Higher Education and Research Bill

Baroness Goldie Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 16th January 2017 Lords Chamber

[Lord Lucas]

My Lords, Amendment 68 seeks to make sure that bodies on which the OfS places responsibility under the Bill are truly representative of all providers, which has not historically been the case for higher education bodies. I beg to move.

[Baroness Goldie (Con)]

My Lords, I expected full-blooded and voluble contributions from all sides of the Committee. I realise that noble Lords are accustomed to the courteous, urbane and patient demeanour of my noble friend Viscount Younger, and I appreciate that my appearance at the Dispatch Box may cause a slight frisson. Let me reassure noble Lords that, while I may not be able to match my noble friend’s skills, I shall do my very best to emulate his virtues.

By way of preface, although not a current, registerable interest, I served for many years on the court of my alma mater, the University of Strathclyde, of which institution I am an honorary fellow. I also spoke regularly in the Scottish Parliament during the passage of the Higher Education Governance (Scotland) Act 2016. I have to say that, in my opinion, that was an unwarranted, intrusive and unnecessary piece of legislation, which I voted against. By comparison with that inedible fodder, this Bill is to me haute cuisine. I realise that some noble Lords may have a different dietary definition, but I think that, in contrast to the position in Scotland, this Bill is trying to offer, frankly, 24-carat gold standard protection for university autonomy.

I turn to the amendment in the name of my noble friend Lord Lucas. I am very sympathetic to the issues raised via this amendment. The OfS will be introducing a new regulatory system that will govern all types of provider, from our longest established universities to those new providers joining the register for the first time. It is essential that the OfS’s systems are fit for purpose and also understand the needs of all types of providers. In operating a single register for all HE providers, the OfS will have a duty to ensure that its regulatory systems, and those involved in running them, fully take account of the diversity of the sector and the full range of different HE providers. This will be a responsibility of the OfS board, which will include representatives of a diverse range of HE provision.

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[Lord Stevenson of Balmacara]

My Lords, I agree with the noble Lord, Lord Willetts, on the amendment. It is a good one, and although it may not be high profile it is certainly worthy of further consideration. If there is a defect in the current drafting, the Minister may wish to look at it before we get to Report. He can give one of his equivocal answers if he wishes, but of course the more clarity, the better.

I was not going to speak in particular about the amendment, although I was interested in the substantive clause to which it is applied. The current wording says:

“Guidance given by the Secretary of State to the OfS which relates to English higher education providers must apply to such providers generally”—


so far I am with the drafting—

“or to a description of such providers”.

At that point I got completely lost. When the Minister responds, perhaps she could give me a better—perhaps Scottish—interpretation of this. Clearly, the Scots are much sharper on these matters than English drafters. As I understand it—and I normally understand draft legislation relatively well—guidance must apply to the providers, which are defined as “English higher education providers”, generally. That is quite fine. I accept that. However, I do not get the next bit:

“or to a description of such providers”.

To whom or to what does that description apply?

[Baroness Goldie]

My Lords, I fully understand the motivation behind this amendment, which seeks to give the OfS an independent voice in the future policy-making process. The OfS, as the principal regulator of the HE sector, will have some level of relationship with every registered provider and will gather a comprehensive set of information about the sector. Indeed, as the operator of the register, the OfS will engage closely with new market entrants, and because of its duty to monitor the financial health of the sector under Clause 62, it will have a clear and detailed understanding of how the market is operating and developing. I think that was a point of particular concern to the noble Lord, Lord Storey. Because of its duties to operate in the interests of students under Clause 2, it will also have a clear understanding of demand-side issues.

No sensible Government would want to make major policy decisions on the registered HE sector without engaging with the OfS, and we confidently anticipate that the OfS will be involved, where appropriate, in the policy-making process, just as HEFCE has been. There is nothing in the Bill which prohibits the OfS from giving advice to government on matters within its regulatory remit and there is no reason to suggest that it would be constrained in giving such advice or not be able to provide open and honest analysis. My noble friend Lord Willetts was concerned about whether the OfS will be able to give advice to the Secretary of State and I hope that observation reassures him. Further, there is also a specific duty in Clause 72 for the OfS to provide information and advice to the Secretary of State when it is requested.

I do not think that it is necessary to give an additional explicit statutory power in the Bill for the OfS to be able to give unsolicited advice to the Secretary of State. Nor do I think it would be wise, as I believe there could be unintended consequences of doing that. It also could lead the OfS to spread its limited resources too thinly across its core role of delivering a fair and effective regulatory system and additional role of developing policy advice. In addition, the sector is well represented by a large range of representative bodies, mission groups and other organisations, which engage in debate and dialogue with the Government about policy decisions. It is the Government’s aim that the OfS remains independent of the sector if it is to regulate providers fairly. The OfS will also in part be funded by registration fees paid by registered providers, so it will be held to account by them, and must operate as efficiently as possible.

I am confident that the provisions in this Bill will make the OfS an indispensable source of expert analysis and advice on which the Government will want to draw in the formulation of future policy. In these circumstances, I ask the noble Lord to withdraw his amendment.

[Baroness Warwick of Undercliffe]

Can I ask the noble Baroness to reflect on the point made by the noble Lord, Lord Willetts, about the role of the current body, HEFCE, as a buffer body? She said that the new Office for Students will fulfil much the same function as HEFCE. When the Minister reflects on this debate, will she consider the way in which the requirements on HEFCE express that role as a buffer body and see whether it is also reflected in the way in which we are asked to confirm the role of the OfS?

[Baroness Goldie]

I thank the noble Baroness for raising an interesting point. I am sure it is one on which I and my colleagues will want to reflect.

[Lord Storey]

I am very grateful to the Minister for her full and frank reply. I will reflect carefully on what she has said. If there is nothing in the Bill prohibiting the OfS from giving advice and being involved then we need to explore that a bit further. I will withdraw the amendment currently.

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[Baroness Brown of Cambridge]

My Lords, I support the intent of this amendment. When I was vice-chancellor at Aston University, we were not able to implement a system which allowed our students to opt in, but it was very simple to provide on the online registration page a reminder to students that they should register to vote and a link to the site where they could do so. Even if it were not possible to go all the way, as this amendment envisages, it would not create difficulty to require higher education providers to encourage students to do so, and to give students the ability to find the link from the university’s online registration site or through their virtual learning environment.

[Baroness Goldie]

My Lords, I thank your Lordships for your contributions. This has been interesting and, by way of general introduction, I listened with interest to the broader electoral point raised by the noble Lord, Lord Campbell-Savours. However, as this amendment deals specifically with students and young people, perhaps he will understand if I deal specifically with that aspect.

The Government fully share the aim of increasing the number of younger people registered to vote, as part of creating a democracy that works for everyone. This is an important subject but, although we support the overall aim of this amendment, we do not believe that placing a prescriptive, statutory duty on all HE providers is the best or most appropriate way to deliver that aim. Let me explain.

The Government have already shown their commitment to ensuring that students are registered to vote by supporting, and contributing financially, to the pilot project integrating electoral registration with student enrolment at the University of Sheffield. I commend those behind this successful pilot, which produced encouraging outcomes, as the noble Lord, Lord Stevenson, indicated. I am pleased to note that many providers are already implementing this system voluntarily, such as the University of Bath—the university of the noble Baroness, Lady Royall—Sheffield Hallam University, Cardiff University, the University of Birmingham, Coventry University, Lancaster University, Manchester Metropolitan University and Newcastle University. Other providers are looking at this of their own volition and we anticipate that more will choose to do so this year. To encourage take-up of this system, or at least of one of the other models which institutions deem most appropriate, we have committed to write out to other HE and FE providers later this year.

With many universities already embracing this system, we expect and are confident that many more will do so voluntarily, which we believe is the right approach. Let me reassure the noble Lord, Lord Storey, that we are looking at the University of Sheffield scheme to fully evaluate it and ensure that it is fit for purpose before we share the outcomes and encourage wider application. We will continue to work closely with sector partners, the Electoral Commission and the Association of Electoral Administrators to evaluate and share the outcomes from this and other schemes, and to consider other solutions for areas such as London where this system is impractical to deliver.

There will obviously be an administrative burden associated with such a system as used by the University of Sheffield. Larger providers may have the resources to accommodate the introduction of an integrated voter registration system, and to absorb the costs of such an arrangement, but I hope the Committee will agree that it is not appropriate to include such a mandatory condition in the Bill. The conditions of registration in the Bill are primarily to provide proportionate safeguards for students and the taxpayer, and to take forward social mobility policies. The imposition of other mandatory conditions risks undermining this proportionate approach to regulation, which is a key element of the system. This is a deregulatory Bill from a deregulatory Government.

Moreover, it is not a case of “one size fits all”. Providers should be able to choose from this or other options, such as the one used by De Montfort University, which offers students the opportunity to register automatically when logging into their student intranet. In places such as London, with its 33 boroughs, there are major issues to contend with, such as students with a term-time address in a different registration area from their university, which makes this system impractical to deliver for electoral administrators.

It must be for HE providers, working in partnership with their students and electoral registration officers—the acknowledged experts in registration—to determine how best to increase student registration. Yet this does not mean that we cannot do more to encourage registration. The Government are also looking at modernising and streamlining the annual registration canvass. Impacts on students from the current process will be picked up as part of the modernising electoral registration programme. We are also considering other options to increase student registration, including as part of the Government’s democratic engagement strategy. We expect to set out more about this later on this year.

The noble Baroness, Lady Garden, referred to the Cabinet briefing note, a copy of which I have in my hand. I confirm to your Lordships that we will circulate a copy to all Peers and will place a copy in the House Library. The noble Lord, Lord Stevenson, raised the issue of including local electoral registers in university areas. According to YouthSight, 60% of students actively choose to be registered at their home address. That is their choice, but it means that underregistration is not perhaps such a material issue—students simply elect to register elsewhere.

Although the Government fully support the aim of increasing student voter registration, we do not believe that this amendment is the most effective or appropriate way of meeting that objective. In these circumstances, I suggest that the amendment be withdrawn.

[Lord Judd]

The noble Baroness made the point that a growing number of universities are, of their own volition and initiative, taking action in this area. That is something to be admired and is absolutely right, but democracy is immediate and in the meantime there will be elections. Are we really accepting a situation in which there will be two opportunities available—one where universities have chosen to enhance the quality of democracy and another where they have not? There is some urgency on this matter, and I do not think that the Minister, on reflection, will really believe her own argument.

[Baroness Goldie]

With all respect to the noble Lord, Lord Judd, I do not think anyone is suggesting that there is a desert of electoral registration by students. Everyone is agreed on the importance of ensuring that as many as students as possible register to vote and that they are encouraged to do that. The distinction we have to draw in securing that objective is whether putting something into this Bill and making a mandatory provision is proportionate and the best way of achieving that aim. As I have just explained to your Lordships, the Government feel that that is neither appropriate nor the best way to achieve that objective. That is why we invite the noble Lord, Lord Stevenson, to withdraw the amendment.

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Moved by

[Baroness Goldie]

83: Clause 8, page 5, line 34, after “OfS” insert “, or a person nominated by the OfS,”

[Baroness Goldie]

My Lords, I turn to the amendments tabled by my noble friend Lord Younger regarding the designated data body. The Bill preserves the existing co-regulatory approach where the regulator has overarching responsibility for information services and the information is gathered and published by an independent body which has the confidence of the sector. We know from the thoughtful and considered amendments proposed that many noble Lords share our concern that the designated data body is provided with the clear statutory footing needed to ensure that the information needs of students, prospective students, employers, providers and government are adequately supported. We look forward to returning to these issues later in the debate. Today I am simply putting forward some technical clarifications intended to enable the designated data body to continue to perform vital functions currently undertaken by the Higher Education Statistics Agency.

Amendments 83, 86 and 87 clarify that the legislation enables the OfS to nominate the designated data body to perform the data collection, specifically required by the OfS, in order for it to perform its functions. Amendments 367, 369, 370, 372, 373 and 381 provide further specific powers of delegation, enabling the OfS to require the designated body to make appropriate arrangements for the publication of the data and to consult on data publication. As noble Lords will recognise, the effect of these amendments is to support the already stated intention that the OfS can delegate these duties to enable it to work in a coregulatory partnership with a sector body.

I turn to the new clause proposed by Amendment 365. We have worked in consultation with the Higher Education Statistics Agency—HESA—to ensure that essential elements of the data body role will be fully enabled through the Bill. In particular, Amendment 365 seeks to broaden the role of a data body to include the essential function not just of publishing information but, where required, gathering and holding information not intended for publication where such data are required by the OfS, UKRI or the Secretary of State and making that information available to them. This amendment gives the designated data body more scope and flexibility to gather and compile information required by government, the OfS and UKRI. I also provide assurance in response to concerns raised about the extent to which the designated data body could use data collected for statutory purposes to carry out a wider information-sharing role with the sector and other interested parties, continuing the type of services currently offered by HESA. This is not a matter for legislation, since it does not relate directly to the OfS’s statutory functions. However, I assure noble Lords that there is nothing in the legislation that would prevent the designated data body from using data collected in its capacity as a designated body or from engaging in any other activities beyond its designated functions. This wider co-operation with the sector and other interested partners is part of what contributes towards the benefits of coregulation. I beg to move.

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[Lord Stevenson of Balmacara]

I am sorry to come back so quickly but I am prompted by the noble and learned Lord to make a point. The reference he makes to the responsibilities of the OfS is not, of course, in Part 1 of the Bill as we have considered it—I think he has picked up that point. There is a schedule which contains further information, but a quick reading, which is what I was trying to do while the noble Baroness was speaking, does not seem to pick up exactly the point he has made, so I endorse it and look forward to hearing the response.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Stevenson, and my noble and learned friend Lord Mackay. To answer the specific point raised by the noble Lord, Lord Stevenson, about where all this appears in the Bill, my understanding is that Clause 59 and Schedule 6 cover the duty to publish English higher education information, as originally drafted. We are clarifying and expanding the rules and data, by the amendments to which I have just spoken, to build on what is provided for in this core clause and in Schedule 6. My noble and learned friend Lord Mackay of Clashfern raised a fairly technical issue and I hesitate to give a full response at the Dispatch Box in case I get it completely wrong. With his approval, I shall write to him on that issue.

Amendment 83 agreed.

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[Baroness Goldie]

My Lords, I thank my noble friend Lord Lucas for bringing forward these amendments, which seek to expand the scope of the transparency duty. His engagement is greatly appreciated and I wish to reassure him that we will never tire of hearing from him, as was his apprehension. These amendments have raised a number of important issues. I would like to thank the noble Lord, Lord Stevenson, for a very reflective and helpful contribution to the debate.

