Census (Return Particulars and Removal of Penalties) Bill [HL]

Baroness O'Neill of Bengarve Excerpts

Report stage (Hansard): House of Lords
Tuesday 18th June 2019 Lords Chamber

To come to the second point the noble Baroness raised, one has to remember that, in all of this, there is no question of prosecution without the authority of the prosecuting authorities. Therefore, there is room for discretion in any particular case. I can see that sensitivities in the area the noble Baroness referred to might well be a considerable reason for difficulty. Therefore, the answer to that, so far as I am aware of any possible answer, is that if there was a real problem of that kind relating to a particular case, I would not expect the authorities to take any action in pursuance of punishment or anything of that sort.

[Baroness O’Neill of Bengarve (CB)]

My Lords, my noble and learned friend’s amendment goes a long way to protect the public from some of the ambiguities of these questions. If the question is optional and one does not need to answer it, one does not have to resolve the ambiguities, which are considerable on both halves. That is to say, it is not clear to me that every member of the public will understand what is covered by the term “sexual orientation”. I ask myself: is chastity a sexual orientation? Is paedophilia? I could name some nastier things, but that will do.

Equally, the term “gender identity” is not entirely clear for members of the public: do we mean what someone is or what they think they are? Public discussions of notions of identity have shifted a lot in the past 30 years. It seems unfortunate to put into a census form a highly disputed sociological term of art without clarifying what is meant by it. I therefore think it is a splendid thing to make both questions voluntary. I hope many people, such as myself, will be a bit hesitant about answering them.

[Baroness Barker (LD)]

My Lords, I beg to differ with the noble and learned Lord, Lord Judge: I think these are riveting matters. This debate has shown exactly why that is so, because they are not easy. I am very glad that he has in effect gone back to what some of us said right at the beginning of Second Reading: that the importance is not what is in the Bill but what is on the form that results from this piece of legislation. That is what we have been driving at, not only in the debates in your Lordships’ House, but also in the discussions we have had with civil servants from different parts of government and from people within the community, over a number of very interesting and informative sessions.

I say to the noble and learned Lord, Lord Mackay, regarding his problems with the DVLA, welcome to the world of some of the minority groups in this country, who are faced with forms that they wish to answer truthfully but find doing so extremely difficult. It is always a joy to listen to the noble Baroness, Lady O’Neill. I wish she could have been present for some of the discussions that we had with the community groups, the ONS and the civil servants, who are in the middle of extensive testing, not just of the understanding of people who are in these groups and who are familiar with these terms, but with people who are not.

This is something which by its nature evolves over time, and the language within it changes over time; I guess that every 10 years there is something new. We should not be critical of that, but simply do our job in Parliament, which is to oversee those changes and make them as good as we possibly can. I have said this before and think it is worth saying again: the taking of a census is an important moment in our civic life. I know there are those who wish to dispense with it, who make an argument that we can get much of the information in other ways. I understand that to an extent, but nevertheless this is one time when the Government engage with all citizens and ask them questions about themselves. I understand that it is flawed—I suspect that it always will be—but the noble and learned Lord, Lord Judge, has got us to the point we said we wanted to be at, where we will get the most data in the easiest and most efficient way from the greatest number of people. If we send the Bill to the Commons in this state, we will have done a good job.

Electoral Commission: Referendums and Elections Spending

Baroness O'Neill of Bengarve Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Young of Cookham]

The Electoral Commission’s annual report for 2017-18 shows that it issued £126,625 in fines and penalties. Penalties were imposed in 86 cases, £30,000 being the highest charged to any one party, with a further two of over £10,000. As the noble Lord will know, for more serious criminal offences the Electoral Commission can refer the matter to the police and to the National Crime Agency—which it has done—and if anyone is convicted, then the maximum fine is unlimited. So the potential exists to go above the Electoral Commission’s powers. I do not accept his suggestion that we should rerun the referendum, which resulted in a 1.3 million majority of one side over the other. We should accept it; and I do not accept that it has led to the total paralysis of the Government.

[Baroness O'Neill of Bengarve (CB)]

My Lords, this is the fourth Question that the Minister has answered in this general area during the past week. Although his Answers are detailed and useful, they do not seem to reflect the urgency of the issues. We cannot sit here saying, “Oh, there are consultations and consideration of these problems going on”, because we may face a referendum or election before many of us would wish. We would not wish that election or referendum to be corrupted, as is possible with the range of regulatory powers that our Electoral Commission and our Advertising Standards Authority have.

