Secondary Schools: Counselling Services

Lord Watson of Invergowrie Excerpts

Monday 20th February 2017 Lords Chamber

[Lord Nash]

We have committed an additional £1.4 billion for mental health services for children, young people and new mothers over the course of the Parliament. We are developing a Green Paper and as I said, we have asked all CCGs to submit their plans. We have extended our joint training pilot scheme and the Prime Minister has committed to strengthening the accountability of children and young people’s mental health provision.

[Lord Watson of Invergowrie (Lab)]

My Lords, I can tell the House that schools are not providing counselling for financial reasons. The Conservatives’ 2015 election manifesto said that school funding would be protected. It is not. For the first time in 20 years, it is being protected in only cash terms, not real terms, which is leading to teacher shortages and failure to provide support services. The education services grant is supposed to provide such services, but it has been subject to savage cuts. Will the Minister tell the House how he really expects schools to respond to the increasing demand from children with additional needs, when the schools do not have the funding to provide for it?

[Lord Nash]

A number of support systems and toolkits are available in the department. Any school that uses our toolkits, particularly following the new fairer formula we are bringing in, should be able to manage on their budgets.

Education: Maintained and Independent Schools

Lord Watson of Invergowrie Excerpts

Thursday 9th February 2017 Grand Committee

[Lord Watson of Invergowrie (Lab)]

My Lords, I too thank the noble Lord, Lord Lexden, for sponsoring this debate and pay tribute to him for the pithy way in which he introduced what has been an interesting debate. I may surprise quite a few people, not least in my own party, when I say that I believe that independent schools are currently doing quite a good job in terms of partnership work with maintained schools. That is not to say that more cannot be achieved because it always can, but given that 1,112 schools out of 1,280 members of the Independent Schools Council are already engaged in partnerships in varying forms with state schools, then that at the very least demonstrates a willingness to engage. That engagement is of course by both sectors because, as the noble Lord, Lord Lexden, said, there is value that both can derive from these partnerships.

The facilities that private schools have can be of particular benefit; by that I mean not just the recreational facilities referred to by noble Lords, but teachers specialising in the creative arts, from the performing arts to fine art, music tuition to film and media. All too rarely do maintained schools, or academies for that matter, have anything like the range of subjects available in the independent sector and it is right that in return for the benefits of charitable status, private schools should make a contribution in whatever way they can. It is to be hoped that the traffic is two-way in a physical sense also. While there are benefits for state school pupils attending classes at independent schools in subjects that are perhaps not available in their own school, it must also be of value for teachers in independent schools to visit publicly funded schools not just to impart knowledge and skills but to gain a better understanding of the conditions under which their state sector counterparts operate.

There has been an increase in the amount of crossover activity since the passing of the Charities (Protection and Social Investment) Act 2016, referred to by both the noble Lord, Lord Addington, and the noble Lord, Lord Wallace of Saltaire. That legislation has led to an increase in the extent to which independent schools engage with local communities and state schools to share resources, expertise and facilities. It has also resulted in the development of a website called Schools Together which promotes and encourages partnership working between schools. It now has the added benefit of being a resource to which any school, state or independent, can refer if they want to gain a clearer impression of what kind of joined-up activities can be established.

That was then, but it is fair to say that to a significant extent the landscape changed with the publication last September of what the noble Lord, Lord Lexden, pointedly called the Government’s “remarkable” consultation paper, Schools That Work for Everyone. He talked of the paper’s stated ambition to create an education system that serves not just the privileged few, and I think he exposed the vapidity of the document’s title. I agree with him, but I have a more fundamental complaint about the consultation paper—its very title. I have raised this with the Minister before: to name it Schools That Work for Everyone is a cruel deception because not once in its 36 pages do the words “special educational needs and disabilities”, appear. So whoever it works for, it is not everyone.

The consultation paper was remarkably strident about the independent sector in referring to what was expected of it, adopting a tone that I think everyone noticed was markedly different from that of the aforementioned Charities Act, when the Government were much more sympathetic to private schools. Perhaps the change in approach had its roots in the fact that for the first time ever we have a Prime Minister and a Secretary of State for Education who were both educated at comprehensive schools. Yes, the Prime Minister attended a grammar school, but she was in the privileged position—even though I suspect it may not have seemed that way to her at the time—of experiencing a school making the change from a grammar school to a comprehensive.

While acknowledging that partnership working was under way, the consultation paper came up with the hitherto unknown idea of telling independent schools with the capacity to do so to sponsor academies or set up new free schools and be responsible for ensuring that they were rated good or outstanding within a certain period. Alternatively, they could offer a proportion of places with fully-funded bursaries to those whose families are unable to afford the fees. The Independent Schools Council showed an ability to think outside the box and proposed the creation of up to 10,000 free places in independent schools every year for children for whom those schools would not otherwise be an option. As in many similar situations, though, there was a catch: it would be a jointly funded bursary scheme to which the Government would contribute no more than the cost of a state school place. The independent school places will be available across the age groups and will be non-selective except in terms of ensuring that a child can cope with the independent school’s expectations, although what that may mean was not explained.

