuses on simple protection plans which would make sure that there was no disruption to the studies of existing students if a particular course was pulled out, and more generally would make sure that institutions that fail have got plans in place to ensure that the students effected are not lost to the system, for example, and that there are other arrangements.
Our attention has been drawn to the phrasing of the Technical and Further Education Bill, which contains significant recommendations in this area. They do not appear in the Higher Education and Research Bill and I would be grateful if the Minister could explain why we do not have the same degree of reassurance in this area as we will have when the Technical and Further Education Bill becomes law. There is a gap—it may just be because the two Bills are proceeding at a different pace—and if it is possible to look at that and bring back something on Report, it would be a good thing.
Amendment 149 relates to a technical question about what happens to students in any suspension period. At the moment the regulations are clear in general terms but they are not specific about what would happen in terms of notifying students. The student protection plan agreement should be revisited to make sure that that is covered.
Amendment 224 would ensure that when higher education providers produce an access and participation plan there is a consultation process with the students—and it gives a definition of the students who would be consulted. I beg to move.
Lord Norton of Louth (Con)
My Lords, I will speak to Amendment 138, to which I am a signatory.
I made the point at Second Reading that a shell provision for student protection plans is not sufficient to reassure students that, in the event of institutional failure, they will be able to continue their education. I chair the Higher Education Commission and in our report, Regulating Higher Education, we stressed the need to have a strategy in place that allowed for an institution to exit the market in an orderly manner with the right level of protection in place for students.
Institutional failure would create obvious problems for students, not least in terms of disrupting their education and potentially leaving them adrift, at significant financial cost. As we argued, good governance and proper scrutiny should reduce the chances of failure, but there needs to be greater attention given to what happens when an institution does fail.
On the recommendation of HEFCE, we looked at the travel insurance industry, which participates in a sector-wide scheme to protect air passengers. We argued that this model could be applied to the HE sector, with a requirement for institutions to sign up and pay a sum per student into a fund which would cover costs in the event of failure. Our recommendation was:
“Institutions need to be better prepared for the possibility of a failure in the sector. Given the potential damage this could inflict on students and the sector as a whole, a ‘protection’ or ‘insurance’ scheme coordinated by the lead regulator should be put in place”.
I welcome the fact that the Bill recognises the need to have some student protection plan in place, but merely placing a duty on the OfS to ensure that such plans are in place is inadequate, in my view, for the purpose of providing the reassurance to students before they embark on a course of higher education that they will be able to complete it. The more new entrants come in to HE and the more a market exists, the greater the risk becomes. However, it is not the new entrants causing the potential problem; that already exists. It just exacerbates the potential.
The Lord Bishop of Portsmouth
My Lords, my colleague and right reverend friend the Bishop of Ely is unable to be in his place, but has asked me to bring before your Lordships Amendment 134A. I and he welcome the Minister’s assurances thus far for disabled students. It is very welcome that he intends to publish guidance to ensure that higher education institutions are best able to fulfil their duties to disabled students.
For any student to begin the undertaking of a university course is a large commitment. Students with disabilities may face additional challenges to those encountered by their peers, as the noble Lord, Lord Addington, so eloquently expressed last week—hence the importance of ensuring that adequate provision is made to allow them fully to engage with their course of study and all the other dimensions of a university education on equal terms with their fellow students who do not have a disability. In the event of a closure of their course, or even of the whole institution, plainly all students affected would face significant upheaval. For students with disabilities or other learning needs, the stakes are understandably even higher. For example, they may have specific needs around transport, specialist support, or adapted accommodation.
The numbers involved are significant. About 86,000 students in the UK—5% of all students—claim disabled students’ allowance, which, as noble Lords will know, covers those with long-term health conditions, mental health conditions and specific learning difficulties. In addition, there will be other students who are not eligible to claim DSA but who will have support needs which institutions work hard to meet. I mention only one such group: those with mental health issues, for whom we were pleased to hear of plans further to improve support arrangements in conjunction with, for instance, UUK.