[Lord Young of Cookham]

I accept what the noble Baroness has just said. As I said earlier, were there to be another referendum, there would have to be primary legislation as there was with the last referendum. Noble Lords would have the opportunity to change the law if they felt it was defective in the way that the noble Baroness has indicated. On the other matters, we are taking action. We issued a document earlier this month on the intimidation of voters and candidates, and we are taking action on digital imprints. We are making progress on a number of key issues to uphold the integrity of our electoral system.

EU Referendum: Lessons Learned

Baroness O'Neill of Bengarve Excerpts

Monday 20th May 2019 Lords Chamber

[Lord Young of Cookham]

Were there to be another referendum, as the noble Lord knows, there would have to be primary legislation first, so noble Lords would have an opportunity to amend it. Last time, the House of Lords changed the legislation for the referendum to make it more difficult for parties to act in concert. However, if the noble Lord wants a referendum, my advice to his party is that it needs to vote for the deal. Unless you have a deal, you cannot have a referendum, and the referendum does not just happen—you need a Bill. The right thing for the noble Lord and his colleagues to do is to vote for the deal and then seek to amend the Bill to see whether there is public support in the other place for a referendum.

[Baroness O’Neill of Bengarve (CB)]

Will the Minister recognise that we may have a referendum or an election before many would wish either to happen? Is it not prudent, therefore, to take some steps to regulate political advertising, both online and digitally, to try to get an imprint on every political advertisement and to bring political advertising back under the requirement to say who paid for it?

[Lord Young of Cookham]

I entirely agree with the noble Baroness. I welcome what Facebook has already done in identifying political advertisements on its system. A review of online advertising was announced on 12 February to look into what is called the advertising ecosystem. As regards digital imprints, I agree with the noble Baroness; we announced two weeks ago that we agreed in principle that there should be an imprint on digital advertising, as there is on printed material, and we are about to consult on exactly what that should cover and when it should be introduced. But again, were there to be a referendum in the near future, there would need to be specific legislation to deal with it.

Elections: Online Interference

Baroness O'Neill of Bengarve Excerpts

Wednesday 1st May 2019 Lords Chamber

Asked by

[Baroness O’Neill of Bengarve]

To ask Her Majesty’s Government what measures they intend to take to prevent or mitigate online interference with any future elections or referenda.

[Lord Young of Cookham (Con)]

My Lords, the Government are committed to ensuring the security and integrity of our democratic processes and defending them from all forms of interference. To date, we have not seen evidence of successful interference in UK democratic processes. UK voting mechanisms do not lend themselves to direct electronic manipulation as voting and the counting of ballots are highly manual processes conducted under the watchful eye of observers.

[Baroness O’Neill of Bengarve (CB)]

My Lords, I wish I could share the noble Lord’s optimism. The ways that exist for interfering in elections are not confined to direct interference at the polls. We are talking about interference in campaigning, and there is ample evidence of that. There is no evidence of how successful interference has been in particular cases; the nature of the problem means that such evidence cannot exist. This is an urgent matter. I believe that the country would be ill served by further democratic processes, whether elections or referenda, where people could not tell whether they had been fairly conducted.

[Lord Young of Cookham]

I say to the noble Baroness, Lady O’Neill, that we take these issues seriously. We are now actively considering the recent report and recommendations of the Electoral Commission, the recent report of the Information Commissioner on digital campaigning and the role of Cambridge Analytica, and the recent report of DCMS on fake news. The Secretary of State will give evidence to the Select Committee next week. We hope shortly to have the Intelligence and Security Committee’s report on Russian interference in the referendum and the 2017 election. We will then take steps to ensure that we have a robust framework for our election process, which is resistant to corruption and enhances public confidence in our democratic institutions.

Election Expenditure

Baroness O'Neill of Bengarve Excerpts

Wednesday 13th February 2019 Lords Chamber

[Lord Young of Cookham]

That is why, in my Answer, I said that in the first instance, the code of practice will provide greater clarity for those taking part in our democratic process. At the meeting attended by the noble Lord and six other noble Lords yesterday, the point was made that there may be some inconsistency in the primary legislation, which may need addressing. What I have said does not preclude a more radical look at primary legislation, as the noble Lord suggested.

