Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

[Baroness Wolf of Dulwich (CB)]

My Lords, I welcome this opportunity to talk about one of the most important sectors in a liberal, free, democratic society. I declare an interest as a professor and a member of council at King’s College London.

I find myself asking: why are we here now, debating this Bill? Ministers have noted that the sector has called for some changes in the arrangements but, according to our representative body, Universities UK, the main thing that seemed to be needed was a single register. Obviously, a single register is desirable but it is not quite clear how we move from that to 120 pages of Bill, even when you add in a merging of research councils. It becomes understandable, perhaps, when you look at what seems to be the Bill’s actual and huge ambition, which is my main topic.

It seems clear to me, as it does to other noble Lords, that what we have here proposes a dramatic change in how government relates to our universities. It will change the entire dynamic of that relationship. It will do so for the worse and in ways that the Government will find difficult to control and we will all find difficult to reverse. The Bill talks about markets but what it mostly proposes are major new powers for individual Secretaries of State and for the new quango that the legislation creates. There is a fundamental shift here—for universities, for Ministers and for Parliament and the Crown.

The Government’s response to concerns about the impact on academic freedom and institutional autonomy is welcome but it does not go nearly far enough. The Bill provides for undesirable changes in the way that degree-awarding powers can be bestowed. It provides for validation arrangements that create a manifest conflict of interest for the regulator. It proposes controls over academic standards of the like we have not seen in this country. We are being asked to give a quango the authority to overrule and revoke powers granted to universities by centuries-old statutes and royal charters. All this will have a knock-on effect on institutional autonomy and critical thought and inquiry, and it will corrode the willingness of universities to speak truth to power. It feels as though England is changing the whole structure of university governance in ways that have not been thought through properly.

Most worryingly, the Government do not seem to have taken on board the fact that they are increasing dramatically the power of future Governments to put direct pressure on individual institutions. I am not suggesting for a moment that the current Government are proposing to do that or have any thought of doing it. But powers that exist are used; we know that, and that they can be abused. Even though I feel they are not likely to be abused by this Government, they may well be abused by Governments in the not-so-distant future. I invite your Lordships to imagine the Government and the Secretary of State for Education of their worst nightmares, equipped with the powers in the Bill—and then to go back to the Bill to see how many opportunities it would offer such a person to put pressure on an institution.

British universities have been independent, and have been successful and globally admired because of that independence. Indeed, it is one of the glories of Britain—and, I suggest, central to maintaining the values of a liberal democracy—that, unlike those of far too many other countries, our universities have not been subject to direct ministerial or governmental command. I agree strongly with the noble Lord, Lord Waldegrave, that it is absolutely vital that societies have multiple pillars and centres of power because that is what maintains our independence. It is also what makes us able to do good and innovative things which can change the world for the better and, hopefully, not for the worse. Universities excel when they are free. If you say this, there is a danger of being told, “Oh, but you’re a vested interest—you want to oppose this only because you’re fine”. It would be complacent to think that a system such as ours will survive whatever. Back in the 1990s, our system was on the brink of rapid decline, not the sort of global excellence that we have in fact attained. Anyone who doubts how easy it is to destroy a great university should visit the Sorbonne of today.

Lastly and quickly, I turn to a second subject: the students who are at the heart of the Bill. I am sure the Government are sincere in believing that, but students actually hate the Bill. The organised student unions and student societies of this country are, to put it mildly, unenthused. This is not just because the Bill seems to provide a way to increase yet further fees that are already huge. They also feel they are being invited to come out of an institution which they had been told was an excellent part of a globally renowned system with debts of £50,000 or more, only then to discover that it was not actually a gold institution at all but a bronze institution—and part of a system whose global reputation is plummeting. If students enter an institution with a gold label and it has a bronze one by the time they come out, will the Government offer them any compensation?

The other reason why students are unhappy is that they are going to pay for it. I agree with my noble friend Lord Williams that this will be expensive. There will be a large bureaucracy with more regulatory activity, and more bureaucrats cost money, externally and internally. Universities will be paying for the Office for Students and since tuition fees are our main source of income, and the source we can use freely, students will pay for all this.

The Bill went through the Commons almost unnoticed, in my view, but the turnout today shows that many Lords here feel that it is a very important Bill. A free country needs its higher education institutions to be free, too. Amendments to the Bill are vital and well worth fighting for.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

[Lord Stevenson of Balmacara (Lab)]

My Lords, happy new year, and a particular welcome to our respected guest standing at the Bar, who for those of your Lordships who were not present at Second Reading set a new record for MPs standing listening to debates. I gather he is here again to do a repeat performance. We should welcome his interest and his commitment to this issue, which I know is shared by so many Members of the House. I am very grateful to the noble Baronesses, Lady Garden, Lady Wolf and Lady Brown, for joining me and supporting Amendment 1. I look forward to hearing their comments and those of other noble Lords across the Committee who have indicated to me that they support the amendment.

I declared my interests in higher education during the excellent Second Reading debate we held in the Chamber last month. Even if I had not been to a university, never worked in the university sector or not had my children educated in UK universities, I would have wanted to engage with the Bill because our excellent university sector—currently the second most successful higher education system in the world, with four universities ranked in the top 10—faces substantial challenges in the years ahead. It could, of course, be improved and it could, of course, be more innovative, and we support both those aims, but it also needs to be supported and protected, particularly if we go ahead with a hard Brexit, as now seems inevitable.

The abiding sense I have from our Second Reading debate is that the Bill fails to understand the purposes of higher education. I suggest that without defining these important institutions, there is a danger that the new regulatory architecture, the new bodies and the revised research organisation will do real and permanent damage. Universities across the world have multiple and complex roles in society, and there is no doubt that we all gain from that. They come in all sizes, and that too is good. They are at their best when they are autonomous, independent institutions which have the freedom to develop a range of missions and practices, while at the same time being public institutions, serving the knowledge economy and the knowledge society as well as being tools of economic progress and social mobility. They use the precious safe harbour of academic freedom to seek truth wherever it is to be found and publish it for all to see and discuss. They transmit and project values of openness, tolerance, inquiry and a respect for diversity that are the key to civilisation in an increasingly globalised world.

The purpose of the amendment is simple. The Bill before us does not define a university, and we think it will be improved if it does so. Our amendment does not simply itemise some of the core functions of a university, though it does that too, but also scopes out a university’s role, with its implicit ideals of responsibility, engagement and public service. A characteristic of all these functions is the expectation that universities take the long-term view and nurture a long-term stake in their local communities and wider society; that they embed scholarship and original and independent inquiry into their activities; and that they demonstrate a sustained commitment to serving the public good through taking up a role as critic and as the conscience of society.

I am confident that there is support for this approach across the House, based on the real sense of disappointment at the lack of ambition that the Bill currently exhibits. I hope the Government will feel able to accept the amendment. I say to the Minister that if he were minded to do so, not only would he improve the Bill but he would be signalling a willingness to listen to all the expertise, experience and wisdom that this House possesses and give us hope that he wished to use that for the benefit of this important sector and of the country as a whole. If he does not feel able to accept the amendment as it stands, perhaps he could offer to take it back and bring it back in an improved version on Report. If he did this, we would of course be very willing to work with him on how to improve the text—we have no pride of ownership.

I have to warn him, though, that if he does not want to engage as I have outlined, he will have to explain to this House what it is he cannot accept about specifying that universities have a secure and valued place in our society, and why he has difficulty in confirming that our universities should have statutory rights to institutional autonomy, academic freedom and freedom of speech. He will have to explain why he disagrees with his right honourable friend the Minister for Universities, Science, Research and Innovation, who is standing at the Bar, who said in response to questions in Committee in the other place:

“At its most literal, a university can be described as a provider of predominantly higher education that has got degree-awarding powers and has been given the right to use the university title. That is the most limited and literal sense. If we want a broader definition, we can say that a university is also expected to be an institution that brings together a body of scholars to form a cohesive and self-critical academic community that provides excellent learning opportunities for people, the majority of whom are studying to degree level or above. We expect teaching at such an institution to be informed by a combination of research, scholarship and professional practice. To distinguish it from what we conventionally understand the school’s role to be, we can say that a university is a place where students are developing higher analytical capacities—critical thinking, curiosity about the world and higher levels of abstract capacity in their thinking. In brief, that is my answer to what a university is”.—[Official Report, Commons, Higher Education and Research Bill Committee, 15/09/16; col. 271.]

I confess to a little plagiarism in drafting my amendment, which I acknowledge is clearly based on that Minister’s approach, which is the correct one. I beg to move.

[Baroness Wolf of Dulwich (CB)]

My Lords, the Bill we are debating today is an enormously important one. I declare an interest as a full-time academic at King’s College London.

The Government are creating the environment in which universities will operate and thrive or decline over many years, probably decades, and are changing it profoundly. Because a country’s universities and the nature of those universities are so central to what a country is—to its values, politics, culture, research and innovation—the Bill is truly important to the whole nation. Yet, curiously, the Bill has nothing to say about universities, as you will find if you have a quick search of the document. It says quite a lot about the university title, and at one point it refers to unauthorised degrees at,

“a university, college or other body”,

by grant, but that is it. Otherwise it refers consistently to “providers”.

Clearly, the Government do not think that the term “university” is meaningless. If it were, neither the Government nor higher education providers nor universities would be so occupied with the university title.

When I dug around a bit, I found that previous legislation also has extraordinarily little to say on the subject. The 1992 higher education Act refers simply to use of the name “university” in the title of an institution, and informs us hopefully that, if the power to change the name is exercisable with the consent of the Privy Council, it may be exercised, with that consent,

“whether or not the institution would apart from this section be a university”.

There is nothing more on what a university is. The Minister has kindly confirmed, in replies to Written Questions that the term is not defined in legislation but is a “sensitive” word under company law, which means that you need permission from the Secretary of State and a non-objection letter before you can use it in a business or company title.

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[Lord Triesman (Lab)]

My Lords, I should probably have declared my interests in my Second Reading speech—but they are in the register and I declare them now.

I will start with a theme that the noble Baroness, Lady Deech, and other noble Lords brought up: autonomy. I shall not, given how long the debate has gone on, repeat the points that the noble Lord, Lord Smith of Finsbury, my noble friend Lord Winston and other noble Lords made. In particular, my noble friend Lady Warwick made a substantive speech which I hope will command the attention of the House. I remind the House of the mechanisms that we utilised in the past to try to ensure that university autonomy was sustained whatever the Government of the day, however unpopular or controversial the issues that might be raised, and however much public sentiment might not approve of them.

All through the history of modern universities, this country has inserted buffer arrangements between the state and higher education—and that is not an accident. It was an absolutely deliberate intention to make sure that the great qualities of universities could be sustained, irrespective of the calamities—the world wars and the other huge movements in tectonic plates. There was the UGC, later HEFCE, and even, when the polytechnics were going through the process of becoming universities, the work of the CNAA, which was designed to make sure that the older universities played a part in ensuring that the quality of the newer universities would be sufficiently adequate or better than sufficiently adequate to take their place as universities among the entire group—a system which worked well in England, Scotland and, as far as I am aware, in Wales. However, in every single case, and in particular in relation to teaching, the processes were both thorough on the part of those buffer bodies and also a protection of the autonomy and independence of universities so that they could pursue matters with genuine academic freedom.

In the field of research, the work that was originally done on quality assurance was never made prescriptive in a way that interfered with the autonomy of universities but expressed a desire to see great excellence being achieved in those places where it was possible and a broader spread of excellence in those places which perhaps could not do some of the work in particle physics or whatever it might be. I can remember—it is one of the interests I have declared—the negotiations with the noble Lord, Lord Boswell, about the character of the research excellence framework that he wished to see. Even the annual letter from the Secretary of State, first to HEFCE and then through the more recent period, was a general outline of what the expectations of the country were. It was never a set of orders to which universities must subscribe, which would lead, were they not to do so, to them being closed, cut back or denigrated. These were genuine protections. I am not trying to repeat a Second Reading point but these were the values to which this country signed up in 1997 in the UNESCO normative treaty on academic freedom and the independence of institutions, which this Bill would tear up.

I think that very careful thought about this amendment, which I intend to support, would be repaid, and the Minister will have to give very convincing reasons why, even in Committee, we should not consider it. Some of the arguments that have been put forward in your Lordships’ House this afternoon do not bear much examination. For example, as my noble friend Lady Cohen said, it is not the case that universities must all provide the full range of subjects. The wording is “an extensive range”.

I put it to the noble Lord, Lord Willetts, for whom I have great admiration, that it is not the case that many of the more specialist institutions are so narrow that they do not do a wide range of things, as those of us who have had the privilege of being Ministers covering higher education will know. Imperial College London was mentioned a while ago. The college is rich in every science, including all the social sciences, and it has absolutely magnificent ratings in all those areas. Even the conservatoire music colleges have usually extended their range. SOAS is certainly another example—and there are many. For the avoidance of doubt, there may be an opportunity in what the Minister says to achieve greater specificity regarding what we mean, but in my view that is the bottom line.

In conclusion, I am absolutely astounded by our squeamishness in worrying about whether we can define a university. There have no doubt been massive debates right across time about whether we can do that. I remember recently reading an account of whether Bob Dylan really had created literature, and there was a huge debate about what literature might be. There are always debates about these broader concepts. However, broadly speaking, when you go around the world and talk to people about coming to a university in the United Kingdom, they know very well what you mean. It is not an accident that so many people apply to come to the United Kingdom to study in our universities and they do not all complain that the terminology is fusty and old. I can imagine a focus group saying, “If only we didn’t call them universities. Let’s call them ‘higher education providers’ and floods of people will suddenly appear. The marketing will be transformed”. People come because of their expectations.

I say to the noble Lord, Lord Hodgson, that there may very well be people who are dissatisfied, or whose children are dissatisfied—but, broadly speaking, when you look at the number of people who want to come here and who understand perfectly well what we offer, you do not see a system that has broken down, although of course it could do with some reform. I have looked high and low to see what crisis the Bill is intended to resolve and I do not believe that it can be found. If it could, I can tell your Lordships that three areas for which I used to have responsibility—the Chevening, Marshall and Commonwealth scholarships—would be devoid of people wanting them. On the contrary, every single one of them is fought for.

[Baroness Wolf of Dulwich]

My Lords, I apologise for taking more of the Committee’s time but I feel that we are losing sight of one of the major reasons why my name is attached to this amendment. I believe very strongly that we have to consider, up front, a definition of a university in the Bill. It is a question not of whether we do or do not have a definition but of who controls that definition. Absolutely rightly, the Bill distinguishes between degree-awarding powers and the title of “university”. So it should and so it must, because we are now in a world where many institutions which are not and will never wish to be universities give degrees. Further education colleges are a very obvious and important sector.

We are also, I am delighted to say, moving into a world with degree apprenticeships. The question is whether the definition of a university is perhaps not super-precise but clear and perfectly workable, like almost every other definition in legislation all over this land, or whether we leave the decisions about what a university is to the bureaucrats of the Office for Students, who will make those decisions but will never actually have to make them public.

So I come back to the purpose of this amendment and why we feel it is so important. If we do not have a definition in the legislation, there will be a definition but we will none of us have any control over it and we will never know what it is.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

[Baroness Garden of Frognal (LD)]

I, too, support the noble Lord, Lord Lipsey. The Office for Students was always a rather strange title for this all-encompassing and all-powerful body. It was particularly ironic because it took quite some effort to get students in any way involved with it or represented on it. The Office for Higher Education seems an eminently sensible title for it. As the noble Baroness, Lady Bakewell, said, that covers all the aspects that this strange body is going to be responsible for. The Minister should think very seriously about changing the title.

[Baroness Wolf of Dulwich (CB)]

My Lords, I agree that the Office for Students is a very strange name for this body. I take this opportunity to remind anybody in the House who does not already know how very opposed to much of what it is going to do most of our students are, and publicly so. Although the automatic response one gets when this is pointed out is, “Oh, they just don’t want their fees put up”, that is not the sole thing they are complaining about—not at all. I also take this opportunity to put on record my appreciation of the University of Warwick student union, with which I have no connection whatever, which wrote an extremely well-thought-out critique of the Bill back in June, which was the first thing to alert me to many of the things that I have become very concerned about since. I agree with the noble Lord, Lord Lipsey, that this is not an appropriate title and it would be very good if we could come up with another—but I do not think I will be collecting his champagne.

[Lord Stevenson of Balmacara (Lab)]

My Lords, of course the serious side to the light-hearted comments is that the name will conceal as much as it will reveal about what is going on here. I understand entirely my noble friend Lord Lipsey’s wish to raise this in a relatively light-hearted way and I do not want to be a party pooper but we need a lot more certainty about what exactly this new architecture, which was one of the great calling cards of the Bill when it was first introduced, is actually going to do and deliver.

A number of amendments further down the list will bear on this and we may well need to return to the name once—and only once—we have decided what we are going to have. For instance, we are now told that the Office for Fair Access will have a slightly different role in government amendments due to be discussed on the next day in Committee. That will change the nature of what the OfS does because, if the government amendments are accepted, it will not be allowed to delegate powers that would normally be given to the Office for Fair Access to anybody else, and it will have to ensure that the director of the Office for Fair Access has a particular role to play in relation to access agreements that are created under that regime. In that sense, the power of the OfS as originally conceived was already diluted at the Government’s own behest. We need to think that through before we make a final decision in this area.

