Schools Bill [HL]

Lord Mackay of Clashfern Excerpts

Report stage & Lords Hansard - Part 1
Tuesday 12th July 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I will speak in a moment to Amendments 4, 7 and 9, but can I go back to the discussion that happened a few moments ago and the concern of the noble Lord, Lord Grocott? I will again read paragraph 8.132 of the Companion: “Other bills”,

so one that has not been referred to a Select Committee or Joint Committee,

“may, on motion (which is debatable and of which notice is required)”—

that means assuming the usual channels cannot resolve the problem in a way that is satisfactory to the House—be

“moved at any time between committee and third reading”.

We are still on Report and will be at the end of today, so we will not have reached Third Reading. Although I do not claim to be an expert, I think it is open to the House to consider the remedy available at paragraph 8.132 of the Companion. That is what I would like the House to do and what I expect the usual channels will do. I should assert that, as Convenor of the Cross Benches, I am not a usual channel for these purposes because I do not have a party.

Now to the Bill. Of course, we are grateful to the Minister. I feel very concerned that somehow people may think the anxiety of the House is a reflection on her. I can do nothing except on behalf of myself thank her for the way in which she has listened. I have an awful suspicion—and she cannot confirm or deny this—that, if she had her way when she was in the department, we would not have ended up with the Bill in this absurd situation.

The provision in Clauses 1, 3 and 4 is extraordinary. I will go through what I said again when we were speaking about this last. The two words “Academy standards” are a clear misrepresentation of what Clause 1 is about. It is simply a skeleton provision from which the Secretary of State can pick whichever particular provisions he wishes to invent for himself; he is not bound by any of them, and he or she can write them for himself or herself.

Clause 3 is Henry VIII. The House has listened to me on Henry VIII a number of times so I will not go on about it, but I hope noble Lords have all noticed that the Bill has a particular quality, in that it has two Henry VIII clauses: Clause 3 and Clause 66. Removing Clause 3 simply removes something that is completely unnecessary. Clause 66 will no doubt continue because the departmental computer will just produce one at some stage in the Bill. I have never before come across two Henry VIII clauses in the same legislation—so we have Henry XVI, and the Bill has a particular record apart from all its other flaws.

It also has a provision in Clause 4 which is a shameful, pernicious new way for central government to obtain power: the issuing of guidance. When the Government and department of the day issue guidance, those to whom it is sent answer to it. In the Bill, there is a provision that enables the Secretary of State to issue a compliance direction anyway. So we have a new form of acquisition of central power, ultimately in No. 10 Downing Street, which we have shamed the country with by passing and enacting the Elections Act. It is exactly the same provision.

Any one of those three would be great from the point of view of central government, but we have all three together. It is a rather poisonous cocktail from all our points of view. It is like supping Irn-Bru, only on stilts. It is the most amazing combination of powers. That is why these clauses should fail.

I am concerned, as has been expressed by others, but not about the way in which the Conservative Party is going to sort itself out. I am concerned about that for the sake of the nation, but not for the sake of the Bill, because, as has been arranged so far, when the clauses go back in whatever form they are amended to the Commons—there will be new clauses—there will be no Second Reading or Committee here. We must therefore look at the provision of paragraph 8.132.

Something else worries me even more. The Bill started here, and this Minister was sitting here and able to hear observations from all sides of the House about the absurdity and the rather alarming features that discolour Clauses 1, 3 and 4. We have got where we have got to, and these amendments will pass in due course. But the chilling feature is that, if the Bill had happened to start in the House of Commons, I have no reasonable doubt that those provisions would have come to us as drafted, after peremptory debate. The Minister would then have had no option but to say, “Well, it’s gone through the Commons. What are you doing interfering with its wishes?” Of course, we would have gone on, but there comes a time when the Commons has to win.

It is pure luck that the power grab in these clauses has come before this House and that we have had this Minister here to lead her department to the obvious and sensible conclusion. But our present constitutional arrangements mean that only the coincidence that the Bill happened to start here gives us relief. If it had started in the other place, I have not the slightest doubt that this is the Bill that we would have had to consider. I find that chilling, because we all know that the opportunities for this House to change legislation that passed through the House of Commons are very limited. That is the state that our constitution has got to in 2022, and it is the most alarming feature of these clauses.

[Lord Mackay of Clashfern (Con)]

My Lords, it is time that we made some progress. The noble Lord, Lord Knight, proposed that the Bill should go forward on Report, and the Labour Chief Whip agreed. But we are getting into doing that without having passed a Motion, so I would like it to be made clear that we will now consider the Bill on Report and deal with whatever difficulties there are as that goes on.

[Baroness Penn (Con)]

My Lords, for absolute clarity, I say that we have had the Motion on the House considering Report, and we are now considering the first group of amendments on Report. We will proceed on that basis today.

Schools: Examination Assessments

Lord Mackay of Clashfern Excerpts

Tuesday 12th October 2021 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, first, I associate myself with the remarks about the change in the ministerial situation. Is there anything yet to tell us how the grades given last year compared with the grades given in previous years, particularly recent years, in respect of applications for employment?

[Baroness Barran (Con)]

I think it is early to draw firm conclusions, as my noble and learned friend hints. Obviously, there was a different basis for assessment last summer from pre 2019. But the House will be aware that this was a record year in terms of higher education admissions and that the Government’s plan for jobs is focused on giving young people the skills they need to move into employment.

Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019

Lord Mackay of Clashfern Excerpts

Wednesday 24th April 2019 Lords Chamber

Parents must be consulted on topics and materials well ahead of time, so that there can be genuine opportunity for feedback and for their concerns to be taken on board. Channels of communication must be kept open. The views of parents must be properly understood and proper processes must be in place to ensure that schools understand fully the views of parents. I ask the Minister to think about the serious risk of usurping parental rights and handing further control to the state. Nothing ranks as more important than the education of our children.

[Lord Mackay of Clashfern (Con)]

My Lords, it is natural for me to want to start at the protocol—which the noble Lord, Lord Curry, has just mentioned—to the European Convention on Human Rights. In 1977, I lost the action under that protocol that the UK Government took in relation to corporal punishment in schools, so I am reasonably familiar with that provision. In this connection, under the human rights legislation, it is still the law here that the Government—the state—have a duty to ensure that the teaching is in accordance with the religious and philosophical convictions of the parents. That is a very strong right.

Of course, it is difficult. If you have parents with different religious convictions, how do you go about it? There is a European Court of Human Rights case that deals with this—it is even older than the one that I lost. It deals with statutory provisions introduced in Denmark. One of the arguments used against the provisions was Article 2 of Protocol 1. The court said this, which I think is very useful:

“The second sentence of Article 2 implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded”.


In relation to the state’s duty, it points out later on that, although it is always possible that something may go wrong,

“competent authorities have a duty to take the utmost care to see to it that parents’ religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism”.

That is a very useful way of looking at this. As the right reverend Prelate the Bishop of Durham said, religious convictions vary: different people have different convictions. Therefore, if you are to teach according to those convictions, you have to be mighty careful. The answer appears to be that you do it in such a way that is “objective, critical and pluralistic”.

The mailbag that I have had has been mainly from people objecting to the replacing of the withdrawal right with an option to request withdrawal and asking me very strongly to vote against these regulations. I have decided not to do that, because these are very difficult matters that are required to be dealt with. Your Lordships will know that my primary concern is the best interest of the children, and it is very important that that be safeguarded. As has been said, we live in very dangerous times, and children grow up in difficult situations with many temptations, grooming and what not. It is mighty difficult to deal with these without help. I strongly support what was said by the noble Lord, Lord Russell of Liverpool, about the need for teachers to be very well provided for in this. I cannot think of a more difficult area than this in which to teach.

Another point has been brought to my attention by experienced doctors in this area. The health implications of various aspects of this matter can be very serious indeed. Accordingly, it is important that that aspect should be taught and is compulsory under these regulations. That is extremely important, but extremely difficult for teachers. I notice that the assessment says that there will be no effect on any other department, but I would have thought that the Department of Health might have a strong interest in providing the necessary help to teachers to be able to deal with these serious issues.

So far as I am concerned, what has been said to me is mainly about withdrawal, and I do not see that withdrawal has much bearing on the protocol. The protocol is not on requesting withdrawal but on teaching in accordance with the religious conviction of the parent. That is where the difficulty arises, as the court saw. Therefore, it has to be objective in every respect.

This is a very difficult area and a great deal of thought has been given to it. I am glad to think that there is time for even more thought in the light of all that is said today and what was said in the debate in the House of Commons before the perfect solution is found.

[Lord Farmer (Con)]

My Lords, it is a great honour to follow my noble and learned friend Lord Mackay of Clashfern and I agree with much of what he said.

I will touch on three issues: first, on the specifics around parental rights to withdraw children, much of which has been spoken about already; secondly, on whether the Government will help to develop the relationships and sex education curriculum through an innovation fund; and, thirdly, on the role of the inspectorate, as the noble Lord, Lord Storey, mentioned earlier, in applying the new curriculum requirement.

