Higher Education and Research Bill

Baroness Deech Excerpts

Report: 1st sitting: House of Lords
Monday 6th March 2017 Lords Chamber

It took us rather a long time to learn about the various stages of development and how to go through them and get representation. It always has done. Unless we can get better guidance for those taking this support, we may end up wasting a great deal of money and causing people a great deal of grief. All that is required is some form of coherent strategy and guidance. The current document does not provide it and we waited six months for it—it was six months late.

[Baroness Deech (CB)]

My Lords, as regards equality of access, I take issue with the noble Lord, Lord Lucas. I declare an interest as a former head of the Oxford college that gave the most bursaries in Oxford, and was once chairman of the Oxford admissions committee. There is no doubt that bursaries make a difference. They range from £3,700 and are not paid for by the students by and large but by former members of the college, alumni of the university and some admirable institutions such as the Sutton Trust. There is no drop-out issue due to poverty, not in Oxford anyway. I have never known a student drop out due to lack of funds. That was simply unheard of. It is very difficult to do a randomised trial because it interferes with privacy. However, it is not just money that guarantees success at university. Things happen to students such as their parents divorcing, which has more effect on their continuing quality of education than almost anything else. Therefore, I speak in support of the access provisions in the Bill and against Amendment 97.

[The Lord Bishop of Oxford]

My Lords, I add my voice in support of Amendment 7 in the names of the noble Baroness, Lady O’Neill, and the noble Lord, Lord Addington, and the two related amendments—Amendments 94 and 98—proposed by the noble Lord, Lord Addington.

Disabled young people are about half as likely to hold a degree-level qualification as those without a disability. True opportunity of access needs to make certain that everything possible is done to ensure that every student who wishes to partake in further study is able to do so and to succeed to the fullest of their potential with reasonable adjustments being made for them. Some institutions make excellent provision for disabled students but there are many cases where the ordinary pursuit of their studies entails many obstacles and challenges. The amendments would help to ensure that provision was present and excellent in every institution, including those that may be new, small or highly specialist, and that disabled students had the same wide level of choice in their education as all other students.

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[Lord Desai (Lab)]

My Lords, I will be somewhat maverick. I have spent a lot of time in British higher education. I started when the whole idea of charging students fees was thought to be outrageous. At the LSE we initiated research into income-contingent loans, which students would take for higher education. While it was said at the time that it would be terribly harmful, not much harm has been done.

However, there is a great liking for uniformity in this country, because uniformity is mistaken for equality. I was involved in the first research assessment exercise back in 1988. In research rankings, we have information on universities by different departments. They have been ranked from five star to one so that students know which universities are good and which are not. They consult this information before they apply. It is no good pretending that somehow students will not look at the quality of universities and so on.

However, I agree that universities should be allowed to charge different fees for different courses. The noble Lord, Lord Quirk, who was vice-chancellor of the University of London many years ago, proposed during debates in your Lordships’ House some years ago that there should be not a single fee for all courses in a university but different fees for different courses. But that is a separate issue.

I am reluctant to force the system into uniformity so that people have to pick up signals of quality differences somewhere else. If a university wants to charge £15,000, let it. If it is no good, people will not go there. I do not see what the problem is. This is how the American system has survived for many years and thrived. It has very good outcomes in higher education. We have somehow tied ourselves into knots that things must be uniform, that things must be like this and that there must be overregulation. We are then surprised that universities create silos for themselves—they do not co-operate with each other and so on. I am sceptical that this is a desirable amendment.

[Baroness Deech]

My Lords, I remind the Minister that, if the amendment is not passed, the Government’s efforts to increase social mobility and diversity will be very badly damaged. By and large, the established—we might say “better”—universities will be able to charge more and will attract those students who can afford to pay it and who can afford to choose. By and large—of course not always—less-established universities will come out lower and will not be able to raise their fees. Not so well-off students will go to them.

Add to that the fact that the Government’s policy has been to get rid of the grants that enabled students to travel to other parts of the country and pay for accommodation in universities that were not in their home town. There are loans there, but those grants have gone. In other words, it is more expensive for a student to leave home and go to another university. That will increase ghettoisation. We already know that students tend to cluster in one type of high school. They may be forced to attend their local university because they cannot afford anything else. It may not be a very good one. The inequalities will simply reinforce themselves. If we detach fees from gold, silver and bronze, we stand a chance of increasing social mobility under the amendment. If we do not, social mobility will be frozen and ghettoisation will increase. I therefore support the amendment.

Higher Education and Research Bill

Baroness Deech Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 25th January 2017 Lords Chamber

[Baroness Garden of Frognal]

My Lords, I added my name to the list, as the noble Lord, Lord Stevenson, said, in the absence of my noble friend Lord Macdonald of River Glaven, who has overriding university commitments. He is a great expert in this area and has briefed me.

The application of Prevent to the university sector is different from its application to any other category of public body. In a university, the Prevent duty has the wholly unwanted effect of undermining an essential pillar of the very institution it is supposed to be protecting to the wider detriment of civil society. First, universities have a pre-existing statutory duty under Section 43 of the Education (No. 2) Act 1986,

“to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.

Secondly, because of the foundational importance of free expression to intellectual inquiry and therefore to the central purpose of a university, which cannot function in its absence, it cannot be appropriate, in the university context, to seek to ban speech that is otherwise perfectly lawful, as the Prevent duty requires it to do.

The Prevent duty requires universities to target lawful speech by demanding that universities target non-violent extremism, defined in the Prevent guidance as,

“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”.

If applied literally as a proscription tool in universities this definition would close down whole swathes of legitimate discourse conducted in terms that represent no breach whatever of the criminal law. It is very difficult to imagine any radicalising language that a university should appropriately ban that does not amount to criminal speech in its own right, such as an incitement to violence, or to racial or religious hatred and so on. These categories of unlawful speech should therefore be banned by university authorities to comply with pre-existing law. To do so is entirely consistent with free expression rights and academic freedom. But banning incitement speech is sufficient. Apart from anything else, it is this speech that is more genuinely “radicalising”. We do not need Prevent in universities to protect ourselves. We need just to apply the current criminal law on incitement.

In the university context, “radicalising” speech that is not otherwise criminal should be dealt with through exposure and counterargument. Universities should be places where young and not so young people can be exposed to views and ideas with which they disagree or find disturbing, unpleasant and even frightening, but be able to address them calmly, intellectually and safely. Freedom of speech should be an essential part of the university experience.

[Baroness Deech (CB)]

My Lords, I regret that I have to challenge the view that has been put forward by Members here whose views in general I respect greatly, but I pin my remarks to a phrase used by the noble Lord, Lord Patten, just moments ago. He said that students come from overseas to this country for a great education in a liberal, plural society. Unfortunately, great damage is being done to precisely that concept. In no way would I dissent from a view expressed that freedom of speech within the law must be allowed. Non-lawful speech—and there are lots of statutes, whether you like it or not, that make speech illegal—should not be allowed, but the universities are not doing their duty.

