Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

2nd reading (Hansard): House of Lords
Tuesday 6th December 2016 Lords Chamber

[Baroness O’Neill of Bengarve (CB)]

My Lords, I decided that if I declared all my interests, it would take the full five minutes. Let us just say that I have had a lifetime in universities, academies, academic institutions and publishers of some variety.

I shall speak only on the higher education provisions which I think are the more difficult part of this legislation. The premise behind them is that competition will help to improve quality, and I entirely agree that zero competition would be—we have evidence from other countries of this—a very unfortunate thing. In the UK, we compete for students. Universities compete for staff; they compete for research funding; they compete for reputation. Academics compete to get their work published and they live on very short contracts in a large number of cases. In short, lack of competition is not our problem. We really need to show why more competition would be helpful, or why the 1980s recipe of a competitive market plus a regulator is the right way to go.

The Bill raises many hackles with the suggestions that new providers can come in on a very quick and easy basis—very contrary to our traditions—with no need for a track record. The reality is that possibly some new providers will be good and some will be disastrous. There is nothing about being a new entrant that makes you a good higher education institution. You might be just the discount operation of a well-established overseas university—in fact, that is likely to be where many new providers will come from. But you might be something much worse. You might, for example, have very limited offerings in mind. I think, for example, of the McDonald’s university. There is no requirement for any particular focus. It deals with two subjects—the marketing and the serving of hamburgers.

So the title of university is something that needs protection with a register and, in that respect, the Bill is right. But one needs to have a view of what is not a university in order to do that seriously, and I wonder how much or how little would count. What makes an institution a higher education provider as opposed to somebody offering a course that might contribute to some degree somewhere?

We need to be able to judge value for money, and to do so we need metrics. There is the teaching excellence framework—and there the principal weaknesses lie. Teaching metrics are, in my view, much less good than research metrics; research metrics are not perfect, but teaching metrics are much worse. If you want some evidence about this, there was a nice book published in the United States called Academically Adrift: Limited Learning on College Campuses, by Richard Arum and Josipa Roksa, a couple of sociologists. Bill Gates wrote:

“Before reading this book, I took it for granted that colleges were doing a very good job”.

No more—because he discovered that they were not doing a good job. For example, there was very little improvement in those things that we most value, such as critical thinking, the ability to write well and other good intellectual virtues. They also discovered a remarkable absence of work by students, which was not a very popular finding.

Surely, you may say, we are measuring all this. I fear we often are not. The metrics are gamed, or at any rate gameable—so they are selectively gamed. For example, there are the notorious so-called student satisfaction metrics. Well, what would you do to satisfy students? I shall not sketch the answer. There are also the distortions of the meaning of “half time” or “full time”; the units are not well defined, and we do not know how much work people are doing when different institutions are taking very different views of what a full or not full-time student does. These are insidious matters. We have created incentives for teachers to do a great deal of research, which creates a bargain, on which these authors comment, whereby those who need to get a lot of research out cut the following deal with their students: “I won’t mark you too hard and you will get a pretty degree and, equally, I will get time for my research”. That is a bargain that we need to be sophisticated about. The new bargain is an unfortunate one, and I think undercuts universities.

It is rather an old-fashioned number, but the $64,000 question is whether the teaching excellence framework could have some good metrics. I can think of some good metrics, but they are unfortunately very boring and pedestrian and not the sorts of things that people like. Here are some good ones: online tests of numeracy and writing capacity, and online tests of first and second language—in short, that sort of thing—rather than asking how many hours students work when we do not know what we count as full time. Then we could ask how many pages of written work they turned in the last term, and how many of them received commentary and feedback. Those are the sorts of things that students and their families mind about not being there, and I think that we need to use robust and honest metrics if we are going to do anything like what the Bill proposes. I am not sure that any of the metrics out there in the international or national ways of measuring these are robust or honest.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 9th January 2017 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, I have no offices to declare and I hope I will not bore the House, but I had experience of setting up a new university, the University of the Highlands and Islands, some 20 years ago. I recall that there was huge opposition from existing universities, which did not like the idea of a new university using new technology and the emerging internet, so I have reservations about the amendment. By creating a definition, it appears to be restricting the opportunities for change, variety and diversity in the university sector, so I think it is fundamentally misguided.

I also think that it is a great mistake to have declarative clauses in any legislation. If the amendment were passed, how would it be enforced? What kind of trouble would it cause existing universities, with people bringing judicial review and so on? Then I thought: why are so many very bright, intelligent and knowledgeable people getting up to make speeches in support of it? The elephant in the room is that we are worried about the content of the Bill and the effect that it will have on the autonomy and freedom of speech of the universities. As the noble Lord, Lord Myners, pointed out, we are also worried about the extent to which corporate governance in some universities is strong and effective enough to ensure value for money for the taxpayer. So the Minister has a difficult task.

The problem arises because of the content of the Bill. It would seem better to address the issues that are included in the list by looking at what the legislation says. I am a free market Tory; I do not believe in government interfering in institutions that are doing perfectly well, thank you very much, but I do believe in getting value for money. However, I do not think that it is right to create a situation that we had in Scotland recently—if I can use the referendum word—where the principal of my former university, St Andrews, complained about Mr Alex Salmond putting pressure on the university for political reasons. That is a good example of how things can go very badly wrong.

We should focus on the content of the Bill and what the Bill says to strengthen the autonomy of universities. To pass the amendment would be a very great mistake because, as many people have said—including my noble friend Lord Willetts—by putting in a definition of this kind we may actually achieve the opposite of what is intended in its purpose. I speak in support of the Minister, who has a difficult job. I think that he should reject the amendment, but he should also go back to his colleagues and say, “There is a problem here. What can we do in terms of the substance of the Bill to address the concerns about having autonomy in our universities and keeping government and outside organisations from interfering in their day-to-day work and in their views on how they should be run and expanded?”.

[Baroness O'Neill of Bengarve (CB)]

Following on from the noble Lord’s comments, if the Minister is minded to reject the amendment and go and think about it, could he think in particular about the many institutions that sometimes appear in different parts of the world under the title of university, which may not be universities that this Bill is designed to promote or protect, nor institutions where we would want many of our young people to seek their education? I have in mind not merely the well-known Hamburger University, which has a rather limited set of subjects on the menu, but also those universities that are in fact annexes or derivatives of respectable universities which set themselves up in other parts of the world and which would be most attracted to setting themselves up in a place where students have access to funding for their tuition. Those places offer a very narrow, minimal and perhaps not very demanding set of subjects.

The Minister told us at Second Reading that the big problem currently is that the legislation is needed to update the regulation of universities. I accept the point, but it would be much more helpful to know which specific mischiefs the Government hope to remedy with this piece of legislation. There are specific mischiefs—the noble Lord, Lord Myners, mentioned one of them; there are places where too little teaching is done. But I am very certain that, if the Bill goes through unamended, there will be many more universities, so-called, where very little teaching is done. It is quite ordinary for institutions to compete not to be the best or to have the best offerings but to make the greatest profit and to do it in the most cheap, cheerful and economical way. As the noble Lord, Lord Giddens, said, as we move through a technological revolution, of which MOOCs will be a serious part, we need to think very hard about what is not a university. That may be rather easier than defining what is a university.

[Lord Judd]

First, I declare an interest. I am an emeritus governor of the LSE and a life member of court of Newcastle University as well as being a fellow and life member of court of Lancaster University.

My experience in those quarters has left me in no doubt that this new clause is definitely needed, and this has been an interesting debate about what its exact shape should be. It should be looked at in relation to Amendment 65, in the name of the noble Lord, Lord Kerslake, and Amendments 165 and 166 in the name of my noble friend Lord Stevenson. They make the crucial point that this legislation should state that the Secretary of State has an inescapable responsibility to uphold academic freedom and freedom of thought. That first principle should be there, right at the beginning of the Bill. I am very glad that my noble friend has tabled those amendments, but it would have been better if their proposals had been included in this new clause.

There are some pressing issues which make this more urgent than ever, and colleagues in the House have spoken about them. The post-truth society is being talked about: there is a desperate need to rebuild and regenerate a commitment of some weight to the search for truth and excellence. That is crucial. I have sometimes reflected that the real test of a good university is the strength of its departments of ethics and philosophy. There is not much ethics these days in most universities. More than this, there is a terrible confusion growing in society about the difference between education and training. If we are to operate our society effectively, of course we need very good training. Some will be vocational training which is sometimes terribly impressive in its quality and its leadership. We also need increasingly to be able to see issues in a multidisciplinary context. It is trite, but it can be said that these days it is a matter of knowing more and more about less and less. We have to have somewhere where things are being brought together and views challenged from different perspectives.

This new clause is very important; we need to make sure that all these ideas are taken on board, as I am sure my noble friend would be the first to agree. His opening speech was very conciliatory and invited suggestions about how the situation could be improved. I hope he meant that because it is important—I am glad and relieved to see him nod his head.

