Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

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

[Lord Oxburgh (CB)]

I apologise for not being faster to my feet to intervene slightly earlier before the last speaker, but there are a couple of points that still need making. I declare an interest as an honorary professor at the University of Cambridge and before that as rector of Imperial College. Probably more relevantly, over the past 15 years or so I have been much involved in the assessment of universities in Hong Kong and Singapore.

I have two main points to make. First, the assessment as proposed at present by government is simply not useful to students. It may satisfy administrators or others, but it is not useful for students in so far as it does not have sufficient granularity. Within a university there may be departments that are outstanding in their teaching and others which are not, and that is the information that is of value to students—not some blanket assessment of the university as a whole.

Secondly, there is an implicit assumption in all this that, if a university is not teaching well or if a department is not teaching well, it is because it is not trying hard enough. That might or might not be the case, but it may also be that there is insufficient resource in that university to do better. Indeed, the proposal to link the level of support or the ability to increase fees may initiate a vicious downward spiral of despair, discouragement and pessimism in those institutions which are given the lowest ranking.

[Viscount Younger of Leckie (Con)]

My Lords, it is clear from today’s debate and those that preceded it that many noble Lords feel passionately about the teaching excellence framework, or TEF. Many noble Lords agree with the need for a renewed emphasis on improving teaching quality. Many noble Lords have also said that they agree that students need clear information to make well-informed decisions. These concerns are important motivational factors behind why the Government have chosen to introduce the teaching excellence framework and why it featured in the Conservative manifesto in 2015.

I understand that some noble Lords may feel that we have not listened to their concerns. I assure them that we have listened closely, considered carefully and responded thoroughly. I thank the noble Lord, Lord Blunkett, for his words and the general spirit in which this Bill has been handled across the Chamber so far.

Noble Lords expressed concern that the speed of implementation was too fast. In response, the Minister Jo Johnson committed to further piloting subject-level TEF for an additional year. Two full years of piloting is in line with the best practice demonstrated in the development of the REF. As with the REF pilots, these will be genuine pilots, involving a small number of volunteer institutions, with no public release of individual results and no impact on fees or reputation. Noble Lords expressed concerns, too, about the metrics and ratings and whether both would be interpreted appropriately. I shall return to this point later in my speech but, just briefly, the Minister has responded by committing to a comprehensive lessons-learned exercise, following the trial year that is already under way, to explicitly consider all those points.

I say again that we have listened and we have responded—but we must keep sight of the intended purpose of this policy. On that note, I turn to Amendments 62 to 66, 88 and 93 from my noble friend the Duke of Wellington. I reflected carefully on the point that my noble friend made about the use of the word “assessment” instead of “rating” in the drafting of the Bill. However, while these amendments are well intentioned, an assessment without an outcome will neither help to better inform students nor provide the incentives needed to elevate the status of teaching in our system.

I note that my noble friend raised the issue of the sector, specifically Warwick, buying into the TEF only because of the link to fees. However, I can cite contrasting views. I will quote no less an institution than Cambridge University as an example of the type of comments sent to us by the sector. We need to establish a balance here. Cambridge University states:

“Cambridge welcomes the Government’s desire to recognise teaching excellence, and supports the continued emphasis on a higher education system that embeds principles of diversity, choice and quality”.


I will expand on those points by turning to Amendment 72, which also features in this group and was tabled by the noble Lord, Lord Blunkett. Amendment 72 goes even further than the amendments suggested by my noble friend the Duke of Wellington and would turn the TEF into a pass or fail system. This amendment overlooks the fact that we already have a system that determines whether or not providers have or have not met baseline minimum expectations: it is run by HEFCE and the QAA and is called the quality assessment regime. It plays a critical role in maintaining standards and we do not need another system to do the same thing.

What the TEF offers is differentiation. In order to be eligible for a TEF rating of any kind, a provider must be meeting the baseline standards expected of a UK higher education provider. Therefore, a provider must at least “meet expectations” before they can receive a bronze award. Let me be clear that receiving a bronze award is not a badge of failure, as has been suggested by noble Lords today and during recent debates, including in Committee. I strongly reassure noble Lords that we are working closely with the British Council, Universities UK International and others to ensure that a provider that attains a bronze is recognised globally for its achievement. However, the Government are not complacent about the worries and concerns that—

[Lord Smith of Finsbury]

I am very grateful to the noble Viscount for giving way. I am trying very hard to understand his argument. It seems to me that it may not be the intention of the Government or of the Office for Students that a bronze rating will be seen as a badge of failure. However, it is the perception of everyone else who looks at it that is the problem.

[Viscount Younger of Leckie]

I take note of what the noble Lord has said. I will be saying more about this in a moment. I understand the concerns on this issue. I say again that the Government are not complacent about the concerns that the noble Lord, Lord Smith, and others have. We have explicitly committed to consider the ratings and their international impact as part of the lessons learned exercise. Not all providers will be able to get a bronze award. The Government have listened to the concerns raised by this House and noble Lords and I am pleased to announce that the Office for Students will label providers without a quality assessment as, “ineligible for a teaching excellence award” on both the register and in key information for students. Let me be quite clear that this indicates to students, parents and employers that there is a level that sits below bronze.

