Higher Education and Research Bill

Lord Brown of Eaton-under-Heywood Excerpts

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

[Baroness Cohen of Pimlico (Lab)]

My Lords, I support the amendments. In allowing the simple-minded rankings of bronze, silver or gold, we would be substituting for all other measurements or assessments a fairly crude system of three measures. Nobody is going to read beyond “bronze”, which probably does not give enough credit. It is a very unsubtle method of ranking. I would like to see the test used for assessments and not for rankings, and I speak as one whose university would expect to be highly ranked. The system is too crude, and we would very possibly lose the “bottom 20%” fairly sharply, which would not be a good idea at all.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I too very strongly support this group of amendments. I share the very great concern expressed around the House, particularly at the thought of blackening the names of a number of our universities, on which we depend so very much for all sorts of reasons. The criticisms made around the House are compelling as to the obvious deficiencies of the present scheme.

One hopes that this is not the case, but if at the end of this debate the Government remain disinclined to change the approach of using gold and silver stars, ratings and that sort of thing, I urge that universities at least—there are a group of clauses in the Bill which specify what an institution has to do to justify that title—should be spared from the nonsense involved in the scheme as presently envisaged. They should not have to do this. They are already assessed through more sophisticated, nuanced approaches, and they should not have to be ranked in the way that this absurd scheme proposes.

[Lord Storey (LD)]

My Lords, first, I thank the Minister for listening and in some respects changing some of the issues. I was pleased to receive the briefing pack before coming into the Chamber, which was emailed to me as well. I want to talk about two issues: teaching and information.

I do not really get it. Quite simply, if you want to improve the quality of teaching, you do that not through ranking but through the individual who is teaching. We certainly expect a lecturer, professor or other member of staff at a university to have the academic ability and qualifications, or the renown, but we also expect them to be able to teach the subject. How do you do that? Presumably, it is not beyond the wit of universities to perhaps devise their own crash course in teaching. It was considered for FE—City & Guilds—so why could it not happen in universities? Why are we suggesting that a TEF will make an individual lecturer or professor a good teacher? It will not. Teaching skills, and the ability to teach, are not the same as having academic capabilities. This has to be about both, and if we want to improve teaching—which we need to do in our universities—then it will be through some form of teaching qualification.

Of course information should be available: the more information, the better, because in this day and age, particularly with social media, students look at the information to decide which university they go to. They also visit those universities, often with their parents, to decide which is the place for them. Your Lordships would be surprised by some of the considerations that they decide on—I have to say that whether the accommodation has en-suite facilities ranks very highly. I guess that it is increasingly through social media that students tell other prospective students what the place is like: whether the lectures are suddenly cancelled; whether assignments and dissertations are handed in on time and marked correctly; the numbers in lectures; the numbers in tutorials; and how competent and supportive personal tutors are.

Then we come to the issue of ranking. I like the analogy the noble Lord, Lord Smith, made with theatre and cinema stars. The difference is that there are different stars in different publications: one might give it three stars and one might give it one star. We cannot do that with these rankings: once you are a bronze, you are a bronze. I want the Government to understand why we oppose this. It is for a number of reasons. University teachers—lecturers—will want to teach at gold universities. That is human nature. They will not want to say, “I am at a bronze university”. It will affect social mobility. Students do not want to say, “My university was a bronze university”. I think it was the noble Baroness, Lady Blackstone, who said that praise is far better than wielding a stick.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

I will speak very briefly to lend support in as full a measure as I may to this proposed amendment. I echo everything that was said by the noble and learned Lord. The contrast between what is provided for in Clause 46(2) and what his amendment strives for—a full merits appeal—is as well illustrated in the language of Clause 46(2)(b) as in any other way, because for this purpose you have to show that the decision was “wrong in law”. If the Bill had wanted to say that it was wrong in law or in fact—just wrong—it could have said so. That is what is now proposed. Judicial review is simply not a sufficient basis of appeal for decisions as fundamentally and crucially important to the future of the institution and those who are affected by it as is required.