The question of how registration is to take place is a quasi-regulatory function. We have an elephant parading around the Bill—it is supposed to walk around in a room but perhaps we ought not to extend the metaphor too far—in the role of the CMA, to which I hope the Minister will refer. If we are talking about regulatory functions, we need to understand better and anticipate well where the CMA’s remit stops and starts. The Minister was not on the Front Bench when the consumer affairs Act was taken through Parliament last year, but that Act is the reason why the CMA now operates in this area. It is extracting information and beginning to obtain undertakings from higher education providers regarding what they will and will not do in the offers they make through prospectuses, the letters sent out under the guise of UCAS, the obligations placed thereby on the students who attend that institution and the responsibilities of the institution itself. I do not wish to go too deep into it at this stage because there will be other opportunities to do so, but until we understand better the boundaries between the Office for Students and the CMA, it will be hard to know what regulatory functions will remain with the OfS and what name it would therefore be best put under. “Office” is common to many regulators but the letters in acronyms can also be changed.

We are back to where we were on the last group: we are not yet sure what the assessment criteria and regimes will be, but perhaps we know more about the criteria than the regime. It is one thing if a committee is to be established with responsibility for assessing the fitness to be on the register and the quality of the teaching as provided. But if an independent body were established and called the quality assurance office or some such similar name, as it would be under a later amendment, it would be doing a lot of the work currently allocated to the Office for Students. I do not have answers to any of these points. I am sure that the Minister will give us some guidance but it would be helpful, when he is ready and able to do so, if he set out in a letter exactly what he thinks the architecture might look like and what the justification therefore is for the name.

The most poignant point was that made by the noble Baroness, Lady Garden: that an Office for Students without student representation on it seems completely bonkers. I do not understand why the Government continue to move down this path. The amendment brought in on Report in the other place was one of sorts to try to move towards that. But it is a measure of the Government’s inability to grasp the issues here in a firm and convincing way that the person who is expected to occupy that place at the Office for Students, as provided for by the amendment, is somebody able to represent students. It is not necessarily a student, which seems a little perverse. I put it no more strongly than that.

Given that the current draft arrangements in the higher education sector for obtaining metrics relating to the grading of teaching quality in institutions has five students on the main committee and two or three students allocated to each of the working groups set up to look at individual institutions, there is obviously a willingness at that level to operate with and be engaged with students. Why is that not mirrored in the Office for Students? Regarding further use, it is really important that we get that nailed down. If it were a genuinely student-focused body—a provision which many governing bodies have—then the Office for Students might well be the right name for it. But until those questions are answered, I do not understand why the Committee would not accept my noble friend Lord Lipsey’s sensible suggestion.

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[Baroness Wolf of Dulwich]

It looks like I am going to be the last speaker, noble Lords will be relieved to know. I support the general tenor of all the amendments in this group, particularly Amendment 7 and the idea that people’s experience should be current or recent. That is extraordinarily important, particularly in an area such as higher education which changes very fast. A number of noble Lords have talked about the importance of further education and the importance of—and decline in the number of—part-time students. We are concerned about these extraordinarily important things, yet it seems that none of the current authorities and institutions which deal with higher education has much idea about why this has happened. We did not intend to have the decline in part-time students that we have. Government after Government have talked of the importance of increasing the role of further education colleges in higher education, because they are central to the availability of part-time courses, retraining and lifelong learning. Yet the role of further education has not in fact increased. The numbers have not increased and the proportion has tended to decline.

So these are real challenges. But it also seems to me that one of the reasons we have got ourselves into this situation is that we do not have enough people with current and recent experience involved at the highest levels of policy-making. Therefore, of all these amendments, I most strongly support the proposal that the Office for Students should look for people to join its board who are deeply involved in the sector in the areas which it is looking for, not people who can tick a box because 20 years ago they were on the board of governors of something. I hope very much that the Minister will take that point away and think about it. I cannot see any way in which it undermines the purposes of the Bill and of government policy. That one small thing might make a big difference to the effectiveness of the Office for Students.

[Viscount Younger of Leckie]

My Lords, I say at the outset that once again I have shortened my comments, bearing in mind the hour. Nevertheless, these amendments need to be properly addressed, so I hope that the Committee will bear with me.

I reassure noble Lords that the Government are committed to a fair and open appointment process for the OfS chair. The final appointment will be made by the Secretary of State, but the process will allow for scrutiny of the appointment by Parliament. We have previously stated our openness to a committee of Parliament scrutinising the nomination of the chair of the OfS before the final appointment is made. I confirm that there will be this opportunity for parliamentary scrutiny in the appointment of the first chair—for whom the selection process is well under way, as noble Lords may know. I note that the noble Lord, Lord Liddle, agrees that the chair of the OfS should not be ratified by a resolution of Parliament but that there should be parliamentary scrutiny. That is correct, despite some comments made this evening that were not particularly in favour of that.

Amendments 4 and 18 would be a departure from the accepted practice set out in the governance code. It is standard practice for the chairs of regulators to be appointed by the respective Secretary of State. We believe that our plans for scrutiny are sufficient and that it is right that the Secretary of State should retain the power to appoint the chair of the OfS board.

Throughout the development of this legislation, the Government have engaged and consulted widely with students and their representatives and we are committed to ensuring that this approach is reflected in the final OfS structure and arrangements. We have already amended the Bill in the other place to ensure that at least one of the ordinary members of the OfS must have experience of representing or promoting the interests of students.

As regards the comments just made by the noble Baroness, Lady Wolf, and the noble Lord, Lord Stevenson, requiring one member of the OfS board to be currently engaged in representing students, as proposed by Amendment 5, would narrow the choice of potential candidates for this role. It could potentially exclude someone who has excellent recent experience of representing students but who has since gone into the working world or further study, thus gaining valuable experience and skills. Furthermore, the standard length of term for public appointments is four years. As such, insisting that the student representative be a current student risks being incompatible with the standard time lines of most courses of study or sabbatical roles as student representatives. That is why we chose the form of wording that we put forward on Report in the other place.

I turn now to the desirability criteria for the OfS board appointments. The Government believe that it is essential that the OfS board should be representative of the broader range of stakeholders in the higher education system. The current legislation that sets out the appointment process for appointments to the current HEFCE board requires the Secretary of State to have regard to experience of higher education, business or the professions. I reiterate that this has worked well for many decades. None the less, this legislation goes further in ensuring a diverse range of board members by setting out seven desirability criteria. These include experience of providing higher education and experience of creating, reviewing, implementing or managing a regulatory system. The seven criteria have been framed broadly so that they allow for flexibility to include board members with the breadth and depth of experience and skills. The Bill in its current form preserves the crucial flexibility for the Secretary of State to constitute the OfS board in the most appropriate way for the challenges and opportunities of the particular day. I reiterate that we need to form a framework that allows us to look ahead a long period of time.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

[Baroness Cohen of Pimlico (Lab)]

My Lords, I support all the amendments and in particular the comments that my noble friend has just made. For the university of which I am chancellor, part-time study is a key part of the business model, and for my noble friend Lady Blackstone it is a key part of her business model at Birkbeck. Why, we ask ourselves, are part-time students reducing in numbers? I have to say that I do not have a good answer to that, but it is enormously important. It would be very hard to find anybody who does not support the extension of part-time teaching, but we do not seem to be getting it right—even those of us whose core business it is. I would like to ask the Government to think about this.

[Baroness Wolf of Dulwich (CB)]

My Lords, I also would like to support this amendment and all the amendments in the group, one of which bears my name. The comments we have just heard go to the core of the problem. Everybody believes that part-time and mature students are very important—the Government believe it and every previous Government in my memory believed it—and yet, at the moment, we see not a rise but a decrease in their numbers, and they are not more evident as part of the higher education system but less so than they were quite recently. My view is that the root cause of this lies with the current funding system for higher education, which clearly cannot be dealt with by this Bill. However, the Bill can and should make explicit the responsibilities of the OfS to make these groups central to its concerns and mission and not, as the noble Baroness, Lady Bakewell, said, something to be added on at the end.

I will mention one other group mentioned in the amendment: workplace students. Again, those students are tremendously fashionable in political statements but do not tend to be very numerous in reality. Twenty or 30 years ago, we had a well-developed ONC/HNC route for those students, but we no longer do. Since I totally agree with those noble Lords who have underlined the rapidly changing nature of the jobs market, I think that this group, too, needs explicit attention from the Office for Students.

[Lord Desai (Lab)]

My Lords, I will make a short plea for something that has not been mentioned so far. Most people have spoken about part-time students as people who want a degree, a skill, a job and so on. I do not know where further education is in all this—perhaps it is not part of this debate. Many people go into further education not necessarily to get a diploma or a degree but to educate themselves. I had enough of primary, secondary and higher education to suit me for several lifetimes, but I did go to Morley College for a family French class with my children. Children and adults studied together and it was a very pleasurable experience—I even learned some French. So I think that there may be ways of learning without actually taking a degree.

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[Lord Willis of Knaresborough]

I asked a specific question about the transfer of students, using their acquired learning, on to courses in other universities. Despite what has been said in this House, the vast majority of universities, particularly in the Russell group, will not accept students whose prior learning comes from other organisations. If we are to deal with this issue, it is important that the Office for Students has the power within its overall remit to ensure that fair arrangements are made between universities to allow students to transfer.

[Baroness Wolf of Dulwich]

May I correct that? It may be true that this is not common but it is not true that the vast majority of Russell group universities will not accept credits. I want to make that clear for the record.

[Lord Willis of Knaresborough]

I would like to see the evidence for it.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

[Lord Addington (LD)]

My Lords, in making my first contribution in Committee I should start by making a declaration of interests, but I hope noble Lords will forgive me if it does not include being a member of a university in any shape or form. I think this puts me in a distinct minority in this debate. I am president of the British Dyslexia Association and chairman of a company that deals with assistive technology. This is relevant to the amendment I have tabled, which suggests that disability should be included in the general duties here.

Disability in universities is in a rather strange place at the moment. At the start of last term, universities acquired a duty to deal with what is graded “bands 1 and 2” disability functions. They were supposed to receive some guidance. They have not received that guidance to date—or if they have they have had it incredibly recently. So they have a duty which they have not had before, which means they are doing something they have never done before. Should they be doing it? Yes, probably, because they are charging fees and they have a duty to make reasonable adjustment, which has been taken on by the disabled students’ allowance until this point. That has been removed, so they have to do it, so they will need some guidance.

The noble Lord pulled me up when I said at Second Reading that there was no guidance on this, saying, “Yes, there are duties in regulation”. There is no guidance on this situation because it has not occurred before. It is new; it started in September. I hope that at the end of this debate we will have a little more information about the state of the guidance that has been issued. If no duty is placed somewhere in the Bill, how long will this situation go on for and when will we update it? Whatever happened here, the cock-up school of history has another example of what can happen.

When it comes to other duties such as accessibility, universities do not have an unblemished record. I have had many letters coming across my desk saying, “I could not get into a lecture hall”. If you cannot get into a lecture hall to receive lectures you cannot be part of the main group. There are arguments on both sides. Perhaps the person was expecting a little too much and the duty of reasonableness may not have been covered, but such situations occur. The record is not perfect; there is a greater duty and we do not know what we are supposed to be doing.

I hope that through this amendment, which is currently a probing amendment, we will get some clarity. Simply saying that the problem will be taken care of somewhere else is not good enough. We must know. Some 20% of the population are reckoned to have a disability; 20% of the school population are reckoned to have special educational needs. Many of those will be covered by a disability, if not the social sector, and the cross-over between them is far too complicated to be gone into at this time of night. There is a problem here. Unless we are going to remove whole sections of society, we must have a commitment and a way of making sure that such a provision is enacted and disabled people are allowed in.

It is a complicated, varied sector, covering everything from mild dyslexia to quadriplegia—I know I have missed a lot of people by going sideways in that description. How is this duty to be recognised, where is it going to be recognised and are we going to make sure that people are up to date and doing the job correctly? Somewhere in the Bill it should be stated clearly that we have to get on with it, because at the moment there is no great consideration of this issue. I look forward to hearing the Minister’s comments.

[Baroness Wolf of Dulwich (CB)]

I have a number of amendments in this group and before talking to them generally I want to say how much I agree with almost everything that has been said so far in this short debate. The Minister and other noble Lords have on a number of occasions emphasised the importance of not getting too hung up on detail, not giving too many detailed and restrictive instructions to the OfS. My concern is with these general clauses, which define what sort of institution this is and its general remit. The problem is that the definition it is not general enough. So much of what is said is focused on the development of individual institutions—their financial health; their particular policies and progression statements.

I strongly support Amendment 58 because it would insert the word “diversity”. Surely what we want in a 21st-century higher education system is not simply choice between lots of institutions that are actually very similar but genuine diversity. I do not think, for reasons that I could bore your Lordships with for an hour but will not, that the current approach will generate diversity. It will generate new institutions but it will not in and of itself generate diversity.

It is absolutely critical that the central office that represents our Government has as one of its concerns the need to generate not just competition between similar institutions—not just choice between ever more institutions that look much the same—but genuine diversity. That will require quite a lot of thought and active intervention—pump-priming, whatever. Many of these amendments, including those that have my name on them, are about the need to secure and improve the overall strength and quality of higher education provision in England, to maintain confidence in the higher education sector as a whole.

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[Lord Winston (Lab)]

My Lords, forgive me if I add a slightly dissonant note to this conversation about collaboration. The sentiments behind it are absolutely wonderful and I agree that the collaboration over outreach, for example, in Birmingham and over outreach and public engagement at the University of Bath are two very good examples of where it works. But essentially—and with respect to my Front Bench, who have done a fantastically good job at looking at some of the issues raised by the Bill—one of the problems is that it is very difficult to see how one can enforce this kind of collaboration in any meaningful way.

To take the issue of science, where we are inevitably competing in the REF and where we sometimes publish in collaboration, noble Lords should see the internal wrangling over who goes first on the paper and who goes last as the senior author on the paper, which happens again and again in universities. It is a massive problem. In my own career, I had a very important collaboration with University College London, where we were extremely innovative with a new technology that looked at chromosomes. Ultimately, the collaboration failed totally because, regrettably, we could not agree on how we would publish it. It became an issue when we looked at the scores.

Sadly and unfortunately this is still true. So much of science is published in a very testosterone-driven environment. It is not desirable, but it does happen. One reason why it is so important to have more women in science is to try and humanise our laboratories because women are so much more ready, in my experience and certainly in my lab, to collaborate, even when the collaboration may not be to their full advantage. Males are less ready to give way to this. While I absolutely accept that there is extreme value in the notion of this kind of collaboration, I wonder whether it would be terribly useful to have it included in the Bill in this form. It could be included in some other way and perhaps we will come back to it in time, but I suspect that it would be very difficult to implement.

[Baroness Wolf of Dulwich]

My Lords, I agree with a great deal of what noble Lords on both sides have said, but there is an issue here that the amendment gives me an opportunity to raise, since I am informed that one cannot ask questions once a Bill is in motion. One issue that faces us at the moment in the university sector is that we have the OfS, and we are not quite clear whether it is a regulator or not, and we also have the Competition and Markets Authority. One question that I have is whether there are incipient conflicts between these two important and powerful bodies. I would personally like to see collaboration included to make it clear that it is not outlawed, although it is extremely difficult to achieve—it is almost impossible to achieve.

I would like to take this opportunity to mention the Francis Crick Institute, which, thanks in good part to the good offices of the noble Lord, Lord Willetts, when he was Minister, achieved the utterly amazing feat of getting Imperial, King’s and UCL to collaborate.

[Lord Winston]

That is not true.

[Baroness Wolf of Dulwich]

Well, sort of.

Collaboration is not something that can be enforced. Competition becomes extremely naturally to us, but at the moment we have two bodies with very different views. The Minister has assured us, and I am happy to hear, that the drafting of Clause 2 does not preclude in any way thinking about the sector, thinking nationally and thinking about society.

My experience of how my own and other people’s institutions interpret the requirements of the CMA is that, basically, it does not think that you should ever speak to anyone else because that might be interpreted as interfering with competition. I know that this sounds a bit like a Christmas tree and a signal, but perhaps I can take this opportunity to ask the Minister to let me know, if not right now, whether officials have looked carefully at the possibility that we will see conflicts over this issue; that is, between what I take to be two regulators, or certainly one regulator and the Office for Students. I would be grateful for some information on that.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

Moved by

[Baroness Wolf of Dulwich]

143: After Clause 15, insert the following new Clause—
“Power to restrict enrolments
(1) If the OfS has reasonable grounds for believing that a registered higher education provider is in breach of an ongoing registration condition with respect to the quality of the higher education provided by the provider, or to its ability to implement a student protection plan which forms a condition of its registration, the OfS may place quantitative restrictions on the number of new students that the provider may enrol.(2) The Secretary of State may by regulations make provision about the procedures for imposing such restrictions and about rights of appeal.”

[Baroness Wolf of Dulwich (CB)]

My Lords, this amendment stands in my name and that of the noble Baroness, Lady Garden.

