Higher Education and Research Bill

Lord Kerslake Excerpts

Ping Pong (Hansard): House of Lords
Thursday 27th April 2017 Lords Chamber

[Baroness Brown of Cambridge (CB)]

My Lords, I rise to speak to the government amendments to the Bill in lieu of Lords Amendment 1, which defined the functions of a university, essentially protecting the use of university title by describing the characteristics of an organisation which could be granted such title.

The several purposes of that amendment included protecting university autonomy; ensuring that institutions able to call themselves universities are engaged in scholarship that both informs and forms an important part of student learning; ensuring that learning takes place in an environment where disciplines meet and meld; and ensuring that universities recognise the special place they hold in society by contributing to our society not only by teaching and disseminating knowledge but by, for example, partnering with charities, schools, colleges and local and regional initiatives to deliver a benefit well beyond their immediate staff and students. International research clearly demonstrates the impact that engaged universities can have on local communities and economic growth. Many other countries—including, for example, Australia, New Zealand, Switzerland, the Canadian provinces, Germany, Spain and India—have a definition of a university, or its functions and activities, in legislation. So an overarching objective of the Lords amendment was to protect the reputation of universities is this country, going beyond the situation in the Bill where the OfS might consent to the institution’s use of university title if that institution were a registered higher education provider. That would communicate to the world, which is particularly important at a time when we are leaving the EU, that our higher education system is open for expansion and innovation, but that university title in England is not given easily. It would tell potential students about the sort of institution and learning environment they should expect from a university, and it will encourage new entrants to the sector to see that obtaining university title is an important and aspirational achievement.

I appreciate that the Government have worked with my noble friend Lord Kerslake and others to ensure that university autonomy is now a strong and positive feature of the Bill, but I am disappointed that the Government have not accepted the argument for a definition of the key functions of a university in the Bill. However, I am reassured that the government amendments in the other place, in lieu of the Lords amendment, require the OfS to have regard to factors set out in guidance by the Secretary of State when awarding university title and I am pleased that the Secretary of State will consult on those factors.

Indeed, I strongly welcome the comments by the Minister for Universities, Science, Research and Innovation in the other place yesterday, which the noble Viscount repeated, about the consultation being “full and broad” and about the type of factors that would be included in that consultation. I agree that this approach can deliver both widely supported and strong guidance for the OfS on the criteria for the award for university title, so I record my thanks to the Ministers and their team and I put one final question to the noble Viscount today.

In the week that we have heard that China has sent senior government officials into its leading universities because of concerns over government criticism and westernisation, does he not think it would have sent a great message for us to have been positively encouraging, if not insisting, that our universities act as,

“critics of government and the conscience of society”,

as the Lords amendment also suggested?

[Lord Kerslake (CB)]

My Lords, I declare my interest as chair of the board of governors of Sheffield Hallam University. I also record that the vice-chancellor of Sheffield Hallam, Chris Husbands, has been leading work on the implementation of the teaching excellence framework on behalf of the Government.

It falls to me to lead the response on this set of government amendments in Motions B and D, but it is important to say that this part of the Bill has been subject to many contributions during our debates. From the start, it has been clear that there is general support for the Government’s desire to raise the profile and importance accorded to teaching in our universities. That has not been a point of issue. There has also been a general understanding that fees will, over time, need to rise with inflation.

The concerns have been with the Government’s approach to introducing the TEF and the link being made between the TEF and increases in fees—in particular, that the TEF was being introduced with undue haste, that the gold, silver and bronze rankings being put forward were both inappropriate and potentially damaging to the sector, and that the TEF was not the right basis for allowing differential fee increases. The amendments now put forward by the Government in place of our amendments go a considerable way to addressing those strong concerns.

As the noble Viscount said, the review will be independently led and must cover: the process by which the ratings are determined; whether the metrics are fit for purpose; whether the classifications awarded are appropriate; the impact of the scheme on higher education providers; and whether the TEF is in the public interest. By any measure, that is a comprehensive review. We will all await the outcome with interest. It is essential that any future Secretary of State takes full account of its findings and recommendations.

All of the above tests are important, but I place particular emphasis on the review of the rankings and the public interest test. In this context, there is one point I should like the Minister to clarify—I have notified his office in advance of the question I wish to raise. I will be grateful if the Minister can confirm that it will be open to the review to say that we shall either stay within the current rankings, propose an alternative set of rankings, or conclude that ranking of universities of any sort is simply not appropriate in what is a very diverse sector. I look forward to the Minister’s response.

The ability to differentiate fee increases linked to the TEF has not been removed from the Bill, as we proposed, but the Government’s amendment will delay any differentiation until at least the academic year 2020-21. As the Minister said, this will allow time for the review to be completed and its conclusions properly considered. In the meantime, existing universities involved in the process will get the full inflationary uplift—something all sides of the House supported. This is a significant and welcome movement by the Government and I know it has not been lightly conceded.

There remains the issue of publication of the results of the trial TEF assessment process. I understand, although it would be helpful if the Minister confirmed, that these results will not now be published until after the election and a new ministerial team is in place. I hope that that new ministerial team will consider very carefully how publication should be handled, particularly given that the TEF will be subject to a wide-ranging review.

