Higher Education and Research Bill

Debate between Baroness Deech and Lord Stevenson of Balmacara

Report: 2nd sitting (Hansard - continued): House of Lords
Wednesday 8th March 2017 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, with the agreement of the noble Baroness, Lady Wolf, and in the absence of the noble Baroness, Lady Brown, I will speak to this group. We understand that their Amendment 135, which we support, has been overtaken by events. It may be subject to an announcement that would remove the requirement for it, which I am sure we would all be grateful for. I have read through the Regulators’ Code and looked in detail at what it does. It can do nothing but good for the sector. It is an effective and useful guide. It will be extremely helpful to all those who will have to deal with the OfS as it moves into its new role. It is to be welcomed that the Government have seen the sense of the amendment we tabled in Committee and have decided to move forward in this way.

Amendment 136 is a slightly different beast. I am grateful to the noble Baroness, Lady Deech, who always seems to get stuck at the end of debates and has to hang here to make her very valuable contribution. That situation will change when we next discuss amendments that have her name to them. This one concerns an issue that has been growing in impact as we have been discussing and thinking about the issues raised in the Bill.

There is not, as might be implied by the drafting of Amendment 136, any sense in which we would resile the authority of the CMA regarding the work that will be done by the OfS and its associated committees and structures. The CMA has statutory rights to engage with anything consumers do in the public and private realms. Therefore, it will from time to time no doubt take an issue and respond to complaints. All these things are set out in statute in the ERR Act and the Consumer Rights Act 2015. However, there clearly are operations under the whole umbrella of the CMA that will have a resonance and possibly an ability to be dealt with by the Office for Students. It would be more appropriate for it to do these as part of its regulatory functions.

This is a question we have asked before and have not had a satisfactory answer to, which is why we are bringing it back tonight: what exactly is the boundary between the Office for Students in its regulatory mode and the CMA? At the moment the CMA has taken quite a serious first step into discussions with higher education providers. It has carried out a survey of the way they treat their consumers: students. It has drawn certain conclusions from that and is currently obtaining undertakings from a range of providers, many of which are well-known household names. This is a dog that barks and bites. We have to be very careful where it might go. We would not in any sense wish to constrain it, but it will introduce a completely new sense of engagement between those who respond to offers from higher education institutions to go to them and study, the results they obtain, and their attitudes to and relationships with such institutions.

However, the detailed work of that will necessarily fall to the Office for Students, so there really are questions. Where does the boundary lie? What are the parallel powers that the Government are setting up in this area? Will the OfS have the same powers that the CMA has, as defined in the two Acts that I have already mentioned? Are there new and additional powers that are not being mentioned? If so, could we have a note about these? Where exactly are we on this? I think there is a danger that this ground will be rather trampled over. I have said this was a dog that not only barked but bit, but I think there are other worries that there may be some sort of competitive urge between the two bodies to be more regulatory than the other, and I hope there will be powers available to make sure that that does not happen. We do not want too many dogs, and we certainly do not want them biting. We want to make sure at the end of the day that the true interests here, which are the interests of the students, are not curtailed or in any sense hampered by the fact that regulators are exercising functions in a lot of different ways. I am speaking to this amendment but there is a previous one in the group, and I will respond to mine once the noble Baroness has responded. I beg to move.

[Baroness Deech (CB)]

My Lords, I will speak about Amendments 135 and 136. It was a bit of a shock to many people to find that the Competition and Markets Authority had entered this rather competitive field of regulation. The CMA’s job is to promote competition and make markets work. I think much of the debate we have had over the past few weeks is precisely about how universities are not really about competition and markets; they are about collaboration, scholarship and research.

The OfS is replacing HEFCE, which was the lead regulator, but the OfS is not taking over the Office of the Independent Adjudicator. I declare my interest as the first holder of that office, a few years ago. The OfS is intended to be a single, student-focused regulator. I think the Government might be seen to be undermining their own scheme if they allow the CMA to meddle in affairs which really are not suitable for it. There is already far too much compliance and legalism for universities to deal with—human rights, health and safety, data protection, freedom of information, judicial review, Prevent guidance and much more, including the common law. There is a crowded enforcement field as well—the CMA, other higher education bodies, consumer protection legislation, the Office of the Independent Adjudicator, Scottish and Northern Irish ombudsmen, government departments, the Advertising Standards Authority and the Quality Assurance Agency. The CMA admits how fragile its own guidance is because everything depends on how the courts would interpret consumer law applied to universities’ functions.

I would argue that the CMA is also an inappropriate regulator because it shows little experience of how universities work. It is insistent on clear information being given about course variation before a student signs up. This is an example of how it is inappropriate. The prospectus for a student goes to print four or five years before the potential student who has read it graduates some years further on. It is impossible, therefore, in a prospectus to lock in lecturers for five years because of sabbaticals, fluctuating demand and finances, and even building works. How can a university predict what its fees will be five years from now, especially with new mechanisms being introduced right now? The CMA has recently opined that it thinks that it is unfair for universities to withhold formal qualifications from a student who is in debt. Does it have any idea how difficult it is to chase a student through debt collection procedures or failure to provide campus accommodation the following year—which it suggests as a sanction—when a student has left with no forwarding address or gone abroad, as frequently happens?

