Higher Education and Research Bill
Viscount Younger of Leckie ExcerptsMonday 6th March 2017
(8 years, 11 months ago)
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Lord Watson of Invergowrie (Lab)
My Lords, I am sure that the noble Viscount will ask that the amendment be withdrawn, and I can understand why from his point of view—but it does not stand up to scrutiny to maintain that the name of the body should be the Office for Students. In response to my noble friend Lord Lipsey’s amendment in Committee, the noble Viscount said:
“This Bill sets out a series of higher education reforms which will improve quality and choice for students, encourage competition and allow for consistent and fair oversight of the sector”.
Many noble Lords may have doubts about anything other than the second of those objectives, but the noble Viscount was correct to point out that, in introducing the Bill, the Government had those three distinct objectives—so why were they unable to come up with a title that encompassed more than one of them?
The Minister also said in Committee that it was the Government’s intention,
“to put the student interest at the heart of our regulatory approach to higher education”—[Official Report, 9/1/17; cols 1840-41.]—
hence the name. That claim does not withstand close scrutiny. If that had been the case, why did the Bill not contain provision for at least one student on the board of the OfS? Why did it require vigorous argument by the Opposition in Committee in the other place before the Government came up with a rather weak amendment to Schedule 2 providing for the OfS board merely to,
“have regard to the desirability of”,
someone with,
“experience of representing or promoting the interests of individual students”.
It does not provide for such representation; it just says that it is desirable.
In that context, the name “Office for Students” is not without some irony. It is certainly inappropriate because it is a misnomer. If the Minister wants the amendment to be withdrawn, it is incumbent on him and his Government to come up with a name that more accurately reflects the duties that the body is about to assume.
Viscount Younger of Leckie (Con)
My Lords, I appreciate having a further short debate on this matter, but I find it a little ironic how in Committee many noble Lords sought to omit “standards” from the Bill, but now this amendment would add “standards” to it. I would argue that the name relates to the OfS’s core functions and purpose. In response to concerns that the mission of the Office for Students is not sufficiently focused on the interests of students to merit its name, let me assure noble Lords that the Bill places a clear duty on the OfS to consider the interests of students in every aspect of its operations.
The OfS has duties to have regard to the need to promote greater choice and opportunities for students and to encourage competition between higher education providers where this is in the interests of students and employers. It is therefore entirely appropriate that the body should be called the Office for Students—dreary or not—and that its title should signal the fundamental refocusing of the regulatory system towards the student interest which the reforms are intended to bring about.
Baroness Blackstone
My Lords, this organisation is not just about students’ interests. Of course they should be at the centre of it and important, but it is about the nation’s interests. There are huge externalities in having a good higher education system. It is about employers’ interests, it is about families’ interests, and it is certainly about the interests of our knowledge economy. It goes far wider. I accept that “standards” probably should not be in the title, but why not call it the Office for Higher Education?
Viscount Younger of Leckie
My Lords, the simple answer, which I think I made clear in Committee and just now, is that this is for students: the focus is on the students, and we want to keep it that way. We are very clear about that. That is not to say that we did not listen carefully in Committee to the views on this matter raised initially by the noble Lord, Lord Lipsey, but we are adamant that the main focus—yes, the focus can be a little broader—is on students. We are sure about that.
The newly appointed chair of the Office for Students, Sir Michael Barber, reflected in his evidence to the Education Committee that the Office for Students title is no accident. He emphasised that the student interest must be at the heart of the new office.
In respect of the alternative name proposed by the noble Lord, Lord Lipsey, I cannot agree that,
“Office for Higher Education Standards”,
would be a suitable name. As we have seen during debates “standards” has a specific meaning within the sector and is only part of what the Office for Students will be responsible for. Noble Lords have frequently expressed strong views during debate that the standards used by the OfS should be those owned by the sector—a point that we have considered carefully, and amendments have been tabled to address this.
With great respect not only to the noble Lord, Lord Lipsey, but to the noble Lord, Lord Burns, it would be highly misleading to refer to standards in the name of the regulator, and I think other noble Lords in this short debate have acknowledged that. It would imply that they are the main emphasis of its remit. I therefore ask the noble Lord, Lord Lipsey, to withdraw his amendment.
Lord Lipsey
My Lords, I am very tempted to seek the opinion of the House because I think the Minister might find himself having to be his own Teller, given the unanimity in the debate so far. However, there is unanimity in the House that this title is wrong but there is not complete unanimity on all sides that the alternative title proposed by the noble Lord, Lord Burns, is the right one. I shall therefore take this away and think some more before Third Reading. I hope that the Minister might yet have a conversion in view of the powerful arguments levied against him and the weakness of those he put forward, and that he will propose a new title. If not, of course, we will have the option of dividing the House at Third Reading. I beg leave to withdraw the amendment.
Lord Mackay of Clashfern (Con)
My Lords, I support Amendment 7 tabled in this group by the noble Lord, Lord Addington, and the noble Baroness, Lady O’Neill of Bengarve, and I want especially to mention Amendment 2. As I explained at Second Reading, my legal education, such as it was, was part-time, and I think that it is a very useful type of education with its mix of theory and practice in whatever it is you are aiming to do. I hope that this amendment will be considered seriously because it is important that the full range of students should be borne in mind by the authority looking after them, whatever its name happens to be.
As this is a new stage of the Bill I ought to declare my interests. I have been connected in one way or another with universities for a good part of my life, including two honorary fellowships at colleges in Cambridge, but I am not conscious that any of that has particularly affected my views on this Bill.
Viscount Younger of Leckie
My Lords, this is a large group of important amendments—I think it is fair to say that it has grown in the past 24 hours—to which we have heard many valuable contributions, so I make no apologies for speaking at some length. Before I do, I wish to reiterate a point made by noble Lords on many occasions during the debate. One of the great strengths of our world-class higher education system is its diversity. That diversity, be it in the form of part-time study, providers of a denominational character or new innovative providers entering the market, is essential to promoting greater student choice. We want all students, whatever their background or circumstances, to get the most they possibly can from a higher education experience that can respond to their varied needs. A number of noble Lords have also made that point in this debate.
I turn first to government Amendment 8, on diversity of provision. The noble Baroness, Lady Bakewell, who is the president of Birkbeck, has long been a passionate supporter of part-time study and non-traditional students. Speaking in an interview in 2013 to Times Higher Education, the noble Baroness declared—perhaps I may quote her; I am sure that she will remember it:
“Part-time study and flexible learning are going to play a big part in the future of our society”.
The amendment I have tabled along with the noble Baroness, Lady Garden, explicitly recognises that. It makes it clear that choice among a diverse range of higher education provision is part of the OfS’s duty to promote greater student choice. That includes but is by no means limited to choice among a diverse range of provider types, course subjects and modes of study such as full-time, part-time, distance learning and accelerated courses. These are only examples rather than a comprehensive list because when looking to the future, the needs of students, employers and our economy will change and the sector will need to continue to innovate and diversify in response. That is why the Bill goes much further than the existing legislative framework in ensuring that the OfS board will include a diverse representation of interests, including individual student representation, and covering different types of institution.
At the same time, we need to avoid limiting the desirability of experience to a restrictive list of requirements that could prevent the Secretary of State appointing a board that is able to address the challenges and priorities of the day. Regarding Amendment 2, I would like to reassure noble Lords that the Bill as drafted enables the Secretary of State to choose, if he or she so wishes, board members with experience, knowledge and expertise in part-time study, adult and distance learning, and any manner of other diverse means of delivering higher education.
I turn now to Amendments 7, 48, 87 and 94 to 98, on equalities, access and participation. I understand and share the intent behind these proposals: where particular groups face additional barriers to accessing and participating in higher education, they should of course be supported appropriately and protected from discrimination. But I fear that the practical application of these amendments risks imposing additional burdens and constraints on the OfS that might not guarantee better outcomes for students. My noble friend Lord Lucas suggests specific ways of evaluating access and participation. I thank him for this and appreciate his engagement, but we do not see it as necessary. Providers already evaluate these activities and we expect this to continue.
We are proud that measures to increase access and participation and equality of opportunity are at the heart of the Bill. It already gives the OfS an explicit duty to have regard to the need to promote equality of opportunity in connection with access to and participation in higher education across all its functions. The OfS collectively, rather than a single member, will be responsible for demonstrating how that duty is being fulfilled.
Paragraph 13 of Schedule 1 confirms that the OfS must report annually on its functions—including access and participation functions—and that this report must be laid before Parliament. There is therefore no need for a separate report on access and participation. Taken together with the Equality Act, our reforms will help to create a framework within which all students should be protected—a framework that enables autonomous providers to respond to the needs of their particular student body by developing appropriate support services and procedures.
Throughout our consideration of the Bill the noble Lord, Lord Addington, has been tireless in his advocacy on behalf of disabled students. I can assure him that we will continue to work closely with the sector to promote best practice in making reasonable adjustments within the framework of the Equality Act. I have listened to the noble Lord’s concerns in Committee and today. I have met with him to discuss this important issue further. I am pleased to say that the Government have published a report by a senior sector-led group, setting out best practice principles for making reasonable adjustments. We will continue to work with that group to support higher education providers in identifying how those principles can be applied in practice. I will say more on this in a moment.
However, providers need the flexibility to determine precisely how best to meet their students’ needs, consistent with their Equality Act duties. Similarly, the OfS needs the flexibility to determine precisely how best to discharge its duties regarding equality of opportunity. I agree with the noble Lord that identifying barriers faced by particular groups of students and considering how they might be addressed is one way in which the OfS might take into account its duty regarding equality of opportunity. However, I believe that imposing this as a further duty on the OfS as set out in the amendment could be counterproductive, placing additional burdens on the OfS without a commensurate benefit for students.
I say this to the noble Lord, Lord Addington, who, I know, is well exercised by this issue, as perhaps are a few other noble Lords. I can confirm that I and the Minister for Universities and Science, Jo Johnson, will write to the chair of the Disabled Students Sector Leadership Group to ask that it invite the noble Lord to meet it and work with him to develop the guidance further, based on his experience and expertise.
I listened carefully to the point made about dyslexia assessments. The noble Lord raised this issue with me in our recent meeting, and I understand his concerns. Students must provide evidence of their disability to prove eligibility for DSA, and they are liable to meet the costs of this. It is not the purpose of DSA to cover the costs of diagnosis of a condition or disability. Rather, it provides help with only the additional costs of study that a student incurs by virtue of having a diagnosed disability.
The question that could be asked is whether a provider could rely on previous diagnostic reports, or whether the disabled student may be able to bring these with him. This may have been the gist of the line the noble Lord was taking. However, all students are asked to provide evidence of their disability. This is fair, because every institution is different. It is important that the provider or institution can assess correctly students’ needs in relation to the particular course they are taking. That has to be based on up-to-date information. I hope that slightly more prolonged answer will help a little with the noble Lord’s issues.
Lord Addington
My Lords, you might have a very good diagnosis given by an educational psychologist at the age of 14—before the age of 16—but your brain does not change its wiring at this age. You are assessed; you are given support; and you then have to pay for another report that tells you exactly the same thing. Does the Minister agree that the practice is an absurdity?
Viscount Younger of Leckie
I shall not be drawn on that today, my Lords, but the intention here is that we work ever more closely with the noble Lord. I hope that the pledges Jo Johnson and I have given will at least help to nail down further the issues the noble Lord has raised.
I turn to another important issue, mental health, raised by the noble Lord, Lord Storey. We are working alongside the sector to identify measures which will make a real difference to staff and students. This will inform the Green Paper on mental health later this year, of which the noble Lord will be aware. Noble Lords have rightly raised the issue of mental health in higher education throughout our deliberations on this Bill. I say again that the Government expect higher education providers to provide appropriate support services for all their students and staff, including those with mental health issues. However, there is a balance to be struck here, because it is vital that we retain flexibility to enable autonomous institutions to meet the needs of their own staff and students. With that, I ask that the noble Baroness withdraw her amendment.
Baroness Garden of Frognal
My Lords, I thank the Minister for his detailed and constructive reply, and all noble Lords who have taken part in what has turned out to be a wide-ranging debate. We have covered part-time students, mental health disabilities, randomised control trials and bursaries, the Director of Fair Access, dyslexia in particular and a range of other issues. There has been quite a lot for us to think about, which we will take away. We may wish to bring back some of the issues at Third Reading. For the time being, I beg leave to withdraw the amendment.
“( ) The report must include a statement regarding how the OfS has cooperated with UKRI during that year.”
Viscount Younger of Leckie
My Lords, the fundamental importance of joint working between the OfS and UKRI has been raised many times in this Chamber, in the other place and beyond. We listened carefully to the debates in Committee, including the powerful contributions from the noble Lords, Lord Triesman and Lord Smith, and many others, and with these two amendments we are responding.
The Bill requires both organisations to report annually to Parliament. This amendment will expand these reporting provisions to require that the annual reports of both organisations include a section detailing how they have co-operated over the period of the reporting cycle. This would include issues such as knowledge exchange and HEIF, or RDAPs, which we look forward to discussing later on.
With the amendments we are making it clear that the two organisations should co-operate. Clause 108 empowers them to do so. Now they must cover how they have done so in their annual reports, providing Parliament and commentators with the opportunity for scrutiny.
The amendments strike the right balance between empowering and facilitating joint working by requiring transparency around co-operation, without taking us into a prescriptive and potentially limiting list of activities which would be impossible for the organisations to expand or alter in response to changing circumstances. I beg to move Amendment 3.
Lord Mackay of Clashfern
My Lords, I strongly support the amendment. I just hope that in due course the Minister will be able to go a little further—but the amendment is very much in the right direction.
Lord Mendelsohn (Lab)
My Lords, I welcome these amendments. Amendment 3 has been signed by my noble friend Lord Stevenson of Balmacara. Of course, we will return to this subject when we discuss the research parts of the Bill next week, with a much more substantial amendment which talks about some of the elements of co-operation.
We welcome the amendment but share the view that it does not go far enough. Reporting on how these organisations co-operate is not about whether they should co-operate or even the nature of that relationship—how strong or firm a relationship they would want to forge. The amendments cause some degree of limited expectations and even an expectations mismatch. One of the briefings that I received for this seemed to believe that this would be subject to an annual report in and of itself. That is not the case. This is within the context of the existing annual reports.
Given that the reforms are about both policy design and a high level of operational change, delivery is a very important factor. It is noticeable that the Nurse review, which considered the operational elements of the creation of UKRI and the importance of weaving it into the right tapestry of partners, had a clearer and more prescriptive approach. Notwithstanding these concerns, which we will debate later, we support the amendment and hope to make further improvements later on.
Viscount Younger of Leckie
My Lords, I am pleased that we have found general common ground on this matter, although I picked up from this short debate that my noble and learned friend Lord Mackay, the noble Baroness, Lady Brown, and the noble Lord, Lord Mendelsohn, feel that perhaps we should go a little further.
I thought that my noble friend Lady Rock put it rather eloquently: an emphasis on working together will be expected to run through the leadership and management of both organisations, supported by a legal framework that will be sufficiently flexible to deal effectively with areas of shared interest. Additionally, the government amendments will require the organisations to state in their annual reports how they have co-operated with each other over the reporting period. We consider that this an efficient way of ensuring transparency without the creation of additional reporting bureaucracy.
Lord Stevenson of Balmacara (Lab)
My Lords, I have signed this amendment and all the others that make up this package, which is a substantial one; we should not underestimate the impact it will have. It is a most significant move for the Government to recognise the pressure of institutional autonomy right across the sector. It would be hard to overstate the impact of this coming together of the whole House with the Government to create an intervention in this area. We welcome it.
It is important also to recognise that the concession made was not just rearranging the existing wording—we acknowledge that the Bill already had a lot about institutional autonomy. Making not simply the OfS but the Secretary of State responsible for having regard to the need to protect institutional autonomy is a much more powerful approach. We should be cognisant of that as we accept the amendments.
It is important also to recognise that there is a gap. Although it has been pointed out that the UKRI is not a regulator in the same sense as the OfS, we will later move an amendment that proposes that the UKRI also have regard to institutional autonomy because there will be joint responsibilities in relation to research degrees, but also because these bodies will be operating with the same funding group—obviously, a smaller one in the case of the UKRI; nevertheless, it is important that we have equality of arms.
This has been a very successful case of trying to get a better Bill from what the Commons presented us with. It is a better Bill as a result of this intervention—of course, there is more to come. We should acknowledge that the leadership of the noble Lord, Lord Kerslake, and the support that he and I received from the noble Baronesses, Lady Wolf and Lady Brown, and the noble Baroness, Lady Garden, from the Liberal Democrats, has been instrumental in persuading the Government that they should take account of this issue.
In bringing attention to the need for new providers in Amendment 5, the noble and learned Lord, Lord Mackay, has done us a service by ensuring that we think not only of existing arrangements within the sector but new entrants. It is important that we pick up the theme behind his amendment and ensure that it is properly regarded as we proceed.
In concluding, I hope we can have the Minister’s assurance that all the amendments in this group will be taken as consequential if the lead amendment is passed.
Viscount Younger of Leckie
My Lords, I am grateful to the noble Lord, Lord Kerslake, for introducing this group of amendments and the helpful and constructive engagement I have had with him and many other noble Lords, not least the noble Lord, Lord Stevenson, the noble Baronesses, Lady Brown and Lady Wolf, and my noble friend Lord Waldegrave on the issue of institutional autonomy.
I am particularly grateful to the noble Lord, Lord Kerslake, for his amendment in Committee, which was widely supported across the House and which has provided an excellent template for the institutional autonomy protections that we are discussing today. Indeed, on issues across the Bill, I am grateful for the expert scrutiny the Bill had in Committee and the many constructive meetings that my honourable friend in the other place, Jo Johnson, and I have held with noble Lords since.
I said in Committee that we were listening and reflecting on the issues raised, so I hope that noble Lords will recognise that that is exactly what we have done through the government amendments. I am particularly pleased that institutional autonomy is one of the areas where we have found common ground. Institutional autonomy and academic freedom are the keystone of our higher education sector’s strength. Throughout the Bill, we have sought to protect these values, but we recognised and understood the importance of extending these protections to the work of the OfS and of enshrining institutional autonomy itself in legislation for the first time.
I turn to Amendment 5, spoken to by my noble and learned friend Lord Mackay. We have already seen new providers emerge that do not fit the stereotypical—often negative—description that has been previously offered. The Government welcome plans to introduce new models of provision, such as that proposed by the New Model in Technology & Engineering in Hereford. I reassure noble Lords—my noble and learned friend in particular—that the Bill already allows both the OfS and the Government to consider, encourage and respond to the emerging needs for new providers, so while I support the broad intent of Amendment 5, I feel it is unnecessary.
I should like to make a few further points. We believe that the duty on the OfS to have regard to the need to encourage competition between higher education providers and regulate in a proportionate manner will ensure that it encourages meeting the emerging needs of new providers. The OfS has many duties and there are already a variety of other measures in our reforms that will enable the Government, as well as the OfS, to support the need for new providers.
Lord Lucas
My Lords, before my noble friend sits down, if he cannot reply now, will he reply by letter to the question I asked on Amendment 11?
Lord Kerslake
My Lords, I thank all noble Lords who have contributed to this debate for their support. I share the Minister’s view that this now provides a robust protection of institutional autonomy. The relative brevity of this debate should not in any way signal that this is not an important issue—it clearly is—nor, indeed, a lack of our recognition and appreciation of the Government’s response to the concerns. I am delighted at the level of support; this will significantly improve the Bill.
“( ) The reference in subsection (1)(a) to choice in the provision of higher education by English higher education providers includes choice amongst a diverse range of—(a) types of provider,(b) higher education courses, and(c) means by which they are provided (for example, full-time or part- time study, distance learning or accelerated courses).”
“( ) the number of students who attained a particular degree or other academic award, or a particular level of such an award, on completion of their course with the provider.”
Viscount Younger of Leckie
My Lords, I shall speak first to the amendments on the transparency condition, then turn to those regarding student transfer. I have reflected on the arguments put forward in Committee, and we are clear that the transparency duty must remain focused on equality of opportunity through widening participation. I noted in Committee that the noble and learned Lord, Lord Wallace, and my noble friend Lord Lucas raised an important point on including attainment in the existing requirements to provide application, offer, acceptance and completion data. The evidence shows that there is more to do to close the attainment gap, which is particularly pronounced for certain groups of BME students.
We agree with noble Lords that attainment is an area that should be addressed and I thank them for their attention on this matter. That is why our Amendment 14 will add degree attainment at the end of the undergraduate’s course to the existing information required under the transparency condition. This will enable us to look across the whole student lifecycle, from application to graduation. I will now ask my noble friend Lord Lucas and the noble and learned Lord, Lord Wallace, to speak to their amendments, and I will then respond.
Lord Lucas
My Lords, I will speak to Amendments 15 and 17. Amendment 15 would give the Secretary of State a general power to add requirements. My principal concern with this bit of the Bill is that we have not really understood how much information UCAS has which it has not let out for the benefit of students and how many ways there are in which that information might be used to improve the quality of student decision-making. We will find this out, as time goes on, and I would like the Government to have the ability to respond to it. I am grateful for the changes which the Government have made in the Bill, particularly those to research using UCAS information, and we will certainly make some progress in this direction. However, I would be delighted if the Government felt able to give themselves the additional freedoms contained in Amendment 15.
Turning to Amendment 17, I want to be sure that all this information, which is being published by universities and made publishable by the Office for Students, actually reaches students who are in the process of making a decision. In the monopoly system in which we live, this effectively means that it must be provided—and easily accessed—through the UCAS system. Without this amendment, I cannot see where the Bill gives the OfS or any other part of Government the ability to direct that this information should reach students when they need it, rather than just being published and stuck away in some obscure place on universities’ websites, as is a lot of interesting information such as, in some cases, what the courses actually teach. There is a long practice of not making vital information easy to find. I would like the Government to have the ability to make sure that it was there when students ought to have it.
Lord Stevenson of Balmacara
My Lords, this has been a very good and interesting debate. I think that there are some questions to which the Government will want to respond and I will not overegg the pudding at this stage. However, the question of why we are not including protected characteristics, as mentioned by the noble and learned Lord, Lord Wallace, is interesting. Amendments 16 and 18 are helpful in this regard. I take the points made by the noble Baroness, who is expert in these matters. However, if we as a country do not start to set out these requirements in terms of a whole range of protected characteristics, we will be the loser in the long run. It may be just be a question of how we do that.
This group of amendments also contains important first steps towards a more engaged transfer and credit transfer arrangement for students in relation to the higher education sector, which I welcome. However, I again wonder why the Government have not thought to take into account Amendments 47, 128 and 129. It seems to me that they would help progress in this regard, which is something we all support.
Viscount Younger of Leckie
First, I reassure my noble friend Lord Lucas that Clause 10(2) already requires higher education institutions to publish the information contained within the transparency duty. We expect prospective students to be able to access this easily on providers’ websites. I further reassure my noble friend and the noble Lords, Lord Triesman and Lord Willis, among others, that this information will also be shared with the OfS with the intention of presenting these data in a comparable form to students, commentators and advisers.
To respond to the noble and learned Lord, Lord Wallace, I say that noble Lords will recall that we have concerns about legislating to add a wide range of additional characteristics to the duty due to the quality and comparability of the data as well as the disclosive nature of some of the information. However, having listened to noble Lords, and in particular to the noble Lords whom I mentioned just now, we have reflected on their suggestions, and I am pleased to make a commitment to the House today. The Government will, through guidance, ask the OfS to consult on what other information should be published by individual institutions with a view to making their record on widening participation even more transparent.