I shall give a few examples. Jihadi John was a university graduate; Michael Adebolajo—Lee Rigby’s murderer—was at the University of Greenwich; the underpants bomber, Abdulmutallab, was at UCL. There are numerous other examples of killers who were radicalised at university right here. That is because, although the Prevent duty guidance requires such speech that we disapprove of to be balanced, this is not happening. Speakers are turning up and giving speeches to audiences that are not allowed to challenge them. At best, they can only write down their questions. There are tens of such visiting speakers every year—there are organisations that keep tabs. Just over a year ago, at London South Bank University, a speaker claimed that Muslim women are not allowed to marry Kafir and that apostates should be killed. A speaker at Kingston University declared homosexuality as unnatural and harmful, and another—a student—claimed that the Government were seeking to engineer a government-sanctioned Islam and that the security services were harassing Muslims, using Jihadi John and Michael Adebolajo as examples. The problem is not only coming from that area; it is the English Defence League turning up to present its unpalatable views too.

It is incomprehensible to me that the National Union of Students opposes the Prevent policy and has an organised campaign to call it racist—a “spying” policy and an inhibitor of freedom of speech. These are the same students and lecturers—the ones who oppose Prevent—who have been supine in the face of student censorship and the visits of extremist speakers and who will not allow, for example, Germaine Greer or Peter Tatchell to speak, but sit back and do nothing when speakers turn up who say that homosexuals should be killed.

The Home Affairs Select Committee and the Office for Security and Counter-Terrorism have identified universities as vulnerable sectors for this sort of thing. Universities are targeted by extremist activists from Islamist and far-right groups. Very often they are preaching against women’s rights and gay people’s rights, and suggest that there is a western war on Islam. They express extreme intolerance—even death—for non-believers, and place religious law above democracy.

Some misguided student unions and the pro-terrorist lobby group CAGE are uniting to silence criticism of their illegal activities. There is no evidence of lecturers spying on students or gathering intelligence on people not committing terrorist offences. Students are conspiring to undermine the policy; they ignore its application to far-right extremists, just as to far left, if there is a difference, and spread the misunderstanding that it targets political radicalism.

The Prevent guidance is necessary, but needs to be limited to non-lawful speech, which is a very wide concept and of course includes the counterterrorism Act, but I would not suggest for a moment that now is the time to lift it, especially when in its most recent report HEFCE claimed that more and more universities —though not all of them—were getting to grips with and applying the Prevent guidance in a reasonable way. I therefore oppose the amendment.

[Baroness Lister of Burtersett]

My Lords, I support the amendment. The noble Baroness, Lady Jones of Moulsecoomb, asked me to pass on her apologies, because she had another engagement and could not stay for the debate. During Committee on the then Counter-Terrorism and Security Bill, I moved a number of amendments on behalf of the Joint Committee on Human Rights, two of which would have excluded higher education institutions from the statutory Prevent duty. I thought it worth reminding noble Lords of the debates that we had then. I was a member of the JCHR at the time. The amendment stemmed from the JCHR’s conclusion—my noble friend Lord Stevenson has already quoted it, but it bears repetition—that,

“because of the importance of freedom of speech and academic freedom in the context of university education, the entire legal framework which rests on the new ‘prevent’ duty is not appropriate for application to universities”.

The JCHR warned that terms such as “non-violent extremism” or views “conducive to terrorism” are not capable of being defined with sufficient precision to enable universities to know with sufficient certainty whether they risk being found in breach of the new duty, and feared that this would have a seriously inhibiting effect on bona fide academic debate in universities. We have heard some of the problems with trying to define that in the guidance.

On Report, I summed up the mood in Committee, saying:

“In Committee, the consensus in favour of amending this part of the Bill was striking. Noble Lords did not consider that the Government had made a persuasive case for putting a statutory duty on higher education institutions—moving ‘from co-operation to co-option’, as the noble Baroness, Lady Sharp, put it”—


and we miss her wise counsel. I continued:

“Where was the evidence base? Until the evidence for the necessity of such a statutory duty is marshalled, to use the Minister’s phrase, it is not possible to assess it. Concerns were raised on grounds of both practice and principle. Warnings were given on unintended consequences and counterproductive effects, including the erosion of trust between staff and students, which could undermine any attempts to engage with students who might be tempted down the road towards terrorism. I do not think that anyone was reassured by ministerial assertions that academic freedom and freedom of speech would not be endangered. Indeed, I think that it is fair to say that the majority of those who spoke were in favour of the total exclusion of the HE sector”.—[Official Report, 4/2/15; cols. 679-80.]


I did not pursue that amendment on exclusion of the sector and focused instead on ensuring that there was a proper duty to protect freedom of speech and academic freedom, but it is clear that, despite what has just been said, the application of the Prevent duty to universities continued to cause real concern.

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[Baroness Deech]

Has the noble Baroness brought her mind to bear on whether the students who solicited the cheating essay would also be caught up in the criminal offence? This is not really my area of law, but I suspect that conspiracy to commit a criminal offence might catch those students.

As has been said—and as I know from my experience as the independent adjudicator for higher education—many foreign students, some for quite innocent reasons, get caught up in this. Part of the cure is to have better orientation for foreign students to explain to them what is expected. This applies in particular to Chinese students. I am painting this with a broad brush, but apparently they are told from the age of five onwards that one should collaborate rather than compete, and that one should listen to every word the venerable professor says and repeat it in exams, which is not the way we do things. They are therefore innocent in their own minds, so we need to clarify this amendment and ensure that foreign students know what is expected of them.

[Baroness Goldie]

I thank the noble Baroness for her helpful intervention. I cannot answer on behalf of the noble Lord, Lord Storey, but no doubt he will make some concluding remarks.

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[Lord Stevenson of Balmacara]

My Lords, this amendment deals with the question of how we put into statute a definition that will adequately cover some of the debates we had on the group of amendments before last, relating to freedom of speech. It is interesting that alongside that is Amendment 469 in the name of the noble Baroness, Lady Deech, and the noble Lord, Lord Polak, which deals with the same issue but from completely the opposite direction. Amendment 468 in my name tries to stress the need for the definition and practice of freedom of speech in premises, forums and events, affecting staff, students and invited guests. The alternative version of this, which I think aims to come to the same place, is written in terms of completely the reverse option—that is, to avoid unlawful speech by the same people in the same areas. There is a very interesting question about which of these two approaches would be better if one had to choose between them.

