Draft Higher Education (Access and Participation Plans) (England) Regulations 2018

Gordon Marsden Excerpts

Thursday 11th January 2018 General Committees

[Gordon Marsden (Blackpool South) (Lab)]

If it is not too late, Mr Davies, I wish you and the whole Committee a happy new year. It is a great pleasure to serve under your chairmanship.

I congratulate the Minister on his first outing. He and I are not complete strangers to facing each other across the Dispatch Box. Before he took up his current position, he had a relatively brief spell in the Department for Education, where he covered careers advice. I remember that we had one or two exchanges on the Floor of the House on that issue.

I welcome the Minister warmly to his new position. I appreciate how difficult it is to master the elements of a brief only a couple of days after coming in on the back of what was a, shall we say, interesting reshuffle. I therefore will understand if he is not able to answer immediately the various questions that I put to him, but we would obviously want to have some detailed responses after the Committee.

This is a very important debate to kick off, if that is not too much of a colloquialism. We know the scope of the consultation that the Government put out before Christmas on the Office for Students. That consultation was relatively brief, considering the implications of the run-up to Christmas being part of the timeframe, so it would be interesting to learn just what the level of response was. We expressed some concern about whether the period would be adequate. The submissions will undoubtedly include access and participation, which we are discussing with these regulations, and I hope the Minister and his officials will respond to them generously.

The regulations are part and parcel of what I imagine will be—the Minister and I might groan at this—a succession of statutory instruments or delegated legislation that will have to come before Committees such as this in the next two to three months so that the Government can meet their objective of getting all the necessary secondary legislation through before the Act can be formally implemented. Will he confirm that things will happen in the usual fashion, with the Act coming into force in full in April once the SIs have gone through?

The regulations are an important part of the process, not least because of the lengthy and useful debate we had in Committee. The Minister has already mentioned his predecessor the hon. Member for Orpington, to whom I pay tribute for the civility with which he answered the detailed questions we asked him on all these areas, including access and participation. The record will show that on the whole we did not press matters to Divisions on the basis—this is important for the new Minister to recognise—of the former Minister’s assurances about various things not needing to go into statute because they were implicit in the OFS guidelines and would be carried through. Through this whole process, we will look carefully to ensure that officials and ultimately the new Minister honour the letter and spirit of what his predecessor said in those rather detailed exchanges we had in Committee and on Report.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

As was previously outlined, clarity on responsibility is important. In particular, it is important that the director for fair access and participation, rather than any other individual, is responsible for deciding on an access plan and approving it.

[Gordon Marsden]

I am grateful to my hon. Friend for making that point. It speaks to a central part of the legislation that we need to consider, particularly in the context of access and participation. I will not go further on that for the moment because I will come on to it in due course. The former Minister said that there has to be a new architecture under the Bill because in many respects the OFS has a different role from that of HEFCE. Therefore, these issues are important. I thank my hon. Friend for raising them at this early stage, and I will come to them in my remarks.

The regulations are important to activate and generate what the Government want to do on access and participation, and what the OFS needs to do. I am afraid that that is where I part company slightly with the Minister. He said in his introduction that good progress had been made, although, as Ministers always should, he wisely used the great caveat, “There is more to do”. There is indeed more to do; although improvement has been made in some areas, far more must be done by both institutions and Government to ensure that higher education is accessible to all and that we can support students through their studies. The recent end-of-cycle report from UCAS offered some concerning statistics, stating that young people from the most advantaged backgrounds are still 5.5 times more likely to enter university with the highest entrance requirement than their disadvantaged peers. The OFS will need to press on that challenge, as little progress has been made in narrowing the gap between those most and least likely to enter higher education since 2014.

It is also a challenge in certain regions. In London, for example, 18-year-olds are now 25% more likely to enter HE than those across England as a whole, and 43% more likely than 18-year-olds from the south-west, for example. That is not just an issue for the OFS or higher education institutions, of course; it is not even necessarily an issue entirely for the Minister or me, given our remits. As the Sutton Trust has said, many of the issues go far back into primary and secondary education as well. However, they are important. As Les Ebdon, the director of fair access to higher education, said last month,

“people with the potential to excel are missing out on opportunities. This is an unforgivable waste of talent”.