I said in Committee that I could not think of anyone better placed to lead the work on the TEF than Chris Husbands. That firmly remains my view. He and his fellow assessors have applied themselves diligently and fairly to the task they were given. The fault here, I fear, lay in the way they were commissioned by the Government to undertake their task. The independent review and the delay will provide an opportunity to get this right. In particular, I think the gold, silver and bronze rankings are not long for this world. I hope that what comes out will be a much more sophisticated and evidence-based approach linked to subjects, as proposed by the noble Lord, Lord Blunkett—there is a Sheffield theme here today.

Finally, as I am unlikely to speak again in the debate, I pay tribute to Peers on this side of the House for their valiant work in reviewing and amending this Bill; to the noble Lord, Lord Stevenson, and the noble Baroness, Lady Garden, for their terrific work; and to Jo Johnson and the Minister in this House for being willing to listen and to respond to our concerns. That is what this House should be about. This is still not the Bill that we might have wanted, but it is considerably improved from when it came into this House. I hope that there will be no further Bills on higher education for a considerable period and that the sector will be given the chance to have the stability it needs to do what it does best: to represent the interests of this country.

Higher Education and Research Bill

Lord Kerslake Excerpts

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

Moved by

[Lord Kerslake]

4: Clause 3, page 2, line 6, at end insert—
“(za) the need to protect the institutional autonomy of English higher education providers,”

[Lord Kerslake (CB)]

My Lords, in moving Amendment 4 I will speak in support of the related amendments in this group. I declare my interest as chair of the board of governors of Sheffield Hallam University.

The purpose of these amendments is to place a duty on the Secretary of State and the OfS to have regard to the need to protect institutional autonomy when carrying out their functions. The definition of “institutional autonomy” for this purpose is set out in Amendment 11. What might have been a very long and contested debate can be reduced considerably by the fact that the amendment also has the Minister’s name on it, thus indicating the Government’s support. Taken with the changes around encouraging collaboration between universities where this is in the interests of the students, and indeed quality and standards being clarified, which will come later, and other amendments tabled or supported by the Government, this is a significant amount of welcome progress.

The importance of upholding institutional autonomy was one of the strongest themes at Second Reading. Those who took part will recall that the responsible Minister of State, Jo Johnson, stayed for virtually all of it. At the time, I commended him for being a listening Minister but wondered whether he would be a responsive one. Both he and the Minister in this House, the noble Viscount, Lord Younger, have clearly demonstrated that on these issues they are responsive. Inevitably, other important issues remain that we will need to debate and may divide on, but for the moment, I express my sincere thanks and congratulations to the Ministers on their positive recognition of our concerns on these issues. I beg to move.

[Lord Waldegrave of North Hill (Con)]

My Lords, as one who spoke at Second Reading, I associate myself with what the noble Lord, Lord Kerslake, has said. He, I and many others had meetings with the Minister and were received courteously—as one would expect—but more importantly, we were received by a listening Minister. I am very grateful to my noble friend, who I am sure has added to the voice of this House when speaking to the department. A number of major improvements have been made to the Bill. As chancellor of Reading University, I have discussed these with the senior management there. Without speaking for the management in any way, I can report that many in the university sector are delighted with the Minister’s response. I am delighted to support the amendment.

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[Viscount Younger of Leckie]

Yes, I certainly pledge to do that.

[Lord Kerslake]

My Lords, I thank all noble Lords who have contributed to this debate for their support. I share the Minister’s view that this now provides a robust protection of institutional autonomy. The relative brevity of this debate should not in any way signal that this is not an important issue—it clearly is—nor, indeed, a lack of our recognition and appreciation of the Government’s response to the concerns. I am delighted at the level of support; this will significantly improve the Bill.

Amendment 4 agreed.

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Moved by

[Lord Kerslake]

9: Clause 3, page 2, line 27, leave out from “protect” to end of line 34 and insert “the institutional autonomy of English higher education providers.”

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Moved by

[Lord Kerslake]

19: After Clause 11, insert the following new Clause—
“Regulated course fees etc: use in relation to section 26
(1) The scheme established under section 26 must not be used to rank English higher education providers as to the regulated course fees they charge to a qualifying person; or the unregulated course fees they charge to an international student; or the number of fee paying students they recruit, whether they are qualifying persons or international students.(2) In this section “regulated course fees”, “qualifying person” and “international student” have the same meaning as in section 11.”

[Lord Kerslake]

My Lords, I rise to move Amendment 19 in my name and that of the noble Lord, Lord Stevenson, and the noble Baroness, Lady Garden. I have already declared my interest as chair of Sheffield Hallam University board of governors. On this amendment, I should also declare that Chris Husbands, the excellent vice-chancellor of Sheffield Hallam University, is the chair of the teaching excellence framework panel established by the Government to oversee the development of the TEF.

The effect of this amendment would be to prohibit the use of the TEF ranking in either the setting of the student fee cap or the number of students that a university can recruit. This would apply to both national and international students, so preventing the possibility that the TEF ranking might be linked to the issuing of student visas. Others will speak on this latter issue in a moment. I would like to focus on the issue of linking fees to the TEF.