We expect the consultation to consider whether specific additional information should be made available by institutions. We expect this to include consideration of whether the protected characteristics under the Equality Act 2010 should be captured, including categories such as disability and age. However, the consultation will not limit itself to the protected characteristics and should also look at categories such as care leavers. This will enable a considered view of what additional information should be published by providers, balancing the desire for greater transparency around access and participation with considerations around the robustness and comparability of data, student privacy and the regulatory burden on providers. Universities will be expected to respond to the outcome of the consultation as part of their future access and participation plans following further guidance, once we have established best practice.
I hope that it is clear that we have listened and reflected on the amendments tabled in Committee. The inclusion of attainment will make the transparency condition more effective, and the additional commitment to consult on what other information should be made available will help drive equality of opportunity for all students.
I now turn to the amendments relating to student transfer—
Lord Wallace of Tankerness
Before the Minister leaves that point, perhaps I might press him on something. I expressed a wish to include the characteristic of age, which is objective. I take some of the points made by the noble Baroness, Lady O’Neill, but, rather than putting this out to consultation, a very simple amendment at Third Reading would cover that because it is very pertinent to trying to do things about part-time education and engaging people throughout their lifetime.
Viscount Younger of Leckie
I will certainly reflect on what the noble and learned Lord has said. He has been in touch with me outside the Chamber, and I will read Hansard carefully and reflect on this matter before the next stage.
I now turn to student transfer. It is an issue that noble Lords raised in Committee and we have reflected on this as well. There is a vast array of reasons why a student might need or want to transfer between courses or institutions, be they personal, financial or academic. We received over 4,500 responses to our call for evidence on this issue last year. These told us that transfers do indeed already occur but the opportunities to do so are not well known and could be developed further. We believe that students should understand the transfer options available and know how to readily take advantage of them. That is why we are proposing Amendments 100, 139 and 141.
The new clause proposed in Amendment 100 would 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, as well as the take-up of those arrangements, and the OfS would have a duty to report annually on its findings. The proposed new clause would also enable the OfS to facilitate, encourage or promote awareness of the arrangements for student transfer so that the OfS could help ensure that students understood the options for changing course or institution and that best practice was promoted among higher education providers.
I thank the noble Lord, Lord Willis, and the noble Baroness, Lady Garden, for their amendments on this important issue. However, given the Government’s assessment of the evidence of barriers to student transfer, I do not think it is desirable to adopt these amendments. Such an approach would reduce the flexibility available to the OfS as it develops its understanding, as well as being overly prescriptive and potentially burdensome on institutions. I believe that the government amendment will achieve our shared aims without interfering with or overly mandating how the OfS manages its information-collection processes.
Lord Willis of Knaresborough
I want to clarify with the Minister whether I can make an intervention to ask him something or whether I can speak to these amendments.
Viscount Younger of Leckie
My understanding of the rules in the Companion is that the noble Lord is able to ask a short question for clarification.
Lord Willis of Knaresborough
In that case, I shall do so. It must be clear to any Member of this House who has followed credit transfer and accumulation and linked it with transfer between institutions that, when transferring to another institution and using prior learning to shorten a course or indeed continue with a course, it is essential to have in place an effective credit accumulation system. Unless there is some movement in that direction then, quite frankly, just being able to publicise whether you can transfer between institutions is rather meaningless.
Viscount Younger of Leckie
I hope I have made it clear that it is very much a priority to enable students to do so, in that we want to make sure that, practically, this can work. I hope I have given enough reassurance that this will work—it will need to work, otherwise it will not work.
Lord Stevenson of Balmacara
My Lords, this has been a very good debate and it anticipates another debate which, at this rate of progress, we will be able to schedule and advertise for those noble Lords who wish to come back and listen to it for Wednesday just after Oral Questions, when we will be returning to many of the themes. This is quite a narrow amendment. The amendment before noble Lords is not about what metrics could be used or other issues relating to the TEF, as it is called. It specifically tries to avoid that, to leave space for that debate to take place on Wednesday. It specifically tries, though, to break the link that might be established between any scheme established under Clause 26 and the ranking of higher education providers as to the fees or the number of students they may or may not recruit.
On a number of occasions the Minister has been at pains to point out that, throughout the very long period we kept the House sitting in Committee on the Bill, he was, in complete contradiction to the impression he gave, listening and, indeed, in some cases, reflecting. It was sometimes difficult to get the nuance between listening and reflecting but those were the words he used. We were doing the same. We have been listening to and reflecting on some of the responses we have heard to the very good cases that have been made around this aspect of the Bill, and I have to say that, having listened and reflected, I do not think he has made the case well, but the case that has been made around the Chamber this afternoon is exactly on spot.
If you want to raise the fees in higher education to accommodate the cost increases referred to by the noble Lord, Lord Bilimoria, it has been possible since 2004, and Labour’s Higher Education Act, to raise fees by inflation. It was done routinely between 2007 and 2012 by two successive Governments. There is no reason at all why the Government should not bring forward a statutory instrument under the terms of the Act that makes provision for the power to do so. There is no need, in fact, to anticipate what may be a good system for measuring higher education by linking it to the teaching quality that has been discovered by a half-baked scheme that is not yet half way through its pilot system. The case was made very well by the noble Lord, Lord Kerslake, and by the noble Baroness, Lady Garden of Frognal. The case for linking the quality of education and fees, or the quality of education and the number of students, is completely hollow. I very much hope that if the noble Lord wishes to test the opinion of the House, he will do so. We will support him.
Viscount Younger of Leckie
My Lords, before I discuss fees, I would like first to be clear that the Government welcome genuine international students, and to reiterate the confirmation that I offered in Committee that we have no plans to cap the number of genuine students who can come to the UK to study, nor to limit an institution’s ability to recruit genuine international students, based on its TEF rating or on any other basis.
As well as the link to student numbers, this amendment would remove an important principle at the heart of the TEF: the link to fees. The TEF is intended to rebalance the priority given to teaching and learning compared to research. Funding for teaching is currently based on quantity, whereas research is funded on quality. It was a Conservative Government who first introduced early versions of the research excellence framework. Over the past 30 years, the principle of linking funding to quality has incentivised the UK’s research base to develop into the world-leading sector that we have today. We want to apply the same principle that has driven such continuous improvement in research to teaching. Linking fees to the TEF will provide strong reputational and financial incentives to prioritise the student learning experience.
It is important that high-quality institutions can maintain fees in line with inflation if we are to ensure that the sector remains sustainable. As I pointed out in Committee, the £9,000 fees introduced in 2012 are worth only £8,500 today and will be worth less than £8,000 by the end of the Parliament. If we want to provide the best-quality education in our universities, and to compete with our global rivals, universities need the resource to invest in their teaching facilities. This is why the Universities UK board unanimously supported the link between an effective TEF and fee rises. Some 299 institutions have voluntarily applied to take part in the TEF this year out of about 400: that represents a big majority. This includes the majority of the established higher education sector, including all the English Russell group universities. I think that noble Lords will agree that this represents a very encouraging and excellent endorsement of the current scheme.
Furthermore, as GuildHE said:
“The link between the TEF and inflation increases in fee and loan caps makes sense ... When the £9000 fee cap was introduced in 2012/13, the BIS spending review assumption was that it would rise by inflation each year. Instead, the price has been held flat for four years. Without an increase to take account of rising teaching costs, the ability of institutions to invest in the quality of the learning experience on offer will, inevitably, decline”.
However, there will be no something for nothing. Make no mistake: if this amendment is enacted the sector will lose £16 billion over the course of the next 10 years. This is the value of the funding we intend to make available for institutions through the TEF. We will not allow universities to raise their fees unless they can demonstrate, through the TEF, that their teaching is of the highest quality.
Higher Education and Research Bill
Viscount Younger of Leckie Excerpts(8 years, 11 months ago)
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(a) as the floor amount in respect of the higher amount, or(b) where different amounts are prescribed as the higher amount for different cases or purposes by virtue of section 115 (5)(a), as the floor amount in respect of each higher amount.( ) Where different amounts are prescribed as the higher amount for different cases or purposes by virtue of section 115 (5)(a)—(a) the reference in sub-paragraph (8)(a) to the higher amount is to the higher amount in respect of which the sub-level amount is determined, and(b) the reference in sub-paragraph (8)(b) to the floor amount is to the floor amount prescribed under sub-paragraph (9) in respect of that higher amount.”
(a) as the floor amount in respect of the basic amount, or(b) where different amounts are prescribed as the basic amount for different cases or purposes by virtue of section 115 (5)(a), as the floor amount in respect of each basic amount.( ) Where different amounts are prescribed as the basic amount for different cases or purposes by virtue of section 115 (5)(a)—(a) the reference in sub-paragraph (7)(a) to the basic amount is to the basic amount in respect of which the sub-level amount is determined, and(b) the reference in sub-paragraph (7)(b) to the floor amount is to the floor amount prescribed under sub-paragraph (8) in respect of that basic amount.”
“(6) Sub-paragraphs (2) to (4) do not apply to regulations where—(a) the higher amount, basic amount or floor amount in question is in the case of an accelerated course, and(b) paragraph 5 applies to the regulations.(7) “Accelerated course” in sub-paragraph (6)(a) has the same meaning as in paragraph 5.5 (1) No regulations may be made under paragraph 2 prescribing—(a) the higher amount in the case of an accelerated course at a level which is higher than what would be the higher amount in the case of that course if it were not an accelerated course, or(b) the floor amount in the case of an accelerated course at a level which is higher than what would be the floor amount in the case of that course if it were not an accelerated course,unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.(2) No regulations may be made under paragraph 3 prescribing—(a) the basic amount in the case of an accelerated course at a level which is higher than what would be the basic amount in the case of that course if it were not an accelerated course, or(b) the floor amount in the case of an accelerated course at a level which is higher than what would be the floor amount in the case of that course if it were not an accelerated course,unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.(3) An “accelerated course” means a higher education course where the number of academic years applicable to the course is at least one fewer than would normally be the case for that course or a course of equivalent content leading to the grant of the same or an equivalent academic award.”
Viscount Younger of Leckie (Con)
I thank noble Lords for their engagement with the issue of standards in the Bill. As the noble Lord, Lord Stevenson, said, this is an important matter, and in Committee I undertook to consider what more we could do to address the concerns raised. I am pleased that this is another area where we seem to have been able to find common ground.
Throughout the passage of the Bill we have been clear that the standards that the OfS will use are those that are owned by the sector and contained within the framework for higher education qualifications. We are now amending the Bill to put this beyond doubt.
These amendments remove the previous definition of standards, which I recognise was the cause of some concern. Instead, we are making it clear that the standards against which providers are assessed, and to which registration conditions can refer, are the standards that are determined by, and command the confidence of, the higher education sector, where such standards exist. I reassure noble Lords that where sector-recognised standards exist but do not cover a particular matter, the OfS cannot apply its own standard in respect of it. This approach is in the spirit of co-regulation and allows the sector to develop its standards as it sees fit, to meet the challenges of the day.
We are also legislating to clarify that, where a quality body is designated, it will have sole responsibility for the assessment of standards. This keeps standards assessment at arm’s length from government in a truly co-regulatory way. I assure noble Lords that the quality body—or the OfS where there is no quality body—must have regard to the advice given to it in this area by the independent quality assessment committee that we are setting up under Clause 25 of the Bill.
When my colleague, Jo Johnson, announced these amendments on 24 February, they were widely welcomed by the sector. Universities UK said that they are a,
“very positive step and show the government has listened to the concerns of the higher education sector around academic standards and the independence of universities”.
I am delighted that the noble Lord, Lord Stevenson, and the noble Baroness, Lady Brown, have also indicated their support for our approach by putting their names to the amendments we have tabled. Given this support, and that the noble Baroness, Lady Brown, has withdrawn other related amendments to Clause 14, Amendment 49 will not have the effect of limiting the registration conditions of the OfS. I therefore ask that Amendment 49 be withdrawn.
Baroness Brown of Cambridge
I thank the noble Lord, Lord Stevenson, for his comments and the Minister for his. This and a number of others, including the work with the Government on autonomy, are hugely important examples of the effective work of the House of Lords at a time when we have come in for some bashing in the press in other areas. This is something to celebrate and I reinforce my positive comments about the hard work of the Bill team and the Minister, which is very much appreciated. In that light, I beg leave to withdraw the amendment.
Transport: A1 Dual Carriageway
Viscount Younger of Leckie Excerpts(9 years ago)
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Viscount Younger of Leckie (Con)
My Lords, as set out in the road investment strategy of December 2014, construction of the A1 dualling schemes between Morpeth and Ellingham is expected to commence in 2020. This is subject to completion of statutory planning processes and continuing to demonstrate value for money. The A1 in Northumberland programme will also benefit from a package of smaller-scale junction improvements, overtaking lanes and pedestrian improvements north of Ellingham. These are planned to start construction in 2018.
Lord Beith
I thank the Minister for his reply and ask him if it is the view of Her Majesty’s Government that there should be a continuous dual-carriage A1 from London to the Scottish border. He indicated in his response, and perhaps he will now confirm, that although the commitment was made by the coalition Government in 2014 for substantial extra dualling, it will probably not start until after the next general election.
Viscount Younger of Leckie
I applaud the persistence of the noble Lord in raising over many years the issue of upgrading the A1 up to what I believe is his old constituency in Berwick. I reassure him that it is very much part of the plan to dual the road right up to the border, but he will be aware that these road plans can be very complicated and need to be done in stages. This programme will start in 2020 and is due to be completed on time and on budget by 2023.
Lord Vinson (Con)
My Lords, the upgrading of the A1 would have a hugely beneficial effect on bringing about the northern powerhouse, which we are all keen to happen. But equally the A69, which is the link road between Carlisle and Newcastle, is appalling as it goes down to 16 feet wide at Warwick Bridge. If that road was improved, a huge amount of the Scottish and Irish traffic currently going further down the country would cross over to Newcastle, revitalising the port there and bringing real additional prosperity to the city, just as the A1 does to the area. I hope that this upgrade will also be considered a high priority.
Viscount Younger of Leckie
My noble friend makes a good point. Of course we are talking about the A1, but this is all part of the new interconnectivity up in the north and the north-east. We are bringing forward junction improvements on the A69 which should be complete by 2020. Every key junction on the A69 between Hexham and the A1 at Newcastle will be grade separated.
Baroness Quin (Lab)
My Lords, I urge the Minister to act more swiftly in the dualling of the A1. People have campaigned for this for 20 or even 30 years and there is huge public support in the region for it, partly on safety grounds because of the number of head-on collisions given the confusing mixture of single and dual carriageways, partly on economic grounds to help an area of the country that would very much welcome such an economic boost, and partly on political grounds given that most of us welcome the fact that Scotland voted to remain part of the union. The A1 is a hugely important communications route between both London and Scotland and Northumberland and the Scottish borders.
Viscount Younger of Leckie
The noble Baroness is absolutely correct and I stress again that we are on time with this project. However, she will know that these major road schemes have to go through particular stages, including strong consultation. We have consulted on both stretches—the dualling and the improvements north of Ellingham. Along with the improvements from Morpeth up to Ellingham, a development consent order with statutory timescales is required, so there are some necessary steps to go through to be sure that we do this work effectively.
Lord Geddes (Con)
My Lords, while warmly supporting the Question asked by the noble Lord, Lord Beith, I will follow up the supplementary put by my noble friend Lord Vinson. Will my noble friend on the Front Bench refute a comment made to me some years ago by the then spokesman for my party in this House on transport, in response to a supplementary question, that it was quicker to go from Newcastle to Edinburgh via Carlisle?
Viscount Younger of Leckie
I am not sure that I am in a position to comment on something that was said many years ago, but speed is of the essence here. When we complete this particular upgrade of the A1 on time, freight, tourists, locals and everyone else who wants to use the road will at last be able more speedily to reach the border—and I hope beyond, but that is up to the Scottish Government.
Lord Steel of Aikwood (LD)
On that last point, would the Minister be kind enough to consult his opposite number in the Scottish Government, Mr Yousaf, with a view to making sure that the benefit of these works extends right the way to Edinburgh?
Viscount Younger of Leckie
The noble Lord is absolutely right and I can confirm that consultation is going on. We are very much hoping for, but have no influence over, the decision that the Scottish Government will make.
Lord Rosser (Lab)
The Minister said that the project will start in 2020. Could he explain why the Highways England website shows the start date as “TBC”, which could be “transparent broken commitment” but I assume means “to be confirmed”? Why does the Minister have a different view of the start date from Highways England?
Viscount Younger of Leckie
I will have to check the website, but I confirm that we are on track to start this project in 2020. I can perhaps add a bit more gravitas to that by saying that the consultation process, which finished at the end of last year, is also on track. We are looking at the views expressed by those who contributed to that process. The next stage will happen very quickly and the decision will be made in late spring or early summer.
Lord Spicer (Con)
Is my noble friend aware that in 1966 I made a vain attempt to reduce the majority of 24,000 of Emanuel Shinwell in Easington on one issue: the A1 north of Scotch Corner? Can we at least build the road to some sort of higher standard up to the Scottish border, where its pristine condition no doubt comes compliment of the English taxpayer?
Viscount Younger of Leckie
I think I made clear earlier that that is the intention. We are going full steam ahead in dualling the road up to Ellingham. North of Ellingham, we are producing the overtaking lanes. I say again that we cannot do everything in one go and I stress again that we are on time. But there are other projects. In fact, there are 112 other projects around England that we are focusing on. Upgrading the nearby A66 is one of the important projects we are pushing ahead with.
Viscount Ridley (Con)
My Lords, would my noble friend accept that the people of Northumberland will be very glad to hear that this project is on target? Will it be possible for him to indicate as early as possible which of the three routes that have been tested will be used for the stretch north of Morpeth? I declare an interest as a landowner over whose ground it will go.
Viscount Younger of Leckie
I reassure my noble friend that the options for the routes are being looked at now. This is all part of the consultation process that is under way. It is indeed extremely good news not just for the locals in Northumberland, but for those wishing to travel through Northumberland up to the north.
Higher Education and Research Bill
Viscount Younger of Leckie ExcerptsWednesday 25th January 2017
(9 years ago)
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Lord Mackay of Clashfern (Con)
My Lords, I wonder how this works in view of Clause 47(6):
“Regulations under subsection (1) may include power for the OfS to deprive a person of a taught award or foundation degree granted by or on behalf of the OfS under validation arrangements”.
What sort of validation of a degree is it when it can be taken from you—after you have got it, I assume?
Viscount Younger of Leckie (Con)
My Lords, I thank noble Lords for the opportunity to discuss validation arrangements. We believe that they are essential to a fully functioning higher education sector. We have listened to the concerns raised around the potential for Clause 47 to create a conflict of interest. However, I believe that a more substantial conflict of interest already exists within the sector.
At the moment, new providers usually have to find a willing incumbent provider to validate their provision. This gives those incumbent providers significant levers to control which new providers can enter the market, and what kind of provision they offer. Even if established providers are willing to help new providers get a foothold in the sector, there is an inherent conflict of interest if the proposed new provision would directly compete with one of their own courses. Of course, conflicts of interest are not the only problem validated providers can face. We know that some providers still find it difficult to find a partner that is willing to enter into validation arrangements with them, or have established arrangements unexpectedly withdrawn, and not because they are considered poor quality.
The noble Baroness, Lady Garden, stated that there was no evidence, but I have to put her right. We only need to look at events at Teesside University last year. Following a change of leadership, the university unexpectedly withdrew important validation services to 10 local colleges, based on a change of strategic direction and not as a reflection of the quality of the provision. Ensuring new and existing high-quality providers are not locked out of the market via their preferred entry route is essential to ensuring that students are able to access the right type of higher education for them.
The OfS cannot force providers to enter into validation arrangements. If insufficient providers are entering into validation agreements with each other or into commissioning arrangements with the OfS, or these fail to correct the problem, the OfS will need to find another way to promote competition and choice. Without further powers, the OfS could potentially be forced to stand by and watch while good-quality providers that do not want to seek their own degree-awarding powers remain locked out of degree-level provision indefinitely.
The OfS will, if it performs any validation function, have to have regard to the need to encourage competition among higher education providers in England. Its aim will not be to compete with the other higher education providers with a view to diminishing their attractiveness or their ability to offer validation services. It will only offer these services if there is demonstrable evidence that validation services are failing to support the sector. A regulator needing to take a role in the sector it regulates is not totally unprecedented. For example, the Bank of England regulates many aspects of the financial sector in order to maintain financial stability in the UK. In extremis, however, it will also act as the lender of last resort, or a market-maker of last resort, for example by buying and selling assets such as government bonds to provide liquidity at a time of financial stress.
Noble Lords might wish to read an interim report by the Open University and Independent Higher Education on a joint project piloting a streamlined approach to validation. The report highlights several perceived obstacles for providers in developing successful validation partnerships, including restrictive behaviour on the part of some validating universities and,
“insufficient support for alternative delivery models including accelerated and more work-based degrees”.
While the report accepts that this is not representative of all validation partnerships, it recognises the importance of validation as a route into the higher education sector and the need to fix problems which, if left unchecked, could have an adverse impact on student choice.
The report says:
“Validation stands as a critical part of the regulatory infrastructure, and its role as a gateway into the higher education sector means that any dysfunction will have a substantially negative impact on the diversity and quality of provision available to students”.
Relying on incumbents to shape the future of higher education can also curb innovation and result in the entrenchment of the same model of higher education, as providers may be hesitant to validate courses that do not conform to their usual modes of delivery. As the noble Lord, Lord Browne, said, validation can create a closed shop. As part of its work on improving validation services, we would expect the OfS to draw and build on this and other work already carried out.
I also noted the suggestion in the previous debate to create an independent central validation body akin to the CNAA model. As a regulator of the higher education sector, the OfS is ultimately responsible for ensuring that the regulatory framework and its supporting processes are functioning effectively. As the noble Lord, Lord Browne, said, it therefore makes sense for the OfS to have a role in determining how validation problems that could prevent it from fulfilling its responsibilities, such as ensuring that market entry routes and related processes are functioning effectively, are actually fixed.
The OfS’s broader strategic role makes it best placed to identify emerging trends in validation services across the sector and to monitor the impact of whatever solution it puts in place to correct any problems. It will be able to draw on information and advice from all its designated bodies and stakeholders to develop a robust evidence-based approach to address any serious validation failings. I reassure noble Lords that this is not a power easily given or used. We envisage that the OfS would be authorised as a validator of last resort only if it was absolutely necessary or expedient after other measures had been tried and failed.
The noble Baroness, Lady Wolf, said that this would be based only on anecdotal evidence. The Secretary of State may exercise this power if she considers that it is necessary or expedient to do so, having taken OfS advice. That advice is most likely to come in the form of an evidence-based report.
The Secretary of State would need to lay secondary regulations in Parliament. As we all know, it is common practice for these regulations, which use the negative procedure, to be laid before Parliament 21 days before coming into force, giving Parliament the opportunity to see these conditions. As always, Parliament retains the power of veto.
The regulations, should they be deemed necessary, are expected to set out the terms and conditions of any OfS validation activity. I would expect the OfS, as the overall regulator of higher education quality and champion of students’ interests, to be best in class in terms of demonstrating that its validation services abided by best practice validation principles and delivered to the highest standards. I would also expect the OfS to put in place appropriate governance arrangements ensuring that an appropriate level of independent scrutiny was applied to the validating arm of the organisation and the safeguards to protect student interests.