This has been an excellent debate and it would be very unwise not to take these ideas fully on board. Coming back to my first point, we must not, with all our preoccupations, miss the opportunity to leave future Secretaries of State in any doubt about their personal, direct, ministerial responsibility to uphold the principles of academic freedom and autonomy in every way that they can.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Wednesday 11th January 2017 Lords Chamber

Higher education institutions are responsible for complying with the law in terms of promoting equality and making reasonable adjustments for disabled people under the Equality Act 2010, and we expect universities to fulfil their responsibilities under the Act. So a range of statutory arrangements already in place promote access to higher education for those with disabilities. I am aware that the noble Lord, Lord Addington, who made a passionate speech in this respect, might say that he has heard this before. However, I will go further and say that the Government have facilitated a sector-led group to draw all this guidance together to help providers to respond to the changes to disabled students’ allowances, and this will be reported shortly. I hope that he will know that we are taking action in this respect.

[Baroness O'Neill of Bengarve (CB)]

Perhaps I may raise one point for clarification. I think the Minister just referred to the public sector equality duty, which of course would in any case apply to any university that is indeed a public body. I accept the point that perhaps no supplementary and additional clauses are needed there to ensure proper and fair treatment of students with disabilities. However, I am not quite certain how that would apply to an English higher education provider that is not a public body but a private one. Can the Minister clarify that point?

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

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

[Lord Judge (CB)]

My Lords, I support what has just been said by the noble Lord, Lord Norton, and draw attention to my own interests in the register. We have a perfectly clear piece of legislation in Clause 2(1), in which Parliament tells the OfS what it must do and what it must have regard to. We then have the creation in Clause 2(2) to Clause 2(6) of guidance which has absolutely no parliamentary scrutiny, whether before or after the Secretary of State chooses to issue that guidance. It looks like legislation, because it is contained in Clause 2, but it is not legislation and it should be.

There is a remarkably strange feature if we turn 44 pages onwards to Clause 71, where we have the power granted to the Secretary of State to give directions. Of course, that is going to be a necessary ingredient of the Bill. The strange thing about it is that in the directions, Clause 71(2) is in identical terms to the guidance authorisation in Clause 2(3); Clause 71(3) replicates Clause 2(4); and Clause 71(4) replicates Clause 2(5). In other words, there are identical provisions in these two clauses: one creates the power in the Secretary of State to give guidance, the other gives the Secretary of State, after Parliament has agreed, the power to issue directions.

As far as I can see, there is no indication about the criteria which should be applied as to whether a particular directive by the Secretary of State should be treated as guidance or legislation. The fact of the matter is that there is now going to be power to give guidance with no statutory scrutiny and power or authority to give directions which will be subject to statutory scrutiny. There is no logical reason why we should have such an absurd situation. The amendment proposes simply that the guidance should be brought before the House at some stage in the process so that the House can have a look at it. We should have a chance to consider guidance issued by the department in this influential new arrangement.

[Baroness O'Neill of Bengarve (CB)]

I support the amendment. I think there are wider reasons for feeling that not everything can be well done by guidance. Among other things, guidance sits there in the cupboard, so to speak, and there is no reason for the Executive or Parliament to review it until somebody is tripped up in an unfortunate way.

Guidance seeks a sharper definition between what may and may not be done—between compliance and infraction—than is probably feasible. There is much to be said for a somewhat more formal procedure that will make it clear what has parliamentary backing, because it is a statutory instrument, and what does not. Excessive reliance on guidance would weaken the structure of the Bill and create a degree of persisting uncertainty. People are frequently being tripped up by guidance of which they have never heard which lives in an obscure place. That is unnecessary.

[Lord Willetts (Con)]

My Lords, perhaps I may briefly comment on these amendments by looking at them from the perspective of how the old system has functioned. We have been told about the powers of the OfS, and your Lordships are scrutinising those very carefully. I think that perhaps the powers of the old HEFCE have been understated. In reality, HEFCE was not only the funder but was using its funding power to be the regulator—a highly discretionary regulator that operated with very little transparency and few constraints.

HEFCE was the extremely successful buffer body between government and universities, and the Government communicated with HEFCE notably through the grant letter—and the grant letter, I suspect, is the origins of the guidance provision in front of us today. The grant letter is the way in which the Government have historically set out their policy, week by week, year by year, for universities, and so, for example, it has been historically possible for the Minister for Universities to go to the Chancellor and say, “High-cost subjects are not being sufficiently funded. We do not think that the extra costs of doing them are properly reflected in the higher cost bands. Will it be possible to have extra funding attached to that?”—and then in the grant letter to suggest to HEFCE, “In the light of the funding we have available, it would be excellent if HEFCE were able to identify and set aside more funding for high-cost subjects”. Indeed, I used to write such grant letters with my excellent former colleague Sir Vince Cable.

What is happening—this goes back to discussions we had last week—is that as we are now moving from that old discretionary high-trust system to a new rule-bound system with a regulatory function, quite understandably your Lordships, at each stage of the process, are trying to pin down what kind of decisions will be taken and how they will be taken. I think that a power to give guidance distinct from a power to give instructions, and a reasonable amount of flexibility for Ministers to use it so that they can communicate the same kind of messages that they used to in the old HEFCE letter, is in the interests of the sector as a whole.

--- Later in debate ---

[Baroness Watkins of Tavistock (CB)]

My Lords, I draw attention to my interests, as declared in the register.

I support the amendment, to which I have added my name. As the noble Baroness, Lady Garden, has already pointed out, the majority of higher education will be undertaken in traditional higher education institutions, including further education colleges. Those institutions are accountable for innovative, appropriate curriculum design, as outlined earlier by my noble friend Lady Brown. It is appropriate that curriculum design includes enabling students to have degrees awarded when a proportion of their programme is either with employers or on placements. In health, for example, students need to learn in hospitals and communities, and some very innovative new approaches in higher education are associated with degree-level apprenticeships. At the University of Exeter there is an ambitious approach to the new degree-level apprenticeship schemes, which involve working with employers and their staff. The first of these programmes commenced in September 2016—a BSc honours in digital and technology solutions. It involves working with four employers, including IBM.

A degree-level apprenticeship offers a new route to achieving a university degree in collaboration with employers. Apprentices are full-time, paid employees of the business partner, but a proportion of the student’s time is spent participating in a programme, using blended learning, residential teaching blocks and assessed projects and placements.

Therefore, it is imperative that we are clear in the Bill about the definition of higher education and that we recognise that, whether it is in health or industry, part of students’ higher education experience is increasingly in a workplace. Amendment 72 would encompass, and make provision for, this approach through the definition that it provides, thus strengthening the Bill at this point.

[Baroness O'Neill of Bengarve]

My Lords, when the Minister replies, can she clarify a key term of the Bill—namely, the English higher education provider? I think we all understand—and this clause makes it very explicit—that we expect a diversity of institutions to provide higher education in England. What is unclear to me is whether English higher education providers have to be incorporated under English law. May they, for example, be incorporated under the law of the Cayman Islands? If they are for-profit organisations, may they pay their taxes—if any—there? It would be clarifying to know whether English higher education providers are to be incorporated under English law.

--- Later in debate ---

It is only fair that when we make laws in Parliament and impose important obligations on bodies, they are very clear as to their extent. There is a real concern that what we have here can lead to confusion. Although there is a considerable overlap here, it does not go as far as the Equality Act 2010. I think it would be regrettable—I hope it is not the Government’s intention—if the obligations of the 2010 Act were diluted in any way for higher education institutions. I beg to move.

[Baroness O'Neill of Bengarve]

My Lords, we need to clarify a point that I have raised a couple of times already, which is whether English higher education providers are indeed public sector bodies and therefore fall under the 2010 Equality Act. I speak as a former chair of the Equality and Human Rights Commission. That legislation, which I think is better than it is usually given credit for, is very clear that it applies to public sector bodies. We do not yet know whether the definition of an English higher education provider in the Bill means a higher education provider that is a public sector body or even whether it has to be incorporated under the laws of England.

I suspect that there will be many overseas higher education providers which are extremely tempted by the high prestige, the system and the fact that students here are entitled to student loans, to seek to become higher education providers in England without being incorporated under English law and certainly without being public sector bodies, as the 2010 Act would require them to be to fall under this legislation.

Even were we talking only about a subset of English higher education providers that are incorporated under English law and that are going to fall under that Act, I am not sure that we would want all nine protected characteristics to carry the same weight. In particular, one has to think extremely carefully about age. It is not, of course, right to discriminate against people on the ground of their age, but to refer to disproportionality in the age distribution of a student body of an institution might seem ludicrous in view of the fact that, on the whole, people seek their higher education before they seek their careers.

There may be other difficulties here. I suspect that many people discussing equality fail to note that the 2010 Act sets out “due regard” duties. Those duties are met providing someone has due regard to the different characteristics at the point of making a decision. That seems to me to be correct, but it has no read-across to the question of proportionality and disproportionality, although that is a common misunderstanding. Perhaps we need not worry about the obvious implications of thinking that the proportionality would be an important consideration in these matters in that the fact—they are now facts—that more young women than young men go on to higher education in the UK and in England and that poor white boys and poor boys in particular, but not other ethnic minority students, are less likely to go on. It is quite surprising when one looks at the profile of different groups going on to higher education. I suspect that this is something that we need to untangle before we go any further.