As set out in our White Paper, the purpose of the transparency duty is to shine a spotlight on institutions that should be going further to widen access and participation. Our intention is for the duty to apply to all providers whose students can claim student support. This is in keeping with our proportionate approach to regulation. Given the number of amendments, rather than discuss each of these at length, I would like to offer a meeting with my noble friend Lord Lucas to discuss these in person. I would, however, like to touch upon some of the key points raised here.

My noble friend raised an important point about access, with his concern that in certain months a student’s chances of access are improved. I refer him to the UCAS equal consideration deadlines. UCAS states explicitly that the undergraduate admissions service uses two equal consideration deadlines: 15 October and 15 January. An equal consideration deadline means that universities will treat all applications received by that deadline with equal priority. I hope that does reassure my noble friend.

I can assure your Lordships that I share the aim of ensuring that students and prospective students can access all the information they need. That is why we are introducing the teaching excellence framework to provide students with robust, comparable information on teaching quality. From this year, institutions will be asked to provide detailed course information, including contact hours, on their websites. These links will be added to Unistats—the official website for comparing UK higher education course data. This will provide a central resource for students easily to compare different institutions.

My noble friend Lord Lucas raised the point that students need to have all the relevant information, such as contact hours and so on, and that the OfS should be given the powers to require that. I reassure him that our reforms aim to ensure that all students have all the right information in the right format and time to help them make decisions which are, in turn, right for them. Clause 59, which we have already referred to this afternoon, establishes a duty for the OfS—or, where there is one, the designated data body—to publish appropriate information about higher education providers and the courses they provide. When determining what information to publish, the OfS must consider what would be helpful for current students, prospective students and registered higher education providers. In deciding what to publish, the OfS must periodically consult with interested parties, including students, to ensure the approach for information still meets their needs.

Amendment 99 raises the question of relationships on campus. The Government are keen for universities to take their responsibilities around sexual harassment seriously. We expect every institution to put in place the right arrangements to ensure the welfare of their student body and continuously work to improve them. That is why we asked Universities UK to see what more could be done to tackle harassment on campus. We must now ensure that the task force’s work goes on to make a real difference to students.

On Amendment 100, HE providers, as autonomous bodies, are best placed to decide how to support the mental health of their student population. That said, this is a very important issue that the sector needs to grapple with. I am pleased to note that Universities UK recently established a programme of work on well-being in higher education to support and strengthen the work that universities are already doing in this area.

On Amendment 102, academic freedom is central to our higher education system. The Bill introduces new protections for academic freedom, making the Secretary of State’s powers to guide and direct the OfS, and set conditions of grant made to the OfS, subject to a general duty to protect academic freedom. It includes specific areas in which the Secretary of State may not interfere, including the content of courses and the criteria for appointing academic staff and selecting students. On Report in the Commons, the Government introduced a further protection prohibiting the Secretary of State from requiring the OfS to operate in a way that causes the opening or closure of particular courses.

In response to my noble friend Lord Lucas’s comments on predicted grades and actual grades, in terms of tariff scores Unistats publishes the percentage of entrants in each tariff band commencing on each course at each institution in the past three years. Publishing information on the median and standard deviation of tariff scores would provide less clarity than the existing data available. Information on entry requirements, course descriptions and other course data is already widely available through providers’ own websites and through UCAS. HE providers are incentivised to make those data readily available in order to attract applicants.

In summary, my noble friend Lord Lucas has raised a number of very important points, and, if I may say so, the noble Lord, Lord Stevenson, interjected a number of observations that are worthy of consideration. I intend to meet my noble friend Lord Lucas, and I hope I have reassured him that we agree in principle with the points he has raised. In those circumstances, I ask him to withdraw Amendment 94.

[Lord Stevenson of Balmacara]

Before the noble Baroness sits down, I wonder whether she could possibly come back to the question of where the OfS stops and the CMA starts. Will that be subject to further discussion and debate?

[Baroness Goldie]

I hope that the noble Lord will permit me to respond to him in greater detail by writing to him.

[Lord Lucas]

My Lords, I am very grateful to my noble friend for her offer of a meeting. Of course, if any other noble Lord wants to attend that meeting, I should be delighted if they would let me know and I will make sure that that happens. For now, I beg leave to withdraw the amendment.

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I align myself with the points made by the noble and learned Lord, Lord Wallace of Tankerness. He is absolutely right on this. There is a judgment here to be made about how we do what we do, but there is no sense in setting off on completely the wrong track. If this clause is to work, it must reflect better where we currently are in relation to the law of the land, and the Equality Act is a very good starting point.

[Baroness Goldie]

My Lords, I thank noble Lords for their contributions, which have certainly provoked thought. The amendment of the noble and learned Lord, Lord Wallace, to include data on attainment and the transparency duty raises an interesting and important point. For example, there is a difference between the proportion of white students and BME students obtaining a First or a 2:1. Another aspect of that was raised by the noble Baroness, Lady O’Neill. That is why we asked the Director of Fair Access to look at unexplained differences in degree attainment in our most recent guidance. While we know the sector takes this issue seriously and has acted, problems persist. We will reflect on the noble and learned Lord’s amendment, which raises a significant point.

Amendments 111, 112 and 117 would mean that all eight of the protected characteristics to which the public sector equality duty under the Equality Act 2010 refers would be included in the transparency duty. This would expand it considerably to include age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation. The transparency duty is focused on those characteristics where the greatest impact can be achieved through greater transparency and where comparable and robust data are available. Such data are not currently available for all the protected characteristics. The Equality Challenge Unit has shown that information on religion and belief, sexual orientation and gender reassignment was unknown for more than half of all students in higher education. With such low returns, comparing institutions using such data as are there would be both unreliable and unfair.

The noble and learned Lord, Lord Wallace, raised the important issue of disability. That will be extensively covered under the following group of amendments at Amendment 110A and, with his leave, I will deal with that issue specifically in the next group of amendments.

Under the transparency duty, gender, ethnicity and socioeconomic background are captured. Universities may voluntarily publish further information if they wish. Again we have been mindful of the need to be proportionate when making this new legislation.

There is also a risk that by including protected characteristics, the transparency duty confusingly begins to resemble aspects of the existing public sector equality duty. Institutions may operate under the misapprehension that by complying with the transparency duty, they have met the requirements of the public sector equality duty. That would not be the case because the PSED is a vital policy, underpinned by the Equality Act, and requires institutions to publish information to show their compliance with the Equality Act. In addition, it requires institutions to publish equality objectives to demonstrate that they have consciously considered the aims of the PSED as part of their decision-making processes.

The noble Baroness, Lady O’Neill, raised a very important and significant question: are English higher education providers public sector bodies? I know that the noble Baroness, earlier in our consideration of the Bill, asked about the definition of “English higher education providers”. I would be very happy to respond to her on the additional question on higher education providers as public sector bodies when we write to her in response to her first question. I hope she will find that acceptable.

The transparency duty, in contrast to the public sector equality duty, is deliberately discrete and narrowly focused on widening access to higher education by shining a spotlight on universities’ admissions records. These two duties are designed to be complementary. We expect the sector to comply with both duties wherever relevant. This will be made clear in guidance issued on the matter by the OfS.

I turn to Amendments 228 and 233. An access and participation plan is a condition of registration for those fee-capped providers charging fees above the basic fee level. That means that the OfS can apply sanctions for failure to comply with registration conditions. Let me make it clear that, in order to be approved, access and participation plans must include provision relating to equality of opportunity. Amendment 233 would have the effect of limiting efforts to widen participation through access and participation plans by reference to protected characteristics only, and this does not take into account the importance of action to support those suffering from other disadvantages, such as care leavers or people who are carers, or those with disadvantaged socioeconomic backgrounds entering higher education. I do not consider that there is benefit to be gained by duplicating reference to the Equality Act in this Bill, given that compliance with the Equality Act is already required by law.

On the other amendments, I assure noble Lords that we believe the Bill already delivers the policy intent behind amendments 236A and 236B. The OfS will be required, through Schedule 1, to provide an annual report covering all its functions. Given that the OfS will have a general duty covering equality of opportunity in connection with access and participation, we expect this to feature prominently in its annual report. Clause 36 allows the Secretary of State to direct the OfS to report on equality of opportunity issues if there are specific concerns.

I trust it is clear that the Government take very seriously equality of opportunity through this Bill and the duties on institutions set out by the Equality Act. In the light of my comments, I ask the noble Lord to withdraw Amendment 110.

[Lord Wallace of Tankerness]

My Lords, I am very grateful to all noble Lords and noble Baronesses who have taken part in this debate, particularly the noble Baroness, Lady Goldie, for her reply. In the noble Baroness’s first point she indicated that she would be willing to look at the issue of attainment, and she herself echoed the points that I made about the different levels of attainment between students, particularly male students from both white and BME backgrounds. There is an issue there and I am grateful to her for agreeing to look at it.

The noble Baroness also made the point that we do not need the whole range of personal characteristics; obviously, some were more personal than others. She made the point that in trying to promote transparency there might be a limited value where information is not always readily forthcoming. That is something I obviously want to reflect on and discuss further with the Equality and Human Rights Commission. It is a personal point; I am not saying that it is a killer point.

The point that the noble Baroness did make, and it was the one that I was trying to make too, was that there was a concern that some higher education institutions may well feel that by meeting their obligations under the transparency requirements, that would somehow mean that they met the public sector equality duty. She made it very clear that that was not the case: they are two separate things. The fact that she made it clear is helpful, but I think she will recognise the point that has been made, that there is still the opportunity for confusion.

The point which the noble Baroness, Lady O’Neill, made about what constitutes a public body was very pertinent. Obviously, it is accepted that HEIs in England are subject to that duty under the Equality Act, and this was only to put it on a par. An interesting question is whether those which are, perhaps, coming into the market and registered abroad would be subject to the same extent of equality duties under the 2010 Act. Certainly, my amendments would take away any dubiety in that regard, but it is still a point that probably needs to bottom out. The points made by the noble Lords, Lord Willetts and Lord Kerslake, are important; I have heard them rehearsed already at previous stages. I do not think they are particularly pertinent to this set of amendments because we accept and agree that the PSED actually applies at the moment. There would not be any extension in that regard.

With respect to the second set of amendments, about the participation plan, I hear that the Minister’s point is that it might actually be limiting to go down the route of the definition that I have proposed. I certainly would not wish to limit plans brought to increase participation. Again, that is a pertinent point that I would like to reflect on. This debate has been useful, and some important issues have been raised, but in the light of the Minister’s comments, I beg leave to withdraw the amendment.

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[Baroness Goldie]

My Lords, I thank the noble Baroness, Lady Garden, and, in his absence, the noble Earl, Lord Listowel, for bringing forward these amendments, which would expand the scope of the transparency duty. The amendments raise important issues, and the Government recognise that there has been considerable interest in including the categories of information proposed.

As noble Lords know, we must always seek to ensure that new legislation is balanced and proportionate. This is paramount where we are introducing a new duty on independent and autonomous bodies such as HE providers.

We know that the numbers of students with the characteristics covered by the amendments progressing to higher education are too low. I can see that the amendment is about changing those statistics, but imposing further requirements under the transparency duty is not the best way to achieve it.

The transparency duty is designed to be a minimum requirement, and we are prioritising those areas that we recognise as having the greatest need for a renewed focus in widening participation, where the data are comparable and the publication of those data is not too intrusive. We are mindful, too, of the importance of accurate data—a point to which I referred in my previous comments to the noble and learned Lord, Lord Wallace of Tankerness—to ensure that the transparency we are aiming for is successfully achieved. The data also need to be readily comparable so that we know that comparisons drawn between institutions are fair.

Universities are taking a number of steps to address the important issue of the low number of care leavers in higher education through measures such as all-year-round accommodation, substantial cash bursaries and tuition fee waivers, and providing a named contact. Care leavers are a priority group for the Director of Fair Access, and four-fifths of access agreements detail the activity that universities are undertaking to support care leavers into and through higher education.

However, in terms of the transparency duty, the data collected on care leaver status are self-declared and so are not completely comparable, which makes it difficult to draw reliable conclusions from the data available. In addition, individuals do not necessarily wish to disclose their care leaver status when they apply for university, which is their choice. Furthermore, they may not wish to have that information published where it may be possible to determine who that individual is because of the relatively small numbers involved. That is a personal matter, and we must respect their right not to have that information made public. Equally, where this information is suppressed due to small numbers, it would further limit the comparability of the data.

Amendment 115 refers to disability. On disability in particular, we cannot currently be completely confident in the comparability of the data. UCAS and HESA collect data on disability, but again this is self-declared and not exclusively focused on registered disability so it may not provide an accurate depiction of disability across institutions. Additionally, some students may choose not to declare their disability and we must respect that because, again, it is a personal choice.

Amendment 113 covers age. We have chosen not to include age as a category at this time due to the volume of activity in this area already taking place. Many mature students study part-time, so we have introduced tuition fee loans for part-time study and intend to introduce part-time maintenance loans so that the way one chooses to study does not impact on the support available. It is worth noting that HE providers are already subject to specific legal duties in relation to age and disability under the Equality Act 2010.

The amendments raise important and interesting points and we will reflect on them.

[Lord Willis of Knaresborough (LD)]

Will the Minister reflect also on the fact that the HESA statistical database is not available for public scrutiny? Many issues which should be in the public domain are not because one cannot access the information other than through a particular route and by paying fees. Even our own Library here in the House of Lords cannot access that database without paying for it. That information should be in the public domain. When reflecting on these amendments, will the Minister also look at ways in which the HESA database could be made much more readily available?

[Baroness Goldie]

I am very grateful to the noble Lord for raising that point; it is something of which I was unaware and it seems an important matter. We will reflect not only on the comments that he has just made but on those made by others of your Lordships during the debate. I undertake to write to the noble Lord on the specific point which he raised.

[Lord Wallace of Tankerness]

The Minister spoke again about the problems of self-declaration in relation to disability and personal data, but personal data on ethnicity and gender are also self-declared. Is she saying that data in those two regards are much more reliable than they are for disability and, if so, what is the Government’s position? By how much are they more reliable? Should we not accept that it is the same principle?

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[Baroness Goldie]

For reasons which I think are apparent to us all, there are issues of sensitivity there. It would be ill-advised either to disregard or underestimate the significance of that sensitivity. I repeat that interesting and important points have been raised. We will reflect on them. On the specific issue raised by the noble and learned Lord’s colleague, I undertake to write. I ask the noble Baroness to withdraw the amendment.