The noble Baroness, Lady Wolf, asked how this would work, who within the OfS would do the validating and whether they would have the requisite skills and qualifications. The regulations by the Secretary of State could attach certain conditions to ensure that the service set up by the OfS was underpinned by the necessary expertise. As we expect members of the OfS board to have between them experience of providing higher education, the organisation will have the necessary expertise to recruit the staff needed to set up a validation function. For further detail on how the OfS validation arrangements would work, I again refer noble Lords to my letter of 19 January enclosing a factsheet published by the Department for Education on validation. With that, I move that this clause stand part of the Bill.
Baroness Wolf of Dulwich
My Lords, I thank the Minister for his full reply, though if anything I am now more confused than ever. Either the validation issue is a serious one, in which case presumably the OfS will be giving out degrees in large quantities, or it is not, in which case I am not quite sure why we have these massive powers. I hope the Government revisit the whole validation issue. I actually have no idea when it appeared on the scene; it was not the case for many years, and I assume it was created by government for a purpose. This is an issue we will want to return to on Report, but at the moment I am happy to see the clause stand part of the Bill.
“(10) Where subsection (8) ceases to prevent a revocation taking effect on the date specified under subsection (6), the OfS is to determine a future date on which the revocation takes effect under the order to be made under section 53(1).(11) But that is subject to what has been determined on any appeal under section 55(1)(a) or (b), or any further appeal, in respect of the decision to revoke.”
(a) a decision of the OfS to revoke, by an order under section 53(1), an authorisation, consent or other approval given to the institution to include the word “university” in its name;(b) a decision of the OfS as to the date specified under section 54(6) as the date on which the revocation takes effect.”
“( ) vary the date on which the revocation takes effect under the order to be made under section 53(1);”
“Duty to compile and make available higher education information
(1) The relevant body must—(a) compile appropriate information relating to registered higher education providers and the higher education courses they provide, and (b) make the information available in an appropriate form and manner to the OfS, UKRI and the Secretary of State.(2) In this section “the relevant body” means—(a) the designated body (see section 60), or(b) if there is no such body, the OfS.(3) What is “appropriate” for the purposes of subsection (1)(a) and (b) is to be determined—(a) by the designated body if the OfS has notified the body that it is required to do so (and has not withdrawn the notification), or(b) otherwise, by the OfS.(4) A notification under subsection (3) may relate to one or both of the paragraphs of subsection (1).(5) When the designated body or the OfS determines what is appropriate for the purposes of subsection (1), it must in particular consider what would be helpful to the persons mentioned in subsection (1)(b).(6) The OfS must from time to time obtain and consider, or require the designated body to obtain and consider, the views of the persons listed in subsection (7) about the information that should be made available under this section.(7) Those persons are—(a) UKRI,(b) the Secretary of State, and(c) such other persons as the body seeking views considers appropriate.(8) In performing the duty under subsection (1)(a), the relevant body must—(a) cooperate with other persons who collect information from registered higher education providers, and(b) have regard to the desirability of reducing the burdens on such providers relating to the collection of information.(9) In carrying out other functions under this section, the OfS and the designated body must have regard to the desirability of reducing the burdens described in subsection (8)(b).(10) The functions conferred by this section do not affect any other functions of the OfS regarding information.”
Lord Willis of Knaresborough (LD)
My Lords, I shall speak to Amendment 371. I hope that the amendment of the noble Lord, Lord Lucas, will not get lost in this group because what he raises is fundamental to the Bill and to the way we are going to improve the offer we make to students and the veracity with which we look at the higher education sector.
I have written to the Minister on this issue and raised it as a question earlier. I am referring again to the role of HESA and the role of data. Unless you have accurate data with which to interrogate, and unless they are consistent across all providers, quite frankly, they are pretty useless. At the moment, it is not simply that you cannot get at some of HESA’s data. I gave the Minister an example just this week. You cannot get the data because HESA simply says, “Different institutions collect them in different ways”. That is a brilliant cop-out for saying, “We can’t let you have it”.
The other cop-out, which occurs quite frequently, is to say that data are sensitive to the universities because they own them, and therefore could be damaging to their reputation. If we are to give students the sort of offer they rightly should have, and if we are to give taxpayers the confidence they rightly should have, data should not be hidden. Data are absolutely key to delivering a higher education system of the highest possible quality which will maintain the high quality we already have in the future. I urge the Minister, in reference to Amendment 371, to reflect on how we are to ensure that data are not just left to HESA, but that the Office for Students has powers to ensure their consistency and effectiveness to be interrogated.
Viscount Younger of Leckie
I thank all noble Lords who have raised these important issues. I agree immediately with the noble Lord, Lord Willis, about the importance and quality of data. I will make one overarching point, in the interest of brevity, before addressing individual amendments. We are not seeking to determine in the Bill exactly which data must be collected or exactly who must be consulted. Data requirements and needs evolve over time, and the body needs to maintain the ability to adapt to changes.
In response to comments made by the noble Lord, Lord Watson, I appreciate what he said. We do not feel it is appropriate, for example, to specify workforce data when all other data will—very importantly—be agreed under the duty to consult. The relevant body will have the duties to plan data publication in conjunction with the full range of interested parties, with sufficient flexibility to take a responsive approach.
Turning to Amendments 376, 377 and 383, given the OFS’s duty to have regard to the need to promote greater choice and opportunities for students, just to reassure my noble friend Lord Lucas, there is, to my mind, no question that under Clause 59(5), considering the needs of people thinking about undertaking higher education courses must include considering what would be helpful to prospective and potential students from a diverse range of backgrounds.
In considering Amendments 368, 379, 384, 396 and 406, it is expected that the views of higher education staff will be considered as part of the voice of the sector institutions. The OfS will also have the discretion to consult persons they consider appropriate, including any relevant bodies representing the staff interests. I think the noble Lord, Lord Watson, foresaw the words that I have just spoken.
Lord Watson of Invergowrie
On that point, the Minister said that it would be “expected” of the OfS, but I do not see what could be done if it chose not to do it. I would think it was a normal thing to do, but if it is expected, why not just say that or something equivalent to it in the Bill?
Viscount Younger of Leckie
The noble Lord makes a fair point, but I must go back to the overarching statement that I made at the beginning of the Bill: we have carefully crafted it to look ahead to the future. I have said specifically that we do not consider it right to be too exact in what we put in the Bill. I hope he will accept that.
On Amendment 371, spoken to by my noble friend Lord Lucas, the Government are committed to making data available publicly and in a format that can be easily used wherever possible. However, the data body will collect personal data and it may therefore not be appropriate or lawful to publish identifiers. In accordance with the code of practice for official statistics, the statistics published by the body should not reveal the identity of an individual.
On Amendments 413, 415, 415A and 415B, fees should be fair and proportionate, neither creating disproportionate barriers to entry nor disadvantaging any category of provider. I want to reassure noble Lords that there are several safeguards to prevent a burdensome charging regime. First, the Bill makes clear that the total fees charged by the body must not exceed the total costs incurred. However, I recognise that there must in addition to this be due oversight to ensure that these costs are kept to a minimum—so let me answer some points raised by the noble Baroness, Lady Wolf, the noble Lord, Lord Liddle, and my noble and learned friend Lord Mackay. The data body will be required to publish a statement showing the amount of the fees it charges and the basis on which they are calculated. Also, as part of the triennial reporting process, the OfS must report to the Secretary of State on the appropriateness of any fees charged by the designated body. We are confident that these safeguards are sufficient and that further specific requirements would be overly restrictive.
On Amendment 366, I must stress that we want to minimise the regulatory burden on providers by avoiding duplication. For this reason, it is best for the sector to have only one body designated to collect the information at any one time. However, I also recognise that there are already several sector organisations with an interest in gathering data, and I understand that noble Lords may have concerns about the availability of data and collaboration over their use. I assure Members that Clause 59(7) and (8) set out a clear expectation that the data body must co-operate with those other organisations and have regard to the desirability of reducing burdens on providers.
The noble Baroness, Lady Wolf, referred to unconnected fees. I hope I can give some reassurance that I understand the intention to ensure that fees are calculated fairly. However, I fear the effect would be to damage the interests of both the data body and providers. It would prevent legitimate overheads related to designated functions being incorporated in the annual fee and block the current practice, common to sector bodies, of charging fees varied by the number of students at a provider, which is essential to ensuring proportionate and affordable fees. With these explanations, I hope the Lord will withdraw Amendment 366.
Lord Mackay of Clashfern
On the Minister’s last point about connected and unconnected fees, I understand that the Secretary of State has to be satisfied that the fees charged are proportionate. On the other hand, the Secretary of State is not obliged to consider whether they are connected in any way whatever with the provider. That is the problem. The Secretary of State’s power to monitor the fees depends on what the authority is for the fees being charged. Most of the illustrations that the Minister has given are connected in some way with the provider. For example, if it is a question of assembling data, the data will include those provided by the provider who is charged—so that is connected to the provider all right. It is perfectly reasonable to charge for overheads in relation to a function connected with a provider, but charging for those unconnected with a provider seems to open up a large and rather unspecific area.
Viscount Younger of Leckie
I will attempt to answer the points made by my noble and learned friend. Surely this is encompassed by the safeguards that I outlined. There will be an opportunity on a regular basis, as I mentioned, to analyse and scrutinise the statement showing the amount of fees, including those that are unconnected, and how they were made up.
Lord Lucas
My Lords, I am grateful to my noble friend for his reply on Amendment 371, but I think he rather missed the point. In respect of school data, the Department for Education already publishes extensive information, under the heading of performance tables, as open data. The level of information has grown substantially over the years and is free for anyone to reuse, as is the database on schools, EduBase. I am very sorry to say, as the proprietor of the Good Schools Guide, that this has resulted in the emergence of a lot of competitors, which is thoroughly tiresome. While it would be convenient for me if the Government did not do it, it is very good for the economy and for students and pupils that they have, and it is the pattern I would like them to pursue with regard to university data.
The Department for Education also makes available the National Pupil Database, which is confidential, at various levels. The whole database is available to the “very serious” level of researchers, but anonymised information is also available at pupil level, which is immensely useful for understanding how schools are operating and how various examinations and other aspects of the school system are working. That is a precedent for really good practice that is, now, contained within the same department that will look after university data.
The practice for university data is different. It is either held by UCAS, in which case it is effectively not available to anybody, or by HESA. In the latter case, there is a long application process to determine whether it will let the data out because nothing is standardised and you have to ask permission from individual institutions. It then charges a hefty fee. This is a comfortable situation for me, as a user of HESA data, because it means I do not get a lot of competition, but it is not the way the market should be. The market should be open. The only reason that the use of the data is charged for is that HESA wants to make money out of it. If it is given the power to charge institutions then it is in the interests of the economy and the country that it makes it freely available whenever it can. It is much better for the country that HESA should make a little bit of money by making it available in a more restricted way and for a large fee, or a substantial fee—not an unreasonable fee; HESA is a good organisation. We should go open. The Government, as a whole, have made a lot of progress in making much bigger collections of data open, when they were formally charged for. There has been a lot of benefit from that. That is the practice we should follow with the university data.
“(a) at appropriate times, and”
“(4A) What is “appropriate” for the purposes of subsections (1), (3) and (4) is to be determined—(a) by the designated body if the OfS has notified the body that it is required to do so (and has not withdrawn the notification), or(b) otherwise, by the OfS.(4B) A notification under subsection (4A) may relate to one or more of subsections (1), (3) and (4).”
(a) an appeal under paragraph 3(1)(a) or (b), or a further appeal, could be brought in respect of the requirement to pay the costs, or(b) such an appeal is pending.”
Lord Stevenson of Balmacara
My Lords, I apologise to the Minister. I was watching a figure behind who seemed to be moving towards an upright position and therefore might speak. If he is not I will carry on.
This is an interesting amendment and I am glad that it has been raised in the form that it has. We cover a number of points every time we debate this, but here is a question that cannot be ducked. The reality is that universities have to face a number of different regulators already. Those that are charities obviously have the Charity Commission as their regulator. Then there are those that are established as companies. As we have heard, many higher education providers have the permission of the Secretary of State to use “university” in their title or, even if they do not, are subject to anything that may be required under the Companies Acts. Many will have a variety of regulators; it is not unknown to have companies that are also charities. There are also bodies that are not for profit—corporations that are subject to the Companies Acts, but in a different way from those that are set up for profit.
However, I think the main purpose was to try to untangle the relationship between the CMA—a recent entry to this area—and the universities. It is a little surprising that the CMA has entered this area rather late given that it stated recently that providers of higher education that now come within its scope are subject to the Consumer Protection from Unfair Trading Regulations 2008; the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013; the Unfair Terms in Consumer Contracts Regulations 1999, for contracts concluded prior to 1 October 2015; and Part 2 of the Consumer Rights Act 2015. That Act went through your Lordships’ House just over a year ago and included the application of consumer rights to public bodies such as institutions of higher education. It was amended during its passage through the House.
As I think is well known, the CMA has carried out a preliminary investigation into the new responsibilities that it has taken on in the last 18 months, and has obtained undertakings from more than a few universities to secure improvements to their terms and/or practices. It has written to all higher education providers, drawing the findings of the compliance review to their attention, and asking them to review and revise their practices and terms, as necessary, to ensure compliance with consumer protection law.
Where will this wave of regulatory practice, which is sweeping in with unforeseen and possibly unpleasant purposes, stop? I do not object to the CMA’s engagement or to anything that raises standards and keeps public bodies moving forward. However, there will be regulatory overload, as has been mentioned. We must be very careful to guard against that. The way most sectors operate in the event of overlapping regulators is to obtain a memorandum of understanding between the principal regulator—or in this case regulators—and the one closest to the bodies concerned. If the OfS is to be a regulator, we will need to know how this will operate in practice. It is welcome news that the Bill team is considering whether to engage more directly with the Regulators’ Code, as that would solve a lot of problems.
Before we proceed further with the Bill, we should be told exactly what the boundary between the CMA and the OfS, as envisaged, is. Indeed, it would be helpful to be informed of the boundary between the Charity Commission and the Registrar of Companies, if that is relevant. We should also probe a little further whether it is envisaged that a memorandum of understanding between these regulators will be drawn up to protect the provision we are discussing. If so, what timescale applies to that? Could that be provided by Report, at least in draft form, so that we can discuss it further?
Viscount Younger of Leckie
My Lords, I thank the noble Baronesses, Lady Brown and Lady Wolf, and others for laying this amendment as it gives me the opportunity to clarify the role of the Competition and Markets Authority in the higher education sector. I say at the outset that I understand that the CMA is content that there is no conflict between the two organisations. The Government share that view.
In summary, the CMA is not a sector regulator but an enforcer of both competition and consumer protection law across the UK economy. It also has a number of other investigatory-type functions across the economy, including investigating mergers and conducting market studies and investigations, so I shall say a little more about competition and consumer enforcement in particular.
Enforcing competition law is a specialist activity requiring particular economic and legal expertise. Enforcement cases require substantial input of specific skills over a sometimes protracted period of time. The OfS will not have these and it would be unnecessary and expensive to replicate them. Placing a duty on the OfS to encourage competition between higher education providers in the interests of students and employers is a very different matter to enforcing competition law. We believe that there is no conflict between these two different responsibilities. Arguably, giving the OfS additional competition enforcement powers would risk distracting it from its important regulatory duties, or would possibly create conflicts of interest.
To answer concerns that encouraging competition would be at the expense of collaboration, there should be no conflict between providers collaborating and the OfS’s duty to have regard to the need to encourage competition where that competition is in the interest of students and employers. We are wholly supportive, as is the CMA, of collaboration and innovation where they are in the interest of students.
““foundation degree only authorisation” has the meaning given by section 40(3);”
The Deputy Chairman of Committees
Perhaps I should point out that even when an amendment is grouped, it is still open, when that amendment is reached, to move it formally or make remarks on it.
Viscount Younger of Leckie
My Lords, perhaps I can be helpful to the noble Lord, Lord Stevenson, in reply. Given that we did not have a full debate on government Amendments 440 and 441, and bearing in mind that noble Lords seemed reasonably comfortable with what we are proposing, I think it right that I write to explain what we are proposing. I hope that is helpful.
The Deputy Chairman of Committees
Would the noble Lord, Lord Sharkey, now like to beg leave to withdraw his amendment?
Viscount Younger of Leckie
My Lords, I thank the noble Lord for bringing forward this amendment. I am very sorry that the noble Lord, Lord Dubs, is not in his place. I think the House is aware, as certainly I am, that he has worked assiduously in support of the Syrians. This is an important issue, and I realise that it is also a sensitive one, but it is already addressed within the student support regulations. The noble Lord, Lord Judd, talked about the importance of the UK being a warm welcoming country. I absolutely agree and I will make some very strong points on that matter in a subsequent debate, which I hope will take place today.
I am pleased to say that those who come to this country and obtain international protection are already able to access student support. Our regulations have for some time included provision for those granted refugee status or humanitarian protection and their family members. As the right reverend Prelate the Bishop of Durham said, people who enter the UK under the Syrian vulnerable persons resettlement scheme are granted humanitarian protection. Like UK nationals, they are therefore eligible to obtain student support and home fee status after only three years’ residence in the UK. Persons on the programme are not precluded from applying for refugee status if they consider they meet the criteria. As Home Office officials said at the Public Accounts Committee on 7 November 2016, the department is aware of the issue and keeps it under active review. I believe that the noble Baroness, Lady Lister, understands that. I reassure the House that I have also had discussions with Home Office officials on this important matter, so there is joined-up thinking—if I may put it that way—between the DfE and the Home Office.
Those with refugee status are uniquely allowed to access student support immediately, a privilege not afforded to UK nationals or those granted other forms of leave. Recently, the Supreme Court upheld the Government’s policy of requiring most persons, including UK citizens, to be ordinarily lawfully resident in the UK for at least three years immediately prior to starting their course in order to be eligible for student support. It also upheld the Government’s case that it was legitimate to target the substantial taxpayer subsidy of student loans on those who are likely to remain in England—or at least the UK—indefinitely, so that the general public benefits of their tertiary education will ensue to the country’s advantage. The second part of the amendment would break that long-established policy by extending support to failed asylum seekers who, it has been decided, do not need our protection but have been granted temporary leave to remain in the UK. In other words, these are persons who have only recently established a connection to the UK, which may well prove temporary. This amendment would therefore allow people who may subsequently be required to leave the country to access taxpayer funding for their study.
I realise that this is a sensitive issue but I hope that with these explanations the noble Lord will withdraw his amendment.
Lord Stevenson of Balmacara
But, my Lords, that is not what the amendment says. I have listened very carefully to the Minister and I will certainly read Hansard when it is published, but the intention behind the amendment—whether he has picked it up correctly or not—is for people who claim asylum and are not recognised as refugees but are granted another form of leave, such as humanitarian protection or leave as unaccompanied children, to be given the fee eligibility of home rather than overseas students if they satisfy the test of being ordinarily resident. That test is if they have lawfully and habitually resided in the UK out of choice since being granted leave, and being eligible for student finance if they are also ordinarily resident on the first day of their course. We are not talking about people who are temporarily here and who might suddenly be removed without notice, making them unable to take their course; we are talking about people with a right to be in the United Kingdom.
All the Minister’s points about this not being in accordance with Home Office policy are therefore not correct, in my respectful view. We have picked up that there are people with an ordinarily resident status who do not technically qualify for refugee status, and that it is only for refugee status that the three-year ordinarily resident requirement is given. If that is where the Minister is coming from, surely what my noble friends Lord Judd and Lady Lister and the right reverend Prelate said were on point: imposing a three-year residency requirement for somebody who wishes to exercise their ability to remain in the UK in order to use that time to study is a ridiculously aggressive attitude for a caring Government to take. The Minister talked about a warm, welcoming, integrated and supportive environment but the facts are that an enormous barrier is being put in the way of people’s ability to benefit from being given the ability to stay in the United Kingdom. That cannot be right.
I understand that this is an emotional and difficult area and it may be better if we could meet outside to talk about it. Perhaps we could also bring in representatives from the Home Office who obviously hold the whip hand. If the Minister is able to do that it would be a great deal better. This is not something we can give up on but in the interim I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, this has been a terrific debate. It must rank as one of the better ones on this topic that have taken place over the years. It has lacked only one thing. We normally like to have the comfort of the noble Lord, Lord Cormack, making an orotund statement to sum up our feelings and allow us to drift off into the night in a comfortable way. The noble Lord is present but he is not going to speak and I am saddened by this. There is nothing more that needs to be said—the points have been put across so well.
Perception is always at the heart of this. We send messages that we are unwelcoming. We do not live up to the best that could happen in UK plc and we are missing huge opportunities in soft power and the development of our own arrangements. It may be a step too far to take back control from the United Nations. Even the noble Lord, Lord Willetts, when he comes to his senses—if ever—will realise that it may not be the best argument we have heard tonight. The arguments are almost irresistible. I cannot believe that the Minister will not want to endorse them in every respect.
Viscount Younger of Leckie
My Lords, I mentioned something about hot seats in respect of my position later in Monday’s debate. I feel that the temperature has risen somewhat in debating this issue. As one noble Lord said, it is rather an old chestnut for this House. Nevertheless, I acknowledge that it is an important matter.
I am grateful to the noble Lord, Lord Hannay of Chiswick, for moving this amendment and to those noble Lords who have put their names to it. This debate has demonstrated considerable strength of feeling and provided a useful opportunity to discuss international students.
Before dealing with the specific amendment, I should like to make clear the Government’s position on international students generally. As has been said—the noble Baroness, Lady Royall, put it pretty succinctly—perception is vital. It is important that we give the impression that the UK is a welcoming place for international students. I make no apology that, when we came to power in 2010, we took steps to rid the system of abuse that was then rife. No one denies now that action needed to be taken then. More than 900 institutions lost the ability to bring in international students. However, there is a world of difference between clamping down on abuse and our policies on genuine students. The Government welcome genuine international students who come to study here. Their economic contribution is significant. Not only do they enrich the experience of home students, they should also form a favourable view of the UK which should serve this country well. That is why we have never imposed any limit on the number of genuine international students who can study here, and why—I must emphasise this point—we have no plans to impose such a limit. Educational institutions will continue to be able to recruit as many international students as they want. I agree that it is a major opportunity, as the noble Baroness, Lady Smith, said.
Noble Lords have said that UK educational institutions are in competition with other countries for the best student talent. I want to outline the UK’s offer and how it compares internationally. Students from outside the EU need a visa to study in the UK. They need to show that they have the necessary academic ability, competence in English and funds to support themselves. Other developed countries, quite reasonably, set similar requirements. The system already allows students from low-risk countries to produce fewer documents. In 2015, 93% of student entry clearance visa applications were approved, a number that has risen every year since 2010, and 99% are approved within 15 days.
The terms which apply to students once here are again highly competitive. International students attending higher education institutions are allowed to work 20 hours per week during term time, the maximum that is compatible with devoting sufficient time to their studies, and similar to the rules in the United States, Australia and Canada. International students are additionally allowed to work full-time during holidays.
Post-study work is a matter of considerable interest to the education sector. Any international graduate of a UK university who is able to secure a skilled job can move into the workforce. There is no limit on the number who can do so and numbers have been rising year on year, with over 6,000 recent graduates doing so in 2015. If international students have been undertaking a course lasting more than a year, which covers the majority, they can remain in the UK for four months after finishing their studies, during which time they can work. The only country in the world with more international students than the UK is the United States. In the US, international graduates, other than when they are undertaking work directly relevant to their degree, must leave the country within 60 days of the completion of their programme.