[Baroness O’Neill of Bengarve (CB)]

My Lords, does the Minister agree that the primary threat to the integrity of elections in this country is not because of failure by the political parties but because of anonymous online targeting of our fellow citizens, whereby people cannot trace the source of funds or what is happening? What do the Government plan to do about that?

[Lord Young of Cookham]

The noble Baroness raises a valid point. The Electoral Commission produced a report last year, Digital Campaigning: Increasing Transparency for Voters, which had recommendations along the lines suggested by the noble Baroness. The DCMS Select Committee in another place is looking at exactly this issue, and when we have its report, we will see whether fresh legislation is needed in order to provide greater transparency on who is paying for what.

Brexit: Stability of the Union

Baroness O'Neill of Bengarve Excerpts

Thursday 17th January 2019 Lords Chamber

[Baroness O'Neill of Bengarve (CB)]

My Lords, we are indebted to my noble friend Lord Lisvane for a timely broadening of the debate. Nevertheless, I shall talk mainly about Northern Ireland because it seems to me the most urgent. We are in great danger of flogging dead horses at present, because we are not too sure which horses are still alive—so be it.

The backstop is of course the fundamental feature of the debate on the Northern Irish situation at present, but in the background there is the Belfast agreement and the commitment of all parties to the principle of consent in any constitutional change. This is a treaty obligation that both the United Kingdom and the Republic of Ireland have accepted, and it has been fundamental to the peace process, which the EU has supported in many ways across, now, more than 20 years. If the backstop were activated, that would change the constitutional position by, in effect, excluding Northern Ireland—it is hoped, only temporarily—from the UK.

In very recent exchanges with the United Kingdom Government, the EU has indicated an aspiration to ensure that this situation does not arise and that, if it does, to work towards reaching an agreement on trade and, thereby, on the Irish border. That is admirable and realistic, but the phrasing of the commitment is still asymmetric. In their letter of 14 January—this Monday—to the Prime Minister, available on the Government’s website, Mr Tusk and Mr Juncker reaffirm their aspiration to avoid the backstop. So far, so good. They write:

“The Commission can also confirm the European Union’s determination to replace the backstop solution on Northern Ireland by a subsequent agreement that would”—


note the hypotheticals—

“ensure the absence of a hard border on the island of Ireland on a permanent footing”.

That is baffling. If their determination is shared by Her Majesty’s Government and the Republic of Ireland, why can the commitment not be made by all parties at this stage?

I realise that it has been affirmed time and again that future arrangements can be agreed only once the withdrawal agreement has been completed. But does this make any sense? Yes, to be sure that future arrangements can be implemented only at an appropriate time. But putting them beyond discussion and agreement and allowing that to undermine the negotiation of a withdrawal agreement reminds one of publicly insisting on red lines before negotiating. Surely there is too much at stake to allow this rigidity to derail agreement.

I have family both north and south of the Irish border. My family, including those who have served in this House and the other place, have long been liberal unionists so I am not tempted to support the DUP, least of all some aspects of its policies. I know in my bones what the loss of peace and good order would mean. If change in the Northern Ireland constitutional status happened by consent, in accordance with the Belfast agreement, so be it. I would support that, but I am at a loss to understand why the EU negotiators wish to risk the peace agreement they have supported for many years by allowing for the possibility of profound constitutional change that is not consented to as the Belfast agreement requires. Can the Minister shed any light on that by explaining why the Government have not managed to convey to the EU negotiators that this is effectively unconsented constitutional change?

European Union (Withdrawal) Bill

Baroness O'Neill of Bengarve Excerpts

Tuesday 30th January 2018 Lords Chamber

[Baroness O’Neill of Bengarve (CB)]

My Lords, I have two interests to declare because I shall talk about the movement of people on the island of Ireland and between our islands. I was born in Northern Ireland and am entitled to Irish citizenship as birthright. I currently use a UK passport. My identity is British and Irish, although because of the oddity of UK practices of recording ethnic classification—seemingly contrary to the Northern Ireland Act 1998—I am not allowed to state this for standard UK administrative purposes, and usually have to classify myself as “White other”. I am also on the advisory board of These Islands.

A very large number of questions have been raised about the adequacy of the Bill’s approach to dealing with retained EU law, particularly but not only in the devolved nations. That is the proper focus for this debate; we should concentrate on the constitutional adequacy and competence of the legislation, not on wider questions about Brexit.