The statistics often focus on increasing the number of 18-year-olds going to university, and the Government, when they first introduced the Bill and the White Paper, took that approach. During the progress of the Bill, we were glad to see them wake up a little more to issues such as part-time and mature students, and the one in 10 people in further education who take HE courses. As my hon. Friend the Member for Keighley mentioned earlier, there are still severe concerns about the situation of part-time and mature students. Since 2010-11, part-time participation has fallen by 61% and the number of mature students has declined by 39%. That is a concern for our overall economic performance. Over the next 10 years, there will probably be about 13 million vacancies, but only 7 million school leavers to fill them. If we do not empower people and give them chances, our productivity, our economy and all sorts of things will suffer.

[Liz Twist (Blaydon) (Lab)]

Does my hon. Friend agree that it is crucial for us to address access for part-time and mature students, so we can equalise chances as well as improving our economic performance in future? It is important that we plan to address that aspect.

[Gordon Marsden]

My hon. Friend, of course, comes from a region with a proud tradition of skills, and an equally proud tradition of widening access for older people who have been displaced from their original jobs and must find new ones. That is why it is crucial that the access and participation agreements taken forward—we will come in a moment to the mechanisms for taking them forward—are given a strong basis in the process. The Minister said in his earlier remarks to my hon. Friend the Member for Keighley about part-time and mature students that the plans can take cognizance of that, but the word should not be “can”; it should be “should”. “Should” was the word that we used to the Minister’s predecessor when we tabled our amendments in Committee. We withdrew those amendments on the understanding that the Government would give the OFS a strong steer on that issue. I ask him to make that point today. As I said in Committee in October 2016, the

“importance of part-time and mature students”––[Official Report, Higher Education and Research Public Bill Committee, 11 October 2016; c. 358.]

must be recognised in access and participation plans. As Birkbeck said in its evidence to the Committee on access and participation:

“The vast majority of our students are aged over 21. Most choose evening study because they work full-time…Provision for part-time and mature learners is important for social mobility.”

Will the Minister confirm that HE institutions should take part-time and mature learners into account in their access and participation plans?

The other issue that the regulations will hopefully begin to address is support for students throughout their time at university: not just getting them there in the first place, but ensuring that they have the necessary support and guidance to complete their courses. If institutions are taken over by another institution, that initial commitment to support could—I am not saying it will, but it could—be in jeopardy. This is not a hypothetical issue. There are increasing examples of universities and HE institutions being taken over by other outside bodies, and the latest was BPP earlier this year. What assurances can the Minister give about what would happen to access and participation plans should an institution transfer ownership?

Figures published by the Office for Fair Access showed a worrying increase in the numbers of disadvantaged young students dropping out of university after the first year of their course, and the regulations need to address that issue. Black students, for example, were more than 50% more likely to drop out of university than their white and Asian counterparts. More than one in 10 black students drop out of university in England, according to a report by two charitable universities trusts, the UPP Foundation and the Social Market Foundation. Is the Minister in a position to say how that will be taken into account in deciding on the access and participation plans that are presented to the Office for Students by institutions? As I have already said, the same is true about the drop-out rates for mature students.

I want to move on to the detailed contents of the regulations. The explanatory memorandum describes the current arrangements on access agreements succinctly:

“Currently the DFA is responsible for approving access agreements from HEFCE funded institutions and further education colleges…whilst HEFCE has responsibility for regulating and distributing funding to eligible providers for higher education activities. The OfS will have functions replacing those of both of these bodies.”

That is the crux of the matter, which I hope the Minister will clarify. While powers are still being transferred to the OFS from OFFA and HEFCE, it is unclear how this new balance of power will work in reality. Will the access and participation plans envisaged and detailed in this statutory instrument be not only proposed and overseen—I think that was the phrase used—but approved by the director for fair access, and what role will the OFS leadership play in that? It is my understanding that the current director of fair access will formally step down on 1 April and be replaced—we wish him Godspeed and all well in his new appointment—by Chris Millward. Is Chris Millward already working with Les Ebdon on some of these issues, either formally or informally, and will there be a swift transition or a period of handover after 1 April?

As I said in the fourth sitting of the Bill Committee in 2016, meeting

“the Government’s goal of doubling the rate of young people from disadvantaged backgrounds…will require an acceleration of the process and a director who can continue to offer those robust challenges. If the director does not retain”

in these regulations or in the Act as a whole that authority,

“or if that power can be delegated to others and decisions overturned, there is a real risk”—

I am not suggesting that this would be intentional—

“that the director’s position will be seen as weakened. Believe me, having sat on the Education Committee, I do not think that lawyers and judicial reviews or internal rows in Departments”,

which sometimes detract

“from the work of that Department, are something to be recommended.”––[Official Report, Higher Education and Research Public Bill Committee, 8 September 2016; c. 134.]