That is why I ask the Minister to consider giving specific priority, when student protection plans are being drawn up and approved, to those students with these specific needs. Especially in the light of sympathy expressed so far, will Ministers and officials consider looking afresh at the explicit inclusion of those with specific needs in criteria for approving and reviewing student protection plans, as the amendment would require?
Baroness Garden of Frognal
My Lords, I support the right reverend Prelate’s amendment. We hear increasingly of mental ill-health and stress among students, so building in provision for them would be helpful.
On Amendment 138, as the noble Lords, Lord Stevenson and Lord Norton, have said, it seems strange not to have such a provision in the Bill. I see in the guidance notes that the wording is not quite the same, but these same provisions have been put as “the measures for a protection plan could include”, so there seems no reason why there should not be the extra assurance of having these measures spelled out in the Bill.
Lord Lucas
My Lords, we are surely clear that the route that we are going down will mean that institutions go bust and find themselves unable to function. My noble friend the Minister said in one of his replies to me on Monday that information as to whether a university was getting near the borderline, in terms of having the ability to admit overseas students removed from it, would be concealed. So we must expect students to be faced with the closure of their courses at short notice, and we must expect the institutions running those courses to be completely incapable of helping them.
In those circumstances, we need what my noble friend Lord Norton of Louth has proposed, which is a mutual scheme. That must have the ability to organise for the courses to happen—so it must have money and it must have agreement that room will be made for students. It must have enough leverage to deal with the Home Office, because any student who is looking at an extended time here to complete a course will be in real trouble—returning home; six-month waits—trying to organise extensions. It is difficult enough for a student at Imperial who needs an extra year for his PhD; it will be extremely difficult for students in a failed institution. We need some money, some clout and some organisation behind this. If it is not to be the sort of structure that my noble friend proposes, my Amendment 163 would dump the obligation to look after such students on the OfS—but it has to be somewhere.
Lord Willetts
My Lords, I welcome particularly the amendment proposed by my noble friend Lord Lucas. The official doctrine has always been that a university can go bust, but I was never able to contemplate the political feasibility of a scenario where a padlock is swinging on the gates of a university, with a group of students outside desperate to go in for their history lectures and being told, “I am terribly sorry; we’re closed”, while tumbleweed blows through the campus. Indeed, Margaret Thatcher faced this in 1985 in Cardiff. She was not willing to allow University College, Cardiff to go bust. I think that we can accept that we are functioning in an environment where in reality it will be very hard just to say, “Bad luck. You’ve done 18 months of a course and it’s come to an end”.
The question is how one should address that, which gets to the heart of some quite important issues in the Bill. There has been a fashionable doctrine for a few years of the ABTA solution—and some kind of scheme like that could be made to work—but in my experience the closest we got to this problem was clearly HEFCE. It was acting as the co-ordinator, organiser and convenor. It might have been that students had to be located at several other universities and it would get different universities to make their contributions so that students would be educated. If we get into such a scenario—my noble friend Lord Lucas is absolutely right that we have to contemplate it—it is very hard to see how it could be resolved without some convening power for the OfS, which, as I have said in other contexts in this Committee stage, is in many respects the son of HEFCE. A lot of our problems will be resolved if we think of it as the son of HEFCE. My noble friend’s proposal to make it clear that there is some legal responsibility for OfS must be an important and credible part of any solution. It is not credible to imagine that the matter could be addressed via an ABTA-type scheme.
Baroness Goldie
My Lords, I will try to abbreviate my remarks somewhat but this is a very important group of amendments so I want to try to genuinely address some of the points that have been raised. I am grateful to noble Lords for their contributions. Student protection and experience are important issues.
Student protection plans are important. They should be robust and offer real protection to students, should their provider or course close. The Office for Students will have overall responsibility for creating and issuing specific guidance on student protection plans. That is an important development and a very important safeguard. We expect this guidance to include the content, the process for approval and review, and the likely triggers for implementing student protection measures. The guidance will be developed as part of the regulatory framework, in consultation with the higher education sector, including bodies representing the interests of students.
