Higher Education and Research Bill

Debate between Lord Watson of Invergowrie and Baroness Goldie

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

[Lord Watson of Invergowrie]

My Lords, it is very much to be welcomed that Muslim students are to be offered Sharia-friendly student loans which should assist in applying to university, although I accept the point of the noble Lord, Lord Willetts, that only some students have been put off in the past in the belief that taking out a loan conflicts with their religious beliefs.

This is certainly a big step forward, but as the noble Lord, Lord Sharkey, outlined, when will it happen? He has traced the path that has been followed since 2012, when a government commitment was first made. As he said, the consultation exercise was undertaken and the Government responded in September 2014—quite quick for government replies. Their response said that,

“the Government supports the introduction of a Sharia-compliant takaful alternative finance product available to everyone, and will work on its development”.

That response also mentioned the need to find what was described as an “appropriate legislative window”. Two years on—more than that, in fact—we are at that window, yet we do not have a date for the commencement.

Amendments 442 and 516 in the names of the noble Lords, Lord Sharkey and Lord Willis, appear to me to be rather contradictory. Amendment 442 calls for the scheme to begin in the autumn of 2018, while Amendment 516 seeks its introduction immediately after the Bill becomes law, but no matter. We wish to see the scheme introduced as soon as it is practical, and I trust the Minister will outline the timescale that the Government have in mind. In particular, I hope they will offer some explanation if, as the noble Lord, Lord Sharkey, said, they suggested that a delay would be necessary until 2019. I found it very interesting that the noble Lord, Lord Sharkey, said that he had consultations with people in the Muslim community who said that it need not take that long, so we look forward to the Minister’s response on this important matter.

[Baroness Goldie]

My Lords, the debate has been helpful. I think we all agree that participation and choice in further and higher education must be open to everyone with the potential to succeed, irrespective of their background, gender or religion. I thank the noble Lord, Lord Sharkey, for a sensitive and reflective contribution to that debate.

The Government recognise that, under the current system, there are concerns that some prospective Muslim students may feel deterred from accessing student loans; we appreciate that they might consider that student loans are not consistent with the principles of Islamic finance. Our research has suggested to us that Muslim students are less likely to use student loans than their contemporaries. That is why the Government have introduced Clauses 80 and 81, which are ground-breaking and innovatory and set out our intention to provide the Secretary of State with the power, for the first time, to offer alternative payments alongside existing powers to offer grants and loans. We are the first Government to legislate to make alternative student finance possible, and we have legislated at the first opportunity. We are fully committed to making alternative student finance available.

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[Lord Watson of Invergowrie]

My Lords, I will say a few words in support of the noble Lord, Lord Storey. I commend him on the amount of preparation he has done for this amendment. I am very surprised at the extent of what he has revealed. I think we all know that, to a greater or lesser extent, cheating goes on—it is important to use that word—and in some cases fraud, but the extent of it is such that action needs to be taken. I am disturbed by the QAA more or less dismissing it, as the noble Lord, Lord Storey, said. And yet, as he pointed out, 17,000 students had been caught, and if that number were caught how many were getting away with it?

It is an issue that has to be addressed. Although there are means of catching cheats these days—software can be, and is, employed by universities that can spot and pick up patterns of writing—there are other ways that cannot be tracked easily. It would be helpful to have a recognition that this is a problem and for something at least to be said, if not done, by the Minister to indicate that the matter will be taken forward in a way that it has not been, effectively, up until now.

[Baroness Goldie]

My Lords, this amendment raises an important issue that is central to the quality and reputation of higher education in the UK. Plagiarism in any form, including the use of custom essay-writing services, or essay mills, is not acceptable and the Government take this issue very seriously. That is why the Government asked the QAA to investigate the use of essay mills in the UK. Following the QAA’s publication on this issue in August 2016, the Minister, my honourable friend Jo Johnson, said:

“Plagiarism is not acceptable and, on this industrial scale, represents a clear threat to standards in our universities … we are looking closely at the recommendations in this report to see what further steps can be taken to tackle this scourge in our system”.


The Government thank the QAA for its work exploring this issue and continue to work closely with it to progress the options and recommendations put forward. As a first step to addressing the issue, the Government have already met with Universities UK and the NUS to discuss a co-ordinated response. Within the next few weeks, my honourable friend the Minister will be announcing a new initiative, working with the QAA, Universities UK, the NUS and HEFCE, to tackle this issue.