[Lord Mackay of Clashfern]

My Lords, I support the amendment. As I understand the structure of the Bill, it restricts the appeal that a university or higher education provider would have to call in question the decision to destroy it. As my noble and learned friend Lord Judge said, destruction of a university involves a lot of people apart from the university, but it deals with the university in the most destructive way possible. Therefore, it seems to me that a full appeal is the least that could be expected. The jurisdiction is to a tribunal—a First-tier Tribunal—not to the High Court. My noble and learned friend’s amendment accepts that but says that full examination of the merits must be allowed. The only way in which that can be done is to do what my noble and learned friend suggested. It is abundantly plain that this must be right.

Higher Education and Research Bill

Lord Brown of Eaton-under-Heywood Excerpts

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

[Baroness Blackstone (Lab)]

My Lords, I want to speak very briefly at what I assume is getting towards the end of an interesting debate. What worries Members of this House most about the Bill are the clauses about new providers, and my noble friend Lady Warwick made this very clear in her excellent speech. We have a system of higher education in this country that is highly regarded all over the world. We have many great universities from the point of view of research but we also have many great universities from the point of view of the quality of their teaching and the advanced vocational training that they provide. We do not want this great system undermined by too easily recognising new institutions and giving them degree-awarding powers before they have been through a proper probationary period, in which they are associated with existing institutions that will support their development and growth and help them gain the capacity to become institutions of higher education that we can recognise, embrace and support. That is at the centre of the concerns that have led to a wish to place at the front of the Bill a set of propositions about what constitutes not just a good university but a good system of higher education.

The other point I want to make is that for many, many decades, higher education has embraced not only universities but many other kinds of institution. Some of what has been said when discussing the question of whether or not universities should cover a wide range of disciplines has not quite taken into account the fact that there are specialist institutions that have for a long time, as I have said, not been defined as universities. In some ways, I think we may have made a mistake in deciding that some of these specialist institutions should now be called universities. Looking back, we see that colleges of education, medical schools, music conservatoires, specialist arts colleges and, as the noble Lord, Lord Willetts, mentioned, the Royal Agricultural College, were not defined as universities but as being part of a system of higher education. We might be able to bring some new specialist institutions in, but they should not necessarily—at least not at the beginning of their existence—be called universities.

Most people understand that the concept of a university covers a range of disciplines, allows academics to mix with colleagues from a wide range of subjects and allows students to work not just with those studying exactly the same subjects as themselves but with students studying a wide range of subjects.

There is, in a sense, a bit of a contradiction in this legislation. One principle of all good legislation is that it should be internally consistent and its parts make up the whole in a way that is appropriate and easily understood. On the one hand, Part 3 of the Bill is asking for an umbrella body—UKRI, which would cover all areas of research—in order, we are told, to ensure that there is cross-disciplinary research rather than researchers being in separate little boxes not communicating with each other. That is what good universities do. They are institutions that look at a particular intellectual problem from a variety of different disciplinary perspectives and try to solve that problem. That is why some of the institutions that I mentioned earlier are to me higher education institutions, but they are not universities as normally understood.

To pick up what the noble Lord, Lord Sutherland, said a little earlier, what we should be doing now is not to try to define what a university is, because this Bill should not just be about universities. They are the main provider of higher education, but they may not be the sole providers. Rather we should start with something that sets out what the principles of good, strong, high-quality higher education should be. Of course, that should cover institutional autonomy, freedom of expression, academic freedom and a whole variety of other things that are mentioned in the amendment. But the way in which it has been framed at the moment leads to a certain concern that it is not definitionally perfect.

Will the Minister consider coming back to the House with a new amendment to start this Bill off that covers the sort of issues in the amendment tabled by my noble friend Lord Stevenson, and Cross-Bench and Liberal Democrat supporters? That would reassure us a little that the Government are concerned about these principles and will not rush into a set of legislative changes that will undermine the quality of our higher education system by bringing in new providers that will not meet these principles.

[Lord Brown of Eaton-under-Heywood (CB)]

I speak as a lawyer, not as an academic. Indeed, until recently I thought that I was the only Member of the House who has not ever been a governor, chancellor or vice-chancellor of one of these institutions. As my noble friend Lady Wolf has now twice explained, the only direct relevance of this proposed new clause goes to the title of the body in question. In short, it goes only to Clauses 51 to 55 of the Bill. I understand her concern to be with regard to bodies being allowed to be called universities. Effect would be given to that if one said at the start of this new proposed clause: “For the purposes of Clauses 51 to 55, a higher education institution”—because that is what the whole of the rest of the Bill is about, assiduously avoiding any distinction between universities and those such bodies that are not—“should be regarded as entitled to use the title of university if it is an autonomous institution”, to return to the language of Amendment 1, et cetera.