The devolution settlements are far from uniform, as we know, which makes it harder to see what is proposed and whether it is adequate. But it is uncontroversial that the Northern Ireland settlement differs from the Scottish and Welsh settlements not merely in its provisions but in its status. Other noble Lords have spoken with more authority on this highly relevant matter. The noble Lords, Lord Hain, Lord Empey and Lord Patten, all mentioned it. This is because the Belfast or Good Friday agreement is an international agreement between the Republic of Ireland and the UK, which, alongside many other provisions, established the North/South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference. Part 5 of the Northern Ireland Act 1998 mandates participation in the cross-border institutions.

It follows that any moves to change retained EU law after Brexit raise two distinct issues in Northern Ireland—more than two, in fact, but two very important ones. First, as for the other devolved Administrations, it raises questions about changes in devolved matters post Brexit being made by the UK Government, rather than by the relevant devolved Parliament or Assembly. Secondly, unlike the other cases, it raises questions about the UK Government’s commitment to work not only with the Northern Ireland Assembly and Administration—as we all know, these are not currently in action—but, as required by the Belfast/Good Friday agreement, with the Government of the Republic of Ireland and to have regard to the Belfast principles, which include partnership, equality and mutual respect. Will the Government write into the Bill a commitment to meet these conditions in making changes to retained EU law that bears on Northern Ireland post Brexit? What forms of interaction with Northern Ireland office-holders and with the Dublin Government will the Government commit to in order to meet these requirements? Those are my two questions to the Minister.

I believe that clarity about such restrictions post Brexit is vital. We are in the curious situation that although the Government have insisted for almost 18 months now that they do not seek a hard border on the island of Ireland, they have yet to say anything about how this is to be achieved. To be sure, we cannot say much about the trade aspects until those negotiations are further advanced but we can say something about the movement of peoples. Over a year ago, I asked a previous Secretary of State for Northern Ireland how it was to be done. She—or he—replied, I thought a bit casually, “By passports”. That was interesting. Who is to show a passport, where and for what purposes? We know that it is not to be on the Irish border, which is to remain soft, or between Northern Ireland and the rest of the UK, which would be intolerable to our constitutional integrity. We also know that thousands of British and Irish citizens constantly cross the border and the Irish Sea, many of them frequently, without showing passports. Noble Lords who travel only by air often forget this reality. But after Brexit if it happens, Irish policies on the free movement of labour will diverge from those of the UK and there will have to be an enforceable policy regulating the movement of persons.

My own guess is that if there is to be no hard border, any workable approach will require everyone in the UK—not just in the island of Ireland—to have a passport or equivalent secure ID, and to show it when performing significant life transactions such as taking up employment or opening a bank account. I do not think this needs to be a violation of privacy. It would provide less information for better defined purposes than the common practice of carrying a smartphone, but I am aware that this is a sensitive matter for many on the Conservative Benches. That is the sort of nitty-gritty matter which lies beneath the questions of the amendability of retained EU law post Brexit, particularly its adequacy in Northern Ireland. I hope the Government can bring forward an amendment to require compliance with the Belfast agreement in making any post-Brexit changes to retained EU law.

Government-commissioned Research

Baroness O'Neill of Bengarve Excerpts

Wednesday 28th June 2017 Lords Chamber

Asked by

[Baroness O’Neill of Bengarve]

To ask Her Majesty’s Government what steps they are planning to take to register externally commissioned research in a standardised public register, as recommended by Sir Stephen Sedley in his report Missing Evidence: An Inquiry into the Delayed Publication of Government-commissioned Research, published on 2 June 2016.

[Lord Young of Cookham (Con)]

My Lords, Ministers understand the importance of ensuring that government research can be easily accessed. Departments can already publish research in a single place, the GOV.UK website, and the Government Digital Service is making it easier for users to find the information they need on this website. More widely, we remain in close dialogue with Sense about Science, which commissioned the report, and with the research community to understand how the Government’s digital channels can better serve their needs.

[Baroness O’Neill of Bengarve (CB)]

I thank the Minister for that reply. Sir Stephen Sedley’s report estimates that about £2.5 billion a year is spent on government-commissioned research, which is a very large sum. It is intended to provide an evidence base for public policy. However, much of this evidence is then lost, missing or unfindable by people for whom it is relevant. Commissioning departments, other departments and the public at large cannot find out what has already been done. Past research is simply lost and may have to be duplicated. Does the noble Lord agree that not having a co-ordinated register of this research is a very big waste of taxpayers’ money?