Before explaining why this slightly technical-sounding amendment is the way it is, I should like to explain that I tabled it because quite technical issues are central to the purpose of the Bill and to the Government’s commitment to preserve and raise the quality of the higher education system, ensuring that students throughout the country and the system get a fair and quality deal from the institutions that they attend and to which many of them now pay a great deal of money.

One of the slightly curious aspects of the Bill is that the sanctions which it mentions, and which can be brought to bear by the Office for Students when an institution appears not to live up to its promises and commitments and to the requirements placed on it, seem to be either rather draconian or very restricted. The sanctions are either a draconian response of withdrawing degree-awarding powers or university title, or a whole range of fines, which might be in response to a fraud, on which there is a whole schedule allowing powers of entry. However, what is striking about the sanctions is that they are very different from the way in which, for example, the regulators in the health or school sectors tend to approach their task, which is much more about maintaining or improving something as a going concern—that is, how they might work with it.

I have raised the issue of certain powers, which we understand from the Minister are seen as not as relevant under the proposed new regime as they were under the old one, both because closing down an institution in which students are studying should be seen as an absolutely last resort—I think we all share the Government’s determination that institutions should be of high quality and serve their students—and because a bit of history is in order.

In recent years we have seen a very large increase in the number of institutions in this country that provide higher education. Some have been universities, where numbers have increased, and many have been alternative providers, where numbers have increased enormously. Some of the alternative providers have degree-awarding powers and some award higher national diplomas or certificates, but many of them also have tier 4 sponsor status, which allows them to enrol students from outside the EU. Between May 2010 and September 2016, no fewer than 968 institutions had their tier 4 sponsor status withdrawn. That is a fairly terrifying number, because all those institutions had students in them, who were studying and had paid money—and, basically, they had their education and their plans pulled out from under them.

As part of this recent history, there was also a somewhat fraught hearing with the Public Accounts Committee, which I seem to remember was not happy with the way that the Government had been regulating these institutions, and an NAO report. Following that, BIS, as it then was, took additional powers, which included imposing student number controls on alternative providers. One of the other things that has happened in the last few years is that student number controls for universities have been lifted, so universities can recruit and enrol as many students as they wish. I am not implying that an alternative provider is a bad thing—actually, I am strongly in favour of greater diversity and of an open, diverse and innovative sector—but, in a spirit of risk-based regulation, we have to take account of that recent history.

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[Viscount Younger of Leckie (Con)]

My Lords, the Bill creates the conditions to improve the overall quality and diversity of the higher education sector, creating a level playing field through a risk-based approach to regulation. Clause 6 enables the OfS to impose specific, ongoing registration conditions on a provider. The practical effect of this is that the OfS will assess the compliance of all higher education providers with the appropriate conditions and will adjust its regulatory approach accordingly. This is central to the risk-based approach to regulation that the OfS is being established to provide.

In practice, we envisage that, if the OfS considers that an institution or an element of an institution, such as its financial sustainability, poses a particularly high risk, it can add, change or tailor the registration conditions applicable to that provider to address that risk. I hope I can reassure noble Lords that the Bill already provides for the OfS to set a student number control condition in cases where it is appropriate and proportionate; for example, an institution that the OfS considers may be in breach of registration conditions that relate to quality of provision could have a student number control imposed by the OfS as an additional specific registration condition, if the OfS believes that such action is reasonable and proportionate. The OfS may also exercise this power if it considers that there is a risk that the provider is recruiting more students than its student protection plan can properly cater for.

I am in complete agreement with the noble Baronesses, Lady Wolf and Lady Garden, about the importance of providing the OfS with the tools it needs to ensure the quality of higher education provision. However, given the powers already conferred on the OfS through Clause 6, it is unnecessary to include in the Bill one example of the conditions that could be imposed. Indeed, including one example of such a condition might appear to exclude other conditions which might be more appropriate in the circumstances of a particular provider, including those which have no plans to increase their student numbers. However, I appreciate the noble Baroness, Lady Wolf, raising this and I hope I can provide some further reassurance for her, focusing particularly on overseas providers, which she mentioned. Our plans will speed up and streamline process without lowering standards. In order to become eligible for degree-awarding powers, any provider must register and pass rigorous entry requirements. It is a high bar which only high-quality providers will be able to meet. We welcome overseas providers which meet this test increasing choice for students. Providers that cannot meet the rigorous entry criteria will not be able to become registered or obtain access to degree-awarding powers or university title.

The noble Baroness, Lady Wolf, asked what sanctions are available to the OfS. I start by saying that the best principles of regulatory practice will be adhered to. These include transparency, accountability, proportionality, consistency and, where issues are targeted, targeting only cases where action is needed. Specifically, the escalated suite of actions and sanctions available to the OfS includes: putting in place a support strategy or issuing a direction for a provider to take specified actions; imposing additional specific ongoing registration conditions—for example, as I mentioned earlier, student number controls; or imposing a monetary penalty. We envisage that most often this will be used where a breach has occurred but has now been remedied, but it can also be used alongside a suspension. Also—and by the way, this is as a last resort—the OfS can order deregistration. To further reassure the noble Baroness, this will be where all other efforts have failed or it is clear that imposing monetary penalties or suspensions will simply not be sufficient to deal with the provider. I hope that, with those reassurances, the noble Baroness will withdraw her amendment.

[Baroness Wolf of Dulwich]

I thank the Minister most sincerely for what he has just told us and for—I do not want to call it a gloss—the additional information he has provided. I am extremely relieved to know that it is clearly the intent of the Government that the OfS should have a wide range of actions and get deeply involved not merely in risk regulation but in avoidance of catastrophe, which I have alluded to. I am extremely grateful to the Minister, I am delighted to have had the points of fact he has just given us placed on the record, and I beg leave to withdraw the amendment.

Amendment 143 withdrawn.

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[Baroness Deech]

I am glad to support the noble Lord, Lord Lipsey. I have the National Student Survey in front of me. It raises profound questions about what higher education is and how it has become perverted, in that we see the student now as a consumer, because the student is paying at least £9,000.

I draw attention to some statements in the survey. One says that the workload on the student’s course is manageable. We ought to think about what that means: manageable for whom, whether you are a lazy student or an avid one? Another says that the course does not apply unnecessary pressure on the student. I am not sure about that either. There is another that says that all the compulsory modules are relevant to the student’s course. Even now, 50 years after completing a law degree, I am still pondering whether Roman law was really relevant to my course, but I yield to those who thought it was. That was long before we joined the European Union, which in a way made Roman law and the continental system more relevant. These questions would be better addressed to someone going on a package holiday. I am not sure that as it stands this student survey should play a part in the most profound questions that we face—about what a university is, what sort of young people we wish to turn out and by what process. So I hope that the survey will not be included, or that if it is it is thoroughly revised, bearing in mind the outcomes for which we are looking.

[Baroness Wolf of Dulwich]

My Lords, I support the comments of the noble Lord, Lord Lipsey, on the National Student Survey, and will speak to Amendments 194 and 201 standing in my name. Before doing so I would like to underline that we are talking about the use of measures to give ratings. With respect to the comments made by the noble Baroness, Lady Blackstone, I think that there is a huge difference between what is useful internally and what is suitable for a high-profile, high-stakes national rating system. In my first amendment I have suggested, or requested, that any measures used should be criteria-referenced, and therefore provide a substantive rating and indication of attainment or degree of attainment. I am slightly alarmed that this is even at issue, and take issue with the noble Lord, Lord Willetts, when he suggests that benchmarking is the way forward.

I have an example from the rail regulator. We can be told what proportion of trains are late, which is a substantive measure: we can have a target—which in fact it has—which says that it is reasonable that there should be X per cent, and then you fall this far short. We can be told whether a given rail company is doing better or worse than the others. This year it is really pretty easy for everybody to do better than Southern, but does that mean that they are all doing well? I do not think that you can conclude that.

If you have benchmarked or relative measures, the problem is that all that you are being told is how people stand relative to each other. We might have a system in which the quality of teaching was excellent across the board, yet in which half the institutions would by definition be below average; or we could have a system in which all the institutions were doing rather poor-quality teaching, yet in which half of them would be above average. That is not the sort of system that we wish to use. We would not wish to imply to students that that gave them helpful information. A measure that is bad does not become good by being made relative; and a measure that is good is good in its own right, not simply by being turned into something in which you rank people on the curve. That is an important aspect of how the Office for Students approaches the sorts of ratings that it gives and the way in which it conceives of them.

[Lord Willetts]

Does the noble Baroness accept that her objection is the opposite of the one raised by the noble Lord, Lord Lipsey? His objection was that these are raw data that cannot be trusted. As a result of that concern, they are being benchmarked, and that indeed raises the valid questions which she has raised.

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[Baroness Wolf of Dulwich]

I think the noble Lord, Lord Lipsey, meant a number of things, but I am not saying that raw data are the problem. I think he was also referring to aspects such as whether you have a decent sample size. Benchmarking is not the answer. I am somewhat alarmed that it seems to have become a major part of what is under discussion.

My second amendment is something that is not an exceptional ask in the world of regulation. Before elaborating, I have a request for the Minister. If at the end of this debate he does not think that the Office for Students can and should report on whether its statistics meet the UK Statistics Authority’s code of practice, will he explain why? Most regulators which I know that are involved in collecting statistics for information and regulation proudly boast on their websites that their statistics meet the code of practice.

Things that we can be proud of in this country are the UK Statistics Authority and that we have a record of knowing what makes a good-quality statistic and of making sure that among public bodies and for public purposes we do our very best to meet those criteria. One thing we know, for example, is the importance of sample size. We know about the importance of the reliability of measures. We know that in many things it is quite difficult to get a valid measure and that it is just as well to say that we cannot measure them properly.

Another thing we know is that the quality of statistics can change over time and that you have to keep looking at them. One thing that has clearly changed over time is the degree to which one can assume that a standard that was used in one time and place has been carried over to another. Many of us in these debates have been standing up for the quality of university education. It is pretty clear that in North America, this country and many other countries over time there has been grade inflation and that the proportion of people getting higher-class degrees and higher marks cannot be fully explained by harder working students, miraculous teaching or any other splendid innovation. There has been a slippage. One of the reasons there has been grade inflation and one of the reasons why we need to be very careful about this—this is why I raise the point quite clearly—is that students like easy grades. Since student satisfaction is quite important for promotion, particularly in North America, it has also been studied a great deal. We know that student satisfaction judgments and scores rise the more easily instructors, lecturers and examiners grade. We also know—these are statistics that I use a great deal in my teaching because students like them—that lecturers and professors get higher student satisfaction scores if they are good looking. This applies to both men and women; it is completely gender-neutral.

So there are things we know about specific statistics, and we also know more broadly that there are things we need to look at to know whether statistics are valid, reliable and fit for purpose. As the noble Lord, Lord Lipsey, has indicated, there are aspects of student satisfaction measures which require careful attention before they are used for something as important and high-stakes as a rating of teaching quality issued by the regulator.

The final thing I want to say about the importance of observing a code of good practice—and I have no reason to suppose that the Office for Students will not, but it would be nice to have reassurance that it will—is that you cannot add up completely unrelated statistics to make a meaningful total grade. This is often described as “apples and oranges”. Apples and oranges are relatively easy to add up, but trying to take a large number of different measures with different levels of validity—different levels of reliability in terms of whether you would get the same thing if you measured it again; different types of statistics, some with clear numbers attached and some judgmental—and adding those all up into a single judgment is a pretty dicey affair, at best. It is interesting that it is something that on the whole has not been done in research. It has always been done at a much more disaggregated level. However, it is also something which we need to be very careful about because, among other things, it risks not informing students but misleading them.

I find it very strange that, at the same time as saying that we want to give maximum information to students, we are also saying that the Government in their wisdom—or the Office for Students in its wisdom—are going to pull it all together into a single-rank order which cannot be unpacked. What is really useful to students is to have lots of different information on different aspects, so that they can look for the things that they most want.

Is there any reason why we should not expect the Office for Students to follow the code of good practice that we already have in this country and which many other regulators follow? I also suggest that, once again, we only use statistics which actually have substantive meaning. That in itself makes it extremely unlikely that a gold, silver, bronze all-encompassing, all-singing, all-dancing rating is going to fit the bill.

House resumed.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

Tabled by

[Baroness Wolf of Dulwich]

216: Clause 27, page 17, line 22, leave out subsection (3) and insert—
“( ) The amount of a fee payable under subsection (2)(a) by an institution or provider— (a) must be calculated by reference to costs incurred by the designated body in the performance by the body of functions under section 23(1) in relation to the institution or provider, and(b) may not be calculated by reference to costs incurred by the designated body in the performance of any other functions or in relation to a different institution or provider.”

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

Debate on whether Clause 47, as amended, should stand part of the Bill.

[Baroness Wolf of Dulwich (CB)]

My Lords, I beg noble Lords’ indulgence because there will be a couple of times when I will need to look up the wording of the Government’s factsheet, which may cause a delay. Clause 47 states:

“If (having regard to advice from the OfS) the Secretary of State considers it necessary or expedient, the Secretary of State may by regulations … authorise the OfS to enter into validation arrangements”.


That sounds quite reasonable, until one realises what is actually happening here. The OfS is the regulator of the sector and is being authorised to award degrees.

This is an extraordinary proposition. For an organisation that is regulating higher education providers, and bestowing and removing from them the power to award degrees according to terms of registration committee conditions, also to award degrees may not be unprecedented but it seemed rather amazing when I first read the clause. I read it four or five times to make sure I had not completely misunderstood it.

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[Viscount Younger of Leckie (Con)]

My Lords, I thank noble Lords for the opportunity to discuss validation arrangements. We believe that they are essential to a fully functioning higher education sector. We have listened to the concerns raised around the potential for Clause 47 to create a conflict of interest. However, I believe that a more substantial conflict of interest already exists within the sector.

At the moment, new providers usually have to find a willing incumbent provider to validate their provision. This gives those incumbent providers significant levers to control which new providers can enter the market, and what kind of provision they offer. Even if established providers are willing to help new providers get a foothold in the sector, there is an inherent conflict of interest if the proposed new provision would directly compete with one of their own courses. Of course, conflicts of interest are not the only problem validated providers can face. We know that some providers still find it difficult to find a partner that is willing to enter into validation arrangements with them, or have established arrangements unexpectedly withdrawn, and not because they are considered poor quality.

The noble Baroness, Lady Garden, stated that there was no evidence, but I have to put her right. We only need to look at events at Teesside University last year. Following a change of leadership, the university unexpectedly withdrew important validation services to 10 local colleges, based on a change of strategic direction and not as a reflection of the quality of the provision. Ensuring new and existing high-quality providers are not locked out of the market via their preferred entry route is essential to ensuring that students are able to access the right type of higher education for them.

The OfS cannot force providers to enter into validation arrangements. If insufficient providers are entering into validation agreements with each other or into commissioning arrangements with the OfS, or these fail to correct the problem, the OfS will need to find another way to promote competition and choice. Without further powers, the OfS could potentially be forced to stand by and watch while good-quality providers that do not want to seek their own degree-awarding powers remain locked out of degree-level provision indefinitely.

The OfS will, if it performs any validation function, have to have regard to the need to encourage competition among higher education providers in England. Its aim will not be to compete with the other higher education providers with a view to diminishing their attractiveness or their ability to offer validation services. It will only offer these services if there is demonstrable evidence that validation services are failing to support the sector. A regulator needing to take a role in the sector it regulates is not totally unprecedented. For example, the Bank of England regulates many aspects of the financial sector in order to maintain financial stability in the UK. In extremis, however, it will also act as the lender of last resort, or a market-maker of last resort, for example by buying and selling assets such as government bonds to provide liquidity at a time of financial stress.

Noble Lords might wish to read an interim report by the Open University and Independent Higher Education on a joint project piloting a streamlined approach to validation. The report highlights several perceived obstacles for providers in developing successful validation partnerships, including restrictive behaviour on the part of some validating universities and,

“insufficient support for alternative delivery models including accelerated and more work-based degrees”.

While the report accepts that this is not representative of all validation partnerships, it recognises the importance of validation as a route into the higher education sector and the need to fix problems which, if left unchecked, could have an adverse impact on student choice.

The report says:

“Validation stands as a critical part of the regulatory infrastructure, and its role as a gateway into the higher education sector means that any dysfunction will have a substantially negative impact on the diversity and quality of provision available to students”.


Relying on incumbents to shape the future of higher education can also curb innovation and result in the entrenchment of the same model of higher education, as providers may be hesitant to validate courses that do not conform to their usual modes of delivery. As the noble Lord, Lord Browne, said, validation can create a closed shop. As part of its work on improving validation services, we would expect the OfS to draw and build on this and other work already carried out.

I also noted the suggestion in the previous debate to create an independent central validation body akin to the CNAA model. As a regulator of the higher education sector, the OfS is ultimately responsible for ensuring that the regulatory framework and its supporting processes are functioning effectively. As the noble Lord, Lord Browne, said, it therefore makes sense for the OfS to have a role in determining how validation problems that could prevent it from fulfilling its responsibilities, such as ensuring that market entry routes and related processes are functioning effectively, are actually fixed.

