Higher Education and Research Bill

Lord Stevenson of Balmacara Excerpts

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

[Lord Lucas (Con)]

A couple of my amendments have washed up in this group. Amendment 192 asks whether the OfS will be able to collaborate with other organisations, for instance, the Times Higher Educational Supplement, which is also involved in rating universities in this way. It seems foolish not to be able to use the work that these organisations have done or, indeed, to share intelligence with them to enable them to do their job better.

The second amendment picks up a point made by my noble friend Lord Willetts. I want the OfS to be able to prompt discussion on the system of degree classification in the UK. The class of degree that people come out with from university matters a lot to them. The line between a 2.1 and 2.2 can have a very big effect on people’s careers. It is not at all clear to me that the system really operates in students’ interests so that someone with a 2.2 should be marked down to the extent they are in terms of employment. We have to have a nationwide conversation on this. Since the universities have not prompted it, the OfS should be able to prompt it. It would be a valuable thing to do. It should not be able to impose an outcome but we ought to have a serious conversation. There are obvious disadvantages in the system we have; I am not saying that I know of a better one but we ought to review it.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a good and useful debate about, as everyone has said, important issues which at the moment are not as well established as they could be in the Bill, so I hope there will be an opportunity to return on Report to get them better organised. I do not think that any one of the amendments in this group, with respect to those who have tabled them, takes the trick. This also has to be interfaced back to what we will decide to do on institutional autonomy, which to some extent is the other side of the same coin.

As the noble Lord, Lord Smith, said, the two contributions from the noble Baronesses, Lady Brown and Lady Warwick, gave us a real insight into the difficulties that will arise if we do not get this right. I do not want to be too critical of the noble Lord, Lord Lucas, who is doing his best to raise a series of interesting questions, but Amendment 192 refers to making arrangements for the rating of the quality and standards of higher education. That is exactly the problem although I agree that the amendment is more subtle in some ways. If we do not approach this with real intelligence about how we use the two terms we will run into difficulty as we go further down the track. That being said, I understand where the noble Lord is coming from. We will probably have to come back to some of the issues that he raises at a future date.

I shall speak briefly to our Amendments 131 and 136. Amendment 131 is an attempt to try to ensure that in a particular part of the Bill, in assessing the quality of higher education providers as a whole—I am not talking about the individual quality; I am falling into my own trap here—there has to be a robust system to get people to a point at which they can be registered as higher education providers. Those systems must include a consideration that the provider has in place appropriate standards that they may apply. I apologise for the typo in the last line of the amendment which should read “providers”.

Amendment 136 tries to give a slightly more detailed interpretation of what a threshold standard is and relates it to,

“a student undertaking a higher education course provided by it, is sufficient to merit the award of a degree or other higher qualification”.

I agree with all noble Lords who have said that the breakdown here is between the sector, which is responsible for the threshold standards, and the necessary quality assessment, which should be done by an external body—it is currently done by the QAA. I also accept, as the noble Lord, Lord Willetts, and others have said, that the QAA has a very important role, which we will be revisiting in relation to establishing the conditions under which a body gets on to the register, therefore becoming a higher education provider, and is eligible for access to student support.

Listening to this debate, I was struck by two things. First was the sense that we are all grouping around a particular area which needs to be unpicked. As I said, no one of these amendments does it exactly, but we know what we are looking for. Secondly, the Government need to signal—if they can—their willingness to look at this again on Report. I welcome what the noble Viscount said in his opening remarks: there will be a statement or a further chance to come in and discuss how we are going to make sure that, as it leaves this place, the Bill has appropriate wording for institutional autonomy, which is at the centre of all we are discussing.

[Viscount Younger of Leckie]

My Lords, this has been another helpful debate. I stress that I have listened carefully to the arguments made today on this issue. I reassure the House that, based on the strength of feeling expressed here, the Minister for Universities and Science and I will actively consider what more we can do to address the concerns raised about the Bill in relation to standards. I agree with the noble Baroness, Lady Warwick, that this matter is an integral part of the Bill and I understand its significance. We may want to return to this on Report. I hope that reassures the noble Lord, Lord Stevenson, too.

[Lord Stevenson of Balmacara]

The Minister has now used a third variation. I think he is trying to say that this is an issue which will come back on Report. We can do it or he can do it, but if we agree that it is something we will be discussing we do not need to hedge around it. It is clearly an issue that we will want to return to in future. If the Minister can confirm that, it will calm us all down considerably.

[Viscount Younger of Leckie]

It is amusing playing around with words. We may, indeed, want to return to this on Report: I would not want to go any further than that. However, I hope that the warmth of the words gives an indication of the direction we wish to go in. It is right that I keep my comments on this group of amendments relatively brief. In addition, I am happy to write to noble Lords on this matter to provide further clarification. I hope that noble Lords will have received quite a long letter from me today, based on the last day in Committee. I hope that all the points raised were helpful.

My noble friend Lord Lucas made some helpful comments on Amendment 192. I reassure him that the OfS can already collaborate with others as part of this assessment. HEFCE, which currently administers the TEF, has collaborated with the QAA and others without specific legislative provision allowing them to do so. HEFCE currently undertakes an important role in assessing standards as part of its quality duty. As my noble friend Lord Willetts said, standards are currently part of the QAA’s quality code. However, I acknowledge that the current lack of an explicit mention for standards has created uncertainty. That is why standards are mentioned on the face of the Bill. I hope we can all agree that it is essential that the Office for Students can ensure that providers are genuinely offering qualifications of a suitable standard to be considered higher education, even if we need to discuss precisely how we have achieved that within the current drafting.

