Education

Gordon Marsden Excerpts

Wednesday 15th May 2019 Commons Chamber

[Gordon Marsden (Blackpool South) (Lab)]

I thank the Minister for his detailed explanation of this statutory instrument. He has stated—we do not intend radically to dispute the point—that the regulations largely make consequential amendments to existing primary legislation, to make it consistent with the objectives and content of the Higher Education and Research Act 2017, in addition to the points he made about the Charities Act 2011. However, I am informed that the Secondary Legislation Scrutiny Committee in the other place decided yesterday to defer consideration of the regulations for one week. Can the Minister shed some light on why his colleagues in the other place have decided to do so? It is rather puzzling.

The Higher Education and Research Act created a new regulatory framework for higher education in England, including a new regulator—the Office for Students—and a new register of higher education institutions, essentially creating a new legal category of “registered higher education provider”. That will now include institutions in the further education sector, and my own college, Blackpool and The Fylde College, will be one of the institutions to benefit from that.

The regulations amend existing primary legislation so that, where appropriate, it refers to registered higher education providers. That is not a contentious decision; it is a legal tidying-up exercise, following the creation of a new regulatory framework. However, as the Minister’s predecessor, the hon. Member for Orpington (Joseph Johnson), pointed out on the Floor of the House and several times in Committee, the OfS, to which many of the powers are being transferred from HEFCE, is a very different bird, with a different remit and different powers. It is therefore reasonable that we look carefully at how these changes might have an impact on HE providers.

The regulations ensure that all registered higher education providers can use an existing legal opt-out of certain laws governing charities, so that they will instead be governed by the OfS. We remain concerned about the Government’s continued marketised view of the OfS. We continue to be critical of the wider regulatory regime underpinning the 2017 Act and the way in which it is being applied, in particular the extent to which the Government are forcing the operations of free markets into the higher education system, without any sense of the consequences, in a Bill that was put together before Brexit and takes no account of its consequences. Can the Minister confirm that the OfS will be the sole arbiter in those cases, rather than the Charity Commission?

The explanatory note to the regulations says:

“Part 4 (regulation 43) makes amendments to Schedule 3 to the Charities Act 2011 in relation to exempt charities that are regulated by the OfS as their Principal Regulator. The amendments enable any registered higher education provider that is a charity to become exempt by an Order in Council, and remove exempt charity status from a provider that ceases to be registered with the OfS.”

These are important and powerful instruments. On the final point, about removing exempt charity status from a provider that ceases to be registered with the OfS, how will that be actioned and followed up, and what mechanisms will be in place? How will those decisions thereafter be scrutinised?

Two years on from the Bill receiving Royal Assent, we are still tidying up the legislation that has come from it. The Minister said, no doubt with a sigh of relief, that we are reaching the final set of regulations directly relating to the 2017 Act. However, as the former universities Minister, the hon. Member for Orpington—my opposite number during the Bill’s passage through the House—said in a Delegated Legislation Committee last week:

“It has been almost four years now that we have been at it.”—[Official Report, Fourth Delegated Legislation Committee, 8 May 2019; c.11.]

I have to confess that I have been at it on this legislation throughout that time, and the Minister may begin to feel that he too is becoming accustomed to being at it, because this is the third week in a row that he and I have debated regulations relating to the Act.

The Minister and I had a lively discussion last week on the Higher Education (Monetary Penalties and Refusal to Renew an Access and Participation Plan) (England) Regulations 2019. It might not sound like the most fruitful possibility for a lively discussion, but we managed it. That gave Members on the Statutory Instrument Committee, including Government Members such as the right hon. Member for South Holland and The Deepings (Sir John Hayes) and the hon. Member for Orpington, the ability to raise important questions about access and participation, adult and part-time learning, the status of the Office for Students and, importantly, the current progress of the Augar review, on which we are still waiting for an update from the Government. The Minister is very welcome to update the House today if he chooses to do so.

The week prior to that, we challenged the Government over a number of unanswered questions relating to the Higher Education (Registration Fees) (England) Regulations 2019, about which we and the universities sector have had a number of concerns, including the special arrangements for micro and new providers, the formula used to determine the cost of registration for providers and the alarming nature of how quickly the Government’s proposed contribution to this exercise has fallen. In particular, we were concerned that the Government were making new and extraordinarily bureaucratic and expensive demands on universities at a time when their future is uncertain, and that is why we voted against the regulations.

