Higher Education and Research Bill

Lord Stevenson of Balmacara Excerpts

3rd reading (Hansard): House of Lords
Tuesday 4th April 2017 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, this issue was raised in Committee and on Report and concerns the characteristics which the Office for Students can require of universities seeking registration as higher education providers. On Report I narrowed it down in exchanges with the Minister, saying that we would be prepared to consider solely the question of age, and he agreed that he would look at it. I regret that the Government did not come forward with their own amendments, so I have tabled this one. It is a very short amendment, as will be obvious.

As I have indicated, the importance of this clause is that it will ensure transparency. I acknowledge what the Government have done in the course of the Bill. They have added degree outcomes to the information that is required which will complete, as it were, the student life cycle. The Bill specifies that the information should cover gender, ethnicity and socioeconomic background; this amendment would add age to that list. The reason I have narrowed it down so much is that concerns were expressed on previous occasions that some of the other characteristics, specifically those covered by the Equality Act 2010, involve to a greater or lesser extent an element of self-identification. I do not think that age could be described in that way, given that it is absolutely objective by reference to one’s date of birth.

The amendment might be small but it makes an important point. Throughout the debates on this Bill and indeed in other spheres, many noble Lords have stressed the importance of trying to do something to revitalise part-time education. The inclusion of a description of age would give us at least one tool to evaluate the progress that is being made in promoting part-time education. It is estimated that most initial entrants into part-time education are aged between 31 and 60, but between 2007-08 and 2014-15 there was a 60% decrease in that group coming in.

As I have indicated, there is a widespread view that we should encourage part-time education. The Open University has taken a particular interest in this amendment because of the important provision it makes for students studying courses on a part-time basis—I declare an interest as an honorary graduate of the university—and this would be a useful and important tool if it was included in the legislation.

Since our debates on Report the Minister and I have exchanged ideas and wordings, and through the toing and froing, he agreed to reflect on the matter. Of course the Government have promised a consultation by the Office for Students with regard not only to age but also to the other characteristics. Can the Minister give an indication of the likely timescale for the Office for Students to carry out this consultation because it will help universities to understand better how they will be supported in the planning and implementation of the requirements?

Quite simply, this small amendment meets the criterion of not being one of self-description. Perhaps I may also quote from the letter sent by the Minister jointly with Jo Johnson on 22 March. He refers to the duty and states:

“While the Duty itself must remain balanced and proportionate, it is clear that greater transparency on characteristics such as age is desirable to support equality of opportunity through widening participation”.


So the Government themselves think that this is desirable. The amendment does not run into some of the difficulties encountered in the earlier amendments. I am not holding my breath that the Minister will respond positively, but I shall listen to him with great care. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I support the noble and learned Lord, Lord Wallace of Tankerness, in his amendment. We tabled a similar amendment, although one that was slightly broader in context, both in Committee and on Report, so we have a continuing interest in this area. We have chosen not to support this amendment at this time, but I do not think that one should read anything into that—rather, I hope that discussions of which I am aware that are being conducted outside your Lordships’ House will have matured to a point where there may be some news that might bring a conclusion to this matter.

One of the main purposes of the Bill, at least as outlined in the White Paper which preceded it, is that it is intended to improve social mobility. That is an admirable aim and one which we fully support. One of the things about social mobility is that it is supported by a number of legislative arrangements, one of which is the Equality Act 2010 which brings into play a series of protected characteristics that define and encapsulate the issues around the need for social mobility in particular groups. It is important that we should have regard to this in all aspects of our public life, and it is therefore very important that new Bills which come forward should be built on that foundation. It is therefore rather surprising that the information requirements which are part of the amendment and focus on the need for transparency conditions that will be organised by the Office for Students—or as we prefer to call it, the office for higher education—do not include all the protected characteristics. It is only with considerable reluctance that the Government are prepared to concede that age is an important part of this area, and I hope that the Minister will confirm that when he comes to respond.