[Lord Willetts]

My Lords, that fascinating intervention gets to the heart of the direction of travel that is being debated in many different amendments this afternoon.

My understanding—I am sure the Minister will correct me if I am wrong—is that universities and higher education institutions are not public sector bodies. Nevertheless, in a range of different contexts, Parliament has decided to impose on them the obligations they would have if they were. The public sector equality duty could be one example. Freedom of information is another example. My concern—here I am a bit of a purist—is that universities are not part of the public sector and it is quite important for universities that they are not. If I were running a university—which I am not—I would start feeling two kinds of pressures on me. On the one hand, a significant number of Members of this House and elsewhere want to treat universities as if they are public bodies, so that whenever there is a nice public sector duty around they say, “Let us add it to universities although they are not part of the public sector”. Both FoI and public sector equality are examples. On the other hand, at the same time the Government—and this process goes back before 2010—are saying, “There is a private contractual obligation to deliver a service to a student so really they have got to be subject to competition law and the CMA and so on”. They end up being subject to a pincer movement, where they have got all the private obligations as if they were a company that needs to be competing, plus we throw in all the public obligations as if they were in the public sector when they are not.

The dynamic of these debates begins by saying we must do more to preserve the autonomy of universities and then spend the rest of the time adding extra obligations we would like them to comply with. If at the end of the legal process of preparing what will become an Act of Parliament we have ended up with more obligations on the universities, making them subject to the CMA, and more public sector duties despite them not being in the public sector, we will leave universities even more burdened than they are at the moment. We require some self-denying ordinance so that we do not keep piling more obligations on them. We have already imposed on them a range of obligations that go way beyond what any other private body is susceptible to. At some point there is a danger that universities will end up in the public sector. There is a danger that we all talk about them as if they are part of the public sector and treat them as if they are hospitals, schools and so on. They are not. They are independent bodies outside the public sector and we should be wary of imposing obligations on them as if they are inside, especially when we are in parallel and subject to greater market competition as well.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

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

Quality ratings must absolutely not be used to determine whether a provider may enrol non-EU international students. The purpose of the TEF should be to ensure quality, not to restrict the number of tier 4 visas authorised by the Home Office. Our higher education sector is flourishing, much of it due to the contribution of overseas students and staff, and the benefits to our country are enormous. The Government are deeply exercised by immigration numbers, but their concerns must not be allowed to contaminate higher education policy and practice.

[Baroness O'Neill of Bengarve (CB)]

My Lords, as a long-term university teacher, often rated by my students, both in this country and overseas, I have a sense of some metrics that are less gameable than others. That is surely what any attempt to measure things must look like. Student satisfaction about the beer is, obviously, not the best place to look. There are some well-known ways of looking at teaching which, if one can get the measurements, are quite useful. One might be how much a student has actually attended the required instruction. Statistics have been collected on this by the Higher Education Policy Institute, but if it was known that they were a metric I fear that they would be gamed. It is remarkable—and I think that I mentioned this at Second Reading—that the average for UK students a few years ago, when I last looked, was 13 hours per week of non-required work, above lecture and lab hours. That is not huge, but it varied from a number that I dare not even state to 51 hours of private study a week. That was for medics at some of our leading universities. That is one metric that cannot be gamed, but there are a few others. The number of pages written in a term or semester is quite instructive, and the number of those pages that receive feedback or commentary is another instructive metric. All those things are unglamorous—but you have to take extreme care in using them. Simple online tests of mastery of first language, second language and relevant mathematics might be worth looking at, but I do not think that student satisfaction is going to give us an accurate view of what is really going on.

[Lord Norton of Louth (Con)]

My Lords, I have two amendments in this grouping, and I declare my interest as a serving academic. I share the views of the noble Lord, Lord Desai, who I gather is a fellow graduate of the University of Pennsylvania, on the NSS, and to some extent those of my noble friend Lord Willetts. The survey provides valuable feedback and is a useful form of intelligence, but I am not sure that it can bear the weight that it has been given in this proposal for the TEF.

I commend the Government for recognising the importance of teaching and their acknowledgement of the complementarity of teaching and research. I commend them also for seeking to enhance teaching excellence. Ensuring that more information, and comparable information, is made available to prospective students, and encouraging the dissemination of best practice within HE, are wholly commendable goals. My amendments would protect the provision of information. I have no problem with introducing incentives to HE institutions to enhance teaching quality, but where we need to stress test this part of the Bill is in creating a statutory link between teaching quality and the level of fees being charged for that teaching.

There are three problems with the link stipulated in the Bill. The first is defining what is meant by teaching excellence. The proposed metrics for the TEF are too blunt to meet the assessment criteria and, in some respects, too narrow. The Explanatory Notes to the Bill state:

“The Teaching Excellence Framework is intended to provide clear, understandable information to students about where teaching quality is outstanding and to establish a robust”—


I always worry the moment I see the word “robust”—

“framework for gathering information to measure teaching in its broadest sense”.

I have no problem with the first part of the statement. It is the second part that is problematic. What is meant by teaching “in its broadest sense”? For me, it encompasses the capacity to develop not only intellectual but also personal skills that will enable students to fulfil their full potential as individuals in wider society. This may not be confined to career goals but may extend to being worthwhile members of society—in effect, good citizens. How does one measure that added value? It goes beyond the assessment criteria. I have serious concern with some of the metrics, because I fear that they may privilege status rather than teaching excellence.

The second concern is that, in so far as one can assess teaching excellence, quality is at department or course level, as the noble Lord, Lord Kerslake, and others have stressed. One has only to look at the National Student Survey to see variations between the aggregate at institutional level and the performance at subject and course levels. Yet the intention is to enable an institution to charge a higher fee level, which may apply to all courses, even those which deliver less quality than courses at other institutions which are not able to increase their fees.

The third concern, as we have heard already from the noble Lord, Lord Watson, is that there is no clear link between fees and teaching excellence. Higher fees will not necessarily serve to drive up teaching quality, but rather enable HE providers to spend more on marketing and ensuring brand recognition. More money may be spent on providing services to students, but not necessarily on their teaching.

In short, the proposal before us is based on a concept that is not clearly defined, cannot fairly be applied at institutional level and asserts a link that has not been proven. I look forward to my noble friend the Minister assuaging my concerns.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

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

[Baroness Deech]

My Lords I appreciate the kindness of the House in allowing me to speak to my Amendment 166, which is a little different from the others in the group. I make no apology for returning to the issue of academic freedom. When it was discussed in relation to Amendment 65 on the first day of Committee, the Government’s response was that academic freedom is already enshrined in Clause 14 as one of the principles that must be in the governing documents of a university. The amendment before us goes further in that it extends the principle of academic freedom to every person and body under the Bill, including the OfS and its satellite bodies. Moreover, it will apply directly to the university in its everyday operations, not just in its governance documents. There will be nothing to stop a future Secretary of State removing that principle rather than, as in the past, finding that power only in the Privy Council.

There is also concern that the new Clause 1, which was passed by this House, which mentions academic freedom, might not survive Commons scrutiny. All our freedoms, including those in the convention on human rights, are circumscribed by law, which changes from time to time, so academic freedom—limited here to academic staff, not visiting lecturers, students or auxiliary staff—is subject to the criminal law. There is a lot of law circumscribing academic freedom and freedom of speech, including terrorism, equality and discrimination law. Academic staff are free to hold conferences at the university, but will not have protection —rightly so—if that conference promotes racial hatred or gender discrimination. I have often wondered about the example of a medical lecturer teaching students how to perform female genital mutilation, as opposed to how to how to discover it or take remedial action.

The extent of the teaching excellence framework also risks infringing on academic freedom if it goes as far as to tell a lecturer what, or perhaps how, to teach his or her class. We remain in dangerous water and the amendment is sorely needed. It is also a safeguard for lecturers against students’ censoriousness in this age of safe spaces and snowflake undergraduates. A lecturer must be able to lecture, despite the disapproval of his colleagues and students. I instance an LSE lecturer, Dr Perkins, whose well-researched views on benefits and their recipients were not welcome. The amendment would also incorporate the human rights of freedom of expression, assembly, thought and belief. It is sadly necessary that this be repeated as a direct responsibility on each university.

[Baroness O'Neill of Bengarve (CB)]

My Lords, I very much regret delaying things at this hour, but I ask for a clarification on Amendment 139, moved by the noble Lord, Lord Stevenson of Balmacara. It states that an English higher education provider is a higher education provider in England: we go back to this territory. I thank the Minister very much for the letter that was quickly sent to those of us who asked about it, but the clarification provided in the letter does not meet the need.

