Skills and Post-16 Education Bill [HL]

Baroness Barran Excerpts

Report stage
Thursday 21st October 2021 Lords Chamber

[Baroness Wilcox of Newport (Lab)]

My Lords, as the Bill before us today is about education, I hope that noble Lords will not mind me veering slightly off topic for a moment. Today marks the 55th anniversary of the Aberfan disaster, the catastrophic collapse of a colliery spoil tip on 21 October 1966 that killed 116 children and 28 adults as it engulfed Pantglas Junior School. I was a pupil at Pontygwaith Junior School in the Rhondda at that time, another valleys primary school built on the side of a mountain, and as we returned to school after lunch we were sent into the yard and told to put our hands together, close our eyes and pray for the children of Aberfan. I had never heard of Aberfan at that time, but I have never forgotten it since.

I speak to Amendments 40, 41, 45A and 61 in the name of my noble friend Lord Watson, who unfortunately, because of the change to the timetable, is unable to be here today. The Government originally promised to table LLE amendments ahead of Committee, but unfortunately very few of substance materialised. We were told that they would be tabled for Report, but we have now been advised by the Minister and her Bill team that this was not possible and that they intend to consult and pilot the lifelong loan entitlement before returning with new primary legislation. This is disappointing given that the LLE is supposed to be the Government’s flagship policy and is urgently needed, but it is not surprising, because the sheer complexity of what they are trying to build was immediately apparent to all—apart from, it seems, the Bill team.

Perhaps the delay will give the Minister time to reflect on the length of the LLE. At present, it will offer up to four years of equivalent funding for levels 4 to 6, and while for some people this may be enough, for others it simply will not be. Undertaking a foundation or access year plus a three-year bachelor’s degree, which is a common route, would use it all up in one go. Therefore Amendment 41, requiring the Secretary of State to consult on extending eligibility to six years to give greater flexibility, is important. It will be especially important to those studying part-time and help to encourage adult learners to take up an offer to study and upskill. It is supported by the Association of Colleges, training providers and other stakeholders that we have engaged with in preparation for this debate.

I am very grateful to the noble Lord, Lord Storey, for tabling Amendment 43, which allows the Secretary of State to make provision for the LLE to include maintenance provisions to include living costs to help disadvantaged students. We tabled this amendment in Committee and, as my noble friend Lord Watson highlighted then, one of the main barriers for adult learners, highlighted in the DfE’s own impact assessment, is the cost of study, including living costs. Yet, as drafted, the LLE covers only tuition costs. The Welsh Government recently introduced reforms to tackle this issue by extending maintenance support, including means-tested grants to all students regardless of mode of study, while maintaining low tuition fees for part-time study. Unsurprisingly, this has had a huge impact on participation.

Amendment 40 removes the equivalent or lower qualification—ELQ—exemption rule for the LLE to ensure eligibility for student loan funding for another qualification at that or a lower level, to facilitate career changes. It also ensures LLE eligibility regardless of subject, intensity of study, institution or learning style. We are concerned that, unless reformed, the ELQ rule could pose a significant barrier to further education providers working with local employers to deliver training in priority sectors that support communities.

I will not repeat in full the arguments my noble friend Lord Watson gave on this issue in Committee, nor will I repeat the searching and directly targeted questions from my noble friend Lady Sherlock. The ELQ rule means that anyone qualified to level 4 cannot access government loans or grants to study a qualification at an equivalent or lower level. I suggest this must be urgently reconsidered if the LLE is to succeed in providing opportunities for people to reskill for a new career where such skills are in demand. According to the Office for Students, there are exemptions to the ELQ rule if it is a qualification in a public sector profession, such as medicine, nursing, social work or teaching, or if the student is studying for a foundation degree or receiving a disability student allowance.

Mayoral combined authorities with devolved powers have begun to move away from the ELQ rule. Indeed, the Conservative-controlled West Midlands Combined Authority is running a pilot offering fully funded care management qualifications at level 3 and 4 to black, Asian and minority-ethnic women regardless of their prior attainment. The Augar review also proposed scrapping the complex ELQ rule. The need has been recognised, and there are precedents for the Government to follow.

It was disappointing that the noble Lord, Lord Johnson, withdrew last week what was then Amendment 42, requiring the Secretary of State to publish an annual report on the impact on reskilling of funding restrictions on people requiring a qualification at a level equivalent to or below the one they already hold. We were supportive of that amendment, so it has been resubmitted in the name of my noble friend Lord Watson and appears as Amendment 45A. I do not propose to elaborate, as it is self-explanatory.