With the best will in the world, although it seems to be the opinion of many in the House that the amendment will affect the view generally as to the autonomous nature of these institutions, as drafted it will not. It goes only to the title. It does not go even to the degree-awarding powers. That has nothing to do with whether a body is or is not called a university. Therefore it is much more appropriate, when concerned not with the title but with the autonomy of these higher educational institutions, to look at the amendments to which others have referred, Amendments 65 and 165, which deal not only with universities but with all higher education institutions.

If we want to give universities some special status, which this Bill as drafted at the moment assiduously does not, we have to recast the thing as a whole and say, “If you are a university, not only will you be able to call yourself such but these consequences follow”.

[Viscount Younger of Leckie (Con)]

My Lords, I am grateful for this opportunity on the first day back after the Recess to discuss our vision for universities. However, before I turn to the amendment I want first to thank noble Lords for their strong engagement to date. I have had time to reflect, as I am sure have other noble Lords, on the lengthy debate at Second Reading and I have been working hard over the Christmas period to consider the points that were raised and to engage on the issues, as we have throughout the passage of this Bill. I hope that noble Lords have received my subsequent letters. I and the team have been kept somewhat busy with the not inconsiderable number of considered and thoughtful amendments that have been tabled to date and I look forward to responding to each and every one of them. I also look forward to a good debate over the coming weeks and welcome the scrutiny that a Bill as important as this rightly deserves. As I said at Second Reading, we have been listening and continue to reflect, and I am looking forward to hearing the views and contributions of noble Lords from across the Committee. It is fair to say that we have made a pretty good start on this, the first debate.

The Bill before us today is the product of lengthy and thorough consultation and consideration, from the 2011 White Paper of my noble friend Lord Willetts entitled Students at the Heart of the System through to the White Paper published by the Minister for Universities, Science, Research and Innovation in May of last year, supported by a Green Paper that received more than 600 responses. The Bill also incorporates recommendations from Sir Paul Nurse’s review of the research councils, the review undertaken by the Higher Education Commission and the report of Professor Simon Gaskell on the long-awaited and much-needed reforms to the regulation of higher education.

Our English universities are some of our most valuable national assets and are powerhouses of intellectual and social capital. We believe that our reforms will help them to continue to thrive into the 21st century and beyond. The noble Baronesses, Lady Wolf and Lady Warwick, and the noble Lords, Lord Winston and Lord Krebs, have spoken authoritatively and passionately about their history, from papal bulls to the Dearing report. I also want to assure noble Lords that we do not intend to stop consulting and listening. In fact, we have listened carefully to the concerns raised around the pace at which we intend to implement the reforms, and I would like to take a moment to set out how we now intend to respond to these valid concerns.

As stated in the White Paper, we are aiming for the Office for Students to be in place in time for the 2018-19 academic year. This new regulatory framework, rather than being overly regulatory, as the noble Lord, Lord Bragg, suggested, improves on the current piecemeal approach to regulation. It will reduce the overall regulation of the sector for a risk-based approach. However, like noble Lords, we recognise the risks to students and providers of taking forward the implementation of the new regulatory framework in a way that may cause unnecessary disruption and instability to the sector. It is also important that further detailed development of the new regulatory framework is driven by the OfS executive team rather than it being led by the Government and then handed over to the OfS to implement. The campaign to recruit a chair is live and we expect to launch the CEO campaign shortly. The Director for Fair Access and Participation recruitment process will follow shortly afterwards. Therefore, subject to the passage of the Bill, this will allow the OfS to consult on its new regulatory framework in the autumn of this year and to begin accepting and assessing applications from new and existing providers in 2018, in time for the 2019-20 academic year rather than in 2018-19. This allows more time for thorough consultation on the detail of the new regulatory framework and for the sector to be ready for the new regime.

The noble Baroness, Lady Garden, asked whether the Minister had had discussions on these reforms with the skills Minister and I can reassure her that this has indeed happened. Regular discussions take place and the Bill is also complementary to the Technical and Further Education Bill, thus carrying out two reform programmes in parallel. This gives the best opportunity to support young people, a point rightly raised by the noble Baroness.