I give a few statistics to support my proposition that the UK does welcome students. The UK is the world’s second most popular destination for international higher education students. Since 2011, university-sponsored visa applications have risen by 8%. Although Indian student numbers have fallen, as was mentioned earlier, we have seen strong growth in respect of other countries, including a 9% increase in Chinese students in the year ending September 2016, as was also mentioned. This shows that our immigration system allows for growth. I apologise for speaking at some length on these matters but it is important to lay out the facts and address this very important point of perception.
I turn to the specifics of the amendment before us. While I am grateful to the noble Lord, Lord Hannay, for the clear way in which he introduced it, I must confess that I am somewhat puzzled by it as it requires that no student should be treated as an “economic migrant”. But what is an economic migrant? I suspect that we all have a view of what we understand the phrase to mean, but no such term exists in law. We believe that it is used in the media; it is just a term which is used. I assume that those behind this amendment have in mind, when they refer to economic migrants, people who come to the United Kingdom on tier 2 work visas. People on a tier 2 visa come for a specific purpose on a time-limited visa and are expected to leave again when it expires, but that is precisely what the education sector tells us happens with international students. Similarly, those coming on a work visa may have conditions attached about the kind of work they can do. Equally, international students are limited in the number of hours they can work during term time. Again, this seems unexceptionable, and I am not sure why a parallel between international students and economic migrants would be seen as a bad thing. In one important regard there is a difference between economic migrants and international students. The main tier 2 (general) work visa is capped, with an annual limit of 20,700. By contrast, there is no limit on the number of genuine international students who can come to study here.
I should also deal with the inclusion of students in net migration statistics. Immigration statistics are produced by the ONS, the UK’s independent statistical authority. It would be inappropriate for the Government to seek to influence how statistics are compiled. By including international students in its net migration calculations, the ONS is following international best practice. I say in response to a point raised by the noble Baroness, Lady Garden, on this matter that this approach is considered best practice by the United Nations, which I think was mentioned by my noble friend Lord Willetts, and is used by a wide range of countries, including the United States of America, Australia and New Zealand. International students use public services and contribute to population levels. Those planning the provision of such services need to know who is in this country.
With respect to the Government’s net migration target, so long as, in any given year, the number of arriving students broadly corresponds to the number who leave having completed their course, students should make a minimal contribution to net migration. I repeat that genuine international students are absolutely welcome here. We do not, and will not, seek to cap or limit the number of international students.
The noble Baroness, Lady Royall, asked when the Government’s consultation would be published. I suspect she has heard this response in the House before but we intend to seek views shortly. I am afraid that at present I cannot give the House an exact date or timetable.
The noble Baroness, Lady Smith, asked about the arrangements for EU students post Brexit. We recognise that future arrangements after we leave the EU for students and staff who come to the UK is a key issue for the higher education sector. The noble Baroness will have heard my next point before, but this issue will need to be considered as part of the wider discussions about the UK’s future relationship with the EU.
My noble friend Lord Willetts asked a couple of questions, including one on the ability of universities to plan ahead. He asked me to confirm that the Government were not planning changes to the visa regime. He also asked where education was placed within the industrial strategy. I have made it clear that we have no plans to limit the number of genuine international students whom our educational institutions can recruit. They can plan on that basis. I do not have a full answer to his question on the industrial strategy. However, having attended a number of meetings, I know that the skills aspect is very much a key part of that strategy. I think it is best that I follow that up with a full brief on how that fits into the industrial strategy and, indeed, any other educational matters which fit into that area.
As the noble Lord, Lord Stevenson, said, this has been a good debate. I am sure that I have not answered every question that was asked or, indeed, satisfied the Committee given that this is a hot topic and an old chestnut, as was said earlier. I am very grateful indeed to all those who have contributed. However, with the assurances that I have given, I hope that the noble Lord will see fit to withdraw this amendment.
Lord Lucas
My Lords, can my noble friend confirm, as I gather from his speech, that the proposals made by the Home Secretary in her speech to the Conservative Party conference in relation to students are no longer being proceeded with?
Viscount Younger of Leckie
My understanding is that during that speech she undertook to go ahead with the consultation, as I have made clear.
Lord Hannay of Chiswick
My Lords, I am most grateful to all who have taken part in this extremely lively and, I think, rather useful debate—useful, at any rate, if the Government Front Bench has understood the depth of feeling around the Committee. I took a slight risk in saying that my amendment was likely to draw support from all corners of the Committee. It is always a bit unwise to say that before it has actually happened. I thank everyone for preventing me suffering the ignominy of having wrongly predicted that. In fact, it has turned out to be the case.
I do not wish to get into a long argument with the Minister except to say that he has put before the Committee arguments which we have heard for about six years. I accept absolutely that the action taken by the Prime Minister when she was Home Secretary to close down “dodgy” language schools was valuable and necessary. I just wish that the Government would not now snatch defeat from the jaws of victory, because that is what they doing. They have cleaned up the biggest problem in the area, yet still go on introducing measures and using language which discourages overseas students. Therefore, I hope that the noble Viscount will use the gap between now and Report to reflect on the views of the House, which were so strongly expressed tonight. I hope I am not disobliging when I say to him that I propose to withdraw this amendment but not because of the reasons that he advanced.
Lord Stevenson of Balmacara
My Lords, this has been another good debate. In some senses the previous amendment and the two amendments in this group are two sides of the same coin. The first amendment, proposed by the noble Lord, Lord Hannay, set an aspiration for what we were trying to do about the flow of students that, for all the reasons we gave, we wanted to see. The two amendments we are discussing now deal with the detail of how we could achieve that—they could probably be combined to make the point made by the noble Lord, Lord Lucas.
I do not need to say much more about this; I just want to put one point. On our first day in Committee we spent a lot of time talking about what we thought about our universities, what they were and what they were about. We have not really come back to the amendment we were debating then—which is probably just as well, as the wording was, I admit, not very good. The essence of it was an attempt to reach out to an aspiration that everyone in the Chamber, apart from those on the Government Front Bench, felt—that universities do have a particular distinctive nature and character. I argue that these two amendments help us to articulate that in a rather special way: for all the people who attend those universities—our children, and any other students who come to them—we want the very best quality of teaching and research available. That aspiration can be met only if we are able to recruit for it, and that is what these amendments would achieve.
Viscount Younger of Leckie
My Lords, I thank the noble Lord, Lord Hannay of Chiswick, for moving the amendment. I set out in some detail the Government’s approach to international students in response to the previous amendment, so I do not intend to repeat those points. However, I want to say something about the position of international academic staff, since they are specifically referred to in Amendment 464. Again, the Government have a very good record in supporting the sector.
The UK’s immigration system recognises the critical role academic staff can play in the economy and wider society, and that human mobility is linked to the UK’s ability to remain at the forefront of science and research. Immigration reforms since 2010 have explicitly taken account of the needs of academics, including scientists and researchers. The Government have consistently protected and enhanced the treatment of academics in the immigration system.
In tier 2, we have given PhD-level occupations higher priority. None of these occupations has ever been refused places due to the limit being oversubscribed. We have also exempted PhD-level occupations from the £35,000 earnings threshold for tier 2 settlement applications. In recognition of the fact that universities compete in a global talent pool, we have relaxed the resident labour market test to allow the best candidate to be appointed to PhD-level occupations, regardless of nationality and whether there are suitable resident workers available.
The amendments would provide that the immigration controls applying to non-British students or academic staff could never be more restrictive than those applying on the day the Bill receives Royal Assent. I wonder what “more restrictive” means in practice. The terms that apply to international students and workers contain a number of elements. Focusing on students, there are rules on how many hours they can work, how long they can stay in the UK after graduation, how they can move into work immigration routes, and on dependants.
Every student will have a different view on how important those various elements are. Suppose—I stress that I am offering this merely as an illustration, rather than making a statement of the Government’s intentions—we were to reduce the weekly hours that a university student can work during term time from 20 hours to 15 hours but, as compensation, lengthened the period for which undergraduate students can stay in the UK after their studies from four months to six months. Is that more or less restrictive than what currently exists? Some students would certainly see it as such; others would regard it as more liberal. It would all depend on particular circumstances and requirements. If we were to go down the route envisaged by these amendments we would be inviting the prospect of endless litigation as we sought to understand what constitutes greater restriction.
As for academic staff, as I have said, PhD-level university staff are currently prioritised within the limit for tier 2 visas. But what if we wanted, for very sound economic reasons, to give priority to another sector of the economy? Again I make no statement of the Government’s intent, but it is surely a possibility. Even if all the evidence pointed in one direction, the amendments would prevent such a change being made.
However, my principal concern about the amendments is that they seek to set the immigration system that applies on the date of Royal Assent in stone. Imagine that, as sometimes happens, a particular loophole in the immigration rules emerges, which everyone agrees needs to be dealt with. If the remedy was arguably restrictive, nothing could be done to close the loophole—even if government and universities agreed it was a problem—without amending primary legislation.
I am sure the House will acknowledge that we sometimes encounter instances of unintended consequences in immigration rules. We remedy these through minor changes. For example, we have very recently tidied up the rules on academic progression to deal with concerns raised directly by the education sector to the Home Office. These changes have been welcomed as improving the rules on academic progression but, under these amendments, had anybody been able to argue that what we were doing was in any way more restrictive, we would have been unable to respond to the sector’s concerns.
I understand the motivation behind the amendments, but I cannot advise your Lordships to accept them. Setting in stone the immigration system as it happens to be on a particular day, exposing ourselves to the possibility of extensive litigation and denying ourselves the opportunity to make even desirable changes is surely not the way forward. On that basis, I hope that the noble Lord will withdraw Amendment 463.
Lord Hannay of Chiswick
My Lords, I have listened carefully to what the Minister said—although I was fairly appalled by some of the script that he had been given to present to the House. The answer to his question about what would happen if the Government wanted to make the provisions for the amount of work students could do during their study here less generous, but also wanted to increase the amount of time for which they could stay on in the labour market afterwards, is perfectly simple. You can do the second any day you like; as for the first—no, you cannot do it. It is not very difficult to answer that question.
As for setting things in concrete, of course that would not be happening. The amendments would allow the Government to make the rules more liberal any day they liked. It is just that they could not make them more restrictive. That is all. It is not a huge thing because of course the Government, as the Minister himself recognised, can any day they like come down with a piece of primary legislation saying, “An appalling loophole has appeared. Here are all the statistics and evidence for it and, despite this provision in the Higher Education and Research Act 2017, this will override it”. They can do that, if they have the evidence. At the moment, they have no evidence whatever. Such evidence as there is is that some 1% of students overstay. I will not place the whole weight on that because I know that the figures are based on fairly small samples, but the Government do not have any figures at all.
Of course I will withdraw the amendment now, but I am afraid to say that I do not do so because of the arguments that have been advanced in favour of withdrawing it. I say very clearly that we will return on Report and I hope that the Government, instead of polishing yet another series of unconvincing reasons to not accept them, will find some way of accepting them. I beg leave to withdraw the amendment.
Viscount Younger of Leckie
My Lords, I thank all Peers for raising the important issues of freedom of speech and of unlawful speech in our higher education system during this short debate. I agree that free speech within the law is a value that is central to all our higher education institutions. Being exposed to a wide range of ideas and opinions and learning the skills to debate and challenge them effectively is key to the experience of being a student in the UK. My noble friend Lord Lucas put it well in his short intervention.
The existing duty requires certain higher education institutions to take reasonably practical steps to secure freedom of speech within the law for their members, students, employees and visiting speakers. The duty currently applies to a large number of providers, but not to all. Those subject to it already take this duty very seriously and we agree that it is absolutely right for them to do so. We are considering how to make sure that providers continue to be subject to this duty under the new definitions in this Bill. However, the requirement in the amendment changes the nature of the duty so that providers must ensure that staff, students and invited speakers are able to practise free speech in providers’ premises, forums and events.
It is not clear how this would interact with the existing freedom of speech duty and there is a real risk that it would introduce a lack of clarity in relation to that duty. So, while I am sympathetic to the intention, I fear that the word “ensure” unreasonably and unnecessarily imposes an additional and disproportionate burden on providers. To ensure that something happens, regardless of how reasonably practical it is, may well require them to address matters that are realistically outside their control and potentially override other important considerations, such as the security of attendees at a particular event.
Lord Watson of Invergowrie
My Lords, Amendment 471 in this group is in my name. It seeks to remove part of new Section 123B on supplementary powers of a higher education corporation in England:
“A … corporation in England has power to do anything which appears to the corporation to be necessary or expedient for the purpose of, or in connection with, the exercise of any of their principal powers”.
We want to withdraw this because we do not see why it should be necessary. It seems almost nonsensical. It is completely open ended. It would be interesting for the Minister to tell us to what he thinks it refers or might refer. I feel like coming out with a list of ridiculous examples of things that a corporation might choose to do that may be within the law and indeed within the exercise of its principal powers. I am not going to do that but just in the last few minutes we have had a couple of examples. What if a corporation decided to turn a blind eye to the sort of activities that the noble Lord, Lord Storey, outlined in terms of plagiarism and so on? What if a corporation thought, “Well, that helps our pass rates”? It is not illegal as yet—I hope it will be. In the amendment the noble Baroness, Lady Deech, just spoke to about free speech, the corporation could take action or not which may be seen to be offensive by students, staff or the public where the university or college was situated. I say to the Minister: what is this about? Why is it necessary and really should it not be deleted?
Viscount Younger of Leckie
The noble Lord has set me a task. I will keep my response suitably short, given the lateness of the hour. The Bill amends the Education Reform Act 1988 to deregulate the prescriptive statutory requirements that apply to higher education corporations in England, while ensuring that the route for FECs to achieve HEC status is kept open. The noble Baronesses, Lady Wolf and Lady Brown, suggested that research institutes should be given a similar legislative route. However, dozens of collaborative relationships exist between universities and research institutes across the country and they do not agree that these relationships are a shortcoming. For example, one such institute, the Laboratory of Molecular Biology, says on its website:
“This relationship, between the LMB and the University of Cambridge, gives our graduate students membership of two of the world’s leading research institutions”.
Further, there is no legislative barrier in this Bill that would, in principle, prevent an institution that provides supervised programmes of research embarking on the process of achieving registered higher education provider status, and ultimately seeking to gain its own degree-awarding powers, if it wished to do so and could meet the applicable requirements.
I turn to Amendment 471, spoken to by the noble Lord, Lord Watson. I begin by offering reassurance that these provisions are not new and nor do they allow a HEC to do whatever it pleases. The provision’s wording is the same as that already contained within existing legislation on HECs—specifically, Section 124(2) of the 1988 Act.
All the Bill does is remove the list of ways this power to do what is necessary or expedient can be exercised. This might include, for example, the power to supply goods and services, to enter contracts, or to acquire land or property. This list is detailed and non-exhaustive, and setting out specific powers in this way is perceived as outdated and unnecessarily restrictive. As a consequence, there is a risk that it stifles innovation and growth and slows down institutional change. It is also inconsistent with the Government’s commitment to establish a more level playing field in higher education.
We want to allow HECs the power to do anything that is necessary or expedient to further their objects, as many of their counterparts established under different corporate forms can do. For example, higher education institutions that are incorporated as companies under the Companies Act 2006 do not have their specific powers listed in legislation in this way.
I wish to reassure noble Lords that this will not give HECs an unfettered ability to do anything. A HEC’s powers must be permitted by law and exercised in furtherance of its objects. We also understand that HECs may wish to explicitly specify some or all of their powers, and they will be able to do this in their articles of government.
With that short explanation, I hope that the noble Baroness will withdraw her Amendment 470.
Baroness Brown of Cambridge
I thank the Minister for his response. I am disappointed that he does not recognise that the content of the Bill is somewhat heavyweight for the kinds of institutions with existing track records to which I was referring. However, in the light of his explanation, I am happy to beg leave to withdraw the amendment.
Higher Education and Research Bill
Viscount Younger of Leckie ExcerptsMonday 23rd January 2017
(9 years ago)
Lords ChamberRead Full debate Higher Education and Research Act 2017 View all Higher Education and Research Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 76-VI Sixth marshalled list for Committee (PDF, 214KB) - (23 Jan 2017)
Lord Watson of Invergowrie (Lab)
My Lords, I am speaking to the proposal, in the name of my noble friend Lord Stevenson, that Clause 25 should not stand part of the Bill.
That clause refers to the Office for Students taking over HEFCE’s current administrative responsibilities to deliver the TEF on behalf of the Secretary of State. I say in passing how disappointed I am that so many in your Lordships’ House, whom I thought would come to hear this debate on TEF metrics, have now departed. Perhaps that was not the reason they were here after all. Those of us who are ploughing through the Bill until all hours of the night realise that this is an important topic. The fact that we have had so many speakers on it is a clear reflection of that.
As the Minister will be aware, there is widespread concern across the sector at the use of proxy metrics, including statistics on graduate earnings, in an exercise that was supposed to be about teaching quality. On the face of it, there is some logic to the metrics. It is difficult to imagine an excellent course, the teaching, support and assessment for which the students think are rubbish, and that a large proportion of the students do not complete; or that hardly anyone who completes it manages to find employment or get a place on a postgraduate course.
Where metrics are used, they have to be much more securely evidence-based than those suggested. Last week in Committee, our Amendments 196 and 198 would have obliged the Office for Students to assess the evidence that any proposed metric for assessing teaching quality is actually correlated to teaching quality, and ensured that, prior to making that assessment, the OfS consulted those who know first-hand what is needed to measure teaching quality: academic staff and students. The Minister did not comment on that point, so it remains one on which I should like to hear his opinion. The importance of ensuring the statistics used are reliable and evidence-based cannot be overstated. They must earn and retain the confidence of the higher education sector—and that involves academics, students and administrators.
In her Amendment 201, the noble Baroness, Lady Wolf, seeks to ensure the quality of the statistics used by the OfS, and this should be a basic requirement. I support my noble friend Lord Lipsey in questioning the validity and value of the National Student Survey. The survey merely asks students about their perceptions of teaching at their institution. By definition, these perceptions are subjective and cannot involve comparing institutions. I heard what the noble Lord, Lord Willetts, said, when he suggested that similar institutions could be compared in terms of their ethnic make-up and students’ economic background. That kind of benchmarking sounds improbable at best because, even if suitable comparators could be found, the question is, how would the outcome be weighted?
It sounds as though gold, silver and bronze categories would be created before the metrics had even been measured. As I said, that sounds improbable to me, and I agree with the noble Baroness, Lady Wolf, that benchmarking is surely not the answer. Linking institutions’ reputations to student satisfaction is likely to encourage academics to mark more generously and, perhaps, even avoid designing difficult, more challenging courses.
With academics increasingly held accountable for students’ learning outcomes, students’ sense of responsibility for their own learning—something I thought was a core aspect of higher education—will surely diminish. We are now entering an era where students dissatisfied with their grades can sue their universities. Improbable as that sounds, only last week the High Court ruled that Oxford University had a case to answer, in response to a former student who alleged that what he termed “boring” and “appallingly bad” teaching cost him a first-class degree and the opportunity of higher earnings.
This may be the shape of things to come. Last year, nearly 2,000 complaints were made by students to the higher education Ombudsman, often concerning contested degree results. Nearly a quarter were upheld, which led to universities being ordered to pay almost £500,000 in compensation. Does anyone seriously believe that the introduction of the TEF metrics will lead to a reduction in such complaints?
Metrics used to form university rankings are likely to reveal more about the history and prestige of those institutions than the quality of teaching that students experience there. The Office for National Statistics report, on the basis of which the TEF is being taken forward, made it clear that they were told which metrics to evaluate, leading to the conclusion that these metrics were selected simply because the data were available to produce them. It is widely acknowledged that students’ experience in their first year is key in shaping what they gain from their time at university, yet the focus of the proposed metrics, of course, is mainly on students’ experiences in their final year and after graduation.
The ONS report was clear that the differences between institutions’ scores on the metrics tend to be narrow and not significant. So the majority of the judgment about who is designated gold, silver or bronze will actually be based on the additional evidence provided by institutions. In other words, an exercise that is supposedly metrics-driven will in fact be decided largely by the TEF panels, which is, by any other description, peer review.
Although the Minister spoke last week about how the TEF would develop to measure performance at departmental level, the ONS report suggested that the data underpinning the metrics would not be robust enough to support a future subject-level TEF. Perhaps the Minister can clarify why he believes that this will not be the case—the quality of courses in a single university tend to be as variable as the quality of courses between institutions. As I said in Committee last week, this would also mean that students’ fees were not directly related to the quality of the course they were studying. A student at a university rated gold or silver would be asked to pay an enhanced tuition fee, even if their course at that university was actually below standard—a fact that was disguised in the institution’s overall rating.
Learning gain—or value added—has been suggested as an alternative, perhaps better, measure of teaching quality and is being explored in other countries. At a basic level, this measure looks at the relationship between the qualifications and skills level a student has when starting their degree programme, compared to when they finish—in other words, a proper, reliable means of assessing what someone has gained from their course of study.
The BIS Select Committee report on the TEF metrics published last year recommended that priority should be given to the establishment of potentially viable metrics relating to learning gain. I hope the Minister will have something positive to say on that today, or, failing that, on Report. We do not believe that the metrics as currently proposed are fit for purpose; more importantly, nor do many of those within the sector who will be directly involved with the TEF. That should be a matter of some concern for the Minister, for his colleague the Minister for Universities and Science, and indeed for the Government as a whole.
Viscount Younger of Leckie (Con)
My Lords, when we last met, and as the noble Lord, Lord Lipsey, said, we had a useful and wide-ranging debate on the TEF, and I value a further debate on this important subject.
The Conservative manifesto committed that we will,
“introduce a framework to recognise universities offering the highest teaching quality”.
During last Wednesday’s debate, I was pleased that, as the noble Lord, Lord Watson, noted, all noble Lords who spoke were in favour of improving teaching quality and of having a teaching excellence framework in some form.
Before discussing the specific issues raised today, I should like to clear up what appear to be some misapprehensions about how the TEF will operate. Before doing so, I should say that I will write to the noble Baroness, Lady Wolf, who raised a number of detailed points. I think it is best if I address those specific points in another letter. I should reassure noble Lords that I have just signed a letter relating to our previous day in Committee, and that should arrive on their doorsteps shortly.
It is important that when we discuss the TEF we do so in the context of the framework that has been set out, in detail, by the Government. To be clear, this framework has been designed over the past year and a half with the sector, through two consultations, and using the input of experts such as HESA and the ONS.
First, the TEF is not only—not even primarily—about the NSS, as I think the noble Lord, Lord Lipsey, acknowledges. The NSS is just one of three principal sources of metrics data being used, and we have explicitly said that the NSS metrics are the least important.
Secondly, the TEF is about much more than metrics. Providers submit additional evidence alongside their metrics, and this evidence will be given significant weight by the panel. The work of the panel will be driven as much by judgment as by metrics, ensuring that the distinctive character of institutions, as well as the diversity of missions and approaches across the sector, are recognised in the ratings awarded. Furthermore, final decisions on TEF ratings will be taken by a peer review panel, not by Ministers or civil servants.
We also consider it vital that judgments are based on a combination of core metrics, with additional and qualitative evidence, wedded together by expert peer judgment. It is for providers to determine what and how to teach, and excellent teaching can take many forms. However, great-quality teaching, defined broadly, increases the likelihood of good outcomes. In our consultation, over 70% of those who responded welcomed our approach to contextualising the data and provider submission.