There are other values in having a confident sector that is able to publish information around all the protected characteristics. It will give students of all types and varieties the chance to judge whether a particular institution or institutions more generally are appropriate for them, given their protected characteristics, and of course it will be vital in terms of trying to formulate policy. For all these reasons, it is important that the Minister should reassure the noble and learned Lord, Lord Wallace of Tankerness, about his concerns around age as a matter that must be one of the transparency conditions, and of course subject to the consultation it is hoped that some direction will be given to the office for higher education, also known as the Office for Students, that it is something which should be taken into account. Perhaps the Minister can also reassure me that it is not impossible that in future years, work can be done to gather information around the protected characteristics, which will be important for all the reasons I have given.

[Baroness O’Neill of Bengarve (CB)]

My Lords, I am not against collecting information because it is always interesting, but I would regret seeking information under all the protected characteristics set out in this Bill, among other reasons because I do not think asking intending students whether they are pregnant is a good idea. Age has the advantage, as the noble and learned Lord, Lord Wallace, said, that it is quite objective; people know how old they are. However, one characteristic which is not in the list of protected characteristics is socioeconomic background. I think that it is separate from the socioeconomic one and it depends on the utility of the information for the purposes at hand. The noble and learned Lord, Lord Wallace, has made the case that it is useful because of the decline in participation rates among older students. I do not think we know the significance of that decline. It has happened in an age group of whom many more have had the opportunity to participate in higher education when they were younger, and it is in that context that I would be uncertain whether it is of tremendous informational value. I am not against the amendment but I do not believe that it will yield very much additional information.

--- Later in debate ---

[Baroness Brown of Cambridge (CB)]

My Lords, I support the amendment proposed by the noble and learned Lord, Lord Mackay. As a former vice-chancellor of a university that, early in my tenure, did not always get its returns on student numbers to HEFCE correct, and was therefore subject to some stern discussions with the team at HEFCE and some refunding of income to it, I feel that Schedule 5 sounds potentially rather threatening—and I know that that is how others in the sector feel. While I recognise that such powers would be used only in exceptional circumstances, the addition proposed by the noble and learned Lord, Lord Mackay, would help provide reassurance to the sector that the greatest care and attention to detail would be applied if and when such powers needed to be invoked.

[Lord Stevenson of Balmacara]

My Lords, it is otiose to add very much to what was a wonderful account of the ramifications that one can get into when one moves to question some of the wording in the schedules to some of our more complex Bills. As a guide, the noble and learned Lord has been a wonderful education for a higher education specialist such as me. To have gone through a higher education Bill and then to have learned something right at the very end is a touch of magic—a bit of fairy dust that will sprinkle down across all of us. All we now need is for the noble Viscount to stand up and measure up to the relatively low but still quite precise hurdle that has been set for him. He is an elegant, small chap; he has light feet; he has had a brilliant career in dealing with difficult questions that we have thrown at him across the Dispatch Box. I am sure that this is well within his capabilities. He would be strongly advised, given the rather glowering face behind him, to do it right this time.

[Viscount Younger of Leckie]

My Lords, with that introduction, how can one fail? I thank another noble and learned Lord—this time, my noble and learned friend Lord Mackay—for his helpful and astute contributions on this issue both in Committee and on Report. We are very grateful for the expertise that he brings to bear. As my noble and learned friend said, this amendment has had an interesting history and has done the rounds, but, on a serious note, let me offer my apologies if the department’s letters to him on this issue have misunderstood his area of concern.

I shall briefly reiterate why the powers to enter and inspect higher education providers, set out in Schedule 5, are needed. These powers will allow suspected breaches of registration and funding conditions which are considered by a magistrate to be, to quote directly from Schedule 5,

“sufficiently serious to justify entering premises”,

such as financial irregularity, to be tackled swiftly and effectively through the new power of entry. This will safeguard the interests of students and the taxpayer, and protect the reputation of the sector. As the NAO said in its 2014 report on alternative providers, at the moment the department has no rights of access to providers, and this affects the extent to which it can investigate.