On the first point, can the Minister clarify whether the Government’s intention is the same as was stated in 2017 by the then Minister for Vulnerable Children and Families during the passage of the Children and Social Work Act:

“We have committed to retain a right to withdraw from sex education in RSE, because parents should have the right, if they wish, to teach sex education themselves in a way that is consistent with their values”.—[Official Report, Commons, 7/3/17; col. 705.]


That would mean, for example, that if for reasons of religious belief a parent withdraws their child from sex education up to age of 15, the right of withdrawal will be respected. Currently, the proposals seem to put the final decision firmly in the hands of head teachers not parents, as they are given a power of veto on parents’ wishes. The Secondary Legislation Scrutiny Committee quoted the draft guidance, which states that,

“except in exceptional circumstances, the school should respect the parents’ request to withdraw the child, up to and until three terms before the child turns 16”.

However, no attempt is made to define “exceptional circumstances”. We need definition of this phrase and specifics, otherwise these will be defined on an ad hoc basis. Any business contract including such language would be rejected by a good lawyer because of the vulnerability that it introduces. I understand that this is guidance, not legislation, but guidance is where the specifics should be.

The Secondary Legislation Scrutiny Committee suggested that the House might wish to invite the Minister to provide further clarification about how the ability of parents to withdraw their children will operate in practice in relation to different age ranges. I do so now because, after these draft regulations were laid before Parliament, the Secondary Legislation Scrutiny Committee received evidence from over 430 members of the public. All expressed concern about the regulations and many made it clear that they were Christians and that their concern arose out of their religious belief.

The committee set out the main issues raised in these submissions, including,

“a very widespread concern to protect the right of parents to educate their own children on matters such as relationships and sexual health”.

One particular quote stood out to me:

“The assumption seems to be growing that it is the state which educates children, assisted by parents. It should always be the other way round. It is the parents’ job to educate, train and guide their children”—


And, as the right reverend Prelate emphasised, those relationships should be formed at home—

“and the state should not take this upon itself”.

Vulnerable Children

Lord Mackay of Clashfern Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is a responsibility to follow the noble Baroness. I hope that her temporary need for a special arrangement will soon pass, because I have had the greatest admiration for her over a long period in this House.

The commissioner’s report is extremely important, not so much for the numbers in it—although I was a mathematician in my early days—as for the range of vulnerability it discloses. It is very difficult to see exactly how this range of difficulty can be encompassed, and I believe that each of the vulnerability types referred to—there is a large number of them in the report—require individual treatment, for the most part.

As far as I am concerned, the principal starting point in any discussion of this kind is the Children Act 1989, which I believe provides a system for dealing with the perceived needs of children and, as is sadly necessary all too often, for taking children into the care of a local authority; there is a threshold for that. A number of the vulnerability types set out in the report can be dealt with under that particular method.

I strongly support what the noble Baroness said about the need for the service provided by the local authorities to be adequately funded and supported. I have seen the Local Government Association’s analysis to which she referred, in which the very grave funding shortfall is set out. I strongly support the view that that is one of the most important areas of government responsibility we have for the children of our nation. When I speak of “our nation” I have to think of the United Kingdom, but the report refers to England alone.

As I said, I do not regard the numbers as quite so important. There is a good deal of difficulty reconciling the various numbers, but I will concentrate for the time I have, which is not very long, on some of the types referred to. The mental health of the children is an extraordinary revelation so far as I am concerned. My schooldays are now a very long time past, but I do not remember in my junior or senior school—where all sorts of people and all levels of the community were represented—coming across anything like this mental health situation. I do not remember a single pupil in the classes I had having any kind of mental health problem.

This is a huge problem. What exactly is the reason for it? How does it come about? It is one thing to deal with it when it has come about, but what is the underlying cause of this very large rise in the mental ill-health of very young children? There are some trends for discussion in our present community that may have an effect on that. It is not for me to say—I am no expert in this area, but it is a very important one. I am glad that the Green Paper the Government have issued seeks to deal with this important aspect.

The next case the commissioner mentions is exclusion from school. It must be an absolutely awful thing for a child to be excluded from school with no proper provision for their education in that situation. These are undoubtedly children with some kind of problem. It is very difficult to know exactly what because there are various problems that may lead to this, but it is extremely serious.

Next is missing children. What is done about them? There are many missing children. What has happened to them? Where are they? What efforts are being made to find them? There is no suggestion that the actions of the children themselves have necessarily led to their being missing—they may have, but they may not. How is that dealt with?

The final important type I want to mention—there are all sorts of others—is children in gangs. I have said before that I believe the issue here is a lack of company, particularly parental company, at home. These children find a gang, a unit, in which they can have social intercourse, and it is the only route that happens to be open to them. All these issues need special attention. The commissioner has done a valuable job in bringing them to our attention.

Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

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

[Baroness Garden of Frognal]

Having been a staunch supporter of the amendment from the noble Baroness, Lady Royall, and indeed of trying to engage young people in the importance of voting in elections—I think this is a valuable step in enabling them to get involved at university level—I am grateful for the amendment that has come in from the Government. As we are trying to involve young people in voting, would it not be wonderful if we could now think of lowering the voting age to 16 to enable more of them to do so?

[Lord Mackay of Clashfern (Con)]

My Lords, the amendment in this Motion regarding the appeals system is greatly improved, as my noble and learned friend Lord Judge has said. I am delighted that this has happened because it is of vital importance in relation to the very serious matters that the Office for Students has the power to deal with. I thank the Ministers who have been involved. I include in this particular thanks to my noble friend Lord Young of Cookham, for reasons that I shall explain in a moment, and the Minister in the Commons for the very kind way in which various reactions of mine to this extremely important Bill have been handled.

I want to mention a particular matter that does not arise especially under this Motion but, from my point of view, is rather important. When the noble Baroness, Lady Brown, raised the issue of the new power to search the headquarters of higher education providers, she indicated that it was something that the higher education providers anticipated with a degree of apprehension. In response to that, my noble friend Lord Younger of Leckie read out from Schedule 5 the statutory requirements before such a warrant could be granted. I have listened to a lot of the Bill without particularly talking myself, but on that occasion it occurred to me that one of the assurances the academic community was entitled to get was that those restrictions, which are quite powerful and important, would definitely be the subject of consideration by the magistrate. I suggested that the magistrate should sign a document to that effect. I got a letter almost immediately, which is still on the website, to say that such a thing was unheard of.

It is 20 years since I handed over with confidence my responsibilities for this part of what is now the Ministry of Justice to my successor, the noble and learned Lord, Lord Irvine of Lairg, so it is a very long time since I dealt with this particular matter directly. Still, when I got that response, I thought, “Well, in that case the thing to do is to alter the words of the warrant to make it clear that the warrant’s signature carries that with it”. That was objected to for all sorts of reasons, as your Lordships may remember, and some of them were addressed by my noble friend Lord Young of Cookham on Report. I felt rather strongly about it, as he recognised, and he kindly said the Government would consider it further before Report, giving me an opportunity, which otherwise I would not have had, to raise the matter on Report.

I was still very insistent on this, because I could not see any objection to it. I am particularly obliged to the Minister in the Commons, Mr Johnson, for arranging at the last minute for me to have a chance to deal directly with the Ministry of Justice, from which the objections to my amendments were coming. That afternoon, I was able to meet the official in that part of the Ministry of Justice for which, as I said, long ago I had responsibility. He eventually told me that in fact, the procedure for dealing with warrants had now been altered by order of the Lord Chief Justice, particularly in criminal cases so that, at the end of the application for the warrant—strangely enough—there is a place for the magistrate to indicate whether he or she agrees that the warrant should be granted and, if so, what the reasons are for that decision. He said that he thought that this was probably general practice in relation to warrants in the magistrates’ court—because this is not a criminal warrant under the Bill. My noble friend Lord Younger of Leckie said that that was the position when the Motion was moved on Third Reading.

I therefore express my gratitude to the Minister and the Bill team from the Department for Education for their kind treatment of me in connection with this and other matters. It is important that where a Ministry other than that directly responsible for a Bill gives advice to block an amendment from someone who, after all, was thought of as a government supporter, it should be blocked in a way that depends on Ministers’ expertise. With respect to Mr Johnson’s great variety of eminence, he would not be particularly interested in the magistrates’ courts procedure for warrants, so it is really nothing to do with him. Similarly, for my noble friends Lord Young of Cookham and Lord Younger of Leckie, it is a damaging way of damaging your colleagues without much apparent responsibility. I therefore qualify my thanks for the work that has been done behind the scenes here, modified by that matter, for which the Ministers responsible for the Bill have the right for me to make it clear that it was nothing to do with them; it was from a source for which they have only the responsibility of being in the one Government.