Another complex area concerns credit transfer arrangements to allow students to move between education providers. Amendment 61 is a probing amendment designed to elicit more information on this. A universal credit transfer system would have significant benefits to many students, not least in terms of widening participation. The Open University’s OpenPlus programme, where students initially study at one institution before completing their studies at another, is an example of what can be achieved. I would be very grateful if, ahead of consultation, the Minister can outline how the Government intend to address and overcome the lack of commonality which my noble friend Lord Watson raised in Committee. Can she say what discussions the DfE has had since then with the devolved Governments and what those discussions have produced? Any scheme for allowing students to use credit flexibly must enable transferability across the UK—many people living in Newport study in Bristol, and vice versa—and internationally. It also needs to support credit transfer not just in HE but between FE and HE. I hope the Minister can say how she anticipates that will be facilitated.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, I thank the noble Baroness, Lady Wilcox of Newport, for reminding us of the tragedy of Aberfan and the terrible loss of life on that day. I will speak first to the amendments in my name on the lifelong loan entitlement and then respond to your Lordships’ amendments.

The amendments being laid today primarily address the technical underpinnings of the LLE and make other minor corrections to enable a strong legislative framework. We are laying them now to introduce the enabling powers for the Secretary of State that are necessary to the delivery of the LLE from 2025. The Government previously set out that we would table additional amendments, as your Lordships have noted, outlining further detail on the modular fee limit policy of the LLE. Following further policy development and engagement with stakeholders, including debate in Committee in this House, the Government have decided not to lay these before we consult. As noble Lords have noted, these are complex issues and it is essential that our final policy approach is informed by the needs of students, providers and all key stakeholders. This complexity was demonstrated in Committee by some of the questions on the detail and implementation of the lifelong loan entitlement. Given the intricate nature of such legislation, we must not pre-empt further policy design or decisions based on the consultation.

The noble Baroness, Lady Sherlock, asked what the consultation will contain. We intend to seek views on our ambition, objectives and coverage. This will include aspects such as but not limited to: the level of modularity —this will cover the minimum number of credits a course will need to bear to be eligible for funding; maintenance support; how to support quality provision and flexible learning; how to incentivise and enable effective credit transfer; and whether restrictions on previous study should be amended to facilitate retraining and stimulate high-quality provision. We intend to bring further primary legislation following consultation. This will allow us to meet the rollout timetable of the LLE from 2025, as originally planned.

The noble Baroness, Lady Sherlock, describes herself as nerdy; in my world, that is a great compliment. I thank her for her kind remarks about my getting to grips with the role, but I also commend my noble friend Lady Chisholm, who has found herself on an equally steep learning curve. To be clear on the timing of the LLE consultation, we commit to delivering the LLE from 2025. We cannot give the noble Baroness a firm date today, but it will be lined up so that we can deliver on that commitment. She also asked whether fee limits would require primary legislation; I can confirm that they would.

The noble Baroness also asked why the Government are laying amendments on the LLE now rather than waiting for future primary legislation—I have an instinctive feeling that, if we had not laid these amendments, she might have challenged the Government on our commitment to really delivering on this. Part of the reason is to be absolutely clear that there should be no doubt about that level of commitment.

In terms of the definitions of a module in the Bill, from both a funding and a regulatory perspective, I know that the noble Baroness has been in correspondence with colleagues in the department and I am happy to put a full, detailed response in a letter in the interests of time. The THEA and HERA legislation have two very different purposes. The former makes provision for loan funding via a broad set of regulation-making powers for the Secretary of State; the latter is principally about the regulatory regime—the powers of the Office for Students—and specifically enables the setting of fee limits for higher education courses by the Secretary of State. In Clause 14, new Section 28A(1)(e) modifies Section 22 of THEA by inserting new subsection (2ZA). That enables the Secretary of State to define what “module” means in relation to a higher or further education course for the purposes of making loan regulations.

Clause 15, which is to be amended by the government amendments, takes a slightly different approach due to the different regime that it covers. It clarifies that a module of a “full course”—an HE course, for example, mentioned in Schedule 6 to the Education Reform Act 1988—is itself a category of higher education course for the purposes of Part 1 of HERA 2017 when it is taken separately from the course from which it is derived.