[Lord Young of Cookham]

The noble Baroness has rightly summarised the recommendations made by Sir Stephen Sedley. Basically there are two problems, one of which is the availability of research and the other its accessibility. On availability and putting it in the public domain, Sir Tom Scholar, the Permanent Secretary to the Treasury, has recently written to all Permanent Secretaries reminding them of the protocol which obliges them to put research into the public domain as soon as possible. On ease of access—finding the data—the Government Digital Service is sharpening its navigational and taxonomy tools in order to make it easier for users to find the information they need.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 13th March 2017 Lords Chamber

Moved by

[Baroness O'Neill of Bengarve]

146: After Clause 84, insert the following new Clause—
“Unincorporated higher education providers: financial support
Students enrolled on a course provided by a higher education provider that is not incorporated under the law of the United Kingdom do not qualify for publicly funded student support.”

[Baroness O'Neill of Bengarve (CB)]

My Lords, the purpose of this amendment is to try to help to ensure that higher education providers, including new ones, have adequate standards of governance, and in particular standards that support the integrity of the student loans scheme. The intention of the Bill is to permit a wider range of higher education providers to offer university education in England.

The novel term “English higher education provider” has a capricious definition: it is simply an organisation that offers higher education in England. It could be a public body, a charitable body, a company limited by guarantee or a for-profit company. It could also be an organisation with a single proprietor. In our debates so far, we have tended to speak of such providers as having governing bodies. This can sound reassuring and familiar, but there is nothing yet in the Bill that requires an English higher education provider to have a governing body that meets specified standards, let alone UK standards. The term “English higher education provider” is therefore somewhat misleading. We would not, I think, speak of a Chinese textile company that sells cotton t-shirts and socks here as an English cotton clothing provider. However, the English higher education providers that the Bill envisages are to count as English merely if this is a market for which they provide something.

We all hope the new entrants that the Bill when enacted may attract will offer high-quality university courses—ideally, courses that are not sufficiently available in the current spectrum of UK university offerings. For example, we might hope that some new providers would offer the quality of undergraduate education that the best American liberal arts colleges or the best technical universities in Germany or Switzerland offer. However, I think that that is very unlikely. The cost base for these institutions is extremely high. The US liberal arts colleges—I have in my time taught on five well-known undergraduate programmes of that type—require a four-year degree and charge extremely high fees. These institutions are typically part-supported by endowment funding and could not function without it. The cost of STEM provision, such as that offered by technical universities in Germany or Switzerland, is evidently also high, as it is for their counterparts here. Such institutions are not likely to see a ready market for their standard offering here, particularly as there would be very high competition from the best existing UK institutions.

At most, such institutions might offer a restricted, downmarket set of courses only in subjects that are cheap to teach but whose graduates are assumed to be well paid—typically law, business, accountancy or subfields of these. That approach to their franchised overseas provision has been taken in other jurisdictions by some prestigious US institutions. However, I am not going to name names, because I think that that would be unfair.

The major risk is that institutions of quite other sorts would seek to enter the market to provide higher education in England, lured by the prospect that their students might have access to publicly funded tuition loans. At present, somewhat surprisingly, there is nothing to ensure that those who seek to provide higher education will have even adequate, let alone high, standards of governance. We have talked rather cosily about the governing bodies of higher education providers, but that need not be the situation. Noble Lords who followed the story of the collapse of Trump University and the compensation settlement that was reached a few months ago will recognise the sort of risk that I am talking about. Noble Lords who have not yet had the enjoyment of following the gory story might start with Wikipedia. It is not an edifying tale.

The amendment seeks to address this problem by requiring incorporation under UK law for any English higher education provider whose students may gain access to publicly funded tuition loans. This requirement would allow the Office for Students to discover something about the governance, and therefore the finances, of any would-be English higher education provider that hopes to franchise its offerings in the UK. The OfS might even be minded to set a fit-and-proper person standard for members of such governing bodies and university leaders. We do this for banks; should we do less for universities? I beg to move.

[Lord Stevenson of Balmacara]

My Lords, this is a golden thread in our debate that has been pursued with considerable vigour by the noble Baroness, who has on every occasion, I think, asked difficult questions. In fact, she has been quite free with her favours, asking questions of me and of other noble Lords around the whole Chamber when we have failed to measure up to her high standards of accuracy and precision when mentioning the words “English”, “higher” and “education” in sequence.