In contrast, the implication of this amendment is that the vast majority of the sector will end up being labelled wrongly as “meets expectations”—unless the intention is that much of the sector will actually be termed a failure, as in pass or fail. Without clear differentiation it is impossible to tell students where the best teaching can be found. GuildHE and Universities UK wrote to noble Lords last week expressing their support for the Government’s approach. Steve Smith, vice-chancellor of Exeter University, said:

“Some of the most controversial aspects of the TEF are … essential to its success. Genuine, clear differentiation is critical if we are truly to incentivise teaching”.

[Lord Bilimoria (CB)]

I thank the Minister for giving way. Will he confirm that when the Government carried out the consultation on the teaching excellence framework, one of the questions asked was: do you agree with the descriptions of the different TEF ratings proposed? Will he also confirm that an overwhelming 55% said no? On the basis of that, the Government came up with the gold, silver and bronze. Now the Minister is hearing unanimously from noble Lords and university leaders that this will not work for universities, will damage the sector and will create the wrong perception. So surely the Government should listen again. If they have listened before, they can listen now.

[Viscount Younger of Leckie]

We continue to listen, and I have said that we are beefing up our lessons-learned exercise. To come back to the point that the noble Lord raised, it is true that we consulted everybody, and a number of ideas were put forward, including pass and fail and the one to 10 rating. It is not true to say that everyone was against the gold, silver and bronze system. We have come to this decision and think that it is right to go ahead on this basis. It is not just the higher education providers who believe that differentiated assessment is the right methodology. Alex Neill, director of policy and campaigns at Which?, said:

“Our research has shown that students struggle to obtain the information they need to make informed decisions about university choices. We welcome measures to give students more insight into student experience, teaching standards and value for money. These proposals could not only drive up standards, but could also empower students ahead of one of the biggest financial decisions of their lives”.


I know that the noble Lord, Lord Blunkett, raised student opposition to the TEF—I think that he may have indicated that no students were in favour—but students are not opposed to the principle of differentiation and ratings, which, as he knows, rests at the heart of the TEF. For example, in a survey for Times Higher Education, 84% of university applicants said that a good score in the TEF would definitely make them consider choosing a particular institution. So there is another side to this argument.

Furthermore, without differentiation, there will be no incentive for the vast majority of higher education providers to improve. Retesting whether providers “meet expectations” does nothing to encourage excellence beyond this—

[Lord Lucas]

But is it not true that in the Government’s proposed system 20% of universities will always be in the bottom ranking? This is not a situation where the system can improve performance; it is a system that will always punish 20% of universities.

[Viscount Younger of Leckie]

I think that my noble friend is making an assumption that 20% represents bronze. The gold, silver and bronze system is a good thing and we should look at it positively. For example, if a new provider opens its doors, as it were, after three years and is already at the bronze level, with the opportunity to go up to silver and gold, surely that has to be a positive thing, and it is also something that students from here and abroad can look at.

[Lord Willis of Knaresborough (LD)]

Does the Minister accept that he is missing one of the key points of this debate? A university is made up of a whole host of different departments that contribute to teaching. There may be one lecturer who is excellent but in the next department there may be a lecturer who is pretty poor. You cannot classify all the staff in an institution simply on the basis of a gold, silver or bronze rating. Students apply for courses within those institutions and, unless a course has some badge of honour in terms of its teaching, we will be missing the point altogether. This is about people; it is not simply about institutions.

[Viscount Younger of Leckie]

I respect the noble Lord’s experience. We have had discussions outside the Chamber about the data aspect and I will be coming on to speak about the data and about how the assessments are made. I would argue that this is not just looking at the high levels—the gold, silver and bronze—

[Baroness Deech (CB)]

My Lords—

[Baroness O'Neill of Bengarve]

My Lords—

[Viscount Younger of Leckie]

Perhaps I may complete my sentence. It is not just looking at the gold, silver and bronze ratings. Yes, they are the high-level ratings but every student has the opportunity to look at the levels below those to find out what they mean and what the detail and data are within those assessment levels.

[Baroness O'Neill of Bengarve]

My Lords, the Minister quoted the University of Cambridge. In its most recent briefing, dated 3 March, recommendation 4 reads:

“The Bill should place an obligation upon the OfS to undertake a consultation to determine the most suitable quality assessment body, which should be separate from the OfS. The OfS should not be permitted to act unilaterally with regard to assessing quality”.

[Viscount Younger of Leckie]

Perhaps I may make some progress, but I would like to say again that the lessons-learned exercise is one that we take seriously, having listened to noble Lords both today and in Committee. I hope that the House will respect the fact that we will be looking at this a great deal over the next two years.

[Baroness Deech]

My Lords, I might have misunderstood him, but would the Minister kindly clarify that he is now proposing a fourth category so that we will have gold, silver, bronze and ineligible? That is a bit like a gentleman’s fourth at Oxford years ago, which was a badge of shame. Is that the case?

[Viscount Younger of Leckie]

There is no badge of shame. It is simply that we want to clarify that gold, silver and bronze occupy a particular platform of award level. Most international students would respect the fact that bronze is an award, not a badge of failure. But I want to clarify that there is a level below it, which is in effect a sort of non-level. I hope that that clarifies the position.

Let me move on. I appreciate that noble Lords want to ensure that whatever format the assessment takes, it is carried out rigorously and is based on reliable sources of evidence. I can assure noble Lords that the Government feel just the same. For example, we have already commissioned an independent evaluation of the metrics, which was carried out last year by the Office for National Statistics. Given that this evaluation has already taken place, repeating it, as proposed in Amendments 69 and 72, is unnecessary. The report proposed minor amendments to the metrics being used for the TEF, and the Government are already working with HESA and HEFCE on addressing those concerns for future TEF assessments. All of the metrics used for the TEF are credible, well established and well used by the sector.

