Higher Education and Research Bill

Lord Stevenson of Balmacara Excerpts

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

[Lord Stevenson of Balmacara (Lab)]

I thank all noble Lords who have contributed to this interesting debate. The metaphor of holding up a mirror to current practice and making sure that what is reflected is not a distortion of what is happening on the ground is very powerful. The noble Lord, Lord Addington, has done excellent work in this area and is an inspiration to us in insisting that we look at these points and think harder about how policies are going to be developed and how monitoring and training will support them. We owe him a great debt of thanks.

The noble Baroness, Lady Brinton, took the argument away from the specific question of what is happening in the Office for Students and how things should be done, and looked at it in the context of our responsibilities under the UN convention. That is very important. In reading out her quotation, she pointed out that the UN does not have a problem with “must”. Our parliamentary draftsmen shy away from “must” and always insist on “may”. The convention clearly says “must”, so there are is no way of ducking this responsibility. The Government are responsible for policy, monitoring, training, funding and development; for ensuring that the project is capable of reflecting correctly what we do; for ensuring that there are none of the perverse incentives to which the noble Lord, Lord Addington, referred; and for ensuring that we can operate in an appropriate way for a civilised society, caring for all students and making sure that access is available to all.

Our Amendment 236 is of the “change ‘may’ to ‘must’” type. I thought that, as I was not getting very far with “must”, I should try “should”, but the intention is exactly the same. This is something the OfS should—that is, must—do. It should not just identify; it should also give advice on good practice. If we do not work together, we will never achieve this aim.

[Viscount Younger of Leckie]

My Lords, I am grateful to noble Lords for raising important issues relating to access and participation plans and disability. This Government are deeply committed to equality of opportunity, and I agree with many of the comments made by the noble Lord, Lord Stevenson. That is why Clause 2 introduces a duty on the OfS to consider equality of opportunity in connection with access and participation in higher education. This applies to all groups of students. No such duty applied to HEFCE.

In order to be approved, access and participation plans will need to contain provisions to promote equality of opportunity. This makes clear our commitment to this important consideration. Questions were raised by the noble Lord, Lord Addington, and the noble Baroness, Lady Lister, about where we are on guidance on disabilities. I hope noble Lords have read my letter of 18 January, but I confirm, as I confirmed in that letter, that I expect this guidance, for which noble Lords have been waiting for some time, to be published imminently. I also reiterate my offer to meet the noble Lord to discuss this issue further.

Amendment 226, tabled by the noble Lord, Lord Addington, and the noble Baroness, Lady Brinton, seeks to specify that governing bodies of institutions may take advice from bodies nominated by the Equality and Human Rights Commission in developing the content of their access and participation plans. I support the intention here. We expect higher education providers to consult to help ensure that their access and participation plans are robust. I listened carefully to the sobering anecdote about a student experience from the noble Baroness, Lady Brinton. This is the very issue for which we are seeking solutions. We are in agreement about that. Indeed, OFFA currently sets out its expectation that universities consult students in preparing access agreements, and we anticipate that this will continue for access and participation plans. Given the autonomy of institutions and the wide-ranging support already available—for example, the Equality Challenge Unit supports the sector to advance equality and diversity for staff and students—I believe it is unnecessary to place this requirement in the Bill.

Amendment 228, proposed by the noble and learned Lord, Lord Wallace, seeks to include providing training for staff in awareness and understanding of all commonly occurring disabilities. Ensuring a fair environment and complying with the law are matters which providers need to address in meeting their obligations under the Equality Act 2010. This amendment would mean including a level of detail not consistent with the other, broader provisions and may overlook other underrepresented groups. For these reasons, I believe this amendment is unnecessary.

The noble Baroness, Lady Brinton, and the noble Lord, Lord Addington, proposed Amendment 229, which would mean that provisions requiring institutions to specify the support and advice they provide for students with disabilities may be contained in regulations about the content of an access and participation plan. We absolutely agree with the principle behind this amendment. The Equality Act 2010 imposes a duty to make reasonable adjustments for disabled persons, which includes an expectation to consider anticipatory adjustments. In addition, the Equality and Human Rights Commission has a supporting role in providing advice and guidance, publishing information and undertaking research. Given the wider context, this amendment would introduce a level of detail into the Bill that is inconsistent with the other broader measures. It may also risk being seen to overlook other underrepresented and disadvantaged groups.

The new clause proposed in Amendment 235, tabled by the noble Lord, Lord Addington, and the noble Baroness, Lady Brinton, would require the OfS every two years to commission a review of the support for students with disabilities or specific cultural needs. This is an interesting proposal, and I remind the noble Lord and noble Baroness that the Bill will require the OfS to produce an annual report covering its delivery against all its functions. Critically, this includes the duty regarding equality of opportunity set out in Clause 2.

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Moved by

[Lord Stevenson of Balmacara]

230: Clause 31, page 19, line 43, at end insert—
“( ) requiring the governing body of an institution to take, or secure the taking of, measures to enable students to undertake courses on a part-time basis where appropriate.”

[Lord Stevenson of Balmacara]

My Lords, I think we can be brief on this one. It is a continuation of the debate that started two or three days ago to try to put flesh on the bones of the ideal which the Government say they have—and we certainly share—which is that higher education in future should be less regimented and less dominated by the three-year traditional degree taken full-time by students who come straight from school. We should try to open up the provision that is available in higher education, and made by higher education providers, to ensure that equal parity is given to those who wish to study part time, and in particular mature students who very often need to be more flexible in what they do. At the moment, they are disappearing too fast from the statistics, and we need to try and get them back.