The letter states: “If an overseas university wishes to set up a base in England and wishes to appear on the register for its students to be potentially eligible for student support and to apply for English degree-awarding powers and university title, but most of its students are based overseas, then it will need to set up a presence in England as a separate institution”. It is not clear to me whether that separate institution is incorporated under English law or could be incorporated under other laws. That needs clarification. I think the letter is intended as a clarification of Clause 77. However, I do not think it really takes account of the reality of contemporary distance learning, because it continues: “But if it was the case that such an overseas university had more students based in England and overseas, it would be able to meet the definition set out at Clause 77 without establishing a separate institution in England”. The OfS will of course have to apply a risk-based approach to regulating such institutions and could impose stricter initial or ongoing registration conditions where it considered that such an institution presented a greater degree of regulatory risk.

If this overseas institution that has a majority of its students in England is not incorporated under English law, I am not clear how this will work. Maybe I am being thick about this but I think I can imagine an overseas institution that is primarily teaching via MOOCs that has, as it happens, more students registered in England than it has registered in whatever jurisdiction it is incorporated in. I ask myself whether that is an adequate protection. Would we need to be clear that an English higher education provider or the sub-institution it sets up be incorporated under English law? In particular, would any holding of property or funds by that subsidiary institution have to be under English law?

[Viscount Younger of Leckie]

My Lords, in the interests of brevity I shall write a full letter addressing the main amendments in this clause. Just before I conclude, I want to say that the issue focuses on the provider which carries on some of its activities outside England. The only proviso is that it must carry out most of its activities in England. We are focusing on the English higher education provider.

The amendments, particularly Amendments 140 and 164, go to the important principle of academic freedom that we all agree underpins the success of our higher education sector. I believe that there is no difference of view on that matter. As I said earlier this week, the Minister in the other place and I are reflecting on this issue, taking account of the views that we have heard in this place. I listened carefully to the comments raised by the noble Baroness, Lady O’Neill, and, as a result of the letter that she received today, the very best thing to suggest is that I will meet her to take her points further and/or write to her.

While I understand and sympathise with the intention behind all these amendments—I promise that I will follow up with a full letter and the new clause—I do not think they are necessary, and ask the noble Lord to withdraw his amendment. Just before I conclude, I want to clarify one point and to address the issue raised by the noble Lord, Lord Stevenson, who asked me to clarify my position on the linking of the TEF fees. I have also had time to check the Conservative manifesto. I agree that the manifesto commitment was to introduce a TEF, and I want to make this quite clear to the House.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

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

[Lord Stevenson of Balmacara]

My Lords, I am grateful to the Minister for introducing his raft of amendments. He is right that on the area we are talking about we meet in the middle. I am glad that his amendments, which outnumber ours by about 100 to one, were tabled, because what we had tabled would certainly not have been sufficient to achieve what he has outlined.

It is good that this is being done in pursuit of a vision of higher education provision that is inclusive rather than exclusive and which is open to many institutions to offer the various types of degrees and qualifications that they think is appropriate, with the aim, as picked up today in earlier amendments, that other modes of study, such as full-time and block release, are not excluded in any tally. With that will come the responsibility to ensure an effective credit accumulation system that allows those who have credits banked in the various styles and approaches that different institutions have to cash them in, as it were, against other higher education provision, to ensure that they arrive at a satisfactory conclusion with the degree that they have been studying for through this flexible route.

I have three worries that I wonder if the Minister could respond to in the short time available before we must break for the dinner business. Maybe this will mean that yet another letter will emerge from this process, and I have no objection to that. The first is that we have heard announcements today about various different types of institution that will focus on technology and technological achievement. These are to be welcomed, but it is not clear that provision has been made for that in the Bill. The Minister may not have been able to adapt the thinking announced today into the mode that would apply to the Bill, but I would be grateful if he could confirm whether or not it is the Government’s intention to try to bring forward anything that might be a consequence of the proposals made today. I agree that we are in a three-month consultation period but the Bill will last a lot longer, and there may not be another higher education or even further education Bill along in the next year or two. It would be a pity to miss the bus, as it were, on this occasion, so some clarification at least about the thinking would be helpful. We would certainly wish to work with the Minister if there were some suggestions about changing the framework here, although maybe he will be able to confirm that that is not the case.

Secondly, the question about who has what powers to do what is confusing. I want to assert what I think is the intention behind this term, and if the Minister is able to confirm it then so much the better. I also have a question embedded in this, which is where I will end. The intention of these amendments, as it was in our proposals as discussed in Amendments 242 and 256A, is twofold. First, it is to remove any doubt that institutions in the FE sector can apply the powers to grant taught and research degrees in addition to foundation degrees, as in the current system. Secondly, it is also to remove any doubt that institutions that are not in the FE sector, and which have been granted degree-awarding powers, can also award foundation degrees—in other words, institutions can provide the whole suite of qualifications.

However, it also seems to be the case that the Government are trying to say that only an institution in the FE sector can apply for the powers to award just foundation degrees, which seems perverse. If the Government accept my opening premise that we are trying to open up the system to make it more flexible, why is it only in the FE sector that you can find these foundation degrees? Is there something special about them that restricts Oxford University, Edinburgh or anyone else with the ambition and the wish to try to make as seamless a proposal for students wishing to enter university as possible to be prohibited from offering a foundation degree because they are not in the FE sector? That seems odd and slightly against what the Minister was saying as he introduced the amendment.

There seems to be a proposition buried in the amendments: that we are opening up everyone to offer the sort of courses that allow any student—full-time, part-time or mature, of any persuasion, type or arrangement—who wishes to come forward for degrees to be able to do so in the way that has the fewest institutional barriers. This particular restriction, that only FE providers can offer foundation degrees if that is all they want to offer, seems to go against that. I look forward to hearing from the Minister.

[Baroness O’Neill of Bengarve (CB)]

My Lords, I am beginning to feel like a broken record but I am still very unclear on what an “English higher education provider” is. I understand that it is meant to be an inclusive category, and that may have its merits. I have now read the Introduction to the Higher Education Market Entry Reforms—which I find a slightly angled title, let us say—and the factsheet on degree-awarding powers.

To put it very simply, I am still not clear what there is to prevent entryism into this market by institutions that we would not normally think of as higher education providers or teachers. I shall give some examples. I have hesitated to do so far thus far because one does not wish to spoil the cheerfulness that attends the thought of new providers. However, let us imagine that a large-scale publisher—this is not at all an implausible way of expanding—sets up a wholly-owned subsidiary that offers degrees in England. I do not mean degrees in publishing but, rather, degrees of various sorts, as is profitable. Are they able to become an English higher education provider by that route?

Let us be a little more far-fetched. Suppose the Communist Party of China thought, “A bilingual university in London to which we can send people and where we will have very good access for our highly intelligent and well-trained academics would be an extremely good thing”. It too would then be providing higher education in England. Because in each case the institution is a wholly owned subsidiary, its students would qualify to receive tuition grants. However, I am not clear whether, if such institutions go bankrupt and the parent company is outwith the jurisdiction, there is any chance of recovering the assets of the one-time university.

Finally, let us imagine that it is neither of the above, but so-called Islamic State that seeks to set up a university. That might rather appeal to it. What is to prevent that? We need to know about the governance of these institutions. The fact that they are providing education in England just tells us that this is one of their markets; it does not tell us about the standard of governance.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

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

[Lord Willetts]

My Lords, I support the amendment introduced by the noble Lord, Lord Hannay. As my noble friend Lord Patten displays such a close familiarity with Conservative slogans, let me add a second—one of the great Brexit slogans, “Take back control”. I do not see why our migration policy should be determined by the United Nations. No other country says its policy should be determined by how the United Nations has chosen to define immigration. If we want to take back control, I do not see why we should allow our policy to be determined by the United Nations. We should take back control of our migration policy and set it in accordance with our national requirements, rather than allowing this dangerous, global institution to decide who we should or should not count as migrants. As well as being about global Britain, the excellent proposition from the noble Lord, Lord Hannay, is about taking back control.

I have two brief questions for the Minister. We all appreciate the difficult position that he is in. One of the problems for universities has always been planning ahead and marketing themselves around the world when there is always a danger of further changes to the migration rules. If there is anything he could say that would indicate that the Government are not planning any changes in the regime for overseas students that would be a modest but helpful step.

Secondly, could the Minister indicate where he thinks education could sit within the industrial strategy? In the brief reading I have made of the documents so far, what has surprised me has been that I did not immediately see education in the list of key potential sectors. I hasten to add that education is not simply a business sector; it has a value in its own right. Nevertheless, it is a very successful British export. If, in response to the consultation on the industrial strategy, there were a message from the education sector that it would like to be backed by the Government in an exporting mission and be seen as an important part of GDP, I hope the Minister would be able to indicate that they would strongly support education as a key British export sector as part of their industrial strategy.