[Baroness Wolf of Dulwich]

My Lords, I feel as though I must have read a different ONS report from the one given to the Minister. You can clearly identify the outliers in the NSS data, those at the bottom and those at the top, but the rankings in the middle are so uncertain that you cannot discriminate or put in order the vast bulk of English higher education institutions. So, to say that minor amendments were called for uses the word “minor” in a way that I personally would not.

[Viscount Younger of Leckie]

Perhaps I may move on to the NSS, in particular to the amendments spoken to by the noble Lords, Lord Bew and Lord Lipsey. I would like to reassure the House on some of the specific concerns that they have raised about the TEF in today’s debate, and I shall start with the NSS. While we recognise its imperfections—I did listen carefully to the speech of the noble Lord, Lord Lipsey—we consulted with the sector, which echoed the types of remarks made jointly by Professor Anthony Forster, vice-chancellor of the University of Essex, and Professor David Richardson, vice-chancellor of the University of East Anglia, who said:

“The National Student Survey (NSS) provides the most robust and comprehensive basis for capturing students’ views about the quality of their education and student experience”.


As I say, we recognise its drawbacks and we have put in place appropriate safeguards. For example, we use specific questions from the NSS that are directly relevant to teaching, not the overall satisfaction question, about which concern has rightly been raised.

I would also like to use this opportunity to do some further myth-busting about the TEF. First, the TEF is not just about metrics. Providers can give additional qualitative and quantitative evidence to the TEF assessors through their provider submission. My noble friend Lady Eccles alluded to the human element of the TEF, and she was right to do so. Secondly, the metrics are not worth more than the provider submission. The TEF assessors will consider both the metrics and the provider-submission evidence holistically before making a judgment. Thirdly, all assessors get contextual information about the providers they are assessing, including maps reflecting employment in the region and the make-up of the students studying at that provider. Fourthly, although I have made the important point that the metrics are not perfect, they are robust datasets which have been used by the sector for more than 10 years. This means that a TEF rating is not a box-ticking exercise and it is not an equation. It is a rigorous and holistic assessment process that is overseen by one of the sector’s most respected figures, Chris Husbands, vice-chancellor of Sheffield Hallam University. I know that he has been given fulsome praise by many in the House today, including the noble Lord, Lord Blunkett, and my noble friend Lord Lucas.

Highly qualified assessors, vice-chancellors, pro vice-chancellors and other experts in teaching and learning, as well as student and employer representatives, weigh up and test the evidence they receive before reaching a final judgment, which again reflects the human element. The noble Baroness, Lady Wolf, suggested that we should not throw away information. We are not throwing away information. The OfS will publish all the underlying metrics and provider submissions. However, composite measures have value. Why else would the vast majority of universities represented by noble Lords today award their students a specific degree class? We have to think about that.

I remind noble Lords that the Government listened carefully in Committee and made a number of important changes to the TEF in light of the suggestions made by noble Lords. We have slowed the implementation timetable and we have committed to revisit key concerns raised by the House in the lessons-learned exercise. I reiterate that the lessons-learned exercise will consider the following: the way in which the metrics have been used by the TEF assessors; the balance of evidence between core metrics and additional evidence; whether commendations should be introduced for the next round of TEF assessments; and the number and names of the different ratings and their initial impact internationally.

The lessons-learned exercise will survey all participating providers. The Department for Education will also collect feedback from panellists and assessors and involve further desk-based research. I am sure your Lordships will agree that the department has responded to the concerns raised by planning a thorough exercise.

Where we have not made changes we have done so with good reason. Following the Committee stage, we considered carefully the suggestion made by the noble Baroness, Lady Garden, that all those in universities must have a teaching qualification. However, such a requirement would fly in the face of the points that noble Lords have made about institutional autonomy. Indeed, the amendment agreed by noble Lords on Monday covers the freedom of English higher education providers to determine the selection and appointment of academic staff.

The amendments in this group challenge the fundamental nature of the TEF. The words in the manifesto were carefully chosen to echo the way that the REF is described. It said that the Conservative Government would,

“introduce a framework to recognise universities offering the highest teaching quality”.

A framework that allows only for a pass or fail assessment offers no gradients. A framework that offers no opportunity to recognise the highest teaching quality simply does not meet the Conservative commitment. I do not want noble Lords to misinterpret these amendments as offering constructive tweaks. They strike at the very foundations of what we want to achieve.

However, I reassure noble Lords that the Government remain committed to developing the TEF iteratively and working with noble Lords to do so. Developing the framework to date has involved two formal consultations and thousands of hours of discussions with the sector and with students, and we have only just begun. Universities UK has offered to engage with any noble Lord who wishes to provide input into its feedback to the department as part of this lessons-learned activity.

Many of the concerns we have heard throughout the course of the Bill were made in the early days of the research excellence framework introduced by a Conservative Government more than 30 years ago. We are still iterating that framework now. The noble Lord, Lord Bew, suggested that the REF was bureaucratic and encouraged gaming. We have designed something substantially less bureaucratic than the REF and have put in a number of safeguards at every stage to prevent gaming. I am sure the noble Lord has read the fact sheets, which I hope help him with his view on that.

The TEF has already started to change sector behaviour for the better and, given the same opportunities as the REF, will propel the quality of higher education teaching to new heights. I hope that this House will be able to look back 30 years from now with pride at what the TEF has achieved. I ask that the amendment be withdrawn.