[Baroness Garden of Frognal]

My Lords, I thank the Minister for responding, in particular to the amendment in the name of the noble Earl, Lord Listowel, who as we all know is a tremendous champion for those in care. All the amendments aim to make it a more level playing field for groups which have not hitherto had the same advantages. I also thank my noble friend Lord Willis and my noble and learned friend Lord Wallace for their interventions—my noble friend Lord Willis raised an interesting issue about the data of HESA not being accessible. We shall all seek ways of increasing the engagement of these particular groups in higher education. In the light of the Minister’s remarks, I beg leave to withdraw the amendment.

Higher Education and Research Bill

Baroness Goldie Excerpts

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

Moved by

[Baroness Goldie]

123: Schedule 2, page 76, line 36, after “be” insert “equal to or”

[Baroness Goldie (Con)]

My Lords, as the Government have set out previously in this and the other place, as well as in publications, our policy is that increases in tuition fee limits must be earned by demonstrating excellent teaching quality through participation in the teaching excellence framework.

These amendments correct a small drafting error in Schedule 2 to ensure that this policy is achieved. Under the amended wording, a sub-level amount can be set at the same level as the floor level, meaning that the Secretary of State can create a fee limit that applies specifically to providers that do not participate in TEF—either because they choose not to, or because they are ineligible—and set that limit as equal to the floor level.

Let me be clear: the floor level is the baseline, minimum fee limit, which is £6,000 for those providers without an access and participation plan and £9,000 for those with an access and participation plan. We have no plans to increase these values. Within the sphere of high-quality rating, providers who achieve a gold or silver rating will get a 100% inflationary uplift, and those who achieve a bronze rating will be recognised with a 50% inflationary uplift. Without these amendments, any sub-level amount assigned to non-participating providers would need to be greater than the floor amount. That would mean that these non-participating providers would derive benefit for no reason. That is unfair and contrary to our policy intent. That is why I am speaking to these amendments. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, will the noble Baroness reflect on the point she made as she concluded her remarks when she said that the fees would remain at £6,000 and £9,000 respectively, and gave the reasons for the two different fees and the reason for the amendment? She went on to say that the Government had no plans to increase these. She knows that is not right. A statutory instrument has already been laid—a negative instrument—which we shall debate shortly in this House which seeks to increase these figures by inflation to quite significant sums above £6,000 and £9,000. Will she confirm that that is the case?

As I am on my feet, and reflecting back on the debate we had on the first group of amendments this evening, I say that it was clear from the Minister who responded that he was making play of two reasons why he would not consider the arguments made all around the Committee on the link between the TEF and the increases in fees. One of them was simply that it was a good cause but he repeated the other several times and ended up having to defend it quite vigorously—namely, that this matter was contained in the Conservative Party manifesto at the last general election. The dinner break followed very shortly afterwards and I checked the Conservative Party manifesto. I am afraid that he is wrong on that point. The manifesto says:

“We will ensure that universities deliver the best possible value for money to students: we will introduce a framework to recognise universities offering the highest teaching quality; encourage universities to offer more two-year courses; and require more data to be openly available to potential students so that they can make decisions informed by the career paths of past graduates”.


It does not make a connection between the TEF and the quality of the courses, which would mean that only those with a good rating in the TEF would get increased fees. I therefore ask him to withdraw that when he next has the opportunity to do so, because he has misled the House a little on this. It does not matter in the great scheme of things—he was going to reject the amendment anyway—but we should have the right reasons for doing that, and that was not the case.

[Baroness Goldie]

My Lords, briefly, in response to the noble Lord, Lord Stevenson, on the specific matter he raised on the values for the floor levels, I can confirm that there are no plans to increase the floor level—I want to make that clear—and the inflationary uplift will be at the higher level. I hope that that clarifies the position.

Amendment 123 agreed.

--- Later in debate ---

[Baroness Goldie]

My Lords, I thank noble Lords for tabling a set of amendments relating to admissions. By way of preface, I listened carefully to the points made previously by your Lordships about the importance of retaining the independent and autonomous state of higher education providers. Noble Lords will recall that I yearn to see something comparable in Scotland, but I am afraid that we have lost that.

One consequence of independence is that providers are then responsible for their own admissions decisions and, rightly, government has no power to interfere in this area. Universities are best placed to identify the candidates with the talent and potential to succeed at an institution or on a particular course, and the Bill makes it clear that this will continue. Indeed, Clause 2 ensures that the Secretary of State must have regard to the need to protect the freedom of higher education providers to determine their own admissions criteria. Clause 35 carries forward an important requirement from existing legislation that, like the current Director of Fair Access, the OfS will have a duty to protect academic freedom and institutional autonomy over admissions.

No doubt concerns would be raised across this House and the sector about the OfS overstepping its powers if a requirement regarding admissions were included in the Bill, and those concerns would be justified. The OfS will, as part of its broader duties, want to look strategically across the HE sector and to consider the implications arising from the admissions cycle. However, we would expect the OfS to work with bodies such as UCAS to ensure that the right information was available to inform a broader picture.

UCAS is a charity, established by HE providers, with a clear role in university admissions. It can and already does undertake and publish reports into admissions on behalf of the sector. Through the Bill we are introducing a transparency duty on registered HE providers, requiring them to publish application, offer and drop-out rates broken down by socioeconomic background, ethnicity and gender, and to provide the OfS with these data.

My noble friend Lord Lucas raised post-qualification applications—an issue that has been around for a number of years. As I said earlier, the autonomy of institutions in relation to admissions is enshrined in law. The current system has many strengths, including that prospective students can apply after they have their results, through clearing.

UCAS conducted its own review of the introduction of post-qualification applications and gave a clear recommendation not to move to this system. Should further investigation of the system be desired, it is for higher education providers to instigate it. The OfS could potentially be involved, but I suggest that such a requirement should not be set out in legislation.

The Government agree that part-time and adult education bring enormous benefits to individuals, the economy and employers. Our reforms to part-time learning, advanced learning loans and degree apprenticeships provide significant opportunities for mature students to learn. Allowing new providers to enter the system should result in greater choice of HE provision for part-time and distance learning, which can greatly assist mature learners. Under Clause 2, when carrying out its functions the OfS has a general duty to have regard to the need to promote greater choice and opportunities for students, which would include more choice and opportunities with regard to part-time and mature provision. However, it is important that we keep the duties of the OfS broad and overarching so as not to overburden the organisation and so that we can enable it to function efficiently and flexibly.

Having regard to what I have just said, I very much hope that the noble Lord will feel able to withdraw Amendment 128.

[Lord Lucas]

My Lords, I am sorry that the Government take the attitude they do to post-qualification admission. It seems to me that this is something in which schools and students should have a voice and that it should not be entirely down to universities. It distorts school education very substantially and therefore I think that it is not only the interests of universities that should be taken into account. However, I accept that the Government think differently.

Since the noble Baroness is in the business of dispensing bad news to me at the moment, can she confirm the rumour that we are to sit well past midnight on Monday?

[Baroness Goldie]

I have always regarded the noble Lord as my friend and I shall do my best not to alienate that happy relationship. Your Lordships will be aware that this is very significant legislation— I understand that it is unprecedented in terms of amendments. Although I have no precise timings for Monday, it may help your Lordships to know that I am given to understand that we can anticipate a long sitting, but until when, I cannot be precise about.

[Lord Stevenson of Balmacara]

I am sure that the usual channels will come up with an equitable solution for all concerned. I think it would be for the benefit of the House, and indeed for our ability to cope, if we all cut down our speeches quite a lot more than we are currently doing, but that is not a matter for debate at the moment. I will do my best to live up to my aspirations, although I am not very good at it.

I simply want to say that I agree with what the Minister said about the amendment because I did not ask for any additional burdens to be placed on the OfS or any issues to be raised about the autonomy of individuals and institutions and their admissions. What I asked for was that some regard should be given by OfS to commissioning regular reviews, in consultation with those bodies, in order that there be better information about the advantages of part-time and mature student routes and courses that would appeal more to those with more flexibility. However, I think that enough has been said on the record to make sure that this issue has been picked up. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Willetts]

My Lords, I welcome particularly the amendment proposed by my noble friend Lord Lucas. The official doctrine has always been that a university can go bust, but I was never able to contemplate the political feasibility of a scenario where a padlock is swinging on the gates of a university, with a group of students outside desperate to go in for their history lectures and being told, “I am terribly sorry; we’re closed”, while tumbleweed blows through the campus. Indeed, Margaret Thatcher faced this in 1985 in Cardiff. She was not willing to allow University College, Cardiff to go bust. I think that we can accept that we are functioning in an environment where in reality it will be very hard just to say, “Bad luck. You’ve done 18 months of a course and it’s come to an end”.

The question is how one should address that, which gets to the heart of some quite important issues in the Bill. There has been a fashionable doctrine for a few years of the ABTA solution—and some kind of scheme like that could be made to work—but in my experience the closest we got to this problem was clearly HEFCE. It was acting as the co-ordinator, organiser and convenor. It might have been that students had to be located at several other universities and it would get different universities to make their contributions so that students would be educated. If we get into such a scenario—my noble friend Lord Lucas is absolutely right that we have to contemplate it—it is very hard to see how it could be resolved without some convening power for the OfS, which, as I have said in other contexts in this Committee stage, is in many respects the son of HEFCE. A lot of our problems will be resolved if we think of it as the son of HEFCE. My noble friend’s proposal to make it clear that there is some legal responsibility for OfS must be an important and credible part of any solution. It is not credible to imagine that the matter could be addressed via an ABTA-type scheme.

[Baroness Goldie]

My Lords, I will try to abbreviate my remarks somewhat but this is a very important group of amendments so I want to try to genuinely address some of the points that have been raised. I am grateful to noble Lords for their contributions. Student protection and experience are important issues.

Student protection plans are important. They should be robust and offer real protection to students, should their provider or course close. The Office for Students will have overall responsibility for creating and issuing specific guidance on student protection plans. That is an important development and a very important safeguard. We expect this guidance to include the content, the process for approval and review, and the likely triggers for implementing student protection measures. The guidance will be developed as part of the regulatory framework, in consultation with the higher education sector, including bodies representing the interests of students.

In relation to the specific point raised by my noble friend Lord Norton, it is absolutely right that the OfS consults on this issue fully, and it should set out further details and best practice in guidance. We tabled an amendment to the Bill in the other place to require student protection plans to be published and therefore brought to students’ attention. That is an important step to ensure transparency in relation to these plans.

I agree with the noble Lord, Lord Stevenson, that protection from financial loss could be an important function of some student protection plans, as could measures to enable students to transfer or continue their studies, perhaps within the same institution but in a different faculty or department. Student protection plans are likely to include a diverse range of measures to protect students, reflecting the diversity of the higher education sector, together with a diverse range of possible triggers for a student protection plan, including suspension of registration.

The noble Lord, Lord Stevenson, asked why we do not have the same degree of reassurance in this Bill as in the further education Bill. The different mechanisms reflect the different characteristics of students in higher and further education as learners in these two spheres. But both approaches are designed to protect the interests of students. That is something we must not lose sight of.

The noble Lord, Lord Stevenson, also raised the issue of strengthening registration conditions for new providers. That is an important matter. In determining initial and ongoing registration conditions, the OfS will assess, among other factors, a provider’s academic track record and—this is very important—its financial sustainability. I assure the noble Lord that where the OfS determines that a new provider represents a higher level of risk, it must, under the provisions already included in Clauses 6 and 7, apply more stringent, but proportionate, conditions to that provider. There is a facility to recognise where there may be an element of risk.

I wholeheartedly agree with the views expressed by the right reverend Prelate the Bishop of Ely in his amendment, which were very helpfully expressed by his colleague, the right reverend Prelate the Bishop of Portsmouth. I thank him for being with us this evening. Student protection plans should be mindful of additional or particular protections that may be required for disabled students or those with special educational needs, which the noble Baroness on the Liberal Democrat Benches referred to. Again, this could be made clear in the OfS guidance.

Turning to Amendment 163 in the name of my noble friend Lord Lucas, I want to make it clear to your Lordships that there are currently no direct regulatory barriers to students moving between universities. Supporting students who wish to switch higher education institution or course is an important part of our reforms.

In relation to student experience, which the noble Lord, Lord Stevenson, raised, there is no universal neat-fit template that covers all situations because student populations vary hugely in their requirements. As independent and autonomous organisations, higher education institutions are best placed to decide what experiences they can and want to offer. I do not think that that should be prescribed by government.

Finally, the noble Lord, Lord Stevenson, also raised the question of involving students in access and participation plans. I reassure the Committee that the Office for Fair Access currently expects providers to include a detailed statement on how they have involved and consulted students in the development of their plan, and the Director of Fair Access has had regard to these when deciding whether to approve a plan. Providers are encouraged, for example, to set out where students have been involved in the design and implementation of financial support packages. Some student unions run information, advice and guidance sessions to explain the support packages to ensure maximum take-up from eligible students. We fully expect this successful approach, which has developed over a number of years, to continue.

I hope these comments reassure your Lordships that these issues have not fallen off the radar screen. They are very much before us and I therefore ask the noble Lord, Lord Stevenson, to withdraw his amendment.

[Lord Willetts]

My Lords, my noble friend Lord Lucas can speak for himself but it is worth focusing on this scenario for a few more minutes. I would be grateful if the Minister could take us through what she expects now to happen if a university gets into difficulties. I can tell her that it will end up on the Minister’s desk within a matter of hours. In my view, the Minister needs to have the power to ask the OfS to do things which ensure that those students continue to get higher education. That could supplement ABTA-type arrangements or whatever. I would be grateful for her assurance to the Committee that either the powers already exist in the legislation as drafted, or that the Government will support measures to ensure there are those powers. There will otherwise be quite a serious gap. We know from other areas, including health service legislation, that it is a fantasy to imagine, “Don’t worry, we can just leave it all to the individual universities and their ABTA arrangements—it is nothing to do with the Minister”. It will end up on the Minister’s desk and we are doing a disservice to future Ministers if they find themselves in this situation and ask, “Why on earth did nobody give me or the OfS any power to do anything in a situation like this?”, where clearly public action to convene is expected as a minimum.

