Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

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

[Baroness O’Neill of Bengarve (CB)]

My Lords, I am not against collecting information because it is always interesting, but I would regret seeking information under all the protected characteristics set out in this Bill, among other reasons because I do not think asking intending students whether they are pregnant is a good idea. Age has the advantage, as the noble and learned Lord, Lord Wallace, said, that it is quite objective; people know how old they are. However, one characteristic which is not in the list of protected characteristics is socioeconomic background. I think that it is separate from the socioeconomic one and it depends on the utility of the information for the purposes at hand. The noble and learned Lord, Lord Wallace, has made the case that it is useful because of the decline in participation rates among older students. I do not think we know the significance of that decline. It has happened in an age group of whom many more have had the opportunity to participate in higher education when they were younger, and it is in that context that I would be uncertain whether it is of tremendous informational value. I am not against the amendment but I do not believe that it will yield very much additional information.

[Viscount Younger of Leckie (Con)]

My Lords, the transparency duty has generated much debate in both Houses and I am pleased to note that there is an appetite for further transparency to be brought to higher education as a whole. Indeed, this Bill and our accompanying reforms will mean that more information than ever before is published and made available to students. I thank the noble and learned Lord, Lord Wallace, for his engagement with the Bill. Let me assure him that I have reflected carefully on the comments he made in Committee, including those of adding attainment as one of the life cycle points in the transparency duty. We did respond to his suggestion and I was pleased to table an amendment on Report which will require higher education providers to publish data on attainment broken down by gender, ethnicity and socioeconomic background, something which the noble Baroness, Lady O’Neill, has just referred to. This will mean that the whole student life cycle is covered by the transparency duty and will support its focus on equality of opportunity.

I would like to take a moment to reassure the noble and learned Lord, Lord Wallace, about the consultation. We will be setting out our expectations for the consultation in our first guidance to the Office for Students. That guidance will be issued before the OfS comes into being in April 2018, so there is no question but that it is definitely a priority.

Let me also make the important point that the transparency duty is focused on widening participation. We have been at pains to balance the need for greater transparency on admissions and performance against the robustness of the available data and burdens on providers. This means that we have prioritised those areas where a renewed emphasis on widening participation will have the most impact. However, we have continued to listen and respond. The noble and learned Lord tabled further amendments on Report and I was grateful for the further opportunity to discuss this important issue. I was delighted to make a firm commitment in response to the points raised, which I will reiterate.

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Moved by

[Viscount Younger of Leckie]

2: Clause 39, page 23, line 19, leave out “and the extent to which those arrangements” and insert “,
(aa) must monitor the extent to which the arrangements monitored under paragraph (a)”

[Viscount Younger of Leckie]

My Lords, this group of minor and technical amendments simply clarifies the drafting of the Bill, ensuring that it is consistent across the board. It also contains an amendment that I committed on Report to bring forward at Third Reading. I do have longer speaking notes, but I intend to keep this very short—so if noble Lords have any questions I would be happy to address them in my closing remarks. In the meantime, I beg to move.

Amendment 2 agreed.

Moved by

[Viscount Younger of Leckie]

3: Clause 39, page 23, line 23, leave out “paragraph (a)” and insert “paragraphs (a) and (aa)”

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[Viscount Younger of Leckie]

4: Clause 58, page 40, line 19, leave out “it” and insert “the OfS”

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[Viscount Younger of Leckie]

5: Clause 78, page 53, line 6, leave out “or” and insert “and”

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Moved by

[Viscount Younger of Leckie]

6: Clause 83, page 55, line 24, at end insert—
“( ) section 11(9) (mandatory fee limit condition for certain providers),”

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Moved by

[Viscount Younger of Leckie]

8: Clause 119, page 76, line 26, at end insert—
“(3A) Where the OfS has a consultation function involving registered higher education providers, references to registered higher education providers in the provisions describing the consultees are to be read as references to English higher education providers—(a) for the purposes of applying subsection (2) at any time when there are no registered higher education providers, and(b) for the purposes of applying subsection (3) in relation to anything done under subsection (2) in reliance upon paragraph (a) of this subsection.(3B) For the purposes of subsection (3A), “a consultation function involving registered higher education providers” is a function of consulting—(a) registered higher education providers (whether generally or a description of such providers), or(b) persons with a connection (however described) to such providers.(3C) In subsections (3A) and (3B), “English higher education provider” and “registered higher education provider” have the same meaning as in Part 1 (see sections 83 and 85).”

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Moved by

[Viscount Younger of Leckie]

9: Schedule 4, page 96, line 14, leave out “Part 1 of”

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[Lord Stevenson of Balmacara]

My Lords, it is otiose to add very much to what was a wonderful account of the ramifications that one can get into when one moves to question some of the wording in the schedules to some of our more complex Bills. As a guide, the noble and learned Lord has been a wonderful education for a higher education specialist such as me. To have gone through a higher education Bill and then to have learned something right at the very end is a touch of magic—a bit of fairy dust that will sprinkle down across all of us. All we now need is for the noble Viscount to stand up and measure up to the relatively low but still quite precise hurdle that has been set for him. He is an elegant, small chap; he has light feet; he has had a brilliant career in dealing with difficult questions that we have thrown at him across the Dispatch Box. I am sure that this is well within his capabilities. He would be strongly advised, given the rather glowering face behind him, to do it right this time.

[Viscount Younger of Leckie]

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

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

“sufficiently serious to justify entering premises”,

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

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

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

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

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

“when dealing with a criminal cause or matter”.

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

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

[Lord Mackay of Clashfern]

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

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Moved by

[Viscount Younger of Leckie]

11: Schedule 6, page 105, line 29, leave out “Part 1 of”

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Moved by

[Viscount Younger of Leckie]

That the Bill do now pass.