[The Duke of Wellington]

My Lords, I am grateful to all noble Lords who have participated in this debate about various amendments. Every noble Lord who has spoken has criticised the gold, silver and bronze proposal. The Minister said that it will be reviewed after a year. However, Clause 26 requires a system of rating, and the spirit of my amendment was to delete the word “rating” and put in “assessment”. If the Government had been prepared to accept my amendment—I regret that they did not—it would have drawn the teeth of much of the opposition in this House to Clause 26. Other amendments go much further than mine. Therefore, sadly, I hereby beg leave to withdraw Amendment 62.

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Moved by

[Viscount Younger of Leckie]

70: Clause 26, page 16, line 43, leave out subsection (5)

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Moved by

[Viscount Younger of Leckie]

74: Clause 27, page 17, line 14, after “are” insert “—
(a) ”

[Viscount Younger of Leckie]

My Lords, I beg to move Amendment 74 and I shall speak to our government amendments first, before we can all turn to Amendment 116A. These amendments respond directly to concerns raised in Committee about the need for expert advice for any decisions relating to degree-awarding powers. They will ensure that only institutions that can demonstrate evidence of high-quality provision, or the clear potential to do so, should be granted such powers.

We have been clear that we will create a level playing field for new providers, with the option of a direct route to entry into the sector—one that does not depend on the need for validation by incumbent providers. We recognise that, for many providers, validation agreements can work well and are the preferred way to develop a track record. This will continue to be the case under the new regulatory framework, particularly for providers that are not yet able to demonstrate the potential to award their own degrees. For these providers it is important that the validation services on offer are comprehensive and accessible to them. Unfortunately, this is not always the case, which is why I will be resisting Amendment 119 when we come to debate it later.

We also want to create an alternative, direct route to entry for those providers committed to the higher education sector for the long term who can clearly demonstrate the potential to award their own degrees. Therefore, our proposals deliberately provide for two routes to DAPs. The first is via validation, although we propose to reduce the track record requirement for DAPs to three years. The second is via an additional test and close supervision for the first three years. This approach has been endorsed by Independent Higher Education. Alex Proudfoot, writing today on our proposals for degree-awarding powers and validation said:

“The Office for Students must be empowered to press ahead with regulation which better supports validation … And where validation is not the most appropriate route, the OfS also needs the power to identify this and provide an alternative route for these providers”.


We listened closely in Committee and considered carefully the amendment which the noble Baroness, Lady Wolf, tabled and to which Universities UK gave strong support. The amendments I am tabling today directly address these key concerns and I am pleased to see that they have the support of the noble Lord, Lord Stevenson, and the noble Baroness, Lady Wolf. We agree with Universities UK and the noble Baroness on the importance of a high quality threshold for new providers. We will absolutely not risk the reputation of the sector as a whole and the livelihoods of students by permitting poor-quality providers to have degree-awarding powers. We also recognise the value and importance of diverse and informed perspectives in determining whether a provider is competent to award its own degrees. This is why we have tabled these amendments that ensure that the OfS must seek and have regard to expert advice from the designated quality body or, where no designation has been made, a committee of the OfS, before awarding degree-awarding powers to any provider. It must also request such advice in relation to a variation or revocation of such powers. In both cases, the advice in question should be informed by the expertise of persons who are not part of the OfS. We expect this to include strong representation from persons who have experience of awarding degrees, as well as representatives of challenger institutions, further education providers, students and employers—as set out in the amendments. In cases of research degree-awarding powers, the advice must be informed by the views of UKRI.

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[Viscount Younger of Leckie]

My Lords, I thank the noble Baroness, Lady Wolf, and all noble Lords for their comments on our amendments. Let me assure the noble Baroness and the House that we are in agreement that we must assure the quality of degree-awarding powers and that the OfS must request expert advice before granting degree-awarding powers. The amendments that I have tabled and have already explained achieve this.

However, I do not believe that the Secretary of State should have a role in this process. The OfS, as the independent regulator, is best placed to make such decisions, taking them independently of government. It is also important that we streamline the currently bureaucratic degree-awarding power processes while ensuring that the focus is on quality. In addition, I question the value the Secretary of State would add, given the robust checks and balances in place in awarding and revoking degrees, in particular with the addition of our amendments. They require the OfS to seek independent, expert advice in making any decisions regarding degree-awarding powers. A role for the Secretary of State runs counter to the desire of the sector to have such decisions taken by an independent body, as distant from government as HEFCE is today, and not to politicise the process.

We are all in agreement on the importance of setting a high quality bar for new providers, and I thank noble Lords for their challenge in this area. I reassure noble Lords that protections for quality are provided for under our planned reforms. All providers would need to meet rigorous quality tests similar to those set out in the UK quality code. They would also need to meet robust tests for financial sustainability, management and governance that demonstrate their ongoing commitment to their students and to higher education. To award, degree providers would have either a track record or meet additional quality tests. Independent, expert advice must be sought on all DAPs awards and for their variation and revocation where that is on the ground of quality. Finally, there is an ability in Clause 15 to set a public interest governance condition.