We agree that it is vital, of course, that strong safeguards are in place to ensure that these powers are used appropriately. As set out in Schedule 5 as drafted, a magistrate would need to be satisfied that four tests were met before granting a warrant: first, that reasonable grounds existed for suspecting a breach of a condition of funding or registration; secondly, that the suspected breach was sufficiently serious to justify entering the premises; thirdly, that entry to the premises was necessary to determine whether the breach was taking place; and fourthly, that permission to enter would be refused, or else requesting entry would frustrate the purpose of entry. These criteria will ensure that the exercise of the power is appropriately limited. Further limitations are built into Schedule 5, including, first, that entry must be at a reasonable hour, and secondly, that the premises may be searched only to the extent that is reasonably required to determine whether there is or has been a breach.

I believe that the thinking of the Government and that of my noble and learned friend is very largely aligned in relation to these safeguards. I fully understand that this amendment does not seek in any way to alter the conditions which must be met for a warrant to be granted, or prevent warrants being granted where they otherwise would have been. Rather, as my noble and learned friend has set out, the amendment makes a small change to the powers so that the search warrant to enter a higher education provider must state that all the conditions for grant of the warrant specified in Schedule 5 have been met. I am grateful for my noble and learned friend’s valuable contribution and have discussed this with him outside the Chamber and reflected on this matter very carefully. As he said, he spoke with my honourable friend in the other place, Jo Johnson, on this matter today, and with officials from HM Courts and Tribunals Service. I hope that these conversations were helpful. However, the Government remain of the view that this schedule should stand as drafted, as we believe that a requirement to state that the conditions have been met would not provide an extra legal safeguard.

We agree that it is imperative that the conditions in the schedule are fully met before any warrant is granted. However, we believe that this is already the effect of the Bill as drafted, specifically paragraph 1 of Schedule 5. Furthermore, paragraph 3(1)(f) already provides that the warrant must, as far as possible, identify the funding or registration condition breach which is suspected. We understand that, in the past, magistrates may have taken an insufficiently robust approach towards scrutinising warrant applications but, as I have impressed upon my noble and learned friend, the position is markedly different now: the specifics of applications are carefully scrutinised and it is not uncommon for warrants to be refused. I should acknowledge to my noble and learned friend that there may have been a misunderstanding as to the requirement for a magistrate to certify that the statutory requirements for the issue of a search warrant have been met. I want to reassure him that a magistrate will be required to set out the reasons for their decisions in writing, and to add their signature to their reasons. I accept that this may be described as a certificate.

I want to go into a little more detail, bearing in mind the comments of my noble and learned friend. He asked whether an application under Schedule 5 is within the ambit of the criminal procedure rules. The criminal procedures apply to a magistrates’ court,

“when dealing with a criminal cause or matter”.

Although an application for a warrant under Schedule 5 can be granted only where the breach under investigation is sufficiently serious, there is no requirement that the investigation must relate to possible breaches of the criminal law. However, in the absence of any specific guidance to the contrary, it is the practice of magistrates’ courts to deal with applications for a warrant to enter premises in accordance with the CPR and the criminal practice directions and using the prescribed form of application and warrant. Magistrates’ courts do not seek to make fine distinctions as to whether an application is civil or criminal. It is the nature of the application that is important.

As I said earlier, I can confirm that a magistrate will sign a separate form which certifies that the statutory criteria are met. In addition, of course, the magistrate will sign the warrant. With that reassurance, with the extra detail that I have set out and the reasons we believe this amendment is not necessary, I respectfully ask my noble and learned friend to withdraw his amendment.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, before the Bill does, I hope, indeed pass, I want to say a few words. At this milestone in the Bill’s passage, I, along with my colleague, the Minister in the other place, would like to take a moment—and I hope that noble Lords will indulge me as I use this term one last time—to reflect, and perhaps I should say reflect carefully, on how far it has come since being introduced to this House last November.