[Lord Stevenson of Balmacara]

My Lords, I was not going to intervene on this point because the case for accepting the amendments in lieu has been made very strongly by both the noble and learned Lord, Lord Judge, and my noble friend Lady Royall, but that little vignette from the noble and learned Lord, Lord Mackay, put me in mind of two things that I thought it might be useful to share with the House. First, the noble Lord, Lord Lisvane, has been very active on the Bill on a particular narrow issue. As a result, I have got to know him a bit better. He kindly shared with me a speech that he gave recently at a meeting of a rather arcane group of people who seem to be interested in administrative law—the noble and learned Lord probably goes to their meetings every week, but it is the first time I had ever heard of it. They obviously debate serious and important issues. His address was about the quality of legislation going through your Lordships’ House. I recommend it to all noble Lords who been involved in this process, because I observe a little of what the noble and learned Lord described. When the annals of this Parliament are written up, I hope that there will be space for this little vignette of persistence over every other aspect of life, which has resulted in a terrific result. He did not quite give the nuance that I thought that he was going to end up with—and I wanted to share that with the House. There were not many of us there late at night at Third Reading when this matter was finally resolved, but it is worth bearing in mind.

The noble Lord, Lord Lisvane, makes the point that, very often in considering legislation, a mentality sets in in the Bill team that is called the “tyranny of the Bill”—an article of faith that the Bill must be right, because the people who have put it together have spent most of their professional lives working on this piece of legislation. In the case of higher education, they have probably waited a generation to get a higher education Bill together. They are not going to give up a comma, let alone a word or a phrase, without considerable resistance. He praised avidly legislators in both Houses getting round that. I mention that point only because, as we have found a lot of times, the results that we are seeing today were not always there; it did not always feel as if we were working in a spirit of co-operation, trying to get the best legislation. Perhaps I should not have said it, but I meant it at the time. It certainly did not feel like that on day 1 in Committee, when there was every opportunity to compromise on a particular issue and the Minister, when offered the chance to take away an issue and look at it again, spent about three-quarters of an hour, it seemed to me, finding every conceivable reason for saying no. I do not think that that was to the benefit of the Bill in the long run—but we have got over that.

--- Later in debate ---

[Baroness Garden of Frognal]

My Lords, from these Benches we strongly support the amendment of the noble Lord, Lord Hannay, and endorse everything that the noble Lord, Lord Cormack, just said. The noble Lord, Lord Willetts, reminded us of the heady days of coalition when I was his opposite number in this House. I remember the debates that went on between the Secretary of State for BIS and the Home Secretary on this topic: the noble Lord could never get any movement on seeing the illogicality.

What baffles many of us is that the Government reiterate that there is no cap on genuine international students, but then they say, “But we will count them as migrants and we are determined to reduce the number of migrants”. It is incomprehensible that the Government cannot see how very unwelcoming it is to put those things together in sequence. We find it completely baffling that we are not getting any movement on this. We recognise that this issue is probably outside the departmental brief of the Minister, but I echo what has been said already: we hope that very soon there will be movement on this. Of course, the noble Lord, Lord Bilimoria, always speaks with great passion and eloquence on this topic, backed with evidence and facts.

This is probably the last time that I shall speak on the Bill, so I reiterate the very sincere thanks to the Minister, the noble Viscount, Lord Younger, and Minister Jo Johnson, to the Bill team and to other colleagues who have been so helpful to us on what has turned out to be a very long and drawn-out discussion on the Bill. The amendments that have come through today have already improved it again. As I said before, it would obviously have been lovely if all our amendments had been accepted, but we recognise that we have actually done a very good job in making this Bill a whole lot better than it was before.

I echo the thanks to the noble Lord, Lord Stevenson, who led a collaboration of the engaged on these issues, made up of Members from these Benches, his Benches, the Cross Benches and occasionally some noble Lords on the Conservative Benches, to try to ensure that we could get the very best possible out of this Bill. I also thank my noble friend Lord Storey, who has been a tower of strength throughout. We have made this Bill much better than when it reached us and I am grateful to the Minister for helping that to happen.

[Lord Mackay of Clashfern]

My Lords, in relation to what the noble Lord, Lord Bilimoria, said about the Prime Minister’s remarks on calling the election, I am relying only on my memory but I do not think that she said “the unelected House of Lords”. She referred to unelected Lords who had made it clear that everything they could do to stop Brexit would be done—it was something like that. I do not think that she was referring to the House of Lords as a whole, because apart from anything else it would not fit the description.

I also support what my noble friend Lord Willetts said. He knows much more about the atmosphere in Whitehall now than I do, and he said he hoped that the research promoted in this might well have a good effect in that direction.

Finally, I agree with what has been said about the noble Lord, Lord Stevenson of Balmacara. I hope that he will enjoy the freedom of not being on the Front Bench. I want to thank all his colleagues on the Front Bench and those on the Front Bench of the liberal party and on the Cross Benches for their help with some of my efforts. I have enjoyed their co-operation and for that I am very grateful.

[Lord Stevenson of Balmacara]

My Lords, the Prime Minister referred to us all as saboteurs more than anything else, which might be a compliment in some ways. We might reflect on that as we go forward.

We must accept that we have made no progress at all on this section of the Bill. It would probably be wrong of me to give too much detail about what happens in a wash-up session. Very few people are privileged to attend them, and I was there only for a small part of it. The rest of the time I was left hanging on a mobile phone in a remote area in which it did not work very well, and I got more and more frustrated about my inability to have any influence in some of the debates. However, one would have hoped that a majority of 94, and the arguments that we have heard rehearsed again today, would have led at least to a discussion about the way forward on this complex and rather annoying area that we seem unable to bring into focus.

In fact, I understand that it was made clear at the very start that the Minister concerned was unable to discuss any concessions in this area: it was ruled off the table from the beginning. In that sense, it plays a little into the conversation that we had earlier: that there is something dysfunctional about Whitehall on cross-cutting issues. We all know the wicket issues that are difficult and that nobody wants to play on. No Minister will take full responsibility for them and unless they get prime ministerial push—and a lot more besides, because Prime Ministers are not always as powerful as public misconceptions would have it—they will not make the progress necessary to achieve something that is genuinely about the whole of government. A hole has been created in this area and we have, I am afraid, fallen into it. Added to that is what appears to be an uncanny ability of the current Prime Minister to exercise control in a fairly remote part of the Government.

I have two other things to say before we hear from the Minister as he winds this Bill up. The first concerns a little of what the noble Lord, Lord Willetts, said and what was said around the House. We need to use the fact that we have been rebuffed again on this issue to try to get the case right. That would be a good thing to do. Although the statistics are important, I will focus not just on them, because it might be a little ambitious to think that we will get a counting-in and counting-out method just because there is a problem in this area. The real issue is: who actually controls the entry of students to our universities? The noble Lord, Lord Willetts, said that at the end of the Bill we would probably have the best-regulated sector in the UK and possibly in the world. But should we not be trusting our higher education institutions to get on with the job and to recruit the best people they think can benefit from an education here?

The truth is that this is all second-guessed by the Home Office, which has its own teams of people who interview the students nominated by the institutions. They set the quota levels, which are said to be unlimited but are in practice set and increased only on application, and they change the quotas available to every institution if they feel that an institution is making mistakes in the people it recruits. This is not just about the point of entry. What happens to these students after they have left the responsibility of the institutions? When they go out into the wider world if they are able to get a job, or even if they disappear from the statistics, somehow the original institution that brought them in is responsible for them. That seems a double penalty, both for what they are doing and for future recruitment issues. All this has to be picked up and looked at. It is not a good system.

A pilot scheme is ongoing that affects masters courses, not undergraduate courses—deliberately chosen so that the results will be available earlier. Therefore, there is some hope that we might use that system to drive through a different approach to this, so that trusted institutions that are well regulated under a new system that has the support of both Houses can make the decisions necessary to recruit the right students. Those students will benefit from our system and can then fulfil their soft power responsibilities, duties and activities before going back, creating economic activity before they do so and being good citizens here and in the world. Currently, we have failed completely. I really regret that. I have bitterness and regret as much as the noble Lord, Lord Hannay, and I share his pain, but we must move on from here. The issue must not go away; it is too important for the economic future of our country, for the institutions concerned which need these students if they are to be successful and make progress, and for the individuals who are getting the benefit of the education here. I hope we will make progress urgently on the disaster that we now face.

Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

3rd reading (Hansard): House of Lords
Tuesday 4th April 2017 Lords Chamber

Moved by

[Lord Mackay of Clashfern]

10: Schedule 5, page 98, line 43, at end insert “and that all the requirements for the grant specified in this Schedule are met,”

[Lord Mackay of Clashfern (Con)]

My Lords, this amendment has a rather interesting history. It arose from my reaction in Committee to an amendment in the name of the noble Baroness, Lady Brown, in connection with this schedule, which contains a power of search that is absolutely new to the academic community. It therefore required very careful consideration, which the noble Baroness’s amendment provided. In addition, she pointed out that this power had created anxiety in the academic community, as noble Lords might expect. Apart from what it might achieve, one thing is certain: if it were ever carried out, it would do very serious damage to the reputation of a higher education provider whose premises were the subject of a search.