In some senses, that picks up the theme of the last debate, which I have been reflecting on during the interregnum of the very important discussion on the advertising of cheating services, about what we are trying to do here. Without wishing to pre-empt the discussion, I will say that I still think there are probably two issues here: first, whether we believe that our higher education providers, particularly our universities, have to have regard to the issues raised in these two amendments; and, secondly, whether there are external constraints or opportunities to use other statutes and practices to bolster that. There is absolutely no point in having the most well-worked and beautifully phrased approach to this issue if it is not implemented in practice. The problem we all have is that we may well aspire to good words, good intentions and good practice but, if there is not an effective, efficient and speedy determination of where these things are not being practised well, we will all fail. I beg to move.

[Baroness Deech]

My Lords, I have spoken many times before about freedom of speech. I want to link together the Prevent guidance amendment, this amendment and Amendment 469. In my view they stand and fall together because they are trying to demarcate the line between lawful and unlawful freedom of speech. That is all that matters, including in the Prevent guidance.

People often see freedom of speech as too broad and as encompassing everything, but it is always within the law. I anticipate that in response the Government will say that freedom of speech is already guaranteed. However, Section 43 of the Education (No. 2) Act 1986 is too narrow. It is treated as limited to meetings and to the refusal of the use of premises to persons with unpopular beliefs. Universities have not handled this well. They have wrongly refrained from securing freedom of speech where student unions are involved, on the grounds that the unions are autonomous. That is not the case under charity law, nor does it fit with the universities’ own public sector equality duty. Moreover, Section 43(8) of that same Act expressly includes student unions. Universities have treated their duty as fulfilled if they have a code of practice concerning freedom of speech.

However, the practice of censorship is spreading, both by universities and by student unions. As I have explained before to this House, many explicit restrictions on speech are now extant, including bans on specific ideologies, behaviours, political affiliations, books, speakers and words. Students even get expelled for having controversial views. The National Union of Students has a safe-space policy and brands certain beliefs as dangerous and to be repressed, without regard to what is legal or illegal. The academic boycott of Israel-related activities is illegal as it discriminates against people on the grounds of their nationality and religion, and is contrary to the “universality of science” principle. Indeed, in this era of Brexit we should point out that attempts to put barriers in the way of exchange between scientists and other academics, inside or outside the EU, who wish to collaborate in research and conferences conflict with the principle of the universality of science, and it would be the same if other European states put barriers in the way of UK researchers. A recent bad example of behaviour is the LSE, which silenced a lecture by its own lecturer Dr Perkins because of his unpopular views on unemployment.

Freedom of speech in the UK is limited. I will not give noble Lords the whole list of measures; I shall name just a few. It is limited by the prohibition of race hatred in the Public Order Act 1986, the Protection from Harassment Act 1997, the Equality Act 2010, and the Charities Act 2006 as it applies to student unions, defamation, the encouragement of terrorism and incitement to violence. There is a great deal of law for universities to take on board in permitting lawful freedom of speech in any case.

We need a new clause to go beyond meetings and make all this clear. Students have been closing down free speech and universities have neither intervened, nor protected it, nor taken action when it is lawful— or unlawful. We all recall when the Nobel laureate, Sir Tim Hunt, was hounded out of University College London. Section 43 was irrelevant, because his tasteless joke was made abroad. Universities are not taking up training offers about freedom of speech—what is lawful and what is unlawful. This amendment would ensure that lecturers and university authorities took cognisance of the law, got training in it and ceased to treat student unions as autonomous. They should know that they have a duty to promote good relations between different groups on campus under the Equality Act. I wish this amendment were not necessary, but it is.

[Lord Lucas]

My Lords, I very much support Amendment 468. It puts the matter clearly and positively. It needs doing. You only need to look at what is happening in US universities. There is a particularly nasty story coming out of Princeton today on the suppression of free speech. This ought to be the core of what is happening in universities. Within universities, we ought not to prohibit people from offending other people. There has to be the free exchange of ideas and this can be pretty buffeting from time to time. As is said in Amendment 468, if there are things going on which are illegal, then we should deal with them as illegal. Beyond that, we should not. We should allow ideas to flourish and grow and contest with each other at universities.

I do not support Amendment 469 in the same way. The idea of preventing speech requires you to know in advance what is going to be said. This means, if you fear that someone might say something, you are justified in stopping them coming to speak. This is a very difficult road to go down. Yes, take sanctions against people who allow illegal speech—this seems reasonable. If I invite a speaker in and they are then horrifically unlawful, I should face sanctions for that, even if I lose my right to arrange future meetings. However, to prevent it—to say that somebody at the university should know what someone is going to say in the future—I do not think is a good way to go.

I hope we will have the courage to stand behind Amendment 468 and say where our principles are because there is a great tide of the opposite coming across the Atlantic.

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Tabled by

[Baroness Deech]

469: After Clause 84, insert the following new Clause—
“Higher education providers: unlawful speech
All registered higher education providers must put in place measures to prevent unlawful speech by staff, students and invited speakers in the provider’s premises, forums and events.”

[Baroness Deech]

My Lords, I wish to add just a few words on this issue as virtually everything has been said. I remind the Committee how horrified everyone in this country has been at the apparent outbreak of hate incidents post the Brexit referendum. We deplore it yet we run the risk—I mentioned this in relation to the Prevent guidance—of allowing our most intelligent young people to pass through universities where an atmosphere of hate, disrespect for the “other” and bad language are being tolerated. If we want to live in a harmonious world post Brexit, we need to tackle this issue in schools and higher education institutions. In some ways this amendment does not go far enough. However, I think we all know what is at issue and, given the lateness of the hour, I shall not move the amendment.

Amendment 469 not moved.

Higher Education and Research Bill

Baroness Deech Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Monday 23rd January 2017 Lords Chamber

[Viscount Younger of Leckie]

My Lords, I am grateful to noble Lords for raising important issues relating to access and participation plans and disability. This Government are deeply committed to equality of opportunity, and I agree with many of the comments made by the noble Lord, Lord Stevenson. That is why Clause 2 introduces a duty on the OfS to consider equality of opportunity in connection with access and participation in higher education. This applies to all groups of students. No such duty applied to HEFCE.

In order to be approved, access and participation plans will need to contain provisions to promote equality of opportunity. This makes clear our commitment to this important consideration. Questions were raised by the noble Lord, Lord Addington, and the noble Baroness, Lady Lister, about where we are on guidance on disabilities. I hope noble Lords have read my letter of 18 January, but I confirm, as I confirmed in that letter, that I expect this guidance, for which noble Lords have been waiting for some time, to be published imminently. I also reiterate my offer to meet the noble Lord to discuss this issue further.

Amendment 226, tabled by the noble Lord, Lord Addington, and the noble Baroness, Lady Brinton, seeks to specify that governing bodies of institutions may take advice from bodies nominated by the Equality and Human Rights Commission in developing the content of their access and participation plans. I support the intention here. We expect higher education providers to consult to help ensure that their access and participation plans are robust. I listened carefully to the sobering anecdote about a student experience from the noble Baroness, Lady Brinton. This is the very issue for which we are seeking solutions. We are in agreement about that. Indeed, OFFA currently sets out its expectation that universities consult students in preparing access agreements, and we anticipate that this will continue for access and participation plans. Given the autonomy of institutions and the wide-ranging support already available—for example, the Equality Challenge Unit supports the sector to advance equality and diversity for staff and students—I believe it is unnecessary to place this requirement in the Bill.