I reassure noble Lords that we are not naive about the use of metrics. Chris Husbands, the TEF chair, has noted that the approach that the TEF takes is realistic about the difficulty of assessing teaching quality. He said:
“It does not pretend to be a direct audit of the quality of teaching. Instead, it uses a range of evidence to construct a framework within which to make an assessment—looking at a range of data on teaching quality, learning environments and student outcomes”.
Turning to Amendments 187, 197 and 190, that is why the development of the TEF, including metrics, is a phased process of development. Our consultation on the metrics included a table of the potential unintended consequences and our proposed mitigations. We will continue to collaborate and work with the sector to make further improvements, learning lessons from the initial, trial year. The aim is to instil and gain the confidence of the sector, and I believe we have made a very positive start. As Dame Julia Goodfellow, president of Universities UK, said:
“The government’s response to the Teaching Excellence Framework consultation demonstrates that it has consulted and listened to the university sector”.
I am concerned that some of the amendments in this group add a level of process which could reduce the incentive to make further changes to the scheme or the metrics by requiring that they are laid before Parliament as they change. This reduction in flexibility is not required by other schemes supported by many noble Lords, such as the research excellence framework.
I now turn to amendments to prohibit the use of the National Student Survey. We are listening carefully to concerns on the NSS, but we cannot ignore the only credible, widely used metric that captures students’ views. We are not using the general satisfaction ratings in the TEF; rather, we are using specific questions related to teaching quality. My noble friend Lord Willetts highlighted that point. However, as the noble Lord, Lord Lipsey, acknowledges, we recognise the limitations of the NSS and have taken steps to mitigate these, including directing TEF assessors not to overweight the three NSS-based metrics and making them aware that NSS scores can be inversely correlated with stretch and rigour. Looking at three years-worth of data will mitigate concerns about the effects on small providers. It will also help to address the concerns of the noble Lord, Lord Lipsey, about spikes created by a non-response. The need for care when interpreting results for small providers has been drawn to the attention of the TEF assessors. However, overall the panel will be encouraged in its assessment to reward and recognise quality wherever it finds it, without being bound by guideline distributions of gold, silver and bronze.
Lord Watson of Invergowrie
My Lords, the Minister said there are no quotas, but unless my memory fails me, when we discussed the TEF, he said he thought that gold and bronze would have roughly 20% each and the rest would be what he termed “in the middle”. I understand that they are not firm quotas, but it seems that the Government have a fairly clear idea of what they expect the outcome to be.
Viscount Younger of Leckie
I will have to check Hansard, but I believe I was speaking about the current system and how it is working now. I should stress that there is no quota and it could well be that these percentages are different when operated under the TEF. There is no particular expectation. I believe I was answering the question about how it might be likely to be very different.
Baroness Lister of Burtersett (Lab)
I thank the Minister for answering my third question, but I had two other questions specifically on the measurement of teaching quality. Can the Minister answer them in his next letter, which we are so eagerly awaiting?
Viscount Younger of Leckie
Yes, of course. I reassure the noble Baroness that I will add her points and I will look at Hansard again closely on the issues that she has raised and address them.
Lord Blunkett (Lab)
Would the Minister be kind enough to ask his staff to include me in his letters? Although I have not spoken in this debate, I would be very grateful if he could include me in the communication.
Viscount Younger of Leckie
That is easy to answer and of course I will include the noble Lord in my reply.
Lord Patten of Barnes (Con)
Can my noble friend briefly tell us what one calls a university not rated as gold, silver or bronze? What category is it in? How do you define it? Is it “tin”? Is it “unsatisfactory”? How do you describe it?
Viscount Younger of Leckie
I will include my noble friend in my letter and I will clarify that. The TEF is voluntary, so there will probably be some providers who are outside the TEF. I will follow that up and write a full letter that will include my noble friend.
Lord Jopling (Con)
On this same point, what has caused the problem is the Minister saying last Wednesday that,
“a bronze award is clearly seen as a badge of high quality, just as it will be in the TEF”.—[Official Report, 18/1/17; col. 276.]
Following on from my noble friend’s question, would it be helpful to the Government and the Minister if we were to table an amendment on Report to insert some grades below the bronze level?
Viscount Younger of Leckie
I answer my noble friend by saying that much of this has been addressed in all the consultations that have taken place. We believe that we have come up with the right approach. The consultation included a number of ways in which the ratings could be used and we have come up with this approach. One idea proposed a rating system with 10 criteria and another proposed four. We believe that this is the right approach, having consulted the sector.
Lord Lipsey (Lab)
My Lords, I thank all noble Lords who have taken part in this very good debate. I also thank noble Lords who resisted taking part, because I will not be terribly late for my favourite event of the year, the Gold Medal Showcase at Trinity Laban, where our musicians compete at a level you would not believe if you were not in the room.
First, I want to refer back to the debate that I was having with the noble Lord, Lord Willetts, where there was a contribution from my noble friend Lady Blackstone. It became practically academic at one point and I am reminded of Henry Kissinger’s remarks about why academics’ debates generate so much heat. The answer is because there is so little at stake. There is much more at stake in this one than in that one but, being of an academic disposition, as is the noble Lord, Lord Willets, I did want to refresh my memory of the ONS report. He pointed out that the quote I used included the word “raw”. He used that to suggest that it was not as critical as I thought. However, the ONS said it straight; it said that “the differences between institutions at the overall level are small and are not significant”. No doubt we can debate further in the common room afterwards.
This debate about the ONS and the RSS, seems to lend powerful force to some of the amendments in my grouping this afternoon. One of them calls for a statistical inquiry into the validity of the NSS and the noble Lord, Lord Willetts, and I could spend happy hours giving evidence to the statistical inquiry. In the end, this is not a matter of opinion on whether it is a good survey, it is a matter of fact. Facts need to be established and we should not be moving into a lower world where expert opinion no longer counts. That is the route to the forms of degeneration we are seeing throughout the world.
If I might be allowed one more minute, I should like to address the remarks of the Minister. We have been listening to the Minister throughout this debate and I have found his remarks this evening very helpful. Indeed, he made two crucial and valuable points. First, he made it perfectly clear that the submissions made by institutions—I hope I am summarising correctly—and the general case that their teaching is good, is more important than the metric based on the NSS. This is of great importance and deals substantially with many of the fears that have been bugging me. It is very easy for numbers to trump words, because they seem concrete, real and true and words can seem less so, but what he has said—I am sure the panel will take it very seriously—is an extraordinarily important breakthrough.
I am also glad about what the Minister said—though he was a little elliptical—about the distribution of awards between gold, silver and bronze. It will be very helpful if the number of institutions that fall into the bronze category is smaller than has sometimes been suggested and is confined to those institutions where there are well-attested problems. We do not want a fifth of our universities categorised as bronze, shunned by students in later years and deprived of the extra resources they need to improve their performance. If a few outliers are so categorised, so be it. That may be necessary for a successful TEF, but it is important that the numbers be kept down and I took the Minister to hint that they were.
There is one more thing that I would have liked him to say—and I do not mean in my fantasy world, where everything that the noble Baroness, Lady Wolf, and I said was made real. I would have liked him to say that, in view of the concerns about the soundness of the TEF, we are going to postpone—not end—the link between the TEF and fees, but there are some weeks between now and Report. There is some time for bodies such as the ONS to reflect on our debate this evening and perhaps give us further advice on their opinions of the metrics. There is also some time for Ministers to understand that, when they show flexibility on how this policy should be implemented, it is not weakness; it is strength, because it will lead to a stronger TEF that works in a way that every noble Lord who has spoken wants it to work. I beg leave to withdraw my amendment.
Lord Stevenson of Balmacara (Lab)
I thank all noble Lords who have contributed to this interesting debate. The metaphor of holding up a mirror to current practice and making sure that what is reflected is not a distortion of what is happening on the ground is very powerful. The noble Lord, Lord Addington, has done excellent work in this area and is an inspiration to us in insisting that we look at these points and think harder about how policies are going to be developed and how monitoring and training will support them. We owe him a great debt of thanks.
The noble Baroness, Lady Brinton, took the argument away from the specific question of what is happening in the Office for Students and how things should be done, and looked at it in the context of our responsibilities under the UN convention. That is very important. In reading out her quotation, she pointed out that the UN does not have a problem with “must”. Our parliamentary draftsmen shy away from “must” and always insist on “may”. The convention clearly says “must”, so there are is no way of ducking this responsibility. The Government are responsible for policy, monitoring, training, funding and development; for ensuring that the project is capable of reflecting correctly what we do; for ensuring that there are none of the perverse incentives to which the noble Lord, Lord Addington, referred; and for ensuring that we can operate in an appropriate way for a civilised society, caring for all students and making sure that access is available to all.
Our Amendment 236 is of the “change ‘may’ to ‘must’” type. I thought that, as I was not getting very far with “must”, I should try “should”, but the intention is exactly the same. This is something the OfS should—that is, must—do. It should not just identify; it should also give advice on good practice. If we do not work together, we will never achieve this aim.
Viscount Younger of Leckie
My Lords, I am grateful to noble Lords for raising important issues relating to access and participation plans and disability. This Government are deeply committed to equality of opportunity, and I agree with many of the comments made by the noble Lord, Lord Stevenson. That is why Clause 2 introduces a duty on the OfS to consider equality of opportunity in connection with access and participation in higher education. This applies to all groups of students. No such duty applied to HEFCE.
In order to be approved, access and participation plans will need to contain provisions to promote equality of opportunity. This makes clear our commitment to this important consideration. Questions were raised by the noble Lord, Lord Addington, and the noble Baroness, Lady Lister, about where we are on guidance on disabilities. I hope noble Lords have read my letter of 18 January, but I confirm, as I confirmed in that letter, that I expect this guidance, for which noble Lords have been waiting for some time, to be published imminently. I also reiterate my offer to meet the noble Lord to discuss this issue further.
Amendment 226, tabled by the noble Lord, Lord Addington, and the noble Baroness, Lady Brinton, seeks to specify that governing bodies of institutions may take advice from bodies nominated by the Equality and Human Rights Commission in developing the content of their access and participation plans. I support the intention here. We expect higher education providers to consult to help ensure that their access and participation plans are robust. I listened carefully to the sobering anecdote about a student experience from the noble Baroness, Lady Brinton. This is the very issue for which we are seeking solutions. We are in agreement about that. Indeed, OFFA currently sets out its expectation that universities consult students in preparing access agreements, and we anticipate that this will continue for access and participation plans. Given the autonomy of institutions and the wide-ranging support already available—for example, the Equality Challenge Unit supports the sector to advance equality and diversity for staff and students—I believe it is unnecessary to place this requirement in the Bill.
Amendment 228, proposed by the noble and learned Lord, Lord Wallace, seeks to include providing training for staff in awareness and understanding of all commonly occurring disabilities. Ensuring a fair environment and complying with the law are matters which providers need to address in meeting their obligations under the Equality Act 2010. This amendment would mean including a level of detail not consistent with the other, broader provisions and may overlook other underrepresented groups. For these reasons, I believe this amendment is unnecessary.
The noble Baroness, Lady Brinton, and the noble Lord, Lord Addington, proposed Amendment 229, which would mean that provisions requiring institutions to specify the support and advice they provide for students with disabilities may be contained in regulations about the content of an access and participation plan. We absolutely agree with the principle behind this amendment. The Equality Act 2010 imposes a duty to make reasonable adjustments for disabled persons, which includes an expectation to consider anticipatory adjustments. In addition, the Equality and Human Rights Commission has a supporting role in providing advice and guidance, publishing information and undertaking research. Given the wider context, this amendment would introduce a level of detail into the Bill that is inconsistent with the other broader measures. It may also risk being seen to overlook other underrepresented and disadvantaged groups.
The new clause proposed in Amendment 235, tabled by the noble Lord, Lord Addington, and the noble Baroness, Lady Brinton, would require the OfS every two years to commission a review of the support for students with disabilities or specific cultural needs. This is an interesting proposal, and I remind the noble Lord and noble Baroness that the Bill will require the OfS to produce an annual report covering its delivery against all its functions. Critically, this includes the duty regarding equality of opportunity set out in Clause 2.
Baroness Deech (CB)
Will the Minister clarify what is meant in Amendment 235 by “cultural needs”? I understand religious needs, but I cannot think of any cultural needs that have to be attended to. We certainly do not want to see universities providing, for example, gender segregation.
Viscount Younger of Leckie
It is a generic term. In my next letter, I will address that point. I am certain that it requires a proper and full answer.
Amendment 236 seeks to ensure that the OfS “should” identify good practice and give advice to higher education providers. Let me reassure the noble Lord that we expect this to be a key function of the OfS. HEFCE and OFFA already do this as part of their existing roles, and we expect that will continue in future. We believe that the Bill as drafted will deliver the policy intent on the issues raised, so these amendments are unnecessary. I appreciate the fact that noble Lords have raised these issues, and I ask the noble Lord to withdraw Amendment 226.
Lord Addington
My Lords, I thank the Minister for his reply and thank the most reverend Primate the Archbishop of York for pulling me up and reminding me about a bit of the amendment that I wrote myself, so I should have referred to it. I am glad to hear that the guidance is coming out. I have not received the letter yet, but it does not really matter. The fact that the guidance is coming is good. The fact that we have been waiting for it for this long is not. We are going to get it half way through an academic year, and in the vast majority of cases it will not be possible to implement it until next year. In certain cases, we are not preparing but patching up. We need to look at some of these issues in more detail. In fairness to the Minister, he was hearing about some of the specific points for the first time today. I look forward to arranging a meeting to see how this issue is progressing. I hope that bouncing between the Minister’s incredibly busy diary and my diary will be slightly more successful.
There are groups who do not know what is going to happen. They have been let down and have bad practices. I hope we can have clarifying amendments at the next stage, rather than confrontational ones, so we can find out exactly what is going to happen. At the moment, we are repairing trust and making sure this works slightly better—in a way we all thought the law was supposed to be working.
Viscount Younger of Leckie
My Lords, before the noble Lord sits down, can I clarify a slight misconception? The noble Baroness, Lady Deech, asked a question about cultural needs, which I attempted to address. In fact, it was the noble Baroness, Lady Brinton, who raised the concept of cultural needs, not the Government. I am very happy to discuss this with the noble Baroness, Lady Brinton, outside the Chamber.
Lord Addington
I think it was actually in my amendment. I am not wedded to this. It was a probing amendment. If the Minister does not like those terms, it does not matter to me at all. I beg leave to withdraw my amendment.
Viscount Younger of Leckie
My Lords, in moving these government amendments, I look forward to potentially hearing contributions from the noble Baroness, Lady Garden, and the noble Lords, Lord Storey and Lord Stevenson, about the amendments that they have proposed in this group. However, I believe the amendments we have tabled will have a similar effect to that which their amendments seek to achieve. The Bill is not as clear as it could be on exactly what types of providers can apply for what type of degree-awarding powers, and what awards this then entitles them to make. I believe this is why noble Lords tabled Amendments 242 and 243.
The simplest way of dealing with the issues at play here is for me to explain the purpose of the government amendments. We listened carefully to the discussions in the other place and, as the Minister for Universities and Science promised, we have reflected on and re-examined how Clause 40 may have been read as impacting on the further education sector. Although there are over 30 government amendments in this group, most of them are consequential and there are really just two main areas that we seek to address. First, we want to remove any doubt that institutions within the further education sector can continue to apply for powers to award foundation, taught and research degrees. We believe that the amendment to Clause 40(1)—whereby what was subsection (1)(b) has been removed—will achieve this. Under that amendment, the definition in Clause 40(3) of a “taught award” clarifies that this may include a foundation degree. Removing what was Clause 40(1)(b) should help to remove any impression that providers in the further education sector that obtained powers under this route could not go on to obtain powers also to award higher-level degrees. As before, a further education provider must also be a registered higher education provider before it can apply for authorisation to grant awards under Clause 40.
Secondly, these amendments should remove any doubt over which providers can award foundation degrees. While we wish to retain the current position where only higher education providers that are also further education providers may apply for powers to solely award foundation degrees, it should nevertheless continue to be the case that institutions that can award taught degrees should also be able to award foundation degrees. It remains the Government’s policy that a provider that wishes to be authorised to award foundation degrees only should be required to provide a satisfactory progression statement. We believe it is important that the provider in question can demonstrate that it has in place clear progression routes for learners wishing to proceed to a course of higher-level study on completion of the foundation degree. The amendment to Clause 43 is therefore to ensure that, were a variation of a provider’s powers to result in it being left with the powers to award only a foundation degree, that provider would need to be able to satisfy the Bill’s requirements in respect of a progression statement. I beg to move.
Lord Storey (LD)
My Lords, I thank the Minister for his comments. I am speaking to Amendment 243 in this group. We welcome the government amendments. I agree very much that there needs to be clarity. There is a need to ensure that certain procedures within the Bill are applied fairly and proportionately and accommodate smaller providers of higher education such as further education colleges. It is also the case that the recently published BEIS post-16 skills plan includes proposals for colleges to make their own technical education awards, and it is important that there is joined-up thinking in this area. Unlike universities, colleges that offer foundation degrees are currently unable to provide both a foundation degree and a certificate of higher education to provide a flexible level 4 qualification option for students. The amendment would remedy this.
Lord Stevenson of Balmacara
The noble Baroness is campaigning vigorously and with her usual persistence on a very interesting point. The letter dated 23 January that was delivered just as we were sitting down to enjoy ourselves this afternoon—I think we are going to have to start numbering them so we can keep track of which letter is which—has a little section on this, to which I think she was referring. Can the Minister possibly explain what this means?
“It is the Government’s policy that a provider that has a physical presence in England, and that is delivering courses in England, can be an English higher education provider even if it is delivering other courses in another country, provided that its activities are principally carried on in England. There has never been an agreed measure for identifying where the majority of a provider’s activity might be. But there are a number of sensible measures (or combinations of sensible measures) that should make it reasonably clear, including the number of students studying courses in each country, and/or where the provider has its administrative centre(s)”.
With the greatest respect to the Minister, this is just throwing more marbles on to the road for our poor horses to trip up and fall over on. I am not going to quote the stuff about massive open online courses, which has been raised by the noble Baroness and is an issue, because that is completely bonkers.
Viscount Younger of Leckie
I appreciate the contributions from noble Lords in the very short debate after I introduced the government amendments. As we are now proposing that a foundation degree award is covered by the definition of a taught award in Clause 40(3), this puts holders of foundation degree-awarding powers in the same position as holders of taught degree-awarding powers—which I assume was the intent behind noble Lords’ amendments. In addition, we plan to set out in guidance the relationship between degree-awarding powers and powers to award other higher education awards such as certificates of higher education. I hope that this will help to further clarify the position for providers. We anticipate that this guidance will be subject to consultation. I do not wish to dwell on Amendment 256A any further, as we have covered the argument in our discussions on the previous group, where I trust that my noble friend Lady Goldie offered some reassurance.
However, I will address a small number of the points raised. The noble Lord, Lord Storey, raised some issues about the post-16 skills plan and how this joins up with our proposed reforms. I confirm that we are carrying out two reform programmes, in higher education and technical education at the same time, which he is probably aware of and which gives us the best opportunity to ensure that they are complementary and for young people to benefit from the changes as soon as possible. This is not about diverting people from academic education into technical education or vice versa; we simply want everyone who can benefit from a tertiary education—whatever that might be and whatever their talents lead them to—to have the chance to do so.
I will address the points raised by the noble Lord, Lord Stevenson. One point focused on the clarifications of our framework in relation to these amendments, while another was on the responsibility of powers. I think it is best to write a letter on that. I was interested in the points raised about entryism by the noble Baroness, Lady O’Neill, particularly on the position of overseas providers who might want to come in. The noble Lord, Lord Stevenson, has received the letter I have just written, in which I thought that we had addressed those issues, but I suggest that we have a meeting with the noble Lord and the noble Baroness, and indeed any other noble Lord who might wish to join in, to offer full and final clarification.
Higher Education and Research Bill
Viscount Younger of Leckie ExcerptsMonday 23rd January 2017
(9 years ago)
Lords ChamberRead Full debate Higher Education and Research Act 2017 View all Higher Education and Research Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 76-VI Sixth marshalled list for Committee (PDF, 214KB) - (23 Jan 2017)
Lord Stevenson of Balmacara (Lab)
My Lords, this has been a very interesting debate. It has shone a light in strange places that I did not think we would ever get to. As a not very good Scottish Calvinist, I am probably the least able to contribute to the debates that were organised by my noble friend Lord Murphy and the right reverend Prelate. However, they make good points and I hope the Minister will be able to help to move that debate forward.
I do not like the idea that my noble friend Lord Murphy’s institutions have to act illegally but be forgiven in the courts when they are finally taken account of. We should get ahead of the game and try to sort this out.
We started with the question of how research awards needed to be done jointly between UKRI and the OfS, if that is the body. This is something we will come back to, so it is no disrespect to say that we need not spend too much time on it now, particularly as the principal proposers of Amendment 509 are missing, in one case because of fog and in the other, I think, because of Cambridge. I cannot remember which is which—your Lordships can probably guess. It is therefore probably better if we pick that up when we come back.
That leaves the central issue posed by the noble Lord, Lord Kerslake, which is how we can find a structure in a system that has institutions of the highest quality by all accounts that can provide the assurance, support and effective answers to any of the questions raised by new challenger institutions, without those challenger institutions feeling that their operations and ways of working will be squished in some sort of force majeure that will be offered by the established club.
The amendments are very interesting. The words that have been used to attack the concept of probationary degrees need nothing further from me; I think that is right. That is not the way the Government should go on this. We are looking at a way of making sure that the quality assessment—the ability to come to an enduring decision about an institution that wishes to seek degree-awarding powers—is done in a way that reflects its ability to fulfil the necessary requirements in terms of capacity, financial security, academic capacity and the rest, but does not interpose somebody else’s view about what the institution should be doing on top of that.
The right reverend Prelate suggested that some of the stuff he was talking about had been going on since 1533. That puts in perspective people’s worries about a four-year period during which tests are made of whether institutions coming into the system are able to cope. Certainly, my discussions, which were mentioned by others, suggested that people who had been through that process found it valuable, so it would be very stupid to throw it away without further consideration.
I went down memory lane with the noble Lord, Lord Norton of Louth, because I started my career in academic administration with CNAA. It was bureaucratic and a little heavy-handed but it worked very effectively. It is interesting that the final vestiges of CNAA still exist in the Open University. Maybe that is where we might want to look, as a future amendment suggests, before we start trying to create something that will not stand the test of time or advance higher education in the UK, and may indeed cause problems, many of which have been raised in this short debate.
Viscount Younger of Leckie (Con)
I am grateful to the noble Lords for the opportunity to speak to this important group of amendments. Once again, I acknowledge the experience of noble Lords who have contributed to this short debate, including my noble friend Lord Norton, who has chaired the Higher Education Commission.
It is vital that the OfS and UKRI are empowered to work together. Hence, Clause 106 ensures that the two organisations can co-operate and share information in relation to any of their functions, including granting research degree-awarding powers. UKRI will play a key role in developing research degree-awarding powers’ criteria and guidance, including for postgraduate research degrees, and it will work closely with the OfS to design the process for assessing applications and in its operation. We will make this explicit in the published government guidance on degree-awarding powers. The Secretary of State will also have powers to require this co-operation to take place if the OfS and UKRI do not do so of their own accord. UKRI will be responsible for all research funding, including postgraduate research. It will support postgraduate training and doctorates, as the research councils do now.