Having listened to this, I suggested that it might be a good idea for the magistrate granting the warrant to indicate that he or she was satisfied that the conditions had been applied and satisfied. These conditions are extremely strong and very useful. When the point was raised by the noble Baroness, Lady Brown, my noble friend the Minister read out the conditions and said that they would certainly be satisfied, and that that was implied in the statutory provision.

After raising in response to that the idea that the magistrate might indicate by signature that he or she had been satisfied that the conditions had been met, I quite quickly received a letter to say that the idea of a separate signature was unheard of and that it would be a quite startling innovation. Well, the search warrant itself was something of an innovation, so I was not particularly disturbed by that—but I thought that I had better meet that and deal with it by suggesting an amendment to the form of the warrant specified in statute and put into the warrant that the magistrate was satisfied that the conditions for the grant set out in the schedule had been met.

Noble Lords who are interested will remember that ultimately this came to Report, when my noble friend Lord Young of Cookham dealt with the amendment. In the course of his observations he referred to two statutes that were supposed to indicate a form of warrant that would exclude my idea. Needless to say, I examined both of those and neither of them seemed to support the proposition for which they were cited. Eventually, my noble friend kindly agreed that the Government would consider the matter further—which is why it is competent for me to raise it at Third Reading. I had permission, as it were.

Since Report, I have had a meeting with the Minister—this time, the noble Viscount, Lord Younger of Leckie—officials from the Department for Education as well as, and this is the vital information, an official from Her Majesty’s courts service. It was not clear from the previous meeting exactly what the objection was to my amendment. It was thought that his department was carrying out an operation to simplify all warrants and make them pretty well the same. It turned out at the meeting that these were related to the criminal procedure and the operations of the committee concerned with the revision of criminal procedure matters. I continued to think that this was not a criminal matter and therefore did not preclude what I wanted.

I was fairly insistent that this should happen, so we had a meeting this afternoon. It transpires that the idea of it being unheard of to have a separate signature is without foundation, because the criminal procedure committee and the Lord Chief Justice, who is no doubt an implement of that, have approved a form of warrant in criminal procedures which includes at the end of the application a space for the magistrate to sign to the effect that he or she has granted a warrant and to give the reasons for it.

It is apparent that this is not a criminal warrant; it is much more general than that. The official from the courts service kindly gave me a copy today of the form of warrant in criminal matters. It refers to the Criminal Procedure Rules and the Police and Criminal Evidence Act 1984, but it also says:

“Use this form ONLY for an application for a search warrant under a power to which sections 15 & 16 of the Police and Criminal Evidence Act 1984 … apply, other than section 8”.


There is a different form for Section 8. So whatever you say about the form, it does not seem expressly to apply to one type of warrant. The official undertook to confirm whether this procedure applies generally as a matter of practice to other warrants—and he rather thought that it did.

I would be content if this form of warrant or something like it was agreed to be applied to the warrants under Schedule 5 to the Act, because it is a form of what I originally suggested. If that is correct, it is a perfectly reasonable way of allaying the concern of the academic community that the warrant would be too readily granted and that the very strict conditions laid down in the schedule might not be fully understood by the magistrate who had the obligation in connection with the warrant.

I think it right that I should move my amendment but explain that, in light of the rather tortuous history that it has had, I would be content if the Minister confirmed that the practice of magistrates’ courts generally in relation to all the warrants that they deal with is to contain in the application a form for the signature of the magistrate confirming that he or she has issued the warrant for the reasons that are summarised.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, with that introduction, how can one fail? I thank another noble and learned Lord—this time, my noble and learned friend Lord Mackay—for his helpful and astute contributions on this issue both in Committee and on Report. We are very grateful for the expertise that he brings to bear. As my noble and learned friend said, this amendment has had an interesting history and has done the rounds, but, on a serious note, let me offer my apologies if the department’s letters to him on this issue have misunderstood his area of concern.

I shall briefly reiterate why the powers to enter and inspect higher education providers, set out in Schedule 5, are needed. These powers will allow suspected breaches of registration and funding conditions which are considered by a magistrate to be, to quote directly from Schedule 5,

“sufficiently serious to justify entering premises”,

such as financial irregularity, to be tackled swiftly and effectively through the new power of entry. This will safeguard the interests of students and the taxpayer, and protect the reputation of the sector. As the NAO said in its 2014 report on alternative providers, at the moment the department has no rights of access to providers, and this affects the extent to which it can investigate.

We agree that it is vital, of course, that strong safeguards are in place to ensure that these powers are used appropriately. As set out in Schedule 5 as drafted, a magistrate would need to be satisfied that four tests were met before granting a warrant: first, that reasonable grounds existed for suspecting a breach of a condition of funding or registration; secondly, that the suspected breach was sufficiently serious to justify entering the premises; thirdly, that entry to the premises was necessary to determine whether the breach was taking place; and fourthly, that permission to enter would be refused, or else requesting entry would frustrate the purpose of entry. These criteria will ensure that the exercise of the power is appropriately limited. Further limitations are built into Schedule 5, including, first, that entry must be at a reasonable hour, and secondly, that the premises may be searched only to the extent that is reasonably required to determine whether there is or has been a breach.

I believe that the thinking of the Government and that of my noble and learned friend is very largely aligned in relation to these safeguards. I fully understand that this amendment does not seek in any way to alter the conditions which must be met for a warrant to be granted, or prevent warrants being granted where they otherwise would have been. Rather, as my noble and learned friend has set out, the amendment makes a small change to the powers so that the search warrant to enter a higher education provider must state that all the conditions for grant of the warrant specified in Schedule 5 have been met. I am grateful for my noble and learned friend’s valuable contribution and have discussed this with him outside the Chamber and reflected on this matter very carefully. As he said, he spoke with my honourable friend in the other place, Jo Johnson, on this matter today, and with officials from HM Courts and Tribunals Service. I hope that these conversations were helpful. However, the Government remain of the view that this schedule should stand as drafted, as we believe that a requirement to state that the conditions have been met would not provide an extra legal safeguard.

We agree that it is imperative that the conditions in the schedule are fully met before any warrant is granted. However, we believe that this is already the effect of the Bill as drafted, specifically paragraph 1 of Schedule 5. Furthermore, paragraph 3(1)(f) already provides that the warrant must, as far as possible, identify the funding or registration condition breach which is suspected. We understand that, in the past, magistrates may have taken an insufficiently robust approach towards scrutinising warrant applications but, as I have impressed upon my noble and learned friend, the position is markedly different now: the specifics of applications are carefully scrutinised and it is not uncommon for warrants to be refused. I should acknowledge to my noble and learned friend that there may have been a misunderstanding as to the requirement for a magistrate to certify that the statutory requirements for the issue of a search warrant have been met. I want to reassure him that a magistrate will be required to set out the reasons for their decisions in writing, and to add their signature to their reasons. I accept that this may be described as a certificate.

I want to go into a little more detail, bearing in mind the comments of my noble and learned friend. He asked whether an application under Schedule 5 is within the ambit of the criminal procedure rules. The criminal procedures apply to a magistrates’ court,

“when dealing with a criminal cause or matter”.

Although an application for a warrant under Schedule 5 can be granted only where the breach under investigation is sufficiently serious, there is no requirement that the investigation must relate to possible breaches of the criminal law. However, in the absence of any specific guidance to the contrary, it is the practice of magistrates’ courts to deal with applications for a warrant to enter premises in accordance with the CPR and the criminal practice directions and using the prescribed form of application and warrant. Magistrates’ courts do not seek to make fine distinctions as to whether an application is civil or criminal. It is the nature of the application that is important.

As I said earlier, I can confirm that a magistrate will sign a separate form which certifies that the statutory criteria are met. In addition, of course, the magistrate will sign the warrant. With that reassurance, with the extra detail that I have set out and the reasons we believe this amendment is not necessary, I respectfully ask my noble and learned friend to withdraw his amendment.

[Lord Mackay of Clashfern]

My Lords, I am extremely happy because the purpose of my original intervention has been fully met by the description that my noble friend has given of the practice of the court. It is a little odd that the form is to be used only for criminal matters, but practice sometimes overcomes that. I am constrained to add a personal note. When I came to politics rather late in life, I had a very skilled, shrewd and experienced person to guide me. He was operating in a very hostile atmosphere and I gathered from him that if you could do anything to allay the concerns of those who were concerned about your activities, so long as it did not alter your own position it was wise to do so. I have used that criterion for most of my time in these offices. The person to whom I owe this tuition was the father of my noble and learned friend. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, I understand the reason for this amendment but am not sure that it is appropriate, because it is the Office for Students that would do the “musting”—if I can call it that—but the arrangements have to come from the higher education providers, which are dealt with by new paragraphs (a) and (b). The OfS finds out exactly what is going on and reports it. That may put pressure on individual providers to get along with arrangements. You cannot facilitate an arrangement unless the people wanting to make it are willing. There is also the problem with time when it comes to facilitating, encouraging or promoting awareness. In due course, the thing will become known, but the amendment is saying it must be done all the time—it is a continuing obligation. In the circumstances of this clause, “may” is the better word for this part of the arrangement.