The OfS’s broader strategic role makes it best placed to identify emerging trends in validation services across the sector and to monitor the impact of whatever solution it puts in place to correct any problems. It will be able to draw on information and advice from all its designated bodies and stakeholders to develop a robust evidence-based approach to address any serious validation failings. I reassure noble Lords that this is not a power easily given or used. We envisage that the OfS would be authorised as a validator of last resort only if it was absolutely necessary or expedient after other measures had been tried and failed.

The noble Baroness, Lady Wolf, said that this would be based only on anecdotal evidence. The Secretary of State may exercise this power if she considers that it is necessary or expedient to do so, having taken OfS advice. That advice is most likely to come in the form of an evidence-based report.

The Secretary of State would need to lay secondary regulations in Parliament. As we all know, it is common practice for these regulations, which use the negative procedure, to be laid before Parliament 21 days before coming into force, giving Parliament the opportunity to see these conditions. As always, Parliament retains the power of veto.

The regulations, should they be deemed necessary, are expected to set out the terms and conditions of any OfS validation activity. I would expect the OfS, as the overall regulator of higher education quality and champion of students’ interests, to be best in class in terms of demonstrating that its validation services abided by best practice validation principles and delivered to the highest standards. I would also expect the OfS to put in place appropriate governance arrangements ensuring that an appropriate level of independent scrutiny was applied to the validating arm of the organisation and the safeguards to protect student interests.

The noble Baroness, Lady Wolf, asked how this would work, who within the OfS would do the validating and whether they would have the requisite skills and qualifications. The regulations by the Secretary of State could attach certain conditions to ensure that the service set up by the OfS was underpinned by the necessary expertise. As we expect members of the OfS board to have between them experience of providing higher education, the organisation will have the necessary expertise to recruit the staff needed to set up a validation function. For further detail on how the OfS validation arrangements would work, I again refer noble Lords to my letter of 19 January enclosing a factsheet published by the Department for Education on validation. With that, I move that this clause stand part of the Bill.

[Baroness Wolf of Dulwich]

My Lords, I thank the Minister for his full reply, though if anything I am now more confused than ever. Either the validation issue is a serious one, in which case presumably the OfS will be giving out degrees in large quantities, or it is not, in which case I am not quite sure why we have these massive powers. I hope the Government revisit the whole validation issue. I actually have no idea when it appeared on the scene; it was not the case for many years, and I assume it was created by government for a purpose. This is an issue we will want to return to on Report, but at the moment I am happy to see the clause stand part of the Bill.

Clause 47, as amended, agreed.

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[Baroness Garden of Frognal]

My Lords, I support the amendments in this group, particularly Amendment 368, which is about the number of staff on non-permanent contracts and zero-hours contracts, as the noble Lord, Lord Watson, set out. As we have discussed before, these sorts of metrics might be more valuable to the TEF than many of the metrics already in it, because the non-permanent staff and zero-hours staff will have a greater impact on teaching quality than many of the other things which the TEF purports to measure. On Amendments 376 and 377, it is important at all stages of the Bill to ensure that adult, mature and part-time students are included as part of the student population.

[Baroness Wolf of Dulwich]

My Lords, I have one amendment in this group, which is a very small amendment in that it asks that one word be substituted for another. But if I read out the original clause, it may be evident why this is really quite important. I am very much in sympathy with what the noble Lord, Lord Lucas, said about keeping an eye on the fees that people charge.

The original Clause 61(2) reads:

“The amount of a fee payable by a registered higher education provider under this section may be calculated by reference to costs incurred, or to be incurred”—


so you do not even have to incur it yet—

“by the body in the performance by the body of any of its functions under this Act which are unconnected with the provider”.

My amendment would replace “unconnected” with “connected”. This is quite typical of a number of statements in the Bill to which amendments have been tabled already; it implies a degree of freedom for the regulator or designated body to impose fees of any sort or level, without any requirement that the necessity or even the link to the provider being charged be demonstrated.

It would be entirely possible for the Government, without losing sight of any of their major objectives, to go through the Bill and change these extraordinarily open-ended invitations to levy a charge for something that we know not what. It starts to sound something like the South Sea bubble. With a regulator or an official body, it is very important that the nature of fees, like the nature of information, be very clear, and that there is not an ambiguity in the legislation about the ability of organisations that rest on statute to be able to levy charges that are not in any sense proportionate to the activities or what is required of the individual provider. I would be very grateful if the Minister could come back to us on that.

[Lord Liddle (Lab)]

My Lords, the amendments in my name are relevant to the points that the noble Baroness, Lady Wolf, has just made. I am concerned with the scope that the OfS has to levy charges on the sector; effectively, it is a provision to tax the sector for unlimited purposes, which are not clear, and there needs to be some mechanism of control and full consultation on any proposed charges. Just as regulators impose limits on rises in fees on institutions in line with the cost of living, similarly the regulators should be under an obligation to try not to put up their charges on the sector above the rate of increase that universities can themselves charge.

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[Lord Stevenson of Balmacara]

My Lords, I will speak to Amendment 423 in my name. The question is about grants to the OfS for set-up and running costs, but there is the additional possibility, picked up in the amendment of the noble Baroness, Lady Brown, that there may be other aspects and bright ideas that come to mind about how these charges might be recouped. The amendment asks whether or not there are tight guidelines available which would restrict the ability of the OfS to raise funds in a broader sense other than specifically for set-up and running costs. I look forward to hearing the Minister’s response.

The point raised by the noble Baroness, Lady Brown, in her opening remarks on Amendment 420 is important, because we still worry a bit about what the nature of the beast called “OfS” is. Is it a regulator? It has been said that it is, and if it is, does it fall under the Regulators’ Code? I think I heard the Minister say on a previous amendment that it did not qualify to be considered within the code of practice for regulators. But if that is so, why call it a regulator? It will cause confusion and doubt if, in the public mind, it is a regulator for the sector but in fact it is not because it does not fulfil the criteria that would normally apply to other regulators. As the Minister said, these are not unhelpful comments in relation to regulator practice. They would clarify a lot of the uncertainty we have been experiencing in terms of how the regulator will operate. It might be that there is a case for it, even though it was not intended.

The noble and learned Lord, Lord Mackay, has pointed out a number of times that there are other statutory provisions and considerations that might bear on how this Bill is constructed and issues relating to it. It is wise to have a wider net on these matters than simply to focus on the wording of the Bill. If there are other considerations that we ought to be aware of, it would be helpful if the Minister could respond, making quite clear what it is that drives the determination that the regulatory code does not apply in this area, even though some of the factors might be helpful and effective in terms of how it discharges its responsibilities.

[Baroness Wolf of Dulwich]

My Lords, I want to repeat what has been said by a large number of people in the Committee this afternoon about the issue of fees paid and how this is looked at and moderated. It seems fundamental to the future of the relationship between the regulator and the sector. An awful lot of what one gets from reading the Bill is the sense that they will be at odds—that the regulator is there to punish, to force, to fine and to search. Ultimately, that is completely destructive. The most destructive thing of all will be if people are fighting constantly over the nature of fees, what is legitimate and what is not.

Therefore, rather than repeating comments that I made in connection with an earlier amendment, I simply say how fundamentally important this issue is and how very much I hope that the Government will look carefully at the structures that are being set up. Fees and payments go to the heart of everything. As a policy researcher, “follow the money” is always what I say to myself. It would be very helpful if the Minister were able to assure us that, following this House’s deliberations on the Bill, that is one of the things that the Government will look at in terms of other legislation and statutory requirements, and that they will look at how, going forward, the OfS will interact with the sector in a way that is mutually beneficial rather than being made up of constant arguments and turf wars.

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[Baroness Brown of Cambridge]

My Lords, Amendment 429 is in my name and that of the noble Baroness, Lady Wolf. This is a probing amendment to investigate the relationship between the two higher education regulators—the Office for Students and the Competition and Markets Authority. The perception of overlap between the two regulators, the potential for conflicting advice and requirements, and the perception of the difficulty of collaboration under Competition and Markets Authority regulation are all issues causing concern in the sector. As an aside, this is part of the reason behind our desire for the OfS to promote both competition and collaboration.

I ask the Minister: would it not be possible for the sector to work with a single regulator, the OfS? If this cannot be the case, will she explain how the two regulators will work together with the sector to ensure they support,

“those they regulate to comply and grow”,

as the Regulators’ Code says? I beg to move.

[Baroness Wolf of Dulwich]

My Lords, I strongly support what my noble friend Lady Brown said. Up until now, higher education has been fortunate in that it has had relatively few different regulatory authorities. The OfS will be quite different from anything that we have had before.

I refer to other sectors. I personally know the social care sector quite well. Those of us who have worked with or in this sector or the health sector, for example, know that, when you have more than one regulator, if they overlap or if it is not really clear who is responsible for what, you get regulatory and expenditure creep. This is not necessarily what the regulators mean—at least, not at the top level—but it is very much the experience that one has. The noble Lord, Lord Willetts, referred to this earlier in our deliberations. He talked about the problems that you could have in the health sector as a result of Monitor thinking that bringing institutions together was not a good idea when other people thought it was.

This is a probing amendment to ask for clarity, if not total simplicity, because there are very real costs when a sector does not have it.

[Lord Stevenson of Balmacara]

My Lords, I apologise to the Minister. I was watching a figure behind who seemed to be moving towards an upright position and therefore might speak. If he is not I will carry on.

This is an interesting amendment and I am glad that it has been raised in the form that it has. We cover a number of points every time we debate this, but here is a question that cannot be ducked. The reality is that universities have to face a number of different regulators already. Those that are charities obviously have the Charity Commission as their regulator. Then there are those that are established as companies. As we have heard, many higher education providers have the permission of the Secretary of State to use “university” in their title or, even if they do not, are subject to anything that may be required under the Companies Acts. Many will have a variety of regulators; it is not unknown to have companies that are also charities. There are also bodies that are not for profit—corporations that are subject to the Companies Acts, but in a different way from those that are set up for profit.

However, I think the main purpose was to try to untangle the relationship between the CMA—a recent entry to this area—and the universities. It is a little surprising that the CMA has entered this area rather late given that it stated recently that providers of higher education that now come within its scope are subject to the Consumer Protection from Unfair Trading Regulations 2008; the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013; the Unfair Terms in Consumer Contracts Regulations 1999, for contracts concluded prior to 1 October 2015; and Part 2 of the Consumer Rights Act 2015. That Act went through your Lordships’ House just over a year ago and included the application of consumer rights to public bodies such as institutions of higher education. It was amended during its passage through the House.

As I think is well known, the CMA has carried out a preliminary investigation into the new responsibilities that it has taken on in the last 18 months, and has obtained undertakings from more than a few universities to secure improvements to their terms and/or practices. It has written to all higher education providers, drawing the findings of the compliance review to their attention, and asking them to review and revise their practices and terms, as necessary, to ensure compliance with consumer protection law.

Where will this wave of regulatory practice, which is sweeping in with unforeseen and possibly unpleasant purposes, stop? I do not object to the CMA’s engagement or to anything that raises standards and keeps public bodies moving forward. However, there will be regulatory overload, as has been mentioned. We must be very careful to guard against that. The way most sectors operate in the event of overlapping regulators is to obtain a memorandum of understanding between the principal regulator—or in this case regulators—and the one closest to the bodies concerned. If the OfS is to be a regulator, we will need to know how this will operate in practice. It is welcome news that the Bill team is considering whether to engage more directly with the Regulators’ Code, as that would solve a lot of problems.

Before we proceed further with the Bill, we should be told exactly what the boundary between the CMA and the OfS, as envisaged, is. Indeed, it would be helpful to be informed of the boundary between the Charity Commission and the Registrar of Companies, if that is relevant. We should also probe a little further whether it is envisaged that a memorandum of understanding between these regulators will be drawn up to protect the provision we are discussing. If so, what timescale applies to that? Could that be provided by Report, at least in draft form, so that we can discuss it further?

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Moved by

[Baroness Wolf of Dulwich]

434ZA: After Clause 72, insert the following new Clause—
“Power to require information on the need for new providers
(1) The Secretary of State must establish an independent committee to provide information to the Secretary of State and to the OfS on emerging needs for new providers within the higher education sector.(2) The independent committee may provide recommendations to the Secretary of State on matters including—(a) the type and location of new provision that is required;(b) how best to make validation arrangements for particular new providers, should they be required, and whether mentoring by established institutions will be required.(3) In making recommendations under this section, the independent committee must take into account—(a) skills shortages, including forecast skills shortages, within the economy of the United Kingdom; (b) lack of adequate provision within the higher education sector for certain disciplines;(c) restricted access to higher education, or to particular disciplines, in certain areas of England, including restricted access for part-time and employed learners.(4) In this section “validation arrangements” means arrangements between the Secretary of State, the Office for Students and a registered higher education provider under which the higher education provider is authorised to grant taught awards or research awards or both.”

[Baroness Wolf of Dulwich]

Amendment 434ZA, in my name and that of the noble Viscount, Lord Ridley, is not exactly a probing amendment but it seeks to emphasise the importance of something that gets rather little attention in the Bill as it stands. In speeches and discussions we have heard a great deal about the importance of innovation, opening up the sector and preventing vested interests getting in the way. There has also been quite a lot of discussion on the Floor of the House about the need for diversity. However, there is remarkably little about diversity in the Bill. When I looked through it did not appear at all, although the Lords spiritual had a couple of amendments that explicitly talked about it. The point of this amendment is to make explicit that diversity is truly important and we stand to benefit from a far more diverse set of institutions. However, diversity will not happen by magic or automatically simply by virtue of making it easier for a certain number of new providers to enter the higher education sector.

It is very important that we think positively about diversity and not negatively in terms of possible barriers. Diversity does not happen automatically, and one reason that Governments exist is to tackle what are in effect major barriers to entry when those barriers mean that we do not serve the long-term or even the short-term interests of the country and of students.

Having more providers that offer business degrees may be very good for the quality of business degrees but it will not in itself do anything either about the need to think of very different ways of delivering higher education and lifelong learning or about the areas where we know that we have enormous skills shortages in this country, which will not be solved without active government.

Over the last 15 or 20 years, there has been a very large increase in the number of providers, although possibly there should be more. Alternative providers offer courses which are cheap, which you can afford to put on with the resources at hand and which do not put you at risk of going broke in week one. That is absolutely as it should be but, when you look at the profile and detail of what is being offered, as I have done, you find that it is accounting and business and business accounting—things that do not need huge up-front investment.

A similar pattern can be seen in, for example, the apprenticeship statistics. Again, there has been a regime of effectively inviting people to offer apprenticeships—not dissimilar to what we are talking about for higher education. The result has been overwhelmingly a growth in apprenticeships that do not require expensive equipment or involve high-risk activity, which means that you can cover your costs and more with relative ease.

Therefore, the purpose of the amendment is to argue that it is truly vital that the Government take a more active approach to encouraging new and different institutions. If they do not, then simply enacting the current regime as proposed will not solve the problem. New entrants will not on the whole do science or engineering. I am sure that lots of them would love to do exciting and expensive things, but the reality of being a new, small institution is that they do not.

I have mentioned the history of apprenticeships. Another example is the fight over saving archaeology A-level. I have considerable sympathy with the examination boards. Running things where you lose money heavily is quite hard to do. Unless you are large enough to spread those courses, by and large you just do not do them. These courses are very expensive and, without government support, they will be too risky and long-term for most people, but they are areas that are badly needed.

In a week in which an industrial strategy has just been launched, it would be appropriate for the discussions on the Higher Education and Research Bill also to take account of the fact that, in the past, Governments in other countries have felt the need to take a very active role in this area. They have felt the need to put long-term planning and substantial government money into the sector in a directed and planned way, because otherwise things would not happen. In this context, it seems to me that the Dyson Institute of Technology, which is clearly a wonderful initiative, makes the point. How many very rich individual entrepreneurs with the ability and money to take these decisions are there in this country? So far, there has been James Dyson. As a strategy for providing that part of the higher education sector, relying on the beneficence, good will and commitment of rich individuals is not very sensible. Obviously we cannot go back to the 1960s but it is worth looking at the commitment, vision and expenditure that were put in back then.

Therefore, the amendment asks for the Secretary of State—not the OfS—to have an obligation to take, on a regular basis, a strategic view of where in the country and in what disciplines we might need something more, something new, something different and something involving government commitment and government money. We suggest that the Government also look at how these institutions can be set up. We have gone on a lot this afternoon about validation. Going back to the 1960s, we had institutions that were developed over time. They launched forth, they had their own degree-awarding powers from day one and they had royal charters.

I think we are getting into a sort of mindset here in which there is the existing sector and then there will be new, brave little institutions, which may or may not need validation by other institutions and, if they do not, maybe the OfS will do it. That is too narrow and far too limited a view of what our universities and our higher education need to look like. I am sure that one possible response will be to say, “Oh, I’m sure the Office for Students will do it”. The Office for Students is already being asked to do an amazing number of things. I do not believe that this is a matter for a regulator; it is for the Secretary of State, on behalf of the nation and on a regular basis, to look at how, in new ways or “back to the future” ways, something can be done to create genuine diversity and genuine responsiveness to the needs of the economy and of society now and in the decades to come. I beg to move.

[Viscount Ridley (Con)]

My Lords, I support the amendment, which also stands in my name. I did not speak at Second Reading but I hope the Committee will indulge me. I attended nearly all of the Second Reading debate but, because I thought I would not be there at the end, I did not put my name down to speak.