[Baroness Goldie]

I thank my noble friend for raising significant points. Let me try to put his mind at rest. I hope he will accept that the whole thrust of the Bill is to create not just new territory for the way in which we deal with the provision of higher education in England but a set of new relationships, not the least of which is putting the student right at the core of higher education provision—perhaps doing so in a way which we have not seen before. That is to be applauded. The constitution and creation of the OfS develop a body which is not just a paper tiger. This body is given significant, meaningful and tangible powers in the Bill—powers that it will be required to deploy and use if difficult situations arise.

My noble friend posed the specific question of what will happen to students if a higher education institution goes bust. First, it is intended that the OfS will monitor the financial health of institutions and require student protection plans to be implemented if a provider is at risk of being unable to deliver a course. The OfS will not be operating in some silo or vacuum. It will actually be a hands-on and in-touch body, with its finger on the pulse to know what is happening. It will have an early indication if there are reasons for concern.

For example, if in the unlikely and very unhappy event that a higher education institution goes bust, existing students might be taught out for the remainder of their course or academic year, with provision to transfer to another institution having banked their existing credits. It would entirely depend on the terms of the student protection plan but that is indicative of how these plans have to be broad, far-reaching and flexible. The core of all this is that at the end of the day, they must provide that underpinning protection to which students are entitled.

It is currently the case with HEFCE that the Office of Students may be able to support an institution while it implements a student protection plan. It might, for example, reprofile loan repayments or provide short-term emergency support. This is very much a nuclear option because instances of a provider suddenly and without warning exiting the market completely are likely to remain extremely rare. We would expect student protection plans to be implemented as far as possible—for example, measures to financially compensate students—and the OfS to support students in transferring to alternative institutions. There is a variety of solutions, remedies and initiatives which could be deployed, and it is very clear that the powers that will be available to the OfS will make such deployment perfectly practical, reasonable and manageable. I hope that reassures my noble friend on the issues which he raised.

[Lord Stevenson of Balmacara]

I have to say to the Minister, who cannot see behind her, that her noble friend was not looking that reassured.

[Lord Lucas]

No, I do not find myself reassured. I very much hope my noble friend may be able to write to us. The sort of protection plan she is talking about is starting to look extremely expensive. Are they going to hold a year’s fees in reserve? If we do not have some kind of mutual arrangement, each course will have to look out for itself; that is going to be extremely expensive and make new initiatives very difficult to finance. I would really appreciate a properly worked example of what happens when a university ceases to trade at relatively short notice.

[Baroness Goldie]

I am very happy to undertake to write to my noble friend. I have so much of interest to tell him that it will be a long letter.

[Lord Stevenson of Balmacara]

As I was saying, I do not think the Minister quite got to the heart of the question asked by the noble Lord, Lord Willetts, about what the Minister does when this letter arrives on the desk. I think the noble Baroness managed to avoid mentioning Ministers at all. We take on board what the Minister is saying about the role of student protection plans and the institution in this. She is right to say that this has to be settled long in advance and we have to know what we are doing, but there is the question of realpolitik. When these matters arrive courtesy of the Daily Mail and land on the Minister’s desk, she is going to have to have a better answer than that. I suspect that the answer is that the power to direct the OfS will remain in the armoury given to the Minister. Although we have some reservations about that, in exceptional circumstances that will obviously be the right thing to do. I was pleased to hear that, like us, the Government accept that if the student is at the heart of this new reformed plan for higher education, the student has to have some rights and responsibilities, and they have to be real and exercisable. The letter should try to cover that journey in these extreme situations.

I am, however, left with Amendment 138 and its drafting. I think the Minister said that it is not necessary to bring it into the current Bill from the Technical and Further Education Bill because the institutions are different. These institutions will probably be offering a similar number of courses around degree apprenticeships, and higher education is often provided in further education situations, so I do not think that argument sustains itself. Will the Minister write to us about the reasons for not including these rather well-worked-through arrangements, which seem to answer all the questions she has been asked, as they exist in legislation which we are about to consider and could, with very little effort, be copied into the current Bill? I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Watson of Invergowrie]

My Lords, as someone who is not an academic, I find it quite surprising that amendments of this sort should be necessary, but given that they have been moved and supported by very long-established academics, it is clear that there is an issue here. I thought that that blind-marking assessment was what happened all the time in the established universities, but it may not be the situation in some of the newer or smaller providers, and the question is what will happen with some of the future providers. To me, this is something any student should have a right to expect. Nobody, whatever their background, should be discriminated against, consciously or unconsciously, by whoever is involved in marking an assessment. If we are being told by academics, as it appears we are, that these amendments are necessary, I would certainly want to support them. I hope the Minister will take it in good faith that they are necessary.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Desai, for tabling these amendments, which speak to concerns about unconscious bias in admissions and assessment, which I know we all take very seriously. As we have established, institutional autonomy is a vital principle for higher education, and academic freedom will continue to be protected through the Bill. I suggest the matters raised in these amendments are for individual institutions to take their own decisions on, as independent and autonomous bodies.

Amendment 133A would add a new requirement to Clause 13 to ensure that judgments made by higher education staff when making an assessment of a student’s work are not pre-determined by knowledge of the student whose work is under consideration. Under the current quality system, this is covered by the UK Quality Code. Expectations and guidance to ensure that judgments of student performance are based on the extent to which the student is able to demonstrate achievement of the corresponding intended learning outcomes are of course the essence of what is intended by that quality code. Indeed, all providers are expected to abide by the requirements of the quality code, and that will continue under the OfS. We would not want to undermine the flexibility of providers to achieve a fair assessment by introducing a new level of prescription, which the amendment would do. We do not feel that would be in the best interests of providers or indeed of students.

Higher Education and Research Bill

Baroness Goldie Excerpts

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

[Lord Watson of Invergowrie]

My Lords, we support the amendments in this group in the names of the noble Baronesses, Lady Brown and Lady Wolf. It is appropriate that until the OfS has issued a monetary penalty notice to a provider, has issued a notice to suspend a provider’s registration, or has issued a notice to remove a provider from the register, the OfS should keep its intentions and the reasons for them confidential, as already stated by the noble Baroness, Lady Brown.

Confidentiality is an important factor in situations such as these and it is necessary to protect against that all too common suspicion that there is no smoke without fire. Even if exonerated, an institution may never completely recover its reputation, and the ensuing stigma could have serious effects on its ability to attract students, academics and research funding. There could be significant risks in such situations, not just to the reputation of the individual provider but to the higher education sector as a whole. For that reason, these amendments are necessary.

[Baroness Goldie (Con)]

My Lords, I first apologise for my voice. I have a heavy head cold and my remarks may be more impenetrable than usual.

I agree with the noble Baroness that it is important to protect provider reputation in the early stages of an OfS investigation while evidence is being gathered. We recognise that even the knowledge that the OfS is considering sanctions could have a detrimental effect on a provider in a number of ways. I hope I can reassure your Lordships that the Bill already contains safeguards to protect the interests of providers in the circumstances outlined, and that it is moreover highly unlikely to be in the interests of the OfS to disclose that it is considering sanctions.

When the OfS is considering action as a result of a perceived breach of registration conditions, the primary objective is generally to achieve compliance. I am sure your Lordships agree that the desired outcome, for the benefit of students and the provider alike, is that the provider takes the actions necessary to ensure compliance with the conditions of registration that have been placed on it. Providers are expected to be given guidance and time to enable them to take corrective action or make further representations to the OfS. Only in very serious circumstances would we expect sanctions to be imposed. Disclosing details of possible sanctions during this sensitive period, when the OfS has yet to decide to take action, and when discussions, representations, remedial action and evidence-gathering may be ongoing, would not generally be either appropriate or helpful.

I assure your Lordships that under the Bill, in Clause 2, the OfS must have regard to the principles of best regulatory practice and act in a proportionate, accountable and consistent manner. As the noble Baroness is aware, there are many regulatory bodies covering a wide range of areas of activity in the UK which do indeed implement and deploy that best practice. As such, the OfS, like any other public body, would not look to disclose information prematurely or unnecessarily that could have an adverse effect on a provider before a decision was taken. To do so would not be in accordance with regulatory best practice. Let me be clear: if a decision has been taken to impose a sanction, we would expect the OfS to consider making it a specific condition of registration that a provider’s governing body advises students promptly and accurately of the OfS’s sanctions. The OfS itself may also look to publicise the details if appropriate, especially where this may be in the interests of students.

I hope that this reassures the noble Baroness and I ask her to withdraw this amendment.

[Baroness Brown of Cambridge]

I thank the Minister for her reassurance that we have a common intent in how the Bill expects things to work and how these amendments try to ensure that things work. I hope she may consider adding a few extra words to the Bill, but I am very pleased to hear the reassurance and, in light of it, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Baroness Goldie]

145: Schedule 3, page 79, line 14, leave out from “when” to end of line 16 and insert “—
(a) an appeal under paragraph 3(1)(a) or (b), or a further appeal, could be brought in respect of the penalty, or(b) such an appeal is pending.”

[Baroness Goldie]

My Lords, I shall speak to the government amendments and wait to hear from the noble Lord, Lord Judd, before responding to his amendment. These government amendments relate to the various appeals processes contained in the Bill in relation to a decision by the OfS to deregister a provider, impose a monetary penalty, vary or revoke degree-awarding powers or revoke a university title. The amendments address points of inconsistency and are intended to ensure a smooth and clear appeals process. I emphasise that the amendments clarify and put beyond doubt various procedural points, including that no decision can come into effect while any appeal, including a further appeal, can be brought or is pending; that a provider may appeal against the decision itself, the date on which it comes into effect or both; and that a provider may appeal, in relation to degree-awarding powers and university title only, the exact sequencing of a decision, an appeal and any order which brings the decision into effect. These amendments further align the various appeals provisions across the Bill. They are not a change of policy but simply to try to iron out inconsistencies. I beg to move.

[Lord Judd (Lab)]

My Lords, I am very interested to find my amendment surrounded by government amendments, and I am not quite sure whether to interpret that as good will from the Government towards my amendment or what. Due process sounds an awfully boring phrase, but it is often terribly important. My amendment is very brief and to the point and is about due process. I should remind the Committee that I am involved in the governance of three universities—the LSE, the University of Newcastle and the University of Lancaster. The rights to appeal in the Bill are somewhat patchy. In particular, there is no right to appeal against a decision not to register an academic provider or to challenge the suspension of registration. Decisions over the registration, suspension or deregistration of academic institutions represent significant examples of the exercise of discretionary power by the Office for Students. It seems only right that in the exercise of these powers the Office for Students is properly accountable, and my amendment seeks to ensure that. It is not right that it should be accountable to an appeals process for decisions about removal from the register and yet will not have the same accountability for decisions to suspend or not to register. This conforms to the norms of public law that bodies should be properly accountable.

[Lord Watson of Invergowrie]

My Lords, it seems to me that my noble friend Lord Judd’s suggestion would be a very useful addition. The comments of the noble Baroness, Lady Deech, just now support that.

In response to the previous group of amendments, the Minister stated that under Clause 2(1)(f) the OfS must give due consideration to “best regulatory practice”. Surely, offering somebody the opportunity to appeal a decision, which could have pretty far-reaching consequences, cannot be described as anything other than best regulatory practice. On that basis, I hope the Minister will accept the amendment in the name of my noble friend Lord Judd, along with the Government’s amendments, because it is undoubtedly a question of best regulatory practice.

[Baroness Goldie]

My Lords, I note that a similar amendment to that proposed by the noble Lord, Lord Judd, has been tabled in relation to the provisions on degree-awarding powers, which we will come to in future sessions.

The appeals provision in the Bill has been drafted to cover specific scenarios where the OfS makes a decision that deprives providers of a status powers or imposes a monetary penalty. I understand the sincerity behind the amendment tabled by the noble Lord, Lord Judd, but he is proposing something additional: extending the appeals provisions to unsuccessful applications to join the OfS register.

I was interested to hear the noble Baroness, Lady Deech, say that her apprehension is that the justice system would become overloaded without this amendment. The Government’s contention is that extending the appeals provisions to unsuccessful applications could achieve that very consequence, which would be undesirable and could also encourage ill-prepared applications. But let me provide some reassurance—

[Lord Watson of Invergowrie]

It is not about just unsuccessful applicants but situations where a registration is suspended, having already been given.

[Baroness Goldie]

I thank the noble Lord for his intervention. I might observe that there is a distinction: suspension is a temporary compliance measure. Although there is no formal right of appeal, the Office for Students is required to notify an institution of its intention to suspend registration and allow 28 days for the institution to make representations. So there is a process, which means that the institution at risk of suspension has a right of comment and an opportunity to take remedial action.

[Lord Watson of Invergowrie]

I realise that the Minister is a lawyer—that is understood—but she seems to be making a significant distinction. It is not just about having a right to comment, saying “I wish you hadn’t done that”. This is about the right to appeal a decision—building an appeal and trying to have it overturned.

[Baroness Goldie]

I cannot claim to be a lawyer— I am a very long since defunct lawyer—but what I am endeavouring to do, without reference to legal parlance, is to draw a distinction between the scenario I have outlined, where we understand that appeals could be competent and would be important, and that outlined by the noble Lord, Lord Watson. We think there is a difference between the scenario I have outlined and suspension, which by its very nature is an interim process—either it will be dealt with or it will not be dealt with.

I will try to provide some reassurance. Where the OfS proposes to reject an application to the register, or indeed to suspend a provider’s registration, the provider is afforded a minimum period of 28 days to make further representations to the OfS before the final decisions are taken. In these circumstances, I asked the noble Lord, Lord Judd, to consider not moving his amendment.

--- Later in debate ---

[Lord Stevenson of Balmacara]

My Lords, this is a further development about quality assessment—this time, focusing on the committee. First, picking up on the remarks made at the conclusion of the previous debate by my noble friend Lord Hanworth, I agree with him that some issues remain in the mind after the Minister responded to that debate. I suggest to the Minister that it might be helpful if we could have a little more detail, when he has had time to reflect on the debate, on how “independent” is defined. If he is correct in saying that the OfS has the responsibility for assessment of standards, but that an independent committee of the OfS is set up in order to maintain the threshold standards in the institutions and the quality of the teaching that is provided in those institutions, it needs to be clearer than it is to me—and I think to many people—how exactly that independence is to be guaranteed. In conventional terms, if you are a member of a committee of a body, you are subject to the rules and regulations of that body. It seems to me on that basic analysis that the independent committee is not independent but a creature of the OfS operating in an independent way but not totally independent. These matters are perhaps too abstruse to debate today. I would be grateful if the Minister might focus on this in a letter, and I look forward to receiving that from him.