Here we are at the crunch point. The noble Baroness has put down a very specific amendment that would have quite strong repercussions for any body attempting to recruit English higher education students, because along with students comes public money. The main argument as I take it—and we look forward to hearing about it from the Minister—is that we are risking public money on bodies when we have no certain knowledge about where and how they are incorporated and what rights and responsibilities they have to the students. She could have mentioned several other areas and it is important to get them on the record. Under the Consumer Rights Act, students are owed a duty of care by the providers of their course. Specific issues must be supplied by the institutions and remedies for students lie in legal protections, which would be exercised in court. If the bodies are not incorporated in the UK, how are they going to manage that? I think the Minister should respond to that in a positive way.

We are also concerned with insolvency issues. It is quite interesting and instructive that most of the Technical and Further Education Bill—which is accompanying this Bill through Parliament—is taken up with measures that apply if a college of further education goes into insolvency or is wound up. There is a special education administration regime with particular powers for the insolvency practitioner appointed to ensure that students rank above all other creditors and that their courses will continue, if possible, or be transferred to a similar institution if not. Creditors, who in insolvency law—as I am sure your Lordships’ House is well aware—are normally given primacy, are relegated to second place. We have no such system for higher education institutions in the UK. There is therefore no provision for what happens when a private company, in particular, decides it no longer wishes to teach its students. Where will the students seek redress? The cases mentioned by the noble Baroness are relevant in this jurisdiction as well as abroad. It will be very interesting to see how students will recover their loans and their opportunities if there is no incorporation which allows them to do so.

We are discussing this when there has been a change of ownership of a very distinguished private provider, BPP. That situation is not nearly so dire as the one I have been discussing but nevertheless reflects a very major arrangement. The ownership has changed. The senior management have decided to not continue and there is still uncertainty about how the overall firm will be run. This is a real situation involving large numbers of students, lots of money and very difficult legal and jurisprudential positions.

The Government are taking this seriously. I had a letter delivered to my hand as I walked into the Chamber. It deals in four pages with some of the issues that the noble Baroness raised. I am not in any sense wanting to make slight of the letter because it is useful to have it on the record, but the Government seem to be broadly of the view that the existing arrangements under which the Office for Students—surely we will be shortly be calling it the Office for Higher Education, as we prefer—will have responsibilities under the registration and degree-awarding powers will make sure that nothing untoward happens. That is not sufficient. We need greater certainty about what institutions are responsible for our students, how they are responsible, in what way they are incorporated and what the legal position is.

I look forward to hearing the Minister’s response, but I do not think that he will be able to measure up to some of the very strong critiques that have been made so far.

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

My Lords, the Government want to provide students with options and choice, and to enable them to pursue the path through higher education that is best for them. We want a globally competitive market that supports diversity, where providers that demonstrate that they have the potential to offer excellent teaching and can clear our high quality bar can compete on a level playing field. To deliver that competitive market, we are introducing through the Bill a single, simple regulatory system appropriate for all providers, with a single route to entry and, for the first time, a risk-based approach to regulation.

It is through imposing conditions of registration that are directly linked to risks that we are able to improve and strengthen regulation of the sector. The Bill will enable us to go further than ever before and protect against the very issues that I know noble Lords are concerned about, in that, for the first time, we can focus attention where it is needed, rather than having the current one-size-fits-all approach. This means we do not have to take such a blanket approach as proposed by the amendment, which would automatically exclude potentially excellent providers.

Let me be absolutely clear: we are talking about providers which are carrying out their activities principally in England, so inevitably there will be a presence of some kind in England. Although each case will depend on its own facts, in determining where a provider carries out its activities, questions such as where the provider’s management activities take place, where its courses are designed, where course material is prepared, and where supervision, marking or other evaluation takes place, will need to be considered. It is not simply a matter of where students are studying.

Clauses 4 and 79 are clear that only those providers which carry on, or intend to carry on, their activities wholly or principally in England can successfully apply for registration. Only registered higher education providers can benefit from their students having access to student support. While there is no requirement in the Bill that providers must be incorporated in the United Kingdom, this does not mean that the Bill has inadequate safeguards in respect of foreign-established registered providers. If, following its assessment of risk, the OfS considers that particular risks arising from the fact that a provider is incorporated outside the United Kingdom need to be addressed, these will be mitigated through the imposition of specific registration conditions.