It is important to be clear at the start of this particular debate that there is a lot of agreement on the issues of teaching quality and fees when taken separately. Across the House, there is widespread support for the Government’s efforts to raise the profile and improve the quality of teaching in our universities. Students paying £9,000 a year are entitled to expect a consistently high quality of teaching, wherever they undertake their degree. This has been true for many universities and many courses, but not enough. There remain differences of view about whether the approach currently being taken to the TEF by the Government is the right one. This will be the subject of a separately debated amendment from the noble Lord, Lord Blunkett. However, there is absolutely no argument about the need for an assessment of teaching quality and for data on such things as student satisfaction and job outcomes to be freely available. The Government’s announcement of a genuine lessons-learned exercise for the TEF after this trial year, and the extension of the pilot phase of the subject-level TEF by an additional year, are both welcome.

Equally, there is an understanding that student fees need to be able to rise to reflect inflation. The Treasury should not have been surprised when most universities increased fees to the maximum cap of £9,000 in 2012. This largely reflected the loss of other government funding. Our universities have been spared the gruelling austerity of other parts of the public sector, albeit at a cost that has been passed on to students and, for many, to future taxpayers. However, I have no doubt that a properly argued case for further inflation-level increases will, and indeed should, get the support of Parliament. The issue here comes from the Government’s plans to circumvent the debate on fees and allow inflation increases only for those universities that have achieved silver or gold rankings. There are four main reasons why this approach is simply wrong.

First, the TEF is not ready. There is not yet a settled methodology. Indeed, the very fact that the Government have agreed to a fundamental review this summer, including how the metrics are flagged, the balance between the metrics and the provider submissions, and the number and names of the ratings, tells us that we are some way off where we need to be on this. As the noble Lord, Lord Norton, put it so well in Committee, the TEF is being asked to bear too heavy a load. As things currently stand, universities ranked gold and silver will be able to increase their fees, but bronze-ranked universities, perhaps 20% of the total, will not. Yet in our debate on the TEF the Minister stated clearly that bronze should be seen as a worthy rating. Whichever way we look at the issue, this is an approach to fee setting that has not been properly thought through.

My second reason for not making the link is that the TEF rating will relate to the university, not the subject or course. We will not see subject-level ratings until 2020 and yet we know that it is perfectly possible to have a mediocre course in an otherwise excellent university, and indeed vice versa. It can be argued that the TEF ranking gives an indication of the overall student experience at a particular institution, but the variation which so obviously exists within institutions makes that argument quite unconvincing.

My third reason why this is a bad move is that, if the case for the link is being made on behalf of students, we know that the body which represents them, the NUS, is vehemently against the proposal. Its argument is a simple one: there is no evidence of a relationship between increasing fees and increasing quality of teaching. It seems very hard to argue the case for a shift towards a student voice as a consequence of student loans and then to completely ignore the clear view of student representatives up and down the country.

My fourth and final argument is that there is absolutely no need to provide this particular incentive to improve teaching quality. The impact of the TEF, coupled with the demographic and other changes we are experiencing, will provide more than enough incentive. University-age pupils leaving school have fallen for four years and are set to fall for another six. The total reduction will be 20%. At the same time, maintaining and growing the number of overseas students is likely to be a real challenge. Put simply, we do not need to put further pressure on what is already going to be a challenged system.

To conclude, there is a strong case for promoting teaching excellence and for allowing student fees to rise in order to reflect increasing costs. However, putting the two together in the way the Government are currently proposing is both ill judged and unfair. I beg to move.

[Baroness Garden of Frognal]

My Lords, I have added my name to the amendment moved by the noble Lord, Lord Kerslake. He has set out the arguments on this important issue convincingly and comprehensively, both in Committee and again today, so I shall not repeat them. It is simply wrong that either the amount a student should pay in fees, or indeed if a person can come to study in the UK, should be determined by whether a university achieves a gold, silver or bronze standard rating, or whatever grading system is put in place. Our Amendment 73 in a later group is linked to this and also seeks to disconnect the ability of international students to attend a course from the quality rating of the provider.

On the matter of international students, the noble Lord, Lord Kerslake, referred to an already challenged system, but we can read today in an analysis by Universities UK that they generate some £26 billion for the economy each year and support 206,000 jobs across the UK. It is folly to take actions that deter international students on financial grounds and, possibly even more important, it is folly to do so given their contribution to international relations, academic standards and generally to our quality of life. I add my strong support from these Benches to this amendment.

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[Lord Kerslake]

My Lords, I am grateful to noble Lords for their contributions to this very good debate. We heard very clearly about the concerns that the TEF is not ready and about the potential impact of this proposal on social mobility. Indeed, we heard from the noble Baroness, Lady Wolf, that not one student body has found it necessary to support the proposal. This is something that is purportedly being done in the interests of students but none of the student bodies actually supports it. The noble Lord, Lord Bilimoria, made the very important point that the reason why we have the uniformity that the noble Lord, Lord Desai, referred to is precisely because government grants were taken out at the time at which the fee cap was raised. The two things went hand in hand.