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Moved by

[Baroness Barran]

37: Clause 15, page 18, line 17, leave out “In section 83(1) of”
Member’s explanatory statement
This amendment is consequential on the Minister’s second amendment at page 18, line 17.

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[Baroness Sherlock (Lab)]

My Lords, I thank the noble Lord, Lord Lucas, for introducing his Amendment 47. I will comment on that before moving on to my Amendment 48 in this group. Even before the pandemic hit, health and welfare support systems in higher education were experiencing unprecedented demand. More students need more help with problems of increasing complexity. A DfE report in June, Student Mental Health and Wellbeing, found that almost all higher education institutions have been devoting more resources to supporting student mental health over the past five years but, in many cases, were still struggling to meet demand. The pandemic has exacerbated that considerably, as a number of noble Lords have mentioned, so I will not rehearse that.

It will be interesting to hear the Minister’s answer to the noble Lord, Lord Lucas, and others on what the OfS can and does do about this. From memory, its new criteria on quality and standards relate to academic support only, rather than to specific non-academic support, but the Minister can explain how the OfS can otherwise work with universities on this.

It has offered some money, of course. It offered £6 million for innovative mental health support projects, although, when I looked at the small print, I found that half of that had to come from the providers doing the work. There are bits of money from outside. The noble Lord, Lord Parkinson of Whitley Bay, said recently in a Written Answer:

“As part of the mental health recovery action plan, the government has provided an additional £13 million to ensure that young adults aged 18 to 25, including university students, are supported with tailored mental health services.”


That is really good. I thought, “Hang on; is that all 18 to 25 year-olds?” At a rough guess that gives about £2.50 each, which may not go very far. I wonder whether the Minister thinks enough resources are going to support services in higher education. If not, do they need more external support or should this be coming from fee income?

The second issue is that, realistically, pastoral care in higher education institutions can only ever be a first line of support. It is important that the NHS is there for students who need more than that kind of help. I spoke this week to a senior person from an institution that takes the mental health of students very seriously, and she spoke of being left trying to support suicidal and seriously mentally ill students herself, because there were no mental health beds available and the local community team had little to offer, because it was so thinly stretched. I have also been told about a lack of inpatient beds or even outpatient support for students with severe eating disorders, leaving them with nowhere to go for help. I ask the Minister whether the DfE is working with the Department of Health to ensure that their services dovetail, so that there is adequate support in local NHS services for those students who need more help than university pastoral care can offer.

Amendment 48 in my name seeks to ensure that the way the Office for Students regulates higher education does not jeopardise the goal of widening participation. Noble Lords know that the OfS applies a series of conditions for a higher education institution to be registered, labelled A to E. The most hotly debated are the B conditions, which focus on quality and standards, and especially B3, which states:

“The provider must deliver successful outcomes for all of its students,”


which I always thought was rather ambitious, but they are tested against numerical measures.

The OfS has run two consultations in the last year and is about to start a third, which is specifically on the new metrics for student outcomes. They will presumably, although not necessarily, relate to the current metrics, which are about student continuation, completion rates of degrees and graduate careers. These metrics are controversial, because many in the sector worry that the Government are abandoning contextualisation in setting standards for higher education institutions. It is funny to push back on the noble Lord, Lord Lucas: to declare that everyone should be treated the same does not allow for there clearly being differences in student outcomes between groups that reflect prior experiences, advantages or current circumstances, rather than academic ability.

To take one simple example, we know from the official figures that mature students have lower completion rates. There can be perfectly good reasons for that, which may not relate to things in the gift of the institution at which they study. We would not want institutions that recruit more mature students to find that their outcome measure was not as good and then be deterred from doing so. That would be ironic for a Bill that is supposed to promote learning in later life and part-time study.

I raised this issue in Committee but I am sorry to say that the Minister said very little and really, I got no comment at all on it. The only way I could think of raising it was to table a specific amendment to say that the OfS could not measure outcomes in a way that could jeopardise widening participation for students from disadvantaged and underrepresented groups.

Clause 17(7) says that the OfS does not have to publish different minimum levels in relation to different outcomes by, for example, student characteristics, type of institution or course. That does not mean that the OfS has to apply flat standards across the board, but it clears the ground for it to do so at will. Many people in the sector worry that that might penalise institutions that serve disadvantaged groups or areas, or even deter outreach activity. Section 2 of HERA means that the OfS has to apply some proportionality, and therefore contextualisation, to any assessment, but can the Minister tell the House how it can do that fairly without any benchmarking? Because I got nothing in Committee, I am really hopeful that the Minister can at least give the House some assurance that the OfS should judge quality with regard to the impact on disadvantaged and underrepresented students. I hope she can reassure us on that front.