Amendment 228, proposed by the noble and learned Lord, Lord Wallace, seeks to include providing training for staff in awareness and understanding of all commonly occurring disabilities. Ensuring a fair environment and complying with the law are matters which providers need to address in meeting their obligations under the Equality Act 2010. This amendment would mean including a level of detail not consistent with the other, broader provisions and may overlook other underrepresented groups. For these reasons, I believe this amendment is unnecessary.

The noble Baroness, Lady Brinton, and the noble Lord, Lord Addington, proposed Amendment 229, which would mean that provisions requiring institutions to specify the support and advice they provide for students with disabilities may be contained in regulations about the content of an access and participation plan. We absolutely agree with the principle behind this amendment. The Equality Act 2010 imposes a duty to make reasonable adjustments for disabled persons, which includes an expectation to consider anticipatory adjustments. In addition, the Equality and Human Rights Commission has a supporting role in providing advice and guidance, publishing information and undertaking research. Given the wider context, this amendment would introduce a level of detail into the Bill that is inconsistent with the other broader measures. It may also risk being seen to overlook other underrepresented and disadvantaged groups.

The new clause proposed in Amendment 235, tabled by the noble Lord, Lord Addington, and the noble Baroness, Lady Brinton, would require the OfS every two years to commission a review of the support for students with disabilities or specific cultural needs. This is an interesting proposal, and I remind the noble Lord and noble Baroness that the Bill will require the OfS to produce an annual report covering its delivery against all its functions. Critically, this includes the duty regarding equality of opportunity set out in Clause 2.

[Baroness Deech (CB)]

Will the Minister clarify what is meant in Amendment 235 by “cultural needs”? I understand religious needs, but I cannot think of any cultural needs that have to be attended to. We certainly do not want to see universities providing, for example, gender segregation.

[Viscount Younger of Leckie]

It is a generic term. In my next letter, I will address that point. I am certain that it requires a proper and full answer.

Amendment 236 seeks to ensure that the OfS “should” identify good practice and give advice to higher education providers. Let me reassure the noble Lord that we expect this to be a key function of the OfS. HEFCE and OFFA already do this as part of their existing roles, and we expect that will continue in future. We believe that the Bill as drafted will deliver the policy intent on the issues raised, so these amendments are unnecessary. I appreciate the fact that noble Lords have raised these issues, and I ask the noble Lord to withdraw Amendment 226.

Higher Education and Research Bill

Baroness Deech Excerpts

Committee: 5th sitting (Hansard): House of Lords
Monday 23rd January 2017 Lords Chamber

[Lord Judd (Lab)]

My Lords, I am very interested to find my amendment surrounded by government amendments, and I am not quite sure whether to interpret that as good will from the Government towards my amendment or what. Due process sounds an awfully boring phrase, but it is often terribly important. My amendment is very brief and to the point and is about due process. I should remind the Committee that I am involved in the governance of three universities—the LSE, the University of Newcastle and the University of Lancaster. The rights to appeal in the Bill are somewhat patchy. In particular, there is no right to appeal against a decision not to register an academic provider or to challenge the suspension of registration. Decisions over the registration, suspension or deregistration of academic institutions represent significant examples of the exercise of discretionary power by the Office for Students. It seems only right that in the exercise of these powers the Office for Students is properly accountable, and my amendment seeks to ensure that. It is not right that it should be accountable to an appeals process for decisions about removal from the register and yet will not have the same accountability for decisions to suspend or not to register. This conforms to the norms of public law that bodies should be properly accountable.

[Baroness Deech (CB)]

My Lords, I support the noble Lord, Lord Judd, and ask the Government whether they have fully considered the appeal and legal implications of this new structure. There is already quite a body of education lawyers. I have no doubt, subject to correction by noble and learned Lords, that every single significant decision in the Bill will be appealed when it comes into force. The awards of gold, silver and bronze will immediately spark judicial review, as will the metrics used for the teaching excellence framework. Grant and non-grant of title are mentioned in the Bill. Registration, validation, numbers of students, access—every single vital decision is unprotected, quite rightly, from appeals and, in particular, judicial review, which could bring a whole system to a halt.

There is already a student complaints system which will, I am sure, expand, given the promises that will have to be made under the new structure being brought into effect by the Bill. Have the Government thoroughly considered all the areas in the Bill that will be open to judicial review and how institutions and the OfS will cope with it?

[Lord Watson of Invergowrie]

My Lords, it seems to me that my noble friend Lord Judd’s suggestion would be a very useful addition. The comments of the noble Baroness, Lady Deech, just now support that.

In response to the previous group of amendments, the Minister stated that under Clause 2(1)(f) the OfS must give due consideration to “best regulatory practice”. Surely, offering somebody the opportunity to appeal a decision, which could have pretty far-reaching consequences, cannot be described as anything other than best regulatory practice. On that basis, I hope the Minister will accept the amendment in the name of my noble friend Lord Judd, along with the Government’s amendments, because it is undoubtedly a question of best regulatory practice.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I have a few questions stemming from annexe B, which the Minister circulated last week but which unfortunately I did not see until after our debate. I apologise that I was not able to attend the briefings that officials provided; I might have got the answers then. My first question relates to the point made by my noble friend Lord Lipsey. The note that was circulated said that the assessment framework stresses to assessors that they should not overweight the NSS, but of course the only metrics on actual teaching quality—this follows on from the points just made—relate to the National Student Survey. My noble friend suggested looking, therefore, at individual submissions from providers for that evidence of teaching quality, but those submissions are going to be up to only 15 pages for a whole institution. I would be grateful if the Minister would give us some indication of what kind of evidence it is anticipated that providers will present in those submissions that will focus precisely on the quality of teaching.

My second question relates to the statement immediately following—that the assessment framework mitigates the risk that courses could be dumbed down to encourage providers trying to gain the NSS. The document says that, to ensure that does not happen, the Government have included rigour and stretch as one of the criteria for the TEF and explicitly warned assessors that this may be inversely correlated with the providers’ NSS scores. I am delighted: I think it is absolutely right that rigour and stretch should be included. I remember teaching a course on theory and concepts in social policy and I think the students felt they were being stretched like elastic bands and did not always appreciate it. I think it is really important that we stretch students to think critically and assess what they are being taught, but how is this going to be assessed? It is not clear to me. It is very important but how is it going to be assessed?