In relation to the specific point raised by my noble friend Lord Norton, it is absolutely right that the OfS consults on this issue fully, and it should set out further details and best practice in guidance. We tabled an amendment to the Bill in the other place to require student protection plans to be published and therefore brought to students’ attention. That is an important step to ensure transparency in relation to these plans.
I agree with the noble Lord, Lord Stevenson, that protection from financial loss could be an important function of some student protection plans, as could measures to enable students to transfer or continue their studies, perhaps within the same institution but in a different faculty or department. Student protection plans are likely to include a diverse range of measures to protect students, reflecting the diversity of the higher education sector, together with a diverse range of possible triggers for a student protection plan, including suspension of registration.
The noble Lord, Lord Stevenson, asked why we do not have the same degree of reassurance in this Bill as in the further education Bill. The different mechanisms reflect the different characteristics of students in higher and further education as learners in these two spheres. But both approaches are designed to protect the interests of students. That is something we must not lose sight of.
The noble Lord, Lord Stevenson, also raised the issue of strengthening registration conditions for new providers. That is an important matter. In determining initial and ongoing registration conditions, the OfS will assess, among other factors, a provider’s academic track record and—this is very important—its financial sustainability. I assure the noble Lord that where the OfS determines that a new provider represents a higher level of risk, it must, under the provisions already included in Clauses 6 and 7, apply more stringent, but proportionate, conditions to that provider. There is a facility to recognise where there may be an element of risk.
I wholeheartedly agree with the views expressed by the right reverend Prelate the Bishop of Ely in his amendment, which were very helpfully expressed by his colleague, the right reverend Prelate the Bishop of Portsmouth. I thank him for being with us this evening. Student protection plans should be mindful of additional or particular protections that may be required for disabled students or those with special educational needs, which the noble Baroness on the Liberal Democrat Benches referred to. Again, this could be made clear in the OfS guidance.
Turning to Amendment 163 in the name of my noble friend Lord Lucas, I want to make it clear to your Lordships that there are currently no direct regulatory barriers to students moving between universities. Supporting students who wish to switch higher education institution or course is an important part of our reforms.
In relation to student experience, which the noble Lord, Lord Stevenson, raised, there is no universal neat-fit template that covers all situations because student populations vary hugely in their requirements. As independent and autonomous organisations, higher education institutions are best placed to decide what experiences they can and want to offer. I do not think that that should be prescribed by government.
Finally, the noble Lord, Lord Stevenson, also raised the question of involving students in access and participation plans. I reassure the Committee that the Office for Fair Access currently expects providers to include a detailed statement on how they have involved and consulted students in the development of their plan, and the Director of Fair Access has had regard to these when deciding whether to approve a plan. Providers are encouraged, for example, to set out where students have been involved in the design and implementation of financial support packages. Some student unions run information, advice and guidance sessions to explain the support packages to ensure maximum take-up from eligible students. We fully expect this successful approach, which has developed over a number of years, to continue.
I hope these comments reassure your Lordships that these issues have not fallen off the radar screen. They are very much before us and I therefore ask the noble Lord, Lord Stevenson, to withdraw his amendment.
Lord Willetts
My Lords, my noble friend Lord Lucas can speak for himself but it is worth focusing on this scenario for a few more minutes. I would be grateful if the Minister could take us through what she expects now to happen if a university gets into difficulties. I can tell her that it will end up on the Minister’s desk within a matter of hours. In my view, the Minister needs to have the power to ask the OfS to do things which ensure that those students continue to get higher education. That could supplement ABTA-type arrangements or whatever. I would be grateful for her assurance to the Committee that either the powers already exist in the legislation as drafted, or that the Government will support measures to ensure there are those powers. There will otherwise be quite a serious gap. We know from other areas, including health service legislation, that it is a fantasy to imagine, “Don’t worry, we can just leave it all to the individual universities and their ABTA arrangements—it is nothing to do with the Minister”. It will end up on the Minister’s desk and we are doing a disservice to future Ministers if they find themselves in this situation and ask, “Why on earth did nobody give me or the OfS any power to do anything in a situation like this?”, where clearly public action to convene is expected as a minimum.