[Baroness Barran (Con)]

My Lords, I am grateful for the opportunity to speak to our measures on the Office for Students’ quality assessment. Section 23 of the Higher Education Research Act 2017, which relates to the assessment of quality of higher education provided by registered providers, currently places no restrictions or stipulations on how the OfS might make an assessment of quality or standards.

As the noble Baroness, Lady Sherlock, pointed out, Clause 17 of the Bill provides much-needed clarity. It puts beyond doubt the ability of the OfS to determine minimum expected levels of student outcomes. These levels would be taken into account alongside many other factors, such as the context in which a provider operates, when the OfS makes its overall and well-rounded assessment of quality.

Turning to Amendment 48 in the name of the noble Baroness, I am grateful for the opportunity to discuss widening participation and access in higher education. Equality of opportunity for young people across the country is one of the Government’s highest priorities. Access to higher education should be based on a student’s attainment and their ability to succeed, rather than their background.

The latest figures show that we have made real progress on access to higher education, with a record 24% of disadvantaged 18 year-olds entering higher education in 2020. Disadvantaged 18-year-olds were proportionally 80% more likely to enter higher education as a full-time undergraduate in 2020 than in 2009.

I reassure the noble Baroness and the House that when the OfS exercises any of its functions, it already must have regard to the need to promote equality of opportunity in connection with access to and participation in higher education. That duty applies when the OfS is looking at how disadvantaged students and traditionally underrepresented groups are supported and what they go on to achieve. It includes access, successful participation, outcomes and progression to employment or further study.

As I have set out, the minimum expected levels of student outcomes will form only part of the overall context as the OfS makes rounded judgments, as it is required to do under its regulatory framework. The OfS has a public law obligation to consider wider factors which could include, among other things, the characteristics of a provider’s students where appropriate. In reaching any final judgment, the OfS will balance contextual factors, proportionality and the need to protect students from low quality, including weak outcomes. Section 2 of the Higher Education and Research Act is clear that:

“In performing its functions, the OfS must have regard to … the need to promote equality of opportunity in connection with access to and participation in higher education provided by English higher education providers”.


The OfS is also subject to the public sector equality duty. Both will apply to this measure.

Amendment 47 is in the name of my noble friend Lord Lucas. Sadly, I echo his reflections on his conversations in Cardiff many years ago. I talked very recently to school leaders who also shared with me stories about students of theirs who have attempted suicide or, sadly, taken their own lives over the last 18 months. I thank my noble friend for raising this important issue both in Committee and again today. His amendment seeks to add the mental health and well-being support given to students to the outcomes against which the quality of higher education may be assessed by the Office for Students. I reassure him that the Office for Students already has a strong presence in the student mental health agenda, with significant levers in this area.

The OfS provides funding, support and guidance to higher education providers to ensure they provide appropriate mental health support for their students. As it stands, the OfS believes that further regulation would not be beneficial in a sector with a diverse range of suppliers and an equally diverse range of students. However, I reassure my noble friend that existing OfS powers under the Higher Education and Research Act 2017 are already flexible enough to allow it to impose a condition of registration relating to mental health, if it felt it necessary to do so.

We continue to work closely with the higher education sector to promote effective practice. The sector as a whole has established the overarching Stepchange: Mentally Healthy Universities framework, which is now complemented by the recently launched University Mental Health Charter programme and award scheme. The Government endorse this approach, including setting a clear ambition for all higher education providers to join the programme within the next five years. We also recognise the devastating effect that suicide has. A range of crucial prevention work and the promotion of effective practice are taking place across the higher education sector. We expect all universities to engage actively in this and deal sensitively if a tragedy occurs.

The Minister of State for Higher and Further Education, Minister Donelan, chaired a new round table on suicide prevention with Universities UK in June. The round table highlighted the importance of adopting and embedding the Suicide-Safer Universities framework and promoted good practice in the sector, helping to make sure that students are well supported during their time at university. The outputs include more regular analysis of student suicide data by ONS, including risk factors, which is central to informing preventive action, and the OfS publication of a new topic briefing, setting out approaches that universities and colleges can take to help prevent suicide among students.

