Higher Education and Research Bill

Debate between Baroness Wolf of Dulwich and Lord Young of Cookham

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

[Baroness Wolf of Dulwich]

My Lords, this is a very small amendment and I rather hope that it is a tidying-up amendment that the Government will go away and decide to agree. At the moment, as part of the general rethinking of the sector, it is possible for institutions to apply for just bachelor-level degree-awarding powers, bachelor’s and master’s or bachelor’s and research, but one group is regrettably shrinking in size: foundation degrees. That is important because, in another part of the woods, we are trying to rethink and redevelop tertiary education, and foundation degrees are a sub-degree level to which there is a lot of business and employer input.

By what is to me is a strange quirk, although the Minister may be able to explain it, the only people who can have foundation degree-only powers are FE colleges. I cannot see why other institutions should not also in certain circumstances have those powers. My amendment would simply delete that restrictive clause and leave it to the OfS to give foundation degree-only awarding powers to any institution where that seems appropriate. I beg to move.

[Lord Young of Cookham]

My Lords, I am grateful to the noble Baroness for her explanation. She tried to link it with the amendments I just moved and put it in the same category as tidying up. Hers is a more substantial proposition than those that I just put to the House. I agree with the noble Baroness that foundation degrees are important and can be—indeed, are—awarded by a wide range of institutions, which includes but is not limited to the FE sector.

Under the Bill, subject to meeting registration conditions, institutions that provide higher education will be able to apply for TDAPs—taught degree-awarding powers. That is a broad suite of powers that includes the ability to grant foundation degrees. The ability to apply for the powers to award only a foundation degree was always intended as specifically relevant to the FE sector, and it has never been the Government’s intention to change this position under the Bill. The sector is defined by reference to Section 91(3) of the Further and Higher Education Act 1992 and includes further education corporations and sixth-form colleges.

We are mindful of the fact that the landscape has changed since foundation degree-awarding powers were first introduced almost a decade ago—in particular, with the introduction of providers such as institutes of technology or national colleges. On institutes of technology, it is envisaged that existing FE colleges or higher education providers will be part of the consortium that is the IoT, and they will be involved in the provision of higher education. Given that involvement, we do not envisage any impediment towards the ability of such providers to deliver courses leading to foundation degrees, should they wish so to do. Against that background, I hope that the noble Baroness will be minded to withdraw her amendment.

[Baroness Wolf of Dulwich]

I have to say that I do not find the answer satisfactory, because I still do not see why, in that case, one still has a foundation degree-only awarding power in the mix at all. I continue to feel that it is odd to bar the possibility of something which might be useful in this changing landscape. Nothing here says that you have to do it.

However, I accept that the Government are not minded to do this, at least on this occasion. I very much hope that they might think about it some more. On that basis, I beg leave to withdraw the amendment.

Higher Education and Research Bill

Debate between Baroness Wolf of Dulwich and Lord Young of Cookham

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

[Baroness Wolf of Dulwich (CB)]

My Lords, I do not want to say very much about this. I did not withdraw the amendment which my noble friend Lady Brown and I originally tabled and which the noble Lord, Lord Stevenson, kindly introduced, because I wanted the opportunity to say in the House how very much we appreciate the fact that the Government listened to us on this and how convinced we are that introducing the Regulators’ Code into the OfS’s actions will be entirely for the good. It will take care of a great many anxieties we had about details in the Bill and we are truly appreciative of that.

I also want to agree with what the noble Baroness, Lady Deech, said about the realities of dealing with students who are in a university and how you cope with problems, complaints and all the issues which come to the Office of the Independent Adjudicator. It is really important that the Government take account of the fact that this is not like a situation where you buy a coffee and if you do not like it you go and buy another coffee. My noble friend spoke very eloquently. I hope the Government will listen to her on that as much as they listened to us, and I thank them very much.

[Lord Young of Cookham]

I am grateful to noble Lords who have spoken to these two amendments for their contributions to this debate. I shall deal with the easy one first.