Moving to Amendment 174—and to Amendment 203, which is primary in this group—I will not speak to the clauses stand part because the issues raised there are reflective of the earlier debate and the clauses would have had to be removed, I think, had those amendments been accepted. The focus of this group is the familiar issue that if we are having an independent body within the OfS, but separate in some magical way from it, it should have its own focus and functions. We suggest in Amendment 174 that at least one member of the quality assessment committee should be representing the interests of students. We also think that the interests of staff, and higher education staff more generally, should be engaged as well. I beg to move.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Stevenson, for his contribution. This debate is on clauses that lay the foundations for a risk-based, co-regulatory approach to quality assessment. That is important, as the noble Lord has rightly conceded. As set out in the higher education White Paper, we believe in the principle of co-regulation, which the BIS Select Committee also endorsed strongly in its report earlier this year, saying:

“We believe it essential that the quality assurance of universities should remain administratively and visibly independent from Government or the new regulator”.


Turning to the amendments, I thank noble Lords for raising the importance of having staff interests fully represented in the quality system. That does matter. I turn first to the amendments concerning student representation on the OfS quality assessment committee. First, I reassure noble Lords that students are at the heart of our reforms. The OfS will bring together the regulatory levers that will enable us to improve quality and allow students to make informed decisions. For that reason, we listened to points raised in the other place and amended Schedule 1 to the Bill to ensure that at least one member of the OfS board must have experience of representing or promoting the interests of individual students or students generally.

The quality assessment committee will play a similar role to the current quality, accountability and regulation strategic advisory committee, established under the Further and Higher Education Act 1992, which advises HEFCE about the way it undertakes its quality assessment functions. HEFCE’s committee currently includes direct student representation. Students are also represented on the QAA’s board of directors, the QAA has a student advisory board, and students are included in review and scrutiny processes for DAPs. I assure your Lordships that we see no reason why such student representation would not continue in future. We would not want to reduce the future flexibility of the OfS or the designated quality body to respond to future changes in the nature of the sector. It is better to allow the OfS discretion over the membership of the quality assessment committee. To be clear, we would expect this to include people who can represent students, unless there are some very strong arguments for not doing that.

On the amendments to Schedule 4 regarding the views of higher education staff, again, I hope I can reassure your Lordships that, given the way the sector currently engages its staff, we would absolutely expect higher education staff to be involved in consultation. These amendments would introduce unnecessary additional complexity. I realise that that is possibly not the consequence of the changes but I will try to reassure the noble Lord, Lord Stevenson. We would expect higher education staff to be actively engaged through their provider or by directly engaging with the OfS in any consultation. Of course, the OfS is not precluded from adding to the list of people it consults.

Amendments 204 and 205 return to the theme of standards, on which we have already had a thought-provoking debate. Noble Lords will recall that the Government have set out that this is an issue on which we are actively considering the views that have been raised in this House. I will therefore be brief in summarising that under no circumstances do we want to undermine the prerogative of providers in determining standards, but we want providers to meet the standards that are set out in a document endorsed and agreed by the sector, currently embodied by the frameworks for higher education qualifications.

The standards should be those that are set with the sector, rather than prescribed narrowly within legislation. The amendment limits the standards to be embraced in the consideration of whether a quality body is appropriate to be designated, so that rather than referring to standards applied to higher education in general, it refers to the standards of higher education provided for the purposes of registration—a narrower definition. Our legislation is deliberately not this narrow because of other important functions the designated quality body would undertake under Clause 23, such as baseline checks for degree-awarding powers. Amendment 205 seeks to amend Schedule 4 to clarify that the definition of standards that applies is that within Clause 13. I reassure the noble Baroness that this is already the case under Part 3 of Schedule 4. For these reasons, I ask that Amendment 174 be withdrawn.

[Lord Stevenson of Balmacara]

My Lords, I thank the Minister for her comments and for engaging so fully with these issues. I look forward to reading exactly what she said in Hansard. That is not because I could not understand her—she was very clear—I just want to reflect on how she made them and the way they came across.

It strikes me as ironic that a set of reforms aimed at putting students at the heart of the system is still struggling to try to keep students away from the points at which they can have the most impact on the key bodies and committees that will run the whole system. I am sure that this is more “small p” political than something that will in any sense organisationally be defendable, but it is wrong. The same approach applies to the question of whether the interests of staff should be involved. It is fine to consult people, but if they are intimately involved and care about it, seeing themselves at the centre, you will get much more out of them. I beg leave to withdraw the amendment.

Higher Education and Research Bill

Baroness Goldie Excerpts

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

[Lord Lucas]

My Lords, in moving Amendment 207 I shall speak to the other amendments in the group. The amendment covers a point I have made before—that it is essential that the whole sector should be represented in these organisations, not just the bits that the old universities like.

Amendment 392 would extend the Secretary of State’s access to information to anything they may be required or interested to know under any enactment, rather than just under the Bill.

Amendment 395 would appoint HESA—I suspect it is HESA being talked about at this point—to take an interest in people who intend to become students, not just people who become students, because a lot of the data they produce will be used to inform people as to whether to pursue a course, which is not really of much interest to those who have already taken that decision. It is important that HESA should focus on the students-to-be as much as on people who are already students.

Amendment 400 is an alternative to Amendment 207. I do not blame the current HESA regarding the provisions of Amendment 401. It is a trap that UCAS has fallen into of putting money and its constituent institutions ahead of the interests of students. This is a difficult thing with all such bodies, such as Ordnance Survey and others: the money tends to become the focus of what they are doing. It needs government to pull them back to focus on the interests of the country as a whole and, in this case, of students in particular. As long as the Office for Students has power to keep a body on the straight and narrow in this regard, I shall be quite satisfied that the Bill does not need this additional wording.

The anti-competitive conditions in Amendment 403 again look at the way UCAS has become a constraint on the way individual universities reflect students. Anti-competitive behaviour should always be subject to the very closest scrutiny by government to justify it. I would like to know that the OfS can keep its eye on that.

Amendment 407 goes with Amendment 395. I beg to move.

[Baroness Goldie (Con)]

My Lords, I thank my noble friend for drawing attention to a range of concerns relating to how the designated bodies will operate. I offer my assurance that we share the intention that legislation must support these bodies to be responsive to the needs of current and prospective students, and representative of the whole sector. I am happy to discuss these amendments further when we meet—although, given my state of health, I quite understand if he wishes to postpone that pleasure.

The role of the designated data body is to provide reliable and robust data on the sector for students, prospective students, the OfS and the sector itself. It will gather and make available source data, but it will not to be the sole source of information. The designated body functions most closely resemble those currently carried out by the Higher Education Statistics Agency—a sector-owned body that collects and publishes official data on higher education. I should clarify that the role currently under discussion is not related to the current role of UCAS. The designated body functions do not extend to running an admissions service. I reassure my noble friend that it is absolutely the Government’s intention that the interests of prospective students will be taken into account in the new system. The Bill already allows for this.

Amendments 398, 401 and 403 would create additional conditions for the designated data body to put the interests of students above that of higher education institutions and the commercial interest, and to ensure that data collection is not anti-competitive. The Government support the broad thrust and intent of the amendments, but believe that the current drafting is sufficient. The new data body will have a duty to consider what would be helpful to students and prospective students. However, it would not be in the spirit of co-regulation to direct the order of interests of the body.

I assure my noble friend that there is no intention to give the designated body a monopoly over data publication. We have a wide range of organisations involved in providing information for students, including specialist careers advice services aimed at mature students and career changes. We would not want any reduction in this choice for prospective students. While the Bill gives the designated body the right to receive information from providers, it does not give the body any right to prevent providers sharing those data with other organisations.

On Amendments 207 and 400, the Bill already requires that the persons who determine the strategic priorities of the designated data and quality bodies represent a broad range of registered higher education providers. The quality and data bodies are designed to be independent of government, so it would not be right to prescribe the make-up of a board in the way these amendments do. Rather, the bodies should have the ability to take a view on the mix of skills they require for the challenges they face.

The Government have confidence that they have the right balance here. In these circumstances, I therefore ask my noble friend to withdraw Amendment 207.

[Lord Lucas]

My Lords, I am very grateful for the answer my noble friend has given me and for her offer of further conversations if there is anything, on reflection, I think she has not covered completely. I beg leave to withdraw my amendment.

--- Later in debate ---

[Baroness Garden of Frognal (LD)]

My Lords, I have tabled Amendment 237 in this group, which complements the words of the noble Lord, Lord Stevenson. With the collapse in part-time student numbers, this would ensure that the Office for Students has a duty to ensure that equality of opportunity is not neglected for those whose only opportunity to study is via part-time provision and at a later stage in life. It would also provide an assessment as to whether the Government’s new initiatives, such as the extension of maintenance loans to part-time students, are having the desired effect of boosting current numbers.

We remain concerned throughout the Bill that the opportunities for mature and part-time students should not be neglected. Putting them in the Bill will ensure that their contribution to higher education is fully considered.

[Baroness Goldie]

My Lords, the Government agree that part-time education, distance learning and adult education bring enormous benefits to individuals, the economy and employers. Our reforms to part- time learning, advanced learner loans and degree apprenticeships are opening up significant opportunities for mature students to learn.

As part of the Bill, the OfS must have regard to the need to promote greater choice and opportunities for students, and to encourage competition between providers where it is in the interests of students and employers. By allowing new providers into the system, prospective students can expect greater choice of HE provision, including modes of provision, such as part-time and distance learning, which can increase opportunities for mature learners.

As was noted during our debate on 11 January, we know that in 2014-15, 56% of students at new providers designated for Student Loans Company support were over the age of 25, compared to 23% at traditional higher education providers. This is alongside the other practical support that the Government are already giving for part-time students, including providing tuition fee loans where previously they were not available. We have recently completed a consultation on providing, for the first time ever, part-time maintenance loans and we are now considering options.

Higher Education and Research Bill

Baroness Goldie Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 25th January 2017 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, this group of amendments deals with whether and on what basis the powers of the OfS should be strengthened to ensure that it takes over responsibility for many areas which are currently the responsibility of the Privy Council. I should like to make it clear that I have no particular brief for the Privy Council. I am not a member of it; I have never aspired to it, and I do not know how it operates, although I know it operates in relative secrecy. Having experienced some of the debates around the BBC charter renewal and press standards, I want to make it clear that I am not arguing for the Privy Council. It is probably sufficiently devalued—in the public mind at least—and fallen from grace so as not to be considered the way forward in future. I am arguing in this group of amendments for some level of scrutiny and oversight, reflective of what the Privy Council does at present, to be reinserted into this Bill.

Amendments 339, 340 and 341 reinsert the words “Privy Council” where they have been deleted. In Amendments 342 and 343 and in the whole of Clause 52, there are issues that need to be addressed by the Government in promoting the Bill further on this basis and which I hope will be picked up in debate and discussed.

The correspondence on this matter has been flowing. An issue raised by the Constitution Committee resulted in a letter being sent to the noble Viscount, Lord Younger, on 6 January. It raised questions, the response to which I assume is still in preparation. I have not seen a reply, although the noble Viscount may be able to tell us when he responds to this debate. It asked why a number of powers have been transferred from the Privy Council to the Office for Students. The Delegated Powers and Regulatory Reform Committee has also expressed concern about this and the degree to which the exercise of these powers will, or will not, be subject to parliamentary scrutiny. Indeed, we have discussed these thanks to the interventions of the noble Lord, Lord Lisvane, and other noble Lords on a number of occasions, and there are more to come.

Common to all who have commented on this issue is how removing powers from the Privy Council will, in effect, remove them from the oversight of a body that is independent of and separate from Parliament. In some senses, it can be regarded as being cross-party. It behoves those who wish to support the line of argument that I am taking to make suggestions as to how this might be resolved. It seems that the Office for Students is to be the all-singing, all-dancing regulator, both validator and remover of degrees—as we have just discussed—guardian of the flame and operator of all the functions relating to higher education. If this is so, it must not be given responsibilities which cannot be checked and covered if decisions are taken which are not appropriate. There must be some sort of appeals system. Its advice to the sector and to Ministers should, on occasion—and this will be relatively slight—be subject to the will of Parliament. The question is how.

The Privy Council stands as a surrogate for a process which requires Ministers and their advisers—in this case, the Office for Students—to defend the decisions they take in a way which at least opens them to wider scrutiny. I do not see—and it will be for the Minister to convince us if this is wrong—any position within the arrangements currently laid out in the Bill which will satisfy the high standard that the Privy Council is intended to confer on this mode of scrutiny. I beg to move.

[Baroness Goldie (Con)]

My Lords, let me first reassure your Lordships that we absolutely agree that a university title is valuable and prestigious, and that a university’s reputation needs to be protected. I am grateful for the opportunity to set out how we want to do this. I thank the noble Lord, Lord Stevenson, for raising some genuinely interesting points which I shall try to address.

As regards Clauses 51 and 52, currently there are three main legislative routes for English higher education providers to obtain university title. Two of these require consent of the Privy Council. The other requires consent of the Secretary of State under the Companies Act to the use of the word “university” in a company or business name. While the criteria are the same for all routes, in general publicly-funded higher education providers obtain university title from the Privy Council. Alternative providers can currently use only the Companies Act route. This creates a slightly complex and certainly inconsistent situation. The Government want to achieve the position whereby the OfS is able to grant university title to all providers. Clauses 51 and 52 achieve this by making changes to the two Privy Council routes by transferring the responsibility for consenting to the use of university title to the Office for Students. This transfer to the OfS will not lower standards. We believe the reforms will continue to ensure that only the highest-quality providers can call themselves a university. That is because we are not anticipating wide-ranging changes to the criteria. As now, we want any institution that wants to call itself a university to demonstrate that it has a cohesive academic community and a critical mass of HE students. This means that there will continue to be a distinction between universities and other degree- awarding bodies. That is not changing.

I endeavour to reassure the noble Lord, Lord Stevenson: we envisage that providers will be eligible for university title only if they are registered in either the approved or the approved fee cap category, and have undergone strict financial sustainability and quality checks; have over 55% of full-time equivalent students studying HE; and have successfully operated with full degree-awarding powers for three years. As we do now, we intend to set out the detailed criteria and processes for obtaining university title in guidance, and we plan to consult on the detail of this before publication. The OfS will make awards having regard to this guidance, just as the Privy Council does now. I make it clear that we want this to be a high bar, designed to ensure that the reputation and prestige of being an English university are maintained. That is in the interests of the whole sector. The term “university” will, of course, remain a sensitive word under the Companies Act, which means that it cannot be used in a business or company name without the appropriate consent.