[Baroness O'Neill of Bengarve]

My Lords, this is quite a complicated matter for higher education providers—as I have learned to call them—as the reasons why students come to a halt on their journey are very varied. Sometimes, they are not really committed to continuing, sometimes they are not really able to continue on the course, and sometimes there is another course with slightly different requirements to which they would be very well suited. It has to be a very hands-on process, and does not always go successfully, but nor would it even with this amendment.

One has to be very careful. In my experience, academic staff and the student counselling services have a great deal to do when an individual student hits one of these vicissitudes, and the process is not always successful. But we should also remember that in countries where they ostensibly have more of a credit transfer system than we have ever managed to achieve here, you cannot say, “Oh, I am not really enjoying my course here; I would prefer to be on that course there”. The process will be extremely difficult and very expensive for the institutions. On balance, “must” facilitate may not, for those additional reasons, be quite the verb that we want here.

--- 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.

[Lord Marlesford (Con)]

My Lords, since the House has had the benefit of the views of three noble and learned Lords, I hope that the Minister will hasten to admit that this is a case of incompetent drafting and not waste further time on it.

--- Later in debate ---

[Lord Stevenson of Balmacara]

I was expecting the noble and learned Lord, Lord Mackay, to speak to Amendment 118 in the group, if he wishes to do so.

[Lord Mackay of Clashfern]

My Lords, I did not understand why this provision is in the Bill. I was rather surprised when I first saw it, and when I raised the point at a meeting, those promoting the Bill seemed to be almost equally surprised. However, I have now found out exactly what it is for. It is intended to deal with situations where someone has gained a degree through various nefarious practices and that is discovered. Once you understand that, it is quite normal and certainly not unexpected that the same provision should apply to other arrangements. However, this is a special one for this particular situation. I am happy with the explanation and I shall not press my amendment.

[Lord Stevenson of Balmacara]

My Lords, given that elucidation, I shall say much the same thing but in different words in relation to Amendment 119.

My name was attached to Amendment 117A and I have listened carefully to the comments of the noble Baroness, Lady Wolf. It is an offer to the Government to tidy up an area that needs more attention.

I turn first to a letter we received by email today just before we got into the Chamber. The Minister may have something to say on this point which may resolve the issue. I am grateful to the noble Baroness for her support on Amendment 119. It was spoken to when we tried to link it to an earlier group of amendments in case, as has happened, the Bill was amended to reflect a situation where validation routes are twofold. One route involves working with another institution or provider for at least four years—some courses are longer than four years—and then applying for the powers at that time. The other route is by having a tougher assessment arrangement, which is done through the Quality Assessment Committee of the Office for Students and the designated body appointed in this area. In those circumstances, it does not seem necessary that there would be a requirement at any stage in the future for the OfS also to be a validator.

The amendment would remove the infelicitous possibility that the body which is now called a regulator, the Office for Students—I wish it had another name—would not only ensure that validation arrangements operated throughout the sector but would also be a validator and the regulator of those two processes. That does not seem appropriate. However, in the letter today there is an announcement, which I am foreshadowing, which deals with the fact that there will be a process of consultation on the precise way in which the OfS will provide a validation service. That seems to covers the point very well, so we will not press the amendment.

Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, I support Amendment 7 tabled in this group by the noble Lord, Lord Addington, and the noble Baroness, Lady O’Neill of Bengarve, and I want especially to mention Amendment 2. As I explained at Second Reading, my legal education, such as it was, was part-time, and I think that it is a very useful type of education with its mix of theory and practice in whatever it is you are aiming to do. I hope that this amendment will be considered seriously because it is important that the full range of students should be borne in mind by the authority looking after them, whatever its name happens to be.

As this is a new stage of the Bill I ought to declare my interests. I have been connected in one way or another with universities for a good part of my life, including two honorary fellowships at colleges in Cambridge, but I am not conscious that any of that has particularly affected my views on this Bill.

[Viscount Younger of Leckie]

My Lords, this is a large group of important amendments—I think it is fair to say that it has grown in the past 24 hours—to which we have heard many valuable contributions, so I make no apologies for speaking at some length. Before I do, I wish to reiterate a point made by noble Lords on many occasions during the debate. One of the great strengths of our world-class higher education system is its diversity. That diversity, be it in the form of part-time study, providers of a denominational character or new innovative providers entering the market, is essential to promoting greater student choice. We want all students, whatever their background or circumstances, to get the most they possibly can from a higher education experience that can respond to their varied needs. A number of noble Lords have also made that point in this debate.

I turn first to government Amendment 8, on diversity of provision. The noble Baroness, Lady Bakewell, who is the president of Birkbeck, has long been a passionate supporter of part-time study and non-traditional students. Speaking in an interview in 2013 to Times Higher Education, the noble Baroness declared—perhaps I may quote her; I am sure that she will remember it:

“Part-time study and flexible learning are going to play a big part in the future of our society”.


The amendment I have tabled along with the noble Baroness, Lady Garden, explicitly recognises that. It makes it clear that choice among a diverse range of higher education provision is part of the OfS’s duty to promote greater student choice. That includes but is by no means limited to choice among a diverse range of provider types, course subjects and modes of study such as full-time, part-time, distance learning and accelerated courses. These are only examples rather than a comprehensive list because when looking to the future, the needs of students, employers and our economy will change and the sector will need to continue to innovate and diversify in response. That is why the Bill goes much further than the existing legislative framework in ensuring that the OfS board will include a diverse representation of interests, including individual student representation, and covering different types of institution.

At the same time, we need to avoid limiting the desirability of experience to a restrictive list of requirements that could prevent the Secretary of State appointing a board that is able to address the challenges and priorities of the day. Regarding Amendment 2, I would like to reassure noble Lords that the Bill as drafted enables the Secretary of State to choose, if he or she so wishes, board members with experience, knowledge and expertise in part-time study, adult and distance learning, and any manner of other diverse means of delivering higher education.

I turn now to Amendments 7, 48, 87 and 94 to 98, on equalities, access and participation. I understand and share the intent behind these proposals: where particular groups face additional barriers to accessing and participating in higher education, they should of course be supported appropriately and protected from discrimination. But I fear that the practical application of these amendments risks imposing additional burdens and constraints on the OfS that might not guarantee better outcomes for students. My noble friend Lord Lucas suggests specific ways of evaluating access and participation. I thank him for this and appreciate his engagement, but we do not see it as necessary. Providers already evaluate these activities and we expect this to continue.

We are proud that measures to increase access and participation and equality of opportunity are at the heart of the Bill. It already gives the OfS an explicit duty to have regard to the need to promote equality of opportunity in connection with access to and participation in higher education across all its functions. The OfS collectively, rather than a single member, will be responsible for demonstrating how that duty is being fulfilled.

Paragraph 13 of Schedule 1 confirms that the OfS must report annually on its functions—including access and participation functions—and that this report must be laid before Parliament. There is therefore no need for a separate report on access and participation. Taken together with the Equality Act, our reforms will help to create a framework within which all students should be protected—a framework that enables autonomous providers to respond to the needs of their particular student body by developing appropriate support services and procedures.

Throughout our consideration of the Bill the noble Lord, Lord Addington, has been tireless in his advocacy on behalf of disabled students. I can assure him that we will continue to work closely with the sector to promote best practice in making reasonable adjustments within the framework of the Equality Act. I have listened to the noble Lord’s concerns in Committee and today. I have met with him to discuss this important issue further. I am pleased to say that the Government have published a report by a senior sector-led group, setting out best practice principles for making reasonable adjustments. We will continue to work with that group to support higher education providers in identifying how those principles can be applied in practice. I will say more on this in a moment.

However, providers need the flexibility to determine precisely how best to meet their students’ needs, consistent with their Equality Act duties. Similarly, the OfS needs the flexibility to determine precisely how best to discharge its duties regarding equality of opportunity. I agree with the noble Lord that identifying barriers faced by particular groups of students and considering how they might be addressed is one way in which the OfS might take into account its duty regarding equality of opportunity. However, I believe that imposing this as a further duty on the OfS as set out in the amendment could be counterproductive, placing additional burdens on the OfS without a commensurate benefit for students.

I say this to the noble Lord, Lord Addington, who, I know, is well exercised by this issue, as perhaps are a few other noble Lords. I can confirm that I and the Minister for Universities and Science, Jo Johnson, will write to the chair of the Disabled Students Sector Leadership Group to ask that it invite the noble Lord to meet it and work with him to develop the guidance further, based on his experience and expertise.

I listened carefully to the point made about dyslexia assessments. The noble Lord raised this issue with me in our recent meeting, and I understand his concerns. Students must provide evidence of their disability to prove eligibility for DSA, and they are liable to meet the costs of this. It is not the purpose of DSA to cover the costs of diagnosis of a condition or disability. Rather, it provides help with only the additional costs of study that a student incurs by virtue of having a diagnosed disability.