My noble friend explained in his letter earlier this week that he had listened to concerns around the regulatory powers of the OfS and the assurance that noble Lords, many of whom have spoken in this debate this evening, are seeking around its adherence to the Regulators’ Code. As already stated in the Bill, under Clause 3(1)(f), we share the aspiration that the OfS should comply with recognised standards of good regulatory practice. We remain wholeheartedly committed to the principles of the Regulators’ Code, and because the OfS is the sector regulator, we agree that it should sign up to the code. I am therefore pleased to confirm the announcement made on Monday that the OfS will voluntarily commit to comply with the code, with a view to its regulatory functions being formally brought into scope when the list is next updated via statutory instrument.

I now turn to the more difficult amendment about the respective roles of the CMA and the OfS and what the interface is between the two. In his letter to noble Lords earlier this week, my noble friend recognised the concern over the respective roles and responsibilities of the CMA and the OfS. I will explain why we believe that this a not a substantiated concern. I think that the noble Baroness, Lady Deech, used the right expression when she said, “We expect collaboration”. That is exactly what we expect.

The CMA is not a sector regulator but an enforcer of both competition and consumer protection law across the UK economy. The CMA has the specific role and specialist expertise to enforce competition law and consumer protection across the whole of the UK economy. It would be unprecedented, as has been suggested at times, for the competition and consumer enforcement functions of the CMA to be transferred entirely to a sector regulator. Even where sector regulators have enforcement functions, the CMA retains powers as an enforcement authority, with appropriate arrangements for co-ordination of concurrent functions.

In the past the CMA has provided general advice to HE institutions on complying with consumer law. In addition, its consumer enforcement powers have been used in relation to the sector. Specifically, it has received undertakings from providers around, for example, academic sanctions for non-fee debts, such as accommodation debts; information for prospective students on additional non-fee costs; terms and conditions on fee variations; and fair complaints procedure.

HEIs are expected to comply with consumer law, enforced by the CMA. The OfS will be expected to take on board the CMA’s guidance and best practice when it develops the details of the regulatory framework. It is perfectly usual for an organisation that is subject to sector regulation to be required to comply with legal requirements that are enforced by bodies other than the sector regulator. For example, even in regulated sectors the Environment Agency carries out regulatory and enforcement activity in relation to the environmental aspects of an organisation’s activities—for instance, as regards waste and contaminated land—and the Health and Safety Executive enforces health and safety requirements.

Although the CMA and OfS share areas of common interest in relation to competition and consumer matters, their roles are distinct and complementary, not contradictory. This is the joint view not just of Ministers but of the CMA. So we expect the CMA and the OfS to work productively together, just as the CMA works well with other regulators—indeed, as it does with HEFCE at the moment—and we see no reason for this to be different once the OfS is established. There will be a further opportunity to explain respective roles and responsibilities, as necessary, as part of the consultation on the regulatory framework this autumn.

Students—in addition to being students—have consumer rights, and universities and other higher education providers that do not meet their obligations to students may be in breach of consumer protection law. Compliance with that law is important not just to protect the students but to maintain student confidence and the reputation of the HE sector, and to support competition.

The noble Baroness asked whether there was confusion about the regulatory roles of the CMA, the OfS and the OIA. I applaud the work that she did at the OIA. As I think I said a moment ago, subject to the passage of the Bill, the OfS will be the regulator for higher education providers in England. The OIA will continue to operate as the body designated by government to operate the student complaints scheme in higher education, so it is not a regulator and it will continue to deal with individual student complaints. The CMA is not a sector regulator but an enforcer of both competition and consumer protection law across the UK economy, and it has the specific role and specialist expertise to enforce competition law and consumer protection across the whole of the UK economy. So there is no overlap of responsibility between the CMA, the OfS and the OIA, although the OfS will be expected to take on board the CMA’s guidance and best practice when developing the regulatory framework.

As I said, there will be an opportunity, as part of the consultation on the regulatory framework this autumn, to explain, discuss and identify the respective roles and responsibilities of these three bodies as necessary. In the meantime, I ask the noble Lord to withdraw his amendment.