[Viscount Younger of Leckie]

My Lords, before the Bill does, I hope, indeed pass, I want to say a few words. At this milestone in the Bill’s passage, I, along with my colleague, the Minister in the other place, would like to take a moment—and I hope that noble Lords will indulge me as I use this term one last time—to reflect, and perhaps I should say reflect carefully, on how far it has come since being introduced to this House last November.

The Bill is the most significant piece of legislation that the higher education sector has seen in 25 years. As is fitting for such an important piece of legislation, we have heard powerful speeches from distinguished noble Lords, many of whom have held respected posts in our world-class higher education and research institutions, on key aspects of the Bill. For example, the importance of protecting institutional autonomy has been an area on which we have reached agreement. The amendments on this issue that were brought forward by noble Lords on Report, which the Government supported, were welcomed across these Benches. The Government listened carefully and responded on this issue, as we did on many others. I believe that the Bill is better as a result of this reflection. I look forward to continued discussions on the changes that the Lords is sending to the Commons, but I am truly grateful for the extensive debate, discussion and consideration of all aspects of this important piece of legislation from all sides of the House.

I express particular gratitude for the constructive engagement of numerous noble Lords. Before I forget, I want to thank my noble and learned friend Lord Mackay for his very kind words about my father. It was moving and I am very grateful. I start by thanking noble Lords opposite, particularly the noble Lords, Lord Stevenson, Lord Watson and Lord Mendelsohn, who have led the Bill from the Opposition Benches. The noble Baroness, Lady Garden, and the noble Lords, Lord Storey and Lord Addington, played a key role for the Liberal Democrats. A wealth of experience has been brought to bear from the Cross Benches: to name just a few, I thank the noble Lords, Lord Kerslake, Lord Lisvane and Lord Krebs, and the noble Baronesses, Lady Brown, Lady Wolf in particular, Lady O’Neill, who is in her place today, and Lady Deech. I also thank the right reverend Prelates the Bishops of Durham, Portsmouth and Chester. Of course, I thank my noble friends behind me: my noble and learned friend Lord Mackay, who I have mentioned already, and my noble friends Lord Lucas and Lord Selborne. Above all, I pay tribute to my noble friend Lord Willetts, who may or may not be in his place—I do not have eyes in the back of my head, I am afraid—whose higher education White Paper in 2011 paved the way for the reforms outlined in the Bill.

Finally, I thank my colleagues—my noble friends Lady Goldie, Lord Prior and Lord Young—for their admirable support throughout the passage of the Bill so far; I stress “so far” because there is a little way to go. I also thank the officials in the Department for Education and the Department for Business, Energy and Industrial Strategy, along with officials in the Home Office, the Cabinet Office and the Ministry of Justice who have supported the Bill. I particularly thank the officials in the higher education and research teams and the Bill team. Having mentioned all those departments, I think the Bill has been a great example of how departments can work together effectively. Once again, this House has demonstrated the value of the scrutiny it adds to the legislative process. While we are by no means at the end-point of the Bill, as I have said, I thank all those involved in reaching this significant milestone.

[Lord Stevenson of Balmacara]

My Lords, I gather from the Public Bill Office that the Bill may have broken all records for the number of amendments tabled during its passage. That is an indication of the interest it generated across the House, which allowed the House to play a full and important role, as just mentioned by the Minister, as we scrutinised every clause and, indeed, virtually every line.

The Minister was kind to say that he felt that the Bill had been improved in this process. Ministers do not always feel that way about Bills that have been torn to pieces and not always put back together in the form that they originally liked. He is right that there were things we could do with the Bill to make it, within the context of its overall shape and form, slightly better and more accommodating of the needs of the sector it was intending to regulate. As the Minister says, there is further to go and perhaps it will change again, but we have certainly made a lot of progress. My noble friend Lord Watson said earlier on another Bill that the work we had done here is what we do best. It is something your Lordships’ House should continue to do.

I add my thanks to those expressed by the Minister, starting with him and his colleagues—the noble Lords, Lord Young and Lord Prior, and the noble Baroness, Lady Goldie, who all contributed to various areas within the Bill—for their unfailing courtesy and willingness to meet and, of course, to write. We have the epistolary Minister in front of us, who writes letters almost as easily as he breathes. We benefited a lot from those because they were very detailed and gave us a lot of information. We also appreciate, as has been mentioned, the substantial involvement of the Minister for Universities and Science in the other place, who, unusually, is not here today but has been seen around as we have discussed the Bill.

I also thank the Bill team. They were very good at organising meetings and often anticipated what we needed. But they also produced some very helpful factsheets, which have not been mentioned but I found very useful. These were necessary, because for those not involved in higher education it was a bit difficult to get down into the detail of the Bill. The factsheets were very useful in exemplifying what was meant by the various regulatory frameworks and what the architecture would do in practice, and we found them very helpful.

My Front-Bench team was superb. I am grateful to my noble friends Lord Watson and Lord Mendelsohn, who covered large areas of the Bill and obtained many of the concessions now in it. Our legislative assistant, Molly Critchley—we have only one—was extraordinary and superb and kept us going with grids and other materials so necessary for an effective Opposition, as well as dealing with the Public Bill Office and all those amendments. We are very grateful for its work as well in that respect.

One of the greatest pleasures of the Bill has been the experience of working closely with the other groups in the House. We quickly discovered that our views on the Bill were shared by the Liberal Democrats and a substantial number of Cross-Benchers, and indeed some Members on the Government Benches. We found that by meeting regularly and sharing intelligence about what Ministers were saying in bilateral meetings, we could make better progress than perhaps would otherwise have been the case. As I approach the end of my current spell of active Front-Bench responsibilities in your Lordships’ House, the close working relationship we built up over the Bill is one of the memories I will cherish the most.