My final question is: how frequently will this assessment process be carried out? We heard last week about the gold, silver and bronze system and many of us had problems with it. The Minister was not really able to satisfy our concerns. Although the Minister presented bronze as if it was the equivalent of a bronze medal in the Olympics, noble Lords here saw it as the equivalent of failure, because there is nothing underneath it—no kind of “tin” assessment or anything. If someone is classified as bronze, they may well want to try to climb out of bronze into silver as soon as they can. How quickly will it be open to them to have another go and be able to show that they have improved the quality of teaching and can then be reassessed as silver or gold? Has the Minister had the chance to reflect on what was said about the gold, silver and bronze categorisation last week? All we got was the answer that the Government think this is right. That smacked to me a bit of “I told you so” and there was no real explanation as to why, if bronze is the lowest, it will not be seen—to the outside world at least, and to potential students, here and overseas—as something to be avoided.

[Baroness Deech]

I am glad to support the noble Lord, Lord Lipsey. I have the National Student Survey in front of me. It raises profound questions about what higher education is and how it has become perverted, in that we see the student now as a consumer, because the student is paying at least £9,000.

I draw attention to some statements in the survey. One says that the workload on the student’s course is manageable. We ought to think about what that means: manageable for whom, whether you are a lazy student or an avid one? Another says that the course does not apply unnecessary pressure on the student. I am not sure about that either. There is another that says that all the compulsory modules are relevant to the student’s course. Even now, 50 years after completing a law degree, I am still pondering whether Roman law was really relevant to my course, but I yield to those who thought it was. That was long before we joined the European Union, which in a way made Roman law and the continental system more relevant. These questions would be better addressed to someone going on a package holiday. I am not sure that as it stands this student survey should play a part in the most profound questions that we face—about what a university is, what sort of young people we wish to turn out and by what process. So I hope that the survey will not be included, or that if it is it is thoroughly revised, bearing in mind the outcomes for which we are looking.

[Baroness Wolf of Dulwich]

My Lords, I support the comments of the noble Lord, Lord Lipsey, on the National Student Survey, and will speak to Amendments 194 and 201 standing in my name. Before doing so I would like to underline that we are talking about the use of measures to give ratings. With respect to the comments made by the noble Baroness, Lady Blackstone, I think that there is a huge difference between what is useful internally and what is suitable for a high-profile, high-stakes national rating system. In my first amendment I have suggested, or requested, that any measures used should be criteria-referenced, and therefore provide a substantive rating and indication of attainment or degree of attainment. I am slightly alarmed that this is even at issue, and take issue with the noble Lord, Lord Willetts, when he suggests that benchmarking is the way forward.

I have an example from the rail regulator. We can be told what proportion of trains are late, which is a substantive measure: we can have a target—which in fact it has—which says that it is reasonable that there should be X per cent, and then you fall this far short. We can be told whether a given rail company is doing better or worse than the others. This year it is really pretty easy for everybody to do better than Southern, but does that mean that they are all doing well? I do not think that you can conclude that.

If you have benchmarked or relative measures, the problem is that all that you are being told is how people stand relative to each other. We might have a system in which the quality of teaching was excellent across the board, yet in which half the institutions would by definition be below average; or we could have a system in which all the institutions were doing rather poor-quality teaching, yet in which half of them would be above average. That is not the sort of system that we wish to use. We would not wish to imply to students that that gave them helpful information. A measure that is bad does not become good by being made relative; and a measure that is good is good in its own right, not simply by being turned into something in which you rank people on the curve. That is an important aspect of how the Office for Students approaches the sorts of ratings that it gives and the way in which it conceives of them.

Higher Education and Research Bill

Baroness Deech Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 18th January 2017 Lords Chamber

[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?

Higher Education and Research Bill

Baroness Deech Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I have two amendments in this grouping, and I declare my interest as a serving academic. I share the views of the noble Lord, Lord Desai, who I gather is a fellow graduate of the University of Pennsylvania, on the NSS, and to some extent those of my noble friend Lord Willetts. The survey provides valuable feedback and is a useful form of intelligence, but I am not sure that it can bear the weight that it has been given in this proposal for the TEF.

I commend the Government for recognising the importance of teaching and their acknowledgement of the complementarity of teaching and research. I commend them also for seeking to enhance teaching excellence. Ensuring that more information, and comparable information, is made available to prospective students, and encouraging the dissemination of best practice within HE, are wholly commendable goals. My amendments would protect the provision of information. I have no problem with introducing incentives to HE institutions to enhance teaching quality, but where we need to stress test this part of the Bill is in creating a statutory link between teaching quality and the level of fees being charged for that teaching.

There are three problems with the link stipulated in the Bill. The first is defining what is meant by teaching excellence. The proposed metrics for the TEF are too blunt to meet the assessment criteria and, in some respects, too narrow. The Explanatory Notes to the Bill state:

“The Teaching Excellence Framework is intended to provide clear, understandable information to students about where teaching quality is outstanding and to establish a robust”—


I always worry the moment I see the word “robust”—

“framework for gathering information to measure teaching in its broadest sense”.

I have no problem with the first part of the statement. It is the second part that is problematic. What is meant by teaching “in its broadest sense”? For me, it encompasses the capacity to develop not only intellectual but also personal skills that will enable students to fulfil their full potential as individuals in wider society. This may not be confined to career goals but may extend to being worthwhile members of society—in effect, good citizens. How does one measure that added value? It goes beyond the assessment criteria. I have serious concern with some of the metrics, because I fear that they may privilege status rather than teaching excellence.

The second concern is that, in so far as one can assess teaching excellence, quality is at department or course level, as the noble Lord, Lord Kerslake, and others have stressed. One has only to look at the National Student Survey to see variations between the aggregate at institutional level and the performance at subject and course levels. Yet the intention is to enable an institution to charge a higher fee level, which may apply to all courses, even those which deliver less quality than courses at other institutions which are not able to increase their fees.

The third concern, as we have heard already from the noble Lord, Lord Watson, is that there is no clear link between fees and teaching excellence. Higher fees will not necessarily serve to drive up teaching quality, but rather enable HE providers to spend more on marketing and ensuring brand recognition. More money may be spent on providing services to students, but not necessarily on their teaching.

In short, the proposal before us is based on a concept that is not clearly defined, cannot fairly be applied at institutional level and asserts a link that has not been proven. I look forward to my noble friend the Minister assuaging my concerns.

[Baroness Deech (CB)]

I declare an interest as former principal of St Anne’s, Oxford, and former independent adjudicator of higher education. I am speaking in support of Amendment 122. I have three very brief points to make.

First, it has been alleged that the whole purpose of the Bill is to enable universities to raise fees, and that all the contortions that we are going through in relation to the Bill is centred on this one element—that one will be able to raise fees if the teaching is good. That seems to me not a healthy way to approach it.