The noble Baronesses, Lady Brown and Lady Garden, spoke about separate quality and standards. I understand the points raised on the difference between the two. However, decoupling quality and standards is not the approach taken by the sector in the UK quality code. Any assessment of quality and standards may need to consider both in order to protect the value of a qualification. However, the OfS can apply a condition on quality or standards: it does not have to apply both. I hope this provides some helpful clarification on that front.

On degree classification and grade inflation, I agree that the sector needs to do more here. We are committed to supporting them in this: HEFCE’s work with the Higher Education Academy to implement approaches to training external examiners, and the teaching excellence framework, which will recognise providers that are genuinely stretching students and delivering good outcomes for their students, are examples of important actions in this area.

We do not want to undermine the prerogative of providers in determining standards. As the noble Baroness, Lady Garden, said, this is about ensuring that all providers in the system are meeting the threshold standards that are set out in a document endorsed and agreed by the sector, as she mentioned—Frameworks for Higher Education Qualifications. I reassure the Committee that there is no intention to rate standards in the TEF. However, part of excellence in teaching is ensuring that students are stretched to achieve their full potential. One of the TEF criteria is, therefore, the extent to which course design, development, standards and assessment are effective in stretching students to develop independence, knowledge, understanding and skills that reflect their full potential. For this reason, we believe that the inclusion of standards is crucial to ensuring that the TEF can make a true, holistic assessment of teaching excellence.

I repeat that the standards that are regulated against should be, first and foremost, standards that are set by the sector, rather than prescribed narrowly within legislation. As I have said, I will be reflecting carefully and expect that we will return to this issue on Report. I therefore ask that Amendment 63 be withdrawn.

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[Lord Willetts]

My Lords, briefly, the thought behind the amendment makes a lot of sense. Currently we have had for decades close exchange between Ministers and HEFCE; it goes both ways, and the point I tried to make earlier is that we should not regard all that as equivalent of passing a statutory instrument through Parliament. It is important that Ministers can communicate their concerns to HEFCE and its successor bodies, but it is equally important that the communication goes the other way. I hope that we may hear from Ministers that they believe it will still be possible for these communications to happen, and anything that assures us that that flow of ideas and information in both directions will continue in the new dispensation will, I think, be welcomed by noble Lords on all sides of the Committee.

[Lord Stevenson of Balmacara]

My Lords, I agree with the noble Lord, Lord Willetts, on the amendment. It is a good one, and although it may not be high profile it is certainly worthy of further consideration. If there is a defect in the current drafting, the Minister may wish to look at it before we get to Report. He can give one of his equivocal answers if he wishes, but of course the more clarity, the better.

I was not going to speak in particular about the amendment, although I was interested in the substantive clause to which it is applied. The current wording says:

“Guidance given by the Secretary of State to the OfS which relates to English higher education providers must apply to such providers generally”—


so far I am with the drafting—

“or to a description of such providers”.

At that point I got completely lost. When the Minister responds, perhaps she could give me a better—perhaps Scottish—interpretation of this. Clearly, the Scots are much sharper on these matters than English drafters. As I understand it—and I normally understand draft legislation relatively well—guidance must apply to the providers, which are defined as “English higher education providers”, generally. That is quite fine. I accept that. However, I do not get the next bit:

“or to a description of such providers”.

To whom or to what does that description apply?

[Baroness Goldie]

My Lords, I fully understand the motivation behind this amendment, which seeks to give the OfS an independent voice in the future policy-making process. The OfS, as the principal regulator of the HE sector, will have some level of relationship with every registered provider and will gather a comprehensive set of information about the sector. Indeed, as the operator of the register, the OfS will engage closely with new market entrants, and because of its duty to monitor the financial health of the sector under Clause 62, it will have a clear and detailed understanding of how the market is operating and developing. I think that was a point of particular concern to the noble Lord, Lord Storey. Because of its duties to operate in the interests of students under Clause 2, it will also have a clear understanding of demand-side issues.

No sensible Government would want to make major policy decisions on the registered HE sector without engaging with the OfS, and we confidently anticipate that the OfS will be involved, where appropriate, in the policy-making process, just as HEFCE has been. There is nothing in the Bill which prohibits the OfS from giving advice to government on matters within its regulatory remit and there is no reason to suggest that it would be constrained in giving such advice or not be able to provide open and honest analysis. My noble friend Lord Willetts was concerned about whether the OfS will be able to give advice to the Secretary of State and I hope that observation reassures him. Further, there is also a specific duty in Clause 72 for the OfS to provide information and advice to the Secretary of State when it is requested.

I do not think that it is necessary to give an additional explicit statutory power in the Bill for the OfS to be able to give unsolicited advice to the Secretary of State. Nor do I think it would be wise, as I believe there could be unintended consequences of doing that. It also could lead the OfS to spread its limited resources too thinly across its core role of delivering a fair and effective regulatory system and additional role of developing policy advice. In addition, the sector is well represented by a large range of representative bodies, mission groups and other organisations, which engage in debate and dialogue with the Government about policy decisions. It is the Government’s aim that the OfS remains independent of the sector if it is to regulate providers fairly. The OfS will also in part be funded by registration fees paid by registered providers, so it will be held to account by them, and must operate as efficiently as possible.

