Higher Education and Research Bill

Lord Wallace of Tankerness Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 16th January 2017 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

110: Clause 9, page 6, line 14, at end insert—
“( ) the number of students who completed their course by each degree classification.”

[Lord Wallace of Tankerness (LD)]

My Lords, I will speak to Amendment 110 and also to Amendments 112, 117, 228 and 233 standing in my name. These amendments have been prompted by the discussions and engagement I have had with the Equality and Human Rights Commission. Obviously, higher education institutions are public bodies for the purpose of the public sector equality duty and, as a result, have existing obligations placed upon them under the Equality Act 2010. The concern that has been expressed, and which these amendments seek to address, is that in the very worthy objective of trying to promote transparency with the publication of equality data and to have participation plans with key equality objectives, because there is not a proper match between the requirements in the Bill and those under the public sector equality duty, higher education institutions may find that they are somewhat confused as to what their obligations actually are. They may well think that if they have satisfied the Office for Students, they have probably satisfied the public sector equality duty as well, only to find out that that may not be the case. I am sure the whole House would agree that when Parliament imposes obligations on bodies, it is not satisfactory that there should be confusion or lack of clarity as to their full extent. As I said, these amendments seek to address these issues.

Amendment 110 relates to the subject we have just been discussing: the mandatory transparency condition under Clause 9. Clause 9(2) relates to the information that will be sought, which covers most of the cycle of higher education provision including the number of applications for admission; the number of offers made by the provider in relation to these applications; the number of offers that were accepted; and the number of students who accepted those offers and who subsequently completed the course with that provider. Amendment 110 seeks to extend that to require the publication of information on the grade of degree that those who completed the course achieved.

In many respects, that is an important part of the information that would be provided, for obvious reasons. Look at the situation. It is all very well saying, “Here is the number of students who applied and here is the number with different characteristics”—I will come later to the characteristics that are relevant—“Here is the number who were given offers and here is the number who completed the course”, but it seems crucial to have some information as to what level of degree they achieved. For example, the information given to me is that, in 2013-14, a higher proportion of white undergraduate students achieved a First or a 2.1—76.3%—compared with 60.3% of ethnic-minority undergraduate students. The gap was particularly high among male undergraduate students. As we well know, very often the higher the degree, the greater the potential for higher earnings at a subsequent stage. If one is seeking to embrace the Government’s objective of greater social mobility and employment for disadvantaged groups, it is important to have that information. If it shows disparity—and a continuing disparity—clearly that is something that the institutions need to address to see how they can achieve greater parity among different students from different backgrounds.

Amendment 112 relates to the characteristics for which information should be sought. At present, the Bill seeks information on the gender and ethnicity of the individuals to whom the numbers relate—it goes only as far as that. This takes me back to my original point. Those are only two of the personal characteristics that are covered by the Equality Act 2010. The amendment seeks to remove Clause 9(3)(a) and (b) and extend the definition to include,

“the particular protected characteristics of the individuals to which they relate”.

Amendment 117 defines “protected characteristics” as those listed in Section 149(7) of the Equality Act 2010. Again, this goes further than is proposed in the Bill, but it appears to me to be relevant. I seek to argue—and hope that the Government have some sympathy with this—that characteristics such as age, and perhaps particularly disability, are important, as well as ethnicity and gender. A Government who seek to address issues of discrimination against people with disabilities would, I hope, be sympathetic to including disabilities within the definition in Clause 9.

The Secretary of State for Business, Energy and Industrial Strategy last year asked the Director of Fair Access to target his focus on access, retention and outcomes for students with specific learning difficulties or mental health needs. There is a concern that this objective and very worthy goal could be compromised if the Office for Students does not in turn require higher education institutions to submit data on disability. The Minister in the other place said that it was a personal matter of self-declaration, and that seemed to be the barrier to including it here. However, all personal data, including those on gender and ethnicity are self-declared. Public bodies should be able to create the kind of environment where people feel safe and able to self-declare so that the data can be used and will be useful.

I hope that the Government will accept the spirit of this amendment. My concern is that if only two of the personal characteristics have been singled out, will higher education institutions feel that they have fulfilled their obligations in circumstances where other important personal characteristics are not also included?

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[Baroness Goldie]

My Lords, I thank noble Lords for their contributions, which have certainly provoked thought. The amendment of the noble and learned Lord, Lord Wallace, to include data on attainment and the transparency duty raises an interesting and important point. For example, there is a difference between the proportion of white students and BME students obtaining a First or a 2:1. Another aspect of that was raised by the noble Baroness, Lady O’Neill. That is why we asked the Director of Fair Access to look at unexplained differences in degree attainment in our most recent guidance. While we know the sector takes this issue seriously and has acted, problems persist. We will reflect on the noble and learned Lord’s amendment, which raises a significant point.

Amendments 111, 112 and 117 would mean that all eight of the protected characteristics to which the public sector equality duty under the Equality Act 2010 refers would be included in the transparency duty. This would expand it considerably to include age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation. The transparency duty is focused on those characteristics where the greatest impact can be achieved through greater transparency and where comparable and robust data are available. Such data are not currently available for all the protected characteristics. The Equality Challenge Unit has shown that information on religion and belief, sexual orientation and gender reassignment was unknown for more than half of all students in higher education. With such low returns, comparing institutions using such data as are there would be both unreliable and unfair.

The noble and learned Lord, Lord Wallace, raised the important issue of disability. That will be extensively covered under the following group of amendments at Amendment 110A and, with his leave, I will deal with that issue specifically in the next group of amendments.