[Baroness O’Neill of Bengarve (CB)]

My Lords, I felt that this part of the debate would not be complete without the voice of the overseas student. I was an overseas student. I did my PhD at Harvard. The process for getting a visa was rather fierce. I remember going to the American embassy in London with a chest X-ray in a very large brown paper envelope, and there were other things that had to be produced. When the time came to leave, I had an American husband and a baby with an American passport. That made no difference. I was a foreign student who had come in under a particular programme, with a particular sort of visa, and I had to leave.

The point that is relevant now is that it is the accuracy and precision of the control process that prevents any drift from student status to economic migrant status. This is what matters and pretending that they are one and the same does not really address the problem. The problem is surely clarity about categories and controls.

[Lord Stevenson of Balmacara]

My Lords, this has been a terrific debate. It must rank as one of the better ones on this topic that have taken place over the years. It has lacked only one thing. We normally like to have the comfort of the noble Lord, Lord Cormack, making an orotund statement to sum up our feelings and allow us to drift off into the night in a comfortable way. The noble Lord is present but he is not going to speak and I am saddened by this. There is nothing more that needs to be said—the points have been put across so well.

Perception is always at the heart of this. We send messages that we are unwelcoming. We do not live up to the best that could happen in UK plc and we are missing huge opportunities in soft power and the development of our own arrangements. It may be a step too far to take back control from the United Nations. Even the noble Lord, Lord Willetts, when he comes to his senses—if ever—will realise that it may not be the best argument we have heard tonight. The arguments are almost irresistible. I cannot believe that the Minister will not want to endorse them in every respect.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

Committee: 7th sitting (Hansard - continued): House of Lords
Monday 30th January 2017 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I mentioned this amendment in an earlier group. However, because of the way these things are structured, I did not get an opportunity to reply to the Minister. This is a vital matter. I cannot see why the Office for Students, with no particular qualification in relation to research, should be solely responsible for the decision to award research degrees.

The Minister indicated that there is a general power for the Secretary of State to order co-operation and so on. In the Bill the power to make a joint decision is very restricted indeed and would not apply in this connection to the power of the Office for Students to award research degrees. It certainly would not enable UKRI to take part in that.

I can see that there may be a difficulty about research students. I do not mind too much about that. It seems to me that that is also a question about research, but it may be that it is very routine and therefore the Office for Students would need to be involved in that. But giving the Office for Students the power to award a research degree power to a higher education provider while there is a body standing by—created by the Bill, with all the expertise of research—but not taking part at all, does not make any sense. I say this with the greatest possible respect.

The Minister suggested that it might work against the interests that were being talked about but I really cannot see why these research degree-awarding powers should be a matter for the Office for Students alone. I can see that it may have a legitimate interest in the provider as a whole but it certainly does not have the full expertise of research that UKRI can give. This seems to be an ideal situation for joint decision-making. I beg to move.

[Baroness O'Neill of Bengarve (CB)]

My Lords, I add my support to the amendment. It seems extraordinary to imagine the Office for Students unilaterally making a decision that an institution should have the power to award research degrees. Surely it is quite essential that a research organisation—particularly, in this case, UKRI—should be heavily involved. Equally, I do not think that UKRI can make the decision alone because it relates also to the capacity of university departments to receive and look after research students.

[Lord Stevenson of Balmacara]

My Lords, briefly, I put my name to this amendment because it raises quite a big issue in relation to the respective powers, which the noble and learned Lord explained very well. We have almost a surfeit of expertise around and it needs to be picked through very carefully. I invite the Minister to respond after due reflection, perhaps in writing, because this is something that we will need to come back to when we look again at the powers of the OfS on Report. This is not his current responsibility; it will probably be for the noble Viscount the Minister to respond.

This is a question of what powers the Secretary of State feels need to apply to which institution, not just in relation to the power to award research degrees—which is in itself an important decision—but in relation to, for instance, the quality of the teaching that might be involved.

We are hearing a lot about the way in which the department feels strongly that a measure must be introduced that will allow it to assess the quality of teaching. As far as we understand it, at the moment that is at an institutional level—although it will go down to departmental and, possibly, to course level. If it goes to course level, or even to departmental level, presumably it would be an imperfect measure if it did not also look at the research degrees that were awarded by that department or by the staff involved. We therefore have to know a lot more about this before we can make a decision about whether the powers are allocated correctly and whether the responsibilities lie in the right place. I look forward to having responses in due course.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

Report: 1st sitting: House of Lords
Monday 6th March 2017 Lords Chamber

[Baroness Garden of Frognal]

In moving Amendment 2, in my name, I shall speak briefly to Amendment 48 in the name of my noble friend Lord Storey. At the start of Report stage, I thank the Government for tabling an extensive raft of amendments. It raises questions: why, during remorseless Committee sittings, did the Government not give some indication of their intentions and avoid fruitless hours of debate? Given all these amendments, why was the Bill so ill thought through in the first place? Where was the pre-legislative scrutiny, the consultation, or even the careful drafting, which would have enabled a more productive use of time and expertise in this Chamber?

However, let me not be churlish: better a sinner that repenteth. Amendment 2 picks up issues raised throughout consideration of this Bill. All sides of the House have argued that it is important not to neglect the considerable part played in higher education by those who are not following full-time, three-year courses. Part-time study, we know, has been in decline since 2008 by a combination of factors: for instance, restrictions placed on equivalent or lower level qualifications—ELQs; and the introduction of higher tuition fees in 2012 for part-time undergraduate courses. Part-time adult and distance learning provides diverse opportunities for many people unable or unwilling to access full-time undergraduate programmes, enabling them to progress their learning and to take opportunities for development that would not otherwise be available to them. Given that this valuable provision is so easily overlooked, it is important that there should be a voice and specific representation on the OfS board. This is a very simple amendment which I hope the Minister will be able to accept.

In the same spirit, I have added my name to government Amendment 8 which also reinforces recognition of part-time study, distance learning or accelerated courses. I am grateful to the Government for that. I have added my name to Amendment 48 in this group, tabled by my noble friend Lord Storey. We join those who want to see an end to the stigma surrounding mental health, where our colleague Norman Lamb has been a great champion. This amendment is important not only for those who might develop mental health problems during their time at university but for those who have experienced mental health problems in the past.

It is not just students; university staff, too, can experience stress and mental health problems. As responsible employers, universities should have support services in place for staff and their duty of care to students should also include mental health support. This amendment would make it clear that such provision should be available. Many universities already offer this and make it clear to students and staff that provision is available, but this amendment would ensure that all universities make students and staff aware of the provision. I beg to move.

[Baroness O'Neill of Bengarve (CB)]

I speak to Amendment 7 in this group, which seeks to put an additional general duty on what we are still calling the Office for Students. This general duty is to ensure that all English higher education providers—a term of art that we have now learned—have the same duties to make reasonable adjustments for students with disabilities. In Committee, we had very great confusion on this point. Some noble Lords on the Liberal Democrat Benches hoped, and perhaps some still do, that the public sector equality duty could apply directly to English higher education providers—but it cannot, because not all of them will be public sector bodies; in fact, it may be that very few of them are public sector bodies. The noble Lord, Lord Willetts, said that he thought that the public sector equality provision did not apply because universities were charities. However, it is part of the point of the legislation to secure a diversity of types of providers, and they will not all be charities. In fact, many of them may be for profit.

--- Later in debate ---

Tabled by

[Baroness O'Neill of Bengarve]

7: Clause 3, page 2, line 17, at end insert—
“( ) the need to ensure that all English higher education providers have the same duties to make reasonable adjustments for students with disabilities,”

[Baroness O'Neill of Bengarve]

My Lords, I am very grateful to the Minister for using the words “reasonable adjustments” in this context, and I shall look carefully at what he has said in Hansard. Reasonable adjustment is a well-understood phrase; it is rather different from a duty,

“to promote equality of opportunity in connection with access … and participation”.

Some years ago, I was responsible for a partially sighted student who had access and participation on an equal basis, but she needed to get everything that she had to read to do a degree in French recorded from the French equivalent of RNIB. There was about a three-month lead period, and it was essential that she got additional support to get the materials that she had to study available regularly and in time. That is the sort of thing that constitutes a reasonable adjustment; it is more than equal rights to participation and access. With that said, I shall not move the amendment.

Amendment 7 not moved.

--- Later in debate ---

[Lord Willis of Knaresborough]

I wish to clarify an issue. When the Minister introduced this group of amendments, he said that he would ask for Amendments 15, 16 and 17 to be spoken to before he replied. Does that mean that we cannot speak to the rest of the amendments? I have other amendments in this group.

[Baroness O'Neill of Bengarve]

My Lords, I have some sympathy with getting the age statistics right. That is a crucial example because it is objective and not highly sensitive, at least in my view. However, most of the other protected characteristics are not susceptible of statistically robust estimation. People do not always want to declare whether they are pregnant or to declare their ethnicity. I discovered that young people of mixed background did not wish to take sides between their parents, as they put it. People do not always wish to declare their sexual orientation, particularly when they are very young. The result is that one has an enormous number of “no information” entries in these statistics. To use this information in a statistically responsible way is not a simple matter. However, I exempt age. I would, until recently, have exempted gender because I think most people will give a simple answer on that. However, I fear that the information one actually records is not always robust.