I am confident that the provisions in this Bill will make the OfS an indispensable source of expert analysis and advice on which the Government will want to draw in the formulation of future policy. In these circumstances, I ask the noble Lord to withdraw his amendment.

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[Lord Stevenson of Balmacara]

My Lords, this is a topic that came up on the first day in Committee when I was asked a question, which I was unable to answer, by the noble Baroness, Lady O’Neill, as to what the definition in that amendment would have meant in terms of incorporation, location, geographical reach, et cetera. These are issues that I think are within, although not explicit in, this amendment.

I think the genesis of this amendment, which was well explained by the noble Baroness, Lady Garden, is the worry that nowhere in the text of the current Bill is there an inclusive notion about how our education is expressed. There would be some value in having one, not because of any particular concerns about status or legal position but more to ensure that in seeking competition over quality, for instance, or more innovation, we are not by accident or lack of design excluding those who might be effective in terms of that operation. It is perfectly possible, as the previous speaker clearly said, that much of the innovative work that may come out of the degree-level apprenticeships will be done outside the universities and current colleges of higher education. It may even be done outside colleges of further education or in the workplace and other areas.

We have later amendments that will attempt to introduce an alien concept into much of UK higher education—and possibly more particularly, into English higher education—by getting away from the hegemony of the three-year undergraduate degree. It is always resisted by policymakers that the concept of a university course that they have in mind is one that is entered into by people who have just reached their 18th birthday, have left school and will study perfectly for three years and then go off to have wonderful careers elsewhere while using the skills they have acquired, whereas the truth, of course, is that higher education in its widest definition is extraordinarily broad and diverse, and rightly so. Indeed, one of the problems that we all hoped would be solved by this legislation was to try to bring in some ways in which we could see a more discursive route—if that is not too much of a word—through higher education for those who wish to stop halfway through, take a job, reflect on what they have learned, go back in and perhaps do something else. All the things we see in other higher education systems—such as multiplicity of access and different routes through experience as well as academic learning, both of which are valued and built in to the solution—are not the cornerstones of what we currently see in our higher education system. There will be difficulties in applying them, problems in assessing them and extraordinary circumlocutions, I suspect, in trying to incorporate them into the present arrangements, but come they will. Even if new technology was not going to be a major player in terms of what we are doing for the future, the changes that would be necessary to accommodate young people who are starting their journey in higher education would mean that we would have to think about this again. This is a long way away from the exact wording that we are considering in Amendment 72, but that proposed new clause would at least give us an inclusive version of the current scene in our education and I can commend it for that.

The question raised by the noble Baroness, Lady O’Neill, is important, and we would still like to hear from the Minister. If he is not prepared today to give us a response on this narrow point of where “English higher education providers” takes us in terms of provision of higher education, can he write to us as soon as possible? I think it will influence how we take forward this particular matter.

[Viscount Younger of Leckie]

My Lords, I can understand the motivation behind this amendment. At the outset, I would like to address a point raised by the noble Baroness, Lady Watkins, when discussing definitions. As she will know, we want to encourage innovative approaches, and the question of degree apprenticeships very much comes into that. We wholeheartedly support the need for innovative provision and I want to assure her that the Government are fully committed to degree apprenticeships—this is captured by the OfS’s duty on promoting choice. In the absence of the noble Baroness, Lady Wolf, I would be happy to further discuss this amendment outside the Chamber with her or any other speaker in today’s debate. For now, I shall keep my comments relatively brief.

I fear that this amendment inadvertently goes too far in that it seeks to extend the regulatory coverage of the OfS to all higher education providers as defined by the proposed new clause, including those not on the register. The OfS must focus its resources and regulatory activity where public money is at stake. Extending its duties in this manner—for example, in promoting quality, choice, opportunity, competition, value for money and equality of opportunity—increases the OfS’s regulatory purview and risks decreasing its ability to focus attention where it is needed most; that is, on monitoring those institutions which pass the regulatory entry requirements to the OfS register.

We discussed definitions at some length last Monday. The Bill uses “higher education providers” as a blanket term to mean any provider of a higher education course as defined by the Education Reform Act 1988, including further education colleges providing higher education. This is already defined in the Bill in Clause 77. I very much noted the question raised by the noble Baroness, Lady O’Neill, and which was alluded to by the noble Lord, Lord Stevenson, on clarification of what “English higher education provider” means. Although I have, I hope, reassured noble Lords that it is defined in Clause 77, I do feel another letter coming on to clarify to the House exactly what we mean by that. I hope that that is of some help. Therefore, we believe that introducing a new definition is unnecessary and could have unintended consequences.

I understand the sprit in which this amendment has been tabled. However, the OfS’s regulatory role is defined by those providers that it registers. I respectfully ask the noble Baroness to withdraw her amendment.

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Moved by

[Lord Stevenson of Balmacara]

74: Clause 3, page 3, line 9, leave out “may” and insert “must, after a period of consultation,”

[Lord Stevenson of Balmacara]

My Lords, this is a relatively brief group of amendments that are primarily concerned with drafting issues, although I would like to make a substantive point about consultation with respect to Amendment 428.

In moving Amendment 74, I want to draw the attention of your Lordships to the subsection referenced, which is at page 3, line 9. Noble Lords may not have a copy of the Bill with them, but it is a very short subsection and I will read it out so as to not to trouble noble Lords with having to fuddle with their papers. It reads:

“The Secretary of State may by regulations make provision about the information which must be contained in an institution’s entry in the register”.