The noble Baroness, Lady Wolf, asked whether the deletion of Clause 48 is consequential. There are two routes into the sector: validation or direct entry. I therefore do not agree with the noble Baroness that the proposed deletion of Clause 48 is consequential to Amendment 116A. She also questioned the Secretary of State’s role. She said it is needed because it is a big thing—I think that was the expression she used. As I said earlier, we believe that the regulator is best placed to make the decision on degree-awarding powers, but the Secretary of State is able to issue guidance and, where necessary, to give directions. We therefore feel that the power she has suggested is too great.

The noble Lord, Lord Storey, asked what happens if a provider goes into liquidation. All providers that are registered in the approved or approved fee cap categories are expected to have student protection plans in place to ensure that students can complete their courses and obtain their degrees, even if their provider has to exit the market. That takes account of their loans, which was the gist of his question.

Amendment 74 agreed.

Moved by

[Viscount Younger of Leckie]

75: Clause 27, page 17, line 14, at end insert “, and
(b) the functions of the relevant body under section (Grant, variation or revocation of authorisation: advice on quality etc)(advice on quality etc to the OfS when granting degree awarding powers etc).”

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Moved by

[Viscount Younger of Leckie]

79: Schedule 4, page 86, line 32, at end insert—
“( ) the Secretary of State is satisfied that the designated body is failing to perform in an effective manner its functions under section (Grant, variation or revocation of authorisation: advice on quality etc), or”

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Moved by

[Viscount Younger of Leckie]

83: Clause 28, page 17, line 34, leave out from “body” to “may” in line 35

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Moved by

[Viscount Younger of Leckie]

89: Clause 31, page 19, line 26, leave out “applicable”

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Moved by

[Viscount Younger of Leckie]

99: Clause 36, page 21, line 32, at end insert—
“( ) In performing those functions, subsection (1) applies instead of section 3(1)(za) (duty of OfS to have regard to the need to protect institutional autonomy) in relation to the freedoms mentioned in subsection (7)(b) and (c) of that section.”

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Moved by

[Viscount Younger of Leckie]

100: After Clause 37, insert the following new Clause—
“Duty to monitor etc the provision of arrangements for student transfers
(1) The OfS—(a) must monitor the availability of schemes or other arrangements provided by registered higher education providers for student transfers and the extent to which those arrangements are utilised by students generally or students of a particular description,(b) must include in its annual report a summary of conclusions drawn by it, for the financial year to which the report relates, from its monitoring under paragraph (a), and(c) may facilitate, encourage, or promote awareness of, the provision of arrangements by registered higher education providers for student transfers.(2) For the purposes of this section, “a student transfer” is where—(a) a student transfers from a higher education course (“course X”) provided by a UK higher education provider (“the transferring provider”) to a different higher education course (“course Y”) provided by the same or a different UK higher education provider (“the receiving provider”),(b) the receiving provider recognises, or takes account of, the study undertaken, or a level of achievement attained, by the student—(i) on course X, or(ii) on another higher education course provided by the transferring provider,when the receiving provider is determining the study to be undertaken, or the level of achievement attained, by the student on course Y, and(c) either the transferring provider or the receiving provider is a registered higher education provider, or both are registered higher education providers.(3) For the purposes of subsection (2), there may be an interval between the student ceasing to undertake course X and starting to undertake course Y.(4) The duty under subsection (1)(a) may be discharged by the OfS monitoring as described in that provision—(a) arrangements for student transfers provided by all registered higher education providers or a particular description of such provider;(b) all such arrangements for student transfers or a particular description of such arrangement or student transfer.(5) In this section—“annual report” means the annual report under paragraph 13 of Schedule 1; “financial year” has the same meaning as in that Schedule (see paragraph 12(6));“higher education course”—(a) in the case of a provider in England or Wales, has the meaning given in section 79 (1);(b) in the case of a provider in Scotland, means a course falling within section 38 of the Further and Higher Education (Scotland) Act 1992;(c) in the case of a provider in Northern Ireland, means a course of any description mentioned in Schedule 1 to the Further Education (Northern Ireland) Order 1997 (S.I. 1997/1772 (N.I. 15));“UK higher education provider” means an English higher education provider or a higher education provider in Wales, Scotland or Northern Ireland.(6) For the purposes of applying the definition of “higher education provider” in section 79 (1) to the reference in the definition of “UK higher education provider” in subsection (5) to a higher education provider in Wales, Scotland or Northern Ireland, the reference to “higher education” in the definition of “higher education provider” in section 79 (1)—(a) in the case of an institution in Wales, has the meaning given in section 79 (1);(b) in the case of an institution in Scotland, has the same meaning as in section 38 of the Further and Higher Education (Scotland) Act 1992;(c) in the case of an institution in Northern Ireland, has the same meaning as in Article 2(2) of the Further Education (Northern Ireland) Order 1997 (S.I. 1997/1772 (N.I. 15)).”

[Viscount Younger of Leckie]

I beg to move.

Amendment 100A (to Amendment 100)

Moved by

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[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.

[Viscount Younger of Leckie]

My Lords, the Government take the views of the noble Lord, Lord Willis, on student transfer very seriously, and I have appreciated the short discussions I have had with him. This is why, as we discussed on Monday, we have proposed Amendments 100, 139 and 141. I appreciate the warm words expressed on our amendments by the noble Lord, albeit they were perhaps rather lukewarm on Amendment 100.

The new clause will place a duty on the OfS to monitor arrangements put in place by registered higher education providers to enable students to transfer within or between providers and monitor the take-up of those arrangements. Furthermore, the OfS will have a duty to report annually on its findings. As my noble and learned friend Lord Mackay said, the government amendment will also enable the OfS to facilitate, encourage or promote awareness of arrangements for student transfer, so that the OfS can help ensure students understand the options for changing course or institution and so that best practice is promoted among higher education providers.

