Higher Education and Research Bill

Lord Lisvane Excerpts

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

[Lord Lisvane (CB)]

My Lords, I should first declare that I am one of the founders of the New Model in Technology & Engineering university being established in Herefordshire and an honorary fellow of Lincoln College, Oxford. I express my thanks to the noble Viscount the Minister and his Commons colleague Jo Johnson, for the time and trouble they have taken to engage with noble Lords on this Bill. I think that has been very widely appreciated throughout the House.

I do not have the formidable expertise of many of my Cross-Bench colleagues on the subject matter of the Bill, but I have taken a particular interest in the proposals for delegated powers and especially for the powers to be conferred upon the Office for Students. I hope I shall not offend against the guidance in the Companion—I think it is in chapter 8—about dealing with matters of detail on Second Reading but, as I think will become clear, a lot of these matters of detail are in fact exemplary of broader and important principles.

I first observe that this Bill contains examples of what one might call quasi-legislation, the giving of ministerial guidance, not formal delegated powers which can be formally controlled but nevertheless giving substantial legal authority to Ministers. This has for some time been an insidious and unwelcome change in the character of law-making. The prime example in this Bill is in subsections (2) to (6) of Clause 2. The powers proposed there are extensive with, so far as I can see, no parliamentary check. The powers proposed to be given to the OfS and the degree of discretion which the OfS is to have in exercising those powers are concerning, to say the least. To take just one example, under Clause 15 the OfS may impose monetary penalties,

“if it appears to the OfS that there is or has been a breach of one of its … registration conditions”.

“Appears” is subjective. There is no requirement to determine that there actually has been a breach, nor any reference to an investigative process, although Schedule 3 allows the provider to make representations. The same degree of subjectivity appears in Clause 16 dealing with suspension and Clause 18 dealing with deregistration.

On the monetary penalty provisions, if there is an appeal to the First-tier Tribunal, as allowed for in Schedule 3, the tribunal may withdraw the requirement to pay the penalty, confirm the requirement to pay, or remit the decision as to whether to confirm the requirement to pay back to the OfS. This seems to me, rather worryingly, to be giving the ultimate decision to one of the parties to the appeal, for there are no further rights of appeal. There are more examples in the Bill.

I found the powers proposed to be given to the OfS, centred upon Clauses 40 to 45, extraordinary, and I am very surprised that they survived unamended in the Commons. Clause 40(10) allows the OfS to make its orders by statutory instrument,

“as if the order had been made by a Minister of the Crown”,

but they will not have been made by a Minister of the Crown; they will have been made by the OfS. Clause 43 would allow the OfS by order to vary or revoke an authorisation to an HE provider or an FE provider, even if that authorisation was by Act of Parliament or royal charter.

This is not an ordinary Henry VIII clause—of which we see far too many in any event—where there is at least the involvement of Ministers answerable to Parliament. Clause 43 would empower a body corporate to make secondary legislation amending or even repealing primary legislation without ministerial consent and without any parliamentary scrutiny.

In recent months we have seen framework Bills such as the Childcare Bill, and Bills such as the Housing and Planning Bill, where we were asked to take on trust large areas of policy which would be sketched in by SI after Royal Assent. In this Bill, we now have delegation of legislative power in its own sector to a body corporate. I look forward to pursuing these issues further in Committee and on Report.