The question on whether or not these regulations will be negative or affirmative needs to be resolved, and I would be grateful for confirmation from the Minister when he comes to respond as to which variety we are talking about here. However, assuming that there will be regulations in a secondary legislation format, the question that then arises is: why is it a discretionary power?

All too often in your Lordships House we question whether the wording of the statute should be “may” or “must”. This subsection contains both “may” and “must”—it allows the Secretary of State to require information which “must” be contained in an institution’s entry in the register. Noble Lords will understand why that is the case; registers would be worth nothing if they did not contain, or had a discretionary amount of, information, so the register would not be complete, and in that sense it is a “must”. However, I am concerned about the wording that the Secretary of State “may” by regulations make provision. Does that mean that the Secretary of State has an opportunity not to make regulations about those provisions? I would be grateful for confirmation on the record from the Minister.

Amendment 77, which seeks to amend Clause 5(5), is again a drafting issue. Noble Lords may feel that I am obsessed by that, but every now and then it seems important to focus on the wording. This subsection says:

“Before determining or revising the conditions, the OfS must, if it appears to it appropriate to do so, consult bodies representing the interests of English higher education providers which appear to the OfS to be concerned”.


That is a double concession to the possibility that the OfS has discretion in these matters. Surely, it is always appropriate for the OfS, given its responsibilities, to consult bodies representing the interests of English higher education providers. The Minister may well say that it is inconceivable that it would not do so, but in that case why give it the discretion not to? There is a case for revising that drafting. It has a “must”, which I like—“the OfS must”—but I do not think the legislation can qualify a “must” by saying “if it appears to it appropriate to do so”. It is almost certainly always appropriate to consult before a body as important as the OfS determines or revises its conditions.

Amendment 428 proposes that, under Clause 69, the OfS must consult bodies representing the interests of English higher education providers, including staff and students, as well as those who appear to the OfS to be concerned. There is a discretion there, which I am not challenging to the same extent, but the question whether the providers will be sufficient to represent the staff and students’ interests which may be affected seems to me to be important. I would be grateful for the Minister’s response. I beg to move.

[Viscount Younger of Leckie]

My Lords, I assure the Committee that there is a clear obligation on the OfS to consult when it first determines the initial and ongoing registration conditions and on significant subsequent changes. This will be taken forward through the consultation on the regulatory framework under which the OfS will operate. Clause 69 is clear that, before the OfS can publish its regulatory framework, it must first undertake a wide-ranging consultation.

Subject to the passage of the Bill, the consultation on the new regulatory framework will take place in autumn 2017, so the OfS can begin accepting and assessing applications from new and existing providers in 2018, in time for the 2019-20 academic year. I hope the noble Lord, Lord Stevenson, has taken note of this timetable. We mentioned it earlier in Committee—I think on the first day. We are deliberately taking our time over the introduction of the new regulatory framework and regime. We are not rushing into this. The OfS must have time to consult fully and take on board the views of a very wide range of stakeholders. The new regulatory approach to higher education will be very carefully introduced.

Clause 69 places a very clear duty on the OfS to take into account representations from every part of the sector. It makes provision for the OfS to consult any persons that it considers appropriate and is drafted in such a way that it gives the OfS discretion to consult higher education staff.

On the question of students, which the noble Lord, Lord Stevenson, raised, we will look to the OfS strongly to encourage providers to engage and consult with students and other stakeholders as a matter of good practice. However, we do not believe that it is right to be prescriptive further than that.

The OfS register will cover all providers regulated by the OfS and will share some similarities with HEFCE’s register of providers. However, whereas HEFCE’s register is primarily a regulatory tool, the OfS register is aimed squarely at students. I reassure the Committee that, although the Bill states that the Secretary of State “may” make regulations, this is standard legislative drafting. It is not meant to imply that the Secretary of State will not do so; I can assure noble Lords that she will. I can also assure noble Lords that the Government firmly expect the OfS to consult on how it will run the register. With that explanation, I ask the noble Lord to withdraw his amendment.

[Lord Stevenson of Balmacara]

I thank the Minister for his response. I notice that he did not confirm whether the regulations would be affirmative or negative. Perhaps he could write to me on that point—it is not a significant thing. I think his wording is sufficient to reassure me on the main point. I am never going to win this “may”/“must” battle, but I am not going to stop. I beg leave to withdraw the amendment.

Amendment 74 withdrawn.

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Moved by

[Lord Stevenson of Balmacara]

75: Clause 5, page 4, line 9, at end insert—
“(1A) Subject to subsection (1C), initial registration conditions of all providers under subsection (1)(a) must include a requirement that every provider—(a) provides all eligible students with the opportunity to opt in to be added to the electoral register through the process of enrolling with that provider, and(b) enters into a data sharing agreement with the local electoral registration officer to add eligible students to the electoral register.(1B) For the purposes of subsection (1A)—(a) a “data sharing agreement” is an agreement between the higher education provider and their local authority whereby the provider shares the—(i) name,(ii) address,(iii) nationality,(iv) date of birth, and(v) national insurance data of all eligible students enrolling or enrolled (or both) with the provider who opt in under subsection (1A)(a);(b) “eligible” means those persons who are—(i) entitled to vote in accordance with section 1 of the Representation of the People Act 1983, and (ii) a resident in the same local authority as the higher education provider.(1C) Subsection (1A) does not apply to the Open University and other distance learning institutions.”