I share some of the doubts that have been expressed about the Bill in other parts, but I am enthusiastic about one of its principal aims, which is what the amendment seeks to reinforce. I refer to the encouragement of diversity and innovation, as the noble Baroness, Lady Wolf, has eloquently explained, and the encouragement of new entrants, not just passively but actively—letting 1,000 flowers bloom but planting 1,000 flowers as well.

I am a great believer in competition, so it is important that we do our best to bring forward new ways of doing higher education, as well as new types of courses and new locations for them, especially in vocationally relevant areas—areas that are in demand with employers and where the signal is not being transmitted well enough to students. As the noble Baroness, Lady Wolf, said, it is not just a matter of opening the gate and seeing a flock of new entrants come through; starting a new university is a huge investment and there are enormous barriers to entry. You need premises, people, programmes and quite a lot of pennies. So, before taking the plunge, as the noble Baroness said, entrepreneurs will need to be given signals that the state prioritises supporting certain courses and certain disciplines. As has been said, the industrial strategy makes the case for singling out and encouraging certain things that we think will be important in the future.

The example that I would give is data science. I know somebody who, as a sideline, retrains the holders of physics PhDs as data scientists, because that makes them much more valuable to employers in the private sector. There is a huge demand for data science in business, and that is the kind of thing that perhaps it would not be immediately obvious to existing universities to supply, or indeed obvious to new entrants, who might be hard pressed for cash and so on. I think that with the right kind of encouragement from government, advised by independent expertise, the sector could benefit from this sort of duty on the Secretary of State to consider where new ideas should come from.

I am no fan of committees for committees’ sake, so I am not wedded to the exact form of the amendment. In that sense, I see it as somewhat probing—raising the issue and seeing whether the Government are interested in responding in a positive way to this suggestion.

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[Baroness Goldie]

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

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

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

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

[Baroness Wolf of Dulwich]

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

[Baroness Goldie]

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

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

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

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

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

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

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

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[Lord Adonis (Non-Afl)]

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

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


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

[Baroness Wolf of Dulwich]

It would be very helpful to have that confirmed.

--- Later in debate ---

[Baroness Wolf of Dulwich]

I thank the Minister. For part of the last five minutes I felt as though two different plays were going on in the Chamber, somehow scheduled on the same stage. The issue is not, to repeat, whether there should be new providers. The amendment clearly supports that. The issue is whether without direct intervention activity we will get the degree and type of diversity that the country needs. I thank the noble and learned Lord, Lord Mackay, for his suggestion, which would at least place the importance of this firmly at the beginning of the Bill. I hope that we might pursue that. This is not about hoping or having faith that new little providers will do all these things. We know, factually, that they will not, just as we know factually from the whole history of apprenticeships that if you throw it open in the way that is proposed for higher education and just wait to see what people will get from the general fee regimes available, you will not get the expensive ones.

Of course I will withdraw the amendment for the moment, but I hope we can return to it. This is not necessarily about committees—I share noble Lords’ views about committees—but about making sure that there is a clear function and duty on the Secretary of State to address these issues. I would very much like to pursue the noble and learned Lord’s suggestion, and I hope we can return to that on Report. I beg leave to withdraw the amendment.

Amendment 434ZA withdrawn.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

I particularly think that there is an opportunity to create an online community of all those who have been through British education. Someone who has been, say, to do engineering in Newcastle could derive support from being part of a community of everybody who has been to a British university, particularly everyone who has studied engineering at a British university, and have many more contacts and much more ability to derive strength from that association within the countries they have gone back to than if they are just connected with other people who had done engineering at Newcastle. We could really boost the value of a British university education by connecting people in that way and boost the value of those people to us. Again—particularly coming back to remarks which the noble Baroness, Lady Brown of Cambridge, made in Committee—it is clear that universities are not ready to collaborate in this voluntarily, so I would like to know that the Government have the power to push them in this direction and that if this is something that, after due consideration, we decide to do, we have in this Bill or elsewhere the power to make it happen.

[Baroness Wolf of Dulwich (CB)]

I support the amendment tabled by the noble and learned Lord, Lord Mackay, and I thank him for his interest in the amendment that the noble Viscount, Lord Ridley, and I tabled in Committee. I will return to that theme—although, he will be glad to know, not in the context of a new committee—in an amendment that I tabled for later in the proceedings.

I agree with the noble and learned Lord that it is important that this new regulator looks beyond the day-to-day and has some vision of how higher education in this country should be developing. I have recently been rereading Lord Robbins, and it does indeed feel like another world. The point that I want to underline, which is inherent in the amendment tabled by the noble and learned Lord, is that unless somebody in government—and who else but the OfS?—is looking at emerging needs and taking appropriate steps, many important things simply will not happen. As my noble friend Lady O’Neill pointed out a little while ago, the reality is that, with just the money that you can get for an individual student, you cannot create a visionary new university or create thriving STEM faculties. They need money, they need planning and they need government support.

One of the things that we now know more about than we did even a couple of weeks ago is the nature of the new providers coming into the market. As one would expect, they are, overwhelmingly, small providers of business education. Some of them are doing very interesting and exciting things, but this underlines that we cannot, in the current context of funding and loans, simply rely on making it easier for new providers to come in and on promoting competition to meet the needs of this country and create the sort of visionary institutions and well-endowed STEM faculties that we need for the future of the country.

Like many other noble Lords, I want to take this opportunity to thank the Minister for the amount of listening he has done so far, but it would be very helpful if he could do a little more listening and just make it clear to this new and powerful body that it also has a role and a responsibility for looking towards the future.

[Viscount Ridley (Con)]

My Lords, I will not detain the House for long, because a lot has been said by the noble Baroness, Lady Wolf, and my noble and learned friend Lord Mackay about Amendment 5, but will briefly express my support for this position. One of the prime purposes of the Bill is to open up the higher education sector to new entrants and to the fresh breath of air that they could possibly bring. We have heard, since the Bill started, not just of the many small providers, as mentioned by the noble Baroness, Lady Wolf, but also of Sir James Dyson’s expansion of his university. That is magnificent, but even he has admitted that it is very hard to start up a new university. How much harder would it be for those with fewer resources? There are huge barriers to entry in this field.

In Committee, the noble Baroness, Lady Wolf, and I argued for a new committee to encourage new entrants to come forward. Even at the time, I expressed some reservations about adding to the number of committees in the world, and I am delighted that my noble and learned friend Lord Mackay has come up with the simpler idea that this function should be added to the functions of the Office for Students. For a Bill designed to encourage new entrants in the university sector, there is surprisingly little in the Bill that actually addressed the encouragement of new entrants, and this is a modest and welcome suggestion.

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[Baroness Wolf of Dulwich]

My Lords, I, too, support the amendment. I agree with my noble friend Lord Kerslake that to use the TEF in its current state as a mechanism for deciding what fees an institution can charge is premature and quite wrong. I agree with him also that, given that the Government wish to put students at the centre of things, it is extraordinary how little we are listening to them. At the moment, not a single representative body led by students has backed the proposal to link the TEF judgments to the level of fees. Twenty-six students unions, including a number in the best-known universities—in fact, largely in the better-known universities—are boycotting the national student satisfaction survey this year because they are so concerned that the metrics that the Government propose to use are inappropriate.

It is worth remembering that the Conservative manifesto undertook to recognise universities offering the highest teaching quality. I do not think that a single person in this Chamber does not believe that teaching quality and giving information to students about it are extraordinarily important. I want to quote my own institution. A joint statement from the college and its students union said:

“The university and the Students’ Union … agree that the Teaching Excellence Framework … metrics currently under discussion are not, in their current form, appropriate measures for improving educational quality”.


The president of our students union feels strongly that, while students have never disagreed with this principle, they dispute the employment of the teaching excellence framework in its current form to achieve the goal of improving teaching quality in higher education. These are serious young people and they have thought about what they are doing. They feel that linking fees to the TEF is not appropriate.

Many people will know that Universities UK feels that the Government have great concessions and that this is basically fine. It is worth remembering that this was an action on the part of its executive. It is also important to remember that in the current environment vice-chancellors are above all interested in behaving in such a way that they maximise their fee intake. I remind people who have not already heard it of Goodhart’s law, which basically says that any instrument, measure or metric used for making decisions or allocating funds which are of high importance automatically becomes unreliable. It is a law for which nobody has yet found a counter example; it is my daily teaching bread and it is true not just in education but in hospitals, social care and everywhere else. If we want to give people really good information on the teaching quality in their institutions, tying it to whether that institution can raise its fee is not a good way to improve the quality of the measurements.

I want to cite three groups of academics who are quite separately trying hard to get through to us, the Council for the Defence of British Universities, the Campaign for the Public University and the Convention for Higher Education, all of which feel, as do students, that in their current state the TEF metrics are not up to the job of determining fee levels and that, until we are sure that we have valid and reliable measures, we should not do this.

[Lord Lipsey]

My Lords, hearing the words “TEF metrics” made me come to my feet, because a consistent theme to run through our debates on the Bill has been the developing understanding that the metrics are wholly inadequate and, in particular, that the national student survey is not the basis for any judgments on teaching quality.

I am glad that the Government have moved as far as they have on the NSS and the metrics—now we are getting a thorough review; the metrics related to the NSS are being officially described as the least important of the metrics before us; for smaller institutions more scope is being given; and so on. That is all good news, but what seems knocking on bizarre is to plough on with bringing in this link between fees and the TEF before we have got the TEF right. It would be logical to get the TEF right first, see whether the metrics can be made to work and get them all in some sort of order, and then, when you have done that, you can seriously consider whether to have a link with fees. But when the TEF is such a self-evident mess, why put all your money on having the fees link, which will make people even angrier at the effects of the TEF? Why not show a little patience? The Government believe in linking the TEF and fees; others in this House do not. The Government would give themselves the best chance of proving themselves right and the sceptics wrong if they gave time for the TEF to settle down before they brought in the fees link.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

Report stage (Hansard - continued): House of Lords
Monday 6th March 2017 Lords Chamber

[The Earl of Dundee (Con)]

My Lords, within this part of the Bill concerning registration conditions and their enforcement, so far it appears that there is nothing much about restricting enrolment. Clause 16 enables monetary penalties where necessary and, in various other respects, Clauses 17 to 22 inclusive provide powers to correct and adjust, if and when desirable. Yet the latter will constitute relevant actions in the second place, and thus subsequent to the central matter, which is enrolment in the first place. In this context, by contrast, thus it appears anomalous that enrolments, and in certain circumstances a useful scope for their restriction, should so far not have been addressed at all. However, the proposed new subsections of the noble Lord, Lord Stevenson of Balmacara, redress that omission. His amendment is timely and very much worthy of support.

[Baroness Wolf of Dulwich (CB)]

I support the proposition. When we discussed the matter in Committee, the Minister said that he saw no reason why there should not be a wider range of penalties at the disposal of the Office for Students. It would be very helpful to have that confirmed in the Bill, otherwise there is the possibility of challenge of the OfS exceeding its powers if it moved to restrict the number of students in a way that would seem on many occasions entirely appropriate.

[Viscount Younger of Leckie (Con)]

My Lords, the noble Baroness, Lady Wolf, expressed these concerns in Committee, and I listened carefully to her very short speech just now. The noble Baroness, Lady Garden, and the noble Lord, Lord Watson, also spoke in Committee on the subject. This is the concern that the OfS would not have appropriate powers to restrict student enrolment at a registered higher education provider in the event of a breach of registration conditions, and would instead be compelled to either impose a monetary penalty or deregister the provider, both of which would have a negative impact on a provider’s enrolled students. It is our intention that such sanctions would be imposed only in exceptional circumstances. The OfS will operate a risk-based regulatory system, whereby any regulatory action is to be proportionate to the nature of the breach of a registration condition. The OfS will have an escalating suite of actions open to it, ranging from compliance measures, such as agreeing a support strategy with a provider or directing that certain actions should be taken, through to imposing specific ongoing registration conditions, and finally to sanctions.

The imposition of a student number control is precisely the sort of regulatory action that the OfS can use under the powers already contained in Clause 7, which allows the OfS to impose “specific ongoing conditions”. Imposing a student number control would not be to the detriment of students already studying with a provider and would help to ensure that new students who were subsequently enrolled would enjoy high-quality, suitably resourced teaching and learning. It is clearly not our intention that the OfS de-register institutions or impose monetary penalties, apart from in exceptional circumstances that merit such an intervention. We anticipate that such action would rarely be in the best interests of the student, the provider or the taxpayer. We have considered whether it would be appropriate to provide a specific power in the Bill for the OfS to impose student number controls. On balance, however, we believe it is unnecessary, as the Bill already provides the OfS with the powers necessary to limit student numbers where appropriate. With that explanation, I ask the noble Lord to withdraw his amendment.

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[Lord Norton of Louth (Con)]

My Lords, I support Amendment 57. At earlier stages of the Bill I have welcomed the provisions of Clause 13, which provide that the Office for Students can generate student protection plans. That is to be welcomed but, as the noble Lord indicated, the problem is that we do not know what form that protection will take and more needs to be set out on the face of the Bill. I moved an amendment in Committee to try to address this issue but, at that stage, the Government were not receptive. Therefore, we really need to come back to it.

As the noble Lord said, it is the Office for Students—students are meant to be at the heart of this measure, yet they will have no idea of what protection they have when they undertake a course of study. When it comes to protection, Clause 13 gives the example of a course failing to be provided. So precisely what protection is being accorded to students? They need that reassurance if they are to sign up for and pursue courses in the first place. Amendment 57 gets at this problem and I welcome the fact that we are again considering it. As I said, students deserve to have some idea of what protection they will have when they undertake a course of study.

[Baroness Wolf of Dulwich]

My Lords, I support the amendments to which I have put my name and agree with everything that both noble Lords have said so far.

When the Higher Education and Research Bill was first introduced, both Ministers pointed out that the environment in which higher education takes place has changed dramatically in recent years, and indeed it has. Very large numbers of students now take out large loans in the belief, and with the confidence, that the institutions they attend have in some sense been guaranteed by government—that what they are doing is safe in that they will be able to complete their studies. Fortunately, in most cases that is true, but of course it is not always or necessarily true. Anybody who looks at the experience in other countries will realise that institutions do fail, and indeed some of our non-degree-awarding institutions have failed in the past. The Competition and Markets Authority says cheerfully on its website that the sign of a healthy sector is that some exit occurs. Exit sounds quite cool—unless you happen to be one of the students in an exiting institution.

At the same time as this Bill is going through, the Technical and Further Education Bill is being debated, mostly in the Moses Room. As I attend the sittings of both Bills, part of the time I whinge but mostly it is a very informative exercise because we now have a tertiary sector as much as anything else. However, the protections being introduced for students in further education colleges go well beyond anything that has been specified for students in higher education, and that is highly regrettable. It is really important that in this new and changed environment, we realise that students need new and changed protection.

To give an example, for a long time the training sector has had many quite small, and sometimes quite large, rapidly changing institutions. Just before these Bills were introduced in the House, we heard the first story of a training provider that went into liquidation, leaving many people with outstanding loans and no obvious recourse. In the few weeks that both Bills have started to work their way through the House, there have been two other such failures. I shall be happy to give their names to anyone who is curious to know them, but, once again, we are left with, in this case, adult learners who have loans but no ongoing course.

When I raised this issue with the Minister and officials, I was told that the risks were lower for university students because they were more mobile and less local. However, that really is not true. It is not true of my own, but it is true of many of our university institutions that they have home students who are almost all highly local—often because they come from less advantaged families and are very unhappy about taking out major maintenance loans. So they are very local, and if their institution fails, they do not have anywhere else to go.

I hope very much that Ministers feel able, ideally, to accept Amendment 57, which seems to me the least that we can do in an environment where we are, in effect, making a promise to students. If it turns out that, for good reasons, that promise cannot be kept, they ought to be looked after.

[Lord Bilimoria (CB)]

My Lords, I have spoken before in this context as chancellor of the University of Birmingham, chair of the advisory board of the Cambridge Judge Business School and an alumnus of Harvard Business School. However, years ago, when I was qualifying as a chartered accountant with the Institute of Chartered Accountants in England and Wales, I spent a year at what is now the London Metropolitan University, where I would later spend time as a visiting professor. I want to draw an analogy. In 2012, the London Metropolitan University lost its right to recruit international students. At that time there were 2,700 international students with valid visas, who had come here in good faith. They were given 60 days to find a place at another institution. That not only jeopardised their lives and futures but jeopardised and placed in crisis an institution with 30,000 students and 2,000 staff. That has implications for not only the institution but international students—as I know as the president of UKCISA, the UK Council for International Student Affairs.

Today, Universities UK has released a report showing that there are almost 450,000 students in the UK, of which almost 130,000 are from the European Union. The contribution they make to the British economy in gross terms—what they spend directly and indirectly— is £25 billion. With Brexit coming up, the uncertainty for international students, let alone EU students, is already there. It is not right that they have the added uncertainty that if, for whatever reason, the institution they join fails, they will be left high and dry. It will affect our economy and our ability to recruit international students. As it is, we have immigration rules that are against international students, which we will talk about later on Report.