Secondly, there is profound disagreement about what is good teaching. One metric is likely to be the prevention of drop-outs and helping students from non-traditional or underprivileged backgrounds to get through the course without failing. This must tempt tutors and lecturers to spoon-feed and it is simply not clear in higher education whether the temptation for spoon-feeding—a brief term but I think all noble Lords understand what I mean—will be enhanced by some of the metrics, as I understand them.

My third point is related to the question of teaching students from less-privileged backgrounds. What will this link do to social mobility? The better universities, however they are judged, are quite likely to be Oxbridge and the Russell group, are they not? They will be able to charge higher fees. Some other universities, which will be taking more of those from underprivileged and less-traditional backgrounds, and may be doing more spoon-feeding, may well find that their teaching is not rated so highly, for reasons that all of us who have ever taught such students very well understand. They will charge lower fees. It will become a reinforcing division: the so-called “best” universities charging the higher fees will attract those students who can afford them and the not so good under this scale—the bronze—will likely get the not-so-good students who cannot afford the fees. This will really damage social mobility and parity of esteem, not to mention the fact that this is coupled with the abolition of maintenance grants, meaning that more students will be forced to go to their local university. So my question to the Minister is: what effect do the Government think the linking of fees to teaching quality will have on social mobility?

[Baroness Warwick of Undercliffe (Lab)]

My Lords, I declare an interest as a member of the council of two universities. Like others, I am in something of a quandary on this part of the Bill; I have several concerns about the TEF, but I support enthusiastically any attempt to improve the status and excellence of teaching in universities. As chief executive of Universities UK, way back in the 1990s, I was instrumental in helping to develop the Quality Assurance Agency, which has gone on to do such a great job of encouraging institutions to take teaching much more seriously. It has developed the extensive framework for assurance and quality enhancement that characterises the HE sector today and which is admired around the world.

Despite the fact that there is an enormous amount of good teaching in universities, producing excellent learning outcomes, it has long been a dilemma that—at least in certain institutions—research and not teaching has become the means of individual advancement and the basis for institutional reputation, reinforced by league tables. That is not to say that researchers do not make good teachers—many do—but it is research that garners the accolades. Not enough weight is given to the support of students through good teaching, although I am heartened to learn that there has been much more emphasis recently on showing students how research and scholarship links with undergraduate learning.

The HE system is changing rapidly. It is already a diverse system and is becoming ever more diverse as new providers enter the sector. I was astonished to learn in a recent report that, on one count, there are 700 alternative providers; I gather that the more reliable figure is 400, but that is still more than double the number of established universities and clearly offers students a great deal more choice than was available, say, five or 10 years ago. Inevitably, though, there is a greater risk of poor-quality provision if these providers are not subject to the same extensive quality assurance process or regulatory regime as existing providers. So it is wise, in this new and changing environment, to review the way in which the quality assurance system deals with this much more complex world. Talking to people in the sector, and from what I read, I believe that the teaching excellence framework—the TEF—has the potential to provide more encouragement and support for teaching, to produce useful information for students, and, hopefully, to raise the status of teaching in all HE providers. But some of its provisions worry me—those worries have been reflected by other noble Lords.

We have been given a very useful briefing from the department on this part of the Bill and I thank the civil servants, some of whom I recognise in the Box, for the careful, helpful and comprehensive way that they have guided us through this Bill before each of our sessions. However, the recent briefing highlighted some of my concerns. The range of metrics described in the briefing, while voluminous, do not seem related to good teaching. They seemed much broader than a framework for teaching excellence would suggest. The metrics on employability and equality of opportunity—while perfectly good—suggest, for example, that the TEF is really about the student experience, or indeed about any provision that is not evaluated by the research excellence framework—the REF.

Children: Safeguarding

Baroness Deech Excerpts

Wednesday 11th January 2017 Lords Chamber

Asked by

[Baroness Deech]

To ask Her Majesty’s Government, in the light of the Wood review of local safeguarding children boards, what steps they are taking to assess the risk to children in unrecognised school settings or receiving home education.

[The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)]

My Lords, protection from abuse is a fundamental right for children in and out of school. Local authorities are responsible for safeguarding children in their area, including those educated at home, and, with local safeguarding children board partners, should be assessing any risks to children wherever they are educated. The department is working closely with Ofsted, local authorities and the police to tackle illegal schools. This collaboration has resulted in the closure of many such settings.

[Baroness Deech (CB)]

My Lords, in the first Question the House expressed its very worthy concern for the learning ability of primary school children. What about the children who are never sent to school at all? The Wood review, Ofsted and Dame Louise Casey have all drawn attention to the lack of power to make parents co-operate in ensuring the quality of home education. The local authorities do not have the power to see the children or check on them. We care about abused children and others. We must take steps to safeguard the children who are not known to schools, who are sent to unregistered schools and who are below the radar. The Government did not respond to the comments on that issue in the Wood review. Local authority officers have written to me to express concern and call for new statutory powers. Will the Government take those necessary steps?

[Lord Nash]

Some home-educated children attend unregulated education settings and we are taking determined action to tackle illegally operating unregistered independent schools. We also remain committed to regulating out-of-school settings and received more than 18,000 responses to our call for evidence, which we are analysing carefully. We know that greater oversight of home education is sought by many local authorities. We are listening to both sides of the debate and considering our position.

Higher Education and Research Bill

Baroness Deech Excerpts

Monday 9th January 2017 Lords Chamber

We will come later in the Bill to amendments that are specifically about the powers that the Secretary of State and the OfS will be given. I am not suggesting that this amendment alone is enough to address the issue of institutional autonomy. However, in the meantime, it will provide a simple but important safeguard for the way that those duties are exercised. I sincerely hope that the Minister will accept the amendment—or, alternatively, undertake to come back with a very similar amendment when we get to Report. If that is not forthcoming, I think we will return to this issue. It is crucial for this House. Fundamentally, we are at risk of carelessly undermining a vital freedom in this country. We must guard against that very carefully.

[Baroness Deech (CB)]

My Lords, I will speak in support of Amendment 65 in the name of my noble friend Lord Kerslake. The most relevant interest I have to declare is that I was the first Independent Adjudicator for Higher Education. I dealt with student complaints, which gave me a great deal of insight into what was going on.

Twenty-nine years have passed since the late Lord Jenkins—Roy Jenkins, the chancellors’ chancellor—secured an amendment to the Education Reform Act 1988. That Act ended the tenure that had been enjoyed by British academics. His amendment protected in law the freedom of academics to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy of losing their jobs or the privileges they may have at their institution. That is repeated in the second half of the amendment being moved this evening, which is directed towards the OfS and the Secretary of State.

Why is it necessary to draw attention to that principle again and to re-enact it? The answer lies in the width of the risk presented in the Bill to the independence of UK higher education and in the amount of power granted to the Secretary of State and the OfS—so much more extensive than in the 1988 Act. Staff have to be free to criticise without fear the opinions of their colleagues and government policy and to publish without fear of reprisal through the closing of departments at the behest of the OfS. In later amendments to be debated in a few days’ time, we will return to the freedom of speech that universities should be securing. However, this amendment is directed, in an overarching way, to the structure that will govern our universities in future.