Let me now turn to this proposed new clause. The noble Lord, Lord Stevenson, has already quoted the definition that was set out by the Minister for Universities and Science in the other place and I agree that it is worthy of note. I note that several definitions have been made. Many of them carry favour.

Children and Families Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 17th December 2013 Lords Chamber

[Lord Brown of Eaton-under-Heywood (Non-Afl)]

My Lords, I supported this amendment in Grand Committee, and having added my name to it, I support it again today. I stress again today, as I did in Committee, that this is a threshold provision—that is fundamental. That provision dictates just when the court gets jurisdiction to deal with a case. The situation is identified in the proposed amendment and has been explained by the noble and learned Lord, Lord Lloyd. The question is, when an adult who is caring for a child is the possible perpetrator of the death of or serious injury to another child, does the court have the power to deal with the case? Has the threshold been crossed?

That is a very different question—and this is also crucial—from asking whether a care order or a supervision order should then be made. The noble and learned Lord, Lord Mackay of Clashfern, said in Committee that it would be “quite unfair” to take someone’s child into care merely because another person who has come to join that family is a possible perpetrator of another child’s harm. I entirely agree with him on that. But as the noble Baroness, Lady Howarth, noted in Committee:

“It is not being suggested that the children should be taken away. The suggestion is whether we are able to move to the welfare question”.—[Official Report, 21/10/13; col. GC 329.]

The noble Baroness had earlier explained that the result of the comparatively recent interpretation given by the courts to Section 31 was that the social workers,

“now … cannot move to the welfare principle quickly enough, which means that often they cannot gain access to the home where the perpetrator is living”.—[Official Report, 21/10/13; col. GC 326.]

She also noted that,

“social work organisations are extremely concerned about this situation”.—[Official Report, 21/10/13; col. GC 326.]

Indeed, Lord Justice McFarlane in the Re J case described it as,

“a cause of concern amongst child protection agencies”.

Apparently it is now suggested by some that there is no real need for this concern, and that social workers have no such concern. I do not pretend that I ever practised in the field of family law, so I can claim no personal experience of the problem resulting from Re J. But having read and reread more than once the very full counsel’s opinion by a Queen’s Counsel specialising in this area of work—an opinion to which the noble and learned Lord, Lord Lloyd, has already referred, and which he yesterday copied to many of those who were to take part in this debate—it is difficult to see how the present interpretation of the Children Act 1989 could be thought not to cause concern. It is all very well to say, as has been said, that Section 31 has stood the test of time. As has been pointed out, Section 31 only received its present interpretation in the 2009 case of Re S-B. It was that interpretation by which all seven members of the Supreme Court understandably felt themselves bound in Re J last year.

These comparatively recent decisions are the ones which counsel says,

“have caused such consternation amongst those working to protect vulnerable children”.

As to the suggestion that there is no problem in practice, counsel observed:

“This is certainly not my experience nor that of my colleagues working in the field of child protection”.

To the question whether there is the need to ensure protection of unharmed children, where another child has suffered harm or death commonplace, counsel answered with “an unequivocal yes”, having himself,

“acted in many cases involving an unharmed child living with a possible perpetrator of past harm to another child”.

He says:

“The working of the amendment would mean that the Section 31 threshold can be crossed on the basis of likely significant harm. This would then open the way for the full range of protective orders available to the court (the ‘welfare stage’ of the process). Once the threshold is crossed, the court would be in a position to account for all relevant factors”.

A little later he adds:

“It by no means follows that the unharmed children would be removed permanently. The amendment ensures a legal structure whereby the Section 31 threshold is crossed to enable that welfare balance to be conducted. If it is not crossed, then that stage is never reached”.

His opinion ends thus:

“The best solution to these cases is to find the threshold crossed but that the welfare decision must be made with it very much in mind that the parent is a possible rather than an actual perpetrator. The proposed amendment would achieve that balance and secure child protection”.

That is the question before us today. Should the threshold be lowered to where for the first 20 years of the Children Act’s operation it was understood to be, to enable the court to move to the welfare stage and allow it, with the help of the social workers, to investigate all the circumstances of the case and decide whether, in those circumstances, some care or supervision order should be made? No child could properly be taken into care merely—and I stress that word—because one of its carers was the possible perpetrator of past harm. I think that we all agree on that, but that fact alone must warrant a full welfare investigation. Surely we owe children at risk no less than that.