I urge the Government to take this measure very seriously. It will give security to our domestic students and it is important for our international students and our reputation around the world.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

[Lord Judd (Lab)]

My Lords, I agree with those who have expressed deep anxiety about the impact of this gold, silver and bronze scheme. When I first read about it, I thought it was a further trivialisation of the whole concept of education and scholarship. It seemed to me to be the language and preoccupations of the market—marketing creeping in and distorting still further that ideal. I have said before that I wish that we could get back to the concept of universities as a community of scholars—I would hope, an international one. Students are not clients or customers: they belong to the university and they should be contributors to it. Student surveys encourage the concept of “the university and us”; whereas they should be encouraged to contribute to thinking about how the university is functioning and how it could improve its provision.

I also agree with those who have expressed another anxiety. If we are really concerned about the quality of higher education, how on earth will it help to start having oversimplified measures of this kind? When I was much younger, I held HMIs in very high esteem because of the contribution they were making to education in schools in Britain. Several inspectors were good family friends, one of whom was a godmother of one of our children. They were not going around failing schools; they were assessing their strengths and weaknesses and finding out how to help overcome any weaknesses. It should be the same for universities. There is a great deal of room for helpful assessment.

Another issue is that it is a crude measurement. I do not believe that scientific objectivity can be established. This system is inevitably a very subjective process, based on the experience and values of the people who concoct it. It is too crude, in another sense. In a university, you may have areas in which the teaching is weak and for which a great deal could be done to enhance it. That may apply to some of our older universities as well as our newer ones It is not uniform. There may be areas within the university where there is amazing excellence in teaching.

We need a much more sensitive approach that looks at the university as a living entity and reports convincingly—of course we need the information—on its different dimensions and patterns of success and failure, such as, what is strong and what is weaker. Surely, too, we should not be discouraging teachers with innovative approaches to teaching that may not lend themselves easily to crude metrics of this kind. I hope the Government have listened to the debate and will say that they understand that this may not be the right approach, and will go away, think about it and come back with something better.

[Baroness Wolf of Dulwich (CB)]

My Lords, I rise to speak to Amendments 62 to 66, 88 and 93, tabled by the noble Duke, the Duke of Wellington, and Amendment 72, tabled by the noble Lord, Lord Blunkett, to all of which I have added my name. I declare my usual interest as a full-time professor at King’s College London, but also note that I am a founding editor and editorial board member of Assessment in Education, a leading international academic journal in the field.

I have listened with interest to all the remarks made by other noble Lords and have agreed with the overwhelming majority of them. I just want to comment on an issue that is at the heart of the amendments to which I have added my name. It concerns the profound difference between using a single composite measure and having a wide variety of measures that are reported separately.

One of the prime rules of assessment—indeed, of measurement—is that you do not throw away information if you can avoid it. The Government have, rightly and repeatedly, emphasised their commitment to transparency and to giving students better information about teaching quality and other aspects of the higher education courses to which they might or do subscribe. But the trouble is that a composite measure is the opposite of transparent. It is also a problem that it is seductively simple: three stars, four stars—how can one resist it? We believe it is somehow objective because that is how we respond to a single number. In modern societies, we love rankings. But if we add up measures of different things and produce a single number, we are not being transparent and we are not being objective. What we are presenting to people, first, throws away large amounts of information and, secondly, imposes our value judgment on those different measures. When we use different indicators, add them up and create a single rank or score, we are denying other people the chance to see how it was done. It is irrelevant whether you gave equal weight to each measure or decided to do all sorts of clever things and weighted one thing at threefold and another at a half; the point is that by doing that, you have imposed your judgment. The students for whom these are designed—the students we want to help—may have different interests from you, as the noble Lord, Lord Storey, has pointed out.

That is why I support the proposal from the noble Lord, Lord Blunkett, that a scheme to assess quality must report individual measures individually. It is also why I completely agree with the noble Duke, the Duke of Wellington, that the last thing we want to do is impose on Governments, quite possibly for the next 30 years, the obligation to create rankings.

In this case, we are not even adding apples and oranges, which at least are both pieces of fruit. We are adding up things that are completely different. If the numbers are measuring or representing different things—and doing so with varying degrees of error, as is always the case—adding them up will compound the error. Obviously it would be nice to have a wonderful single measure, but the fact that we would all like one does not mean that it is better to have an unreliable one, rather than not have one at all. On the contrary, it is worse.

We know why most universities have signed up to this. On Monday, the Minister pointed out that if they do not agree to link TEF scores to fees they will,

“lose £16 billion over the course of the next 10 years”.—[Official Report, 6/3/17; col. 1140.]

Universities are in a corner and over a barrel—as we have heard, that is exactly how you would feel if you were the vice-chancellor of Warwick.

It seems to me that this is all quite unnecessary. The Conservative manifesto did not commit to rankings, to a single measure or to labelling people as gold, silver or bronze. It said that students would be informed of where there is high-quality teaching. That is something to which everybody in this House would sign up. I very much hope that the Government will continue to listen and will move away from a current commitment that can only be harmful, for all the reasons that people in this House have talked about so eloquently this afternoon.

[Lord Watson of Invergowrie (Lab)]

My Lords, this has been a passionate debate, which reflects accurately that this is the most contentious part of the Bill—certainly the email traffic that all of us have experienced would bear that out.

As we have heard from many noble Lords, the metrics proposed for the TEF are flawed, and confidence in their effectiveness remains extremely low among academic staff, students and more than a few vice-chancellors. The noble Duke, the Duke of Wellington, referred to the University of Warwick. I have to say that that is more reflective of the general view than that sent out in the rather unconvincing letter from Universities UK and GuildHE a few days ago.

We on these Benches have consistently said that we are of course in favour of a mechanism that enhances the quality of teaching and of the general student experience. But, due to the differentiation of tuition fee levels, the TEF as it stands—even with the improvements made thus far—is not fit for purpose. In view of these uncertainties, and because the reputation of UK higher education institutions needs to be handled with particular care in the context of the upheaval that will result from our impending departure from the EU, it would be inadvisable to base any form of material judgment on TEF outcomes until the system has bedded down.

That is why Amendments 67 and 68 in the names of my noble friend Lord Lipsey and the noble Lord, Lord Lucas, calling for delays in the implementation of the TEF and the linkage of any fee increases to it, are sensible. As we on these Benches have argued consistently, we do not believe that there should be such linkage. In many ways, using student feedback as part of a framework that leads to fee increases, while at the same time purporting to represent and embody the interests of students, is contradictory. My noble friend Lord Blunkett has outlined why it is appropriate for the Secretary of State and not the Office for Students to bring forward a scheme to assess the quality of teaching.

In Committee, we tabled an amendment which sought to ensure that any rating scheme had only two categories: “meets expectations” and “fails to meet expectations”. So we welcome the fact that that principle is incorporated in my noble friend’s amendment. The amendment has the benefit of being straightforward without a confusing system of three categories, all of which would be deemed by the OfS to have met expectations—to different extents, of course. However, as many noble Lords have said, that is not how it would appear either to potential students, to those awarding research grants or to the world at large.

Amendment 72 also highlights the need for consistent and reliable information about the quality of education and teaching at institutions. The fact that what is proposed in the Bill would guarantee neither is a major reason why so many have opposed the TEF in its current form. The requirement to have the data and metrics on which the TEF is based subject to evaluation by the Office for National Statistics was advocated in Committee, but it merits reconsideration today. Without a firm base on which to establish the TEF, it is unlikely to gain the confidence not just of institutions but of staff and students, on whose futures it will have great bearing.

The future standing of higher education in the UK will depend on the Government rethinking their approach to these issues. It has to be said that not one noble Lord in the debate this afternoon has spoken in favour of the TEF as proposed. I ask the Minister and his colleague Minister Johnson to give that fact due weight of consideration.

--- Later in debate ---

[Viscount Younger of Leckie]

There is no badge of shame. It is simply that we want to clarify that gold, silver and bronze occupy a particular platform of award level. Most international students would respect the fact that bronze is an award, not a badge of failure. But I want to clarify that there is a level below it, which is in effect a sort of non-level. I hope that that clarifies the position.

Let me move on. I appreciate that noble Lords want to ensure that whatever format the assessment takes, it is carried out rigorously and is based on reliable sources of evidence. I can assure noble Lords that the Government feel just the same. For example, we have already commissioned an independent evaluation of the metrics, which was carried out last year by the Office for National Statistics. Given that this evaluation has already taken place, repeating it, as proposed in Amendments 69 and 72, is unnecessary. The report proposed minor amendments to the metrics being used for the TEF, and the Government are already working with HESA and HEFCE on addressing those concerns for future TEF assessments. All of the metrics used for the TEF are credible, well established and well used by the sector.

[Baroness Wolf of Dulwich]

My Lords, I feel as though I must have read a different ONS report from the one given to the Minister. You can clearly identify the outliers in the NSS data, those at the bottom and those at the top, but the rankings in the middle are so uncertain that you cannot discriminate or put in order the vast bulk of English higher education institutions. So, to say that minor amendments were called for uses the word “minor” in a way that I personally would not.

[Viscount Younger of Leckie]

Perhaps I may move on to the NSS, in particular to the amendments spoken to by the noble Lords, Lord Bew and Lord Lipsey. I would like to reassure the House on some of the specific concerns that they have raised about the TEF in today’s debate, and I shall start with the NSS. While we recognise its imperfections—I did listen carefully to the speech of the noble Lord, Lord Lipsey—we consulted with the sector, which echoed the types of remarks made jointly by Professor Anthony Forster, vice-chancellor of the University of Essex, and Professor David Richardson, vice-chancellor of the University of East Anglia, who said:

“The National Student Survey (NSS) provides the most robust and comprehensive basis for capturing students’ views about the quality of their education and student experience”.


As I say, we recognise its drawbacks and we have put in place appropriate safeguards. For example, we use specific questions from the NSS that are directly relevant to teaching, not the overall satisfaction question, about which concern has rightly been raised.

I would also like to use this opportunity to do some further myth-busting about the TEF. First, the TEF is not just about metrics. Providers can give additional qualitative and quantitative evidence to the TEF assessors through their provider submission. My noble friend Lady Eccles alluded to the human element of the TEF, and she was right to do so. Secondly, the metrics are not worth more than the provider submission. The TEF assessors will consider both the metrics and the provider-submission evidence holistically before making a judgment. Thirdly, all assessors get contextual information about the providers they are assessing, including maps reflecting employment in the region and the make-up of the students studying at that provider. Fourthly, although I have made the important point that the metrics are not perfect, they are robust datasets which have been used by the sector for more than 10 years. This means that a TEF rating is not a box-ticking exercise and it is not an equation. It is a rigorous and holistic assessment process that is overseen by one of the sector’s most respected figures, Chris Husbands, vice-chancellor of Sheffield Hallam University. I know that he has been given fulsome praise by many in the House today, including the noble Lord, Lord Blunkett, and my noble friend Lord Lucas.

Highly qualified assessors, vice-chancellors, pro vice-chancellors and other experts in teaching and learning, as well as student and employer representatives, weigh up and test the evidence they receive before reaching a final judgment, which again reflects the human element. The noble Baroness, Lady Wolf, suggested that we should not throw away information. We are not throwing away information. The OfS will publish all the underlying metrics and provider submissions. However, composite measures have value. Why else would the vast majority of universities represented by noble Lords today award their students a specific degree class? We have to think about that.

I remind noble Lords that the Government listened carefully in Committee and made a number of important changes to the TEF in light of the suggestions made by noble Lords. We have slowed the implementation timetable and we have committed to revisit key concerns raised by the House in the lessons-learned exercise. I reiterate that the lessons-learned exercise will consider the following: the way in which the metrics have been used by the TEF assessors; the balance of evidence between core metrics and additional evidence; whether commendations should be introduced for the next round of TEF assessments; and the number and names of the different ratings and their initial impact internationally.

The lessons-learned exercise will survey all participating providers. The Department for Education will also collect feedback from panellists and assessors and involve further desk-based research. I am sure your Lordships will agree that the department has responded to the concerns raised by planning a thorough exercise.

Where we have not made changes we have done so with good reason. Following the Committee stage, we considered carefully the suggestion made by the noble Baroness, Lady Garden, that all those in universities must have a teaching qualification. However, such a requirement would fly in the face of the points that noble Lords have made about institutional autonomy. Indeed, the amendment agreed by noble Lords on Monday covers the freedom of English higher education providers to determine the selection and appointment of academic staff.

The amendments in this group challenge the fundamental nature of the TEF. The words in the manifesto were carefully chosen to echo the way that the REF is described. It said that the Conservative Government would,

“introduce a framework to recognise universities offering the highest teaching quality”.

A framework that allows only for a pass or fail assessment offers no gradients. A framework that offers no opportunity to recognise the highest teaching quality simply does not meet the Conservative commitment. I do not want noble Lords to misinterpret these amendments as offering constructive tweaks. They strike at the very foundations of what we want to achieve.

However, I reassure noble Lords that the Government remain committed to developing the TEF iteratively and working with noble Lords to do so. Developing the framework to date has involved two formal consultations and thousands of hours of discussions with the sector and with students, and we have only just begun. Universities UK has offered to engage with any noble Lord who wishes to provide input into its feedback to the department as part of this lessons-learned activity.

Many of the concerns we have heard throughout the course of the Bill were made in the early days of the research excellence framework introduced by a Conservative Government more than 30 years ago. We are still iterating that framework now. The noble Lord, Lord Bew, suggested that the REF was bureaucratic and encouraged gaming. We have designed something substantially less bureaucratic than the REF and have put in a number of safeguards at every stage to prevent gaming. I am sure the noble Lord has read the fact sheets, which I hope help him with his view on that.

The TEF has already started to change sector behaviour for the better and, given the same opportunities as the REF, will propel the quality of higher education teaching to new heights. I hope that this House will be able to look back 30 years from now with pride at what the TEF has achieved. I ask that the amendment be withdrawn.

--- Later in debate ---

The OfS must have regard to this advice before deciding whether to make an order to authorise, vary or revoke any kind of degree-awarding powers. This is a very robust process. It will ensure that only the best providers can access degree-awarding powers and, as recognised by Universities UK and GuildHE in welcoming and supporting these amendments, that independent expert scrutiny is built into the system. I therefore do not believe that any further changes beyond the government amendments are needed to ensure a robust process that protects students and the reputation of the sector. I invite other noble Lords, should they so wish, to address their amendments in this group before I respond to their concerns.

[Baroness Wolf of Dulwich]

My Lords, I reiterate my support for the government amendment to which I have put my name because this is actually a big move forward in clarifying in the Bill what is needed to ensure that, as the sector grows, we have really high quality. However, something more is needed. The Bill sets forth the whole environment for the sector, possibly for decades to come. Over the years we have moved to a situation where most people do not understand what is going on. I know that this sounds very strange but it is true. People do not understand—and I include myself in this much of the time—how degree-awarding powers can be given, where powers lie, and what can and cannot be varied.

My Amendment 116A is intended to complement and add to the improvements that the Government are proposing by modifying somewhat and clarifying the process by which new institutions may receive degree-awarding powers, ensuring that these are clearly understood—because they are in the Bill—and to further reduce, to a very low level indeed, any remaining risk that students may end up with degrees from institutions that failed early in their existence and are therefore effectively devalued in the labour market. I do not think that a degree awarded by the Office for Students is likely to be understood or valued, and we should be thinking about two clear alternatives, which are set out in my amendment. These are that,

“the provider has been established for a minimum of four years with satisfactory validation arrangements in place, or … the Quality Assessment Committee is assured that the provider is fully able to maintain”—

from day one—

“the required standard expected for the granting of a United Kingdom degree … and may therefore be authorised to grant taught awards or research awards … and has reported to the Secretary of State”.

I will come back to why I think that is important. The OfS should also be assured,

“that the provider operated in the public interest and in the interest of students”.

There are a few points that I want to underline. First, thinking in terms of four years is really quite important. I would like to see that in the Bill for institutions that come through the validating requirements. The reason for that is, as the Government have frequently said, we want to know whether or not an institution works and is deserving of degree-awarding powers. That means that it needs to have gone through the process of educating people and giving them degrees and those people need to go out into the labour market. We need to see whether their degrees are robust and still stand up and bring them labour market recognition and labour market power. My sense is that four years is actually a pretty good number and that is why we have had it up to now. We should recognise that it is a number that has worked and put it in the legislation and have done with it. One thing I have discovered is that there is an extraordinary ability to vary things through guidance, and my sense is that the four-year figure really matters.

The other change is in giving degree-awarding powers without a validation period. There are cases where this is clear and important, but it should involve the Secretary of State. The reason is that, again, having degree-awarding powers is a really valuable thing. That is why private companies buy and sell universities; they think that they can do very well out of them. If you move to being able to do this straightaway, then you need to be quite secure that it can be done. I would not argue that everybody should have to have a validation process. That is not the case in the statute at the moment and certainly was not the case when many of our best younger universities moved straight to being universities, as many people including the noble Lord, Lord Willetts, pointed out in Committee.

One of the more informal questions that often comes up is: supposing that MIT wanted to set up here? I do not think that MIT probably would want to, but one day, if my dreams come true, the Government might want to create the equivalent of Caltech here—something really new, exciting and very different, which could become a university straightaway. If we were asked whether we wanted to validate anybody like that who came along, there would be a competitive, fighting queue around the block. If future Governments realise that their higher education policy needs to be more active and in some ways more interventionist about meeting the needs of the future, as the noble and learned Lord, Lord Mackay, pointed out on Monday, then they will need to be able to do that.

