Higher Education and Research Bill

Debate between Viscount Younger of Leckie and Lord Lisvane

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

[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.

Higher Education and Research Bill

Debate between Viscount Younger of Leckie and Lord Lisvane

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

[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.