On the amendment specifically, although we share the general intent, we are keen to ensure that non-legislative methods have been as effective as they can be before resorting to creating new criminal offences. That is where the initiative mentioned comes in. If legislation does become necessary, we will need to take care to get it right. We have to be absolutely clear about what activity should be criminalised and what activity should remain legitimate. That requires evidence, discussion and consensus. We do not yet have that.

To that extent, it is crucial we get the wording of the offence right. In the amendment tabled, it is unclear who would be responsible for prosecuting and how they would demonstrate intention to give an “unfair advantage”. For example, it may be difficult to prove that a provider intended to give an unfair advantage, or that an advertiser knew that an unfair advantage would be bestowed, and there is a risk of capturing legitimate services such as study guides under the same umbrella definition. What is an “unfair advantage”? On one view, a student who is able to afford a tutor when others cannot obtains an unfair advantage. That is surely not what this amendment is trying to catch. But can we be sure that it does not, and where do we draw the line instead? These are not things that can, or should, be rushed when the result is a criminal record.

The effectiveness of a legislative offence operating as a deterrent will depend on our ability to execute successful prosecutions, and as such, we will need to be confident about these principles, as well as about who has the power to prosecute and how they will capture sufficient evidence. Rather than taking a premature legislative response to this issue, we believe it is best first to work with the sector to implement non-legislative approaches. We will of course monitor the effectiveness of this approach and we will certainly remain open to the future need for legislation if it proves necessary.

I hope I have reassured the noble Lord that the Government are committed to addressing this issue. Although the Government remain open to future options, as we do not believe that legislative action is the best response at this time, I ask that the amendment be withdrawn.

Higher Education and Research Bill

Debate between Lord Watson of Invergowrie and Baroness Goldie

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

[Lord Watson of Invergowrie]

My Lords, we support the amendments in this group in the names of the noble Baronesses, Lady Brown and Lady Wolf. It is appropriate that until the OfS has issued a monetary penalty notice to a provider, has issued a notice to suspend a provider’s registration, or has issued a notice to remove a provider from the register, the OfS should keep its intentions and the reasons for them confidential, as already stated by the noble Baroness, Lady Brown.

Confidentiality is an important factor in situations such as these and it is necessary to protect against that all too common suspicion that there is no smoke without fire. Even if exonerated, an institution may never completely recover its reputation, and the ensuing stigma could have serious effects on its ability to attract students, academics and research funding. There could be significant risks in such situations, not just to the reputation of the individual provider but to the higher education sector as a whole. For that reason, these amendments are necessary.

[Baroness Goldie (Con)]

My Lords, I first apologise for my voice. I have a heavy head cold and my remarks may be more impenetrable than usual.

I agree with the noble Baroness that it is important to protect provider reputation in the early stages of an OfS investigation while evidence is being gathered. We recognise that even the knowledge that the OfS is considering sanctions could have a detrimental effect on a provider in a number of ways. I hope I can reassure your Lordships that the Bill already contains safeguards to protect the interests of providers in the circumstances outlined, and that it is moreover highly unlikely to be in the interests of the OfS to disclose that it is considering sanctions.

When the OfS is considering action as a result of a perceived breach of registration conditions, the primary objective is generally to achieve compliance. I am sure your Lordships agree that the desired outcome, for the benefit of students and the provider alike, is that the provider takes the actions necessary to ensure compliance with the conditions of registration that have been placed on it. Providers are expected to be given guidance and time to enable them to take corrective action or make further representations to the OfS. Only in very serious circumstances would we expect sanctions to be imposed. Disclosing details of possible sanctions during this sensitive period, when the OfS has yet to decide to take action, and when discussions, representations, remedial action and evidence-gathering may be ongoing, would not generally be either appropriate or helpful.

I assure your Lordships that under the Bill, in Clause 2, the OfS must have regard to the principles of best regulatory practice and act in a proportionate, accountable and consistent manner. As the noble Baroness is aware, there are many regulatory bodies covering a wide range of areas of activity in the UK which do indeed implement and deploy that best practice. As such, the OfS, like any other public body, would not look to disclose information prematurely or unnecessarily that could have an adverse effect on a provider before a decision was taken. To do so would not be in accordance with regulatory best practice. Let me be clear: if a decision has been taken to impose a sanction, we would expect the OfS to consider making it a specific condition of registration that a provider’s governing body advises students promptly and accurately of the OfS’s sanctions. The OfS itself may also look to publicise the details if appropriate, especially where this may be in the interests of students.

I hope that this reassures the noble Baroness and I ask her to withdraw this amendment.

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[Lord Watson of Invergowrie]

My Lords, it seems to me that my noble friend Lord Judd’s suggestion would be a very useful addition. The comments of the noble Baroness, Lady Deech, just now support that.