I do not agree that legislation is the right route to formalise the detail, due to the risk of unintended consequences. Instead, a memorandum of understanding between the OfS and UKRI will be produced. This will provide detail on how oversight of the sector’s interests as a whole will be maintained, including how the two bodies will work together in respect of postgraduates.
Turning to the amendments relating to the OfS granting time-limited or probationary degree-awarding powers, the current system has protected quality successfully and, as I hope I made clear in my earlier remarks, we are not proposing a complete overhaul. Reference has been made to factsheets, and we have set this out in more detail on a factsheet specifically on degree-awarding powers and university title, which we published last week. I hope noble Lords have found it helpful.
However, I make it clear that this does not mean we should be satisfied with the status quo. Under the current regime, new and innovative providers have to wait until they have developed a track record before operating as degree-awarding bodies in their own right, no matter how good their offer is or how much academic expertise they have. To develop that track record, they are usually reliant on finding another institution to validate their provision and must negotiate a validation agreement, which can be one-sided and sometimes prohibitively expensive. My noble friend Lord Lucas asked about validation arrangements. I agree with his points about the problems with validation. We will come to that in more detail in a later debate, so I hope he has some patience for that.
We strongly believe that the sector needs to have at its heart informed student choice and competition among high-quality institutions. This incentivises institutions to raise their game, with the potential to offer students a greater choice of more innovative and better-quality courses. The noble Lord, Lord Kerslake, claimed that the shift to full-time undergraduate degrees was not due to validation and a lack of innovation. I quote to him Paul Kirkham, who he may know is vice-chair of Independent Higher Education:
“I can see essentially only one ‘product’ in the higher education world that has real currency—the three year, full-time, on-campus undergraduate university degree, almost exclusively priced at a single point. This is a high cost and inflexible approach that, with in excess of 50% of the population wishing to engage, cannot be the only solution”.
Our plans for probationary degree-awarding powers mean that high-quality providers do not need to rely on incumbents and can be permitted to award degrees in their own name from the start—subject to close supervision.
Lord Kerslake
I just wanted to come back on this issue of the shift in proportion between full-time and part-time degrees. Could the Minister confirm that the significant cause of that shift is the falling off of part-time degrees and that that is related not to the issue of validation but to the change around funding arrangements? We must be clear about the causes of changes here, or we are likely to find the wrong solutions.
Viscount Younger of Leckie
There can indeed be quite a full debate on the causes of the changes and I hope that in previous debates I have acknowledged the changes in the marketplace. Our aim as a Government is to address these changes. I think that we are all on the same page on that. I am happy to speak to the noble Lord, Lord Kerslake, further on that particular issue—in other words, concerning the issues that are leading up to our reforms.
Lord Norton of Louth
My noble friend has dealt with the point about a body that is awarded a degree-awarding power on a probationary basis and then does not have that power granted at the end of the probationary period, where for current students a student protection plan would be in place. However, if it is a degree-awarding body it may have already awarded degrees. What value does he think would attach to those degrees?
Viscount Younger of Leckie
Again, I can speak to my noble friend outside the Chamber, but surely there is no change to the current situation. In an extreme position where a provider fails, a student who has a degree from that failed provider would have to take that with him or her. There is surely no change and no reflection in terms of what we are trying to do here.
Baroness Brown of Cambridge
I thank the Minister for his detailed answer, and the other noble Lords for their important contributions to this debate. I feel slightly embarrassed as the leader of the one of the most specific areas of amendments to be the person responding on behalf of all those who have contributed.
I thank the Minister for his assurance that it will be explicit in the public guidance about UKRI and the OfS that they must work together in the area of research degrees and that this will feature in the memorandum of understanding on how they work together. That is extremely positive. I should still like to see in the Bill that they must work together rather than that they can work together. However, I thank him for his assurance that this will be explicit in guidance.
I am sure that the right reverend Prelate and the other noble Lord who spoke about the ecclesiastical issues will be happy with the agreement to meet the Minister to take those key areas forward. There is still a significant concern in the Committee, which I share, about the probationary degree-awarding powers, protection for students and whether the evidence is that it is the inability to find a validation partner that is stopping innovation in the system. I am delighted that the Minister has offered further meetings to continue this discussion. I am sure it will come up again as we discuss the validator of last resort, and may well also come up on Report. However, in the light of the detailed response from the Minister and the offers of meetings, I beg leave to withdraw the amendment.
“(4) An order under subsection (1) which would give a provider foundation degree only authorisation may be made only if—(a) the provider is an English further education provider,”
Lord Watson of Invergowrie (Lab)
My Lords, I shall speak to Amendment 266, in the name of my noble friend Lord Stevenson, which I am pleased to hear that the noble Lord, Lord Lisvane, liked. Indeed, given the comprehensive manner in which he opened the debate, I have little to add.
Clause 40(10) provides for the OfS’s power to make an order authorising degree-awarding powers to be exercisable by statutory instrument. As the noble Lord, Lord Lisvane, said, it is unusual, to say the least, for the power to make statutory instruments to be conferred on organisations or people other than Ministers. I hope the Minister can explain to noble Lords why this departure from accepted practice is justified.
Amendment 266 would require the statutory instrument first to be approved and made by the Privy Council as an Order in Council. Many universities have degree-awarding powers that were awarded by the Privy Council, so the question for the Minister and the Government is: why take that away? In this amendment we are not asking the Minister to do something; we are asking him not to do something. We say that there have been no examples of universities clamouring for change, so why not leave things as they are?
My noble friend Lord Stevenson will speak in more detail about the Privy Council on a later group, but I want to stress now that it is an independent body, completely impartial and well respected. That is something not to be cast aside lightly. This is the established process for introducing new universities, and the current system has worked well over many years. We do not believe the case for such a radical change as handing all powers to the OfS has been made, but if the Privy Council is to be replaced, its replacement should be as rigorous as the Privy Council, and at least capable of building a reputation as strong as its reputation. The OfS cannot as things stand, and may not ever, achieve that status. It is essential to ensure scrutiny by the Privy Council of the power to grant awards.
The noble Lord, Lord Lisvane, as a member of the Delegated Powers and Regulatory Reform Committee, understandably quoted from that committee’s report on this part of the Bill. He commented, I think, on paragraph 30; I want to highlight what the committee said in paragraph 28, commenting on Clause 43, which enables the OfS by order to vary or revoke degree-awarding powers. Although exercised by statutory instrument, these powers would not be subject to parliamentary scrutiny. The DfE had sought to justify this to the committee, but the committee’s response was unequivocal. Paragraph 28 says:
“We are not in the least convinced by the Department’s reasons. We do not believe that the requirement for detailed consideration by the OfS, and the existence of a detailed procedure including rights of appeal, are incompatible with an order under clause 43 being subject to Parliamentary scrutiny … There is nothing on the face of clause 43 which limits the way in which the OfS is able to exercise the powers, leaving it wholly to the discretion of the OfS when and in what circumstances the powers should be exercised. We therefore recommend that the powers should be subject to Parliamentary scrutiny and that the affirmative procedure should apply”.
There is nothing I can add to that—an opinion reached after due deliberation by a committee with no political axe to grind. I imagine the Minister may feel more than a little uncomfortable at the fact that he and his department are effectively ignoring the judgment of noble Lords. They do not deliver such verdicts lightly, and I believe that the Minister and his team need to revisit the report and reconsider their position on the manner in which the OfS is to be permitted to act on varying or revoking institutions’ degree-awarding powers.
Viscount Younger of Leckie
My Lords, my noble friend Lady Goldie has asked me to apologise to the Committee as she has succumbed to her bad cold and I will be in the hot seat for the rest of the evening.
I entirely agree that we need to ensure that the processes around the award, variation and revocation of degree-awarding powers and the award and revocation of university title are sound and fit for purpose. I will explain why we believe the Bill does just that. However, we will continue to listen and reflect on whether there are further improvements that we can make to these processes. I say that at the outset.
I shall deal with the amendments to Clause 40. At the moment, we have a lengthy process for the award of degree-awarding powers, which involves the Privy Council seeking advice from the department, which in turn seeks advice from HEFCE and the QAA. This is unduly complex, and through our reforms we are seeking to streamline the process without lowering standards. This is why, under our plans, the OfS would run the whole process from application through to award. Decisions on degree-awarding powers would be taken by the OfS, as an independent, arm’s-length body, on the basis of published criteria set out in guidance, and should be made after having consulted relevant bodies such as the designated quality body. It is therefore only logical that the OfS would also make the order that grants degree-awarding powers. Adding the Secretary of State or Privy Council approval would, under the new regime, have little benefit other than complicating the process.
I turn to the amendments that would ensure that orders varying or revoking degree-awarding powers and revoking university title have to be made by the Secretary of State, who would also deal with the processes of variation and revocation. Giving order-making powers to persons and bodies other than the Secretary of State or the Privy Council is not unprecedented—for example, Ofcom has order and regulation-making powers. The OfS, as an independent regulator, is best placed to make an assessment as to whether degree-awarding powers or university title should be awarded, varied or revoked. It will have much better insight into the provider in question and the sector as a whole than the Secretary of State ever could. Therefore, our intention is that these decisions are taken by the OfS on the basis of published criteria set out in guidance, the detail of which the department intends to consult on.
Let me provide some further reassurance that these powers are not intended for everyday use. We intend that the OfS and the new quality body will work with providers to address any emerging problems early on. Removal of degree-awarding powers or university title is therefore likely to be a rarely used, but necessary, safeguard for quality in the system. In addition, the OfS would always, in accordance with its general duties listed in Clause 2, have regard to important factors, which includes the need to promote quality. These are additional safeguards to ensure that the OfS’s powers are not abused. Any decision to subsequently revoke degree-awarding powers or university title will be regulatory decisions. We think it is right that they should be taken by the regulator, not a Minister. However, we recognise the significance of these powers and have therefore made sure that there are appropriate safeguards in place. These are set out in Clauses 44, 45, 54 and 55. They include the OfS having to notify the provider of its intentions and to give reasons; the OfS having to give the provider a chance to respond and take account of that response before making a decision; and, as the Committee will know, a right of appeal to the First-tier Tribunal. This safeguards against any undue interference with the institutions’ autonomy. We believe that an appeal to the First-tier Tribunal provides for the most independent review of a case.
I address a point raised by the noble Lord, Lord Lisvane, about providers with royal charters. I will explain how the process would work in that case. We do not envisage a scenario where the use of powers in Clause 110 would result in the revocation of an entire royal charter which established the institution. The Secretary of State can amend royal charters where appropriate so that the charters operate smoothly, but only where they reflect any changes made by the OfS to degree-awarding powers or university title contained in the royal charter—for example, a revocation of university title. This is not a general power to amend but must be linked to changes made by the OfS in relation to degree-awarding powers and university title. Importantly, I reassure noble Lords that any amendments or revocations made by the Secretary of State would be subject to parliamentary scrutiny via the affirmative procedure, which I think, and hope, that the noble Lord, Lord Lisvane, mentioned and acknowledged. If we were to introduce parliamentary scrutiny for the orders on top of this already very strong, but also lengthy process of appeals, as suggested by Amendments 511 and 512, we would further delay the implementation of any decision, and thus potentially put students at risk. It would also introduce unnecessary complexity into the system: how would parliamentary scrutiny work alongside an appeals process and what if they reached different conclusions? Again, I emphasise that we have designed the processes in such a way that there is no need for Ministers to get involved. It will be a regulatory process, instigated by the regulator and decided by the independent judiciary.
While I understand the intention behind these amendments, I believe that the controls and protections in place are adequate and therefore the amendments are not necessary. However, as I said at the beginning, I will reflect on any further improvements that could be made. In the meantime, I ask the noble Lord to withdraw the amendment.
Lord Watson of Invergowrie
I understand that the Minister will reflect on this, and no doubt the department is preparing its response to the Delegated Powers Committee’s report. I wonder whether the Minister will take the content of this short debate and feed it into that process, so that it might carry some weight in deciding the government position.
Viscount Younger of Leckie
Indeed, the noble Lord makes a good point. I am sure that will be taken into account in terms of any further improvements we might wish to make.
Lord Norton of Louth
Before my noble friend sits down, could he just clarify on the first amendment of the noble Lord, Lord Lisvane? Under Clause 40(10), the OfS can make an order exercisable by statutory instrument and,
“is to apply to such an instrument as if the order had been made by a Minister of the Crown”.
Am I therefore right in believing that, under Clause 113(3), if it is a statutory instrument, it could be prayed against? If that is the case, does that not put the Minister in a difficult situation?
Viscount Younger of Leckie
My noble friend is very adroit at raising some complicated issues. I should answer the question but also go into some detail as to the different scenarios that might occur. I respect the quality of advice that he gives.
Lord Lisvane
I am very grateful to the Minister for his careful and detailed reply. The noble Lord, Lord Norton, is on to a good point there. If it is an SI Act 1946 statutory instrument, the Act contains the praying procedure. It would indeed put a Minister perhaps in rather a difficult position, having to defend the case, while having, as it were, abrogated responsibility. That is no doubt something about which we will hear, perhaps in a further edition of these exciting letters.
I do not quarrel with the proposition that the OfS will be best placed to make the assessment, but that does not necessarily mean that the OfS should be able to engage in the law-making process. I fancy that we have once again encountered what we encountered last Wednesday: two reasonable people can disagree about something without either of them being unreasonable. Issues of policy and principle arise in this group of amendments which might well benefit from being reconsidered on Report, but in the meantime I am very happy to beg leave to withdraw the amendment.
Viscount Younger of Leckie
My Lords, I shall be brief as well. It remains our policy that degree-awarding powers cannot be transferred or sold. As now, if a holder of degree-awarding powers was involved in a change of ownership, it would be expected to inform the OfS and demonstrate that it remained the same cohesive academic community that had been awarded those powers originally. We need to maintain flexibility to adapt to changing circumstances, so it is appropriate that these matters are covered through guidance, in the same way that the process operates currently. I hope that with that extremely short explanation, the noble Lord will withdraw his amendment.
Lord Stevenson of Balmacara
That was a little briefer than I had anticipated, but I will look at it carefully. In the meantime, I beg leave to withdraw the amendment.
Lord Norton of Louth
My Lords, I have great sympathy with what the noble Lord, Lord Liddle, has just said. On the lead amendment, Amendment 282, which seeks to make such an order subject to the affirmative resolution procedure, I revert to a point that I made a few moments ago. As I read it, the order-making power in subsection (5) would presumably be subject to being prayed against. I would have thought that if any authorisation was revoked, it would be likely to be highly controversial and therefore might well trigger the order being prayed against. However, that would create the same situation, because the revocation would be by the OfS but the defence would have to be by the Minister, who would be somewhat detached from the whole exercise. I am not sure how that is addressed, and I look forward to my noble friend’s comments.
Viscount Younger of Leckie
My Lords, I am grateful for the opportunity to explain the provisions on the revocation of degree-awarding powers and university title. I make it absolutely clear that these powers are not intended for frequent use, as I have mentioned before. We see them as a rarely used but necessary safeguard for quality in the system. We know that these powers are significant and that is why we have endeavoured to include strong safeguards, including a right of appeal to the First-tier Tribunal. We have listened carefully and will continue to reflect on whether there are further improvements that we can make, and we will no doubt discuss this matter further on Report.
Our higher education system is world-class and university title and degree-awarding power are valuable assets. It is the responsibility of those that have obtained these prestigious titles to uphold their reputation. However, without powers to hold such providers accountable, we risk undermining the reputation of our universities. Let us consider the impact if a university’s quality and standards were to drop to a wholly unacceptable level, to the extent that it was widely known that its degrees were not comparable to others and the provider in question had done nothing to address this. Would we really want such an institution to continue to benefit from the prestige of a university title?
Lord Adonis (Non-Afl)
My Lords, I can see that under Schedule 1 the OfS must prepare a report on the performance of its functions during each financial year in any case. Given the magnitude of the decisions to which my noble friend Lord Liddle referred, it would be a very straightforward and simple amendment to require that annual report to have regard to the exercise of the functions under this clause.
Viscount Younger of Leckie
I note the point the noble Lord, Lord Adonis, has made and that will definitely be part of our general reflection.
I now turn to the processes and safeguards. The OfS, as an independent regulator, will be best placed to make decisions on whether to vary or revoke an authorisation to grant awards or revoke a university title. However, there is a statutory process that must be followed. Clauses 44 and 54 provide that the OfS give appropriate notice to the governing body of the provider, set out its reasons why it considers it necessary to take the step of variation or revocation and must have regard to any representations made by the provider before proceeding. I agree that the OfS should be able to draw on all relevant information, including from other parties. Clause 58 enables that already.
Turning to Amendments 282 and 347A, we want to move to a system where quality, rather than the age of an institution, will be the yardstick and where the OfS has powers to vary or revoke degree-awarding powers and to revoke the university title of any institution, no matter how they were obtained. This is essential to achieve a level playing field among providers.
Amendment 282 would unlevel the playing field for revocation of degree-awarding powers. We included a right of appeal for any revocation decision because we felt that this was the most appropriate and independent review, and that it would therefore be the best way to safeguard the interests of the provider, including its institutional autonomy. An appeal to the First-tier Tribunal is an opportunity for a provider to present evidence to support its case. It provides for a politically neutral and objective judgment of the merits of the case. I see the logic behind these amendments and we value the expertise of Parliament, as well as the important scrutiny functions. However, on matters of regulation, we believe such scrutiny and safeguards are better provided by the courts, rather than by Parliament. The regulatory framework will apply to all providers equally. If we accept this principle when it comes to other rights and obligations, I find it difficult to justify treating a provider that got its degree-awarding powers in the 1970s—such as the University of Buckingham, for example—differently from one that gets them in 2020.
Before I finish, let me briefly address the amendment of the noble Lord, Lord Judd, which would allow for appeals against unsuccessful degree-awarding power applications. There currently is no such provision and the appeals provision in the Bill has been drafted to cover scenarios where the OfS makes a decision that deprives providers of a status or powers, or imposes a monetary penalty. I can provide some reassurance: we expect that there will continue to be internal complaints mechanisms similar to those run by the QAA at present. The amendment is therefore not needed.
I am afraid there is no time to address the thoughtful points raised by the noble Lord, Lord Judd, on the path universities are travelling down. I say only that there is undeniably an important, international market where we are in the business of attracting students who realise that they have a choice. We have to be realistic and remember that.
As I said, we appreciate the need to get the safeguards right. While we feel we have struck the right balance, we will continue to reflect on any areas of improvement. In the meantime, I ask the noble Lord, Lord Watson, to withdraw Amendment 282.
Lord Watson of Invergowrie
My Lords, I thank the noble Viscount for his response and noble Lords who have participated in this short debate. It has been quite lively, with some interesting points made. On the points made by my noble friend Lord Liddle that the OfS should set out its reasons, allowing Parliament to debate its report annually, there seems to be no rational reason why that should not occur, because it does for several other regulators—although, is the OfS a regulator? That debate is continuing. I heard the noble Viscount say that he will consider that and we will return on Report, but whether the reports would be dull or refer to events that had happened frequently is not quite the point. We are all grateful to my noble friend Lord Adonis for drawing attention to Schedule 1’s requirement for an OfS report and welcome the Minister’s willingness to consider that before we move on to Report.
The noble Viscount—a man we are increasingly coming to recognise as the man of letters—said that Amendment 282 would “unlevel the playing field”. I am not sure whether that is a new verb added to our language, but none the less, as I understand it that compares existing providers with new arrivals. I do not see that it would necessarily do that. He mentioned the University of Buckingham. Yes, that has been there some 50 years outwith the system, because it was not part of the mainstream for many years, but the argument we had on the new providers needs to be separated from the situation of those that have held degree-awarding powers for a long time, rather than those that have recently got them and may be deprived of them for good reason, inasmuch as it could be said they should not have had them in the first place. That may be correcting an award that was done earlier than would have been appropriate.
The internal complaints mechanism to which the noble Viscount referred also needs to be looked at again. He said in response to my noble friend Lord Judd that there is an appeal provision against the decision of the OfS to vary or revoke degree-awarding powers, but not for those trying to have those powers granted. This impacts on a discussion we had earlier when the noble Viscount used terminology along the lines of, “It’s different if they’re in the system”, as opposed to being outside, and that they have to be treated differently if they already have the powers, as opposed to just seeking them. There is a basic justice issue there of an individual or organisation having the right to appeal against a decision that affects them adversely. A provider without degree-awarding powers would by definition not be part of the internal complaints mechanism to which the noble Viscount referred. I do not think he has answered my noble friend’s point. Again, I am sure this is something to which we will want to return on Report.
I welcome the fact that the noble Viscount has taken on board the points made. I look forward to returning to them. On that basis, I beg leave to withdraw the amendment.
“(10) Where subsection (8) ceases to prevent a variation or revocation taking effect on the date specified under subsection (6), the OfS is to determine a future date on which the variation or revocation takes effect under the order to be made under section 40(1) or 43(1).(11) But that is subject to what has been determined on any appeal under section 45(1)(a) or (b), or any further appeal, in respect of the decision to vary or revoke.”
(a) a decision of the OfS to vary or revoke, by a further order under section 40(1) or an order under section 43(1), an authorisation given to it;(b) a decision of the OfS as to the date specified under section 44(6) as the date on which the variation or revocation takes effect.”
“( ) vary the date on which the variation or revocation takes effect under the order to be made under section 40(1) or 43(1);”
Viscount Younger of Leckie
My Lords, in view of the very brief comments made by noble Lords in this extremely short debate, I shall also keep my comments short. I am happy to write to noble Lords if they feel that my comments are too short.
I understand that my noble friend Lord Lucas’s amendment is born of a wish to protect students, but I reassure him that there are already strong protections in place. I also reassure noble Lords once again that on our student protection plans our policy is to ensure that students’ interests are protected if a provider’s validation agreements break down.
I will comment a bit further on providers declining to validate on quality grounds. We expect that the OfS’s commissioning process should be open and transparent, so that providers clearly understand what would be expected of them if they agree to extend their validation services to other registered providers in this way. In all cases we expect the commissioned provider would need to be assured of the quality of the provision that it agrees to validate. The OfS’s commissioning process should therefore allow providers to decline to enter into validation agreements on quality grounds. So we believe that this amendment is not necessary. I therefore ask my noble friend to withdraw Amendment 305.
Lord Lucas
My Lords, I thank my noble friend for that brief reply. Perhaps he might enlarge on it when we meet, if not in a letter afterwards. I beg leave to withdraw the amendment.
Higher Education and Research Bill
Viscount Younger of Leckie ExcerptsMonday 23rd January 2017
(9 years ago)
Lords ChamberRead Full debate Higher Education and Research Act 2017 View all Higher Education and Research Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 76-VI Sixth marshalled list for Committee (PDF, 214KB) - (23 Jan 2017)
Lord Watson of Invergowrie (Lab)
My Lords, as the noble Baroness, Lady Wolf, set out very clearly, her amendment would allow the OfS to place,
“quantitative restrictions on the number of new students that the provider may enrol”,
if it has,
“reasonable grounds for believing that a registered higher education provider is in breach of an ongoing registration condition with respect to the quality of the higher education provided … or to its ability to implement a student protection plan”.
She went into some interesting and rather unfortunate detail about what can happen when colleges or providers get into serious difficulty.