I know there are some concerns that our reforms would open the door to low-quality or even bogus universities. That would be a very unwelcome prospect. However, I submit that the protection of the word “university”, along with all the safeguards I have just outlined in relation to obtaining university title, are designed to ensure that this could not happen.

I turn to the amendments that relate to the role of the Privy Council. As I said, we intend to keep the broad structures for the award of university title—that is, a decision which is made independently, having regard to published guidance. At present, providers send their application to HEFCE, which advises the department, which in turn advises the Privy Council, which then rubber-stamps a decision. This is unnecessarily complex. It is legitimate to ask the question posed by the noble Lord, Lord Stevenson: what is the role of the Privy Council in this context? That is an important question. A briefing paper of the Library of the House of Commons describes the Privy Council, in this context, as,

“effectively a vehicle for executive decisions made by the Government”.

We have investigated and cannot cite a single case in recent memory where the Privy Council disagreed with a recommendation by the department.

I hope I have been able to explain that we are not planning to change the independent decision-making and scrutiny, nor the core of what it means to be a university. I therefore suggest that the amendments proposed by the noble Lord, Lord Stevenson, are not necessary and in these circumstances I ask him to withdraw Amendment 339.

[Lord Stevenson of Balmacara]

My Lords, I thank the Minister for her contribution. I am glad to see that she has got over her sore throat and it is not worse than at our last meeting so she is in full voice again. I am a bit confused about quite where that answer took us. I welcome the candour with which a Minister of the Crown has spoken about the role Ministers play in relation to royal charter achievements. The idea that the Privy Council has never turned down a Minister’s recommendations is exactly the point that many of us were making in relation to the BBC. The former chairman is sitting there, looking as if he is about to leap to his feet and comment on this matter—I am sure he will at a later stage.

[Baroness Goldie]

My Lords, I was very careful and quite specific in the expression of my description of the Privy Council in the context of this Bill.

--- Later in debate ---

[Baroness Brown of Cambridge (CB)]

My Lords, this amendment stands in my name and that of my noble friend Lady Wolf. It would limit the powers of entry and search to suspected breaches of registration concerning fraud and serious financial mismanagement of public funds. The relationship between the Office for Students and registered providers is basically a civil one, and indeed in many areas a supportive one, and criminal proceedings such as search and entry should clearly be used only in cases of very serious misconduct, as specified in the amendment.

I recognise that paragraph 1(3)(b) of Schedule 5 says that,

“the suspected breach is sufficiently serious to justify entering the premises”,

and I am sure that the intent is that powers of entry would be used only in exceptional circumstances. However, this part of the Bill has been described by the sector as draconian, and the amendment, in effectively defining what constitutes “sufficiently serious” breaches, would provide considerable reassurance to the sector. I beg to move.

[Baroness Goldie]

My Lords, I thank the noble Baroness for her contribution. Clause 56 and Schedule 5 as drafted will ensure that the Office for Students and the Secretary of State have the powers needed to investigate effectively if there are grounds to suspect serious breaches of funding or registration conditions at higher education providers. The amendment recognises that these powers are necessary where there are suspicions of fraud, or serious or wilful mismanagement of public funds.

As the noble Baroness indicated, we would expect the majority of cases where these powers would be used to fall into this category, but limiting the powers to this category would risk compromising our ability to investigate effectively certain other cases where value for public money, quality, or the student interest is at risk.

The OfS may, at the time of an institution’s registration or later, impose a “specific registration” condition. This is a key part of our risk-based regulatory framework. For example, an institution with high drop-out and low qualification rates could have a student number control imposed by the OfS if it considered that this poor level of performance was related to recruiting more students than the institution could properly cater for.

A breach of such a condition may not constitute fraud, or serious or wilful mismanagement of public money, as students will still be eligible to access student support. But there is a very real risk that students, quality, and value for public money will all suffer. If the OfS has reason to believe that despite, for example, the imposition of a condition that limits the numbers of students a provider can recruit the provider is nevertheless undertaking an aggressive student enrolment campaign, it will be important that evidence can be swiftly secured to confirm this. If the proposed amendment were made, a warrant to enter and search may not be granted in such cases. That would be an unfortunate and perhaps unintended deficiency in these important powers. I therefore ask the noble Baroness to withdraw Amendment 364.

[Lord Mackay of Clashfern]

Before my noble friend sits down, I was wondering whether the justice of the peace who is to decide such a matter has to give a certificate that he has been satisfied on all the matters required in the schedule at this point in order to grant the warrant, because it sets out conditions about which he must be satisfied. I think it would be quite a reasonable requirement that before the warrant was granted, he should certify that he—or she, I should of course have said—is satisfied on each one of all those rather important conditions.

[Baroness Goldie]

I thank my noble and very learned friend for his contribution. I cannot comment on the specifics of the operation of magistrates’ warrants in England, but I certainly can undertake to write to him with clarification as to how—a very large piece of paper has just been handed to me, entitled, “What will the magistrate take into account when considering whether to issue a search warrant?” If your Lordships, like me, are agog to know this riveting information, here we go.

The magistrate would need to be satisfied on the basis of the written evidence and the questions answered on oath that reasonable grounds existed for suspecting a serious breach of a condition of funding or registration, and that entry to the premises was necessary to determine whether the breach was taking place. Further to this, the magistrate would also need to be satisfied that entry to the premises was likely to be refused or that the purpose of entry would be frustrated or seriously prejudiced. These criteria will ensure the exercise of the power is narrowly limited.

Well, as FE Smith once famously said to a judge, I may not be any wiser, but I am much better informed.

[Lord Mackay of Clashfern]

My Lords, I am grateful for that, but of course it does not deal with the question that I am asking. It is very useful information—or rather, I think I am right in saying that, at least so far as I followed it, it is a repetition of what is already in the Bill. The question, however, is whether the magistrate needs to be aware that these are the conditions. When applications for warrants are dealt with, the degree of speed required sometimes slightly derogates from the detail in which they are considered. This is an important matter: if a higher education institution has a search warrant on its premises that is a pretty damaging thing, especially if it happens to come out in the press that a highly regarded senior institution is being subjected to a search of its premises, which may be quite large, when it comes to it.

It would be useful to have a requirement that the magistrate should certify that he or she is satisfied on these matters and grants the warrant accordingly, or something like that.

[Baroness Goldie]

My Lords, I totally defer to my noble and learned friend on these matters. I do not have the technical information that he seeks, but I undertake to write to him.

[Baroness Brown of Cambridge]

I thank the Minister for her detailed reply. I am not sure I understand what the grounds for search and entry in the case of a risk to quality might be. Indeed, as an engineer not a lawyer, I feel that taking a large number of students who you had been told you could not take when they were supported by government loans could count as wilful mismanagement of public funds, but I am sure others have a better understanding than I have.

However, when there is time, I ask the Minister to reflect that some of the clauses in the Bill seem rather draconian powers for a regulator whose general tone is about supporting the system to prosper and grow. But at this point, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Lucas]

My Lords, many of the providers which will come under this Bill are operating with similar qualifications in other markets and countries. I thoroughly approve of this clause and what it aims to do, but the providers deserve the same level of confidentiality from researchers as they get from regulators. I beg to move.

[Baroness Goldie]

My Lords, I thank the noble Lords, Lord Stevenson and Lord Lucas, and the noble Baroness, Lady Wolf, for raising these important issues.

The amendments seek to limit the power of the OfS or someone working on its behalf to carry out efficiency studies on HE providers under Clause 63. I assure the noble Lord, Lord Lucas, that we entirely accept the principle of what he is seeking to achieve here. For many providers on the register the teaching of higher education will be just a part of their overall business. Many providers will also carry out other activities, such as offering corporate conference facilities or operating sports facilities which the public can access.

Let me also assure my noble friend that the Government would not want the OfS to look at the efficiency of those other activities. Instead, the Government would expect the OfS to confine its efficiency studies to providers’ HE teaching activities. I accept that the Bill does not explicitly limit the OfS’s efficiency studies power in the way my noble friend seeks but we do not think that these amendments would achieve that laudable end. They seek to link the OfS’s efficiency studies power to those activities which are subject to the contract between the OfS and the provider relating to the provider’s registration. A provider’s registration, however, is not subject to a contract.

The Bill is not, though, entirely silent on how the OfS should carry out its functions. I point to the general duties this Bill places on the OfS in Clause 2(1)(e), which requires the OfS to,

“use the OfS’s resources in an efficient, effective and economic way”.

Furthermore, Clause 2(1)(f) places a duty on the OfS to have regard to,

“the principles of best regulatory practice, including the principles that regulatory activities should be … transparent, accountable, proportionate and consistent, and … targeted only at cases in which action is needed”.

Let me also assure my noble friend that individuals conducting efficiency studies on behalf of the OfS will be subject to the same confidentiality requirements as the OfS.

I hope that these latter points provide my noble friend with some reassurance that the OfS will carry out its efficiency studies in the focused way he seeks to achieve. This level of focus is certainly something the Government want to see. In these circumstances I ask him to withdraw Amendment 416.

[Lord Lucas]

My Lords, I am very grateful to my noble friend for that explanation, which I shall go away and chew over. It is not that the university might be running a tiddlywinks club for money that worries me, but that it may well be selling the same higher education product as commercial training outside the university sector, or internationally online. These are both money-making activities where the university is concerned about commercial confidentiality but, under the Bill’s current wording, researchers might be asked to look at and gather data on them.

I shall have to do some work between now and Report, but I hope the Government will look again at what I have said today. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Goldie]

My Lords, it is the Government’s intention that the OfS’s running costs will be shared between the sector, in the form of registration fees charged on registered providers, and government. The Bill enables this, granting the OfS the power to charge fees to cover the cost of its functions, with the detail of those fees to be set out in secondary legislation following proper consultation with the sector. That consultation is now open.

Moving to a co-funded model will be more sustainable, bringing the approach to funding the OfS in line with that of other, established regulators, such as Ofgem and Ofcom. It also reflects current practice in sector-owned bodies, including HESA and the QAA. Asking providers to contribute will strengthen their incentive to hold the OfS to account and challenge its efficiency. To reassure your Lordships, the total amount of funding raised by fees would represent less than 0.1% of the annual income that the sector generates.

Turning to Amendment 423, I thank the noble Lord, Lord Stevenson, for his thoughtful contribution. Let me assure him that the fees consultation seeks views on guiding principles in relation to areas where the Secretary of State may provide supplementary funding to the OfS. This could include funding to cover set-up costs and elements of its running costs. If we were to specify this in legislation, however, in the way that the amendment does, it would inadvertently prohibit the Secretary of State from giving money to the OfS to distribute as teaching grant.

--- Later in debate ---

[Lord Stevenson of Balmacara]

I support the amendment and endorse everything that the noble Baroness, Lady Wolf, said in introducing it. She hit the nail on the head very firmly. There are issues around new providers. There is not very good evidence, and the evidence that there is seems to be anecdotal rather than scientific. The information published recently by HEPI threw doubt on whether many of the institutions that have come forward were bona fide or would survive, and some questionable practices were exposed—so there is an issue there.

In addition to the points that the noble Baroness made, which I endorse, there is, again, a gap in the centre of what the Office for Students is being established to do. It could have been imagined—pace the points made by the noble Lord, Lord Willetts, about not wanting to overload the OfS—that it would have a responsibility to speak for the sector to the Secretary of State about the gaps that it may see in provision, and the issues that may need to be picked up in future guidance. I would have expected that to be the normal thing.

However, it is interesting to see that the general duties in Clause 2 do not cover it. They are all about functions to do with quality, competition, value for money, equality of opportunity and access. They are nothing to do with surveying and being intelligent about the future and how it might go. However, as the noble Viscount, Lord Ridley, said, the game may have changed a bit now with the publication of a strongly worded industrial strategy—or at least, we hope it will turn into an industrial strategy after the consultation period. Out of that will come a requirement to think much harder about the training and educational provision that will support and supply the industrial machine that we will need as we go forward into the later parts of this century. It therefore makes sense to have advance intelligence about this, and to recruit from those who have expertise. It makes even more sense to do that in the way suggested by the amendment.

[Baroness Goldie]

My Lords, we agree that it is necessary to have a holistic overview of the sector to understand whether our aim of encouraging high-quality, innovative and diverse provision that meets the needs of students is being achieved. However, I do not agree that to achieve this an independent standing committee is necessary. There are already a number of provisions in the Bill that allow the Secretary of State, the OfS and other regulatory or sector bodies, where necessary, to work together to consider these important issues.

For example, Clause 72 enables the Secretary of State to request information from the OfS, which, as the regulator, will have the best overview of the sector. Clause 58 enables the OfS to co-operate and share information with other bodies, and, as we have discussed at length, the Secretary of State can give guidance to the OfS to encourage this further.

We have already debated the issue of new providers at length, but let me reiterate that there is a need for new innovative providers. The Competition and Markets Authority concluded in its report on competition in the HE sector that aspects of the current system could be holding back greater competition among providers and need to be addressed. In a 2015 survey of vice-chancellors and university leaders, 70% expected higher education to look the same in 2030. This risks becoming a self-fulfilling prophecy.

We must not be constrained by our historical successes, because if we place barriers in the way of new and innovative providers we risk diminishing the relevance and value of our higher education sector to changing student and employer needs, and becoming a relic of the last century while the rest of the world is moving on.

[Baroness Wolf of Dulwich]

I do not think that the amendment was proposing barriers of any sort. We need to be clear about that. It does not propose barriers in aid of diversity. It just says that simply removing barriers to entry would not deliver diversity. I apologise if that was not made clear.

[Baroness Goldie]

I thank the noble Baroness for her intervention. I fully accept that the express text may not have intended that—but we have to look at what the consequences of this new independent committee would be, and infer from that what effect it might have on the broader sector.

At the moment we have a university sector that needs to do more to support its students and the wider economy: it has built up over time to serve only parts of the country; it is not providing employers with enough of the right type of graduate, especially STEM graduates; it can do more to offer more flexible study options to meet students’ diverse needs; and it can to do more to support social mobility. It is not enough simply to ensure that all young people with the potential to benefit have a theoretical opportunity to go to university and secure a good job when they graduate.

Alternative providers are already supporting greater diversity in the sector: 56% of students at alternative providers are aged 25 or over, compared with 23% of students at publicly funded institutions. They also have more BME students: 59% of undergraduate students at alternative providers are from BME groups, compared with 21% at HEIs.