It is really important to say that there is no need for universities to be deprived of the opportunity for inflation increases. If that were to happen as a consequence of this amendment, it would be entirely an action that the Government have chosen to take. It is clear that there is already a quality assurance system and that the TEF system, when it is finalised, will bring an ability to drive up quality. There is plenty of incentive in the system through the introduction of the TEF, and there will be plenty of incentive through other competitive changes in the sector. Crudely linking a TEF system that is not yet ready to the increase of fees is simply wrong and unfair on those universities which come out at the wrong end of it. I am afraid I have not been persuaded by the Minister’s arguments. Therefore, I wish to test the opinion of the House.

Higher Education and Research Bill

Lord Kerslake Excerpts

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

[Lord Norton of Louth (Con)]

My Lords, I have Amendment 251 in this grouping. In opening, I stress that I do not have a problem with alternative providers in HE. I chair the Higher Education Commission and we are presently undertaking an inquiry into alternative providers. They are numerous and the nature of their provision varies enormously. I heard from some of them earlier this afternoon. Some cater to thousands of students, others to a small number in what are essentially niche subjects.

What is important is that arrangements are in place to protect students. Last week we discussed the provision for student protection plans. At issue here is the giving of degree-awarding powers and the need to ensure that such powers are conferred on bodies that have the proven capacity to maintain the required standards of a UK degree, and to do so for as long as they have such powers.

There is considerable concern about provision for “probationary” degree-awarding powers. If a probationary period is to mean anything, it is that the continuation of degree-awarding powers is not guaranteed at the end of the period. What happens at the end of the three-year probationary period if such powers are not continued? What happens to students still at the institution? What worth attaches to the degrees of those who have already graduated? Furthermore, what is the risk to the UK HE brand if probationary degree-awarding powers are conferred on bodies with no established track record of delivering high-quality education? My amendment seeks to protect the position of students and of the HE brand, by ensuring that the OfS may not authorise a provider to grant degrees, unless the provider has validation arrangements in place.

I appreciate that confining the provision to validation by existing HE institutions runs the risk of imposing uniformity, with established institutions not being too keen on validating innovative teaching methods and possibly not fully appreciating the value of the alternative provision. The way round that is to ensure that there is an independent validating body. Clause 47 enables the Secretary of State to authorise the OfS to be the validator of last resort, but I recognise the problem of allowing the regulator to have such a power. It is not a power that should be vested in the regulator. I would rather see an independent body, akin to the old CNAA, created. That deserves serious consideration. I thus favour amending this clause along the lines of Amendment 251 and the other amendments in this group, along with the later removal of Clause 47 and its replacement by a provision that would create a body equivalent to the old CNAA. That, to my mind, would inject the necessary protections while not deterring new entrants to the field.

[Lord Kerslake (CB)]

My Lords, I speak in favour of Amendments 251, 252, 259 and 260. In doing so, I very much echo the thoughts of the noble Lord, Lord Norton of Louth. These amendments would remove the probationary powers provisions and put a higher test before universities could award degrees. I tabled these amendments because the Government have seriously underestimated the risk to the reputation of the university sector in what they are doing. Collectively, we need to safeguard this reputation and to require that the OfS or a separate body—as has just been proposed—has the necessary confidence that the organisation to which it is granting degree-awarding powers has the capability to do this on an enduring basis.

I ask noble Lords to put themselves in the position of a student, either in this country or abroad, who comes across the word “probation”. They might wonder what the word means and look at the dictionary here. What the dictionary says is that it relates,

“to a process of testing or observing the character or abilities of a person who is new to a role or job”,

or,

“relating to the release of an offender from detention subject to a period of good behaviour under supervision”.

I venture to suggest that not many students would be reassured by that definition and by the prospect of undertaking a degree at the end of which it would be possible for the whole institution to be found inadequate in its requirements, which must be a possibility under the very definition of these provisions. The term “probationary” is wrong and the concept of “probationary” is wrong. We should, instead, insist that anybody in a position to award degrees is able to do so with an enduring capability. This is a crucial point and it is unfortunate that we are coming to it so late in the evening, because I believe it to be fundamental.

The question your Lordships might ask is: what problem is trying to be solved? I am strongly in favour of new market entry and improving the validating process where it needs improving, but where is the body of evidence that justifies the introduction of probationary degrees? I cannot find it. I have looked carefully at the documents produced on Friday by the Minister, which were very helpful. Page 7 of the factsheet on the validation process refers to “anecdotal evidence”. I suggest that we as the House of Lords should not take our decisions on the basis of anecdotal evidence.

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We will continue to listen carefully to your Lordships’ concerns. We are fully committed to maintaining quality, but at the same time, we want to ensure that there is a clear and simple route for new, innovative and high-quality providers to enter the market. I hope that by spending some time answering the questions, I have provided some reassurance to noble Lords on this important subject. In the meantime, I ask the noble Baroness, Lady Brown, who spoke on behalf of the noble Baroness, Lady Wolf, to withdraw Amendment 244.

[Lord Kerslake]

I just wanted to come back on this issue of the shift in proportion between full-time and part-time degrees. Could the Minister confirm that the significant cause of that shift is the falling off of part-time degrees and that that is related not to the issue of validation but to the change around funding arrangements? We must be clear about the causes of changes here, or we are likely to find the wrong solutions.