The amendment has echoes of Amendment 142, moved by the noble Lord, Lord Lisvane, last week, which sought to replace the words,
“it appears to the OfS”,
with,
“the OfS has reasonable grounds for believing”,
relating to the power to impose monetary penalties in Clause 15. Restrictions on new students would be a new power following the provisions of Clause 15. In effect, it is another form of monetary penalty, which we support in principle, although we would be concerned if it were left open-ended. As soon as a breach is shown to have been brought to a conclusion, we believe the restriction should be lifted so as not to harm existing students, who are blameless but could be affected—as the noble Baroness, Lady Wolf, graphically explained—to their detriment through the institution either being closed, or having fewer resources.
I read closely the Minister’s response to the noble Lord, Lord Lisvane, from our debates on Wednesday. I cannot say that he made a convincing case for rejecting the rather stronger words in that amendment. He basically stated that as the wording in the Bill is used in other legislation—he quoted the apprenticeships Act of 2009—there was therefore no reason to change it. He did not come up with any other reason, despite the noble Lord, Lord Lisvane, saying in moving the amendment that “it appears to” was but one of the options available and one of the lower ones at that.
Although the words “it appears to” are used in other pieces of legislation, few use the formulation in the context of a decision to take enforcement action, which is what raises concern with this Bill. The noble Lord, Lord Lisvane, stressed that the aim was to raise the legal threshold before the OfS was entitled to take action. In doing so, he was supported by the noble and learned Lord, Lord Judge, one of whose cases was quoted. It seems at least odd that the Government feel that their lawyers, who I suggest probably do not have the noble and learned Lord’s expertise and experience, know better on this matter. The same applies to some extent to the amendment in the name of the noble Baroness, Lady Wolf. Having had time to reflect, perhaps the Minister will—if not today, before Report—come to the view that it is appropriate to raise the standard required of the OfS in such situations.
Viscount Younger of Leckie (Con)
My Lords, the Bill creates the conditions to improve the overall quality and diversity of the higher education sector, creating a level playing field through a risk-based approach to regulation. Clause 6 enables the OfS to impose specific, ongoing registration conditions on a provider. The practical effect of this is that the OfS will assess the compliance of all higher education providers with the appropriate conditions and will adjust its regulatory approach accordingly. This is central to the risk-based approach to regulation that the OfS is being established to provide.
In practice, we envisage that, if the OfS considers that an institution or an element of an institution, such as its financial sustainability, poses a particularly high risk, it can add, change or tailor the registration conditions applicable to that provider to address that risk. I hope I can reassure noble Lords that the Bill already provides for the OfS to set a student number control condition in cases where it is appropriate and proportionate; for example, an institution that the OfS considers may be in breach of registration conditions that relate to quality of provision could have a student number control imposed by the OfS as an additional specific registration condition, if the OfS believes that such action is reasonable and proportionate. The OfS may also exercise this power if it considers that there is a risk that the provider is recruiting more students than its student protection plan can properly cater for.
I am in complete agreement with the noble Baronesses, Lady Wolf and Lady Garden, about the importance of providing the OfS with the tools it needs to ensure the quality of higher education provision. However, given the powers already conferred on the OfS through Clause 6, it is unnecessary to include in the Bill one example of the conditions that could be imposed. Indeed, including one example of such a condition might appear to exclude other conditions which might be more appropriate in the circumstances of a particular provider, including those which have no plans to increase their student numbers. However, I appreciate the noble Baroness, Lady Wolf, raising this and I hope I can provide some further reassurance for her, focusing particularly on overseas providers, which she mentioned. Our plans will speed up and streamline process without lowering standards. In order to become eligible for degree-awarding powers, any provider must register and pass rigorous entry requirements. It is a high bar which only high-quality providers will be able to meet. We welcome overseas providers which meet this test increasing choice for students. Providers that cannot meet the rigorous entry criteria will not be able to become registered or obtain access to degree-awarding powers or university title.
The noble Baroness, Lady Wolf, asked what sanctions are available to the OfS. I start by saying that the best principles of regulatory practice will be adhered to. These include transparency, accountability, proportionality, consistency and, where issues are targeted, targeting only cases where action is needed. Specifically, the escalated suite of actions and sanctions available to the OfS includes: putting in place a support strategy or issuing a direction for a provider to take specified actions; imposing additional specific ongoing registration conditions—for example, as I mentioned earlier, student number controls; or imposing a monetary penalty. We envisage that most often this will be used where a breach has occurred but has now been remedied, but it can also be used alongside a suspension. Also—and by the way, this is as a last resort—the OfS can order deregistration. To further reassure the noble Baroness, this will be where all other efforts have failed or it is clear that imposing monetary penalties or suspensions will simply not be sufficient to deal with the provider. I hope that, with those reassurances, the noble Baroness will withdraw her amendment.
Baroness Wolf of Dulwich
I thank the Minister most sincerely for what he has just told us and for—I do not want to call it a gloss—the additional information he has provided. I am extremely relieved to know that it is clearly the intent of the Government that the OfS should have a wide range of actions and get deeply involved not merely in risk regulation but in avoidance of catastrophe, which I have alluded to. I am extremely grateful to the Minister, I am delighted to have had the points of fact he has just given us placed on the record, and I beg leave to withdraw the amendment.
(a) a decision of the OfS to remove it from the register under section 18;(b) a decision of the OfS as to the date specified under section 19(6) as the date on which the removal takes effect.”
Lord Deben (Con)
My Lords, I am sure that I am not the only one for whom the particular solutions that have been presented are not ones that we wish to support wholeheartedly. However, the reason for them is, I think, one that would attract support across the House. We live in a society where the dangers to our liberal system become daily more obvious, so we should not do anything that would enable those who would use the system for anything other than the free, liberal debate of which our universities are so central a part. We do not want a system that could in any way inhibit that.
One difficulty of discussing these issues is that no one is suggesting that this Government, or these Ministers, are of that kind. But a lot of things have happened over the past two or three years that have led many of us to be much more worried about those fundamentals that we have taken for granted. Therefore, I hope that the Minister will understand that there will be a considerable lack of ease if he cannot assure us about the independence of that part of the structure which ensures both quality and independence. As I say, I am not entirely delighted by the various suggestions as to what one might do, and I am concerned about the proliferation of bodies, groups and persons; I am never quite sure how such things can be totally divorced from party politics, but I certainly think we ought to try. I hope that the Minister will understand that there is an underlying concern, which may demand a different answer, but which must be assuaged, because we live in times when none of us is any longer willing to risk any of the things that we hold so fundamental and so dear in our liberal society.
Viscount Younger of Leckie
My Lords, Clause 23 establishes powers for the Office for Students to assess the quality and standards of higher education. It updates and modifies the current duty on HEFCE to do this.
I should like to say a few words about standards. As the Committee will know, we have already had a useful debate about the inclusion of standards in Clause 23. I reiterate that the intention here is not to weaken or undermine current sector responsibilities and ownership in relation to academic standards. I recognise noble Lords’ concerns. I have been listening, and continue to do so carefully, considering the points that have been raised.
These amendments touch on the importance of co-regulation and how that will be supported through the roles of the designated quality body and the quality assessment committee. They all give welcome recognition to the value of having an independent quality body to undertake the assessment functions under Clause 23, with effective independent oversight built into the quality system. That is why under the Bill the OfS must establish an independent quality assessment committee to provide quality oversight, and is given powers to designate a quality body which is independent from government. I hope that reassures my noble friend Lord Deben. The functions of the OfS and the quality body in this area are overseen by an independent quality assessment committee. Clause 24 will ensure that the majority of its members are not members of the OfS, while offering it the flexibility to draw on the expertise of individual OfS members.
I wish to address the points raised by the noble Viscount, Lord Hanworth, who was supported by the noble Baroness, Lady Garden. The general theme was that we needed a body which was independent, like the QAA. However, amendments to create a new body on a statutory footing, solely responsible for quality assessment without any links to the OfS, would remove the important ability for the system to operate as one and abolish the system of co-regulation, which has endured for almost two decades, by removing any possibility of a truly independent sector-owned body, such as the QAA, from the regulation of quality; instead creating a statutory body whose chair and chief executive are appointed by the Secretary of State. I reassure noble Lords about the independence of the designated quality body. Although the OfS, in having ultimate responsibility for the register of higher education providers, has to retain appropriate oversight and contact with the designated quality body, the Bill is specific about how this relationship can work; for instance, granting information powers in certain instances will also allow the OfS to give the designated quality body directions which can be general only, such as when advice may be required to fit with the registration cycle. This is only on the condition that it does not undermine the quality body’s expertise.
The noble Lord, Lord Stevenson, raised an important point about the independent quality regulator. I thank him for the amount of work and thought that have gone into his huge number of amendments. The body already has to be independent of the Crown and individual higher education providers but it has to have the confidence of a broad range of higher education providers—tests it would be unlikely to meet if it was not independent. There are safeguards in the Bill which allow it to operate independently on an ongoing basis, including that the quality assessment committee will advise on the work of the OfS and quality body; that the body must have the confidence of the sector to be considered suitable, as the noble Baroness stated; and that directions from the OfS can only be general. Therefore, Clause 23 is key to maintaining a high and rigorous bar for entry into the system, while reducing the burden on those high-performing providers. I reassure the Committee again that there are safeguards built into the quality system that allow an effective co-regulatory approach to function without oversubscription from government, which noble Lords have made clear that they want. With this balance in mind, I therefore request that Amendment 166A be withdrawn.
Viscount Hanworth
My Lords, I do not believe that the speakers in this short debate will be entirely reassured by what the Minister has told us. It is clear that there is work to be done in this area of the Bill. I trust that the Minister will take the opportunity to react to what he has heard today and bring something back to us on Report. Therefore, I beg leave to withdraw the amendment.
Higher Education and Research Bill
Viscount Younger of Leckie ExcerptsWednesday 18th January 2017
(9 years ago)
Lords ChamberRead Full debate Higher Education and Research Act 2017 View all Higher Education and Research Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 76-IV(b) Amendments for Committee, supplementary to the fourth marshalled list (PDF, 71KB) - (18 Jan 2017)
Viscount Younger of Leckie (Con)
My Lords, I am grateful for the opportunity to speak to this issue and I thank the noble Earl, Lord Listowel, for raising it. Everyone who wants to and has the ability should be able to go to university, including care leavers. We know that care leavers face specific difficulties accessing and succeeding in higher education; universities take their responsibilities in this area very seriously and progress has been made. Care leavers are recognised as a priority group by universities and a particular focus is placed on supporting them during the admissions process. It is not appropriate for government to interfere in providers’ admissions processes, as they are autonomous institutions. We are, however, introducing the care leaver covenant, so that organisations can set out the commitment that they make to care leavers. We see this as the main vehicle for engaging the higher education sector in the wider effort to improve care leavers’ outcomes. I will not have time to go into all the issues that arise under the covenant but we would like to see some more practical things being offered, such as providing dedicated contact time to support accessing and completing courses of study, and organising outreach activities, taster sessions and staff awareness sessions. We see this as primarily being the way forward.
As the noble Baroness, Lady Brown, said, support for care leavers in access arrangements has grown considerably over the years. Around 80% of the access agreement actions that are agreed between the Director of Fair Access and a provider to widen participation as a condition of charging higher fees include activity to support access and success in higher education for care leavers. These include pre-entry visits to the institution, taster sessions—as I mentioned earlier—summer schools, and academic support to raise attainment. Universities frequently prioritise care leavers for financial and other support for students. Provision often includes substantial cash bursaries and fee waivers, and a named contact to assist care leavers.
As the noble Lord, Lord Watson, said, most higher education institutions offer year-round accommodation for care leavers, as stated by the Buttle Trust. For those institutions that do not offer year-round accommodation, local authorities are required, as corporate parents, to ensure that suitable accommodation is available during vacation periods, as set out in the Children Act 1989. Given that this duty already exists for local authorities, we should not duplicate it for higher education institutions.
I turn to Amendments 122A and 449A. In addition to support for accommodation outside term time, local authorities must provide financial assistance to the extent that the young person’s educational needs require it, as well as a £2,000 higher education bursary. Students defined as care leavers in the student support regulations are treated as independent students when their living costs support is assessed. This means that most care leavers qualify for the maximum living-costs support package for their higher education course. For 2016-17 this was around £8,200 and £10,702 in London. Given the nature and extent of support that is offered to care leavers to equalise support and opportunity, I do not therefore consider it necessary to provide tuition fee reductions or grants for care leavers. Like other eligible students in higher education, care leavers qualify for loans to meet the full costs of their tuition.
I will move on to Amendment 138A. Student protection plans should play an essential role in ensuring that institutions have made the necessary steps to protect all their students, by offering real protection to students should their provider or course close. The OfS will issue guidance on student protection plans, which is expected to include advice on what additional or alternative protective measures should be considered for particularly vulnerable groups of students or those from disadvantaged backgrounds, such as care leavers.
Given the existing measures to support care leavers, the focus on them as a priority group by the Government, universities and the Director of Fair Access, the financial and pastoral support provided by universities, the care leaver covenant, and the progressive and relatively advantageous student finance offering that we have in place, I hope that noble Lords are in no doubt about our aspirations for care leavers to go to and succeed at university. I am not therefore convinced that these amendments are necessary to deliver our goals and I ask the noble Earl to withdraw his amendment.
The Earl of Listowel
My Lords, I thank the Minister for his response. I am grateful to all noble Lords who have spoken in this debate, particularly to my noble friend Lady Brown, who highlighted the fact that more care leavers go to prison than into higher education. I imagine that is still the case and it should give us pause for thought. I very much welcome the detail of the Minister’s response. I will withdraw the amendment but may come back on Report with a couple more to press some of these issues a little further. I beg leave to withdraw the amendment.
Baroness O'Neill of Bengarve (CB)
My Lords, I very much regret delaying things at this hour, but I ask for a clarification on Amendment 139, moved by the noble Lord, Lord Stevenson of Balmacara. It states that an English higher education provider is a higher education provider in England: we go back to this territory. I thank the Minister very much for the letter that was quickly sent to those of us who asked about it, but the clarification provided in the letter does not meet the need.
The letter states: “If an overseas university wishes to set up a base in England and wishes to appear on the register for its students to be potentially eligible for student support and to apply for English degree-awarding powers and university title, but most of its students are based overseas, then it will need to set up a presence in England as a separate institution”. It is not clear to me whether that separate institution is incorporated under English law or could be incorporated under other laws. That needs clarification. I think the letter is intended as a clarification of Clause 77. However, I do not think it really takes account of the reality of contemporary distance learning, because it continues: “But if it was the case that such an overseas university had more students based in England and overseas, it would be able to meet the definition set out at Clause 77 without establishing a separate institution in England”. The OfS will of course have to apply a risk-based approach to regulating such institutions and could impose stricter initial or ongoing registration conditions where it considered that such an institution presented a greater degree of regulatory risk.
If this overseas institution that has a majority of its students in England is not incorporated under English law, I am not clear how this will work. Maybe I am being thick about this but I think I can imagine an overseas institution that is primarily teaching via MOOCs that has, as it happens, more students registered in England than it has registered in whatever jurisdiction it is incorporated in. I ask myself whether that is an adequate protection. Would we need to be clear that an English higher education provider or the sub-institution it sets up be incorporated under English law? In particular, would any holding of property or funds by that subsidiary institution have to be under English law?
Viscount Younger of Leckie
My Lords, in the interests of brevity I shall write a full letter addressing the main amendments in this clause. Just before I conclude, I want to say that the issue focuses on the provider which carries on some of its activities outside England. The only proviso is that it must carry out most of its activities in England. We are focusing on the English higher education provider.
The amendments, particularly Amendments 140 and 164, go to the important principle of academic freedom that we all agree underpins the success of our higher education sector. I believe that there is no difference of view on that matter. As I said earlier this week, the Minister in the other place and I are reflecting on this issue, taking account of the views that we have heard in this place. I listened carefully to the comments raised by the noble Baroness, Lady O’Neill, and, as a result of the letter that she received today, the very best thing to suggest is that I will meet her to take her points further and/or write to her.
While I understand and sympathise with the intention behind all these amendments—I promise that I will follow up with a full letter and the new clause—I do not think they are necessary, and ask the noble Lord to withdraw his amendment. Just before I conclude, I want to clarify one point and to address the issue raised by the noble Lord, Lord Stevenson, who asked me to clarify my position on the linking of the TEF fees. I have also had time to check the Conservative manifesto. I agree that the manifesto commitment was to introduce a TEF, and I want to make this quite clear to the House.
Lord Stevenson of Balmacara
I thank the Minister for that clarification. I am sure that we will return to the issue on a more substantive basis in the future.
I was very grateful to the noble Baroness, Lady O’Neill, for raising that question. I almost did a little riff at the beginning because I wanted to explain why my amendment looks like nonsense; the world of Alice in Wonderland came to mind. It was precisely because of my frustration because I could not get my mind round what was meant by an English higher education provider, and whether that was different from a higher education provider in England, and what did it all mean anyway? I am grateful to the Minister for saying that he will write again about that because, like the noble Baroness, I have read the letter, but only briefly, and I do not think that it clarifies exactly where we need the clarification, which is: what is the constitutional position and where could these places be sued since it is all now on a contractual basis? Until we know how they are constituted and where they are, we will not be able to do that. With that, I beg leave to withdraw the amendment.
Lord Watson of Invergowrie
My Lords, I do not rise to add anything to the remarks of the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge—I am not able to do so; the points they make sound very sensible and backed up with legal opinion. I hope that the Minister will take them on board. I rise on an amendment on which I and my colleagues have no involvement to make the more general point that I am sure that the Minister is going to say, “This is all very well, it sounds fine, but it’s not necessary—in the best of all worlds it will all be fine”. It is getting very tiresome. This is not the way in which legislation is meant to progress in your Lordships’ House. There have been absolutely zero concessions so far from the Government since the Bill came to your Lordships’ House. It is inconceivable that anyone outside looking in would accept that every amendment put forward is unnecessary or does not fit in with the Bill. That cannot be the case. I say in all good faith to the noble Viscount the Minister—and to the noble Baroness the Minister—that I am not making a political point as it is not one of my amendments but, with so many amendments on this Bill, they cannot all simply be turned down flat. I hope that he will bear that in mind, if not on this group of amendments then as we move forward.
Viscount Younger of Leckie
I shall address the points raised by the noble Lord directly. He will know that we are and have been listening and that I gave some very warm words on certain amendments on the previous day in Committee. I therefore ask him to take back that point. I think that it is uncalled for, if I may say so.
I want to be brief in responding to this group of amendments. I thank the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, for raising these issues. I will be brief, as they were. The Bill states that the OfS may take these actions if it appears to the OfS that a breach of conditions has occurred. While I understand and respect the honourable intentions of noble Lords here, this test is used in other legislation, as I have mentioned before. For example, under Section 151(1)(a) of the Apprenticeships, Skills, Children and Learning Act 2009, Ofqual may impose monetary penalties on a body that it has recognised for the purpose of awarding or authenticating certain qualifications where,
“it appears to Ofqual … that a … body has failed … to comply with any condition to which the recognition is subject”.
This provision has been in force since 1 May 2012.
It is also the case that the usual public law considerations will apply so that the OfS may be legally challenged if it acts irrationally or unreasonably or fails to follow the proper procedure. The OfS, as a public body, must at all times act reasonably and proportionately in accordance with public law when exercising its powers. In addition, before suspending a registration, imposing a penalty or deregistering a higher education provider, the OfS must give the reasons for the action. Decisions to deregister or to impose a penalty are subject to appeal to the First-tier Tribunal. So it is my belief that,
“it appears to the OfS”,
requires the OfS to make a judgment and take responsibility for its decisions—and that, we believe, is the right approach. The OfS is obliged under Clause 2(1)(f) to regulate in a,
“transparent, accountable, proportionate and consistent”,
way. It is in all of our interests to want a more engaged OfS applying its judgment flexibly and sensibly. And Clause 2 of the Bill is relevant here too—making it clear that the OfS must follow the principles of best regulatory practice, including that its regulatory activities should be,
“transparent, accountable, proportionate and consistent, and … targeted only at cases in which action is needed”.
I think it is best that I write in full on the points raised by the noble Lord, Lord Lisvane, when he spoke to Amendment 159. Therefore, without further ado, I ask the noble Lord to withdraw Amendment 142.
Lord Lisvane
I am very grateful to the Minister. If I may borrow the phraseology of my noble and learned friend Lord Judge, I think this may well be an occasion on which two entirely reasonable people can disagree without either one of them being unreasonable. Given that, the lateness of the hour and the delightful promise of another of the noble Viscount’s splendid letters, I beg leave to withdraw the amendment.
Higher Education and Research Bill
Viscount Younger of Leckie ExcerptsWednesday 18th January 2017
(9 years ago)
Lords ChamberRead Full debate Higher Education and Research Act 2017 View all Higher Education and Research Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 76-IV(b) Amendments for Committee, supplementary to the fourth marshalled list (PDF, 71KB) - (18 Jan 2017)
Lord Storey (LD)
My Lords, of course we need as much information as possible about universities so that parents and young people can make the right decisions about which university they choose. I am delighted that we are now focusing on the quality of teaching. The noble Baroness, Lady Royall, was right to say that it must be about high quality. That means high quality throughout the university sector, in teaching, provision, and simple things, such as the ability to make sure that essays and dissertations are properly marked, and to make sure that there is high quality with regard to the size of tutorial and lecture groups. A whole host of issues will ensure high quality.
We sometimes forget that choosing a university is a huge decision for a young person and their parents. They do not pick one at random but do the research, looking very carefully. Again, not only do they choose carefully but they visit those universities. I know from my own experience that students and their parents will have put two or three universities down and will have one in mind as where they want to go to, because of the course they want to do. However, noble Lords will be surprised at how often they get there and do not like it. They do not get a sense of there being the right ethos about the place or they do not like the staff they meet. One of my friends, who is doing creative writing, had two universities at the top of her list. She went to visit them and they gave her sample lectures. Guess what—she went to the third one, because she found that the response and the quality of the lectures were not good enough for her. Let us not kid ourselves: when parents and students come to choose the university they will go to, they are already in the driving seat.
I have grave reservations about the notion of getting this matrix together, putting in things such as employability, and then, suddenly, there is a mark. Currently it is proposed that it be gold, silver or bronze. As I said at Second Reading, I cannot see many universities boasting that they have a bronze award—they will not do that. But you can bet your bottom dollar that those rated as gold will display that for everybody to see. That will be damaging to the university sector as a whole and, as we have heard many noble Lords say, it will be damaging for students coming to our universities from overseas. We therefore have to tread very carefully. The Minister told us on Monday that he was very much in listening mode. Speaker after speaker, right across the House, has raised considerable concerns about this issue. If the Minister is in listening mode, I am sure that he will want to ensure that when we come to Report he will take our points on board.
I do not have any interests to declare regarding universities but I have interests in mainstream education. We have been down this road of labelling schools. In my wildest imagination I never thought that we would see a maintained school system in which schools advertise their success on the backs of buses and on banners hung outside their schools. Parents are caught in this trap, wondering, “Do I send my child to an outstanding school or a good school?”. Of course, if a school needs improvement, while it is improving it has the problem of parents saying, “I’m not sending them to that school”. We have been there before in higher education. We can remember the days of universities and polytechnics. Polytechnics—higher education providers—were regarded as the poor relation. People would say, “I’m not sure I want my son or daughter to go to a polytechnic”, although in many cases the provision was as good and, in some areas, better than at universities. Thank goodness we decided to ensure that higher education institutions as a whole were labelled universities.