Under the transparency duty, gender, ethnicity and socioeconomic background are captured. Universities may voluntarily publish further information if they wish. Again we have been mindful of the need to be proportionate when making this new legislation.

There is also a risk that by including protected characteristics, the transparency duty confusingly begins to resemble aspects of the existing public sector equality duty. Institutions may operate under the misapprehension that by complying with the transparency duty, they have met the requirements of the public sector equality duty. That would not be the case because the PSED is a vital policy, underpinned by the Equality Act, and requires institutions to publish information to show their compliance with the Equality Act. In addition, it requires institutions to publish equality objectives to demonstrate that they have consciously considered the aims of the PSED as part of their decision-making processes.

The noble Baroness, Lady O’Neill, raised a very important and significant question: are English higher education providers public sector bodies? I know that the noble Baroness, earlier in our consideration of the Bill, asked about the definition of “English higher education providers”. I would be very happy to respond to her on the additional question on higher education providers as public sector bodies when we write to her in response to her first question. I hope she will find that acceptable.

The transparency duty, in contrast to the public sector equality duty, is deliberately discrete and narrowly focused on widening access to higher education by shining a spotlight on universities’ admissions records. These two duties are designed to be complementary. We expect the sector to comply with both duties wherever relevant. This will be made clear in guidance issued on the matter by the OfS.

I turn to Amendments 228 and 233. An access and participation plan is a condition of registration for those fee-capped providers charging fees above the basic fee level. That means that the OfS can apply sanctions for failure to comply with registration conditions. Let me make it clear that, in order to be approved, access and participation plans must include provision relating to equality of opportunity. Amendment 233 would have the effect of limiting efforts to widen participation through access and participation plans by reference to protected characteristics only, and this does not take into account the importance of action to support those suffering from other disadvantages, such as care leavers or people who are carers, or those with disadvantaged socioeconomic backgrounds entering higher education. I do not consider that there is benefit to be gained by duplicating reference to the Equality Act in this Bill, given that compliance with the Equality Act is already required by law.

On the other amendments, I assure noble Lords that we believe the Bill already delivers the policy intent behind amendments 236A and 236B. The OfS will be required, through Schedule 1, to provide an annual report covering all its functions. Given that the OfS will have a general duty covering equality of opportunity in connection with access and participation, we expect this to feature prominently in its annual report. Clause 36 allows the Secretary of State to direct the OfS to report on equality of opportunity issues if there are specific concerns.

I trust it is clear that the Government take very seriously equality of opportunity through this Bill and the duties on institutions set out by the Equality Act. In the light of my comments, I ask the noble Lord to withdraw Amendment 110.

[Lord Wallace of Tankerness]

My Lords, I am very grateful to all noble Lords and noble Baronesses who have taken part in this debate, particularly the noble Baroness, Lady Goldie, for her reply. In the noble Baroness’s first point she indicated that she would be willing to look at the issue of attainment, and she herself echoed the points that I made about the different levels of attainment between students, particularly male students from both white and BME backgrounds. There is an issue there and I am grateful to her for agreeing to look at it.

The noble Baroness also made the point that we do not need the whole range of personal characteristics; obviously, some were more personal than others. She made the point that in trying to promote transparency there might be a limited value where information is not always readily forthcoming. That is something I obviously want to reflect on and discuss further with the Equality and Human Rights Commission. It is a personal point; I am not saying that it is a killer point.

The point that the noble Baroness did make, and it was the one that I was trying to make too, was that there was a concern that some higher education institutions may well feel that by meeting their obligations under the transparency requirements, that would somehow mean that they met the public sector equality duty. She made it very clear that that was not the case: they are two separate things. The fact that she made it clear is helpful, but I think she will recognise the point that has been made, that there is still the opportunity for confusion.

The point which the noble Baroness, Lady O’Neill, made about what constitutes a public body was very pertinent. Obviously, it is accepted that HEIs in England are subject to that duty under the Equality Act, and this was only to put it on a par. An interesting question is whether those which are, perhaps, coming into the market and registered abroad would be subject to the same extent of equality duties under the 2010 Act. Certainly, my amendments would take away any dubiety in that regard, but it is still a point that probably needs to bottom out. The points made by the noble Lords, Lord Willetts and Lord Kerslake, are important; I have heard them rehearsed already at previous stages. I do not think they are particularly pertinent to this set of amendments because we accept and agree that the PSED actually applies at the moment. There would not be any extension in that regard.

With respect to the second set of amendments, about the participation plan, I hear that the Minister’s point is that it might actually be limiting to go down the route of the definition that I have proposed. I certainly would not wish to limit plans brought to increase participation. Again, that is a pertinent point that I would like to reflect on. This debate has been useful, and some important issues have been raised, but in the light of the Minister’s comments, I beg leave to withdraw the amendment.

Amendment 110 withdrawn.

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[Baroness Goldie]

I am very grateful to the noble Lord for raising that point; it is something of which I was unaware and it seems an important matter. We will reflect not only on the comments that he has just made but on those made by others of your Lordships during the debate. I undertake to write to the noble Lord on the specific point which he raised.

[Lord Wallace of Tankerness]

The Minister spoke again about the problems of self-declaration in relation to disability and personal data, but personal data on ethnicity and gender are also self-declared. Is she saying that data in those two regards are much more reliable than they are for disability and, if so, what is the Government’s position? By how much are they more reliable? Should we not accept that it is the same principle?