The CMA will also come into conflict and overlap with the Office of the Independent Adjudicator. The latter has been in existence for about 13 years and has decided thousands of cases, many of which have a consumer flavour. It has given a wide range of advice to universities about the same issues that the CMA has involved itself in. The OIA’s task, however, is to decide what is fair and reasonable. This is not the same as the CMA’s perspective, which is about deciding a dispute on the precise terms of the contract.

The Office of the Independent Adjudicator offers alternative dispute resolution, which is far better than resort to litigation. Unlike the CMA, the OIA can be flexible and offer resolution tailored to the needs of the wronged student—not money but a chance, for example, to retake a year or have extra tuition. The OIA should prevail over the CMA because it was based on a statute designed to provide that one specialised service for students; namely, the settlement of complaints according to what is fair.

There is something wrong in theory about letting the CMA drive issues of university information and practices. Its perspective would cement the student as a paying customer expecting to reach an acceptable outcome. But we are dealing in this Bill with a participatory process—education, not training; knowledge, not skills; and teaching, not rote learning—in a situation that involves a relationship of give and take between students and lecturers, parents and universities, and employers and government. We do not want the commercialisation of this relationship, as if it were the purchase of a car. We want value placed on stimulation, career guidance and intellectual growth, not just the path to a paper qualification.

The consumer model that the CMA applies results in a totally one-sided set of contractual details. It seems to think that there are no obligations on students to pull their weight and no enforcement mechanisms against students’ own shortcomings. There is no mention by it, or in the TEF, of students’ efforts and their responsibility to learn. This one-sided market approach is more likely to lead to complaints about poor teaching after an unacceptable result has been handed down. We expect collaboration and not competition.

Higher education is not like a consumer transaction. The education relationship is unique. There is no fixed outcome which can be measured by organisations such as the CMA because the quality of the experience is determined by the aptitude and hard work of the student, as well as the facilities and teaching offered by the university.

Higher education is one of a class of major events in life which do not readily lend themselves to government by contract. Such situations are too emotional and personal, with no clear goal and perhaps an imbalance of power. The issue may be too important for the rest of society to be left to the narrow issue of a contract between the individual parties. Only overall regulation focused on the goals of higher education and the student will do, not intervention from an unrelated and unrepresentative body such as the CMA.

The CMA focuses on choice, price and competition. It assumes that satisfying the consumer-student is all that matters. Its view of contracts is about the provision of education, but it is no help when it comes to what education should achieve. Its interventions will not only overlap and conflict with the Office of the Independent Adjudicator but will lead to more micromanagement, box-ticking, checking and inspection, and not to greater quality or public benefit. It has no place in this new system.

Higher Education and Research Bill

Debate between Baroness Deech and Lord Stevenson of Balmacara

Committee: 7th sitting (Hansard - continued): House of Lords
Monday 30th January 2017 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, because of the invitation to reflect, I will take a slight liberty and make two points. The worst time of my life was when I occupied a post in the British film industry and was involved in trying to get decisions for funding for films. We were often engaged in trying to deal with larger, richer and often foreign bodies, which were prepared to tantalise us with the thought that they might invest in our films. It became well known in that process that the worst decision you could get was the slow maybe. I am afraid we are in that situation. The Minister has said that he is reflecting and thinking, but we have not been able to get clarity. It is easier to have a straight, “No, we are not taking this forward”, than it is to have variations on “thinking hard about” or reflecting. I appreciate the gesture that he has made, but it has been a bit of a frustrating period, and I am sure the noble and learned Lord, Lord Mackay, will also say that sometimes it has been very hard to understand where the Minister has wanted to get to with a particular issue because we did not get clarity about it.

However, that is all past. We are now into a period of calm waters, and perhaps we can pick up the threads of some of what we are doing and try to take forward the ideas for Report and possibly onwards from then. I hope that that will be a fruitful time, and I look forward to it.

[Baroness Deech]

My Lords, I am happy to withdraw the amendment, but given that this is such a massive Bill with so many unknowns in it, I and probably others will be calling on Report for some sort of post-legislative scrutiny and checking. However, for now, I beg leave to withdraw the amendment.

Higher Education and Research Bill

Debate between Baroness Deech and Lord Stevenson of Balmacara

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

[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.

Higher Education and Research Bill

Debate between Baroness Deech and Lord Stevenson of Balmacara

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.

Deregulation Bill

Debate between Baroness Deech and Lord Stevenson of Balmacara

Thursday 5th February 2015 Lords Chamber

[Baroness Deech (CB)]

My Lords, I declare an interest as a former governor of the BBC. I recall charter renewal as a long, drawn-out process involving all sorts of different elements, and it would be wrong to pick this one out for fundamental change before the entire charter is reviewed. The other issue is that the licence fee is clearly due for the most fundamental reanalysis because both those who can afford it and those who cannot are very likely to be looking at BBC output on their iPads or computers. That is something that the licence fee arrangements have yet to grapple with. It is an enormous question that deserves careful attention—but in the holistic review of the entire charter. Therefore, I, too, support this very sensible amendment.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank all speakers for contributing to this debate and make special mention of the noble Baroness, Lady Howe, for all her campaigns, but particularly on this issue, which she has pursued with considerable vigour over the past few months. I also thank the noble BBC pensioner, the noble Lord, Lord Grade, for his support. It might be of interest to the House that he has had to change long-standing family arrangements to be here today, and we are grateful to him for that. The fourth spear carrier, the noble Lord, Lord Clement-Jones, has joined the charge and made a valuable contribution.