I thank the noble Lord, Lord Willis, for his Amendment 100A, which reflects the importance he attaches to this issue. It is well intentioned, and we have genuinely considered it. However, given the Government’s assessment of the evidence of barriers to student transfer, it is not desirable to adopt the amendment, some of the reasons for which were put rather eloquently by the noble Baroness, Lady O’Neill. Such an approach would reduce the flexibility available to the OfS as it develops its understanding, particularly through its monitoring, and could be overprescriptive, burdensome and interfere with institutions’ autonomy.

The government amendment will achieve our shared aims without interfering with or overly mandating how the OfS responds to its findings on student transfer, so, with respect, I ask the noble Lord to withdraw his amendment.

[Lord Willis of Knaresborough]

My Lords, I thank noble Lords who have spoken in this brief debate. It was certainly worth raising the issue. In particular, I thank my noble friend Lady Garden for her support. I never like to disagree with the noble and learned Lord, Lord Mackay, because he is usually right on this matter. The reason I wanted a “must” is that otherwise, this issue will go into the long grass. I hope I am wrong and that the Office for Students, when it reports, will be able to keep a close eye on what is happening. That will be the real test.

I listened with interest to the comments of the noble Baroness, Lady O’Neill. Again, I was disappointed, because I value her comments enormously. It saddens me that we are unable in this country to adopt what we see working incredibly well in the States, particularly with community colleges, where with sufficient credits students can move to Ivy League universities where they show real talent. We seem to have a silo-based higher education system, and this was an attempt to move away from that and ensure that all learning gained in higher education systems can be accredited and used as a credit for further learning. With those few comments, I thank the House for listening, and I beg leave to withdraw the amendment.

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Moved by

[Viscount Younger of Leckie]

105: Clause 41, page 25, line 2, at end insert—
“( ) See sections 42, 43 and (Grant, variation or revocation of authorisation: advice on quality etc) which make further provision about orders under subsection (1).”

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Moved by

[Viscount Younger of Leckie]

107: Clause 43, page 25, line 30, at end insert—
“( ) The OfS may make such an order revoking an authorisation given to a provider only if condition A, B or C is satisfied.”

[Viscount Younger of Leckie]

My Lords, we have always been clear that the OfS’s powers to revoke degree-awarding powers or university title would be used only as a last resort. However, we heard concerns both in this Chamber and from the Delegated Powers Committee that the Bill is not clear enough in limiting the OfS’s powers in this area. The concern was that it would leave it wholly to the discretion of the OfS when and in what circumstances the powers should be exercised. We have listened to these concerns and responded. We are introducing further, strong safeguards, setting out in precisely which circumstances the OfS can revoke degree-awarding powers or university title.

I will keep my remarks relatively brief, and I am pleased to see that the amendments have support from the noble Lord, Lord Stevenson. Put simply, the amendments carry forward the position that DAPs and university title holders should normally be registered, and allow for DAPs to be revoked where there are serious quality concerns, and for university title to be revoked where all DAPs, other than the ability to grant foundation degrees, have been lost. As we discussed earlier, if the OfS wants to revoke DAPs on grounds of quality, it would need to seek advice from the designated quality body.

Additionally, condition C in Clauses 43, 44 and 54 relates to changes in circumstances, which covers sales, mergers or similar structural changes. This reflects current policy, where eligibility for DAPs and university title is reviewed following such changes.

Currently, providers need to demonstrate that they continue to be the same institution that was granted DAPs originally—and are therefore competent to continue to award degrees—and that they can still meet all university title criteria. If providers fall short of such requirements, so that there are serious concerns around quality, the OfS will be able to revoke DAPs. University title could also be lost.

I turn to government Amendments 195, 196 and 199, and the subject of royal charters. Let me briefly address our amendments, which are closely related to revocation. We have always said that the power of the Secretary of State to make consequential changes to a royal charter under Clause 112 is not intended to be used to revoke an entire charter. Our amendments now make this clear in legislation, which I hope will provide further reassurance that we do not seek to unduly interfere with the autonomy of institutions. I now invite other noble Lords to speak should they wish.

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[Lord Stevenson of Balmacara]

My Lords, I briefly express our support, as shown by the fact that we have signed up to those amendments on revoking degree-awarding powers, introduced by the Minister. We had a good discussion of this in Committee, and it was an area of concern to many noble Lords. We had thought of tabling an amendment to try to pick up on a couple of areas that seemed unresolved. However, after discussion and reflection with both the Bill team and the Minister we were able to sign up to the group and we are therefore happy with what is now before us.

We are also pleased that the amendment in the name of the right reverend Prelate the Bishop of Winchester has been accepted by the Government. We have all had trouble when we have had to address right reverend Prelates in their place, and the idea that we also have to stumble over the words “holder of degree-awarding powers” when referring to the most reverend Primate the Archbishop of Canterbury is another thought that will make it even more difficult to engage with them in future. We are very pleased that the Archbishop has these powers and, since 1533, an unbroken record of awards of degrees that we will recognise in future through this legislative process.