The noble Baroness, Lady Sherlock, asked where this sits as a priority for government. She will not be surprised to hear that it is a key priority. I mentioned the round table that my right honourable friend the Minister held recently, but she has also written to vice-chancellors on numerous occasions, outlining that student welfare should remain an absolute priority, and has also convened groups of representatives from higher education and the health sectors and brought them together to address the issues that students are facing during the pandemic.

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[Baroness Sherlock (Lab)]

My Lords, when the Minister looks at the record, she may find that she has not been able to answer some of my questions, particularly around mental health. Will she write to me?

[Baroness Barran (Con)]

I shall be delighted to write.

[Lord Lucas (Con)]

My Lords, I am very grateful for my noble friend’s answer, which included just the words that I was after—that the Government are sure that the Office for Students has the powers that it needs to make progress in this area. I am very happy to leave it at that, given the record of the Office for Students to date.

I share with the noble Baroness, Lady Sherlock, the determination that disadvantaged students should not be disadvantaged further by the systems that we put in place. I think that is entirely possible. I hope that we will see from the OfS a system of better admissions, so that universities put some real effort into understanding how best to detect and attract those disadvantaged students who will do well at university; that this is a collaborative effort, a proper national research effort to solve this national problem; and that they will similarly collaborate on how best to look after those students once they reach university. They should expect them to need additional support because, after all, they are disadvantaged. In both those areas, I feel that the Office for Students is determined to see progress. I am confident that with that determination over the next few years we will see it.

I also hope to see some real diversity of thought as well as intake in our universities. I will know that we have achieved it when an Oxford college asks the noble Lord, Lord Adonis, to be its next master.

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Moved by

[Baroness Barran]

49: Clause 18, page 22, line 14, at end insert—
“(c) confer functions (including functions involving the exercise of a discretion) on the Secretary of State or any other person.”Member’s explanatory statement
This amendment expressly allows the inclusion, in regulations made under Clause 18(1) of the Bill (regulations relating to the list of relevant providers), of provision which confers functions on a person.

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[Baroness Wilcox of Newport (Lab)]

My Lords, the Queen’s Speech promised that legislation would support a lifetime skills guarantee to enable flexible access to high-quality education and training throughout people’s lives. It therefore beggars belief that there is no mention of this flagship policy in this skeleton Bill; indeed, the Bill is silent on the value of qualifications below level 3 altogether.

At present, 13 million adults in the UK currently do not have a level 2 qualification—that is equivalent to GCSE—and 9 million adults lack functional literacy and numeracy skills, leaving them vulnerable to job loss and making it harder for them to secure work. DfE data has shown that the return on investment for qualifications below level 2 is higher than for level 3. Furthermore, lower level qualifications offer many adult learners a key progression route. Without adequate support through the adult education budget for these lower level qualifications in future years, many students will not be ready for and able to progress to levels 4, 5, 6 and up to degree level, which this Bill—or indeed, in the absence of the LLE amendments, its successor—is intended to support.

Amendment 60 in the name of my noble friend Lord Watson would seek to rectify this by placing the LSG on a statutory footing. It is also intended to address concerns that, at present, the LSG does not offer support for subjects outside a narrow band of technical disciplines. Consultation and regular review of eligible courses are therefore key. Our amendment also addresses concerns that the LSG appears to omit reskilling and second level 3 qualifications by retaining the equivalent or lower qualification rule. I will not repeat earlier speeches on the need for ELQ reform, but I urge the Minister to reconsider including flexibility for subsequent level 3 courses in the LSG to unlock retraining for even more people in an area where there is a demand for skills.

I also support Amendment 50, in the name of the noble and learned Lord, Lord Clarke, and my noble friend Lord Layard, which would ensure that the LSG and support for courses below level 3 are placed on a statutory footing. Amendment 50 also encompasses apprenticeships, which provide an alternative for able young people to the traditional academic route. It would ensure that two-thirds of the funding is spent on under 25s; this is key to ensure they are properly targeted.

Moreover, as noted by many noble Lords, the sharp decline in apprenticeships is deeply concerning, with 2020 seeing the lowest number of 16 and 17 year-olds starting an apprenticeship since the 1980s. We have seen 189,000 apprenticeship opportunities disappear since 2017, which is why Labour has called on the Government to use unspent funds from the apprenticeship levy to fund 85,000 new apprenticeships for 16 to 24 year-olds, creating opportunities for young people to rebuild from the ravages of the pandemic. More than £1 billion in apprenticeship levy funding paid by employers expired unused between May 2020 and February 2021 alone. It is absurd that businesses are allowing hundreds of millions of pounds of levy funds to expire, when so many young people are unable to access a high-quality apprenticeship. Vast sums of money going unspent is a sign of a system in need of fundamental reform to make it work for learners and business.