The Bill would allow untrammelled direction from the Secretary of State for research themes and the appointment of individual council chairs. That could, for short-term gains, limit the scope of the UK’s research functions and its innovation. When my husband was a young scientist in the 1960s, he worked for years on a strange, new and apparently useless but fascinating invention: the laser. We know now how that turned out and how it might have been nipped in the bud had there been in place an OfS regime at the time. The proposed UKRI—the new all in one—will reduce funding routes and may impact on the variety of research that is funded. If plurality of funding is diminished, the risk of taking the wrong decision is magnified, the decision process will be narrower and the diversity of perspective reduced.

We have proof of how things can go wrong: the binary line between universities under the UGC and polytechnics under local authority control and the placing of them in one funding pot; the introduction of central regulation and the auditing of teaching and research; the subordination of academic planning to deep financial controls and the increases in staff workloads despite what has been said earlier this evening—because one hour of teaching may well represent days of research, days of marking, days of seeing students, and days of working in the library and on committees. Indeed, the pressure to research that has been dominant up to now and that was brought in by the Government is responsible for the fact that people now think that teaching is not getting all the attention that it should. What the Bill is trying to do—but should not do in too rigid a way—is swing that pendulum back towards good teaching for the students.

Now we have a sad situation. In the guise of efficiency gains, so much has been lost and cut—and now the miserable replacement of grants with loans to cover living costs will knock all hopes of social mobility on the head. The amendment does no more than keep UK university regulation in line with domestic and international human rights law. The amendment is embedding freedom of thought, conscience, opinion, expression, association and assembly—familiar terms from our European and national human rights legislation. Academic freedom requires freedom from discrimination and harassment and prejudice. It is inextricably bound up with freedom of speech. It also means proper whistleblowing procedures and collegial decision-making, with academic excellence at its heart.

It also involves adherence to the principle of the universality of science—the freedom to share and carry out research without illegitimate hindrance based on irrelevant discrimination. No group of people should be excluded from scientific enterprise under this principle for reasons extraneous to the science itself—so the European Union would be in breach of that principle of the universality of science were it to place barriers in the way of contributions of UK scientists to global research, and vice versa. Of course, no university should discriminate against or boycott the scientists of any one nation. There is everything to be gained from this amendment and nothing to lose. I urge the Government to accept it.

[Lord Hope of Craighead (CB)]

My Lords, I just add a few brief words in support of the amendment of the noble Lord, Lord Kerslake. I declare an interest as a former chancellor of the University of Strathclyde, although I do not think that his amendment would extend to Scotland for the reason that the noble Lord, Lord Stevenson of Balmacara, mentioned. In that connection, I should point out that since Clause 117 makes it clear that the Bill extends to Wales as well as England, it may be that the noble Lord, Lord Kerslake, should extend his amendment to cover Wales as well, because I am not sure that there is any difference between Welsh institutions and English institutions for this purpose.

That aside, I commend the way in which the amendment is crafted, particularly the first paragraph because, as it was pointed out, it is directed to the duties to be performed by the Secretary of State. One of the problems revealed by the earlier debate is that of universities being required to do certain things that might attract all sorts of extremely unwelcome litigation. However, this amendment is directed where it should be directed and for that reason, as well as all the other points made by the noble Lord and by the noble Baroness, Lady Deech, I hope the Minister will take it very seriously.

--- Later in debate ---

[Baroness Deech]

I take it upon myself to answer the noble Lord. Amendment 469, when we get to it, deals with precisely that point.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I, too, support the noble Lord, Lord Kerslake, in his Amendment 65. There should be such a duty on the Secretary of State, although it makes me think about the duty on the Lord Chancellor to protect the independence of the judiciary. We do not see that being lived up to in the way that we would like, so just placing duties on Secretaries of State does not always deliver the outcomes that we want. But I certainly support the noble Lord, Lord Kerslake.

I want to give some comfort to my noble friend Lord Stevenson because I share many of the concerns expressed in his amendment. I am not in favour of for-profit universities: I should make that very clear. The ideal of the university is so precious and important to our nation. We should ask ourselves this question: where is a world-class university that is for-profit? The answer is that there is not one—not Harvard, Yale, Oxford or Cambridge.

--- Later in debate ---

As the new system is firmly based on risk-based regulation, the OfS and the designated quality body will assess the risks attached to all providers that apply to be on the register, with the ability to attach specific conditions of registration to providers that are directly matched to the level of risk that a provider represents. This will allow the OfS to carefully manage the entry of new providers to the regulated sector, for example by using levers such as the imposition of student numbers. Being registered is therefore intended to be an important indication of recognition. The OfS will have the necessary tools to ensure that those registered maintain high-quality standards or face deregistration. We should expect excellence from all our universities and hold them to the same high standards, rather than focusing on their legal form or their profit or non-profit status. With that more detailed explanation, for which I do not know whether I should apologise, I ask the noble Lord, Lord Stevenson, to withdraw his amendment.

[Baroness Deech]

Before the Minister sits down, may I take him back to his statement that there cannot be any interference by the OfS and the Government in the governance of universities because they are autonomous? However, as has often been mentioned this evening, under the 1988 Act university commissioners were sent to rip up the charters of Oxford and Cambridge colleges, and perhaps of other universities too, in the interests of ending academic tenure. Despite protests, they were rewritten. It was the Government’s will, and no amount of protestations at the time about academic freedom made any difference.

[Viscount Younger of Leckie]

Let me give what I hope will be further reassurance that when the Office for Students is set up, as set out in the Bill in different clauses, academic autonomy will be exceptionally important. However, if there is a failing institution, the OfS will have the right to step in, but the steps it must take are long and quite onerous. I reassure the House that many steps have to be gone through before it goes down that route. I am sure we will have more debate about that.

Higher Education and Research Bill

Baroness Deech Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 9th January 2017 Lords Chamber

[Baroness Brown of Cambridge (CB)]

My Lords, I have put my name to this important amendment and speak in support of it. I declare my interests in higher education, as indicated in the register, and declare and acknowledge the research support from colleagues at Universities UK and my university, Aston University.

As the noble Lord, Lord Stevenson, says, UK universities have an exceptional international reputation for teaching and scholarship in many forms. They are places where teaching and research are intimately interwoven. Undergraduate programmes benefit from research-based learning, and graduate students and researchers are beneficially involved in teaching. Indeed, the noble Lord, Lord Stern, commented very positively on that in his recent review of the research excellence framework. Universities are places where new academic fields grow from interactions between colleagues in different disciplines, and places where the encouragement of independent thought and the challenge to the status quo delivers technological change and innovation. Indeed, that is why so many large companies, such as Rolls-Royce and BAE Systems, engage closely with universities—for example, through their university technology centres—to ensure that academics can challenge the stove-pipe thinking that can develop in large corporations.