The Bill is the most significant piece of legislation that the higher education sector has seen in 25 years. As is fitting for such an important piece of legislation, we have heard powerful speeches from distinguished noble Lords, many of whom have held respected posts in our world-class higher education and research institutions, on key aspects of the Bill. For example, the importance of protecting institutional autonomy has been an area on which we have reached agreement. The amendments on this issue that were brought forward by noble Lords on Report, which the Government supported, were welcomed across these Benches. The Government listened carefully and responded on this issue, as we did on many others. I believe that the Bill is better as a result of this reflection. I look forward to continued discussions on the changes that the Lords is sending to the Commons, but I am truly grateful for the extensive debate, discussion and consideration of all aspects of this important piece of legislation from all sides of the House.

I express particular gratitude for the constructive engagement of numerous noble Lords. Before I forget, I want to thank my noble and learned friend Lord Mackay for his very kind words about my father. It was moving and I am very grateful. I start by thanking noble Lords opposite, particularly the noble Lords, Lord Stevenson, Lord Watson and Lord Mendelsohn, who have led the Bill from the Opposition Benches. The noble Baroness, Lady Garden, and the noble Lords, Lord Storey and Lord Addington, played a key role for the Liberal Democrats. A wealth of experience has been brought to bear from the Cross Benches: to name just a few, I thank the noble Lords, Lord Kerslake, Lord Lisvane and Lord Krebs, and the noble Baronesses, Lady Brown, Lady Wolf in particular, Lady O’Neill, who is in her place today, and Lady Deech. I also thank the right reverend Prelates the Bishops of Durham, Portsmouth and Chester. Of course, I thank my noble friends behind me: my noble and learned friend Lord Mackay, who I have mentioned already, and my noble friends Lord Lucas and Lord Selborne. Above all, I pay tribute to my noble friend Lord Willetts, who may or may not be in his place—I do not have eyes in the back of my head, I am afraid—whose higher education White Paper in 2011 paved the way for the reforms outlined in the Bill.

Finally, I thank my colleagues—my noble friends Lady Goldie, Lord Prior and Lord Young—for their admirable support throughout the passage of the Bill so far; I stress “so far” because there is a little way to go. I also thank the officials in the Department for Education and the Department for Business, Energy and Industrial Strategy, along with officials in the Home Office, the Cabinet Office and the Ministry of Justice who have supported the Bill. I particularly thank the officials in the higher education and research teams and the Bill team. Having mentioned all those departments, I think the Bill has been a great example of how departments can work together effectively. Once again, this House has demonstrated the value of the scrutiny it adds to the legislative process. While we are by no means at the end-point of the Bill, as I have said, I thank all those involved in reaching this significant milestone.

[Lord Stevenson of Balmacara]

My Lords, I gather from the Public Bill Office that the Bill may have broken all records for the number of amendments tabled during its passage. That is an indication of the interest it generated across the House, which allowed the House to play a full and important role, as just mentioned by the Minister, as we scrutinised every clause and, indeed, virtually every line.

The Minister was kind to say that he felt that the Bill had been improved in this process. Ministers do not always feel that way about Bills that have been torn to pieces and not always put back together in the form that they originally liked. He is right that there were things we could do with the Bill to make it, within the context of its overall shape and form, slightly better and more accommodating of the needs of the sector it was intending to regulate. As the Minister says, there is further to go and perhaps it will change again, but we have certainly made a lot of progress. My noble friend Lord Watson said earlier on another Bill that the work we had done here is what we do best. It is something your Lordships’ House should continue to do.