[Lord Stevenson of Balmacara]

My Lords, this has been a very good and interesting debate. I think that there are some questions to which the Government will want to respond and I will not overegg the pudding at this stage. However, the question of why we are not including protected characteristics, as mentioned by the noble and learned Lord, Lord Wallace, is interesting. Amendments 16 and 18 are helpful in this regard. I take the points made by the noble Baroness, who is expert in these matters. However, if we as a country do not start to set out these requirements in terms of a whole range of protected characteristics, we will be the loser in the long run. It may be just be a question of how we do that.

This group of amendments also contains important first steps towards a more engaged transfer and credit transfer arrangement for students in relation to the higher education sector, which I welcome. However, I again wonder why the Government have not thought to take into account Amendments 47, 128 and 129. It seems to me that they would help progress in this regard, which is something we all support.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 8th March 2017 Lords Chamber

[Lord Bew (CB)]

My Lords, I support Amendment 69, which is in my name and that of the noble Lord, Lord Lipsey. I have to declare my interest as an elderly pedagogue—as a visiting professor at King’s College London, where the college itself has just produced a statement with its students union. As it happens, and totally coincidentally, this is broadly in line with the arguments that I am about to advance.

I am well aware of the concessions made in this area and grateful to the Government for them. They have gone a considerable way but I am still not convinced that the Government are fully aware of the dangers implicit in a survey of the NSS sort. These dangers are very real, given the Government’s other stated objectives in higher education. For example, at an earlier stage of the debate the Minister praised the Athena SWAN scheme, which is designed to promote the role of women in higher education. But it should be noted that Erasmus University has carried out a survey in similar style to that of the NSS scheme, which demonstrates a clear in-built bias in student reporting against women. The bias was about 11% against women lecturers. There is therefore a real problem.

Anybody involved in this who has looked at these student survey reports, as I did during my 25 years as a professor in the university in Belfast, knows that there are real dangers of bias—and that is one of them. In one case, I have seen the outstanding scholar in the field—in the world—referred to in the most dismissive terms because a scholar is essentially eccentric, and there is not the toleration among young people today of eccentricity that there was a generation ago. It is as simple as that and it is worth making that point.

Secondly, there is the problem of racism. Again, I am absolutely certain that the Government’s approach in this respect is sound and good. In fact, the Minister in the other place, Jo Johnson, has identified himself very much with the race equality charter in higher education, in which the noble Baroness, Lady Lawrence, has played a significant role. There is no question of where the Government stand on this matter. None the less, I hope that attention will be paid to a paper on this problem produced at the University of Reading by Adrian Bell and Chris Brooks. It shows, in a very calm and not overstated way, from a review of the literature that there is potentially a racist bias. There is certainly something that looks like a bias in favour of white professors in this sort of exercise. There are problems of racism and sexism. There was a very good discussion of this in an article by Chris Havergal in the Times Educational Supplement on 14 August 2016.

Finally, as I have said before, I am an elderly pedagogue, and I have some experience of looking at student assessment forms. We are in this position for two principal reasons. I absolutely accept that across the House we want to see the TEF succeed. One reason is that, once one moves to fees, I am afraid that something like this is absolutely inevitable. The other reason is that the research assessment exercise, which began in a very low-key, relatively amateur way in our universities, became much more specialised. Its format had to be improved. It was not just that scholars and universities had their attention directed towards doing research because that is how your career is made, but because vast amounts of ordinary university time was spent in gaming the exercise. Everybody involved in this knows that this is the case. In other words, we were seeking a spurious scientific metric: “Is a quarter of an article in this journal equal to a third of an article in another journal?”. So it went on. Noble Lords will be amazed, but everybody who works in universities knows that what I am saying is true. The amount of time spent by academics in meetings on this!

I have a vision of how this Bill began in the mind’s eye of a Government. About 10 years ago, there was a story in the Daily Mail in which students went to their professor’s door and found a note saying, “Sorry I can’t be here to teach you this afternoon as I have to go to London for a meeting of the research assessment panel”. That professor would know that his vice-chancellor would never say that that was inappropriate. If we have already made a mistake in doubling down on a pseudo-scientific, over-elaborate metric without realising its dangers, we should not repeat it when it comes to teaching.

[Baroness O'Neill of Bengarve (CB)]

My Lords, I believe we can get this right. I declare, or confess, a life spent in higher education. We saw a great wave of—let us say—enthusiastic assumptions that we could get rankings, and then sobriety struck. I was very pleased to see this morning on the BBC education news that Singapore, which was a hotbed of ranking, has decided that it is not the way in which to assess children’s learning, and I do not think it is the way to assess undergraduate or postgraduate learning. It is important that we should be looking not for rankings but for excellence. The reason we should not be looking for rankings is fundamentally that we are looking for excellence, as far as it can be achieved. If you merely rank, you do not know who is excellent. It could be the case that the top-ranked were nevertheless not excellent or that, very fortunately, there was a great deal of excellence even in the middle of the rankings, so let us get rid of rankings and look for excellence.

[Baroness Cohen of Pimlico (Lab)]

My Lords, I support the amendments. In allowing the simple-minded rankings of bronze, silver or gold, we would be substituting for all other measurements or assessments a fairly crude system of three measures. Nobody is going to read beyond “bronze”, which probably does not give enough credit. It is a very unsubtle method of ranking. I would like to see the test used for assessments and not for rankings, and I speak as one whose university would expect to be highly ranked. The system is too crude, and we would very possibly lose the “bottom 20%” fairly sharply, which would not be a good idea at all.

--- Later in debate ---

[Baroness Deech (CB)]

My Lords—

[Baroness O'Neill of Bengarve]

My Lords—

[Viscount Younger of Leckie]

Perhaps I may complete my sentence. It is not just looking at the gold, silver and bronze ratings. Yes, they are the high-level ratings but every student has the opportunity to look at the levels below those to find out what they mean and what the detail and data are within those assessment levels.

[Baroness O'Neill of Bengarve]

My Lords, the Minister quoted the University of Cambridge. In its most recent briefing, dated 3 March, recommendation 4 reads:

“The Bill should place an obligation upon the OfS to undertake a consultation to determine the most suitable quality assessment body, which should be separate from the OfS. The OfS should not be permitted to act unilaterally with regard to assessing quality”.

[Viscount Younger of Leckie]

Perhaps I may make some progress, but I would like to say again that the lessons-learned exercise is one that we take seriously, having listened to noble Lords both today and in Committee. I hope that the House will respect the fact that we will be looking at this a great deal over the next two years.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

My Lords, it is worth reflecting that we had quite a long discussion of this issue in Committee, when opinions were more sharply divided than they are now. Amendment 116A, which has been spoken to and which we have put our name to, was originally drafted in slightly different terms. The balancing point between the end of the first part and the second part was that the new provider would have to be established for a minimum of four years with validation arrangements and that the QAC had to be assured that the provider could meet the required standards for the long term. We are listening and reflecting on what the Government say as much, I am sure, as they listen and reflect on what we say. We have decided to change our position on this and now align ourselves with the noble Baroness, Lady Wolf, who has spoken on this amendment. We are prepared to accept that it is a good balance. I agree with the noble Lord, Lord Willetts, that we now have it about right. There is a route through which new institutions can come forward and receive degree-awarding powers: one of partnership and which has a minimum of four years. We would like to see that maintained because it has a value, but there is also the opportunity to be assessed and assured directly, without having to have a waiting period.

I am glad that, in all this debate, we have now lost the idea that there will in any sense be a probationary period; there will be no such thing as probationary degrees. We are talking about getting something up and started, which will have external value and be recognised by everyone in this country and abroad as a new institution that is of the standard required in UK higher education. We can therefore support this, which is why we are happy to sign up to the proposals in government Amendment 116. We acknowledge, although we did not sign up to them, that the new arrangements set out in the government amendments introduced by the Minister will be an effective and efficient way of carrying this forward. We support them but hope to amend the amendments that have been tabled.

The narrow point is about whether the Government’s proposals mean that new, innovative providers can come forward without what the Government allege has been a problem with trying to find validation, and the cost of that. Given that the information from the Minister’s department was that there were of the order of more than 400 new providers, of which just over 100 have degree-awarding powers already, there does not seem to be much of a problem here. We should not be too shaken into worrying about the status to which the higher education system in the UK might have fallen by having this new charge for innovation. I am a bit sceptical about that; it can be overstated. Nevertheless, I accept the general principles proposed here and we are therefore able to accept them. But the measures that are in place would be of value if the specific words in Amendment 116A, in the name of the noble Baroness, Lady Wolf, were in place. I hope very much that, when it comes to it, she will invite the House to have an opinion on that.

[Baroness O'Neill of Bengarve]

My Lords, I have nothing against new providers coming in. I should declare that I taught for 14 years at the University of Essex, which was a new provider and which I think achieved very high standards. It was of course believed not to have done so until the first research assessment exercise, which revealed that it was doing very well.