Baroness Goldie
I thank my noble friend for raising significant points. Let me try to put his mind at rest. I hope he will accept that the whole thrust of the Bill is to create not just new territory for the way in which we deal with the provision of higher education in England but a set of new relationships, not the least of which is putting the student right at the core of higher education provision—perhaps doing so in a way which we have not seen before. That is to be applauded. The constitution and creation of the OfS develop a body which is not just a paper tiger. This body is given significant, meaningful and tangible powers in the Bill—powers that it will be required to deploy and use if difficult situations arise.
My noble friend posed the specific question of what will happen to students if a higher education institution goes bust. First, it is intended that the OfS will monitor the financial health of institutions and require student protection plans to be implemented if a provider is at risk of being unable to deliver a course. The OfS will not be operating in some silo or vacuum. It will actually be a hands-on and in-touch body, with its finger on the pulse to know what is happening. It will have an early indication if there are reasons for concern.
For example, if in the unlikely and very unhappy event that a higher education institution goes bust, existing students might be taught out for the remainder of their course or academic year, with provision to transfer to another institution having banked their existing credits. It would entirely depend on the terms of the student protection plan but that is indicative of how these plans have to be broad, far-reaching and flexible. The core of all this is that at the end of the day, they must provide that underpinning protection to which students are entitled.
It is currently the case with HEFCE that the Office of Students may be able to support an institution while it implements a student protection plan. It might, for example, reprofile loan repayments or provide short-term emergency support. This is very much a nuclear option because instances of a provider suddenly and without warning exiting the market completely are likely to remain extremely rare. We would expect student protection plans to be implemented as far as possible—for example, measures to financially compensate students—and the OfS to support students in transferring to alternative institutions. There is a variety of solutions, remedies and initiatives which could be deployed, and it is very clear that the powers that will be available to the OfS will make such deployment perfectly practical, reasonable and manageable. I hope that reassures my noble friend on the issues which he raised.
Lord Stevenson of Balmacara
I have to say to the Minister, who cannot see behind her, that her noble friend was not looking that reassured.
Lord Lucas
No, I do not find myself reassured. I very much hope my noble friend may be able to write to us. The sort of protection plan she is talking about is starting to look extremely expensive. Are they going to hold a year’s fees in reserve? If we do not have some kind of mutual arrangement, each course will have to look out for itself; that is going to be extremely expensive and make new initiatives very difficult to finance. I would really appreciate a properly worked example of what happens when a university ceases to trade at relatively short notice.
Baroness Goldie
I am very happy to undertake to write to my noble friend. I have so much of interest to tell him that it will be a long letter.
Lord Stevenson of Balmacara
As I was saying, I do not think the Minister quite got to the heart of the question asked by the noble Lord, Lord Willetts, about what the Minister does when this letter arrives on the desk. I think the noble Baroness managed to avoid mentioning Ministers at all. We take on board what the Minister is saying about the role of student protection plans and the institution in this. She is right to say that this has to be settled long in advance and we have to know what we are doing, but there is the question of realpolitik. When these matters arrive courtesy of the Daily Mail and land on the Minister’s desk, she is going to have to have a better answer than that. I suspect that the answer is that the power to direct the OfS will remain in the armoury given to the Minister. Although we have some reservations about that, in exceptional circumstances that will obviously be the right thing to do. I was pleased to hear that, like us, the Government accept that if the student is at the heart of this new reformed plan for higher education, the student has to have some rights and responsibilities, and they have to be real and exercisable. The letter should try to cover that journey in these extreme situations.
I am, however, left with Amendment 138 and its drafting. I think the Minister said that it is not necessary to bring it into the current Bill from the Technical and Further Education Bill because the institutions are different. These institutions will probably be offering a similar number of courses around degree apprenticeships, and higher education is often provided in further education situations, so I do not think that argument sustains itself. Will the Minister write to us about the reasons for not including these rather well-worked-through arrangements, which seem to answer all the questions she has been asked, as they exist in legislation which we are about to consider and could, with very little effort, be copied into the current Bill? I beg leave to withdraw the amendment.