Sceptical as to its ability to establish new schools, which of course is not an area in which it has expertise, the ISC offered to,

“work with ministers, regional schools commissioners and others in putting together consortia of suitable and willing independent schools to help co-sponsor new state-funded schools”.

On the basis of the ISC’s proposal, the cost to the taxpayer would be £5,500 per child, roughly the amount that state schools receive annually for a pupil. However, average private school fees are around £15,500, so funding would be subsidised by the private sector by around £80 million a year. That is a sizeable amount to target at state-educated children and should not be dismissed lightly, but it raises the question of just who would benefit from the plan. It sounds remarkably similar to the assisted places scheme in the 1980s and 1990s which required children to pass ability tests. As a result it did not help poor children so much as bright children who happened to be poor. The ISC claimed that the scheme would be non-selective, but if so, how will children moving from the state sector to the independent sector be chosen? Bright children tend to do well wherever they are educated, and creaming off the top of the state sector, as grammar schools do, achieves little more than those left behind being denied the benefit of learning beside and gaining from their more able classroom colleagues. That is why comprehensive education was introduced and despite its current problems, many of which I remind the Minister could be solved by adequate funding, its benefits far outweigh the disadvantages.

We recognise that the Independent Schools Council has made meaningful proposals in this regard, but we remain sceptical about the contention that independent schools can have much of a direct impact on standards of education in state schools. Private schools are academically successful largely because they educate the children of the wealthiest section of society who have enormous social capital. Private schools can afford to sustain small class sizes, have the benefit of substantial resources to support their pupils’ education, and pay staff salaries with which the state sector often cannot compete. There can be no comparison with the challenges that state comprehensive schools face, particularly those serving the most disadvantaged communities.

For that reason, while it is understandable that the Prime Minister and the Secretary of State believe that the independent sector should be asked to justify the benefits of their charitable status, we believe that establishing new schools or sponsoring academies is not the way to do so. On the other hand, partnership working should continue to expand, to the benefit of both sectors.

Technical and Further Education Bill

Lord Watson of Invergowrie Excerpts

2nd reading (Hansard): House of Lords
Wednesday 1st February 2017 Lords Chamber

[Lord Watson of Invergowrie (Lab)]

My Lords, it is a pleasure to welcome back the noble Lord, Lord Nash. We have missed his wit, his repartee and his general joie de vivre during the long hours that we have spent on the Higher Education and Research Bill. However, perhaps we should acknowledge his skills at delegation, because he has certainly dodged a bullet with that monster of a Bill and its 500-plus amendments.

I also welcome for the first time the noble Baroness, Lady Vere, to her position as a Whip on an education Bill. We know that she has the credentials but she has a hard act to follow: the last noble Baroness to hold that position used it as a launch pad directly into the Cabinet—so there is no pressure there.

We turn to our consideration of a Bill that is rather more modest than the one to which I have just referred, although not in terms of its aims, because it is hoped that it will have far-reaching consequences for those young people largely outwith the scope of the Higher Education and Research Bill. We are broadly supportive of what the Bill aims to achieve, although we believe that it will benefit from being strengthened in several areas. Labour presided over a significant expansion of further education, allowing thousands of young people across the UK to develop new skills and gain valuable qualifications. We continue to believe in the value of apprenticeships and that students should be able to choose from a range of quality courses.

The Bill contains proposals to implement measures contained in the post-16 skills plan, as the Minister said, and it also allows for an insolvency regime and anticipates the devolution of the adult education budget to combined authorities. All that is well and good but none of those issues can be divorced from the current financial health of the sector. By the sector, I mean post-16 education and training in general, which is very much the poor relation when compared with the funding directed at 11 to 16 year-olds and, indeed, higher education. The average funding per student in the sixth forms of schools and academies and in sixth-form colleges is now 20% less per pupil than the funding received to educate each 11 to 16-year-old and 47% less than the average university tuition fee. Perhaps the Minister can explain why it should cost so much less to educate a 16 to 18 year-old than a 15 year-old or a 19 year-old.

Despite what the Minister said in his opening remarks, the facts are that the sector is inadequately funded. Over the past five years, funding has seen a real-terms reduction of 14%. The allocation for 2015-16 fell further as a result of the 2015 summer budget, which reduced the non-apprenticeship part of the adult skills budget by an additional 3.9%. The worry is that the ongoing area reviews could move beyond the mergers announced so far and lead to actual further education college closures.

However, it is not only further education colleges that are feeling the strain. Last September, the Sixth Form Colleges Association reported that two-thirds had dropped courses as a result of funding pressures and three-quarters had limited the size of their study programmes. Eighteen months ago, the National Audit Office reported that more than 100 colleges had run a deficit in 2013-14. No doubt that was a major motivation for the Government in framing Chapter 2 of the Bill, which deals in some detail with the consequences of insolvency—however unlikely, as the Minister said, that may be, as I certainly hope is the case.

The Bill takes an important new step in outlining the college-specific insolvency regime and should bring greater certainty through a clear legal framework. Having a new type of administrator with responsibility for handling cases and to work to protect the interests of students is important. During insolvency, colleges would either be kept going or students would be transferred to an alternative provider, but we would like assurances that the proceedings do not disproportionately impact on students from low-income backgrounds, nor deprive teaching staff of a fair redundancy deal or access to their pensions.