Skills and retraining must be a vital part of our economic recovery. I hope the Minister is persuaded of the merits of placing the LSG on a statutory footing, especially given it has cross-party and sector-wide support. After all, it reflects the Government’s policy to try to address the skills gap in this country and to enable individuals to develop skills relevant to today’s and tomorrow’s labour market, in their area. This is an opportunity for the Government to show that levelling up is more than just a slogan or an addition to the name of a ministry.

[Baroness Barran (Con)]

My Lords, I thank my noble and learned friend Lord Clarke and the noble Lord, Lord Watson, for their amendments, and all noble Lords who spoke in the debate. I concur with all noble Lords’ ambitions around lifelong learning. This is an important issue with which the Government agree; however, we do not believe it is necessary to specify such a requirement in the Bill.

In April, we launched the free courses for jobs offer as part of the lifetime skills guarantee. This gives all adults in England the opportunity to take their first level 3 qualification for free, regardless of their age. We have ensured that our funding arrangements will allow relevant providers to access further funding if there is higher-than-expected learner demand. Over 400 level 3 qualifications are available, which have been specifically identified for their strong wage outcomes and ability to address key skills needs. Adults in all regions of England have been enrolling since April.

The free courses for jobs offer builds on the pre-existing legal entitlement for 19 to 23 year-olds to access their first full level 2 and/or level 3 qualification—a point raised by the noble Baronesses, Lady Wilcox of Newport and Lady Garden of Frognal—which the free courses for jobs offer complements. Through the adult education budget, full funding is also available, through legal entitlements, for adults aged 19 and over to access English and maths to improve their literacy and numeracy, and for adults with no or low skills to access fully funded digital skills qualifications, as we discussed in an earlier group of amendments.

The adult education budget also supports colleges and training organisations to work with adults at lower levels who want to re-engage with learning and/or their local labour market. This includes around 2,000 regulated qualifications and their components, and non-regulated learning, from entry level to level 2.

In areas where adult education is not devolved, the adult education budget can fully fund eligible learners studying up to level 2 where they are unemployed or earning below around £17,300 per year. In areas where the adult education budget has been devolved to mayoral combined authorities or the Greater London Authority, they are responsible for determining the provision to support outside of the legal entitlements.

The noble Baroness, Lady Wilcox, asked why the Government will not put the offer of free courses for jobs on a statutory footing. As she will be aware, this policy has been in delivery since April and is already benefiting adults aged 19 and above without a prior level 3 qualification in all regions of England. We do not believe that it is necessary to legislate in order to deliver this important investment in the nation’s skills.

[Lord Forsyth of Drumlean (Con)]

I am most grateful to my noble friend. It is fantastic that she has listed all these initiatives, but it does not really explain why she is not prepared to put this in the Bill. She says that she does not believe that it is necessary. Why?

[Baroness Barran (Con)]

I am sorry; I thought that I was clear in my remarks. We are already delivering the policy and therefore do not believe that it is necessary to have it in the Bill.

[Lord Forsyth of Drumlean (Con)]

But—

[Baroness Barran (Con)]

If my noble friend will allow me to finish, I will come on to talk about some of the wider issues—particularly in relation to funding, on which I know he is a great expert—further on in my comments.

[Lord Forsyth of Drumlean (Con)]

I do not wish to press too hard on this, but Governments are here today, gone tomorrow, and Ministers change. By putting this amendment in the Bill, it is clear to everyone what the future is; otherwise, we are relying on administrative decisions, which can change.

[Baroness Barran (Con)]

My noble friend is quite within his rights to press me and the Government as hard as he sees fit, but I have set out the Government’s position as best as I can at this stage.

Turning to the other aspects of the amendment in the name of the noble Lord, Lord Watson, I agree that the list of qualifications—

[Lord Clarke of Nottingham (Con)]

I am sorry—I know that the point has been made—but I find this an extraordinary approach to legislation. Everything that the Minister has said so far has given examples of things that the Government are doing that are compatible with the amendments that we are discussing. She has not raised a single objection in principle to either of the amendments, but she has been given a brief saying that it is not necessary to legislate. What harm is done by legislation, given that so many Governments in the past have, in the end, fallen rather short of their agreements in principle?