As the noble Baroness, Lady Garden, has commented, the autonomy of UK universities is recognised by our European colleagues as key to their exceptional positions in the ranking tables. Surely a broad and inclusive definition of the functions of something as important as a university in the UK is to be welcomed. That proposed in the amendment encompasses the key ingredients: autonomy; free speech; academic freedom; interdisciplinarity; teaching, scholarship and research; and, of course, the mission to contribute to society. We must recognise that being a higher education provider, delivering high-quality teaching, is a necessary but not a sufficient condition for being a university. I look forward to the Minister’s response in this area.

[Baroness Deech (CB)]

My Lords, I made my maiden speech some 12 years ago on the overregulation of universities and I cannot resist returning to that subject. Our worldwide success is now under threat: the Government are risking killing off the goose that lays the golden eggs, instead of cherishing and fostering university autonomy. The autonomy of higher education is not only valuable to the universities and their surroundings; it is the hallmark of a democratic and civilised, progressive society. You can be sure that when the Government interfere in who may teach and who may study at universities and which universities may exist, the entire system of democratic governance is under threat. In the 1930s, thousands—some of whom were future Nobel laureates—fled central Europe to come here. Now they flee from universities in the Middle East, Zimbabwe and China. Our universities’ autonomy is affected by low salaries, short-term employment, lack of tenure and, now, gagging clauses on former employees. The risk inherent in the Bill, which focuses so much on teaching excellence, is that it neglects the very thing that lays the foundation for excellence and established the global dominance of our UK universities, which are a haven for the best threatened academics in the world.

There are some limits in the Bill on ministerial interference in certain respects, but they do not add up to a clear and consistent safeguard for academic autonomy. On the contrary, by protecting that principle only in some cases it is left open to interpretation that other areas are not so protected. If the Secretary of State may issue guidance about particular courses of study, and if a government quango can shut down an existing university, then autonomy is curtailed. The power granted to vary and revoke degree-awarding powers of any university, regardless of its length of establishment, is a dangerous weapon in the hands of the OfS. It could also be used to coerce universities and make them toe the line in the face of, say, pressure by the Government to respond to short-term market forces or perceived national needs.

On uniformity of excellence in teaching, I always say that Isaiah Berlin’s PowerPoint would not have been up to scratch, and Stanley de Smith, the originator of the law of judicial review—in the news every day now—would have been castigated for talking way above the heads of his audience while smoking on the edge of the platform, which was acceptable in those days. Nearly all academics who made a difference did so precisely because they did not conform to the bureaucratic ideal. The culture of box ticking and moving lecturers around as if they were footballers for transfer is already taking hold. The system of research funding has boosted elite universities at the expense of others, as a certainty. The teaching excellence framework will make this worse. Wealth creation and higher salaries for graduates needing to be ready for employment in business and market-driven schemes will, in themselves, do nothing to engender the spirit for which our universities are renowned and which brings—and I hope will continue to bring—to them the most ambitious and creative students from the Far East, Russia, the United States and India.

Higher Education and Research Bill

Baroness Deech Excerpts

2nd reading (Hansard): House of Lords
Tuesday 6th December 2016 Lords Chamber

[Baroness Deech (CB)]

My Lords, given that we are probably educating, in a wide range of higher education institutions, as many young people as can be expected—31% of 18 year-olds—one wonders why the Bill proposes more private universities. They will dilute the quality and spread too thinly the available funds. One has but to look at the lists of vacancies in clearing in universities in August to see that we are already well provided or overprovided with places. The new providers may be motivated by financial gain, and inevitably there will be sham colleges and fraudulent students—let us call them Trump universities. If they teach only one subject, they do not fit the genuine mould of universal knowledge, comprehensive libraries, teaching and research, and serendipity of learning. Because of the possibilities of passing off, Clause 52 is right to prohibit the use of the word “university” where it is not authorised. It might, however, go wider. There is a great deal of passing off occurring at present. Take this one: the Oxford College for PhD Studies. It has a website tricked out with blue heraldry, the stated aim of publishing,

“the hidden secrets of the world”,

an address in a back street in Oxford and much of the information in Arabic. There should be a prohibition against this sort of trickery as well.

Student satisfaction surveys are not to be trusted. I recommend that Ministers look at the student websites with names such as Rate Your Lecturer to see the often illiterate and ill-judged comments: “He is a babe” or “Mid-terms are easy to pass”. Those comments are based more on whether the class is easy and gives away likely exam questions than on its challenge. It will tempt lecturers to play to the audience, which is what happens in some colleges in North America. A low level of student satisfaction may quite legitimately result from a difficult course or the acceptance of underqualified students.

One criterion that should be included, however, arising from the recent scandals on which I have addressed the House on earlier occasions, is whether the university supports free speech. Does it ensure a safe platform for lawful speakers and ban those who promote illegality? Does it apply the Prevent guidance as required to check unchallenged extremism, contrary to the law? Does it protect students from hate speech and action, and ensure that students treat each other fairly? Higher education has a role of encouraging public debate so that students can be exposed to current, controversial and uncomfortable issues. They need to learn how to spot bad arguments and present alternative views. There is, I fear, a tide of hate speech and censorship flowing across our universities.

The Bill purports to enhance social mobility and diversity, and here it falls down again. This Government have removed maintenance grants and replaced them with loans. So if a young person from an underprivileged background, possibly ethnic-minority, grows up in an already segregated part of the country—segregated by poverty or ethnic minority; and we heard only this week that there are schools where 95% of the children are from one ethnic minority—and then cannot afford to leave home to go to the university of their choice which is far away, their horizons will be for ever more limited, not only by the inability to afford to go to the course which they consider best, but by being unable to escape their monochrome background to mingle with young people from all over the country. I hope that an amendment may be secured to revoke the Education (Student Support) (Amendment) Regulations 2015 to bring back grants for maintenance instead of loans.

Clause 9(3)(b) requires universities to provide data about the ethnicity of their applicants. It would be more valuable if the Bill required focus on disabled people at university, as they are currently less likely than others to have a degree-level qualification. The UN Convention on the Rights of Persons with Disabilities requires states to ensure equal education opportunities. If data were gathered about disabled students, this would assist the Government in meeting this obligation.

Mobility is also going to be held back by the fee structure and calculation. Universities with better teaching and lower drop-out rates because their students are from more supportive backgrounds will be able to charge higher fees and continue to attract better-off students. The poorer ones will go to the universities in their home town or the ones that charge lower fees. The divisions between top universities and others will become even wider, with all that that implies for future networking, employment and ambitions. The Bill, in sum, seems to be only a device for allowing some universities to raise fees.