[Viscount Younger of Leckie]

There can indeed be quite a full debate on the causes of the changes and I hope that in previous debates I have acknowledged the changes in the marketplace. Our aim as a Government is to address these changes. I think that we are all on the same page on that. I am happy to speak to the noble Lord, Lord Kerslake, further on that particular issue—in other words, concerning the issues that are leading up to our reforms.

Higher Education and Research Bill

Lord Kerslake Excerpts

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

[Baroness Garden of Frognal (LD)]

My Lords, I have two amendments in this group, which complement those that the noble Lord, Lord Watson, has already spoken to. The Government’s current policy is for fees, even for those having achieved the top rate of the TEF, to increase only by inflation. However, paragraph 4(2)(b) of Schedule 2—on page 78, line 3—enables an increase by more than inflation if a resolution to that effect is passed in Parliament. Amendment 125 would remove this provision, thus requiring new primary legislation for any Government wishing to go further.

Amendment 199, which mirrors the amendment which the noble Lord, Lord Watson, has already spoken to, is somewhat of a pre-emptive amendment. No matter what your view of the TEF, it is clear that it is an attempt, albeit ham-fisted in our view, to give students more information and more security when choosing a course and to lift the standard of teaching in our university sector across the board. Both of these are noble aims. We agree with the aims, but challenge the methods proposed. We particularly deplore the categorisation of gold, silver and bronze, which seems to us to be extraordinarily damaging.

We do not have faith that the TEF will not be used for ulterior purposes in the future, in particular as part of the Government’s continued, blinkered action towards student immigration. This fear is not unfounded. Nick Timothy, the Prime Minister’s most senior adviser, is one of the biggest advocates of further crack-downs on student immigration. In a piece in the Telegraph in June 2015, he made clear his views that students should be,

“expected to leave the country at the end of their course, while only the very best of them should be allowed to work in the UK”.

In the piece, he states that these students are not, in fact, the best and the brightest and key contributors to our future prosperity, as,

“the number of foreign students at Oxford and Cambridge is a little more than 4,000, while there are about 66,000 at the remaining Russell Group universities”.

This attitude displays a staggering lack of understanding about the diversity and value of our higher education institutions and their graduates.

This amendment would prevent the TEF from being used in determining eligibility for a visa for students on leaving university. It would ensure that such a change would require primary legislation and not be possible through a simple change in Immigration Rules. If the Government were to seek to pursue such an approach, they should rightly have to make their case in Parliament. Can the Minister also clarify that the Government do not agree with the approach Nick Timothy has previously advocated? There are very many of the brightest and best students at universities outside the Russell group, and such discrimination can only be damaging.

[Lord Kerslake (CB)]

My Lords, I speak in favour of Clause 10 being removed from the Bill. In doing so, I declare my interest as chair of the board of governors of Sheffield Hallam University. I should also note that the vice-chancellor of the university, Professor Chris Husbands, is leading work on behalf of the Government on the development of the teaching excellence framework.

The effect of the deletion of Clause 10 would be to remove the power of the Office for Students to set the fee limit by reference to a provider’s rating under the teaching excellence framework. It is important to say first that I strongly support the Government’s desire to improve the focus of universities on teaching quality. That is absolutely the right thing to do. I am also not opposed to the introduction of the TEF per se. I do, however, have some significant concerns about the approach that the Government are taking to the TEF and, in particular, the link being made between fee levels and the TEF. My three main concerns are as follows.

First, there is not a straight read-across between teaching and research. At a very basic level, publicly funded research has a small number of very informed funders, which make their decisions with a long-standing knowledge of the providers. In this context, the REF provides an effective framework to drive research excellence. In the case of teaching, the decisions are made by millions of individual learners. They will base their decisions on a range of factors: the reputation of the university itself, the place it is located in and their likelihood of securing the necessary grades, but, most importantly, their views of the course of study itself. In this context, the TEF rating of the university will be of interest but it is unlikely to add a great deal to their decision. The value of the TEF is more to the institution than to the student. Having a rating itself, combined with changing demographics, will provide a powerful enough incentive for institutions to improve, just as the NSS scores are now. There is no benefit, and indeed significant perverse consequences, from adding in a link to fees. For example, those institutions most in need of resources to improve their teaching will be deprived of the means to do so.

My second objection is that the TEF is still in development. I have to say that I cannot think of anyone better than Chris Husbands to lead the work on it, but he is inevitably working within parameters set by the Government. The higher education sector is a very differentiated sector, and not all universities are the same. Reducing that wide variation down to a rating of gold, silver or bronze is for me, and I think for many, a gross simplification. A bronze rating risks being seen as failing or poor, even though in athletics, from which this was derived, securing a bronze would be seen, by me at least, as a considerable success.

There remains a very significant debate about the metrics for the TEF, but also about the distribution of the ratings—how many institutions will score the highest rating and therefore increase their fees. I currently understand that the plan is for it to be 15% bronze, 70% silver and 15% gold, but that may well change. Moreover, the TEF rating, as has already been said, is in the first instance about the institution and not the course. Yet the proposals will allow the institutions to raise fees regardless of individual course quality. All of these are symptoms of a system that is still in development and unproven. Until we are really confident about these issues, it seems to be completely wrong to link the TEF to fees.