[Baroness Barran (Con)]

I think that the Government’s priority is to see this measure working in practice. Many of your Lordships have far greater experience than I do of how attempts have been made to reform this area, including through legislation, which have not delivered the outcomes that noble Lords across the House violently agree we want to see. So, our focus—

[Lord Cormack (Con)]

I apologise. We are all on the same side here. I understand my noble friend’s powers personally and understand that she has a big document with “resist” written on it, but why can she not talk to her ministerial colleagues and say, “We’ll seek to come forward at Third Reading with something that reflects the concerns expressed by my noble and learned friend Lord Clarke, my noble friend Lord Forsyth and others”?

[Baroness Barran (Con)]

I can assure my noble friend absolutely that I am in regular and detailed dialogue with my ministerial colleagues. I will certainly share your Lordships’ concerns with them but, if I may, I would like to progress in responding to these amendments.

Turning to the other aspects of the amendment of the noble Lord, Lord Watson, I agree that the list of qualifications in the free courses for jobs offer should be updated regularly and reflect labour market need. That is why we keep the list under review and accept suggestions for additional qualifications twice a year from mayoral combined authorities, the Greater London Authority and qualification-awarding organisations. For example, we added hospitality qualifications to the offer in July to ensure that it meets key needs in that sector.

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Moved by

[Baroness Barran]

51: Clause 22, page 26, line 32, after “provides” insert “English-funded”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment to Clause 1 at page 1, line 7.

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[The Deputy Speaker (Baroness Henig) (Lab)]

I call the noble Baroness, Lady Barran, to move Amendment 53.

[Baroness Barran (Con)]

Sorry, this group is for my noble friend Lady Chisholm.

Amendment 53

Moved by

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Moved by

[Baroness Barran]

54: Before Clause 25, insert the following new Clause—
“Offence of providing or arranging a relevant service
(1) It is an offence for a person to provide, or arrange for another person to provide, in commercial circumstances, a relevant service for a student in relation to a relevant assignment.(2) A person guilty of an offence under this section is liable on summary conviction to a fine.(3) In proceedings for an offence under subsection (1) it is a defence for the defendant to prove, in relation to any of the matters mentioned in subsection (4), that the defendant did not know, and could not with reasonable diligence have known, the matter.(4) Those matters are—(a) if material is provided to the student as a result of the relevant service, that the student would or might use the material in completing all or part of the assignment; (b) that the student was required to complete the assignment personally;(c) that the relevant service was not permitted assistance.(5) A statement in the form of a written standard term of the contract or arrangement under which the relevant service was provided or arranged—(a) that the student would not use any material provided as a result of the relevant service in completing all or part of the assignment,(b) that the student was not required to complete the assignment personally, or(c) that the relevant service was permitted assistance,is not, of itself, to be taken as sufficient evidence of a matter to be proved under subsection (3).(6) A student does not commit either of the following merely by making use of a relevant service to complete all or part of an assignment—(a) an offence under Part 2 of the Serious Crime Act 2007 where the offence that the student intended or believed would be committed is an offence under this section;(b) an offence under this section committed by aiding, abetting, counselling or procuring the commission of an offence under this section.”Member’s explanatory statement
This new Clause creates an offence of providing, or arranging the provision of, a relevant service as defined in new Clause (Meaning of “relevant service” and other key expressions) in relation to an assignment which the student is required to complete personally, and provides for defences where the defendant proves certain matters.

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Moved by

[Baroness Barran]

59: After Clause 25, insert the following new Clause—
“Higher education course fee limits: administrationRelevant date for purposes of fee limit for certain higher education courses
In paragraph 3(3) of Schedule 2 to the Higher Education and Research Act 2017 (the fee limit where the provider has no access and participation plan), omit “before the calendar year”.” Member’s explanatory statement
Certain fee limits for academic years of higher education courses depend on whether the provider had a high level quality rating on a particular date. This new Clause changes that date to 1 January in the calendar year in which the academic year begins from 1 January in the previous calendar year.

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[Baroness Sherlock (Lab)]

My Lords, I thank the noble Baroness, Lady Garden, for stepping in marvellously and introducing the amendment so confidently. It certainly seems, especially given the situation with the investigation that she describes, a pretty straightforward and simple way to address the issue, placing a duty on the Information Commissioner to prepare a code of practice in relation to the sharing of personal data. If the Minister is not going to accept this, perhaps she could tell us how instead the department intends to address these problems.