The question is: why should such provisions be necessary? Prevention is surely always better than cure, and we believe that it would have been much more sensible, and indeed far sighted, had the Government decided to fund the sector adequately—on even, say, 75% of the rate per student in the higher education sector—rather than needing to prepare a large supply of sticking plasters ready to apply if and when accidents happen.

Although the Minister may dismiss criticism from these Benches, he cannot so easily do that with regard to non-political bodies such as the Institute for Fiscal Studies. Two days ago, that body warned that the Government’s target to increase the number of apprentices risks being “poor value for money”, suggesting that increasing the number of apprenticeships could come at the expense of quality. It expressed concern that the apprenticeship levy and its targets risk repeating the mistakes of recent decades by encouraging employers and training providers to relabel current activity and seek subsidy rather than seeking the best training. These are serious concerns that we believe the Government need to address.

As I stated earlier, further education is the poor relation in education. I take no pleasure in saying that it seems to be the poor relation in your Lordships’ House too. Only 17 Back-Benchers have thought it worth while participating in this debate. Two months ago, five times that number took part in the Second Reading of the Higher Education and Research Bill, most, it has to be said, prefacing their remarks by declaring interests if not as practising academics then as chancellors, masters, members of court or holders of other senior positions in institutions. I mean no disrespect to noble Lords in the Chamber when I wonder how many will be required to do likewise today. However, we do have among us two former Secretaries of State for Education, as well as the redoubtable noble Baroness, Lady Wolf, whose reports of 2011 and 2016 contain much sage advice.

The Minister will no doubt refer me to the figures mentioned by the Government on what is being spent on apprenticeships. A figure of £1.5 billion is not to be dismissed—and we do not dismiss it—and of course the apprenticeship levy is expected to realise a further £2.9 billion by 2020. However, I have to say in passing that, although we on these Benches applaud the Government’s initiative in introducing the levy, few employers have done likewise. It is at least interesting to speculate what would have happened had a Labour Chancellor made that decision. I suspect we would have been labelled “anti-business” by the Government’s friends in the media. However, despite squeals from some employers, it seems that the Mail, the Telegraph and the Sun have been strangely uncritical.

The institute will have responsibility for the regulation of all technical learning and for implementing the post-16 skills plan and the 15 technical routes, stemming from the report by the noble Lord, Lord Sainsbury. But will the institute have adequate resources? It has not even come into operation yet but already it will have its remit increased from April 2018. Various major players in the sector, such as the Association of Colleges, the Sixth Form Colleges Association and the University and College Union, have concerns as to whether it will have the capacity to manage its new responsibilities effectively. It will be required to improve access and quality in the apprenticeship programme, while redesigning technical qualifications and establishing the employer panels. At the last count, the institute had 40 employees. Even with the best will in the world and a great deal of overtime, that seems a tall order. The Minister would ease many of the concerns by assuring noble Lords that additional resources, not least staff, will be made available to the institute.

There is also the issue of a crowded field when it comes to oversight. The Bill provides for roles for the institute, Ofsted, Ofqual and the Office for Students. Ofqual regulates English and maths qualifications, which will form an important part of the technical education programmes regulated by the institute, which also has overlaps with the OfS and Ofsted. These issues will need to be resolved, and we will look to progress that in Committee.

Further, there is the question of representation on the institute’s board. We do not question the proposal that it should be employer-led, but there should also be a presence from the sector itself, in the form of the colleges, the staff who work in them and those who are learning—both apprentices and students. The institute will be required to establish an apprentice panel and, next year, a technical students panel. The mechanism for doing so remains to be agreed, but these panels will be ideally placed to have a representative on the institute board. Again, these are issues that will exercise us in Committee.

Clause 23 and Schedule 2 make provision for the transfer of college property and assets in the event of administration. Colleges and their estates are significant public assets which we believe should remain in the public sector for the benefit of local communities. We require assurances from the Minister that public assets will not be transferred to private, for-profit companies. This issue is one that he will recall me raising with him with regard to academies, and the potential pitfalls are similar. Academies are permitted to dispose of public land only with the express permission of the Secretary of State, and I anticipate the Minister will offer similar assurance as regards colleges. But we will seek additional protection to ensure that public assets are kept in public ownership. One means of achieving that could be to give the local authority special status as having a significant interest in the continuation of education in its area.

We know that careers advice in schools is rarely of the standard necessary to give young people the full range of options open to them. Too often, schools simply want as many of their students as possible to go on to university because it looks good in the figures they present to the Department for Education. However, it ignores the fact that for many young people a vocational or technical route is much more appropriate and probably more rewarding in both senses of the word.

There is also a need for further education students to receive careers advice and I have looked to see what the Bill has to say on that. A word search produced precisely nothing. I checked the Explanatory Notes—nothing. How can that be? A careers and enterprise company was established by the Government with a £90 million budget for this parliamentary term to provide this sort of advice. It has a remit for further education as well as schools and yet many colleges are not covered by it, and none in London. Why is coverage not universal? Surely that is the ultimate aim. We need a timescale for that to happen and it should be quick. I hope the Minister will be able to answer that question in his closing remarks but, if not, again he will be invited to answer it in Committee.