The Government are determined to build a country that works for everyone. That is why we have announced a number of opportunity areas that will focus their energy, ideas and resources on allowing children and young people to fulfil their potential. That, in conjunction with what the Act sets out to achieve—the broad vision that I think universities accept as positive for the sector—holds out hope that we are proceeding on a journey in which we can have a lot of optimism and confidence.

I note the references to skills and would stress that we are carrying out reform programmes in higher education and in technical and vocational education at the same time. This gives us the opportunity to ensure that these programmes of reform are complementary. The Government’s recently published Green Paper on an industrial strategy outlines further our vision for skills and a system that can drive increases in productivity and improvements in social mobility. We are committed to reforms that will improve basic skills, create a proper system of technical education, address regional skills imbalances and shortages in STEM skills, and make it easier for adults to retrain and upskill in later life.

One of the 10 pillars of the industrial strategy is that we will create the right structures and institutions to support specific places and sectors. In some cases, this will mean strengthening existing educational institutions or creating new ones. We recognise the need for accurate information to identify and address current and future skills shortages, and we will work towards a single authoritative source of this information. To ensure a joined-up approach, the OfS’s ability to co-operate with a range of other bodies, including the Skills Funding Agency and the Institute for Apprenticeships, will be important. Clause 58 enables that.

The important issue of part-time education was raised. The Government agree that part-time education, distance learning and adult education bring enormous benefits to individuals, the economy and employers. Our reforms to part-time learning, advanced learner loans and degree apprenticeships are opening significant opportunities for mature students to learn. The OfS must—it is not a question of should, or if it feels like it—have regard to the need to promote greater choice and opportunities for students, and to the need to encourage competition between providers where that competition is in the interests of students and employers. That is alongside the other practical support that the Government are already giving for part-time students, including providing tuition fee loans where previously they were not available. We have also recently completed a consultation on providing, for the first time ever, part-time maintenance loans. We are now considering options. The Bill already provides for the mechanisms to enable the kind of information referenced here to be gathered effectively. I hope my remarks have reassured the noble Baroness, and I therefore ask her to withdraw her amendment.

[Lord Mackay of Clashfern]

Would it be worth considering inserting the phrase from this amendment,

“emerging needs for new providers within the higher education sector”, into the general duties of the OfS in Clause 2? It might well be a mechanism for this being studied.

[Baroness Goldie]

As ever, my noble and learned friend makes a significant suggestion. I undertake that we shall reflect on that.

[Lord Adonis (Non-Afl)]

I observe that a whole section of Schedule 1 relating to the Office for Students concerns committees. Paragraph 8(1) states:

“The OfS may establish committees, and any committee so established may establish sub-committees”.


This appears to be a power without limitation. The noble Baroness not only can have her committee on new providers; she can have a range of sub-committees as well. We could spawn a whole bureaucracy around the provision of new providers. One hopes that, at the end of it, we will actually get some new providers and not just committees. In one of the many letters she is sending us, I wonder if the Minister could confirm that, under that power, it would be perfectly possible for the OfS to establish a committee for the purposes that the noble Baroness and the noble Viscount have in mind.

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[Baroness Goldie]

I thank the noble Lord for his intervention. He is quite correct that the schedule does indeed empower the OfS to set up committees. It is anticipated that that would be an important source of information to the OfS. I am happy to endeavour to clarify the position, as he seeks, and we will send a letter to him.

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Moved by

[Baroness Goldie]

438: Clause 80, page 50, line 42, at end insert—
“(ha) in relation to England, for contributions made in respect of an alternative payment to be dealt with, with the consent of the Treasury, otherwise than by payment into the Consolidated Fund;”

[Baroness Goldie]

My Lords, the Government want to make this a country that works for everyone. That is why we have introduced Clauses 80 and 81 of the Bill. Amendments 438 and 439 simply clarify the role of Treasury consent in establishing a system for alternative payment contributions to be dealt with other than by payment into the consolidated fund. They are narrow and functional amendments.

I know that the noble Lord, Lord Sharkeys has a considerable interest in the introduction of alternative student finance as provided for in Clauses 80 and 81. I beg to move.

[Lord Sharkey (LD)]

My Lords, I will speak to Amendment 442 in my name and that of my noble friend Lord Willis. The Committee will know that sharia law forbids interest-bearing loans. That prohibition is a barrier to Muslim students attending our universities. This has been a problem for the Muslim community in this country since at least 2012. Prior to then, many Muslim students were able to attend university because they were financed by family and friends. This was possible when tuition fees were low, but it is much more difficult with fees at their current levels. Successive Governments have known about this problem. They have recognised that the current system effectively discriminates against devout Muslims for whom interest-bearing loans are not acceptable.

The system works to the direct disadvantage of our Muslim communities. Many Muslim students, although qualified, cannot progress to tertiary education. The system also works to the disadvantage of our society as a whole. An important part of the community is effectively deprived of access to higher and further education, of the opportunity to mix with others and to learn from and contribute to our culture. These are damaging and dangerous exclusions. They are also completely unnecessary.

In April 2014, BIS launched a consultation on possible sharia-compliant ways of financing students. This consultation generated an astonishing 20,000 responses. The consultation outlined the proposed solution, based on the widely used Islamic finance instrument, called a takaful. In their response to the consultation, the Government said:

“It is clear from the large number of responses … that the lack of an Alternative Finance product as an alternative to conventional student loans is a matter of major concern to many Muslims”.


The response went on to say:

“There is demand for the proposed Alternative Finance product and responses to the consultation indicate that this would enable many of those who have been or will be prevented from undertaking both FE and HE, to attend by removing the conflict between faith and funding”.


The Government’s conclusion was equally clear; they said that,

“the Government supports the introduction of a Sharia-compliant Takaful Alternative Finance product available to everyone”.

But there was a cautionary addendum:

“Given the complexity of these issues and the time needed to resolve them, it is unlikely that any Alternative Finance product could be available before academic year 2016/17”.


That was written in September 2014—two and a half years ago—and only now is enabling legislation before us. If that sounds like criticism I should say immediately that I warmly congratulate the Government and Jo Johnson on finally producing the legal framework to solving the problem. It is a vital step forward, but it has one major defect. The Bill is silent as to when the takaful scheme will be in place. We are already in academic year 2016-17. We are too far into the year for any scheme to affect the 2017-18 intake and, worse, I have been told privately that it is likely that the scheme will not be ready until the academic year 2019-20. That is seven years after the problem was recognised, five years after the solution was agreed, and two academic years away from now. If that is correct, it means that Muslim students will continue to be discriminated against and disadvantaged for another two years; another two cohorts of young people who are unable to attend university.

My Amendment 442 addresses the problem directly. It simply requires the takaful scheme to be in place to benefit students going into further education or higher education in the autumn of 2018. I have tried to get to the bottom of why there might be this extended delay of five years between agreeing a solution and putting it into practice. I have consulted with Islamic finance experts and people familiar with the operational requirements involved in introducing a takaful scheme. I am told that, with the necessary political will, a working takaful system can be put in place within eight to 12 months, and that assumes that no significant work has already been done. That is why I have chosen the deadline of academic year 2018-19.

I am also told that the reason for the very likely prolonged delay that would otherwise occur is not lack of good intentions but the inability of the Student Loans Company and HMRC to organise themselves to deliver the product in a reasonable time. People I have talked to speak of a lack of resource in both agencies and an inability to process additional work in a reasonable time. A timetable that leads up to autumn 2019-20 is not reasonable and not necessary, especially when there is precedent for moving a lot faster. For example, the Sharia-compliant version of the Help to Buy guarantee scheme took five or six months, from the beginning, to develop and launch. These things can be done in good time, if there is the will and the allocation of the required resource. When the Minister responds he—or she—may say that the takaful scheme will in fact be in operation for the academic year 2018-19. If the Minister does say that, it will be heard, noted and welcomed as a commitment by the Muslim community and Muslim students, who will at last be able to go on to university. If he does that make that commitment to the Muslim community and to Muslim students I will not press my amendment.

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[Lord Watson of Invergowrie]

My Lords, it is very much to be welcomed that Muslim students are to be offered Sharia-friendly student loans which should assist in applying to university, although I accept the point of the noble Lord, Lord Willetts, that only some students have been put off in the past in the belief that taking out a loan conflicts with their religious beliefs.

This is certainly a big step forward, but as the noble Lord, Lord Sharkey, outlined, when will it happen? He has traced the path that has been followed since 2012, when a government commitment was first made. As he said, the consultation exercise was undertaken and the Government responded in September 2014—quite quick for government replies. Their response said that,

“the Government supports the introduction of a Sharia-compliant takaful alternative finance product available to everyone, and will work on its development”.

That response also mentioned the need to find what was described as an “appropriate legislative window”. Two years on—more than that, in fact—we are at that window, yet we do not have a date for the commencement.

Amendments 442 and 516 in the names of the noble Lords, Lord Sharkey and Lord Willis, appear to me to be rather contradictory. Amendment 442 calls for the scheme to begin in the autumn of 2018, while Amendment 516 seeks its introduction immediately after the Bill becomes law, but no matter. We wish to see the scheme introduced as soon as it is practical, and I trust the Minister will outline the timescale that the Government have in mind. In particular, I hope they will offer some explanation if, as the noble Lord, Lord Sharkey, said, they suggested that a delay would be necessary until 2019. I found it very interesting that the noble Lord, Lord Sharkey, said that he had consultations with people in the Muslim community who said that it need not take that long, so we look forward to the Minister’s response on this important matter.

[Baroness Goldie]

My Lords, the debate has been helpful. I think we all agree that participation and choice in further and higher education must be open to everyone with the potential to succeed, irrespective of their background, gender or religion. I thank the noble Lord, Lord Sharkey, for a sensitive and reflective contribution to that debate.

The Government recognise that, under the current system, there are concerns that some prospective Muslim students may feel deterred from accessing student loans; we appreciate that they might consider that student loans are not consistent with the principles of Islamic finance. Our research has suggested to us that Muslim students are less likely to use student loans than their contemporaries. That is why the Government have introduced Clauses 80 and 81, which are ground-breaking and innovatory and set out our intention to provide the Secretary of State with the power, for the first time, to offer alternative payments alongside existing powers to offer grants and loans. We are the first Government to legislate to make alternative student finance possible, and we have legislated at the first opportunity. We are fully committed to making alternative student finance available.

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[Baroness Royall of Blaisdon (Lab)]

My Lords, I broadly support, in particular, Amendment 446, tabled by my noble friend Lord Watson. Opportunistically, however, I ask the Minister, since we are discussing student fees, when there will be clarity vis-à-vis student finance for EU students who want to register for courses in 2018-19. They have no clarity at the moment, and this is putting some EU students off even thinking about applying to UK universities.

[Baroness Goldie]

My Lords, I thank noble Lords for their contributions. I am aware that this is an issue that stimulates debate and the contributions have been genuinely informed and reflective.

When the Government reformed student finance in 2011 we put in place a sustainable system designed to make higher education accessible to all. It is working well, because total funding for the sector has increased and will reach £31 billion by 2017-18. These amendments cover a number of areas of the student finance system.

I refer first to the issue of the student loan repayment threshold. The decision to freeze the repayments threshold for post-2012 loans was taken to put higher education funding on to a more sustainable footing. To do this, we had to ask those who benefit from university to meet more of the costs of their studies. I thank my noble friend Lord Willetts for providing a very clear explanation of the threshold freeze and the circumstances that led to it. Freezing the threshold enabled us to abolish student number controls, lifting the cap on aspiration and enabling more people to realise their potential.

On average, graduate earnings remain much higher than those of non-graduates. Students continue to get a fair deal: the current threshold remains £3,500 higher than that for pre-2012 loans. Uprating the threshold in line with average earnings would cost around £5 billion in total by April 2021 compared to the current system. The total cost of uprating by CPI would be around £4 billion over the same period. Taxpayers—many of whom will be non-graduates earning much less than the graduates who would benefit—would have to bear that cost.

On the matter of student loan terms and conditions, I share your Lordships’ desire to ensure that students are protected. That is why the loan terms are set out in legislation. However, it is important that, subject to parliamentary scrutiny, the Government retain the power to adjust terms and conditions. Student loans are subsidised by the taxpayer, and we must ensure that the interests of both borrowers and taxpayers continue to be protected. This amendment would also prevent the Government making any changes to the loan agreement that would favour the borrower. Finally, we believe that the Government should continue to be able to make necessary administrative amendments to the terms and conditions to ensure that the loans can continue to be collected efficiently.

With regard to the replacement of maintenance grants with loans, I reassure noble Lords that this Government remain committed to increasing access to higher education. Indeed, the proportion of students from disadvantaged backgrounds entering higher education has increased from 13.6% in 2009 to 19.5% in 2016. We have, furthermore, increased support for students on the lowest incomes by over 10%. Reinstating the system of maintenance grants would reduce the up-front support available for students from some of the most disadvantaged backgrounds, while costing the taxpayer over £2.5 billion each year. Students recognise the value of a degree. Lifetime earnings are, on average, higher for graduates than non-graduates and it is right that students who earn more contribute towards the cost of their education. Repayments are related to the ability to pay and start only when a borrower is earning £21,000.

I turn now to the amendments relating to the regulation of student loans. I agree that it is important that students are protected. However—as my noble friend Lord Willetts set out—student loans are not like commercial loans: we must remember that. They are not for profit and are available to all, irrespective of their financial history. Repayments depend on income and the interest rate is limited by legislation. The loans are written off after 30 years with no detriment to the borrower. The key terms and conditions are set out in legislation and are subject to the scrutiny and oversight of Parliament. This means that additional regulation is unnecessary.

Lenders regulated by the FCA are obliged to assess the creditworthiness of all their borrowers, and the affordability and suitability of the loan product for each borrower. Were the Financial Conduct Authority to regulate student loans—as Amendment 449 seeks—it could affect the ability of some students to obtain them. My noble friend Lord Willetts spoke powerfully about that.

Our system allows the Government, through these subsidised loans, to make a conscious investment in the skills of our citizens. I hope that this addresses the concerns raised by noble Lords and I therefore ask that Amendment 444 be withdrawn.

[Baroness Garden of Frognal]

My Lords, I thank the Minister for her detailed response. I bow, of course, to the remarks of the noble Lord, Lord Willetts. I remember working with him in coalition when I was Higher Education Minister in the Lords—heady days indeed.

In spite of his reassurances, I am still concerned that the less well-paid and less privileged students should not be disproportionately penalised or deterred by repayments. After all, they repay for longer than the better-paid students, and there are problems in that. I also support the amendments of the noble Lord, Lord Watson. I think that the noble Baroness, Lady Royall, will find that we may touch on those issues when we come to the amendments on international students. She makes, however, a very valid point that needs consideration. At this stage, however, and in the light of the Minister’s remarks, I beg leave to withdraw the amendment.