In response to the previous group of amendments, the Minister stated that under Clause 2(1)(f) the OfS must give due consideration to “best regulatory practice”. Surely, offering somebody the opportunity to appeal a decision, which could have pretty far-reaching consequences, cannot be described as anything other than best regulatory practice. On that basis, I hope the Minister will accept the amendment in the name of my noble friend Lord Judd, along with the Government’s amendments, because it is undoubtedly a question of best regulatory practice.

[Baroness Goldie]

My Lords, I note that a similar amendment to that proposed by the noble Lord, Lord Judd, has been tabled in relation to the provisions on degree-awarding powers, which we will come to in future sessions.

The appeals provision in the Bill has been drafted to cover specific scenarios where the OfS makes a decision that deprives providers of a status powers or imposes a monetary penalty. I understand the sincerity behind the amendment tabled by the noble Lord, Lord Judd, but he is proposing something additional: extending the appeals provisions to unsuccessful applications to join the OfS register.

I was interested to hear the noble Baroness, Lady Deech, say that her apprehension is that the justice system would become overloaded without this amendment. The Government’s contention is that extending the appeals provisions to unsuccessful applications could achieve that very consequence, which would be undesirable and could also encourage ill-prepared applications. But let me provide some reassurance—

[Lord Watson of Invergowrie]

It is not about just unsuccessful applicants but situations where a registration is suspended, having already been given.

[Baroness Goldie]

I thank the noble Lord for his intervention. I might observe that there is a distinction: suspension is a temporary compliance measure. Although there is no formal right of appeal, the Office for Students is required to notify an institution of its intention to suspend registration and allow 28 days for the institution to make representations. So there is a process, which means that the institution at risk of suspension has a right of comment and an opportunity to take remedial action.

[Lord Watson of Invergowrie]

I realise that the Minister is a lawyer—that is understood—but she seems to be making a significant distinction. It is not just about having a right to comment, saying “I wish you hadn’t done that”. This is about the right to appeal a decision—building an appeal and trying to have it overturned.

[Baroness Goldie]

I cannot claim to be a lawyer— I am a very long since defunct lawyer—but what I am endeavouring to do, without reference to legal parlance, is to draw a distinction between the scenario I have outlined, where we understand that appeals could be competent and would be important, and that outlined by the noble Lord, Lord Watson. We think there is a difference between the scenario I have outlined and suspension, which by its very nature is an interim process—either it will be dealt with or it will not be dealt with.

I will try to provide some reassurance. Where the OfS proposes to reject an application to the register, or indeed to suspend a provider’s registration, the provider is afforded a minimum period of 28 days to make further representations to the OfS before the final decisions are taken. In these circumstances, I asked the noble Lord, Lord Judd, to consider not moving his amendment.

Higher Education and Research Bill

Debate between Lord Watson of Invergowrie and Baroness Goldie

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

[Lord Watson of Invergowrie]

My Lords, as someone who is not an academic, I find it quite surprising that amendments of this sort should be necessary, but given that they have been moved and supported by very long-established academics, it is clear that there is an issue here. I thought that that blind-marking assessment was what happened all the time in the established universities, but it may not be the situation in some of the newer or smaller providers, and the question is what will happen with some of the future providers. To me, this is something any student should have a right to expect. Nobody, whatever their background, should be discriminated against, consciously or unconsciously, by whoever is involved in marking an assessment. If we are being told by academics, as it appears we are, that these amendments are necessary, I would certainly want to support them. I hope the Minister will take it in good faith that they are necessary.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Desai, for tabling these amendments, which speak to concerns about unconscious bias in admissions and assessment, which I know we all take very seriously. As we have established, institutional autonomy is a vital principle for higher education, and academic freedom will continue to be protected through the Bill. I suggest the matters raised in these amendments are for individual institutions to take their own decisions on, as independent and autonomous bodies.

Amendment 133A would add a new requirement to Clause 13 to ensure that judgments made by higher education staff when making an assessment of a student’s work are not pre-determined by knowledge of the student whose work is under consideration. Under the current quality system, this is covered by the UK Quality Code. Expectations and guidance to ensure that judgments of student performance are based on the extent to which the student is able to demonstrate achievement of the corresponding intended learning outcomes are of course the essence of what is intended by that quality code. Indeed, all providers are expected to abide by the requirements of the quality code, and that will continue under the OfS. We would not want to undermine the flexibility of providers to achieve a fair assessment by introducing a new level of prescription, which the amendment would do. We do not feel that would be in the best interests of providers or indeed of students.