Why do I also suggest that the Secretary of State has to come into this? As I said, creating something which can go straight out and give degrees to students is a big thing. The Secretary of State is the accountable one. A regulator is not accountable, or the same thing as an elected politician. If you made sure that this was happening, most of the time it will be fine—of course it will—but the reality is that, a few years from now, the caravan will have moved on and people will not be looking at things with the same clarity. If there is this possibility, any new institution coming about in this way must be of very high quality. We need to be absolutely sure of that, and it seems not unreasonable to suggest that the elected, accountable Secretary of State should be involved in some way in that decision.

I have added my amendment to the government amendments, which are excellent, as I said, because this is an opportunity to have a clear set of rules and possibilities for the next few decades, and we still need to tidy some of this up. I also consider that the deletion of Clause 48, which suggests that the OfS can put itself on the register and award degrees, is consequential to this amendment. I would be grateful if the Minister could confirm whether this is the case.

[Lord Storey]

My Lords, I too thank the Government for their amendments, which are much needed and beneficial. I have put my name to Amendment 116A because the four-year period is absolutely right. As the noble Baroness, Lady Wolf, has said, it would enable students to go through a cycle of university education and into the labour market. There would then be feedback and we could see clearly whether any issues needed ironing out before that awarding status is given. Feedback should also include things such as facilities: for example, the quality of the library and, dare I say it, perhaps the quality of teaching as well.

I apologise for just throwing this out—it may be that I have missed it—but perhaps I may take the liberty of asking the Minister this. If a private provider gets degree-awarding status and, goodness forbid, that provider goes into liquidation, what happens to the student loans that have been taken out? Will the Government guarantee that they can get those loans back, so that they can pay for the course somewhere else?

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Moved by

[Baroness Wolf of Dulwich]

104: Clause 41, page 24, line 11, leave out paragraph (a)

[Baroness Wolf of Dulwich]

My Lords, this is a very small amendment and I rather hope that it is a tidying-up amendment that the Government will go away and decide to agree. At the moment, as part of the general rethinking of the sector, it is possible for institutions to apply for just bachelor-level degree-awarding powers, bachelor’s and master’s or bachelor’s and research, but one group is regrettably shrinking in size: foundation degrees. That is important because, in another part of the woods, we are trying to rethink and redevelop tertiary education, and foundation degrees are a sub-degree level to which there is a lot of business and employer input.

By what is to me is a strange quirk, although the Minister may be able to explain it, the only people who can have foundation degree-only powers are FE colleges. I cannot see why other institutions should not also in certain circumstances have those powers. My amendment would simply delete that restrictive clause and leave it to the OfS to give foundation degree-only awarding powers to any institution where that seems appropriate. I beg to move.

[Lord Young of Cookham]

My Lords, I am grateful to the noble Baroness for her explanation. She tried to link it with the amendments I just moved and put it in the same category as tidying up. Hers is a more substantial proposition than those that I just put to the House. I agree with the noble Baroness that foundation degrees are important and can be—indeed, are—awarded by a wide range of institutions, which includes but is not limited to the FE sector.

Under the Bill, subject to meeting registration conditions, institutions that provide higher education will be able to apply for TDAPs—taught degree-awarding powers. That is a broad suite of powers that includes the ability to grant foundation degrees. The ability to apply for the powers to award only a foundation degree was always intended as specifically relevant to the FE sector, and it has never been the Government’s intention to change this position under the Bill. The sector is defined by reference to Section 91(3) of the Further and Higher Education Act 1992 and includes further education corporations and sixth-form colleges.

We are mindful of the fact that the landscape has changed since foundation degree-awarding powers were first introduced almost a decade ago—in particular, with the introduction of providers such as institutes of technology or national colleges. On institutes of technology, it is envisaged that existing FE colleges or higher education providers will be part of the consortium that is the IoT, and they will be involved in the provision of higher education. Given that involvement, we do not envisage any impediment towards the ability of such providers to deliver courses leading to foundation degrees, should they wish so to do. Against that background, I hope that the noble Baroness will be minded to withdraw her amendment.

[Baroness Wolf of Dulwich]

I have to say that I do not find the answer satisfactory, because I still do not see why, in that case, one still has a foundation degree-only awarding power in the mix at all. I continue to feel that it is odd to bar the possibility of something which might be useful in this changing landscape. Nothing here says that you have to do it.

However, I accept that the Government are not minded to do this, at least on this occasion. I very much hope that they might think about it some more. On that basis, I beg leave to withdraw the amendment.

Amendment 104 withdrawn.

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Moved by

[Baroness Wolf of Dulwich]

116A: After Clause 44, at end insert—
“( ) The OfS must not authorise a provider unless—(a) the provider has been established for a minimum of four years with satisfactory validation arrangements in place, or(b) the Quality Assessment Committee is assured that the provider is fully able to maintain the required standard expected for the granting of a United Kingdom degree for the duration of the authorisation, and may therefore be authorised to grant taught awards or research awards or both, and has reported to the Secretary of State; andthe OfS is assured that the provider operated in the public interest and in the interest of students.( ) In this section the “Quality Assessment Committee” is the Committee established under section 25 and “validation arrangements” has the same meaning as in section 47(4).”

[Baroness Wolf of Dulwich]

My Lords, I listened carefully to the Minister’s response on this and I have to say that I was rather disappointed. I was very pleased with the government amendment, to which I put my name, but I feel that, as part of thinking hard about how new providers enter the system in the decades ahead, we have to be aware of the fact that, although there is enormous promise, there are also enormous threats. I am rather taken aback by how many new providers we have.

Looking at the fact sheet on degree-awarding powers, I note that there is an intention to reduce the typical amount of time before a track record is approved as adequate in validation to three years rather than the existing four, which is not a good idea. If completely new institutions are going to go straight to having degree-awarding powers, I reiterate the importance of being absolutely sure that it is a special type of institution, that it is well established and that there is a good reason for this. It is worth remembering that we have now, around the world, a large number of cases of institutions that have gone through apparently quite thorough regulatory oversight and have still failed—in large numbers in the United States.

I accept that the Secretary of State has set up a regulator, which will be independent, and clearly I do not think that he or she should involve themselves in every decision. However, this is a very important part of our higher education system and our reputation. If we are creating brand new institutions that can go forth and give degrees straight away, and which therefore often carry the rather strange term of having “probationary” degree-awarding powers, this ought to go right up to the top. In the next few years we will have a new and, I hope, exemplary regulator with a very well-known and highly respected chairman. However, the reality is that regulators are subject to regulatory capture and, as time goes on—particularly if we have the volume of new entrants coming through that the Government would like—there will be real risks.

For that reason, as well as because I would like to encourage the Secretary of State to be involved in this and to think actively about where something really exciting can occur and should be given support, the suggestion in our amendment that on that route the Secretary of State should have some involvement remains a good one. Therefore, rather sadly, I would like to test the opinion of the House on this.

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Moved by

[Baroness Wolf of Dulwich]

117A: Clause 47, page 28, line 17, at end insert—
“(5A) The governing body of a provider involved in such commissioning arrangements may appeal to the First-tier Tribunal in respect of either the conditions specified by the OfS under section 47(2) or the validation arrangements made by the first provider (as defined in section 47(4)).(5B) The grounds and procedures for any appeal made under (5A) are those specified in section 46.”

[Baroness Wolf of Dulwich]

My Lords, I will not say that this is a tidying-up amendment, having been quite rightly told off about that, but it is meant to bring things into line and make sure that everyone in this emerging landscape of higher education is able to operate with confidence, knowing that if things are going wrong they have a route of appeal.

The amendment addresses validation, an area that Ministers are concerned about because they consider it to be fraught with problems for new providers. It is an area where new and innovative providers are encountering difficulties. There has been for a long time a difference of opinion about how major an issue this is. What the amendment sets out to do is state clearly that, if a commissioning arrangement involving the validation of a new provider by an existing provider goes wrong, there should be a means by which to appeal.

The Bill gives the OfS powers which, curiously enough, no one as far as I know has challenged during our long and slow progress. We seem to have had amendments to almost every clause, but not to this one. I think it is recognised that, if we are going to try to make it easier for good, new innovative providers to come in, there should be an active role for the Office for Students in that. It may wish to ensure that one provider can work with another institution, validate its degrees and help it to mature, and it has the power to do so. In the same way, there are existing powers for two institutions to get in touch with each other and go through validation. While I know that this is a major issue of concern for the Government, it is also true to say that the Competition and Markets Authority does not think that this is an area where there is a real problem with the market.

However, the relationship is not always easy, so the purpose of my amendment is simply to make sure that if things go wrong where a provider is involved in a commissioning arrangement of this sort, where one institution is the potential validator of degrees and another institution hopes to have its degrees validated if they are good enough, there is a clearly marked out route of appeal to the First-tier Tribunal. That is what this amendment sets out to introduce into the Bill. On that basis, I hope that the Government will see this as something which would ensure that everyone has a route of appeal and that they will consider it seriously. I beg to move.

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[Lord Willetts]

I am encouraged by what we have just heard from the noble Lord, Lord Stevenson. I think that there is a kind of logical structure here which the removal of Clause 48 would damage. We have currently a lively set of arrangements for validating degrees carried out by a range of universities. I was involved, for example, in supporting a programme to create a new higher education institution in Herefordshire. When it tried to find a validator, it had a queue of universities that wished to be the validator. We have a lively market at the moment, although there are concerns that it may not always cover every case and is not as open as it should be.

There is a proposal that it should be possible, if necessary, for the Office for Students to commission a validating body if it is concerned that validating is not being done properly. However, in cases where it has not been able to commission arrangements that ensure validation, in the last resort it may itself be the validator. The noble Lord, Lord Stevenson, is right that it is unusual for a regulator also to be the validator, but I hope we will hear from the Minister that the circumstances in which that became necessary are rather remote. Given what is already happening, one would expect either the current arrangements for validating to be satisfactory or for the OfS to be able to commission a body that will undertake validation.

The argument for Clause 48, which it is proposed should be deleted, is that it is the logical long stop in the event that it has not been possible to commission anyone else to carry out the arrangements. On the basis that it is unlikely the power will be necessary, but we can understand why it has to be held in reserve, I think Clause 48 is needed and the amendment to remove it would leave a potential gap in the system. I hope we will hear more on that from the Minister.

[Baroness Wolf of Dulwich]

My Lords, I agree with what the noble Lord, Lord Stevenson, has said and with his response to the letter, which is encouraging. I am particularly encouraged by the fact that there will be better consultation. Although I agree that we need a final long stop, what we have at the moment is that the regulator has to put itself on the register and then award degrees, and that could be addressed with a little more care.

[Viscount Younger of Leckie]

My Lords, we recognise that many validation arrangements are highly successful and beneficial to the institutions involved and to students. Validation will remain the chosen route to entry for many under the new regulatory framework. Under our reforms we plan to put in place an alternative route for high-quality providers to obtain DAPs without a track record, but this will not be the right route for everyone. We want providers to be able to choose the right option to meet their specific needs. It is therefore important that the validation services on offer are comprehensive and accessible to providers.

Unfortunately, this is not always the case at the moment, as Members of this House have recognised. In compiling his review of higher education funding, the noble Lord, Lord Browne, said he and his panel spoke to many organisations and found that in many instances validation arrangements simply did not work. Highly lucrative for the established providers, they created a closed shop that stifled innovation and competition among new entrants and, as a result, reduced student choice. As the noble Baroness, Lady Garden, acknowledged, protectionist practices are sometimes adopted when it comes to current validation arrangements. This is why the Bill enables the OfS to take concrete steps aimed to improve validation services. Should this prove to be insufficient, the OfS may enter into commissioning arrangements with other providers.

The OfS cannot force registered higher education providers to enter into such commissioning arrangements. However, once a provider enters into the arrangements, the OfS could then require that provider, in line with the terms of the arrangement, to offer to validate. This is not unlike other arrangements where, for example, a party to a contract may require, in line with the terms of the contract, another party to do something. We in no way expect the OfS as part of this arrangement to require validation where the provider had legitimate concerns regarding the quality of provision. I cannot imagine a scenario where a provider would agree to such terms or where anyone would think it beneficial. Clause 3 sets out clear factors that the OfS must have regard to when exercising its functions, which include the promotion of quality.

The protections set out in Amendment 117A are therefore not required. Remedies for failing to act in accordance with the arrangements and for resolving disputes about them are expected to be provided for in the commissioning arrangements. Where they are not, other laws, such as the law of contract, may apply.

Turning to Clause 48 and Amendment 119, we anticipate that in the event that the OfS is still unable to address significant shortcomings in the validation market through other means, the Secretary of State may make regulations to allow the OfS to become the validator of last resort. I understand that there are still concerns about how this would work in practice and how the OfS would set up such a function. Let me help to this extent. Noble Lords may have received a letter I circulated today. I wish that this letter could have been circulated earlier. For very good reasons it was not able to be. To that extent, I apologise to the House.

I can confirm that, as part of the regulatory framework consultation, we will consult on how the OfS could best establish a validation service to ensure it is underpinned by the necessary expertise and that it is delivered in a way that prevents or effectively mitigates any conflicts of interest. This would enable the OfS to have a blueprint that has been stress tested with the sector through consultation and to be ready to act, subject to Secretary of State and parliamentary approval, as a validator of last resort should this become necessary. I stress that these regulations are subject to parliamentary scrutiny, so there will be an opportunity to scrutinise these powers. We expect the OfS to make a case to the Secretary of State as to why it is necessary for it to act as a validator of last resort, clearly setting out the nature and severity of the issues in the validation market.

There are further safeguards, in that the Secretary of State may attach conditions, such as ensuring that the service the OfS provides is underpinned by the necessary expertise and is sufficiently independent from its regulatory function, for example by being housed in a separate division. We have heard arguments that this would be unprecedented, but that is simply not true. For example, the Bank of England regulates many aspects of the financial sector to maintain financial stability in the UK, but in extremis will also act as the lender of last resort, or a market maker of last resort—that is, buying and selling assets such as government bonds to provide liquidity—at a time of financial stress.

There are also strong mechanisms in place to ensure that the quality of the OfS’s validation provision is high. We would expect the OfS’s advice to the Secretary of State to clearly set out how it will ensure its validation service is best in class. This could, for example, involve the OfS drawing on sector-recognised best practice principles, exemplar templates and processes. If the Secretary of State designates a body to fulfil the OfS’s quality assessment function, I would also expect the OfS to draw on information from the designated quality body to help formulate its advice and recommendations to the Secretary of State, and to help inform how it can develop the capacity and reach of existing validation services while safeguarding the quality and standards of awards granted. These would be nominally in the OfS’s name, but, importantly, would bear the overall branding of the institution being validated, which answers some of the questions that were raised. I hope that full explanation also answers the question my noble friend Lord Willetts asked about what “last resort” means.

Before I finish, I shall briefly address Amendment 118 and—without too much surprise, I hope—reassure my noble and learned friend Lord Mackay that Clause 48(6) replicates a standard provision relating to the awarding of degrees. These powers are simply designed to enable the degree-awarding body—in this case the OfS—to deprive students of their degree should this become necessary: for example, if it is discovered that it was wrongly obtained, such as through plagiarism.

Without Clause 48, the OfS would be left without adequate powers to ensure full and ongoing provision of good-quality validation services. As I said earlier, we will consult on how the OfS can best establish a validation service as part of the regulatory framework consultation, which will enable further input from the sector. With that explanation, I hope the noble Baroness will withdraw Amendment 117A.

[Baroness Wolf of Dulwich]

I thank the Minister very much for his words, which I have listened to with interest and optimism. On that basis I am very happy to withdraw the amendment.

Amendment 117A withdrawn.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

[Baroness Wolf of Dulwich (CB)]

My Lords, I do not want to say very much about this. I did not withdraw the amendment which my noble friend Lady Brown and I originally tabled and which the noble Lord, Lord Stevenson, kindly introduced, because I wanted the opportunity to say in the House how very much we appreciate the fact that the Government listened to us on this and how convinced we are that introducing the Regulators’ Code into the OfS’s actions will be entirely for the good. It will take care of a great many anxieties we had about details in the Bill and we are truly appreciative of that.

I also want to agree with what the noble Baroness, Lady Deech, said about the realities of dealing with students who are in a university and how you cope with problems, complaints and all the issues which come to the Office of the Independent Adjudicator. It is really important that the Government take account of the fact that this is not like a situation where you buy a coffee and if you do not like it you go and buy another coffee. My noble friend spoke very eloquently. I hope the Government will listen to her on that as much as they listened to us, and I thank them very much.

[Lord Young of Cookham]

I am grateful to noble Lords who have spoken to these two amendments for their contributions to this debate. I shall deal with the easy one first.

My noble friend explained in his letter earlier this week that he had listened to concerns around the regulatory powers of the OfS and the assurance that noble Lords, many of whom have spoken in this debate this evening, are seeking around its adherence to the Regulators’ Code. As already stated in the Bill, under Clause 3(1)(f), we share the aspiration that the OfS should comply with recognised standards of good regulatory practice. We remain wholeheartedly committed to the principles of the Regulators’ Code, and because the OfS is the sector regulator, we agree that it should sign up to the code. I am therefore pleased to confirm the announcement made on Monday that the OfS will voluntarily commit to comply with the code, with a view to its regulatory functions being formally brought into scope when the list is next updated via statutory instrument.