[Lord Stevenson of Balmacara]

My Lords, in the absence of the noble Baroness, Lady Royall, and with her consent, I shall introduce her amendment. I am grateful to the noble Baroness, Lady Garden of Frognal, and the noble Lords, Lord Judd and Lord Lexden, all of whom are in their places, for their support.

This amendment was moved in Committee in another place by my honourable friend Paul Blomfield. It raises an issue he has been concerned about and has experience of, in that he sits for a constituency in Sheffield which is alleged to have the highest number of students who are registered to vote. The underlying issue is the move to individual electoral registration under which all of us are required to sign up individually to vote. This has had a huge impact not only on family households, where many people have dropped off the register, but on the practice which had been going on for many years in universities. The standard way in which that operated was that universities which had halls of residence, or at least organised accommodation for students, registered them en bloc. That, unfortunately, has been outlawed and there is a real danger that students will not be on an electoral register—not necessarily the one where the university is, but any one.

That has two implications. It is important that people should be registered to vote. If you do not have a chance to vote, you are not a part of the overall democratic process. That is a bad thing, particularly for students and young people, who should be brought in at the earliest opportunity—perhaps even younger than today—in order to ensure that they get into the habit of voting and participate as a result. It is a particular issue for universities, which will not have the voice of those who are participating at university in the wider democratic process. There are two sides to this.

If students are not registered in the university or higher education institution they are at, those constituencies will not only be disadvantaged in terms of the representation of people who live and operate in those places but will shrink, which will affect the size of constituencies and therefore have an impact on the way in which they are drawn up. Many issues arise from the initial proposal.

The background to the particularity of this amendment is that attempts were made to see whether universities could help and assist in this. It was found early on that universities already collect most of the data needed to register students. All that is needed is a national insurance number. This is not routinely collected by universities because students are not employed there.

Obviously there are ways in which one could pose questions to students at points in the process of being at university without being intrusive. The example I have here is from the University of Sheffield—but there are other institutions—which worked with the city’s electoral registration officer and introduced questions for students at the time they were registering or reregistering for their courses. The first question was, “Do you wish to register to vote?”. If they said no, no further action was taken; and if they said yes, they would like to register to vote, they had to provide their national insurance number. The results were amazing: 64% of students opted to register to vote within Sheffield, although there were difficulties in getting some students to find their national insurance number—a problem not confined to students; I can never remember where mine is. I have now memorised it because I got so cross about being unable to complete forms online at the time I wanted to do them. I now have it and can give it to you now, if you want it, without breaching any personal information, of course.

The Cabinet Office then made a change and issued new guidance, which meant that it did not have to have a national insurance number. This was a sensible and unexpected move in support of the process by the Cabinet Office, and I am delighted it happened. We have an opportunity to help in that process. It has a more general particularity than just this Bill, but it is an opportunity that we should take to do it.

The amendment would create an opportunity within which universities could help participation using their function, not as a public sector body but as a public body with wider interests in the public well-being, in order to achieve the good outcome of having more people registered to vote. I beg to move.

[Baroness Garden of Frognal]

My Lords, I have added my name to this amendment for the good reasons set out by the noble Lord, Lord Stevenson, to ensure that all eligible students are provided with an opportunity to opt in to the electoral register at the location in which they are studying. Since I have been in the Chamber I have been handed a helpful briefing from the Cabinet Office on this very amendment, which points out that as part of the Government’s Every Voice Matters campaign, the Minister for the Constitution is holding a series of round tables, including with the higher and further education sector, to assess what barriers there may be to electoral registration and what the Government could do to address them, so this issue is under active discussion.

As the noble Lord has said, under the old system of block registration, universities could go quite some way in assisting their students to become enrolled, but under individual electoral registration that has ceased to exist and the focus is on individuals to register. The benefit is that this system is more resilient to fraud, has a reduced risk of a student being registered at two locations, and—which I think is rather more important—has a reduced risk of a student being able to vote at several locations. But as we know, when someone is moving house, registering to vote is a low priority and many people realise that they did not get around to registering only when it comes to election time and it is already too late. Analysis by the Electoral Commission shows that areas with a high concentration of certain demographics, including students, private renters and especially young adults, where people move on a regular basis are particularly in danger of having low registration numbers. It is therefore important that special care is taken to prevent at-risk groups failing to register and have their say at an election.

We are well aware that universities already encourage students to register and vote, as the noble Lord, Lord Stevenson, spelled out. Sheffield has been successful in increasing the number of students registered and many other institutions are already taking steps to encourage young people to ensure that they are on the register. Surely it is vital that the student voice should be heard in the democratic process, and that young people should get into the habit earlier rather than later of making their voices heard in elections. For all those reasons, I hope that favourable attention will be given to this amendment to try to make sure that as many students as possible are both registered to vote and then use their vote.

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[Lord Stevenson of Balmacara]

My Lords, I am afraid I was a bit disappointed in the noble Baroness’s response to the amendment. Given the widespread support for this measure and the wider context which many noble Lords gave for that, as well as the willingness to try and spread the word and get people interested in the electoral process and all the other matters that she referred to in terms of other programmes that are going ahead, this would seem to fit in very well. In fact I felt it was rather a tawdry list. To talk about this being a deregulatory Bill is just a complete nonsense: it is a re-regulatory Bill, and indeed it gives new powers to bodies that previously have hidden in darkness. The idea that espousing this as a deregulatory Bill means that she has an excuse not to bring forward a proposal in this area is a little rich.