The question that could be asked is whether a provider could rely on previous diagnostic reports, or whether the disabled student may be able to bring these with him. This may have been the gist of the line the noble Lord was taking. However, all students are asked to provide evidence of their disability. This is fair, because every institution is different. It is important that the provider or institution can assess correctly students’ needs in relation to the particular course they are taking. That has to be based on up-to-date information. I hope that slightly more prolonged answer will help a little with the noble Lord’s issues.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, the fundamental importance of joint working between the OfS and UKRI has been raised many times in this Chamber, in the other place and beyond. We listened carefully to the debates in Committee, including the powerful contributions from the noble Lords, Lord Triesman and Lord Smith, and many others, and with these two amendments we are responding.

The Bill requires both organisations to report annually to Parliament. This amendment will expand these reporting provisions to require that the annual reports of both organisations include a section detailing how they have co-operated over the period of the reporting cycle. This would include issues such as knowledge exchange and HEIF, or RDAPs, which we look forward to discussing later on.

With the amendments we are making it clear that the two organisations should co-operate. Clause 108 empowers them to do so. Now they must cover how they have done so in their annual reports, providing Parliament and commentators with the opportunity for scrutiny.

The amendments strike the right balance between empowering and facilitating joint working by requiring transparency around co-operation, without taking us into a prescriptive and potentially limiting list of activities which would be impossible for the organisations to expand or alter in response to changing circumstances. I beg to move Amendment 3.

[Lord Mackay of Clashfern]

My Lords, I strongly support the amendment. I just hope that in due course the Minister will be able to go a little further—but the amendment is very much in the right direction.

[Baroness Brown of Cambridge (CB)]

I, too, support government Amendments 3 and 172, which take a significant step towards ensuring collaboration between UKRI and the OfS. I will briefly declare my interests: Universities UK provides me with some research support; I am an honorary fellow of Murray Edwards College and a Title E fellow at Churchill College, Cambridge; I am a former vice-chancellor at Aston University and an adviser to the vice-chancellor at Cranfield University; and I chair the Sir Henry Royce Institute for Advanced Materials at Manchester University and STEM Learning Ltd, a not-for-profit company owned by a consortium of UK universities.

I thank both Ministers—the noble Viscount, Lord Younger, and the noble Lord, Lord Prior—as well as the Bill team for listening and responding to our concerns in this area. These amendments are very positive. However, as the noble and learned Lord, Lord Mackay, said, some further clarity is needed on some key issues of collaboration between the Office for Students and UKRI. As an example—the one that the noble Viscount mentioned—in a recent note the University of Cambridge highlighted that, while UKRI would be consulted on the awarding of research degree-awarding powers, it is not, apparently, part of the process of varying or revoking such powers—or, indeed, identified in the appeal process. So I urge the Minister to clarify when we come back to this discussion later on Report that any decisions and processes related to RDAPs should indeed be joint decisions or actions between the OfS and UKRI.

--- Later in debate ---

[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.

[Lord Mackay of Clashfern]

My Lords, I have Amendment 5 in this group. Your Lordships may remember that in Committee, the noble Baroness, Lady Wolf, and my noble friend Lord Ridley tabled an amendment to deal with the matter that my amendment seeks to deal with, but they sought to do so by reference to a new committee that was to be set up to have that power. It is obvious that we are in a changing world and therefore that there may well emerge needs for new providers to do something different to that which is presently provided in the higher education sector.

Since we are to have the Office for Students—that is still its name—it is perfectly appropriate that the duty of looking out for “emerging needs” should fall on that regulator. We would not need further committees; the existing regulator would be able to do this as a natural operation in the course of viewing the sector, as it has to do all the time as part of its regulation. It is also clear that setting up a new provider in this area is not without problems. A certain degree of capital expenditure is probably necessary and there would certainly be other costs as well, running costs in particular. It is therefore right, as was said originally and as I say again, that the regulator should take appropriate steps to encourage the meeting of those needs. The main support for this provision came from the noble Baroness and my noble friend but I thought this would be a neat way of achieving exactly what they wanted, without the elaboration of a further committee. In due course, I shall move this amendment.

[Baroness Garden of Frognal]

My Lords, I have added my name to the amendments in this group from the noble Lords, Lord Kerslake and Lord Stevenson. I express support from these Benches for the safeguards for institutional autonomy which they represent. I also add my thanks to the Minister for adding his name and the support of the Government to them.

Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

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

[Baroness Warwick of Undercliffe (Lab)]

My Lords, I support that final point, because we have to get at the principle of whether it is appropriate for a regulator to participate in the market it is regulating. That is the key issue. Based on the very effective arguments put forward by the noble Baroness, Lady Wolf, I urge the Government to think very carefully about this. There was an enormous amount of consultation on the Bill prior to it coming to the Commons and to this House, and yet, although there are lots of other areas where there could have been conflict rather than simple disagreement with the sector, this is the one area where the whole of the sector seems to have come together to suggest that the Government really need to think again.

As the former chair of a regulator, and having worked with other regulators, I cannot think of any regulator which is empowered to act in this way. This seems the key issue that the Government need to address. The current validation process seems to have worked pretty well, but if private providers are having problems, we should address those problems and, if necessary, have an independent validator—possibly more than one if we are going to give the range of processes that might be needed, as described by other speakers, for different courses, for example. We really need to think very carefully about that principle and address it.

[Lord Mackay of Clashfern (Con)]

My Lords, I wonder how this works in view of Clause 47(6):

“Regulations under subsection (1) may include power for the OfS to deprive a person of a taught award or foundation degree granted by or on behalf of the OfS under validation arrangements”.


What sort of validation of a degree is it when it can be taken from you—after you have got it, I assume?

[Viscount Younger of Leckie (Con)]

My Lords, I thank noble Lords for the opportunity to discuss validation arrangements. We believe that they are essential to a fully functioning higher education sector. We have listened to the concerns raised around the potential for Clause 47 to create a conflict of interest. However, I believe that a more substantial conflict of interest already exists within the sector.

At the moment, new providers usually have to find a willing incumbent provider to validate their provision. This gives those incumbent providers significant levers to control which new providers can enter the market, and what kind of provision they offer. Even if established providers are willing to help new providers get a foothold in the sector, there is an inherent conflict of interest if the proposed new provision would directly compete with one of their own courses. Of course, conflicts of interest are not the only problem validated providers can face. We know that some providers still find it difficult to find a partner that is willing to enter into validation arrangements with them, or have established arrangements unexpectedly withdrawn, and not because they are considered poor quality.

The noble Baroness, Lady Garden, stated that there was no evidence, but I have to put her right. We only need to look at events at Teesside University last year. Following a change of leadership, the university unexpectedly withdrew important validation services to 10 local colleges, based on a change of strategic direction and not as a reflection of the quality of the provision. Ensuring new and existing high-quality providers are not locked out of the market via their preferred entry route is essential to ensuring that students are able to access the right type of higher education for them.

The OfS cannot force providers to enter into validation arrangements. If insufficient providers are entering into validation agreements with each other or into commissioning arrangements with the OfS, or these fail to correct the problem, the OfS will need to find another way to promote competition and choice. Without further powers, the OfS could potentially be forced to stand by and watch while good-quality providers that do not want to seek their own degree-awarding powers remain locked out of degree-level provision indefinitely.

The OfS will, if it performs any validation function, have to have regard to the need to encourage competition among higher education providers in England. Its aim will not be to compete with the other higher education providers with a view to diminishing their attractiveness or their ability to offer validation services. It will only offer these services if there is demonstrable evidence that validation services are failing to support the sector. A regulator needing to take a role in the sector it regulates is not totally unprecedented. For example, the Bank of England regulates many aspects of the financial sector in order to maintain financial stability in the UK. In extremis, however, it will also act as the lender of last resort, or a market-maker of last resort, for example by buying and selling assets such as government bonds to provide liquidity at a time of financial stress.

Noble Lords might wish to read an interim report by the Open University and Independent Higher Education on a joint project piloting a streamlined approach to validation. The report highlights several perceived obstacles for providers in developing successful validation partnerships, including restrictive behaviour on the part of some validating universities and,

“insufficient support for alternative delivery models including accelerated and more work-based degrees”.

While the report accepts that this is not representative of all validation partnerships, it recognises the importance of validation as a route into the higher education sector and the need to fix problems which, if left unchecked, could have an adverse impact on student choice.

The report says:

“Validation stands as a critical part of the regulatory infrastructure, and its role as a gateway into the higher education sector means that any dysfunction will have a substantially negative impact on the diversity and quality of provision available to students”.


Relying on incumbents to shape the future of higher education can also curb innovation and result in the entrenchment of the same model of higher education, as providers may be hesitant to validate courses that do not conform to their usual modes of delivery. As the noble Lord, Lord Browne, said, validation can create a closed shop. As part of its work on improving validation services, we would expect the OfS to draw and build on this and other work already carried out.

I also noted the suggestion in the previous debate to create an independent central validation body akin to the CNAA model. As a regulator of the higher education sector, the OfS is ultimately responsible for ensuring that the regulatory framework and its supporting processes are functioning effectively. As the noble Lord, Lord Browne, said, it therefore makes sense for the OfS to have a role in determining how validation problems that could prevent it from fulfilling its responsibilities, such as ensuring that market entry routes and related processes are functioning effectively, are actually fixed.