My third and final concern is that, even if these issues can be resolved satisfactorily, it seems wrong in principle to approach increases in fees in this way. The reason that the vast majority of universities raised fees to the level of the £9,000 cap in 2012 was that they needed to offset the loss of other government support. Universities have been spared the brunt of the austerity measures experienced in local government and other sectors, but at the price of increased fees for students and, arguably, for future generations for those students who are unable to repay their loans.

There is an important debate to be had about the future resources that universities need, the level of student fees and indeed the amount of government funding provided to support them. No doubt vice-chancellors, faced with the prospect of this being the only way to increase fees, will go along with it. Fundamentally, though, it sidesteps what should be a public debate. If there is a case to be made for increasing fees in future then it should be made, but this is making that policy by the back door.

I recognise that the Government have dug in on this, but there is still time to think again. The proposal is understandably deeply unpopular with students and the NUS. In my view, it is also the product of some deeply flawed thinking.

Higher Education and Research Bill

Lord Kerslake Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 16th January 2017 Lords Chamber

[Lord Willetts]

My Lords, that fascinating intervention gets to the heart of the direction of travel that is being debated in many different amendments this afternoon.

My understanding—I am sure the Minister will correct me if I am wrong—is that universities and higher education institutions are not public sector bodies. Nevertheless, in a range of different contexts, Parliament has decided to impose on them the obligations they would have if they were. The public sector equality duty could be one example. Freedom of information is another example. My concern—here I am a bit of a purist—is that universities are not part of the public sector and it is quite important for universities that they are not. If I were running a university—which I am not—I would start feeling two kinds of pressures on me. On the one hand, a significant number of Members of this House and elsewhere want to treat universities as if they are public bodies, so that whenever there is a nice public sector duty around they say, “Let us add it to universities although they are not part of the public sector”. Both FoI and public sector equality are examples. On the other hand, at the same time the Government—and this process goes back before 2010—are saying, “There is a private contractual obligation to deliver a service to a student so really they have got to be subject to competition law and the CMA and so on”. They end up being subject to a pincer movement, where they have got all the private obligations as if they were a company that needs to be competing, plus we throw in all the public obligations as if they were in the public sector when they are not.

The dynamic of these debates begins by saying we must do more to preserve the autonomy of universities and then spend the rest of the time adding extra obligations we would like them to comply with. If at the end of the legal process of preparing what will become an Act of Parliament we have ended up with more obligations on the universities, making them subject to the CMA, and more public sector duties despite them not being in the public sector, we will leave universities even more burdened than they are at the moment. We require some self-denying ordinance so that we do not keep piling more obligations on them. We have already imposed on them a range of obligations that go way beyond what any other private body is susceptible to. At some point there is a danger that universities will end up in the public sector. There is a danger that we all talk about them as if they are part of the public sector and treat them as if they are hospitals, schools and so on. They are not. They are independent bodies outside the public sector and we should be wary of imposing obligations on them as if they are inside, especially when we are in parallel and subject to greater market competition as well.

[Lord Kerslake (CB)]

My Lords, I strongly endorse what the noble Lord, Lord Willetts, has said. I declare an interest as chair of the board of Sheffield Hallam University and the chair of Peabody. An explanation for that will follow

There is a cautionary tale here in relation to housing associations and the story around their public body status. For a long period of time they were regarded as not public bodies and therefore able to exercise borrowing and take forward proposals outside of the public sector. The effect of successive changes of regulations and controls on housing associations then led to a reclassification by the ONS as public bodies. As a consequence we are now in a process of seeking to deregulate housing associations to move them out of that situation. We do not want to go through the same process for universities. We should proceed with care on this issue.

[Lord Stevenson of Balmacara]

I always proceed with care. I am not afraid of that sort of gibe. We could get ourselves in an awful tangle if we start following the noble Lord, Lord Willetts, down this route. It is a familiar theme that he runs with all the time whenever he gets close to something he does not want to do. We must all be careful not to have too many loads on us. We can worry too much about form and not enough about content and I want to challenge him on that. I understand what the noble Lord, Lord Kerslake, is saying on this, but these bodies are, if you stand a little apart from the close intricacies of how they operate, performing a public function, a function that is valued by the public. I have said already that they are public bodies but not public sector bodies, but as the noble Lord said, there is an issue about FoI and the implications around that. We have got to find a balancing point on that.

Let us park the philosophy for a second and return to the substance of the original amendment. Our Amendment 111 is a probing amendment to try to get a little further on this, because I could not reconcile the drafting in the original Bill with what I thought would be the sorts of issues reflective of the health or otherwise of the sector and would be required as mandatory transparency conditions. The obvious point about using the existing equality legislation occurred to others who are more versed in these issues than I am. I tabled a probing amendment on those lines to try to get that out and it has revealed an interesting topic. I do not know where we go with this. I understand the issues that the noble Baroness, Lady O’Neill, gave us an insight into and which we will need to reflect on.

Three things occur to me. It was rightly pointed out that our Amendment 111 would delete the socioeconomic background requirement in Clause 9(3). There was a reason for our madness on that point in that it seemed a wide-ranging issue on which to request transparency. We are talking about mandatory transparency and socioeconomic background is a term of art, not a term of science, although one could get close to it from a number of directions. It is so imprecise as not to have a particular value. Moreover, ethnicity is not the same as race and the gender of individuals is a multiple, complex issue. These issues are raised within the Equality Act and we have to be much more subtle about how we approach them. I was looking more at the detail and working back from that.