We have heard little vigorous debate about this issue because just about everybody is in favour, with the exception of the impassioned speech from my noble friend Lady Corston. Like other noble Lords, I share her concerns and regret that we did not tackle this issue earlier, because it is clearly causing considerable dismay.

When issues of public policy need to be resolved, there is no better place to do it than in your Lordships’ House, and this debate has lived up to its highest reputation. I should like to make three points.

First, this is an important matter. The BBC is the gold standard of our broadcasting system, which is one of the best in the world. We should never forget that. We take for granted the information, education and culture that the BBC produces hour after hour, day after day, and never really question how it has adapted to and survived so many changes over the decades, and how the system has evolved to make sure that that happens.

At a time when the very nature of the British state is under question, we should be very careful about tinkering with the long-established procedures under which it operates. I do not need to remind your Lordships’ House that, in survey after survey, the BBC ranks as one of the most important signifiers of the United Kingdom in all four countries. Recent experience in Scotland demonstrates what happens if that becomes an issue of debate in a referendum.

Over time, we have established appropriate procedures for exercising effective but arm’s-length oversight of the BBC, involving, as we have heard, periodic reviews of the charter and licence fee and the regular fixing of budgets. Previous charter reviews have taken two or three years of consultation and debate—although I understand that the timescale for the 2010 licence fee settlement was perhaps weeks, if not days. However, that does not depart from my general point.

Most people in the UK feel that there would have to be a very pressing reason for the Government of the day to depart from long-established procedures for settling the governance and funding of the BBC. I think it would be very unwise for any political party to play around with the BBC for short-term political advantage.

Secondly, I turn to the review. We support the review being undertaken by David Perry QC. We do not know what the review will recommend on the important question of decriminalising penalties. As I said, my noble friend Lady Corston made some very good points that need to be considered. Having said that, this is complicated and, as has been said, is as much to do with the courts and social services as how the BBC operates. This issue has not passed the test of being a pressing reason to depart from normal governance procedures. We think that it is right to wait for the outcome of the review before any decisions are taken. We must consider whether there is any reason for intervening in advance of the licence fee settlement, and we do not think the case has been made. In all the reasons that have been given today, I have not heard one to suggest that that needs to be departed from.

Thirdly, we need to probe deeply into what the Government are saying. As the noble Baroness, Lady Howe, and my noble friend Lord Watson said, when the 2010 licence fee settlement was announced, the letters that went out at the time said that the settlement would,

“provide a full financial settlement to the end of the year 2016/17”—

the end of the year 2016-17—

“with no new financial requirements or fresh obligations of any kind being placed on the BBC and/or license fee revenues in this period”.

I call on the Government today to honour that commitment on certainty and security, which they can do in part by accepting this amendment.

As my noble friend Lord Rooker said, we need to recall that this clause was not in the Bill when it was first introduced to Parliament, and therefore not subject to pre-legislative scrutiny. It came late in the process, when the Government rather unexpectedly accepted a Back-Bench amendment from their own side in the other place. It has never been properly considered or scrutinised; the only discussion has been in Committee in this House. In that Committee, the Minister said:

“The findings of the review … should be considered in the context of the charter review”,

a statement to which we could not object. However, he went on to say:

“It will be for the Government of the day to take forward any further actions as they see fit”.

Further, he said that the argument in favour of that action was that if the review were to find,

“an issue with the current regime, it can be of benefit to no one to delay the review or to prevent its findings informing any required change to the existing system”.—[Official Report, 11/11/14; col. GC 31.]

This is specious, and sophistry. If the review was to recommend a change in process, there could, as we have heard, be a gap of some £200 million a year for the BBC in the last year of an already very punishing settlement. As the noble Lord, Lord Fowler, suggested, the Government are trying to have it both ways. They are trying to persuade us that they are indeed with the angels on the charter review, requiring it to be a full and proper process, but at the same time wishing to reserve their position in case there is an opportunity for them to cut funding to the BBC in 2016-17. This is wrong.

I put it to the Minister that by resisting this simple and principled amendment today, he will be fuelling a sense that this Government are doing what they can, when they can, to weaken the BBC. As the noble Lords, Lord Grade and Lord Fowler, warned, it opens the door for darker forces in favour of a different funding model for the BBC. It is not just a simple reform of the penal system. The reaction to this issue today, from right across your Lordships’ House, which I aver is echoed across the country, shows that it would be completely wrong for the Government to introduce a significant change in funding for the BBC before the start of the next licence fee period on 1 April 2017. If the noble Baroness, Lady Howe, wishes to test the opinion of the House, we will support her.