At the end of the day, the Minister’s figures were instructive: 60% may well register at home, but that leaves 40% who do not, and 40% of 600,000 students is a lot of people who are not going to be able to vote. We heard from the noble Lord, Lord Smith, what happened on the ground in Cambridge on 23 June. This is not satisfactory and I am sure it is something we will want to return to on Report—I can give that assurance unequivocally. I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

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[Baroness Brown of Cambridge]

My Lords, I want to further emphasise the importance of mental health support to the areas of access and progression. We appropriately attract more students who do not come from a family background where higher education is the norm, who do not have the support from home to ensure that they understand the experiences they are having and the ups and downs of their university careers. As we stress in the Bill, we want to see those students progress and succeed in their degrees. For this to be successful it is critical that universities provide mental health support to their students.

[Lord Stevenson of Balmacara]

My Lords, this is a rather important measure which I hope will be reflected in the Minister’s response. On parity of esteem, one would want the same approach to mental and physical health given by professionals and those who care for others to spread into the university sector. I suspect that one of the arguments used by the Minister will be that this is something which all citizens—we should not make a special case for students—should be able to access wherever they are and therefore wherever they study. However, the point has been well made that there is something significant about the process of being at university that raises the question of whether there has to be additional provision. It may well be, as the noble Baroness, Lady Brown, said, that access and progression measures are ones where this might find the most obvious hook. That issue will probably be dealt with by the Minister when he responds.

My question is slightly different. This issue of mental health support services being a requirement of the OfS to place on providers which offer students and staff positions within their institution is of a quasi-regulatory nature. Will this be something that will inevitably come to the OfS because if not, I imagine it will come to the CMA at some point? The CMA as currently configured will be the regulator under which most OfS activities will be supported, and will be there to take action presumably if the OfS does not do that. Therefore, it might well be that there is a regulatory bite on this issue which we are perhaps not seeing yet.

I mention that because later amendments—Amendment 110 onwards, in the name of the noble and learned Lord, Lord Wallace of Tankerness—refer to protected characteristics. How the equality legislation plays within the university sector and whether the bodies that are currently supervising and regulating it are aware of the implications will be an issue that we will pick up in some substance. It could be a game changer in terms of how universities are currently configured and how they will operate in the future as these regulations become more of the part and parcel of things. The narrow point made by the noble Lord, Lord Storey, and supported by others who spoke in the debate, is still a very important one and should be dealt with on its merits. I look forward to hearing the Minister’s response.

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[Baroness Brown of Cambridge]

My Lords, I will move Amendment 82 and speak briefly to Amendments 84 and 88, in my name and that of the noble Baroness, Lady Wolf. These amendments are aimed at avoiding unnecessary bureaucracy, both for the Office for Students and for providers, by helping to ensure that the mandatory requirements of the OfS, set out in Clause 8, are both reasonable and proportionate. In the Bill, governing bodies must notify the OfS of any change that affects the accuracy of information in the register. We suggest that governing bodies might notify the OfS of any change that materially affects the accuracy of such information. We are sure that the OfS does not want to know about full stops and commas.

Similarly, governing bodies must provide the OfS with such information as it or one of its designated bodies “may require”, and we suggest inserting “reasonably” so it becomes information that the OfS or its designated bodies “may reasonably require”. I hope the Minister will feel able to support this reduction in potential bureaucratic load. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, these are sensible and appropriate amendments for the Minister to consider. They are there because of a feeling that the balance between what is reasonable and what is bureaucratically required may have got slightly out of proportion in the drafting. There is not much in them, but a few additional little words would make a huge difference to how institutions have to operate in the regimes within which they work. When the noble Baroness responded to an earlier amendment, she said that it was important for the OfS to be seen as independent of the institutions to which it relates. Because it is a regulator it would be inappropriate for the OfS to be engaged in too much detailed negotiation and discussion, so it would not be appropriate for it to get involved itself in assessing what type of material is done. It would therefore be quite appropriate for the drafting to reflect a sense that there is a stop in the broader flow of information to only those things which are material, important or relevant. I strongly support the amendment.

[Viscount Younger of Leckie]

My Lords, the mandatory registration conditions placed on all providers are important and it is right that they are being debated. While I understand the reason for these amendments, existing provisions in the Bill provide sufficient protection for providers from unnecessary or unreasonable requests for information; the amendments are therefore unnecessary, but I will give some fuller explanations.

A key element of the Bill is that the OfS must act in a proportionate manner when formulating and exercising its regulatory powers. In accordance with Clause 2, the OfS must have regard to the principles of best regulatory practice including the principle that regulatory activities must be accountable and proportionate. As such, I can provide noble Lords with an assurance that any information the OfS requires for inclusion in the register will be restricted to that which is necessary for it to perform its functions or to enable students and others to make informed choices. We anticipate that a provider’s entry in the register will be factual and will include, for example, the provider’s registered name, the addresses of the governing body and the registered locations at which courses are delivered. We also anticipate that it will include the category of registration of a provider, whether that provider is subject to a fee limit and details of any quality reviews that have been undertaken. The Secretary of State will make regulations setting out the information to be contained in an institution’s entry in the register. I hope this reassures the House that the OfS will not seek excessive or unnecessary amounts of data from providers and, therefore, the requirement to notify the OfS of changes will not be frequent or onerous. Even then, the failure by a provider to notify the OfS of a change of detail would not necessarily, in itself, lead to sanctions. It would need to adopt a proportionate response taking into account the subject matter and the nature of the omission.