These naturally reflect on the motion that the Government have chosen to bring forward on the Floor of the House today. It is our belief that, in principle, this statutory instrument is not unduly contentious, and I am led to believe that that opinion is shared by the Government. Why, therefore, do they need to use the time of the full House, rather than a Delegated Legislation Committee, to attempt to rubber-stamp a series of consequential amendments and the other issues pertaining to the Charities Act? The reason really is that the Government are bringing business to the House when they have very little else to debate. It is in sharp contrast to the way in which the Government dealt with the previous two SIs, to which I have referred, both of which were far more contentious and both of which touched on continued concerns about the operation of this Act. In my submission, those would have been far more suitable for debate in this Chamber.

It is a stark reminder that the Government have no domestic agenda to bring to this place at the moment, and that the Prime Minister lacks the power and majority needed to advance those few policies her Government do have. I suggest that the Government should be using this time to bring forward new policies and actual legislation, or matters that, from previous legislation such as HERA, are contentious and continue to give concerns as they are taken forward in detail and that should be debated by the whole House. As these regulations appear to contain no substantive matters of new policy at all, will the Minister tell me why it was felt that they should be debated on the Floor of the House today?

The explanatory note on the regulations also says:

“A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.”

So what implications do these changes have? We have of course been critical of the wider regulatory regime underpinning the 2017 Act, particularly, as I have said already, the extent to which the Government are forcing the operation of free markets on to the higher education system. As the regulator, the OfS is legally required to promote competition between HE providers, encouraging them to operate as if they are part of a competitive market, rather than a co-operative education system. We have previously committed to removing this duty on the regulator.

We have also expressed our concern about some of the powers designated to the Office for Students on data sharing. In July 2018, the Minister’s predecessor, the hon. Member for East Surrey (Mr Gyimah), and I debated the Higher Education and Research Act 2017 (Cooperation and Information Sharing) Regulations 2018 in another Delegated Legislation Committee relating to this Act. As part of that debate, I referenced the fact that section 63 of the Higher Education and Research Act 2017, to which the regulations refer, does not place a limitation on the type of information that may be provided, and therefore that it could include personal data. You and I, Mr Speaker, were in this Chamber to hear the urgent question earlier on the issues of WhatsApp and the use of data, so I think it is entirely appropriate that we raise this issue again today.

With these regulations, we are exhibiting potential issues with data sharing, as is attested by a briefing I received in advance of this debate from defenddigitalme. For the assistance of the House, defenddigitalme advocates for children’s privacy in data and digital rights, and in response to concerns from teachers, parents and campaigners about the invasive uses of children’s personal information collected in the course of their education in England. That is one of the issues that I now want to raise further with the Minister. On the effects of the new regulations, it has said to us:

“Over 25 million students, children, and staff across England’s Education sector will be denied control over their digital footprint, in perpetuity. Data will be copied to an indefinite number of data recipients, without clear safeguards for scope creep, of new or onward uses, or users…

There is no meaningful limitation in its existing powers for what purposes OfS may pass on personal data to third parties; nor for which purposes those third-parties in turn may use the data on the face of the Act…or in the 2018 Regulation no 607…

By giving the OfS—and potentially its own prescribed persons (third parties), access to the entire education dataset of the population, past and present, since 2002:

There is no oversight”—

as far as we can see—

“of its data handling or accountability for processing…

There is no published plan to inform each…adult of the change of data controller or new processing purposes by any new body…

There is no route for redress if data are wrongly processed or mistakes made…

There is no route for redress if data are wrongly processed…in any processing of anyone’s records for the purposes of fraud.”

These are important issues. They may be quite technical issues, but they are important issues that bear upon the statutory instrument we are being asked to pass today, and they are issues that we took up during the Committee stage of the Bill.

The regulations bring both the OfS and UKRI on to the list of organisations in schedule 8 to the Digital Economy Act 2017, but there have been widespread concerns about data sharing between higher education providers and private companies. Is the Minister able to tell us today in what circumstances data will be shared and when students will know this has happened? As a point of process regarding part 2, regulation 14, on new powers under the Digital Economy Act 2017, can the Minister confirm whether the regulations have been prepared in line with parts 5.1 and 5.2 of the Cabinet Office debt and fraud information sharing review board code of practice, which was passed by this House in November? There does not appear to have been any publication or preparation of data protection impact assessments in relation to the documents accompanying this SI. Applications to amend the schedule should be made through the secretariat, but as we are told that the Cabinet Office committee does not publish any minutes it is unknown whether this happened. Will the Minister tell us why—in respect of the regulations before us today, which the Minister has signed off—his colleagues in the Cabinet Office do not publish minutes in this way?

