Monday 6th March 2017
(7 years, 9 months ago)
Lords ChamberHigher Education and Research Act 2017 View all Higher Education and Research Act 2017 Debates Read Hansard Text Amendment Paper: HL Bill 97-II Second marshalled list for Report (PDF, 156KB) - (6 Mar 2017)
20:58 - Division on Amendment 54 - Ayes: 45 / Noes: 140 - Amendment 54 disagreed.
21:36 - Division on Amendment 57 - Ayes: 36 / Noes: 128 - Amendment 57 disagreed.
Lord Carrington of Fulham (Con)
My Lords, this is a probing amendment to clarify a situation which concerns, pretty specifically and possibly uniquely, the Guildhall School of Music and Drama. The Guildhall school is a very unusual institution, partly because of its history, and partly because of its ownership. It is an unincorporated body. It does not have the legal structure common among higher education colleges. It was set up 137 years ago, in 1880, by the City of London Corporation as a conservatoire, and has never changed its corporate structure since. It is owned by the City of London Corporation, its court of governors is appointed by the City of London Corporation and close to a third of its funding comes from the corporation. It is, indeed, an integral part of the whole structure of the City of London, in the same way that Hampstead Heath, Epping Forest, and various other schools are run.
This gives the problem under the Bill that the Guildhall is a body that does not really fit into the definitions of what the White Paper was trying to create. The White Paper, which informs the Bill, indicates that the governance principles of the Office for Students, under the powers conferred on it under Clause 15, will be,
“comparable to those currently required of HEFCE-funded providers in line with the HE Code of Governance”.
This code has been developed by the Committee of University Chairs, and has been deployed successfully by the Guildhall. There is every reason to assume that the governance principles envisaged by Clause 15, which the Office for Students will be developing, can be applied to the Guildhall with equal success. The clause, however, introduces statutory backing for the principles, and the concern is that in moving to this more formalised position, some of the current flexibility will be lost and the ability to take account of the possibly unique governance structure of the Guildhall will no longer be applicable.
The amendment is to try to flush out whether it is possible to have sufficient flexibility under the new structure to enable the Guildhall to continue in the way that it has in the past—in other words, to be an integral part of the Corporation of London. I am trying to work out whether things can go on as they are or whether they have to change for the Guildhall, possibly with unfortunate consequences. On that basis, I beg to move.
Lord Young of Cookham (Con)
My Lords, I am grateful to my noble friend who, not for the first time, has raised in your Lordships’ House interests of concern to the City of London Corporation.
Clause 15 enables the OfS to take over the responsibility of scrutinising providers’ governing documents against the list of public interest principles. I can reassure my noble friend that we do not anticipate any impact on current higher education institutions being recognised by the OfS as higher education providers in the future. The intended practical application of the current and future list is to ensure best practice within already existing and recognised higher education providers’ governing documents, and it is not the intention of these principles to prescribe the corporate form of providers. I hope that gives my noble friend the comfort he is seeking.
The OfS must consult on the new list of principles. With the exception of the requirement that there should be a principle protecting academic freedom for staff, which I am sure the Guildhall has no difficulty with, the Bill does not prescribe what should be included in that list. There is nothing in Clause 15 that should concern the Guildhall School of Music, and it should be able to continue doing the valuable work it has been doing for so long. Against that background of assurance, I hope that my noble friend will be able to withdraw his amendment.
Baroness Wolf of Dulwich (CB)
I support the proposition. When we discussed the matter in Committee, the Minister said that he saw no reason why there should not be a wider range of penalties at the disposal of the Office for Students. It would be very helpful to have that confirmed in the Bill, otherwise there is the possibility of challenge of the OfS exceeding its powers if it moved to restrict the number of students in a way that would seem on many occasions entirely appropriate.
Viscount Younger of Leckie (Con)
My Lords, the noble Baroness, Lady Wolf, expressed these concerns in Committee, and I listened carefully to her very short speech just now. The noble Baroness, Lady Garden, and the noble Lord, Lord Watson, also spoke in Committee on the subject. This is the concern that the OfS would not have appropriate powers to restrict student enrolment at a registered higher education provider in the event of a breach of registration conditions, and would instead be compelled to either impose a monetary penalty or deregister the provider, both of which would have a negative impact on a provider’s enrolled students. It is our intention that such sanctions would be imposed only in exceptional circumstances. The OfS will operate a risk-based regulatory system, whereby any regulatory action is to be proportionate to the nature of the breach of a registration condition. The OfS will have an escalating suite of actions open to it, ranging from compliance measures, such as agreeing a support strategy with a provider or directing that certain actions should be taken, through to imposing specific ongoing registration conditions, and finally to sanctions.
The imposition of a student number control is precisely the sort of regulatory action that the OfS can use under the powers already contained in Clause 7, which allows the OfS to impose “specific ongoing conditions”. Imposing a student number control would not be to the detriment of students already studying with a provider and would help to ensure that new students who were subsequently enrolled would enjoy high-quality, suitably resourced teaching and learning. It is clearly not our intention that the OfS de-register institutions or impose monetary penalties, apart from in exceptional circumstances that merit such an intervention. We anticipate that such action would rarely be in the best interests of the student, the provider or the taxpayer. We have considered whether it would be appropriate to provide a specific power in the Bill for the OfS to impose student number controls. On balance, however, we believe it is unnecessary, as the Bill already provides the OfS with the powers necessary to limit student numbers where appropriate. With that explanation, I ask the noble Lord to withdraw his amendment.