I turn to data that the OfS may request to perform its functions. Once again, proportionality is key here, as described in Clause 7. This stipulates that the conditions of registration, both initial and ongoing, must be proportionate to the degree of regulatory risk the provider presents. So the OfS must ensure that its requests for information are reasonable and proportionate. In respect of information that the OfS may require to enable publication of English higher education information, Clause 59 states that the OfS, or the designated body, must have regard to the desirability of reducing the burden on providers of collecting information and to the availability of data from other sources. The OfS must also consult higher education providers and persons who represent, or promote the interests of, students and employers. This is to ensure that the data being requested are of demonstrable benefit and have the support of the sector and students. This should ensure that providers will only be subject to requests for information which are judged by the sector as adding value.

That was a little bit of a lengthy explanation but I hope that the noble Baroness and the noble Lord, Lord Stevenson, can agree that there are a number of important controls in place and that the noble Baroness will withdraw the amendment.

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[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.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Stevenson, and my noble and learned friend Lord Mackay. To answer the specific point raised by the noble Lord, Lord Stevenson, about where all this appears in the Bill, my understanding is that Clause 59 and Schedule 6 cover the duty to publish English higher education information, as originally drafted. We are clarifying and expanding the rules and data, by the amendments to which I have just spoken, to build on what is provided for in this core clause and in Schedule 6. My noble and learned friend Lord Mackay of Clashfern raised a fairly technical issue and I hesitate to give a full response at the Dispatch Box in case I get it completely wrong. With his approval, I shall write to him on that issue.

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The only people who have that information are those in UCAS and, so far as I can discover, currently they do not release it. The Bill specifies what the Government wish UCAS to make available for research and, to my mind, that should absolutely include every detail of the way that students use the site so that researchers can really get their teeth into how to do better for the segments of society that we do not think we are doing well enough for at present. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, I apologise for the delay in getting to my feet, but I was just wondering whether others with more direct experience of current university arrangements wanted to comment.

I have listened very carefully to the noble Lord, Lord Lucas, and his very interesting disposition about the information needs. I could see where he was coming from on his request for research materials. That was a good point, which may well be of value in later years. If we can find out a bit more about the processes that are going on, I do not think anybody would object to that.

Obviously, there are boundaries around personal information, personal choices and other matters, but his general point was that we do not know enough about the choice matrix that students go into. Particularly as we move to a more market-based economy, that must be the right decision. I could see where he was coming from on that, and I broadly support that, although I have some reservations about some of the detail he was looking for.

I have raised this point before in Committee—and will come back to it, whether in Committee or on Report—about where the boundary is between the Office for Students and the CMA. The Competition and Markets Authority has been doing some work on universities, as I am sure the Minister is well aware. Indeed, several of the universities—including one of which she is an alumna, I think—were required to give undertakings to the CMA about the sort of information that should be available, under the Consumer Rights Act 2015, to provide the appropriate level of assurance about the information that is required in decision-making. As one of the staff of the CMA said, the choice to go to university is an expensive “one-off decision” for many people—£50,000 seems to be the direct cost that will be involved in going to university, and that can either be paid directly or borrowed. Clearly, that is a significant amount of money, and the consumer rights issues involved in the decision to apply and then receive an offer of a place at university need to be clear in general terms. We must also work out—and I do not see it well expressed in the Bill—where the OfS has responsibilities and where the CMA has responsibilities. Is it, for example, in the Minister’s mind that the OfS will take over from the CMA the extensive series of undertakings that are now being sought from a number of universities up and down the country? I raise that point because I think it is at the other end of the area that the noble Lord, Lord Lucas, was beginning to mine. I will come back to that in a moment.

I am afraid that the rest of what the noble Lord said left me a bit troubled, and I hope that the Minister will respond in the negative to them. I do not think that it is appropriate to begin to look at matters such as relationships between staff and students, even if that information were available. I am quite surprised that he thinks that way, and I think that there are a number of other things in this area which would not have really worked. However, on the other hand, there are some which might fit into either of my two categories relating to the decision points within the process of accepting a place at university, in which the CMA will have responsibility, and the issue of research.

The CMA material is really interesting. The undertakings that it has sought broadly lie in the area of information around the costs of courses and the type of engagement with staff that will be available. I have heard, although I have not been able to find it in my research in preparation for this debate, that when requirements for courses are advertised, for example in prospectuses, the student applying to that course should be able to establish, at the time of the application, which staff members are teaching the course, how many contact hours they will have and what sort of contact will be involved. Such matters have not been routinely dealt with by universities very well, although I am sure that in the round they do them well, but I do not think that many universities—certainly not the one that I worked at—would have been able to tell you, nine months before the start of term, which teachers would be teaching which courses. There would be a standard and it would be an appropriate standard, but it would not be a named person. However, the CMA seems to want institutions to name the individual who will be teaching the course. It may be right, and I am not saying that this is right or wrong; I am just saying that it is an interesting move. In a sense, that is beginning to go down the route that the noble Lord, Lord Lucas, has gone down. To that extent, we are at the beginning of a journey. The CMA says that it is making progress and that the change in responses from institutions between 2015 and 2016 has been quite significant, so clearly it is having an impact right now.