I now turn to the more difficult amendment about the respective roles of the CMA and the OfS and what the interface is between the two. In his letter to noble Lords earlier this week, my noble friend recognised the concern over the respective roles and responsibilities of the CMA and the OfS. I will explain why we believe that this a not a substantiated concern. I think that the noble Baroness, Lady Deech, used the right expression when she said, “We expect collaboration”. That is exactly what we expect.

The CMA is not a sector regulator but an enforcer of both competition and consumer protection law across the UK economy. The CMA has the specific role and specialist expertise to enforce competition law and consumer protection across the whole of the UK economy. It would be unprecedented, as has been suggested at times, for the competition and consumer enforcement functions of the CMA to be transferred entirely to a sector regulator. Even where sector regulators have enforcement functions, the CMA retains powers as an enforcement authority, with appropriate arrangements for co-ordination of concurrent functions.

In the past the CMA has provided general advice to HE institutions on complying with consumer law. In addition, its consumer enforcement powers have been used in relation to the sector. Specifically, it has received undertakings from providers around, for example, academic sanctions for non-fee debts, such as accommodation debts; information for prospective students on additional non-fee costs; terms and conditions on fee variations; and fair complaints procedure.

HEIs are expected to comply with consumer law, enforced by the CMA. The OfS will be expected to take on board the CMA’s guidance and best practice when it develops the details of the regulatory framework. It is perfectly usual for an organisation that is subject to sector regulation to be required to comply with legal requirements that are enforced by bodies other than the sector regulator. For example, even in regulated sectors the Environment Agency carries out regulatory and enforcement activity in relation to the environmental aspects of an organisation’s activities—for instance, as regards waste and contaminated land—and the Health and Safety Executive enforces health and safety requirements.

Although the CMA and OfS share areas of common interest in relation to competition and consumer matters, their roles are distinct and complementary, not contradictory. This is the joint view not just of Ministers but of the CMA. So we expect the CMA and the OfS to work productively together, just as the CMA works well with other regulators—indeed, as it does with HEFCE at the moment—and we see no reason for this to be different once the OfS is established. There will be a further opportunity to explain respective roles and responsibilities, as necessary, as part of the consultation on the regulatory framework this autumn.

Students—in addition to being students—have consumer rights, and universities and other higher education providers that do not meet their obligations to students may be in breach of consumer protection law. Compliance with that law is important not just to protect the students but to maintain student confidence and the reputation of the HE sector, and to support competition.

The noble Baroness asked whether there was confusion about the regulatory roles of the CMA, the OfS and the OIA. I applaud the work that she did at the OIA. As I think I said a moment ago, subject to the passage of the Bill, the OfS will be the regulator for higher education providers in England. The OIA will continue to operate as the body designated by government to operate the student complaints scheme in higher education, so it is not a regulator and it will continue to deal with individual student complaints. The CMA is not a sector regulator but an enforcer of both competition and consumer protection law across the UK economy, and it has the specific role and specialist expertise to enforce competition law and consumer protection across the whole of the UK economy. So there is no overlap of responsibility between the CMA, the OfS and the OIA, although the OfS will be expected to take on board the CMA’s guidance and best practice when developing the regulatory framework.

As I said, there will be an opportunity, as part of the consultation on the regulatory framework this autumn, to explain, discuss and identify the respective roles and responsibilities of these three bodies as necessary. In the meantime, I ask the noble Lord to withdraw his amendment.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

[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.

[Baroness Wolf of Dulwich (CB)]

My Lords, as the noble Lord, Lord Stevenson, has pointed out, we are in the strange position where one has far greater protection if one is studying for a higher education qualification in a further education college than if one is in a university, because there are very clear requirements, now going through this House, for what should happen if that institution becomes insolvent.

This issue has been raised on a number of occasions in this Chamber, where it has been argued that, although the Government have committed to a protection regime for students in higher education, it is not very clear or demanding, as far as we can tell. The amendment goes a step further, because it draws attention, as have my noble friend Lady O’Neill and the noble Lord, Lord Stevenson, to a situation in which, over and above issues relating to the institution delivering the education, there is an issue of ownership. It may mean that, in extreme situations, it is unclear where students would seek redress, never mind how.

The Government are aware of the new issues that have come about as a result of creating a sector in which providers can be bought and sold. In 2015, they asked HEFCE to look at this issue and, as a result, there are now some new regulations about the treatment of degree-awarding powers in the event of a change of ownership or legal status. In that situation, HEFCE must discuss the potential implications for degree-awarding powers, including continued eligibility to hold them, and must be assured that the original institution that was awarded the powers is in substance the same institution in spite of the change of ownership. That is what is happening with BPP at the moment and there is no reason to suppose that the institution will not continue to be a distinguished provider of higher education.

I think that everybody in the sector who is providing good-quality education, whether they are private or not for profit, would agree with that. However, what the regulations do not get to the heart of is how, if an institution is owned by a company or body overseas—it may be somebody who has taken the entire institution into private ownership—the OfS will be confident that it can make sure that the institution complies with the conditions of registration. An institution may change hands regularly—I give the example of the University of Law, which in the three years after it moved from being not for profit to being a for-profit company changed hands twice. How in that situation will we operate if we find that students are in effect left without not only the institution in which they enrolled but any clearly identifiable body to which they can have recourse and which the OfS can—bluntly—bring to court and demand that it do what it should do?

This is a major issue. The amendment would make sure that there was a body to which students and the Government could address themselves if a catastrophic event, which I am sure would be extremely rare, occurred. Setting up a subsidiary company in this country is generally not a very complicated or time-consuming affair. It cannot be beyond the power of the Government and it would not distort the underlying objective of the Bill to ensure that any institution offering higher education to students receiving loans subsidised by the taxpayer is clearly identifiable in the case of students being left without an education and creditors being left without obvious recourse.

Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

Ping Pong (Hansard): House of Lords
Thursday 27th April 2017 Lords Chamber

[Baroness Garden of Frognal (LD)]

My Lords, perhaps I may associate these Benches with the eloquent words we have already heard. It is inevitable that there will be a measure of disappointment that not all of your Lordships’ wisdom has been accepted unequivocally by the other House, but I think we can all agree that we have made immense strides in this Bill, and we are deeply appreciative of the way in which Ministers have listened and come forward with proposals. Perhaps I may pick up one thing about which we are particularly pleased, which is that there will be a delay in implementing this while a review is carried out. Some really key measures set out in the Bill need more reflection to see whether they are actually the right path to tread, so we appreciate the fact that the delay has been built in. Again, we appreciate the measures that the Government have taken to come towards us on these issues.

[Baroness Wolf of Dulwich (CB)]

My Lords, first, I should declare an interest as a full-time Academic Council member of King’s College, London. I had not expected to speak in this part of the debate and I am afraid that I will be speaking again later. But, since I am on my feet, I would like to say that I agree with all noble Lords who have expressed their appreciation of how the Government have listened to opinions and to the House generally. I, too, feel that we have come a long way. In this context, I will bring back a couple of points that were made in the earlier debates by the noble Duke, the Duke of Wellington, and by me in the context of amendments that we had tabled. Since the noble Duke is unable to be here today, I will make them briefly on behalf of us both.

Along with almost all noble Lords here, we strongly welcome the delay in implementing the link with fees—here I endorse the remarks of my noble friend Lord Kerslake. I am delighted to hear that we are moving quickly towards a position where we will have subject-level rather than institution-level assessments. However, one reason we became so concerned about the TEF is that putting a label on an institution is potentially very damaging to it.

One thing that has been rather an eye-opener for me is the extent to which—perhaps inevitably and as someone who teaches public management I should not be surprised—the “sector” is, in the view of the Government, the organised universities and Universities UK, and how few good mechanisms there are for the Bill team and the department to get the voices of students, as opposed to occasionally that of the National Union of Students. Students have been desperately concerned about this, because they are in a world where they pay fees and where the reputation of their institutions is so important. They have been worried about and deeply opposed to anything that puts a single label on them. This single national ranking caused many of us concern.

I will say a couple of things that I hope the incoming Secretary of State will bear in mind. First, as others have alluded to, we have a pilot going on and a system of grades that is out there. I fully understand that that is under way and there are enormous lessons to be learned from it. However, I hope very much that, after the election, whoever the Government may be will think hard about how they use that information, how they publish it, and whether they are in any sense obliged to come forward with the type of single-rank national league table that has caused so much anxiety to students. That is of great concern and it is hard to see how it serves the purpose, also expressed in the current Conservative manifesto, of preserving the reputation of our great university sector.

The other thing, on which I do not have any particular inspiration but about which I would love the incoming Government to think, is how to widen out their contacts with not just the organised sector and Universities UK but the academics and students who are really what the sector is about. We have great universities not because we have activist managerial vice-chancellors but because they are autonomous in large measure internally as well as vis-à-vis the state. That has been of real concern to me. Since we are going to have an Office for Students, it would be very good if, post the election, we could make it genuinely an office for students.

[Lord Stevenson of Balmacara (Lab)]

My Lords, this is a very big Bill. I share the feeling of the noble Lord, Lord Kerslake, that perhaps this subject is one we will not see again for some time to come and so ought to enjoy what we are seeing now. The train passes slowly, but it is a very important one and we should pay regard to it.

We should also bear in mind that the Bill attracted more than 700 amendments and resulted in, at our last count this morning, 31 major concessions made by the Government to the voices raised, in the other place and particularly in here, in relation to some of the issues we heard about today. The noble Baroness, Lady Deech, was right to reflect on the fact that what we have in front of us today, although really important, is the end of the process, not the whole of it. We should not forget that within the list of concessions—“concessions” gives the wrong sense; I mean the things that moved in the Bill—there are important aspects. There is not just freedom of speech, which she mentioned and which is of course tremendously important, but also measures that will improve collaboration within the sector, that will help reverse the decline in part-time students, that will assist mature students who wish to come back, and that pave the way for more work to be done on credit transfer and flexible courses. These are all really important changes to the infrastructure of our higher education system and will make it better. They have not been picked up today because they were dealt with earlier in the process, but they should not be forgotten as they are important.

We have also heard nothing today about UKRI and the developments made in that whole area, which are to change radically the consensus on operating within science and research more generally that has gone on for nearly 30 years in one form or another. It is important that we also reflect that those changes went through after debate and discussion—and some minor adjustments but not many—primarily because there was an effort to make sure that the words used to describe the change were understood properly. A lot of time was spent in going round talking to people and making sure they were happy with that. That was a good thing. Indeed, this whole process, as has been touched on already by a number of noble Lords, is an example of what this House is good at but should be more widely developed within our political debates and discussions: that there is room for civilised debate and discussion about every issue. It does not have to be party political, as my noble friend Lord Blunkett said. It can be small-p political. It can be aimed at trying to arrive at a better overall solution, and I am sure that what we are achieving today has ticked the box in all these areas.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, our reforms are designed to make it simpler for high-quality providers to enter the higher education market, contribute to greater student choice, and ensure that our higher education sector remains innovative and can respond to changing economic demands. However, we have been clear that encouraging new providers cannot come at the price of lowering the quality bar for obtaining degree-awarding powers. We are absolutely committed to protecting the value of English degrees and, throughout the passage of the Bill, we have added to the legislative protections to achieve this.

At Report in this House, we tabled an amendment, based on a proposal from the noble Baroness, Lady Wolf, requiring the OfS to request expert advice from a “relevant body” on quality and standards before granting or varying degree-awarding powers, or revoking them on grounds of the quality or standard of provision. The role of the “relevant body” would be similar to that of the QAA’s ACDAP, and the system that we are putting in place will build on the valuable work that the QAA has been doing over the years. Our amendments further strengthen this requirement for expert advice. In particular, this amendment makes clear that if there is not a designated quality body to carry out the role, the committee that the OfS must establish to carry it out must feature a majority of members who are not members of the OfS. Additionally, in appointing those members, the OfS must consider the requirement that advice be informed by the interests listed in the clause. This will ensure that the advice is impartial and well informed. This amendment also makes it clear that the advice must include a view on whether the provider under consideration can maintain quality and standards. In line with the arguments put forward by the noble Baroness, Lady Wolf, it requires the OfS to notify the Secretary of State as soon as possible after it grants degree-awarding powers to a provider who has not previously delivered a degree course under a validation arrangement.

Let me be clear that, as is already the case, I expect the Secretary of State’s guidance to the OfS on degree-awarding powers to continue to require that a provider’s eligibility be reviewed if there is any change in its circumstances, such as a merger or a change of ownership. The OfS has powers under the Bill to remove degree-awarding powers from a provider when there are concerns as to the quality or standards of its higher education provision following such a change. I can confirm that we expect the OfS to seek advice from the relevant body on any such quality concerns before taking the step of revocation. I beg to move.

[Baroness Wolf of Dulwich]

First, I take the opportunity to thank the Minister in this House and the Minister for Higher Education very sincerely for listening so carefully and patiently to the arguments that I and many others put forward on these issues. I follow other noble Lords in saying that, while this has been a grind, it has also been something on which all parts of the House have found a great deal to discuss and agree. In that sense, it has been perhaps not enjoyable but certainly an educational and ultimately a positive process. I repeat that I appreciate the time that everybody in the Lords has put into this, and I very much appreciate the time put in by Ministers and the enormous work put in by the Bill team.

I am very happy to see the clause moving towards the statute book, but it seems to be slightly ill understood perhaps outside this Chamber and certainly outside this building. It might be worth my while reiterating what I think is important about it, and I would be grateful if the Minister would let me and the House know if he disagrees with anything that I am just about to say.

One of the major reasons why the Bill is so important is that it sets out what is happening in the sector, quite possibly for decades to come. That is why we have to take account of both whether it can provide innovation and new ideas and allow the sector to move and whether it can provide guarantees of quality and standards and protect students, many of whom take out large loans, and the whole country against what is always possible: that some institutions and people will not have the interests of the country and the sector at heart. Innovation is a very important part of it.

I also take this opportunity to welcome in this House the fact that the Government have recently given some money to the new model university that is being established in Herefordshire, which is enormously important because of the role it will play in helping to develop engineering skills and in working with small businesses and supply chains. It is the sort of institution that we need many more of, and I am really pleased that the Government have given their support.

It is worth remembering that one thing that has bothered us very much in thinking about how this Bill should go forward is our knowledge that it is only too easy to create a situation in which institutions arise and gain access to public funds but whose existence is very hard to justify and that can do enormous harm. It is not just this country—the United States has given us the largest and most catastrophic bankruptcies, leaving students stranded—but it is, after all, not very long ago that the Home Office moved to investigate and shut down higher education institutions in this country that were, not to put too fine a point on it, fraudulent.

This part of the Bill has always been enormously important. I am extremely happy, because it seems that this new clause will institute a quality assurance process that focuses the attention of the Office for Students on a number of critical issues when it is granting or varying awarding powers, and clarifies the importance of independent advice from outside an institution. This is always important, because an institution creates its own understandings and inevitably becomes defensive against the world. The potential strengthening and improvement of the advice that the OfS will get from outside, which will build on the QAA but will potentially be more independent and therefore both add an additional safeguard and add substantively to the process, is very welcome.

This clause also clarifies for the general public the way in which the Government envisage new institutions coming through. They clearly envisage two pathways. Many people will come through validation, a process that itself has grown up over the years with remarkably little scrutiny, but if an institution is to get degree-awarding powers from day 1, this is something of which the Secretary of State must be aware. The noble Lord, Lord Willetts, pointed out in earlier debates that anything that goes wrong tends to land on the Secretary of State’s desk anyway. What seems to be important here is that we have an extra element not just of formal accountability but one that will bring into the process both a clear ability for the Secretary of State to create a new institution that has degree-awarding powers, because that is seen as something of which they are capable from day 1, and something to make the process public and one that cannot slide through unobserved.

This is an area in which we have made enormous progress. Perhaps all this would have happened anyway, but I am extremely happy to see it in the Bill. I finish by expressing my gratitude once again to everybody who has worked on the Bill and listened to our concerns and my appreciation of all the comments, information and hard work that colleagues on all Benches of the House have put into it. I welcome this amendment.

[Baroness Blackstone (Lab)]

My Lords, I speak very briefly just to endorse everything that the noble Baroness, Lady Wolf, has said. On behalf of the House generally I want to thank her for all the hard work and effort that she has put into securing these changes. It is fair to say that this part of the Bill, in its original form, was the one that gave cause to a great deal of worry, and for me personally the most worry of all because in my view it threatened the reputation of higher education not only in this country but overseas. With this amendment, we are now in a much better place.

The only thing that I ask is that there be some monitoring of how it works in practice. It is very important that there should be some evaluation to make absolutely clear to the higher education sector as a whole, and to those who might want to enter it, that there will be rigorous tests of both quality and standards before any institution can have degree-awarding powers and access to grants and loans through the system of financial support that we have. Having said that, however, I am really grateful to the Government and to the Minister for bringing forward this amendment. It is a huge improvement to the Bill compared to what we had originally.