One word that appears regularly throughout the Bill is “regulations”. It seems that every Bill we consider with a connection to education has that word running through it like a stick of Blackpool rock. Here we have provisions for the Government to issue regulations on a variety of topics, from disqualification of further education college governors to the fees that can be charged by the institute, and from college insolvencies to the transfer of property and other assets. I have said consistently in the past that much too much legislation is of a secondary nature and we shall see what the Delegated Powers and Regulatory Reform Committee of your Lordships’ House has to say about this Bill. On past form it can be anticipated that it will not be enamoured of it.

There is so much background available on apprenticeships and technical education that it is difficult to keep abreast of it. Only last week we had the latest entry into that territory in the shape of the industrial strategy White Paper and the suggestion that there should be technical universities, whatever that might turn out to be. I wonder whether the noble Lord, Lord Baker, had a wry chuckle when he heard that, given his role in establishing city technical colleges three decades ago. As ever, I await his contribution with great interest.

We shall adopt a constructive approach to the Bill in Committee. In presenting Labour’s case for a stronger technical and further education sector, our Front Bench team want to shape the Bill so that it increases the options available to students and delivers the safeguards needed to allow colleges to deliver quality teaching. The sector and those it prepares for working life deserve nothing less.

--- Later in debate ---

[Lord Nash]

My Lords, we have heard many expert contributions from noble Lords with considerable collective experience of education, which I found extremely helpful. My colleague Mr Halfon, the Minister for Apprenticeships and Skills, has been present throughout the debate and has already told me that he found the contributions very thoughtful. I am sure he also found the debate very instructive. I have no doubt that the scrutiny this House will provide will further strengthen the Bill. As I said, I am very grateful for the points that have been made. I will respond to as many as time will allow, and write to noble Lords on those points that I cannot cover. I look forward to discussing the issues further in Committee.

A number of noble Lords raised the important question of status. I agree that we desperately need to raise the status of technical education, and ultimately to achieve parity with academic routes. We have a long way to go to achieve this, although I believe that the Bill is part of what the noble Baroness, Lady Wolf, called a serious reversal of the current situation. Many noble Lords, including the noble Baroness, Lady Wolf, the right reverend Prelate the Bishop of Norwich, my noble friend Lord Leigh, the noble Lord, Lord Watson, and my noble friend Lord Lucas raised the important question of quality. The core aim of the apprenticeship reform programme is to improve the quality of apprenticeships in England. All reformed apprenticeships will be based on a standard which has been designed by employers, giving them the opportunity to set out the skills, knowledge and behaviours that their apprentices will need to be fully competent. Over 490 standards have either been developed or are in development, involving 215 groups of employers. Instead of being assessed through a number of small, low-quality qualifications throughout the apprenticeship, in future apprentices will be tested at the end of their apprenticeship by a new rigorous assessment, also developed by employers, to really test that they can do the job. No one will be able to pass their apprenticeship unless they have met this new high bar. We have introduced new quality criteria which providers have to meet before they can be approved to deliver training as part of an apprenticeship, and Ofsted, HEFCE and QAA will continue to quality assure the training as it is delivered. The Skills Funding Agency will also continue to monitor outcomes and intervene where it has concerns.

A number of noble Lords, including the noble Baroness, Lady Morris, and the noble Lord, Lord Hunt, raised the potential problem of being fixated on targets. The 3 million target is an important galvanising force and a statement of intent but our reforms are absolutely about quality, not just quantity. Good progress is being made on the set-up of the institute and we fully expect it to be able to carry out its apprenticeship functions from April this year. Last week, we announced the institute’s board members. I am extremely grateful to my noble friend Lord Baker for his very high praise for the board members. We have also published the institute’s draft operational plan, which sets out how it will carry out its functions. This follows the publication for consultation earlier this year of the Secretary of State’s draft strategic guidance letter to the institute for 2017-18, which outlines the policy parameters within which the institute should operate. The recruitment of the senior team is going well. The interim chief executive and deputy chief executive are in place, six permanent deputy director roles have been filled and all will be in post in April, and a permanent chair will be announced very shortly. Job advertisements for the chairs of the institute’s route panels are out now, and interviews will take place before the end of the year.

A number of noble Lords asked whether the institute will have adequate resources. The final size and structure of the institute is still to be determined, but we expect that around 60 to 80 staff members will be appointed. I am sure that my noble friend Lord Leigh will be pleased to hear about the appointment of Paul Cadman to the board of the institute. He is the CEO of a training provider.

The noble Baroness, Lady Morris, the noble Lord, Lord Hunt, the right reverend Prelate the Bishop of Norwich and others talked about overlap with other bodies. We are confident that the institute will have a clear and distinct role in technical education. Instead of embarking on a mammoth merger of the different bodies, the Government are asking Ofsted, Ofqual, HEFCE and the QAA to work together collaboratively towards a common goal. We have explained in our draft strategic guidance for the institute that we will expect it to play a leadership role in the context of apprenticeships, including establishing a quality partnership group. This is also referred to in the institute’s draft operational plan published last week. To ensure the roles are distinct and transparent, we are preparing an accountability statement that will make the bodies’ responsibilities clear and avoid overlap or gaps.