I add my thanks to those expressed by the Minister, starting with him and his colleagues—the noble Lords, Lord Young and Lord Prior, and the noble Baroness, Lady Goldie, who all contributed to various areas within the Bill—for their unfailing courtesy and willingness to meet and, of course, to write. We have the epistolary Minister in front of us, who writes letters almost as easily as he breathes. We benefited a lot from those because they were very detailed and gave us a lot of information. We also appreciate, as has been mentioned, the substantial involvement of the Minister for Universities and Science in the other place, who, unusually, is not here today but has been seen around as we have discussed the Bill.

I also thank the Bill team. They were very good at organising meetings and often anticipated what we needed. But they also produced some very helpful factsheets, which have not been mentioned but I found very useful. These were necessary, because for those not involved in higher education it was a bit difficult to get down into the detail of the Bill. The factsheets were very useful in exemplifying what was meant by the various regulatory frameworks and what the architecture would do in practice, and we found them very helpful.

My Front-Bench team was superb. I am grateful to my noble friends Lord Watson and Lord Mendelsohn, who covered large areas of the Bill and obtained many of the concessions now in it. Our legislative assistant, Molly Critchley—we have only one—was extraordinary and superb and kept us going with grids and other materials so necessary for an effective Opposition, as well as dealing with the Public Bill Office and all those amendments. We are very grateful for its work as well in that respect.

One of the greatest pleasures of the Bill has been the experience of working closely with the other groups in the House. We quickly discovered that our views on the Bill were shared by the Liberal Democrats and a substantial number of Cross-Benchers, and indeed some Members on the Government Benches. We found that by meeting regularly and sharing intelligence about what Ministers were saying in bilateral meetings, we could make better progress than perhaps would otherwise have been the case. As I approach the end of my current spell of active Front-Bench responsibilities in your Lordships’ House, the close working relationship we built up over the Bill is one of the memories I will cherish the most.

[Baroness Garden of Frognal (LD)]

My Lords, I add the thanks of the Liberal Democrat Benches to the Ministers—the noble Viscount, Lord Younger of Leckie, the noble Lords, Lord Prior of Brampton and Lord Young, and the noble Baroness, Lady Goldie—who have given such detailed contributions throughout some very tough debates on the Bill. I echo the appreciation expressed by the noble Lord, Lord Stevenson, to the Bill team for their engagement, briefings and meetings—and, indeed, their patience—in the course of the Bill.

We are most grateful that the Government have accepted and introduced so many amendments to the Bill, and we live in hope that the amendments agreed by this House will be confirmed by the Commons when the Bill returns to them. These include amendments on the issue of international students, on which the noble Lord, Lord Patten of Barnes, has a compelling article in today’s Guardian; to the teaching excellence framework; on safeguards for the quality of new providers; and on encouraging students to vote. We look forward to hearing the progress of my noble friend Lord Addington’s proposals for guidance for disabled students, and we hope that the Bill more generally will offer more opportunity to adult and part-time students.

Across the House we have all understood the need for teaching in universities to be accorded the same regard as research, but have sought ways which would encourage, rather than brand, institutions. We have seen it as imperative to maintain the worldwide respect of the UK’s higher education, while addressing any areas of shortcoming. I hope that the amended Bill will ensure that both teaching and research continue to flourish and offer learners—young, adult and, indeed, old—opportunities to develop and progress. We wish the ill-named Office for Students and the better-named UKRI every success, in the interests of the country, international collaboration and the individuals who work and achieve within our higher education sector.

I thank my noble friend Lord Storey for his tireless support and invaluable contributions on this and the Technical and Further Education Bill, and Elizabeth Plummer in our Whips’ Office, who provided us with immensely useful briefings. As the noble Lord, Lord Stevenson, said, we have certainly benefited from close co-operation with the Labour Benches and the Cross Benches, as well as those on the Government Benches who shared some of our concerns. Collaboratively, we have left the Bill much better than how it reached us. Once again, I express the thanks of these Benches for the way in which scrutiny has been conducted, and the hope that the final Bill may reflect the wide- ranging expertise and contributions of your Lordships’ House.