Lord Desai
“( ) a condition requiring that all student assessments, written and otherwise, including assessed dissertations at both undergraduate and postgraduate levels, are either—(i) robustly blind marked to ensure the identity of the student is not known to the marker, or(ii) where it is unavoidable or probable that the identity of the student will be known to the marker, secondarily marked by an independent marker to whom the identity of the student is unknown.”
Lord Desai (Lab)
My Lords, I shall speak also to Amendment 133B. They are pretty straightforward. They concern the notion that students should not feel that they are being discriminated against; they should not actually be discriminated against and they should not perceive that they are being discriminated against. The suggestion is that there should be blind-testing as far as possible—and if blind-testing is not possible, there should be a second examiner who should not know the name of the students.
Amendment 133B applies the same principle to admissions. BAME students in particular feel the possibility of discrimination, so this is to reassure them. I beg to move.
Lord Bew (CB)
My Lords, I rise briefly to support the amendments in the name of the noble Lord, Lord Desai. I learned earlier this evening that he taught at the University of Pennsylvania, as did I and the noble Lord, Lord Norton of Louth. That university is about to be further distinguished by the fact that one of its alumni is to become President of the United States in two days’ time. But I did not agree with his saying that it is easy to assess university teaching, partly because of the mixture of research that is involved with teaching and the difficulties of making judgments in that area.
I will come to this issue in Amendment 189, in my name, but there is a real danger that the Government are aiming for a spurious scientificity in their attempt to deal with the problem. On the other hand, Amendments 133A and 133B hit on something that can and should be dealt with to protect students’ interests. It shows greater objectivity in the treatment of students, which is all the more necessary in the epoch we are now in, when these matters are greatly disputed, much more than they were a generation ago. Broadly speaking, it is easier, and I think more appropriate, to meet the requirements of the government manifesto by aiming at things which actually hit at what I might call the fecklessness of university teachers—not marking properly or quickly enough, not being good enough at getting in contact, not replying to emails. Those are things that legislation should be aiming to correct to protect teachers, but it should not aim at a spurious scientific metric, which is quite a dangerous thing to do.
The thinking behind Amendments 133A and 133B, in the name of the noble Lord, Lord Desai, is very solid and goes to the heart of putting, as the Minister said, the student and the legitimate protection of the student’s interests at the heart of things, rather than seeking a bogus popularity among students. This is a legitimate concern for students and they have a right to be protected in this matter.
Lord Watson of Invergowrie
My Lords, as someone who is not an academic, I find it quite surprising that amendments of this sort should be necessary, but given that they have been moved and supported by very long-established academics, it is clear that there is an issue here. I thought that that blind-marking assessment was what happened all the time in the established universities, but it may not be the situation in some of the newer or smaller providers, and the question is what will happen with some of the future providers. To me, this is something any student should have a right to expect. Nobody, whatever their background, should be discriminated against, consciously or unconsciously, by whoever is involved in marking an assessment. If we are being told by academics, as it appears we are, that these amendments are necessary, I would certainly want to support them. I hope the Minister will take it in good faith that they are necessary.
Baroness Goldie
My Lords, I thank the noble Lord, Lord Desai, for tabling these amendments, which speak to concerns about unconscious bias in admissions and assessment, which I know we all take very seriously. As we have established, institutional autonomy is a vital principle for higher education, and academic freedom will continue to be protected through the Bill. I suggest the matters raised in these amendments are for individual institutions to take their own decisions on, as independent and autonomous bodies.
Amendment 133A would add a new requirement to Clause 13 to ensure that judgments made by higher education staff when making an assessment of a student’s work are not pre-determined by knowledge of the student whose work is under consideration. Under the current quality system, this is covered by the UK Quality Code. Expectations and guidance to ensure that judgments of student performance are based on the extent to which the student is able to demonstrate achievement of the corresponding intended learning outcomes are of course the essence of what is intended by that quality code. Indeed, all providers are expected to abide by the requirements of the quality code, and that will continue under the OfS. We would not want to undermine the flexibility of providers to achieve a fair assessment by introducing a new level of prescription, which the amendment would do. We do not feel that would be in the best interests of providers or indeed of students.