The OfS’s broader strategic role makes it best placed to identify emerging trends in validation services across the sector and to monitor the impact of whatever solution it puts in place to correct any problems. It will be able to draw on information and advice from all its designated bodies and stakeholders to develop a robust evidence-based approach to address any serious validation failings. I reassure noble Lords that this is not a power easily given or used. We envisage that the OfS would be authorised as a validator of last resort only if it was absolutely necessary or expedient after other measures had been tried and failed.

The noble Baroness, Lady Wolf, said that this would be based only on anecdotal evidence. The Secretary of State may exercise this power if she considers that it is necessary or expedient to do so, having taken OfS advice. That advice is most likely to come in the form of an evidence-based report.

The Secretary of State would need to lay secondary regulations in Parliament. As we all know, it is common practice for these regulations, which use the negative procedure, to be laid before Parliament 21 days before coming into force, giving Parliament the opportunity to see these conditions. As always, Parliament retains the power of veto.

The regulations, should they be deemed necessary, are expected to set out the terms and conditions of any OfS validation activity. I would expect the OfS, as the overall regulator of higher education quality and champion of students’ interests, to be best in class in terms of demonstrating that its validation services abided by best practice validation principles and delivered to the highest standards. I would also expect the OfS to put in place appropriate governance arrangements ensuring that an appropriate level of independent scrutiny was applied to the validating arm of the organisation and the safeguards to protect student interests.

The noble Baroness, Lady Wolf, asked how this would work, who within the OfS would do the validating and whether they would have the requisite skills and qualifications. The regulations by the Secretary of State could attach certain conditions to ensure that the service set up by the OfS was underpinned by the necessary expertise. As we expect members of the OfS board to have between them experience of providing higher education, the organisation will have the necessary expertise to recruit the staff needed to set up a validation function. For further detail on how the OfS validation arrangements would work, I again refer noble Lords to my letter of 19 January enclosing a factsheet published by the Department for Education on validation. With that, I move that this clause stand part of the Bill.

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[Baroness Goldie]

My Lords, I thank the noble Baroness for her contribution. Clause 56 and Schedule 5 as drafted will ensure that the Office for Students and the Secretary of State have the powers needed to investigate effectively if there are grounds to suspect serious breaches of funding or registration conditions at higher education providers. The amendment recognises that these powers are necessary where there are suspicions of fraud, or serious or wilful mismanagement of public funds.

As the noble Baroness indicated, we would expect the majority of cases where these powers would be used to fall into this category, but limiting the powers to this category would risk compromising our ability to investigate effectively certain other cases where value for public money, quality, or the student interest is at risk.

The OfS may, at the time of an institution’s registration or later, impose a “specific registration” condition. This is a key part of our risk-based regulatory framework. For example, an institution with high drop-out and low qualification rates could have a student number control imposed by the OfS if it considered that this poor level of performance was related to recruiting more students than the institution could properly cater for.

A breach of such a condition may not constitute fraud, or serious or wilful mismanagement of public money, as students will still be eligible to access student support. But there is a very real risk that students, quality, and value for public money will all suffer. If the OfS has reason to believe that despite, for example, the imposition of a condition that limits the numbers of students a provider can recruit the provider is nevertheless undertaking an aggressive student enrolment campaign, it will be important that evidence can be swiftly secured to confirm this. If the proposed amendment were made, a warrant to enter and search may not be granted in such cases. That would be an unfortunate and perhaps unintended deficiency in these important powers. I therefore ask the noble Baroness to withdraw Amendment 364.

[Lord Mackay of Clashfern]

Before my noble friend sits down, I was wondering whether the justice of the peace who is to decide such a matter has to give a certificate that he has been satisfied on all the matters required in the schedule at this point in order to grant the warrant, because it sets out conditions about which he must be satisfied. I think it would be quite a reasonable requirement that before the warrant was granted, he should certify that he—or she, I should of course have said—is satisfied on each one of all those rather important conditions.

[Baroness Goldie]

I thank my noble and very learned friend for his contribution. I cannot comment on the specifics of the operation of magistrates’ warrants in England, but I certainly can undertake to write to him with clarification as to how—a very large piece of paper has just been handed to me, entitled, “What will the magistrate take into account when considering whether to issue a search warrant?” If your Lordships, like me, are agog to know this riveting information, here we go.

The magistrate would need to be satisfied on the basis of the written evidence and the questions answered on oath that reasonable grounds existed for suspecting a serious breach of a condition of funding or registration, and that entry to the premises was necessary to determine whether the breach was taking place. Further to this, the magistrate would also need to be satisfied that entry to the premises was likely to be refused or that the purpose of entry would be frustrated or seriously prejudiced. These criteria will ensure the exercise of the power is narrowly limited.

Well, as FE Smith once famously said to a judge, I may not be any wiser, but I am much better informed.

[Lord Mackay of Clashfern]

My Lords, I am grateful for that, but of course it does not deal with the question that I am asking. It is very useful information—or rather, I think I am right in saying that, at least so far as I followed it, it is a repetition of what is already in the Bill. The question, however, is whether the magistrate needs to be aware that these are the conditions. When applications for warrants are dealt with, the degree of speed required sometimes slightly derogates from the detail in which they are considered. This is an important matter: if a higher education institution has a search warrant on its premises that is a pretty damaging thing, especially if it happens to come out in the press that a highly regarded senior institution is being subjected to a search of its premises, which may be quite large, when it comes to it.

It would be useful to have a requirement that the magistrate should certify that he or she is satisfied on these matters and grants the warrant accordingly, or something like that.

[Baroness Goldie]

My Lords, I totally defer to my noble and learned friend on these matters. I do not have the technical information that he seeks, but I undertake to write to him.

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[Lord Liddle (Lab)]

My Lords, the amendments in my name are relevant to the points that the noble Baroness, Lady Wolf, has just made. I am concerned with the scope that the OfS has to levy charges on the sector; effectively, it is a provision to tax the sector for unlimited purposes, which are not clear, and there needs to be some mechanism of control and full consultation on any proposed charges. Just as regulators impose limits on rises in fees on institutions in line with the cost of living, similarly the regulators should be under an obligation to try not to put up their charges on the sector above the rate of increase that universities can themselves charge.

[Lord Mackay of Clashfern]

I think that I am right in saying that some years ago it was decided that a statutory authority did not have power to charge fees unless it was expressly conferred on the body in question. As the noble Baroness said, this is the authority for this fee, so it is exceedingly important that we see that the authority is limited to what it ought to refer to. How exactly it should be dealt with in relation to unconnected matters strikes me as a little strange. I cannot see exactly why something completely unconnected should be regarded as something on which you can reasonably charge other people—taxpayers, or people applying for help.

The noble Lord, Lord Watson of Invergowrie, said that there was no reference to employees in this Bill, but I found one—and I found it a little unsatisfactory, and tabled an amendment to deal with it, Amendment 492. In a moment of reflection, he may see it and come to my help.

[Baroness Brown of Cambridge]

My Lords, I remind the Committee that the people who will pay these fees that the regulator is charging will be the students. Therefore, we very much need to make sure the regulator is charging the absolute minimum it can to perform its duties effectively.

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[Viscount Younger of Leckie]

The noble Lord makes a fair point, but I must go back to the overarching statement that I made at the beginning of the Bill: we have carefully crafted it to look ahead to the future. I have said specifically that we do not consider it right to be too exact in what we put in the Bill. I hope he will accept that.

On Amendment 371, spoken to by my noble friend Lord Lucas, the Government are committed to making data available publicly and in a format that can be easily used wherever possible. However, the data body will collect personal data and it may therefore not be appropriate or lawful to publish identifiers. In accordance with the code of practice for official statistics, the statistics published by the body should not reveal the identity of an individual.

On Amendments 413, 415, 415A and 415B, fees should be fair and proportionate, neither creating disproportionate barriers to entry nor disadvantaging any category of provider. I want to reassure noble Lords that there are several safeguards to prevent a burdensome charging regime. First, the Bill makes clear that the total fees charged by the body must not exceed the total costs incurred. However, I recognise that there must in addition to this be due oversight to ensure that these costs are kept to a minimum—so let me answer some points raised by the noble Baroness, Lady Wolf, the noble Lord, Lord Liddle, and my noble and learned friend Lord Mackay. The data body will be required to publish a statement showing the amount of the fees it charges and the basis on which they are calculated. Also, as part of the triennial reporting process, the OfS must report to the Secretary of State on the appropriateness of any fees charged by the designated body. We are confident that these safeguards are sufficient and that further specific requirements would be overly restrictive.

On Amendment 366, I must stress that we want to minimise the regulatory burden on providers by avoiding duplication. For this reason, it is best for the sector to have only one body designated to collect the information at any one time. However, I also recognise that there are already several sector organisations with an interest in gathering data, and I understand that noble Lords may have concerns about the availability of data and collaboration over their use. I assure Members that Clause 59(7) and (8) set out a clear expectation that the data body must co-operate with those other organisations and have regard to the desirability of reducing burdens on providers.