Is it the intention of the new regulations that through the new data powers they give OfS to receive data in regulations 28 and 32 they can also enable the distribution by OfS of population-wide personal data? I repeat: that includes the personal, confidential data of every pupil from state education since 1996, past, present and future and in perpetuity—over 25 million people, and growing every year—distribution to its own third-party prescribed persons, including potentially Pearson Education Ltd, among other commercial parties, for such wide-ranging company purposes, through the powers of last year’s regulations, which set out who the OfS could give data to, and for purposes defined only by that company’s memorandum and articles of association, most of which were not even mentioned in the explanatory notes that accompanied that negative statutory instrument?

I would argue that if the Department wishes us to be entirely happy with this SI today, the necessary and proportionate purposes should be made explicit and set on the face of the Act, or corrected in each set of regulations. These are matters on which it would be helpful for the Minister to respond briefly now, or at least for him to put a response in writing for Members of the House, given that they have been raised on the Floor of the House today. We do not, though, propose to divide the House on this statutory instrument today.

--- Later in debate ---

[Chris Skidmore]

I thank hon. Members for participating in this debate. I shall try to respond briefly to the points that have been raised.

I thank the hon. Member for Motherwell and Wishaw (Marion Fellows) for her remarks on the Scottish system. I will be heading to Scotland in early June and will endeavour to focus also on some of the issues of widening participation. I have regular meetings with the Scottish Minister for Further Education, Higher Education and Science, Richard Lochhead. On the points that the hon. Lady raised about research, I know that we are going a bit off piste in relation to the statutory instrument before us, but I reiterate my commitment to ensuring that we maintain our common research links with our European partners. When I was in Berlin, speaking at the “Going Global” conference hosted by the British Council, I met Minister Karliczek, Federal Minister of Educational Research, and had meetings with the Fraunhofer and Max Planck research organisations to make that commitment.

Regarding our association with such future programmes as Horizon Europe, yesterday the Government published our international research and innovation strategy, making clear our commitment to being outward-facing and ensuring that we continue to endeavour to have strong global research links.

On tier 4 visas—the hon. Lady will be aware that the Home Secretary is sitting beside me—we must remember that researchers from international countries are still able to come to the United Kingdom. We recently launched the first Future Leaders Fellowships programme, £900 million of investment in 550 international fellowships, which has seen people from Japan to Canada coming to the UK. We recognise there are issues relating to visas that need to be looked at as part of the consultation for the immigration White Paper, but issues around tier 4 visas have not prevented existing international researchers from being able to participate in UK research life.

Turning to the points made by the hon. Member for Blackpool South (Gordon Marsden), on the amendment to schedule 3 of the Charities Act 2011, which sets out that charities are exempt from registration with and direct regulation by the Charity Commission for England and Wales, HEFCE was the principal regulator for HE providers that were exempt charities under the existing schedule 3 of the 2011 Act, and the OfS was made principal regulator for higher education under the earlier consequential and transitional regulation which came into force on 1 April 2018. The amendments to schedule 3 require that currently exempt HE charities remain registered with the OfS to continue to hold exempt status and provide the opportunity for any provider registered with the OfS to be exempt by applying to the Privy Council. That will mean that exempt charities registered with HE providers will not have to register with or make returns with the Charity Commission, but will instead report to the OfS as principal regulator.

The amendments have been made with the intention to reduce the administrative and regulatory burden on charities and ensure that the OfS has a sufficient regulatory relationship with the relevant exempt charities to be an effective principal regulator. The amendment to the Charities Act made the removal of exempt status automatic upon deregistration, so no action is actually required by the OfS. The OfS can deregister a provider only if certain conditions are met. That covers both conditions on registration, and consideration of the denial of an access and participation plan.[Official Report, 4 June 2019, Vol. 661, c. 1MC.]

On the impact assessment, the regulations contain two sets of saving provisions. The first deal with the applications made for university title that were made before 1 April 2019. The second type of saving provisions relate to the repeal of a particular statutory provision under which so-called designation orders were made. Those orders designated certain providers as higher education institutions. There are a number of references and regulations governing teachers’ pension schemes and local government schemes to designated institutions. If we do not preserve the orders for those very narrow purposes, future staff’s eligibility for the schemes will be lost, so there are benefits in ensuring that staff have access to those pension schemes.