A number of noble Lords, including the noble Lord, Lord Watson, raised the point about representation. The shadow institute is establishing route panels, which will be aligned to the technical education routes—which are groups of occupations—and will review and approve proposals for new occupational standards and the standards and assessment plans themselves.

The noble Lord, Lord Aberdare, asked about the constitution of the panels. They will be largely made up of institute staff but will include a range of experts with knowledge of the occupations within a particular route and could include employers, academics, professional bodies, sector and trade organisations, and national colleges or other training providers. The institute is also required by legislation to ensure that all standards and assessment plans have been subject to independent, third-party scrutiny. The draft strategic guidance sent to the institute sets out that it should involve a wide range of interested parties in this process.

A number of noble Lords, including the noble Lord, Lord Addington, my noble friend Lady Stedman-Scott and the noble Earl, Lord Listowel, raised the question of technical education for vulnerable students. Technical routes will be fair and accessible to young people with SEND and care leavers, and reasonable adjustments will be made to enable them to take part and succeed. When such young people cannot access a route because of prior attainment, they will have a “transition year”, which will be flexible and tailored to individual need, with additional support to ensure that care leavers and young people with SEND complete their courses and move on to the next stage of their learning. This “transition year” will help young people from all backgrounds, ability levels and personal circumstances to gain the skills they need to enter employment.

My noble friend Lord Leigh and the noble Lord, Lord Aberdare, raised the question of representation of apprentices. To ensure that the institute represents the views and interests of apprentices, it will establish an apprentice panel by 1 April, which will report and make recommendations directly to the board. This panel will be made up of apprentices from different occupations and experiences, and it will decide for itself what issues it will focus on.

On copyright, which was raised by my noble friend Lord Lucas, the noble Lord, Lord Aberdare, the noble Baroness, Lady Garden, and others, under the reforms it is our intention that there will be one qualification per occupation or group of occupations. Employers and other professionals will play a significant role in determining the content of the new qualifications, with the support and input of the institute. The institute will have the final say over approving these qualifications and their content. It is therefore appropriate that copyright for relevant course documents should rest with the institute. The institute is empowered to grant any person, including that organisation, a licence to use the qualification for a specified period or potentially to be used for other markets; that is, internationally. As a public body, the institute is under a duty to act fairly and transparently.

We recognise that this is a significant departure from the current system, whereby awarding organisations are free to decide on the qualifications they offer and on their content. We know that copyright is an important feature of the current system. However, I reassure noble Lords and awarding organisations that the copyright measures in the Bill are not intended to disadvantage them. To make sure that the new system is fair and transparent—and that it remains an attractive commercial proposition—we want to work with awarding organisations and others. We want to hear their views on these arrangements; for example, what the length of a contract should be or exactly which documents should be the subject of copyright. It is instrumental to the reforms that the institute, rather than organisations, dictates the content of the qualification. We believe that this will help drive up competition and keep the market active. Organisations whose qualifications were not approved in one round will be able to improve their qualification and its delivery and bid in another round. They would be prevented from doing so if copyright were not vested in the institute.

A number of noble Lords, including my noble friend Lord Lucas, raised the point about the single awarding body. To bring the system in line with the best in the world and ensure excellence in technical education, the noble Lord, Lord Sainsbury, recommended a single awarding organisation per qualification. The proliferation of qualifications has in the past led, as we all know, to a race to the bottom and a decline in standards.

The noble Baroness, Lady Garden, asked about certificates, as did my noble friend Lord Lucas and the noble Lord, Lord Aberdare. The institute will have overall responsibility for apprenticeship certificates. It will work with the SFA to design a high-quality apprenticeship certificate that will be awarded to learners who successfully complete their training. Every apprentice will receive the same design, and in time, learners who pass an approved classroom-based course will also receive a similar institute-designed certificate. The institute is by no means an awarding organisation, and a certificate will be given only when the assessment organisation has confirmed that the apprentice has passed their end-point assessment and this has been validated by the SFA.

Approving certificates for standards will be much less bureaucratic than for frameworks; indeed, the SFA took on responsibility for the certification of apprenticeship standards at the start of this year, and the cost will be covered by the employer, not the apprentice.

My noble friends Lord Baker and Lady Stedman-Scott and the noble Lord, Lord Hunt, asked about pupils moving at 14. Young people can choose to focus on technical education at various ages and stages. Between the ages of 14 and 16, young people can study technical awards alongside their GCSEs, and of course they can enrol at a UTC, to which a number of noble Lords referred.