I hope that the Minister gets the message and that we provide as much information as possible and look at the quality of teaching. A noble Lord said that of course in the mainstream sector, your teaching is observed, and if you are not up to the mark, you will not teach. If we want to improve the quality of teaching in universities, maybe there has to be some sort of requirement to teach students. Teaching is not just about knowledge but also about how you relate to young people. The most knowledgeable and gifted professor may be unable to relate to a young person, and therefore cannot teach the subject. I therefore welcome the notion of improving teaching.
I know that it will be a small part of the matrix, but I have reservations about the concept of a student survey, or students marking teaching. Students should give their views; that is good and right. But students will rate highly teachers, lecturers and professors who give it to them on a plate: “Here is what you need to know—take it away”. Lecturers who are challenging, who want to push the students and make them think for themselves, are quite often marked down. I therefore have reservations about how we develop this idea of student feedback. That is not to say that student voices should not be heard, but that they should be a very small part of the whole. I hope the Minister will take that on board as well.
Viscount Younger of Leckie (Con)
My Lords, I have today sent a letter setting out some further detail following Monday’s debates, and attached a briefing note on the teaching excellence framework which I hope noble Lords have found helpful.
I am grateful for the thoughtful comments made in this prolonged debate on the teaching excellence framework, which is in the manifesto commitment. These comments go to the heart of what we are trying to achieve in incentivising high-quality teaching. I am pleased that there is no disagreement on the importance of high-quality teaching, and the importance of incentivising this. Many Peers have acknowledged this, and Governments from all sides have wanted it for many years. This is an important element of these reforms and this has been a key debate, so I hope that noble Lords will forgive me and that the House will bear with me if I speak at a reasonable length on the points raised.
A number of Peers raised a point on whether the TEF should be tested more and, in effect, go more slowly. This was raised by the noble Baroness, Lady Royall, the noble Lord, Lord Watson, and other noble Lords. In effect, the question related to a pilot scheme. I reassure noble Lords that the TEF has been, and will continue to be, developed iteratively. We have consulted more than once, and year 2, which we are currently in, is a trial year. Working groups, including those in the sector, are under way on the subject-level TEF. That was raised by the noble Viscount, Lord Hanworth, and I will say a little more about that later. Therefore, the sector has recognised this trialling aspect, and Maddalaine Ansell, the chief executive of University Alliance, has said:
“We remain confident that we can work with government to shape the TEF so it works well as it develops”.
The noble Baroness, Lady O’Neill, commented on the detailed metrics. She also spoke about iterating and reviewing the metrics, and made some constructive comments. The TEF metrics will continue to evolve. I stress again that, where there is a good case to do so, we will add new metrics to future rounds. I have no doubt that I will also be saying a bit more about this later.
I want to respond quickly to the amendments on the TEF and immigration. This picks up a theme raised by the noble Baroness, Lady Garden, my noble friend Lord Jopling and the noble Baroness, Lady Royall. Following our useful debate last week, and as I set out in my subsequent letter, I confirm again that we have no plans to cap the number of genuine students who can come to the UK to study, nor to limit an institution’s ability to recruit genuine international students based on its TEF rating or any other basis. This applies to all institutions, not just to members of the Russell group.
The noble Lord, Lord Watson, raised the issue of international students, and I move on to the proposal to publish the number of international students. The TEF will be a world-leading assessment of the quality of teaching and student outcomes achieved by higher education providers. Students should have a better idea of what to expect from their studies here—better than anywhere else in the world. However, a dataset that simply links the TEF to international student numbers fails to recognise the much broader international student recruitment market place. I should add that all the relevant information requested by the noble Lord, Lord Stevenson, is in the public domain.
Moving on, I remind the Committee that the ability to raise fees according to inflation is not new. As the noble Lord, Lord Watson, said, it has been provided for since 2004. Indeed, as I think he said, the process was established under the then Labour Government and was routinely applied from 2007 to 2012. I reassure noble Lords that, as the Government set out in the White Paper, our expectation is that the value of fee limits accessible to those participating in the TEF will, at most, be in line with inflation.
As the Liberal Democrats will recall, the coalition Government used the legislation that had been put in place in 2004 by the Labour Government to increase tuition fees above inflation in 2012. We have no such plans to increase the value of fee limits above inflation. Increasing the upper or lower limits by more than inflation would, under the Bill as currently drafted, require regulations subject to the affirmative procedure, which requires the approval of Parliament. In the case of the higher amount, it would also require a special resolution. That is in line with the current legislative approach to raising fee caps.
I now turn to the link between the TEF and fees. Schedule 2 builds on well-established procedures in setting fee caps. Under the schedule, different fee limits will apply depending on whether a provider has an access and participation plan, and what TEF rating they have been awarded. Crucially therefore, this schedule will, for the very first time, link fees to the quality of teaching and thus increase value for students. This will recognise and reward excellence, and will drive up quality in the system. It will mean that only providers who demonstrate high-quality teaching will be able to access tuition fees up to an inflation-linked maximum fee.
The noble Lord, Lord Watson, said that since the increase in fees in 2012 there has been no increase in teaching quality. Therefore, this Government are, for the first time, putting in place real incentives, both reputational and financial, to drive up teaching quality. My noble friend Lord Willetts picked up on this theme. We believe that this is the right way forward. I have already mentioned the iterative aspect of this process.
The principle of linking funding to quality is familiar from the research excellence framework, which was introduced in the mid-1980s, and it has been an effective incentive. The REF has driven up the quality of our research, ensuring that we continue to be world leaders in global science. Tuition fees have been frozen since 2012 at £9,000 per year. This means that the fee has already fallen in value to £8,500 in real terms and, without the changes we propose, it will be worth only £8,000 by the end of this Parliament. Therefore, these changes are important if we want providers to continue to deliver high-quality teaching year after year.
As far back as 2009 the noble Lord, Lord Mandelson, said:
“We … need to look in my view for ways of incentivising excellence in academic teaching”.
He went on:
“We have to face up to the challenge of paying for excellence”.
I believe that the measures in Schedule 2 finally deliver that. The schedule allows a direct link between fees and the quality of teaching, with differentiated fees for different TEF ratings—a principle supported by the then BIS Select Committee and the wider sector—along with a clear framework of control for Parliament. This will ensure that well-performing providers are rewarded so that they can continue to invest in excellent teaching.
Baroness Lister of Burtersett
I am sorry to interrupt, but can the Minister tell us whether there will there be a sub-bronze level, because otherwise, if bronze is the bottom, it is very difficult to see how it will be seen as representing quality?
Viscount Younger of Leckie
As I mentioned, there has been a full consultation on this. It came down to the best way forward, which we believe is to have three ratings. I should stress, and hope that I have stressed, that bronze is a good level and is highly respected. I want to make that quite clear to the Committee, and I hope that noble Lords will accept what I have said.
Lord Desai
My Lords, the question is: is anybody going to fail the exam? You cannot just have first, second and third, with nobody failing. If nobody fails, the third rating will be counted as failure.
Viscount Younger of Leckie
As I have said, the consultation has led us to believe that this rating system is the best that we have come up with. I have explained already that various other systems have been looked at and we believe that this is the right way forward. I understand that there is some passion around what methods should be used, but we believe that this is the right way forward.
I will continue on the same theme. My noble friend Lord Jopling and the noble Lord, Lord Lipsey, suggested that the TEF metrics will be gamed. We expect the assessment panels to take a holistic approach in assessing all the evidence, not just the metrics, and therefore it will not be easy to game the system. In addition, the role of the external examiners, a robust quality assessment system and the ONS review of the data sources we use are all important in tackling this issue.
The noble Baroness, Lady Warwick, suggested that the TEF will mean that some students will be forced to study at bronze institutions due to their circumstances. However, as I said just now, a bronze provider is still one that has passed a high bar on the quality we expect it to offer. The TEF assesses excellence above that baseline and will, we expect, incentivise and encourage that bronze provider to offer a better quality of teaching to that student than they do at present.
Then noble Baroness, Lady Lister, asked how lecturers and teachers will know how to improve their teaching on the basis of the TEF ratings. The TEF provides clear reputational and financial incentives for providers to improve teaching quality, but it is not for us to tell universities how to teach. However, all TEF provider submissions will be published and we would expect those in the sector to learn from one another and to continue to feed back to us as the TEF develops.
The noble Baroness, Lady Deech, raised the issue of the impact of the TEF on social mobility, which is a very fair point. She asked what effect the Government think that the linking of fees and teaching quality will have on social mobility. Fears about only the Russell group providers doing well in the metrics are, we believe, misplaced. The metrics have benchmarks that recognise the student body characteristics of each provider, and a number of other safeguards are in place to ensure that the TEF should actually enhance the quality of teaching for disadvantaged groups. I know that Les Ebdon has made some comments on that, which will be very much known by the Committee.
In conclusion, while I recognise the concern that has been expressed around the ratings of gold, silver and bronze, we should not deceive ourselves. Both home and international students already make judgments as to the relative merits of different universities, based on all sorts of unreliable measures. The TEF will allow those judgments to be better informed, based on evidence rather than prejudice. These amendments would undermine the TEF’s ability to provide clear ratings and clear incentives to the sector to drive up teaching quality.
As the noble Lord, Lord Stevenson, has requested this stand part debate, I remind noble Lords that removing this schedule in its entirety would remove any link between quality and the fees that a provider was able to charge. It would also mean that the sector would not receive the additional £16 billion of income by 2025 that we expect the TEF to deliver. I do not think that this is what we, or the noble Lord, want.
Lord Stevenson of Balmacara (Lab)
I am sorry to intervene on the Minister, but I really must challenge that. The situation, as he has already described it, is that fees have risen, substantially and then gradually, over the past period. That has been achieved perfectly straightforwardly by bringing forward statutory instruments that allow for an increase in fees relative to inflation. Although we have questioned some of the issues behind it, we have supported that. We are about to engage in a discussion in your Lordships’ House on the fee increases that are to apply from next session. Those fee increases are detached from any considerations of quality, are entirely related to inflation and are done on the basis that the House will consider and approve them. What exactly is the difference between that and what he is proposing? I do not get it.
Viscount Younger of Leckie
I reiterate that the main way forward is that we want to link the issues of fees and performance. The TEF is a manifesto commitment, and I know that we are all agreed on the importance of recognising excellent teaching. As I have said very clearly to the Committee today, the Government have consulted extensively on the form of the TEF, and we will continue to listen to and engage with the sector as the TEF evolves. I say again that it is an iterative process, and that is why we do not need in primary legislation the detailed provisions that we have been discussing, as we believe they would hinder the constructive development that is already taking place. Therefore, I hope that the noble Lord, Lord Watson, will agree to withdraw his amendment.
The Earl of Listowel
My Lords, is there a risk with the direction the Government are taking that, in supporting the thriving, successful and very good teaching universities and, some might say, putting in a bad light the less well-performing universities, we will move to a culture of universities that is less rich and diverse, with fewer local universities and specialisms, and just a few thoroughbred universities that everyone will want to go to and a diaspora of rather struggling universities? Is the Minister prepared to go away and think about whether that is a consequence that might result from this and whether that would be helpful?
Viscount Younger of Leckie
I thank the noble Earl for his point. However, I think it is right that we should be bold and look ahead to bring in the performance-related measures that we have been talking about—the sector has been waiting 20 years for this. We are bringing it in carefully, with some consideration, and I hope the Committee today recognises that there have been a lot of checks and controls in this. I do not think we should stick to the status quo, in which there is no consideration of assessing the performance of universities or teaching. It is very important to be sure that we raise the quality of teaching in this country.
Lord Liddle (Lab)
My Lords, I declare an interest as pro-chancellor of Lancaster University, where we support strongly the principle of the teaching excellence framework. However, what I have found in this debate is that the Minister appears very reluctant to admit that, in any of the excellent speeches that we have heard tonight, good points have been made that are worth him thinking about and coming back to the House on at Report stage. This is disappointing. Does the Minister acknowledge that this might be the reaction of Members all around the Committee, and will he reflect on that?
Viscount Younger of Leckie
I will reflect on that. I may not have said it, but I have appreciated the contributions from all noble Lords this afternoon. There have been a number of different angles to this and we had an interesting contribution from the noble Lord, Lord Desai. There is not a conclusive way forward—this is an iterative process—but I must say that, yes, I am listening. We believe that this is the right way forward. Although I have been listening, I will say again that this is a manifesto commitment and we are very keen to take it forward.
Baroness Warwick of Undercliffe
My Lords, several noble Lords around the Chamber—probably all of us, actually—are anxious about the risks associated with this process; that is what we have been trying to describe. We are not resisting the way forward but trying to assess the extent of the risk. Can the Minister tell us whether there has there been a risk assessment and whether he can publish it if there has?
Viscount Younger of Leckie
I will reflect on what the noble Baroness has said. It may give her some comfort if I say that we are not rushing this in. The proposals that we have are not all in the Bill; that is why this is an iterative process. I will continue to engage, as will the team and my honourable friend in the other place, on rolling out the TEF.
Baroness Royall of Blaisdon
My Lords, we do not question the fact that this is a manifesto commitment. We support the fact that it is a manifesto commitment. We want to ensure that the system which comes out of the noble Lord’s manifesto commitment works for all universities in this country and ensures their excellence in the future.
Viscount Younger of Leckie
My Lords, we all want that. I hope that in my considered response I have given my views as to how we see the way forward. I will say again that I have listened to all the views and will reflect carefully, when I read Hansard, on what noble Lords have said. I am sure that that will be read widely. I am listening but I do not wish to go any further from my views on how we go forward.
Higher Education and Research Bill
Viscount Younger of Leckie ExcerptsMonday 16th January 2017
(9 years, 1 month ago)
Lords ChamberRead Full debate Higher Education and Research Act 2017 View all Higher Education and Research Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 76-IV Fourth marshalled list for Committee (PDF, 269KB) - (16 Jan 2017)
Lord Stevenson of Balmacara (Lab)
My Lords, having blasted off at the noble Lord, Lords Willetts, on the previous amendment but one, I cannot possibly go back on that, so I shall not follow the noble Baroness, Lady Brown, on this amendment, although I have followed her on many others. Rather like the noble and learned Lord, I think that universities either come within the Freedom of Information Act or they do not. If they do not, we will in any case get the information in other ways, so that probably does not matter. However, it is interesting to look at the question the other way round. If a university sector of the size and prestigiousness of our institutions was not covered by the Freedom of Information Act, you would find that very strange.
Viscount Younger of Leckie (Con)
My Lords, the Government have given careful consideration to the range of views expressed in response to our 2015 Green Paper in relation to the application of the Freedom of Information Act 2000 to higher education providers. Over 100 consultation responses were received on this issue and, perhaps surprisingly, opinion was divided. The underlying principle behind freedom of information legislation is that people have a right to know about the activities of public authorities. Although not traditionally regarded as public authorities in the wider sense, the Act does currently apply to HEFCE-funded institutions in recognition of the fact that they are in receipt of direct public funding.
In seeking to apply the Freedom of Information Act equally to all registered providers, the effect of the amendment tabled by my noble friend Lord Lucas—and I thank him for that—would either be to remove all higher education providers from the remit of the Act, or impose an additional freedom of information obligation on providers which are not already covered, irrespective of whether they receive direct public funding. This amendment would extend the scope of freedom of information obligations in this case to all registered higher education providers with courses designated for student support.
In the 2015 Green Paper, we considered the application of the Act and the regulatory costs it could impose on higher education providers, some of which may be relatively small organisations. Having considered the views expressed by a range of stakeholders, our decision was, so far as possible, to maintain the status quo by applying freedom of information obligations to those providers who, in future, are eligible to receive direct grant funding from the Office for Students—namely, approved fee-cap providers. As part of our overall principle of risk-based regulation and seeking to reduce regulatory costs and barriers to entry where appropriate, we did not consider that there was a strong case for expanding the scope of the Freedom of Information Act more broadly. We already believe that more higher education providers will be regulated through our reforms.
In this short debate, I wanted to address an interesting question posed by the noble Lord, Lord Liddle, and supported by the noble Lord, Lord Storey. The gist of his question was why the Bill does not seek to provide a level playing field of regulatory obligations. I would like to expand a bit on my answer. The Bill continues a rather different approach, whereby those that receive the most significant funding directly from the public purse are subject to the provisions of the Freedom of Information Act. This is a targeted approach to regulation, imposing requirements on those—
Lord Liddle
I am not trying to be difficult with the noble Lord, but when he talks about direct public funding, does he mean any institution where a student can receive a loan in order to carry out their studies? In my view, when anyone is eligible for a student loan, there is an element of public funding because, as we know, there are going to be write-offs of these loans in the future by the Government. I think this phrase about “direct public funding”, with the greatest respect for the Minister, is a bit of a cop-out.
Viscount Younger of Leckie
It is slightly more complicated than that, and it may be that I should write a letter to clarify this, but there is the funding on the student side that the noble Lord is talking about, the tuition fee, where a private individual is receiving private funding, and on the other side, what we are talking about, funding that comes in the form of a grant to help with the top-up—for example, for a high-cost STEM course. I think it would be good if I wrote a letter of clarification on that. There has been some discussion outside the Chamber on this aspect and it gives me the opportunity to write further on this. Having said all that, there is a bit more I wanted to say about that.
Baroness Brown of Cambridge
Before the Minister finishes his speech, can he tell us whether “direct public funding” includes QR funding, HEIF and research funding from UKRI?
Viscount Younger of Leckie
I would be delighted to add that to the letter for clarification. These are complicated aspects that require proper clarification.
To complete my answer to the noble Lord, Lord Liddle, providers, as he would probably guess, will come in the future in many shapes and sizes. A one-size-fits-all approach to regulation risks would impose an unwarranted cost on smaller providers and new entrants that could stifle the positive effects of competition in the sector. The Independent Commission on Freedom of Information, chaired by the noble Lord, Lord Burns, concluded that the current application of the FoI Act is appropriate. It considered evidence that it may place traditional universities at a competitive disadvantage compared with alternative providers and found it unpersuasive.
In addition to comments made by my noble friend Lord Willetts, I thought that the noble Baroness, Lady Brown, put it rather succinctly. That backs up the equivocal aspect of this debate. I believe that there is a balance, and it has been helpful to have this discussion.
Given the importance of information to the effective regulation and scrutiny of higher education providers, we have introduced provisions elsewhere in the Bill to provide a high degree of regulatory oversight and transparency. For example, Clauses 8 and 9 would require the Office for Students to impose ongoing registration conditions on higher education institutions to provide it with the information it requires in order to carry out its functions and to publish specified information.
The noble Lord, Lord Storey, raised a point about information availability and I will attempt to deal with that. Through the Bill, we are making more information available to students than ever before, as I hope he will know. For example, both approved and approved fee cap providers will be subject to the transparency duty in Clause 9, which we discussed earlier in Committee, and the TEF will make much more information available for students. With that, I hope that my noble friend will agree to withdraw his amendment.
Lord Lucas
My Lords, I am grateful to my noble friend for that answer, if a little disappointed. As I learned in making my application for information and in going through the tribunal and afterwards, if you allow this difference of treatment, you are effectively saying to all the institutions covered by the Freedom of Information Act that all they need to do is claim “commercial confidentiality” and they will not have to publish anything. Anything that is commercially confidential is information that might affect a student in making a decision about which institution to patronise. Therefore, anything really important and interesting becomes unpublishable, and so the freedom of information registration has no function—except to find out what the vice-chancellor had for breakfast, which is clearly not commercially confidential and therefore we can continue to plague them on that. There is no point in registering institutions for the Freedom of Information Act if you then disapply it on such a large scale by failing to register their competitors. I understand that the Government have reached a decision and I will not trouble them again at Report, but I think that they have gone down the wrong road on this. For now, I beg leave to withdraw my amendment.
Lord Liddle
May I add my tuppenceworth in support of the amendments? This seems crucial to the socially progressive innovation in higher education many of us on these Benches would like to see. The truth is that there has not been much attempt to enable people to do courses faster than the standard three or four years. Creating the financial possibility for this to happen would be a very good thing.
Viscount Younger of Leckie
My Lords, I wish to respond to Amendments 119, 120 and 121. The Government are committed to encouraging more accelerated degrees and other flexible provision. Indeed, we stated this in our last manifesto and I hope there will be an element of agreement between us on this.
The Bill will level the playing field for high-quality new entrants, making it easier for new specialist and innovative providers to enter the sector. Accelerated degrees are a particular strength of new and alternative providers, and this will help to ensure that students can access learning in the form that suits them. For example, Buckingham, BPP, Condé Nast College of Fashion and Design and the Greenwich School of Management all offer students the opportunity to complete an honours degree over two years. This means that the student incurs less debt and can enter or re-enter the workforce more quickly.
We are interested in understanding what more we can do to support flexible provision. We carried out a call for evidence in the summer seeking views from providers, students and others. This call for evidence resulted in more than 4,500 responses. A clear majority of these came from individual students and we were delighted to see this level of engagement. Many of the responding students expressed an interest in accelerated degrees, so this is clearly an important issue and the demand seems to be there.
On 20 December 2016, the Government published a summary of the call for evidence. This is a complicated policy area and we are now fully considering the evidence. Let me reassure noble Lords, however, that we are looking carefully at the options to remove barriers to accelerated degrees. While we certainly sympathise with the underlying intention of this amendment, as we continue carefully to consider the key issues, I ask that this amendment be withdrawn.
I move on to the amendments spoken to by my noble friend Lord Lucas. In a very similar approach, they both seek to link funding to academic credits as well as academic years. Again there is considerable sympathy with the issues that are raised here. The Government are committed to improving diversity of provision and to increasing student choice. Supporting students who wish to switch a higher education institution or a course is an important part of our reforms.
We also recognise the importance of part-time study, and this gives me another opportunity to trumpet this aspect of our reforms. There should be no doubt about our intention to promote this side. Studying part-time and later in life can bring enormous benefits for individuals, the economy and employers.
This area is also being considered as part of the call for evidence and is all part of us looking closely at the 4,500 responses. Again, it is complicated and I hope the Committee will indulge me and remember that it requires quite a bit of time to gather all the information. We will do that and return with the response in due course. Overall, the Government are already taking action to address some of the key areas of student choice as well as working to support students and their diverse needs.
I assure the Committee that we are actively considering all options in this area. I hope these warm words will be helpful. As we continue to consider the key issues as highlighted in our call for evidence, I ask that the amendment is withdrawn.
Lord Stevenson of Balmacara
I thank all noble Lords who have spoken in the debate. If I get the support of the noble Lord, Lord Liddle, who is quite mean with his support for some of the things that come from this side of the Committee, I am obviously on a winner. We will jump over that.
I make two points. If I gave the impression that this was about only new entrants, that was a mistake. I did not want to say that. I think the Minister accepts that the interest is there from all institutions that might follow what the student demand is. If the demand is for that, courses will follow.
I am puzzled why it takes so long to process 4,500 submissions. I understand that due attention must be given to them but the Minister has about 4,500 sheets in his file and has probably read it for today’s debate. I cannot believe it will take him much longer to get through the submissions. In the course of the debate on this amendment, we have now discovered a fifth way of the Government saying that they are not quite sure whether or not they will bring this back on Report. The Minister simply says he is spending more time reviewing the evidence before him before considering how he might bring it forward. He will only have to tell us and we will happily put it down on Report. I beg leave to withdraw the amendment.