The director of fair access himself, in evidence to the Public Bill Committee on the Higher Education and Research Bill, raised those concerns:

“I am concerned that there should be clarity in those clauses to make it clear that the responsibility, particularly for deciding on an access plan and approving it, should rest with the director for fair access and participation. There should be absolute clarity about the responsibility.”

In relation to these regulations, do we have that clarity that the responsibility for deciding on an access plan and approving it rests with the director for fair access and participation?

When it comes to authority, the director of fair access said:

“that should be exclusively delegated to the director for access and participation, so that there is clarity about that particular role—and indeed, a greater power there—and the progress that we have made in recent years through OFFA can be sustained”.—[Official Report, Higher Education and Research Public Bill Committee, 6 September 2016; c. 57-58, Q87.]

What assurance can the Minister give us that the new director for fair access and participation will be able to sustain the work of OFFA in terms of resources and his actual position in the OFS when he takes on these powers? Will he have powers under the Act and the regulations that allow him to be in the driving seat on these issues? The former universities Minister, the hon. Member for Orpington, said during the Committee that it was the intention to give the director for fair access responsibility for that:

“We envisage that in practice that will mean that the other OFS members will agree a broad remit with the future director…on those activities.”—[Official Report, Higher Education and Research Public Bill Committee, 8 September 2016; c. 136.]

[Jo Platt (Leigh) (Lab/Co-op)]

In the light of the letter published by the Commissioner for Public Appointments regarding the appointment of Toby Young, does my hon. Friend agree that we need to ensure that there is a thorough review of the whole process of appointments to the board?

[Gordon Marsden]

I thank my hon. Friend for those comments. The detailed elements of the review, which has been announced this morning, are not the direct subject of this Committee, so I will not, whatever my personal thoughts, dilate in detail on what Peter Riddell said in his letter in The Times today; hon. Members may want to go and read it. However, what does matter is that the issue of how people are appointed to the board—and, once they have been appointed, of what detailed involvement and decision-making powers they might have over access and participation agreements—is highly germane to the discussion we are having today. I would expect the Minister, in responding, to bear those sensitivities in mind, given the present situation, which has just been announced.

Will the Minister reassure hon. Members that this responsibility will be integrated in the way that I have described when these issues are taken into account? I remind him—well, I am not reminding him, because he was not on the Committee at the time—of what I said to his predecessor in September 2016:

“To ensure that the targets set by universities and colleges are sufficiently challenging will always involve tough negotiations. For the director to have had that independence to engage in negotiation free from conflicts of interest has been crucial in securing high levels of commitment by institutions”.

However, if

“the director…can be bypassed and overruled by the chief executive”,

by individual members of the board or by a collection of members of the board,

“we believe, as do others, that that would significantly undermine his or her ability to negotiate directly with vice-chancellors and to offer a robust challenge.”

That is why, in response, the Minister’s colleague, the hon. Member for Orpington, said:

“Through our reforms, we are keen to ensure that promoting the success of disadvantaged students will be a central part of the OFS’s remit…OFS members will agree a broad remit with the future director”.—[Official Report, Higher Education and Research Public Bill Committee, 8 September 2016; c. 132-36.]

What role does the Minister envisage the board members will play in the process?

That is important and particularly concerning, given the recent controversy over the divisive and damaging appointment of Toby Young as a member of the OFS. Although one of the requirements of the OFS is to promote widening access and diversity in the sector, the move to appoint Toby Young contradicted that, so what confidence can we now have in the OFS to promote access issues if in future it had on board, as it briefly had, someone who had shown contempt for precisely the groups of people that the OFS and the director for fair access will take forward? It is not just a matter of our sins of commission; it is also about potential sins of omission. It is about having people on the board with positive experience of disadvantage that will feed into the decision process outlined in today’s regulations. The DFA will need to exercise those thoughts in conjunction with those people.

The Government’s announcement of the final six board members was a huge missed opportunity to make sure that this body will be broad-based and reflect the diversity of the sector it must regulate. We have already referred to the principles of public life, which will be very important. There are, however, still no active further education sector representatives, nor any National Union of Students, university or college staff, on this body. That must be remedied rapidly, not least if we are to have confidence that, as the regulations are taken forward—we hope the Minister will assure us that the director for fair access will be the lead person in that respect—they will have input from people on the board who know about the issues that these plans are supposed to address.