I am grateful for the endorsement by the noble Baroness, Lady Wolf, of the insolvency measures in the Bill. I will reflect on how we might consider the independent provider sector and how best to protect students—a point my noble friend Lord Lucas also made. HE and FE sectors have different characteristics, so it follows that they might need different approaches to student protection in the event of insolvency. The Higher Education and Research Bill requires student protection plans to be put in place by providers. Both SPPs and the special administration regime have the same objective of student protection, albeit by different means. The likelihood of insolvency of independent training providers is low; the SFA oversees a rigorous process through approving and monitoring independent providers, which subject financial returns to the SFA. Independent providers eligible to offer student loans are subject to the SFA’s policy on intervention, which is triggered by Ofsted inspection or not meeting SFA standards. We have put into intervention that it may have to take remedial action, with the potential effects on learners taken into account. As companies, independent training providers are already subject to insolvency law and, like public providers, private providers are already subject to obligations in their funding agreements which they have with the Government, which require them to protect the interests of students.

On more detail on private providers, the noble Lords, Lord Watson and Lord Aberdare, raised the question of the private sector from slightly different directions, as one might expect. The private sector already provides a significant amount of education and training very effectively. It is true that transfers can be made to private companies. However, I recognise the concern that assets which may have been paid for by the taxpayer, and for the purposes of providing education, should not then be transferred to the private sector on the cheap. I reassure noble Lords this is not the case. The Bill provides four key protections, acting as a quadruple lock, should the education administrator deem it necessary to make a transfer scheme for the property, rights or liabilities of an insolvent FE body.

First, the education administrator is restricted in who they can transfer the assets to. These bodies are prescribed in secondary legislation and are public sector bodies with educational functions, colleges and similar public-funded educational bodies. Transfers may be made to private companies, but if so, the company must be established for the purposes, which include the provision of educational facilities or services. Secondly, any transfer scheme must be for the purposes of achieving the special objective; that is, it must avoid or minimise disruption to students. Thirdly, creditors have a right of challenge should they consider that the education administrator is not working to fulfil the objective of achieving the best result for creditors as a whole, so far as is consistent with that special objective with regard to students. Finally, the Secretary of State or Welsh Ministers must approve the proposed transfer scheme. Any approval will include, among other matters, consideration of whether it is for the purposes of achieving the special objective.

The noble Lords, Lord Watson and Lord Young, mentioned the IFA’s assertion that most money raised through the levy will not be spent on apprenticeships. We disagree with this. By 2019-20, spending on apprenticeships will be £2.5 billion, and we are confident in the extensive research that demonstrates the real economic benefits that apprenticeships deliver.

[Lord Watson of Invergowrie]

When the issue was discussed on Report in the other place, the question was raised as to whether the Treasury might keep part of the money raised through the levy. I do not think that I am being unfair to the Minister for Apprenticeships and Skills when I say that he did not answer that question clearly on Report. Can the Minister give us an assurance now that all the money will stay in the sector, not with the Treasury?

[Lord Nash]

I will write to the noble Lord about that, checking carefully before I respond.

I was very interested to hear from the noble Baroness, Lady Cohen of Pimlico, about her involvement with the Cambridge UTC and the Parkside educational trust MAT, and about the advantages. For the very reasons that she mentioned, it is our policy to encourage all UTCs to join MATs. On her point about the evaluation of UTCs and the fact that apprenticeships are not recognised in outcomes, this is something that we are looking at very closely at the moment. She also made the point that institutes should not approve degree apprenticeships. Degree apprenticeship standards are currently approved by my department. I can reassure her that, although the institute will take on this approval function, it will not be responsible for investigating or engaging with individual universities. However, it will of course work with the Office for Students in the future.

Many noble Lords raised the important matter of careers and careers advice. We take this extremely seriously. That is why the industrial strategy set out that we will publish, later this year, a comprehensive strategy for careers information, advice and guidance across all ages, expanding the quantity and quality of careers advice. As my noble friend Lord Lucas rightly pointed out, the development of careers leadership in schools and colleges will be an important element of this.

We are investing £90 million in this Parliament to improve the quality and coverage of careers advice for young people, and the Careers & Enterprise Company continues its excellent work. I echo the praise expressed by the noble Lord, Lord Aberdare, for this organisation, which is very ably run by Claudia Harris. Picking up on the point made by the noble Lord, Lord Storey, about the importance of careers education, the advisers will also support schools and colleges to develop comprehensive strategies. However, more needs to be done to inform pupils of their options. We have recently agreed to institute a requirement for local authorities to write to the parents of year 9 students, informing them of the existence of UTCs, further education colleges and studio schools that offer courses for students starting at the age of 14.

My noble friend Lady Pidding made a good point about the need to do more to promote apprenticeships. We launched a new apprenticeships communications campaign in May last year, promoting the benefits of apprenticeships for young people. It builds on the previous successful Get In Go Far campaign. National Apprenticeship Week 2017 will take place in March, celebrating the positive impact of apprenticeships and traineeships.

As the noble Lord, Lord Watson, said, getting careers advice right is an important area—as the Minister, my honourable friend Robert Halfon, noted in his careers speech on Monday. I look forward to hearing more from noble Lords in Committee, including my noble friend Lord Baker, about approaches to strengthening careers advice.