I can commit today that the Government will give clear guidance to the OfS about carrying out its risk assessment in the case of providers that are not incorporated in the UK, and outlining factors for the OfS to consider and address when it decides what registration conditions to apply to these providers. As an example, the OfS will need a clear understanding of how it can effectively regulate this sort of provider, backed up through registration conditions where appropriate. This will include understanding how the necessary verifications on matters such as quality and financial sustainability can take place before a provider can be granted entry to the register, as well as how effective enforcement action can be brought by the OfS and how students’ complaints can be dealt with.

To provide some specifics, it will be open to the OfS to seek financial guarantees from parent or holding companies so that it may have sufficient confidence that the provider can deliver ongoing high-quality provision. As happens now, we would expect the designated quality body to have in place arrangements with overseas quality assurance bodies to share information about higher education providers operating in their respective jurisdictions. It is also open to the OfS, through Clause 15, to impose a public interest governance condition on registered higher education providers that requires the provider’s governing documents to be consistent with public interest principles listed by the OfS. The list must include, but is not limited to, the principle that all academic staff have the freedom within the law to question and test received wisdom, and put forward new ideas and controversial or unpopular opinions without placing themselves at risk of losing their jobs or privileges.

Furthermore, it is clear that in respect of a registered higher education provider’s activities in England and Wales, the applicable law will be that in the Higher Education and Research Bill, and other relevant English and Welsh law. For example, its activities in England will be subject to the relevant applicable law as it applies in England, such as tax and equalities legislation. It is not necessary for a provider to be incorporated under the law of the United Kingdom for English courts to have jurisdiction. It is worth noting that English higher education providers operating overseas are not subject to restrictions that relate to where they are incorporated. The noble Lord, Lord Stevenson, hinted at this in his speech. If we were to unilaterally impose such restrictions this could be seen as a barrier to free trade and consequently there is a real risk that other countries might retaliate. This risks damaging a valuable export industry for the UK.

We must also be mindful that until we exit the EU we should not legislate in a way that conflicts with EU law. A requirement that a provider is incorporated in the UK may breach EU law on freedom of establishment and freedom to provide services. As such, we do not believe that there is any benefit to be gained from insisting on a requirement that registered higher education providers are incorporated in England and Wales or another part of the United Kingdom.

I hope the House will bear with me while I speak briefly about a slightly different issue before I ask for the amendment to be withdrawn. We have been looking again at Clause 114, on the pre-commencement consultation. Noble Lords will recall that this enables the Office for Students to rely on consultations carried out by the Secretary of State, the Director of Fair Access or HEFCE before the OfS has the power or duty to do so. Where the power or duty would, once it exists, require the OfS to consult registered higher education providers, we want it to be as clear as possible that the Secretary of State, the Director of Fair Access or HEFCE may satisfy this requirement by consulting an appropriate range of English higher education providers before any such providers have been registered. To this end, the Government undertake to bring forward at Third Reading a minor and technical amendment to provide that clarity. I hope that Amendment 146 will therefore be withdrawn.

[Baroness O'Neill of Bengarve]

My Lords, I thank noble Lords who have spoken in this short debate, and I thank the Minister for taking the time to give a detailed and, I think, useful reply. The issue may not be just incorporation. However, some franchise operations will leave the student in the other jurisdiction with remarkably slender forms of redress. That is the fundamental issue.

I will withdraw the amendment at this stage but I hope to bring back an improved amendment at Third Reading and, if possible, to have conversations with the Minister before then. This is a problem that I am sure we would all wish to get right and it is not clear to me that the elastic definition of “English higher education provider” plus great faith in the regulatory competence of the OfS are sufficient. We have all known the happy thought that a free market provided with a capacious regulator will deliver everything that is desired. The experience of the past 30 years has not borne that out so we need to take due care. With that, I beg leave to withdraw the amendment.

Amendment 146 withdrawn.

Voter Registration

Baroness O'Neill of Bengarve Excerpts

Wednesday 25th January 2017 Lords Chamber

[Baroness O'Neill of Bengarve (CB)]

Does the Minister agree that Northern Ireland gives us another reason to think about compulsory registration? The Government have maintained that the common travel area will continue after Brexit. I do not see how that can be done except by people having ID cards or passports that are biometrically sophisticated and carried by all of us. It is no good just saying, “Let the illegals identify themselves”.

[Lord Young of Cookham]

That goes way beyond my negotiating brief and takes us into very difficult territory about the future of the common travel area in Northern Ireland. I repeat that we have had a debate about ID cards and the Government have made their position clear. We are not minded to introduce them in the UK.