However, the deep difference that we have not yet explored in this debate is that we used to assume that new providers, like old providers, would have a system of governance of a sort that we recognise in this country. We have talked quite cosily about the governing bodies of institutions, but it is not clear to me that that is an apt way of speaking about the full range of possible providers that might come forward under this more open scheme. In effect, the burden is being transferred from governing bodies to a regulator. A regulator may say that there are certain standards of governance that it thinks are important or even that it believes that university councils should undergo some sort of fit and proper person test. That would be a reasonable thought, but that is not in the Bill at present, so when we think about new providers, we must open our minds to the full range of possibilities, and we may wish to set some restrictions on the sorts of institutions that would be appropriate. I use the euphemism deliberately.

--- Later in debate ---

[Lord Mackay of Clashfern (Con)]

My Lords, I understand the reason for this amendment but am not sure that it is appropriate, because it is the Office for Students that would do the “musting”—if I can call it that—but the arrangements have to come from the higher education providers, which are dealt with by new paragraphs (a) and (b). The OfS finds out exactly what is going on and reports it. That may put pressure on individual providers to get along with arrangements. You cannot facilitate an arrangement unless the people wanting to make it are willing. There is also the problem with time when it comes to facilitating, encouraging or promoting awareness. In due course, the thing will become known, but the amendment is saying it must be done all the time—it is a continuing obligation. In the circumstances of this clause, “may” is the better word for this part of the arrangement.

[Baroness O'Neill of Bengarve]

My Lords, this is quite a complicated matter for higher education providers—as I have learned to call them—as the reasons why students come to a halt on their journey are very varied. Sometimes, they are not really committed to continuing, sometimes they are not really able to continue on the course, and sometimes there is another course with slightly different requirements to which they would be very well suited. It has to be a very hands-on process, and does not always go successfully, but nor would it even with this amendment.

One has to be very careful. In my experience, academic staff and the student counselling services have a great deal to do when an individual student hits one of these vicissitudes, and the process is not always successful. But we should also remember that in countries where they ostensibly have more of a credit transfer system than we have ever managed to achieve here, you cannot say, “Oh, I am not really enjoying my course here; I would prefer to be on that course there”. The process will be extremely difficult and very expensive for the institutions. On balance, “must” facilitate may not, for those additional reasons, be quite the verb that we want here.

[Viscount Younger of Leckie]

My Lords, the Government take the views of the noble Lord, Lord Willis, on student transfer very seriously, and I have appreciated the short discussions I have had with him. This is why, as we discussed on Monday, we have proposed Amendments 100, 139 and 141. I appreciate the warm words expressed on our amendments by the noble Lord, albeit they were perhaps rather lukewarm on Amendment 100.

The new clause will place a duty on the OfS to monitor arrangements put in place by registered higher education providers to enable students to transfer within or between providers and monitor the take-up of those arrangements. Furthermore, the OfS will have a duty to report annually on its findings. As my noble and learned friend Lord Mackay said, the government amendment will also enable the OfS to facilitate, encourage or promote awareness of arrangements for student transfer, so that the OfS can help ensure students understand the options for changing course or institution and so that best practice is promoted among higher education providers.

I thank the noble Lord, Lord Willis, for his Amendment 100A, which reflects the importance he attaches to this issue. It is well intentioned, and we have genuinely considered it. However, given the Government’s assessment of the evidence of barriers to student transfer, it is not desirable to adopt the amendment, some of the reasons for which were put rather eloquently by the noble Baroness, Lady O’Neill. Such an approach would reduce the flexibility available to the OfS as it develops its understanding, particularly through its monitoring, and could be overprescriptive, burdensome and interfere with institutions’ autonomy.

The government amendment will achieve our shared aims without interfering with or overly mandating how the OfS responds to its findings on student transfer, so, with respect, I ask the noble Lord to withdraw his amendment.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 13th March 2017 Lords Chamber

Moved by

[Baroness O'Neill of Bengarve]

146: After Clause 84, insert the following new Clause—
“Unincorporated higher education providers: financial support
Students enrolled on a course provided by a higher education provider that is not incorporated under the law of the United Kingdom do not qualify for publicly funded student support.”

[Baroness O'Neill of Bengarve (CB)]

My Lords, the purpose of this amendment is to try to help to ensure that higher education providers, including new ones, have adequate standards of governance, and in particular standards that support the integrity of the student loans scheme. The intention of the Bill is to permit a wider range of higher education providers to offer university education in England.

The novel term “English higher education provider” has a capricious definition: it is simply an organisation that offers higher education in England. It could be a public body, a charitable body, a company limited by guarantee or a for-profit company. It could also be an organisation with a single proprietor. In our debates so far, we have tended to speak of such providers as having governing bodies. This can sound reassuring and familiar, but there is nothing yet in the Bill that requires an English higher education provider to have a governing body that meets specified standards, let alone UK standards. The term “English higher education provider” is therefore somewhat misleading. We would not, I think, speak of a Chinese textile company that sells cotton t-shirts and socks here as an English cotton clothing provider. However, the English higher education providers that the Bill envisages are to count as English merely if this is a market for which they provide something.

We all hope the new entrants that the Bill when enacted may attract will offer high-quality university courses—ideally, courses that are not sufficiently available in the current spectrum of UK university offerings. For example, we might hope that some new providers would offer the quality of undergraduate education that the best American liberal arts colleges or the best technical universities in Germany or Switzerland offer. However, I think that that is very unlikely. The cost base for these institutions is extremely high. The US liberal arts colleges—I have in my time taught on five well-known undergraduate programmes of that type—require a four-year degree and charge extremely high fees. These institutions are typically part-supported by endowment funding and could not function without it. The cost of STEM provision, such as that offered by technical universities in Germany or Switzerland, is evidently also high, as it is for their counterparts here. Such institutions are not likely to see a ready market for their standard offering here, particularly as there would be very high competition from the best existing UK institutions.

At most, such institutions might offer a restricted, downmarket set of courses only in subjects that are cheap to teach but whose graduates are assumed to be well paid—typically law, business, accountancy or subfields of these. That approach to their franchised overseas provision has been taken in other jurisdictions by some prestigious US institutions. However, I am not going to name names, because I think that that would be unfair.

The major risk is that institutions of quite other sorts would seek to enter the market to provide higher education in England, lured by the prospect that their students might have access to publicly funded tuition loans. At present, somewhat surprisingly, there is nothing to ensure that those who seek to provide higher education will have even adequate, let alone high, standards of governance. We have talked rather cosily about the governing bodies of higher education providers, but that need not be the situation. Noble Lords who followed the story of the collapse of Trump University and the compensation settlement that was reached a few months ago will recognise the sort of risk that I am talking about. Noble Lords who have not yet had the enjoyment of following the gory story might start with Wikipedia. It is not an edifying tale.

The amendment seeks to address this problem by requiring incorporation under UK law for any English higher education provider whose students may gain access to publicly funded tuition loans. This requirement would allow the Office for Students to discover something about the governance, and therefore the finances, of any would-be English higher education provider that hopes to franchise its offerings in the UK. The OfS might even be minded to set a fit-and-proper person standard for members of such governing bodies and university leaders. We do this for banks; should we do less for universities? I beg to move.

[Lord Stevenson of Balmacara]

My Lords, this is a golden thread in our debate that has been pursued with considerable vigour by the noble Baroness, who has on every occasion, I think, asked difficult questions. In fact, she has been quite free with her favours, asking questions of me and of other noble Lords around the whole Chamber when we have failed to measure up to her high standards of accuracy and precision when mentioning the words “English”, “higher” and “education” in sequence.

Here we are at the crunch point. The noble Baroness has put down a very specific amendment that would have quite strong repercussions for any body attempting to recruit English higher education students, because along with students comes public money. The main argument as I take it—and we look forward to hearing about it from the Minister—is that we are risking public money on bodies when we have no certain knowledge about where and how they are incorporated and what rights and responsibilities they have to the students. She could have mentioned several other areas and it is important to get them on the record. Under the Consumer Rights Act, students are owed a duty of care by the providers of their course. Specific issues must be supplied by the institutions and remedies for students lie in legal protections, which would be exercised in court. If the bodies are not incorporated in the UK, how are they going to manage that? I think the Minister should respond to that in a positive way.

We are also concerned with insolvency issues. It is quite interesting and instructive that most of the Technical and Further Education Bill—which is accompanying this Bill through Parliament—is taken up with measures that apply if a college of further education goes into insolvency or is wound up. There is a special education administration regime with particular powers for the insolvency practitioner appointed to ensure that students rank above all other creditors and that their courses will continue, if possible, or be transferred to a similar institution if not. Creditors, who in insolvency law—as I am sure your Lordships’ House is well aware—are normally given primacy, are relegated to second place. We have no such system for higher education institutions in the UK. There is therefore no provision for what happens when a private company, in particular, decides it no longer wishes to teach its students. Where will the students seek redress? The cases mentioned by the noble Baroness are relevant in this jurisdiction as well as abroad. It will be very interesting to see how students will recover their loans and their opportunities if there is no incorporation which allows them to do so.