To go back to my earlier point, where exactly will that rest after this Bill becomes law? I would be interested to have any advice that the Minister can give on this matter. But, wherever we are, we are clearly in a different world, in terms of consumer rights and responsibilities, than we were five, or even 10, years ago. We are definitely in a situation where there are existing contractual rights and responsibilities and, as the CMA says, at the end of the day much of what it is currently doing will have to be tested in the courts, because only the courts can determine whether what is being offered is within in the law or needs to be challenged.

These are responses to the amendments which have been put forward by the noble Lord, Lord Lucas. I hope that the Government will not give a blanket response, because there are bits in there which should be picked up and taken on board. However, there is also this underlying question of what the CMA is doing here, where its responsibilities will begin and end and who will take over the burden of the extra responsibilities. I look forward to hearing the Minister’s response.

[Baroness Goldie]

My Lords, I thank my noble friend Lord Lucas for bringing forward these amendments, which seek to expand the scope of the transparency duty. His engagement is greatly appreciated and I wish to reassure him that we will never tire of hearing from him, as was his apprehension. These amendments have raised a number of important issues. I would like to thank the noble Lord, Lord Stevenson, for a very reflective and helpful contribution to the debate.

As set out in our White Paper, the purpose of the transparency duty is to shine a spotlight on institutions that should be going further to widen access and participation. Our intention is for the duty to apply to all providers whose students can claim student support. This is in keeping with our proportionate approach to regulation. Given the number of amendments, rather than discuss each of these at length, I would like to offer a meeting with my noble friend Lord Lucas to discuss these in person. I would, however, like to touch upon some of the key points raised here.

My noble friend raised an important point about access, with his concern that in certain months a student’s chances of access are improved. I refer him to the UCAS equal consideration deadlines. UCAS states explicitly that the undergraduate admissions service uses two equal consideration deadlines: 15 October and 15 January. An equal consideration deadline means that universities will treat all applications received by that deadline with equal priority. I hope that does reassure my noble friend.

I can assure your Lordships that I share the aim of ensuring that students and prospective students can access all the information they need. That is why we are introducing the teaching excellence framework to provide students with robust, comparable information on teaching quality. From this year, institutions will be asked to provide detailed course information, including contact hours, on their websites. These links will be added to Unistats—the official website for comparing UK higher education course data. This will provide a central resource for students easily to compare different institutions.

My noble friend Lord Lucas raised the point that students need to have all the relevant information, such as contact hours and so on, and that the OfS should be given the powers to require that. I reassure him that our reforms aim to ensure that all students have all the right information in the right format and time to help them make decisions which are, in turn, right for them. Clause 59, which we have already referred to this afternoon, establishes a duty for the OfS—or, where there is one, the designated data body—to publish appropriate information about higher education providers and the courses they provide. When determining what information to publish, the OfS must consider what would be helpful for current students, prospective students and registered higher education providers. In deciding what to publish, the OfS must periodically consult with interested parties, including students, to ensure the approach for information still meets their needs.

Amendment 99 raises the question of relationships on campus. The Government are keen for universities to take their responsibilities around sexual harassment seriously. We expect every institution to put in place the right arrangements to ensure the welfare of their student body and continuously work to improve them. That is why we asked Universities UK to see what more could be done to tackle harassment on campus. We must now ensure that the task force’s work goes on to make a real difference to students.

On Amendment 100, HE providers, as autonomous bodies, are best placed to decide how to support the mental health of their student population. That said, this is a very important issue that the sector needs to grapple with. I am pleased to note that Universities UK recently established a programme of work on well-being in higher education to support and strengthen the work that universities are already doing in this area.

On Amendment 102, academic freedom is central to our higher education system. The Bill introduces new protections for academic freedom, making the Secretary of State’s powers to guide and direct the OfS, and set conditions of grant made to the OfS, subject to a general duty to protect academic freedom. It includes specific areas in which the Secretary of State may not interfere, including the content of courses and the criteria for appointing academic staff and selecting students. On Report in the Commons, the Government introduced a further protection prohibiting the Secretary of State from requiring the OfS to operate in a way that causes the opening or closure of particular courses.

In response to my noble friend Lord Lucas’s comments on predicted grades and actual grades, in terms of tariff scores Unistats publishes the percentage of entrants in each tariff band commencing on each course at each institution in the past three years. Publishing information on the median and standard deviation of tariff scores would provide less clarity than the existing data available. Information on entry requirements, course descriptions and other course data is already widely available through providers’ own websites and through UCAS. HE providers are incentivised to make those data readily available in order to attract applicants.

In summary, my noble friend Lord Lucas has raised a number of very important points, and, if I may say so, the noble Lord, Lord Stevenson, interjected a number of observations that are worthy of consideration. I intend to meet my noble friend Lord Lucas, and I hope I have reassured him that we agree in principle with the points he has raised. In those circumstances, I ask him to withdraw Amendment 94.

[Lord Stevenson of Balmacara]

Before the noble Baroness sits down, I wonder whether she could possibly come back to the question of where the OfS stops and the CMA starts. Will that be subject to further discussion and debate?

[Baroness Goldie]

I hope that the noble Lord will permit me to respond to him in greater detail by writing to him.

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[Lord Kerslake (CB)]

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

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

[Lord Stevenson of Balmacara]

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

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

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