The noble Baroness, Lady Wolf, referred to unconnected fees. I hope I can give some reassurance that I understand the intention to ensure that fees are calculated fairly. However, I fear the effect would be to damage the interests of both the data body and providers. It would prevent legitimate overheads related to designated functions being incorporated in the annual fee and block the current practice, common to sector bodies, of charging fees varied by the number of students at a provider, which is essential to ensuring proportionate and affordable fees. With these explanations, I hope the Lord will withdraw Amendment 366.

[Lord Mackay of Clashfern]

On the Minister’s last point about connected and unconnected fees, I understand that the Secretary of State has to be satisfied that the fees charged are proportionate. On the other hand, the Secretary of State is not obliged to consider whether they are connected in any way whatever with the provider. That is the problem. The Secretary of State’s power to monitor the fees depends on what the authority is for the fees being charged. Most of the illustrations that the Minister has given are connected in some way with the provider. For example, if it is a question of assembling data, the data will include those provided by the provider who is charged—so that is connected to the provider all right. It is perfectly reasonable to charge for overheads in relation to a function connected with a provider, but charging for those unconnected with a provider seems to open up a large and rather unspecific area.

[Viscount Younger of Leckie]

I will attempt to answer the points made by my noble and learned friend. Surely this is encompassed by the safeguards that I outlined. There will be an opportunity on a regular basis, as I mentioned, to analyse and scrutinise the statement showing the amount of fees, including those that are unconnected, and how they were made up.

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[Baroness Goldie]

I thank the noble Baroness for her intervention. I fully accept that the express text may not have intended that—but we have to look at what the consequences of this new independent committee would be, and infer from that what effect it might have on the broader sector.

At the moment we have a university sector that needs to do more to support its students and the wider economy: it has built up over time to serve only parts of the country; it is not providing employers with enough of the right type of graduate, especially STEM graduates; it can do more to offer more flexible study options to meet students’ diverse needs; and it can to do more to support social mobility. It is not enough simply to ensure that all young people with the potential to benefit have a theoretical opportunity to go to university and secure a good job when they graduate.

Alternative providers are already supporting greater diversity in the sector: 56% of students at alternative providers are aged 25 or over, compared with 23% of students at publicly funded institutions. They also have more BME students: 59% of undergraduate students at alternative providers are from BME groups, compared with 21% at HEIs.

The Government are determined to build a country that works for everyone. That is why we have announced a number of opportunity areas that will focus their energy, ideas and resources on allowing children and young people to fulfil their potential. That, in conjunction with what the Act sets out to achieve—the broad vision that I think universities accept as positive for the sector—holds out hope that we are proceeding on a journey in which we can have a lot of optimism and confidence.

I note the references to skills and would stress that we are carrying out reform programmes in higher education and in technical and vocational education at the same time. This gives us the opportunity to ensure that these programmes of reform are complementary. The Government’s recently published Green Paper on an industrial strategy outlines further our vision for skills and a system that can drive increases in productivity and improvements in social mobility. We are committed to reforms that will improve basic skills, create a proper system of technical education, address regional skills imbalances and shortages in STEM skills, and make it easier for adults to retrain and upskill in later life.

One of the 10 pillars of the industrial strategy is that we will create the right structures and institutions to support specific places and sectors. In some cases, this will mean strengthening existing educational institutions or creating new ones. We recognise the need for accurate information to identify and address current and future skills shortages, and we will work towards a single authoritative source of this information. To ensure a joined-up approach, the OfS’s ability to co-operate with a range of other bodies, including the Skills Funding Agency and the Institute for Apprenticeships, will be important. Clause 58 enables that.

The important issue of part-time education was raised. The Government agree that part-time education, distance learning and adult education bring enormous benefits to individuals, the economy and employers. Our reforms to part-time learning, advanced learner loans and degree apprenticeships are opening significant opportunities for mature students to learn. The OfS must—it is not a question of should, or if it feels like it—have regard to the need to promote greater choice and opportunities for students, and to the need to encourage competition between providers where that competition is in the interests of students and employers. That is alongside the other practical support that the Government are already giving for part-time students, including providing tuition fee loans where previously they were not available. We have also recently completed a consultation on providing, for the first time ever, part-time maintenance loans. We are now considering options. The Bill already provides for the mechanisms to enable the kind of information referenced here to be gathered effectively. I hope my remarks have reassured the noble Baroness, and I therefore ask her to withdraw her amendment.

[Lord Mackay of Clashfern]

Would it be worth considering inserting the phrase from this amendment,

“emerging needs for new providers within the higher education sector”, into the general duties of the OfS in Clause 2? It might well be a mechanism for this being studied.

[Baroness Goldie]

As ever, my noble and learned friend makes a significant suggestion. I undertake that we shall reflect on that.

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The Government’s commitment to alternative student finance is not in doubt. We are the first to legislate for it, we will continue to work on it and we will make it available. In these circumstances, I beg to move Amendment 438 and urge the noble Lord, Lord Sharkey, not to press his amendment.

[Lord Mackay of Clashfern]

There are commencement provisions in relation to Clauses 80, 81 and 82, which is why, I assume, the noble Lords, Lord Sharkey and Lord Willis, have put in a commencement provision. What they have done is not inconsistent, because it says that the provision comes into force as law when the Bill is passed, and the Bill says that it will come in in 2018. This is an important difference between what the Secretary of State proposes, which is pretty open—although it seems to relate only to the Welsh aspect of the matter. So there is a point in this relationship that has to be looked into.

Amendment 438 agreed.

Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Stevenson of Balmacara]

My Lords, I think we are all slightly struck dumb by the flow of information that has come out about this. I must say I had not fully appreciated, until the Minister started speaking, exactly where she was going on this. I am still slightly confused and I shall ask three questions at the end for her to come back to if she can. As I understand it, representation has been made sufficient for the Ministers to decide that a body will be created, separate from the OfS and not dissimilar to HESA, which will carry out the functions that the noble Baroness talked about and hold data in addition, as long as that is within the purview of the OfS. There is obviously a little detail missing, because I could not find in the Bill, in the short time I had to look at it, exactly where are the powers, the bodies, the functions or the establishment of HESA—or, rather, the quasi-HESA, if it is to be that body. If I have not found it by the time we get to the end of this short debate I would be grateful if the Minister could say exactly where I will find it, so that we can check it when we compare it with Hansard.

The reason for being slightly tentative about this is not that I object to the principle—I think the principle is absolutely right. Indeed, there is a bit of a trend developing whereby the functions that were previously within HEFCE, broadly, and within a set of bodies which were set up specifically for the purpose but without statutory backing, have been merged into a single body under the Office for Students. However, we are now realising, as we begin to unpick this, that separate institutions will probably be established. Certainly, I have a later amendment which proposes that the body responsible for quality assessment—the standard of the institution as it approaches and is made into a higher education provider in England and therefore eligible to be appointed to the register—will be independent of the Office for Students. That is because I take the point made earlier by the noble Baroness, that the regulator should not be too close to the other institutions. That is a point we made about the last amendment, but we should also make sure that the regulator is not also a validator or a cheerleader for the sector. It would not be possible for a body appointed as a regulator also to be responsible for carrying out the work which it is regulating. I think we need to think again about the Office for Students. I thought this debate would come a little later in the considerations of the Committee, but we now have an opportunity to pick up at least one area of that.

If I am right that that is where we are coming from, where does this take us on the journey? It is clearly vital to the long-term guidance and the policy directions we need to take in higher education to have a clearer understanding of what the statistical background and basis of that will be. It is conventional in other areas to have separate bodies responsible for information gathering and dissemination, therefore it would be slightly odd if higher education did not follow down this track. To that extent I am absolutely on all fours with Ministers on this; we are not on a good position on that. What I lack is information about how this body is to be established and how certain it will be about its future. HESA is a creature of HEFCE, as I understand it, and therefore does not have its independent funding or constitution. If this is to create that, then we need a little more information before we can tie it off. In terms of where we are coming from, of the 24 amendments that are down in the name of the noble Viscount the Minister, I think that this is a good start and I hope that it will be endorsed as we move forward.

[Lord Mackay of Clashfern (Con)]

I want to be sure that I understand. The designated body will be able to perform some of the duties which the Office for Students has, under the Bill, if that option is taken up, but the designated body will also have responsibilities which the Office for Students does not have under the Bill at the present time. Am I right in that? If so, are the extra responsibilities that the new designated body has in relation particularly to the fixing and consideration of standards?

[Lord Stevenson of Balmacara]

I am sorry to come back so quickly but I am prompted by the noble and learned Lord to make a point. The reference he makes to the responsibilities of the OfS is not, of course, in Part 1 of the Bill as we have considered it—I think he has picked up that point. There is a schedule which contains further information, but a quick reading, which is what I was trying to do while the noble Baroness was speaking, does not seem to pick up exactly the point he has made, so I endorse it and look forward to hearing the response.