My noble friend Lord Baker talked about maths, as did the noble Earl, Lord Listowel. We now have maths hubs and are supporting many maths programmes, such as Singapore maths and Shanghai maths. Over the last few years there has been a substantial increase in the number of pupils taking maths GCSEs and A-levels. My noble friend Lord Baker talked about the skills gap in STEM subjects and computing. We have introduced coding and computing into the curriculum for the first time. He said that there were just over 60,000 pupils taking computing at GCSE. I accept that that is a small number, but it is from a standing start. I pay tribute to my noble friend’s engagement in the digital economy through UTCs.

My noble friend Lord Lucas talked about schools having a dedicated person to engage with the world of work. I consider that to be very important. I know that before the last election the noble Lord, Lord Adonis, had the idea that this should be the case in every school. We are not as prescriptive as that, but certainly it happens in my schools. I think it is very important that schools try to find the money in their budget to do that because, when you see the effect of pupils’ engagement with the world of work, the payback is obvious. Regarding the school sector’s engagement with the world of work, we have certainly found that the door is wide open, with businesses and the professions being extremely willing to help.

The noble Baroness, Lady Morris, talked about the importance of flexibility, and I entirely agree. A framework of routes will ensure that choices are clearer for young people. She also raised concerns about assessment and the approach to assessment for apprentices, and I look forward to discussing this with her further in Committee. We recognise that there is more to do to ensure the breadth of the high-quality assessment organisations that we need, but we have been making good progress through the register for assessment organisations, run by the Skills Funding Agency.

The noble Lord, Lord Watson, asked why less money was spent on post-16 education. The best predictor of attainment at age 19 is attainment at age 16, and that is why we prioritise school funding. As we all know, students have many more pastoral issues, which are expensive to deal with, in the earlier years.

The noble Lord, Lord Hunt, referred to the governance of FE colleges. We talked about this when we met yesterday, and I have already discussed it with my ministerial colleague, Robert Halfon. For the academies programme, we have started something called Academy Ambassadors, recruiting pro bono non-executive directors from businesses and the professions to the boards of multi-academy trusts. As of this morning, we have already made 417 appointments, which is quite a pro bono movement up and down the country. I have discussed with my fellow Minister the possibility of encouraging FE colleges which need further support on their boards to engage with this programme.

The noble Baroness, Lady Garden, asked whether craft, creative and service skills are intended to be covered by technical education. The answer is that they are. The noble Lord, Lord Storey, talked about the relevance of courses, rather than students just doing courses that are popular. Of course, our destination data and data on jobs and pay rates, as well as on payback from courses for students, will in future enable students to make much more informed decisions.

My noble friend Lord Leigh asked about spending on adult education. The total spending power of the FE sector to support adult and 19-plus participation will be £3.4 billion by 2019-20. In cash terms, this is an increase of 40% compared with 2015-16. Within the £3.4 billion, the Government have maintained funding for the adult education budget, which supports adult skills participation in cash terms at £1.5 billion.

My noble friend Lord Baker used some statistics from Davos which were very persuasive. Industry and all of us are aware of these issues. They create an urgency, but I am as hopeful as the noble Baroness, Lady Morris, that this is the moment when we start to reverse the trend that we have all discussed today.

Today’s debate has been thoughtful and enlightening, and I look forward to further discussions. The noble Baroness, Lady Morris, said—

Schools: Access to Defibrillators

Lord Watson of Invergowrie Excerpts

Monday 30th January 2017 Lords Chamber

[Lord Nash]

I do not know if they quite put it in those terms, but I am aware that they are apparently very easy to use and the instructions are very clear.

[Lord Watson of Invergowrie (Lab)]

My Lords, the noble Lord, Lord Storey, rightly paid tribute to the outstanding work of the Oliver King Foundation, and I acknowledge the work the Minister has done in meeting the foundation and taking the issue forward. Every year, 270 children die after suffering a sudden cardiac arrest at school, and 12 young people a week die from sudden arrhythmic death syndrome. There are laws that mandate smoke alarms, fire extinguishers, seatbelts and lifejackets to save lives, but there is no law mandating a simple piece of equipment that could restart the lives of 12 young people each week. Do the Government intend to give a fair wind to Maria Caulfield MP’s Defibrillators (Availability) Bill, which will have its Second Reading in another place next month, so as to bring to an end the shameful postcode lottery that is access to defibrillators?

[Lord Nash]

My Lords, the Department of Health believes that it is unnecessary to require defibrillators to be placed in all public buildings, and it is our policy that local ambulance trusts already have responsibility for the provision of defibrillators and are best placed to know what is needed in the local area. When I met Mark King and the other representatives of the Oliver King Foundation some years ago, they seemed satisfied with our arrangements, particularly the deal that I referred to, but we are very happy to work with them further and to discuss what more we can do to ensure that more schools install defibrillators and that we raise awareness of this very important issue.

Education: Newly Qualified Teachers

Lord Watson of Invergowrie Excerpts

Monday 30th January 2017 Lords Chamber

[Lord Nash]

I do not agree with the noble Lord, although I have lot of respect for his experience in this area. One thing we have done is improve the knowledge in the curriculum because cognitive science is absolutely clear that to develop skills such as critical thinking, you need knowledge to apply. We are also clear that some of our best groups are now developing much better teaching resources for teachers so that they do not have to spend time devising lesson plans and can spend much more time developing the kind of techniques that the noble Lord refers to.