This issue has been raised before in terms of the hierarchy of government policy in relation to the Office for Students, and is now down at the level of access and participation plans. The amendments seek to ensure that the governing bodies of institutions can and will take measures to enable flexible provision and allow students to undertake part-time courses, particularly to suit those who may be mature. I beg leave to move.

[Baroness Garden of Frognal (LD)]

My Lords, I have tabled Amendment 237 in this group, which complements the words of the noble Lord, Lord Stevenson. With the collapse in part-time student numbers, this would ensure that the Office for Students has a duty to ensure that equality of opportunity is not neglected for those whose only opportunity to study is via part-time provision and at a later stage in life. It would also provide an assessment as to whether the Government’s new initiatives, such as the extension of maintenance loans to part-time students, are having the desired effect of boosting current numbers.

We remain concerned throughout the Bill that the opportunities for mature and part-time students should not be neglected. Putting them in the Bill will ensure that their contribution to higher education is fully considered.

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Currently, the Secretary of State issues guidance to the Director of Fair Access on widening participation. In the latest guidance, issued in February 2016, we asked the director to provide a renewed focus on part-time study, for example by including good practice on this in his guidance to institutions. In future, the Secretary of State will be able, through Clause 2 of the Bill, to issue guidance to the OfS. We would envisage that the Secretary of State will continue to issue guidance on priorities in the area of widening participation. This approach through guidance is more flexible and ensures that the OfS can respond to emerging issues and priorities. I therefore ask the noble Lord, Lord Stevenson, to withdraw his amendment.

[Lord Stevenson of Balmacara]

My Lords, I am grateful to the Minister—I am sorry she is struggling to get through. It calls, I think, for an early night. We should make sure that she gets tucked up in bed with a good scotch—I perhaps should not say these things—in order that she recovers and comes back on Wednesday in good form. I listened to her very carefully and think she has reached out to us on this point. I beg leave to withdraw the amendment.

Amendment 230 withdrawn.

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[Lord Storey (LD)]

My Lords, I thank the Minister for his comments. I am speaking to Amendment 243 in this group. We welcome the government amendments. I agree very much that there needs to be clarity. There is a need to ensure that certain procedures within the Bill are applied fairly and proportionately and accommodate smaller providers of higher education such as further education colleges. It is also the case that the recently published BEIS post-16 skills plan includes proposals for colleges to make their own technical education awards, and it is important that there is joined-up thinking in this area. Unlike universities, colleges that offer foundation degrees are currently unable to provide both a foundation degree and a certificate of higher education to provide a flexible level 4 qualification option for students. The amendment would remedy this.

[Lord Stevenson of Balmacara]

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

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

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

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

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

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

[Baroness O’Neill of Bengarve (CB)]

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

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

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

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

[Lord Stevenson of Balmacara]

The noble Baroness is campaigning vigorously and with her usual persistence on a very interesting point. The letter dated 23 January that was delivered just as we were sitting down to enjoy ourselves this afternoon—I think we are going to have to start numbering them so we can keep track of which letter is which—has a little section on this, to which I think she was referring. Can the Minister possibly explain what this means?

“It is the Government’s policy that a provider that has a physical presence in England, and that is delivering courses in England, can be an English higher education provider even if it is delivering other courses in another country, provided that its activities are principally carried on in England. There has never been an agreed measure for identifying where the majority of a provider’s activity might be. But there are a number of sensible measures (or combinations of sensible measures) that should make it reasonably clear, including the number of students studying courses in each country, and/or where the provider has its administrative centre(s)”.


With the greatest respect to the Minister, this is just throwing more marbles on to the road for our poor horses to trip up and fall over on. I am not going to quote the stuff about massive open online courses, which has been raised by the noble Baroness and is an issue, because that is completely bonkers.

[Viscount Younger of Leckie]

I appreciate the contributions from noble Lords in the very short debate after I introduced the government amendments. As we are now proposing that a foundation degree award is covered by the definition of a taught award in Clause 40(3), this puts holders of foundation degree-awarding powers in the same position as holders of taught degree-awarding powers—which I assume was the intent behind noble Lords’ amendments. In addition, we plan to set out in guidance the relationship between degree-awarding powers and powers to award other higher education awards such as certificates of higher education. I hope that this will help to further clarify the position for providers. We anticipate that this guidance will be subject to consultation. I do not wish to dwell on Amendment 256A any further, as we have covered the argument in our discussions on the previous group, where I trust that my noble friend Lady Goldie offered some reassurance.

However, I will address a small number of the points raised. The noble Lord, Lord Storey, raised some issues about the post-16 skills plan and how this joins up with our proposed reforms. I confirm that we are carrying out two reform programmes, in higher education and technical education at the same time, which he is probably aware of and which gives us the best opportunity to ensure that they are complementary and for young people to benefit from the changes as soon as possible. This is not about diverting people from academic education into technical education or vice versa; we simply want everyone who can benefit from a tertiary education—whatever that might be and whatever their talents lead them to—to have the chance to do so.

I will address the points raised by the noble Lord, Lord Stevenson. One point focused on the clarifications of our framework in relation to these amendments, while another was on the responsibility of powers. I think it is best to write a letter on that. I was interested in the points raised about entryism by the noble Baroness, Lady O’Neill, particularly on the position of overseas providers who might want to come in. The noble Lord, Lord Stevenson, has received the letter I have just written, in which I thought that we had addressed those issues, but I suggest that we have a meeting with the noble Lord and the noble Baroness, and indeed any other noble Lord who might wish to join in, to offer full and final clarification.