Higher Education and Research Bill

Lord Kerslake Excerpts

Monday 9th January 2017 Lords Chamber

[Baroness Garden of Frognal (LD)]

My Lords, I added my name to this amendment on the basis that it seemed to contain some things that were very worthy of discussion. As we have heard, this is obviously a rather controversial area, but it gives us another chance to look closely at what we understand by universities and at what characteristics in them we value.

There is much to support the ongoing role of the Privy Council in the establishment of universities, providing as it does impartiality, expertise and universal standing in the awarding of royal charters. This clause would also allow for Acts of Parliament—but, again, it is open to debate as to whether there should be other sources of authority. There is a general anxiety that there should be authoritative powers to set up new universities because there is a concern that the Bill as it stands seems to give a fairly free hand for new universities to be set up without necessarily the standards that we have all grown accustomed to.

The other amendments in this group to which I have added my name are all to do with autonomy, which we discussed at great length in the debate on Amendment 1. The success of universities depends on their ability to take their own decisions, so that they can be flexible and responsible to the environment in which they are working and decide for themselves on courses, staffing and admissions. The Bill as drafted includes a number of areas where a future regime could seek to intervene in matters that are for individual institutions. Autonomy has been recognised as providing a key competitive advantage and, indeed, has been identified as a critical factor in making the UK the top performer in the efficiency and effectiveness of public spending in tertiary education. These amendments would enshrine university autonomy in the Bill.

We welcome the Government’s amendment that states:

“Guidance framed by reference to a particular course of study must not guide the OfS to perform a function in a way which prohibits or requires the provision of a particular course of study”.

This addresses concerns about the Government directing individual institutions on which courses they can open or close. However, autonomy is such a fundamental principle of the UK higher education system that we would want the Bill to go further. The amendments in this group enshrine that.

[Lord Kerslake (CB)]

My Lords, I will speak in support of Amendment 65 and give my general support to the other amendments in the group. I first declare my interest as chair of Sheffield Hallam University’s board of governors.

Free institutions are a fundamental part of a truly democratic society. We sadly know that simply having the power to vote is not in itself a guarantee of a democratic and free society—you need only to look at Russia to see an example of that. For me, the issue of free institutions is not simply about the benefit to the institution itself but is fundamental to an open society. That is true of a free press but, in my view, it is equally true of free universities. This has been a fundamental tenet of thinking for a long time. Indeed, there is unanimous agreement across all parties about the issue of institutional autonomy.

The question therefore is: why does the issue arise now? I am afraid that it arises precisely because of the Bill. The noble Lord, Lord Storey, put it well when he said that the Bill itself has raised concerns and questions about institutional autonomy. Yet we would all sign up to the freedom of universities to decide which courses they run, which staff they employ and which students they choose to admit or not admit.

The very particular concern goes to the powers given to the Secretary of State and to the new Office for Students. Others have spoken on this at length and I will not repeat that. However, I will cite three examples that concern me. First, the threshold for the OfS to undertake action against a university is if it appears to the OfS—I emphasise “appears”—that it has breached the conditions of its registration. Surely that is too broad a basis on which to intervene. Secondly, the Bill gives the OfS the power to search and enter the premises of an HE provider registered with it, subject to a court order. Surely that should be limited to situations where there is a concern about fraud or severe financial mismanagement. It is too open at the moment.

Thirdly, the Bill allows the Secretary of State to frame the guidance given to the OfS by reference to particular courses. As this House will know, that contrasts sharply with the current legislation—the 1992 Act—in which the Secretary of State is specifically forbidden from setting guidance to HEFCE in this way. Those are three very specific examples of why this Bill causes concern.

--- Later in debate ---

[Viscount Younger of Leckie]

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

[Lord Kerslake]

My Lords, I express my thanks for the support that I received from all parts of the House for Amendment 65. I am very aware of the hour and will not rehearse every argument made, but I will pick up on one point, which is that this amendment is not in itself a guarantee that Ministers or the Office for Students would act properly, but it would help. This is the crucial point for me. I am disappointed with the Minister’s response. I see this as a practical, simple and necessary amendment to secure institutional autonomy. Just to be clear, the amendment states:

“The Secretary of State, in issuing guidance and directions, and the OfS, in performing its functions, have a duty to uphold the principle of institutional autonomy”.

It is hard to see any situation in which that would lead to greater intervention rather than less. In the circumstances we are in, I shall not press the amendment. I hope there will be an opportunity for further conversation, and I give notice that I will return to this issue at a later stage.

[Lord Stevenson of Balmacara]

I thank all noble Lords for their contribution to this rather extended debate. I prefaced my opening remarks by saying that this is a complicated group, and it certainly proved to be so. We have got there, but by a rather circuitous route, and I am a bit confused about some of the things that the Minister said when responding. I am sure a lot of us will want to read Hansard very carefully.