Lord Desai
My Lords, I thank all noble Lords who have taken part in this debate. I thank the noble Lord, Lord Bew, and my noble friend Lord Watson, and of course the Minister for her reply. I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, with the agreement of the Committee, and in the hope that we can get through a bit more business, I was going to suggest that we move very quickly through this group of amendments, which are largely in my name—although there is also one in the name of the noble Baroness, Lady Deech—in order to get one more group of amendments in before we finish. We shall see how we get on.
The reason for my saying that is that although at the core of this group is the question of academic freedom, which I know the noble Baroness wants to speak about—I ask her to do so as soon as I sit down—the other amendments are about a list of principles in the Bill, and play to questions of institutional autonomy, academic freedom and the practice of what universities are about. Much of that was covered in the debate on Amendment 1 on the first day in Committee, so it is not necessary to make these arguments in detail, and I ask the Minister not to spend much time on them; indeed, they will come up again later. I will give way to the noble Baroness if she wants to make some remarks, because she has a taxi waiting.
Baroness Deech
My Lords I appreciate the kindness of the House in allowing me to speak to my Amendment 166, which is a little different from the others in the group. I make no apology for returning to the issue of academic freedom. When it was discussed in relation to Amendment 65 on the first day of Committee, the Government’s response was that academic freedom is already enshrined in Clause 14 as one of the principles that must be in the governing documents of a university. The amendment before us goes further in that it extends the principle of academic freedom to every person and body under the Bill, including the OfS and its satellite bodies. Moreover, it will apply directly to the university in its everyday operations, not just in its governance documents. There will be nothing to stop a future Secretary of State removing that principle rather than, as in the past, finding that power only in the Privy Council.
There is also concern that the new Clause 1, which was passed by this House, which mentions academic freedom, might not survive Commons scrutiny. All our freedoms, including those in the convention on human rights, are circumscribed by law, which changes from time to time, so academic freedom—limited here to academic staff, not visiting lecturers, students or auxiliary staff—is subject to the criminal law. There is a lot of law circumscribing academic freedom and freedom of speech, including terrorism, equality and discrimination law. Academic staff are free to hold conferences at the university, but will not have protection —rightly so—if that conference promotes racial hatred or gender discrimination. I have often wondered about the example of a medical lecturer teaching students how to perform female genital mutilation, as opposed to how to how to discover it or take remedial action.
The extent of the teaching excellence framework also risks infringing on academic freedom if it goes as far as to tell a lecturer what, or perhaps how, to teach his or her class. We remain in dangerous water and the amendment is sorely needed. It is also a safeguard for lecturers against students’ censoriousness in this age of safe spaces and snowflake undergraduates. A lecturer must be able to lecture, despite the disapproval of his colleagues and students. I instance an LSE lecturer, Dr Perkins, whose well-researched views on benefits and their recipients were not welcome. The amendment would also incorporate the human rights of freedom of expression, assembly, thought and belief. It is sadly necessary that this be repeated as a direct responsibility on each university.
Baroness O'Neill of Bengarve (CB)
My Lords, I very much regret delaying things at this hour, but I ask for a clarification on Amendment 139, moved by the noble Lord, Lord Stevenson of Balmacara. It states that an English higher education provider is a higher education provider in England: we go back to this territory. I thank the Minister very much for the letter that was quickly sent to those of us who asked about it, but the clarification provided in the letter does not meet the need.
The letter states: “If an overseas university wishes to set up a base in England and wishes to appear on the register for its students to be potentially eligible for student support and to apply for English degree-awarding powers and university title, but most of its students are based overseas, then it will need to set up a presence in England as a separate institution”. It is not clear to me whether that separate institution is incorporated under English law or could be incorporated under other laws. That needs clarification. I think the letter is intended as a clarification of Clause 77. However, I do not think it really takes account of the reality of contemporary distance learning, because it continues: “But if it was the case that such an overseas university had more students based in England and overseas, it would be able to meet the definition set out at Clause 77 without establishing a separate institution in England”. The OfS will of course have to apply a risk-based approach to regulating such institutions and could impose stricter initial or ongoing registration conditions where it considered that such an institution presented a greater degree of regulatory risk.