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Moved by

[Baroness Goldie]

450: Clause 83, page 53, line 13, at end insert—
“( ) in the words before paragraph (a), omit “in England or Wales”,( ) in the opening words of paragraph (a)—(i) after “university” insert “in England or Wales”, and(ii) after “the 1992 Act” insert “or section 37 or 87 of the Higher Education and Research Act 2017 (“the 2017 Act”)”,”

[Baroness Goldie]

My Lords, these amendments make a number of largely technical changes to this clause, which deals with the student complaints scheme in higher education. It may help if I begin by explaining that none of these changes impacts on the policy intent. This is to ensure that the definition of a qualifying institution for the student complaints scheme is widened to ensure that all providers on the OfS register will be required to join the scheme. Amendments 455 and 456 go slightly further by confirming, as is current practice, that higher education providers delivering courses in a franchise arrangement will also be required to join the student complaints scheme.

This approach means that all higher education students should have the same right to have their unresolved complaints considered through this route, provided that their complaint meets the requirements for consideration under the scheme. The key change we are now introducing is to ensure that the requirement we are putting into legislation that deals with providers that are no longer regarded as qualifying institutions of the complaints handling scheme will apply in both England and Wales. That is important given that the complaints handling scheme has operated successfully across both nations for over 10 years. In practice, this means that providers that cease to be qualifying institutions are classed as transitional providers and still subject to the scheme for a further period of up to 12 months. This ensures an additional protection for students.

In addition, through Amendment 457, we are making a minor change to ensure that the operator of the student complaints scheme continues to have the discretion to agree with individual providers what courses should be covered by the scheme. This is existing practice, and the amendment simply ensures it applies correctly to all those providers who are part of the scheme. Without this discretion, it is likely that the complaints handling scheme could inadvertently stray into other parts of the education sector, such as schools or further education. Many of the providers now joining the complaints handling scheme offer more than higher education courses. This might include courses considered as part of the schools or further education sector, where separate complaints arrangements are already in place. Finally, the amendments make some minor technical changes, mainly to ensure that this clause is linked to all the appropriate clauses in the Bill. I beg to move.

Amendment 450 agreed.

Moved by

[Baroness Goldie]

451: Clause 83, page 53, line 14, leave out from “section 40” to end to line 15 and insert “or 43 of the 2017 Act”,”

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[Lord Judd]

My Lords, the suggestion of an independent review bears very serious consideration. A very difficult issue confronts us on the matter raised in this amendment. In the considerable amount of time that the House has spent in recent years on issues of security, one thing that has always concerned me deeply is the dividing point between essential action and what in fact begins to be counterproductive.

We have to approach the issue of how universities play their part in the security of the nation by considering the danger of fostering extremism and unacceptable views by heavy-handedness or the appearance, however far from reality it is, that universities are acting as agents of the security services. If that perception gains ground, it will certainly provide more potential recruits for extremism and unreasonableness in the student community. I do not dissent, with the evidence of anti-Semitism and hostility to Islamic people, from the view that urgent action by the state is necessary. Security is the responsibility of the state and universities must play their part within the law and vigorously ensure that they uphold it—of course, that is right—but when we start using words such as “prevent”, I think myself into the position of young students discussing issues and saying, “What the hell is going on? Is this university really a place where we can test ideas?”. We must have self-confidence in the middle of all this; we must not lose our self-confidence. The whole point of a university is that we encourage people to think and develop their minds. Therefore, it is a very good place to bring into the open the most appalling ideas that some people have, so that they can be dealt with in argument, and the rationality and decency of most people can prevail. They are places where what is advocated may be argued against effectively and where those arguments may be demonstrated. If there is any move towards preventing such opportunities to take head on in the mind the issues which threaten us, we will be in great danger of undermining our security still further.

I said in an earlier debate, and I mean it profoundly, that the battle for security in the world must be won in hearts and minds. It will not ultimately be won by controls; it will be won by winning the arguments. If the opportunity to win the argument is not there in universities or begins to be eroded, what the dickens are we doing in terms of undermining our own security?

[Baroness Goldie]

My Lords, the threat we face from terrorism is unprecedented and very real. In addition to the framework of the criminal law, we must have a strong and robust preventive element to our counter-terrorism efforts. We must collectively help in the fight against terrorism and try to protect those who may be vulnerable or susceptible to radicalisation towards acts of terrorism.

I want to make it clear that HE providers are not being singled out as the potential cause or root of radicalisation. Responsibilities under this duty have also been placed on schools, hospitals, prisons, local authorities and colleges, and other institutions which regularly deal with people who may be vulnerable to the risk of radicalisation. In higher education, the Prevent duty exists to ensure that providers understand radicalisation and how it could impact on the safety and security of their staff and students.

I thank the noble Baroness, Lady Deech, for her helpful, informed and powerful contribution, which was cogently authoritative. What the Prevent duty does not do is undermine free speech on campus. Higher education providers that are subject to the freedom of speech duty are required to have regard to it when carrying out their Prevent duty. This was explicitly written into legislation to underline its importance both as a central value of our HE system and of our society.

The Higher Education Funding Council for England, the body responsible for monitoring compliance with this duty in England, reports that the large majority of institutions have put in place clear, sensible policies and procedures that demonstrate they are balancing the need to protect their students and their obligations under Prevent, while ensuring that freedom of speech on campus is not undermined. We have seen higher education institutions become increasingly aware of the risks to vulnerable students and there have been some really good examples across the sector of how to proportionately mitigate these risks.

On the whole, the higher education sector is embedding the requirements of the Prevent duty within its existing policies and procedures. It gets ongoing advice and support both from HEFCE and from our own regional Prevent co-ordinators. There is a wide range of training available to staff in HE and there is an ongoing dialogue between the Government, the monitoring body and the sector to ensure that the implementation of this duty is done in a pragmatic way.

It is also important to note that this amendment has another consequence because it seeks to disapply the Prevent duty not only in relation to English higher education providers but in relation to Scottish and Welsh institutions. That would require the consent of the Scottish and Welsh Ministers.

We welcome discussion about how Prevent is implemented effectively and proportionately, but blanket opposition to the duty is unhelpful and, dare I say it, dangerous, given the scale of the terrorist risk before us—the threat level currently stands at severe. The Prevent duty is an important element of our fight against the ever-increasing threat of terrorism. We must have an efficient strategy for trying to prevent people being drawn into it. On this basis, I very much hope that the noble Lord will feel able to withdraw Amendment 466.

[Lord Stevenson of Balmacara]

I thank all speakers in this debate. It is a difficult area and we certainly went into several of its most difficult parts. Surely my noble friend Lord Judd is right that there is a tension in attempting to address the worries expressed by the Minister in her concluding remarks by preventing the debates and discussions that might win hearts and minds and protect us, and which need to be protected against the changes the Government are seeking to impose.

The analysis is relatively straightforward. There is no room for illegal acts in any institution. I am sure the noble Baroness, Lady Deech, will accept that in proposing this amendment we do not wish to change that very obvious and important guideline. But the tension between free speech, which should exist in universities, and actions taken to inoculate against unpleasant and difficult ideas taking root does not seem well expressed in the legislation. This is a probing amendment which attempts to take that forward. In that sense, I felt that the Minister struck an odd note by suggesting that even discussing these issues in this Chamber was dangerous. If I am mistaken, I will withdraw that remark.

[Baroness Goldie]

What I said was that we welcome discussion about how to implement Prevent effectively and proportionately, but that we consider blanket opposition to the duty unhelpful.

[Lord Stevenson of Balmacara]

Unhelpful is certainly not the same as dangerous but I think the word “dangerous” was used—we will check the record for it. I do not regard it as dangerous to discuss these issues because they raise very important matters about freedom of speech and the ability to discuss and debate issues across a range of topics, not necessarily all concerned with terrorism. Therefore, in that sense, I resist that—but obviously not to the point that I would resile from the fact that this is really a tricky area and it is very hard to approach it without raising emotional and other issues that get in the way of the debate.

Maybe a review is required—maybe that would be the way forward. Maybe the Joint Committee on Human Rights will be able to take its work further. It was helpful to know that this work is still being considered, and maybe that is a way forward. The main achievement of this amendment was to get us into this whole debate and ensure that we understood and recognised the opportunities but also the threats that there are in trying to debate that. Maybe we can return to a more detailed discussion of this when we get to the group of amendments which raises the two particular issues about freedom of speech and preventing unlawful speech that are at the heart of the debate. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Watson of Invergowrie]

My Lords, I will say a few words in support of the noble Lord, Lord Storey. I commend him on the amount of preparation he has done for this amendment. I am very surprised at the extent of what he has revealed. I think we all know that, to a greater or lesser extent, cheating goes on—it is important to use that word—and in some cases fraud, but the extent of it is such that action needs to be taken. I am disturbed by the QAA more or less dismissing it, as the noble Lord, Lord Storey, said. And yet, as he pointed out, 17,000 students had been caught, and if that number were caught how many were getting away with it?

It is an issue that has to be addressed. Although there are means of catching cheats these days—software can be, and is, employed by universities that can spot and pick up patterns of writing—there are other ways that cannot be tracked easily. It would be helpful to have a recognition that this is a problem and for something at least to be said, if not done, by the Minister to indicate that the matter will be taken forward in a way that it has not been, effectively, up until now.

[Baroness Goldie]

My Lords, this amendment raises an important issue that is central to the quality and reputation of higher education in the UK. Plagiarism in any form, including the use of custom essay-writing services, or essay mills, is not acceptable and the Government take this issue very seriously. That is why the Government asked the QAA to investigate the use of essay mills in the UK. Following the QAA’s publication on this issue in August 2016, the Minister, my honourable friend Jo Johnson, said:

“Plagiarism is not acceptable and, on this industrial scale, represents a clear threat to standards in our universities … we are looking closely at the recommendations in this report to see what further steps can be taken to tackle this scourge in our system”.


The Government thank the QAA for its work exploring this issue and continue to work closely with it to progress the options and recommendations put forward. As a first step to addressing the issue, the Government have already met with Universities UK and the NUS to discuss a co-ordinated response. Within the next few weeks, my honourable friend the Minister will be announcing a new initiative, working with the QAA, Universities UK, the NUS and HEFCE, to tackle this issue.

On the amendment specifically, although we share the general intent, we are keen to ensure that non-legislative methods have been as effective as they can be before resorting to creating new criminal offences. That is where the initiative mentioned comes in. If legislation does become necessary, we will need to take care to get it right. We have to be absolutely clear about what activity should be criminalised and what activity should remain legitimate. That requires evidence, discussion and consensus. We do not yet have that.

To that extent, it is crucial we get the wording of the offence right. In the amendment tabled, it is unclear who would be responsible for prosecuting and how they would demonstrate intention to give an “unfair advantage”. For example, it may be difficult to prove that a provider intended to give an unfair advantage, or that an advertiser knew that an unfair advantage would be bestowed, and there is a risk of capturing legitimate services such as study guides under the same umbrella definition. What is an “unfair advantage”? On one view, a student who is able to afford a tutor when others cannot obtains an unfair advantage. That is surely not what this amendment is trying to catch. But can we be sure that it does not, and where do we draw the line instead? These are not things that can, or should, be rushed when the result is a criminal record.

The effectiveness of a legislative offence operating as a deterrent will depend on our ability to execute successful prosecutions, and as such, we will need to be confident about these principles, as well as about who has the power to prosecute and how they will capture sufficient evidence. Rather than taking a premature legislative response to this issue, we believe it is best first to work with the sector to implement non-legislative approaches. We will of course monitor the effectiveness of this approach and we will certainly remain open to the future need for legislation if it proves necessary.

I hope I have reassured the noble Lord that the Government are committed to addressing this issue. Although the Government remain open to future options, as we do not believe that legislative action is the best response at this time, I ask that the amendment be withdrawn.

[Baroness Deech]

Has the noble Baroness brought her mind to bear on whether the students who solicited the cheating essay would also be caught up in the criminal offence? This is not really my area of law, but I suspect that conspiracy to commit a criminal offence might catch those students.

As has been said—and as I know from my experience as the independent adjudicator for higher education—many foreign students, some for quite innocent reasons, get caught up in this. Part of the cure is to have better orientation for foreign students to explain to them what is expected. This applies in particular to Chinese students. I am painting this with a broad brush, but apparently they are told from the age of five onwards that one should collaborate rather than compete, and that one should listen to every word the venerable professor says and repeat it in exams, which is not the way we do things. They are therefore innocent in their own minds, so we need to clarify this amendment and ensure that foreign students know what is expected of them.

[Baroness Goldie]

I thank the noble Baroness for her helpful intervention. I cannot answer on behalf of the noble Lord, Lord Storey, but no doubt he will make some concluding remarks.

[Lord Storey]

The Minister is absolutely right: this should not be rushed and we should get it spot on. We have a responsibility to universities, students and academics. I am glad the noble Lord, Lord Watson, mentioned software. There is a software programme called Turnitin, which will identify parts that have been plagiarised.

Professor Deech—I am sorry, I mean the noble Baroness, Lady Deech; I am not sure whether I am promoting or demoting her—raised the issue of students who are caught. Interestingly, there are solicitors who advertise their services on campus to represent and help those students who are caught. When students are caught, as noble Lords can imagine, there are varied practices right across the sector about how they are treated. Some students who are caught are given a slap on the wrist; others are actually sent down. Some have to repeat a year and some lose marks, so there is no consistent policy in higher education as a whole.

I am delighted that the Minister told us of the new initiative that will be announced. The NUS, as well as supporting students—your heart goes out to students who are caught in such a situation, perhaps for all sorts of reasons—will be there on campus to make sure students realise how serious this is. If they are caught, the NUS, wearing another hat, is there to represent them, I suppose. I am delighted that this initiative is taking place and we will see where it leads.

Finally, I mentioned Professor Newton, who emailed me. It was interesting, and this is why I hope to come back to this. He wrote that he just wanted to highlight the word “intent”:

“The amendment as currently proposed would make it quite easy … for essay-writing companies to hide behind a defence that they provide ‘custom study aids’ and that it is the students’ responsibility to use them appropriately. If the amendment could be tweaked to take ‘intent’ out of the equation, then the law would become much more powerful”.


I hope that between now and Report, we could perhaps meet to talk this over and see where the initiative goes. We really do need to take action on this matter. I beg leave to withdraw the amendment.