It is clear that the position that we are moving towards—it is clear to me and I am going to advance this as a thesis as I withdraw my amendment—is that we want a healthy system of higher education provision in this country. There is no doubt or dissent about that, but it is not clear who decides which institutions that are providing higher education are going to be universities and what the criteria are. The university title follows a particular process which we have discussed and we know about, but who does it? Is it Ministers or civil servants, or is there another body yet to be set up? I would like the Minister to write to us setting out very clearly the structure he has identified today. Who maintains the register? The Minister said that it will be not a statutory register but a voluntary register. I agree that the carrots and sticks are very substantial, but it is a bit of a strange decision to have a regulator—the Office for Students—that does not have a regulatory function because it is voluntary. That needs to be unpicked.

We need to know who assesses the criteria under which higher education providers get on to the register, who assesses the threshold standards for degree provision that they are obliged to have, and who assesses the quality of the degrees they subsequently grant. There are amendments about this later on, but we must also ask who regulates the body appointed as the regulator for the system. Is there another body that we do not know about? A lot of this will be answered by transparency, and I would be grateful if the Minister wrote to us about that.

I was asked three specific questions that I am not going to be able to answer, but I will record them so noble Lords know that I have them in mind. I do not understand the issue about where an institution needs to be located, but I think it is intimately connected with the points made by the noble Lord, Lord Willetts, about who gets the benefit of the subsidy and the tax provisions that are available. It would be quite inappropriate for a body to be registered as a university within the United Kingdom and to receive tax benefits if it is not also providing a public benefit. It is obviously a circular argument; we are making the same point, and we need to have that bottomed out. I do not have a solution, and my amendment would not have taken us to that point. The situation needs to be looked at again.

The trustee model has served us well. The noble Lord, Lord Willetts, was not knocking it and recognises its value, but he wanted there to be other bodies such as enterprise institutions. I would like to see the evidence for that. He has no responsibility in this respect, and it is about time he told us where he thinks all these brilliant institutions are. Comments were also made on this side about that issue. I am very sceptical about whether that would be worth while, but it is a fair point to question.

My noble friend Lady Cohen and others on our side need to resolve our differences about this issue. I am not against an institution making a profit, provided that the arrangements under which it is made are transparent. Transparency is the issue, and I am sure we will come back to it. I beg leave to withdraw the amendment.

Higher Education and Research Bill

Lord Kerslake Excerpts

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

[Lord Kerslake (CB)]

My Lords, I first declare my interest as the recently appointed chair of the board of governors of Sheffield Hallam University, a role that I am very proud to have taken on. I should also note that the vice-chancellor of the university, Chris Husbands, is leading the work on the teaching excellence framework on behalf of the Government.

The city of Sheffield is fortunate to have two excellent universities that not only provide excellent teaching and research but also make a significant contribution to the city region’s economy. The University of Sheffield is well known for its role in creating the Advanced Manufacturing Park, just outside Sheffield. Sheffield Hallam has successfully led outreach work in the region for over a decade, making a real impact on increasing participation rates in places where it is very low. It is also leading on the development of the Advanced Wellbeing Research Centre at Sheffield’s Olympic Legacy Park, which will be the most advanced centre for the study of physical activity in the world. I make these points to demonstrate that both universities have grown and prospered in recent years, along with the rest of the higher education sector.

Given that success, and the risk of Brexit, it would seem to me that any new legislation should pass two tests: first, that it is genuinely necessary; and, secondly, that it does good rather than harm. On this Bill, I am afraid, the jury is still out for me. There are some welcome steps, such as the move to create a single regulator in the Office for Students and the integration of the Office for Fair Access. However, overall, the Bill seems to be pointing in two different and conflicting directions: towards improving the quality of teaching while, at the same time, speeding up the entry of uncertain new entrants to increase competition. These two things work against each other. In the process, the Bill gives powers to the OfS and the Secretary of State that seem to be completely incompatible with the principle of institutional autonomy.

In the short time available to each of us today, it is not possible to do justice to all the issues. However, I would like to talk briefly about five areas in which I very much hope that the Government are open to change as the Bill progresses.

First, the OfS should have greater responsibilities to the sector as well as to the student. In particular, it should not just monitor the financial health of the sector but assure it, as is the case for HEFCE now.

Secondly, amendments must be made to the Bill to ensure that the powers of the Secretary of State and the OfS are compatible with institutional autonomy. In particular, there should be a much clearer distinction between academic standards, which should unambiguously be for the sector to consider, and quality. The OfS’s powers to validate degrees, even as a last resort, should be removed.

Thirdly, the proposal to reduce the requirements on track record of financial performance from three to two years, should be thought about again. This seems a real risk to the sector and to the student interest—quite an incredible change, in my view.

Fourthly, we should limit the role of UKRI to the administration of its two funding streams—QR and the research allocations of the individual funding councils. The balance between these two streams should be determined by the Government, not by UKRI.

Fifthly and finally, we should look again at whether it really makes sense to impose restrictions on fee setting and linking it to TEF, or indeed to sponsoring an academy school. It is clear that competition in the sector will increase naturally in the coming years though demographic changes. We should let the choices of students, informed by greater transparency, drive improvement, not bureaucratic imposition.

The strength of opinion we have heard today should send a clear signal to the Government that there is a need for further significant change to the Bill. We undoubtedly have a listening Minister in Jo Johnson. I hope he is also a responsive one.