There is only one question left in my mind. The Government have been very good in bringing forward Amendment 196, which records in the Act that no provision of the Bill may be used to revoke an institution’s royal charter—with the rather weasel words—“in its entirety”. It does not mean to say that the Government will not revoke parts of the royal charter. I do not expect a response today, but perhaps the Minister might write to us with some examples of how that power might be used in future. I ask the slightly deeper question: since we are now fully aware of the powers of the Privy Council—which seem to include the ability to go and get from Her Majesty the Queen in Council changes to any royal charter, including that of the BBC, without much publicity ever occurring—why on earth have the Government decided to put this forward in the Bill at all? I would be very interested to receive that answer. With that slight aside, I am happy to support the amendments.

[Viscount Younger of Leckie]

My Lords, first, I will be happy to write a letter to the noble Lord, Lord Stevenson, which I hope on this occasion will be a short one, to clarify some aspects of our Amendment 196.

I want to make some very brief remarks on Amendment 119A, tabled by the right reverend Prelate the Bishop of Winchester, and spoken to by the right reverend Prelate the Bishop of Oxford, which we fully support. We fully recognise the unique position that the most reverend Primate the Archbishop of Canterbury is in when he awards degrees to those who have served the Church. We agree that the Archbishop’s ability to award such degrees, which do not require a course of study, supervised research or assessment, should be left untouched by the OfS. This amendment achieves this, while being clear that any taught or research degrees awarded in the usual manner—for example, following a course of study as part of the Archbishop’s Examination in Theology—will remain covered by the Bill.

I am pleased with the progress we have made on these matters. With these amendments added, it leaves the Bill in very good shape by giving the OfS the powers it needs while being crystal clear that these are underpinned by strong safeguards. It strikes the right balance between institutional autonomy and protecting students, and the quality and reputation of our HE sector.

Amendment 107 agreed.

Moved by

[Viscount Younger of Leckie]

108: Clause 43, page 25, line 31, leave out from beginning to “if” and insert “Condition A is satisfied”

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Moved by

[Viscount Younger of Leckie]

111: Clause 44, page 25, line 35, leave out “or an English further education provider”

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Moved by

[Viscount Younger of Leckie]

116: After Clause 44, insert the following new Clause—
“Grant, variation or revocation of authorisation: advice on quality etc
(1) The OfS must request advice from the relevant body regarding the quality of, or the standards applied to, higher education provided by a provider before making— (a) an order under section 41(1) authorising the provider to grant taught awards or research awards,(b) a further order under section 41(1)—(i) varying an authorisation given to the provider by a previous order under section 41(1), or(ii) revoking such an authorisation on the ground that condition B in section 43(4) is satisfied, or(c) an order under section 44(1)—(i) varying an authorisation given to the provider, as described in that provision, to grant taught awards or research awards, or(ii) revoking such an authorisation on the ground that condition B in section 44(5A) is satisfied.(2) In this section “the relevant body” means—(a) the designated assessment body, or(b) if there is no such body, a committee which the OfS must establish under paragraph 8 of Schedule 1 for the purpose of performing the functions of the relevant body under this section.(3) Where the OfS requests advice under subsection (1), the relevant body must provide it.(4) The advice provided by the relevant body must be informed by the views of persons who (between them) have experience of—(a) providing higher education on behalf of, or being responsible for the provision of higher education by—(i) an English higher education provider which is neither authorised to grant taught awards nor authorised to grant research awards,(ii) an English further education provider, and(iii) an English higher education provider which is within neither sub-paragraph (i) nor sub-paragraph (ii),(b) representing or promoting the interests of individual students, or students generally, on higher education courses provided by higher education providers,(c) employing graduates of higher education courses provided by higher education providers,(d) research into science, technology, humanities or new ideas, and(e) encouraging competition in industry or another sector of society.(5) Where the order authorises the provider to grant research awards or varies or revokes such an authorisation, the advice provided by the relevant body must also be informed by the views of UKRI.(6) Subsections (4) and (5) do not prevent the advice given by the relevant body also being informed by the views of others.(7) The OfS must have regard to advice provided to it by the relevant body under subsection (3) in deciding whether to make the order. (8) But that does not prevent the OfS having regard to advice from others regarding quality or standards.(9) Where the order varies or revokes an authorisation, the advice under subsection (1) may be requested before or after the governing body of the provider is notified under section 45 of the OfS’s intention to make the order.(10) Where there are one or more sector-recognised standards, for the purposes subsections (1) and (8)—(a) the advice regarding the standards applied must be advice regarding the standards applied in respect of matters for which there are sector-recognised standards, and (b) that advice must be regarding those standards as assessed against sector-recognised standards.(11) In this section—“designated assessment body” means a body for the time being designated under Schedule 4;“humanities” and “science” have the same meaning as in Part 3 (see section 107).”

[Viscount Younger of Leckie]

I beg to move.

Amendment 116A (to Amendment 116)

Moved by

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[Baroness Wolf of Dulwich]

My Lords, I agree with what the noble Lord, Lord Stevenson, has said and with his response to the letter, which is encouraging. I am particularly encouraged by the fact that there will be better consultation. Although I agree that we need a final long stop, what we have at the moment is that the regulator has to put itself on the register and then award degrees, and that could be addressed with a little more care.

[Viscount Younger of Leckie]

My Lords, we recognise that many validation arrangements are highly successful and beneficial to the institutions involved and to students. Validation will remain the chosen route to entry for many under the new regulatory framework. Under our reforms we plan to put in place an alternative route for high-quality providers to obtain DAPs without a track record, but this will not be the right route for everyone. We want providers to be able to choose the right option to meet their specific needs. It is therefore important that the validation services on offer are comprehensive and accessible to providers.