I would like to ask a little question. There have been concerns for some time that both practice and indeed legislation in education are loose in relation to data. Clause 11 makes provision to allow data sharing by and with Ofqual, the OfS and Ofsted as well as prescribed persons, and the provisions relate to technical education functions. Could that include students’ personal data? If so, for what purposes? How widely could “prescribed persons” be interpreted?

Can the Minister clarify whether the scope of Clause 11 extends beyond England? Although the institutions to which the new powers apply are all currently based in England, the people and institutions from which they will obtain personal data under those powers could presumably be at any educational setting across the UK within the scope of the Bill. What consideration has been given to the prescribed persons to whom the institution may pass on the data being based outside England in accordance with their own data-sharing powers?

These days students need and expect consistent controls across their data for collection, for use, for distribution and for destruction when it is no longer required for the lawful purposes for which it was collected. I am aware that institutions have also called for better guidance. Concerns have also been raised that the Bill does not preclude commercial use. Could the Minister comment on that?

Data is a valuable asset and it needs appropriate safeguards and a public interest test, so I look forward to the Minister’s reply.

[Baroness Barran (Con)]

My Lords, Amendment 67 tabled by the noble Lord, Lord Storey, but skilfully presented by the noble Baroness, Lady Garden, seeks to place a duty on the Information Commissioner to prepare a code of practice in relation to the sharing of personal data by organisations that collect such data for post-16 educational purposes.

I thank both the noble Lord, Lord Storey, and the noble Baroness, Lady Kidron, for bringing this issue to my attention. The Government agree that this is an issue that needs addressing, and we share both noble Lords’ aims for increasing assurances around the processing and sharing of personal data for learners and students in post-16 settings.

The department’s response to this issue is to set up an education sector certification scheme, with the support of the ICO, that would allow the department to set standards in a wide range of areas. This would cover the data protection needs of the whole education sector, not just the 16 to 19 age group covered by the Bill. We feel that a certification scheme, rather than a code, gives us flexibility to deliver elements when they are ready. We will not have to wait until all elements are complete, which allows us to be flexible when responding to priority needs. In addition, as technology and the law change, we are able to update specific standards without having to update a full code, allowing us to remain flexible to future changes.

As the noble Baroness, Lady Garden, mentioned, I have written to both the noble Lord, Lord Storey, and the noble Baroness, Lady Kidron, detailing the department’s ambition and next steps in tackling this issue, which will include writing both to the ICO and to the ed-tech companies by the end of the year.

I am amused at the definition of “a little question” from the noble Baroness, Lady Sherlock; it was at least three little questions. If I may, I will write to her on the detailed points. Broadly, the thrust of her questions is that student data should be protected. The department continually keeps its processes and practices under review to ensure that we are taking all necessary steps to protect data, including updates to access controls, audit trails of data usage and reviewing risk as part of our data protection impact assessment. In relation specifically to this amendment, the proposed data certification scheme would formalise these controls across the sector. If I may, I will respond in writing to her other points.

I therefore hope that the noble Baroness, Lady Garden, on behalf of the noble Lord, Lord Storey, will consider withdrawing his amendment. I again place on record my thanks to him and the noble Baroness, Lady Kidron, for bringing this to my attention.

[Baroness Garden of Frognal (LD)]

I thank the Minister very much for her reply. We entirely agree that a certification scheme is better than a code and will provide more education expertise and focus and more transparency. I beg leave to withdraw the amendment.

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Moved by

[Baroness Barran]

68: Clause 26, page 31, line 12, after “15” insert “(3)”
Member’s explanatory statement
The effect of this amendment and the Minister’s amendment at page 31, line 20 is that the amendments of the Higher Education and Research Act 2017 made by Clause 15 have the same extent as the provision of that Act which they amend.

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Moved by

[Baroness Barran]

71: Clause 27, page 31, line 24, leave out “and 22 to” and insert “, 22 to 24, (Meaning of “relevant service” and other key expressions), (Offence of providing or arranging a relevant service), (Offence of advertising a relevant service), (Offences: bodies corporate and unincorporated associations), (Interpretation of Chapter),”
Member’s explanatory statement
This amendment provides for the new Chapter (Cheating services provided for post-16 students at English institutions) to come into force 2 months after the Bill is passed.

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Moved by

[Baroness Barran]

74: In the Title, line 4, after “qualifications” insert “and apprenticeships”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment to insert Clause (Information about technical education and training: access to English schools).