As I say, there is among not just us but many people in the HE sector a continuing, nagging concern, which I raised back in 2016, that under these reforms the director could be seen as subordinate to the head of the OFS. That body will have significant funding from universities—we wait to hear how much—which might make it less inclined to challenge institutions on access. That is why we are making this point so strongly.

It might be worth reflecting on what happened with the 2016-17 access agreements, which were positive for both the Government and the director. The director’s negotiations on that occasion led to improved targets at 94 institutions, and 28 of those increased their predicted spend, securing an estimated additional £11.4 million for fair access and participation. That is why we asked for the powers in question to be clearly stated in the Bill, and why we now seek assurances that the director will have a direct line to the Secretary of State and not simply report to members of the OFS board and the OFS chief executive, although of course he may wish to consult them substantially.

Those are some of the key issues that we really need to address. The devil is always in the detail. When we considered the Bill in Committee, the detail was quite opaque, and remains so even with today’s regulations. Having been present at the launch of a major new institution myself many years ago and seen it from a public affairs perspective, I know that not everything can be set in stone from day one and things will have to adapt as we go along. However, that makes it all the more important that the overall direction of travel—particularly in relation to these access and participation regulations—and the autonomy and driving power of the director for fair access are made absolutely clear. If they are not, and situations arise in which he is in conflict with, or has pressure put on him by, people on the board, it will be the people we all want to support by means of the access and participation arrangements and instruments being introduced today who will be the poorer.

[Mr Gyimah]

I remember the exchanges I had with the hon. Member for Blackpool South on careers, and he has approached the scrutiny of these regulations with the assiduousness that I came to know when I was in the Department for Education before.

The hon. Gentleman asked a number of important and valid questions, starting with one about the consultation that was held just before Christmas. There were more than 300 responses, and it will come as no surprise to him that we will reflect closely on those.

The hon. Gentleman asked a substantive question about the process of implementing the 2017 Act. The hon. Gentleman is right to say that there are a number of pieces of secondary legislation. There are 15 in total, six of which need to be enforced by 1 April to enable the OFS to operate during its transitional period and open its register to providers. The remaining nine will be required by August 2019. The hon. Gentleman will be aware that prior to the Christmas recess, we laid regulations for part 1 of the transition, for access and participation, for the mandatory fee limit condition and for the publication of the register. The remaining two, on part 2 of the transition and the transparency duty, are scheduled to be laid much later in the year. I hope that that gives him some clarity about the trajectory.

The hon. Gentleman asked a number of questions about the director for fair access and participation, including whether he would be approving the plans. The answer is yes. It is our expectation that the director will approve plans on behalf of the OFS, and we expect that function to be delegated to him.

In addition, the hon. Gentleman rightly asked about the power that the director will have. The Act ensures that the director will be responsible for overseeing the OFS’s performance on access and participation and reporting to the other OFS board members. It is right that the director takes advantage of the expertise of the board, rather than acting on their own. The purpose of a broad and diverse board for a statutory body that has quite a wide remit is that board members have lots of different types of experience to bring to bear.

The hon. Gentleman asked a number of questions on mature and part-time students, which is an important issue. Financial support is available for those who want to study part time. We are consulting on proposals to enable greater provision of accelerated degrees, to make that more attractive. We will be coming to that over the following months.

Equal access to some of the most selective institutions is of concern. However, there has been a lot of progress, with 18-year-olds from the most disadvantaged areas 50% more likely to enter HE in 2017 than in 2009. When I said that there is still a lot of work to do—to put it another way, there are no grounds for complacency—that was not just a standard ministerial caveat. From my own life experience, I know how important that is, and it will be a personal crusade of mine in this brief to continue to look at ways of improving fair access.

[Gordon Marsden]

I thank the Minister for giving that assurance. I entirely understand, support and celebrate his personal commitment in that area. He said that the director for fair access would be responsible for reporting to the board and would approve plans. What is the Minister’s view on the director’s ability to actually carry through the plans? Is it understood that, unless there are exceptional circumstances, those plans will be approved?

[Mr Gyimah]

The director, as I understand it, has executive responsibility for this area, so I would expect them to carry out those plans but, obviously, to report to the board. That structure is not unique to this organisation; it is widely used in many organisations in both the private and public sectors.

In terms of the substance behind going further on access to the most selective institutions, we have introduced the transparency condition, under which providers must publish data on their access record. We have also strengthened, as we have discussed, the access and participation plans.

Chris Millward, who is taking over as the director for fair access and participation, has already taken on in practice some of the responsibilities of that role, and we anticipate a smooth transition.