If this overseas institution that has a majority of its students in England is not incorporated under English law, I am not clear how this will work. Maybe I am being thick about this but I think I can imagine an overseas institution that is primarily teaching via MOOCs that has, as it happens, more students registered in England than it has registered in whatever jurisdiction it is incorporated in. I ask myself whether that is an adequate protection. Would we need to be clear that an English higher education provider or the sub-institution it sets up be incorporated under English law? In particular, would any holding of property or funds by that subsidiary institution have to be under English law?
Viscount Younger of Leckie
My Lords, in the interests of brevity I shall write a full letter addressing the main amendments in this clause. Just before I conclude, I want to say that the issue focuses on the provider which carries on some of its activities outside England. The only proviso is that it must carry out most of its activities in England. We are focusing on the English higher education provider.
The amendments, particularly Amendments 140 and 164, go to the important principle of academic freedom that we all agree underpins the success of our higher education sector. I believe that there is no difference of view on that matter. As I said earlier this week, the Minister in the other place and I are reflecting on this issue, taking account of the views that we have heard in this place. I listened carefully to the comments raised by the noble Baroness, Lady O’Neill, and, as a result of the letter that she received today, the very best thing to suggest is that I will meet her to take her points further and/or write to her.
While I understand and sympathise with the intention behind all these amendments—I promise that I will follow up with a full letter and the new clause—I do not think they are necessary, and ask the noble Lord to withdraw his amendment. Just before I conclude, I want to clarify one point and to address the issue raised by the noble Lord, Lord Stevenson, who asked me to clarify my position on the linking of the TEF fees. I have also had time to check the Conservative manifesto. I agree that the manifesto commitment was to introduce a TEF, and I want to make this quite clear to the House.
Lord Stevenson of Balmacara
I thank the Minister for that clarification. I am sure that we will return to the issue on a more substantive basis in the future.
I was very grateful to the noble Baroness, Lady O’Neill, for raising that question. I almost did a little riff at the beginning because I wanted to explain why my amendment looks like nonsense; the world of Alice in Wonderland came to mind. It was precisely because of my frustration because I could not get my mind round what was meant by an English higher education provider, and whether that was different from a higher education provider in England, and what did it all mean anyway? I am grateful to the Minister for saying that he will write again about that because, like the noble Baroness, I have read the letter, but only briefly, and I do not think that it clarifies exactly where we need the clarification, which is: what is the constitutional position and where could these places be sued since it is all now on a contractual basis? Until we know how they are constituted and where they are, we will not be able to do that. With that, I beg leave to withdraw the amendment.
Lord Lisvane
Lord Lisvane (CB)
My Lords, as this is the first time I have spoken in Committee on the Bill, I should declare, as I did at Second Reading, that I am one of the founders of the New Model in Technology & Engineering university to be established in Herefordshire —and I am most grateful to the Minister for his mention of that in earlier proceedings. I am also an honorary fellow of Lincoln College, Oxford.
In view of the lateness of the hour, I shall be as quick as I can with this slightly technical set of amendments, all but one of which are concerned with the concept of legal certainty. In each case, they seek to raise the standard required. The Bill allows the OfS to take action “if it appears” to the OfS that particular circumstances have arisen. The actions are rather serious ones—imposing monetary penalties; suspending registration; deregistering; or refusing to renew an access and participation plan.
Lord Judge (CB)
My Lords, I support the amendment. I shall not repeat how subjective the test is,
“if it appears to the OfS”—
but it is entirely subjective. These are very wide-ranging powers that are envisaged; they are very serious powers that will be exercised. Of course, as the Minister said on 9 January, they are powers that will have to be exercised reasonably, not on a whim, and would be subject to a judicial review—but a judicial review of such a decision would succeed only if the decision made by the OfS were unreasonable in a particular legal sense, so that no body exercising these particular powers in this situation could have exercised them in this way. It will not succeed merely because the decision is wrong.