The entire purpose of the consequential saving provisions is to preserve the intention and scope of the underlying legislation in the context of the changes brought about by HERA. We therefore do not anticipate any additional regulatory burden as a result of the regulations. As I said in my opening speech, the main purpose of the consequential amendments is to minimise the risk of chaos and disruption to students, staff and providers. The hon. Gentleman mentioned the SLSC asking for clarity on a few of the provisions in the regulations. I understand that it often does so as part of the scrutiny process and we will respond in due course.

The hon. Gentleman focused on the risks around data sharing in relation to regulation 14 and schedule 8 to the Digital Economy Act 2017. Schedule 8 allows bodies named in it to disclose information to each other for the purposes of taking action in connection with fraud perpetrated against a public authority. The amendments replace Innovate UK and existing research councils with references to UKRI, HEFCE and the OfS, because HEFCE has been abolished, and Innovate UK and the research councils have been incorporated into UKRI. If we do not make the amendment, the OfS will not be able to make or receive fraud-related disclosures envisaged under the Act. There would also be ambiguity as to whether disclosures could be made or received by relevant constituent parts of UKRI.

Separately, regulations 28 and 32 amend the Education (Information About Children in Alternative Provision) (England) Regulations 2007 and the Education (Individual Pupil Information) (Prescribed Persons) (England) Regulations 2009. The provision requires institutions that are not schools in receipt of funding from the Department for Education to provide certain pupil information to the Secretary of State and other bodies, including HEFCE. The amendment will substitute OfS for HEFCE, as HEFCE no longer exists. That is the same for regulation 32.[Official Report, 4 June 2019, Vol. 661, c. 2MC.]

It is important to state on record that we need data sharing to track pupils to ensure, when it comes to improving the position of disadvantaged students and students in widening participation categories, the data is available.

[Gordon Marsden]

I appreciate the detailed explanation of the technical reasons for the changes and I have no wish to prolong the debate unduly, but the thrust of my remarks was to express our continued concerns about the inadequacy of the protections in this area. Will the Minister give the House an assurance today that he is confident the status quo in terms of the safeguards will in fact do the business, given that we and other bodies have raised substantial concerns about the current procedures?

[Chris Skidmore]

The section 3 regulations the hon. Gentleman mentioned in his earlier contribution were debated at the time of the regulations. The consequential provisions substitute the OfS for HEFCE. I will put on record that the Department takes its obligations under data protection laws very seriously. There is a panel that assesses each sharing request for public benefit, proportionality, the legal underpinning, and strict information security standards. I reiterate that no data sharing will take place without the Department ensuring that those measures are taken into account.

That takes us to the wider issue of the OfS being part of the regulators code and the application of that code meeting the commitment the Government made during the passage of the Act. In addition to the matters the OfS must have to regard to under HERA are the five principles of good regulation under the regulators code. It is worth putting them on record: the regulator should carry out activities in a way that supports those it regulates to comply and grow; regulators should provide simple and straightforward ways to engage with those they regulate and hear their views; regulators should base their regulatory activities on risk; regulators should share information about compliance and risk; and regulators should ensure clear information, guidance and advice is available to help those they regulate to meet their responsibilities to comply. The opportunity for the OfS to be a part of the regulators code is an additional indication of the responsibilities that the OfS takes its new role very seriously.

If I had longer I would go through the importance of why we are debating the regulations. As Universities Minister, I am delighted they have reached the Floor of the House rather than Committee Corridor. I believe this marks a significant moment in the reforms that began way back with the first Green Paper in 2015, all the way through to the final provisions of the Act being put in place. We have seen a shift from a provider-focused system to a student-focused system. We have seen a system that will now move to focusing on how we can best ensure we have value for money for students and deliver the best student experience. We can ensure that new providers, including FE providers, are able to enter the market.

When addressing the Education Committee this morning, we spoke at length about how we can ensure that FE and HE providers have greater opportunities to work together. One important part of the regulations is ensuring that FE providers will be able to have degree-awarding powers and apply to a much more streamlined system through the OfS. My ambition and long-term hope is that it will allow FE providers to have degree-awarding powers, rather than going through the rather complex and nuanced current franchising route. That will ensure we create a single system for a post-18 education world that benefits students, so they understand their role in the education system.

Question put and agreed to.

Resolved,

That the draft Higher Education and Research Act 2017 (Further Implementation etc.) Regulations 2019, which were laid before this House on 29 April, be approved.

House of Commons Commission

Resolved,

That Pete Wishart be appointed to the House of Commons Commission in place of Stewart Hosie in pursuance of the House of Commons Administration Act 1978, as amended.—(Jo Churchill.)