We are discussing this when there has been a change of ownership of a very distinguished private provider, BPP. That situation is not nearly so dire as the one I have been discussing but nevertheless reflects a very major arrangement. The ownership has changed. The senior management have decided to not continue and there is still uncertainty about how the overall firm will be run. This is a real situation involving large numbers of students, lots of money and very difficult legal and jurisprudential positions.

The Government are taking this seriously. I had a letter delivered to my hand as I walked into the Chamber. It deals in four pages with some of the issues that the noble Baroness raised. I am not in any sense wanting to make slight of the letter because it is useful to have it on the record, but the Government seem to be broadly of the view that the existing arrangements under which the Office for Students—surely we will be shortly be calling it the Office for Higher Education, as we prefer—will have responsibilities under the registration and degree-awarding powers will make sure that nothing untoward happens. That is not sufficient. We need greater certainty about what institutions are responsible for our students, how they are responsible, in what way they are incorporated and what the legal position is.

I look forward to hearing the Minister’s response, but I do not think that he will be able to measure up to some of the very strong critiques that have been made so far.

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

My Lords, the Government want to provide students with options and choice, and to enable them to pursue the path through higher education that is best for them. We want a globally competitive market that supports diversity, where providers that demonstrate that they have the potential to offer excellent teaching and can clear our high quality bar can compete on a level playing field. To deliver that competitive market, we are introducing through the Bill a single, simple regulatory system appropriate for all providers, with a single route to entry and, for the first time, a risk-based approach to regulation.

It is through imposing conditions of registration that are directly linked to risks that we are able to improve and strengthen regulation of the sector. The Bill will enable us to go further than ever before and protect against the very issues that I know noble Lords are concerned about, in that, for the first time, we can focus attention where it is needed, rather than having the current one-size-fits-all approach. This means we do not have to take such a blanket approach as proposed by the amendment, which would automatically exclude potentially excellent providers.

Let me be absolutely clear: we are talking about providers which are carrying out their activities principally in England, so inevitably there will be a presence of some kind in England. Although each case will depend on its own facts, in determining where a provider carries out its activities, questions such as where the provider’s management activities take place, where its courses are designed, where course material is prepared, and where supervision, marking or other evaluation takes place, will need to be considered. It is not simply a matter of where students are studying.

Clauses 4 and 79 are clear that only those providers which carry on, or intend to carry on, their activities wholly or principally in England can successfully apply for registration. Only registered higher education providers can benefit from their students having access to student support. While there is no requirement in the Bill that providers must be incorporated in the United Kingdom, this does not mean that the Bill has inadequate safeguards in respect of foreign-established registered providers. If, following its assessment of risk, the OfS considers that particular risks arising from the fact that a provider is incorporated outside the United Kingdom need to be addressed, these will be mitigated through the imposition of specific registration conditions.

I can commit today that the Government will give clear guidance to the OfS about carrying out its risk assessment in the case of providers that are not incorporated in the UK, and outlining factors for the OfS to consider and address when it decides what registration conditions to apply to these providers. As an example, the OfS will need a clear understanding of how it can effectively regulate this sort of provider, backed up through registration conditions where appropriate. This will include understanding how the necessary verifications on matters such as quality and financial sustainability can take place before a provider can be granted entry to the register, as well as how effective enforcement action can be brought by the OfS and how students’ complaints can be dealt with.

To provide some specifics, it will be open to the OfS to seek financial guarantees from parent or holding companies so that it may have sufficient confidence that the provider can deliver ongoing high-quality provision. As happens now, we would expect the designated quality body to have in place arrangements with overseas quality assurance bodies to share information about higher education providers operating in their respective jurisdictions. It is also open to the OfS, through Clause 15, to impose a public interest governance condition on registered higher education providers that requires the provider’s governing documents to be consistent with public interest principles listed by the OfS. The list must include, but is not limited to, the principle that all academic staff have the freedom within the law to question and test received wisdom, and put forward new ideas and controversial or unpopular opinions without placing themselves at risk of losing their jobs or privileges.

Furthermore, it is clear that in respect of a registered higher education provider’s activities in England and Wales, the applicable law will be that in the Higher Education and Research Bill, and other relevant English and Welsh law. For example, its activities in England will be subject to the relevant applicable law as it applies in England, such as tax and equalities legislation. It is not necessary for a provider to be incorporated under the law of the United Kingdom for English courts to have jurisdiction. It is worth noting that English higher education providers operating overseas are not subject to restrictions that relate to where they are incorporated. The noble Lord, Lord Stevenson, hinted at this in his speech. If we were to unilaterally impose such restrictions this could be seen as a barrier to free trade and consequently there is a real risk that other countries might retaliate. This risks damaging a valuable export industry for the UK.

We must also be mindful that until we exit the EU we should not legislate in a way that conflicts with EU law. A requirement that a provider is incorporated in the UK may breach EU law on freedom of establishment and freedom to provide services. As such, we do not believe that there is any benefit to be gained from insisting on a requirement that registered higher education providers are incorporated in England and Wales or another part of the United Kingdom.

I hope the House will bear with me while I speak briefly about a slightly different issue before I ask for the amendment to be withdrawn. We have been looking again at Clause 114, on the pre-commencement consultation. Noble Lords will recall that this enables the Office for Students to rely on consultations carried out by the Secretary of State, the Director of Fair Access or HEFCE before the OfS has the power or duty to do so. Where the power or duty would, once it exists, require the OfS to consult registered higher education providers, we want it to be as clear as possible that the Secretary of State, the Director of Fair Access or HEFCE may satisfy this requirement by consulting an appropriate range of English higher education providers before any such providers have been registered. To this end, the Government undertake to bring forward at Third Reading a minor and technical amendment to provide that clarity. I hope that Amendment 146 will therefore be withdrawn.

[Baroness O'Neill of Bengarve]

My Lords, I thank noble Lords who have spoken in this short debate, and I thank the Minister for taking the time to give a detailed and, I think, useful reply. The issue may not be just incorporation. However, some franchise operations will leave the student in the other jurisdiction with remarkably slender forms of redress. That is the fundamental issue.

I will withdraw the amendment at this stage but I hope to bring back an improved amendment at Third Reading and, if possible, to have conversations with the Minister before then. This is a problem that I am sure we would all wish to get right and it is not clear to me that the elastic definition of “English higher education provider” plus great faith in the regulatory competence of the OfS are sufficient. We have all known the happy thought that a free market provided with a capacious regulator will deliver everything that is desired. The experience of the past 30 years has not borne that out so we need to take due care. With that, I beg leave to withdraw the amendment.

Amendment 146 withdrawn.

Higher Education and Research Bill

Baroness O'Neill of Bengarve Excerpts

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

[Lord Stevenson of Balmacara (Lab)]

My Lords, I support the noble and learned Lord, Lord Wallace of Tankerness, in his amendment. We tabled a similar amendment, although one that was slightly broader in context, both in Committee and on Report, so we have a continuing interest in this area. We have chosen not to support this amendment at this time, but I do not think that one should read anything into that—rather, I hope that discussions of which I am aware that are being conducted outside your Lordships’ House will have matured to a point where there may be some news that might bring a conclusion to this matter.

One of the main purposes of the Bill, at least as outlined in the White Paper which preceded it, is that it is intended to improve social mobility. That is an admirable aim and one which we fully support. One of the things about social mobility is that it is supported by a number of legislative arrangements, one of which is the Equality Act 2010 which brings into play a series of protected characteristics that define and encapsulate the issues around the need for social mobility in particular groups. It is important that we should have regard to this in all aspects of our public life, and it is therefore very important that new Bills which come forward should be built on that foundation. It is therefore rather surprising that the information requirements which are part of the amendment and focus on the need for transparency conditions that will be organised by the Office for Students—or as we prefer to call it, the office for higher education—do not include all the protected characteristics. It is only with considerable reluctance that the Government are prepared to concede that age is an important part of this area, and I hope that the Minister will confirm that when he comes to respond.

There are other values in having a confident sector that is able to publish information around all the protected characteristics. It will give students of all types and varieties the chance to judge whether a particular institution or institutions more generally are appropriate for them, given their protected characteristics, and of course it will be vital in terms of trying to formulate policy. For all these reasons, it is important that the Minister should reassure the noble and learned Lord, Lord Wallace of Tankerness, about his concerns around age as a matter that must be one of the transparency conditions, and of course subject to the consultation it is hoped that some direction will be given to the office for higher education, also known as the Office for Students, that it is something which should be taken into account. Perhaps the Minister can also reassure me that it is not impossible that in future years, work can be done to gather information around the protected characteristics, which will be important for all the reasons I have given.

[Baroness O’Neill of Bengarve (CB)]

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

[Viscount Younger of Leckie (Con)]

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

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

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