If I may make it more personal, two reasonable people can disagree with each other and both can still be reasonable. If the Minister disagrees with me—perhaps he will, perhaps he will not—I may respectfully suggest to him that he is wrong, but I would certainly not suggest to him that he was being unreasonable. It is a point of view. There is a great deal to be noticed in the context of what the reasonable exercise of powers actually amounts to.
These amendments are designed, as I see it, to secure from the outset that the office must believe that there are reasonable grounds for its decision to deploy its statutory powers. Framed in this way, the grounds for relief can themselves be examined. Although there are passages in the schedule which deal with that, it would encourage greater thought and analysis being given to any process of deploying the draconian powers that are being vested in the office.
Lord Watson of Invergowrie
My Lords, I do not rise to add anything to the remarks of the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge—I am not able to do so; the points they make sound very sensible and backed up with legal opinion. I hope that the Minister will take them on board. I rise on an amendment on which I and my colleagues have no involvement to make the more general point that I am sure that the Minister is going to say, “This is all very well, it sounds fine, but it’s not necessary—in the best of all worlds it will all be fine”. It is getting very tiresome. This is not the way in which legislation is meant to progress in your Lordships’ House. There have been absolutely zero concessions so far from the Government since the Bill came to your Lordships’ House. It is inconceivable that anyone outside looking in would accept that every amendment put forward is unnecessary or does not fit in with the Bill. That cannot be the case. I say in all good faith to the noble Viscount the Minister—and to the noble Baroness the Minister—that I am not making a political point as it is not one of my amendments but, with so many amendments on this Bill, they cannot all simply be turned down flat. I hope that he will bear that in mind, if not on this group of amendments then as we move forward.
Viscount Younger of Leckie
I shall address the points raised by the noble Lord directly. He will know that we are and have been listening and that I gave some very warm words on certain amendments on the previous day in Committee. I therefore ask him to take back that point. I think that it is uncalled for, if I may say so.
I want to be brief in responding to this group of amendments. I thank the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, for raising these issues. I will be brief, as they were. The Bill states that the OfS may take these actions if it appears to the OfS that a breach of conditions has occurred. While I understand and respect the honourable intentions of noble Lords here, this test is used in other legislation, as I have mentioned before. For example, under Section 151(1)(a) of the Apprenticeships, Skills, Children and Learning Act 2009, Ofqual may impose monetary penalties on a body that it has recognised for the purpose of awarding or authenticating certain qualifications where,
“it appears to Ofqual … that a … body has failed … to comply with any condition to which the recognition is subject”.
This provision has been in force since 1 May 2012.
It is also the case that the usual public law considerations will apply so that the OfS may be legally challenged if it acts irrationally or unreasonably or fails to follow the proper procedure. The OfS, as a public body, must at all times act reasonably and proportionately in accordance with public law when exercising its powers. In addition, before suspending a registration, imposing a penalty or deregistering a higher education provider, the OfS must give the reasons for the action. Decisions to deregister or to impose a penalty are subject to appeal to the First-tier Tribunal. So it is my belief that,
“it appears to the OfS”,
requires the OfS to make a judgment and take responsibility for its decisions—and that, we believe, is the right approach. The OfS is obliged under Clause 2(1)(f) to regulate in a,
“transparent, accountable, proportionate and consistent”,
way. It is in all of our interests to want a more engaged OfS applying its judgment flexibly and sensibly. And Clause 2 of the Bill is relevant here too—making it clear that the OfS must follow the principles of best regulatory practice, including that its regulatory activities should be,
“transparent, accountable, proportionate and consistent, and … targeted only at cases in which action is needed”.
I think it is best that I write in full on the points raised by the noble Lord, Lord Lisvane, when he spoke to Amendment 159. Therefore, without further ado, I ask the noble Lord to withdraw Amendment 142.
Lord Lisvane
I am very grateful to the Minister. If I may borrow the phraseology of my noble and learned friend Lord Judge, I think this may well be an occasion on which two entirely reasonable people can disagree without either one of them being unreasonable. Given that, the lateness of the hour and the delightful promise of another of the noble Viscount’s splendid letters, I beg leave to withdraw the amendment.