Unfortunately, this is not always the case at the moment, as Members of this House have recognised. In compiling his review of higher education funding, the noble Lord, Lord Browne, said he and his panel spoke to many organisations and found that in many instances validation arrangements simply did not work. Highly lucrative for the established providers, they created a closed shop that stifled innovation and competition among new entrants and, as a result, reduced student choice. As the noble Baroness, Lady Garden, acknowledged, protectionist practices are sometimes adopted when it comes to current validation arrangements. This is why the Bill enables the OfS to take concrete steps aimed to improve validation services. Should this prove to be insufficient, the OfS may enter into commissioning arrangements with other providers.

The OfS cannot force registered higher education providers to enter into such commissioning arrangements. However, once a provider enters into the arrangements, the OfS could then require that provider, in line with the terms of the arrangement, to offer to validate. This is not unlike other arrangements where, for example, a party to a contract may require, in line with the terms of the contract, another party to do something. We in no way expect the OfS as part of this arrangement to require validation where the provider had legitimate concerns regarding the quality of provision. I cannot imagine a scenario where a provider would agree to such terms or where anyone would think it beneficial. Clause 3 sets out clear factors that the OfS must have regard to when exercising its functions, which include the promotion of quality.

The protections set out in Amendment 117A are therefore not required. Remedies for failing to act in accordance with the arrangements and for resolving disputes about them are expected to be provided for in the commissioning arrangements. Where they are not, other laws, such as the law of contract, may apply.

Turning to Clause 48 and Amendment 119, we anticipate that in the event that the OfS is still unable to address significant shortcomings in the validation market through other means, the Secretary of State may make regulations to allow the OfS to become the validator of last resort. I understand that there are still concerns about how this would work in practice and how the OfS would set up such a function. Let me help to this extent. Noble Lords may have received a letter I circulated today. I wish that this letter could have been circulated earlier. For very good reasons it was not able to be. To that extent, I apologise to the House.

I can confirm that, as part of the regulatory framework consultation, we will consult on how the OfS could best establish a validation service to ensure it is underpinned by the necessary expertise and that it is delivered in a way that prevents or effectively mitigates any conflicts of interest. This would enable the OfS to have a blueprint that has been stress tested with the sector through consultation and to be ready to act, subject to Secretary of State and parliamentary approval, as a validator of last resort should this become necessary. I stress that these regulations are subject to parliamentary scrutiny, so there will be an opportunity to scrutinise these powers. We expect the OfS to make a case to the Secretary of State as to why it is necessary for it to act as a validator of last resort, clearly setting out the nature and severity of the issues in the validation market.

There are further safeguards, in that the Secretary of State may attach conditions, such as ensuring that the service the OfS provides is underpinned by the necessary expertise and is sufficiently independent from its regulatory function, for example by being housed in a separate division. We have heard arguments that this would be unprecedented, but that is simply not true. For example, the Bank of England regulates many aspects of the financial sector to maintain financial stability in the UK, but in extremis will also act as the lender of last resort, or a market maker of last resort—that is, buying and selling assets such as government bonds to provide liquidity—at a time of financial stress.

There are also strong mechanisms in place to ensure that the quality of the OfS’s validation provision is high. We would expect the OfS’s advice to the Secretary of State to clearly set out how it will ensure its validation service is best in class. This could, for example, involve the OfS drawing on sector-recognised best practice principles, exemplar templates and processes. If the Secretary of State designates a body to fulfil the OfS’s quality assessment function, I would also expect the OfS to draw on information from the designated quality body to help formulate its advice and recommendations to the Secretary of State, and to help inform how it can develop the capacity and reach of existing validation services while safeguarding the quality and standards of awards granted. These would be nominally in the OfS’s name, but, importantly, would bear the overall branding of the institution being validated, which answers some of the questions that were raised. I hope that full explanation also answers the question my noble friend Lord Willetts asked about what “last resort” means.

Before I finish, I shall briefly address Amendment 118 and—without too much surprise, I hope—reassure my noble and learned friend Lord Mackay that Clause 48(6) replicates a standard provision relating to the awarding of degrees. These powers are simply designed to enable the degree-awarding body—in this case the OfS—to deprive students of their degree should this become necessary: for example, if it is discovered that it was wrongly obtained, such as through plagiarism.

Without Clause 48, the OfS would be left without adequate powers to ensure full and ongoing provision of good-quality validation services. As I said earlier, we will consult on how the OfS can best establish a validation service as part of the regulatory framework consultation, which will enable further input from the sector. With that explanation, I hope the noble Baroness will withdraw Amendment 117A.

[Baroness Wolf of Dulwich]

I thank the Minister very much for his words, which I have listened to with interest and optimism. On that basis I am very happy to withdraw the amendment.

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Moved by

[Viscount Younger of Leckie]

119A: After Clause 51, insert the following new Clause—
“Saving for right to grant degrees under the Ecclesiastical Licences Act 1533
Nothing done under this Part is to affect the right of the Archbishop of Canterbury, or any other person, by virtue of the Ecclesiastical Licences Act 1533 to grant a degree where the recipient is not required—(a) to complete an appropriate course of study or an appropriate programme of supervised research, or(b) to satisfy an appropriate examination, test or other assessment.”

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Moved by

[Viscount Younger of Leckie]

120: Clause 54, page 34, line 34, at end insert—
“( ) The OfS may make an order under subsection (1) only if condition A, B or C is satisfied.”