Lord Storey (LD)
My Lords, I did not intend to speak on this issue but I want briefly to say something very important. If any of us had children who we sent off to higher education, we would expect that institution to give them the support and development they needed. There are private colleges that have their courses validated by individual universities. Of course, those private colleges could, under certain circumstances, get into difficulties and cease trading. What happens then to the students and to their student loans? As the noble Baroness, Lady Wolf, rightly said, we are seeing this already in further education, where training providers are going into liquidation. They are all right—they have gone into liquidation—but the poor student is left high and dry. I hope that when the Minister replies he might give assurances on this matter.
Lord Young of Cookham
My Lords, I am grateful to all noble Lords who have spoken in this debate, which has raised the important issue of student protection in the case of suspension of registration or indeed deregistration. I think that there is no disagreement that student protection is important, and that is why in this Bill we have gone further than ever before by including an express provision that will enable the OfS to ensure appropriate protections for students through a key condition of provider registration. The noble Lord and others have made some helpful suggestions regarding the likely content of student protection plans, which we agree need to be robust and comprehensive in their coverage. These plans are likely to include a diverse range of measures to protect students, as well as a diverse range of possible triggers for a student protection plan, including suspension of registration.
In response to the concerns that have been expressed in the debate, I can say that draft guidance will be prepared for consultation with the sector and with students as part of the regulatory framework consultation later this year. We would expect it to include information on how and when a provider should refer students to its student protection plan, for example during suspension of registration. It would be wrong to pre-empt the consultation by including these measures in the Bill itself, but I would seek to reassure noble Lords that the measures I have just referred to could include, for example, provision to teach out a course for existing students; offering students an alternative course at the same institution; making arrangements for affected students to switch to a different provider without having to start their course from scratch; and—in response to an issue raised by the noble Lord, Lord Watson—measures to compensate students who are affected financially. I hope that these examples provide some reassurance to noble Lords that we do have in mind the contingency arrangements they have outlined in the debate.
Clause 17 places a clear duty on the OfS to notify, through its maintenance of the register, when a provider has been suspended, and a similar duty is imposed on the OfS by Clauses 19 and 23 whenever providers are deregistered. The OfS already has the power, given in Clause 7, to require a provider’s governing body to make sure that students are promptly informed about its actions.
However, widespread publicity of preliminary compliance measures may not always be appropriate in every case. Before the OfS can impose a sanction of suspension and deregistration it must notify a provider of its intent to do so, unless an urgent suspension is being imposed, and then allow the provider the opportunity either to argue its case or to put matters right. As I am sure noble Lords will agree, the desired outcome for the benefit of students and the provider alike is that the provider takes the actions necessary to ensure that it complies with the conditions of registration that have been placed upon it, which would mean that no further action would be required.
There are also important matters of confidentiality at play here, which is a key concern that has previously been raised by Universities UK and a number of noble Lords in the debates in Committee. Higher education providers would not wish the OfS to announce that it was carrying out an investigation into a provider as this could lead to unnecessary reputational damage if the OfS subsequently decided not to take action. We must also be careful not to unsettle or panic students unnecessarily. Disclosing details of possible sanctions when the OfS has yet to decide to take action would not in our view generally be appropriate or helpful to students. It is the inclusion of the words “intention to” that I find real difficulty with in Amendment 56.
On Amendment 57, I have listened to the thoughtful debates we have had today, and indeed I read the debates in the other place, on the issue of student transfer. We tabled Amendment 100 on this important issue which we have already discussed. Our amendment will require the OfS to monitor and report on the provision of student transfer arrangements by registered higher education providers. It will empower the OfS to facilitate, encourage or promote awareness of these arrangements. In doing so, the Government are creating the conditions to allow the necessary flexibility for students to make the right choices for themselves and to have control over those decisions, whatever the reason for their transfer. The amendment that has been proposed and to which noble Lords have spoken would result in the OfS trying to make arrangements for students to be placed on other courses if their current course closed. However, the decision about what courses to offer falls within the institutional autonomy of each provider.
While I recognise the importance of students being able to transfer, particularly where their institution ceases to offer their planned learning, it is not and nor should it be in the OfS’s gift to determine whether institutions accept students from elsewhere. This has never been a role undertaken by the OfS’s predecessor, HEFCE, and there is no intention for it to be taken on by the OfS. It must surely be preferable for the sector to be in control of transfer processes, including where appropriate as part of the student protection plans, and for the OfS to play a greater role in facilitating and encouraging the availability and take-up of such arrangements.
In response to my noble friend Lord Norton, who was concerned that students would not know what protections they have, we have listened to concerns on this issue. That is why we brought forward an amendment in the other place to require plans to be published and therefore brought to students’ attention. This balanced approach is what our amendment sought to achieve. Against that background, I ask the noble Lord to withdraw Amendment 55.
“( ) Where there are one or more sector-recognised standards, an assessment under this section of the standards applied—(a) must relate only to the standards applied in respect of matters for which there are sector-recognised standards, and(b) must assess those standards against sector-recognised standards only.”