[Lord Watson of Invergowrie (Lab)]

My Lords, it beggars belief that just last week the Treasury cancelled a promised £384 million payment to schools—this at a time when the DfE itself is cutting school budgets. The Minister has said that he will address the very real issue of workload but the initial teacher training figures for this Session show that only 89% of secondary school places were filled—just as the “pupil bulge” begins to impact at secondary level. Does the Minister have anything positive to say about levels of professional pay to ensure that teaching remains an attractive profession?

[Lord Nash]

We have a very strong economy, as this Government and the previous Government have created what has sometimes been referred to as a jobs miracle, and many areas are struggling to recruit. I am sure the noble Lord will be delighted to hear that this year we are 12% up on maths and science teachers and 15% up on physics teachers. The number of returners to the profession is also up by 20% on 2011.

School Milk

Lord Watson of Invergowrie Excerpts

Wednesday 25th January 2017 Lords Chamber

[Lord Nash]

The noble Lord raises a very good point and I know he is very experienced in the area of primary schools. I am aware of a depressing number of children having their teeth removed because they have rotted at a very young age, and of many schools having things such as tooth-brushing schemes, et cetera. I shall certainly look more at what we are doing in the area he mentioned.

[Lord Watson of Invergowrie (Lab)]

My Lords, the Minister alluded to, but did not mention, the European school milk scheme, which is funded by the European Union, but administered by Defra. It provides subsidised milk to all children above the age of five each day in school. However, Defra has committed to continuing participation in the scheme for only as long as the UK is a member of the EU. I am sure noble Lords will remember that some 40 years ago, a former Education Secretary attracted considerable opprobrium when she decided to reduce the amount of milk available to school children. I am certain the Minister would not like that to happen to his current boss, so will he commit to meeting with his fellow Ministers in the Department of Health to find a way of lobbying the Government to provide a replacement for the current scheme when it expires in 2019?

[Lord Nash]

We will play a full role in the existing scheme until we leave the EU, but as our involvement in the scheme will be short term, we are taking a pragmatic approach to keeping changes to current arrangements to a minimum. We will consider the long-term approach to school milk provision, following our exit from the EU, as part of our future domestic policy programme.

Higher Education and Research Bill

Lord Watson of Invergowrie Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 25th January 2017 Lords Chamber

Moved by

[Lord Watson of Invergowrie]

366: Clause 59, page 37, line 3, leave out “body” and insert “bodies”

[Lord Watson of Invergowrie (Lab)]

My Lords, in moving this amendment I shall also speak to others in this group in the name of my noble friend Lord Stevenson. Amendment 366 is self-explanatory, so I will say a little about the others. Amendment 374 seeks to extend “what … when and how” to,

“what … when, where and how”,

when the Office for Students is determining what course information is to be published. It is designed to make it incumbent on the OfS to consider what would be helpful to students on higher education courses in terms of where the information should be made available. The Government have decided to ensure that how the information provided by the OfS is disseminated should be subject to all considerations with the exception of where it should be available. Surely this is one small amendment that the Minister cannot find a reason to turn down.

At first reading, Amendments 376 and 377 may seem pedantic, but the aim is simply to ensure that this subsection is all encompassing. If the Minister declines to accept these two amendments, it could imply that only some people considering applying for such courses should be included. Should that be the Minister’s intention, he needs to say who he thinks might or should be excluded. I hope that would not mean mature students.

Amendment 379 would achieve the same purpose in respect of staff, who also need to be given consideration in this case. Amendment 384 would add staff working in higher education institutions to the list of those whom the OfS must consult from time to time about the information to be made available. Students and prospective employers are included in the Bill so it is fair to ask why not the people who collectively work to ensure that the student experience is as rewarding, in all senses of the word, as possible. This clearly casts the net wider than academics. Support staff in many categories also contribute to the success of the courses provided to students at our universities and it is therefore appropriate that they should also be part of the consultation exercise.

Amendments 396 and 406 are similarly concerned with ensuring that the views of higher education staff are taken into account—the first in respect of consultation prior to recommendation of the designated body and the latter in situations where it is proposed that the designation be removed. I suspect the Minister will point to the final subsection in all three cases, which allows for the involvement of “such persons” as the Secretary of State “considers appropriate”. These two amendments are concerned with inclusion—involving the people who work day to day in our higher education institutions. The Government have been unwilling to include staff explicitly as the Bill stands, or perhaps they have considered them and deemed such inclusion inappropriate. As a result, what confidence would staff likely have that the Secretary of State might suddenly decide that it was a good idea and introduce them under the “such persons” subsection? These two amendments are about including staff; doing so would not exclude anyone else. It is right and proper that the Minister should agree to this common-sense addition to the Bill.

--- Later in debate ---

[Viscount Younger of Leckie]

I thank all noble Lords who have raised these important issues. I agree immediately with the noble Lord, Lord Willis, about the importance and quality of data. I will make one overarching point, in the interest of brevity, before addressing individual amendments. We are not seeking to determine in the Bill exactly which data must be collected or exactly who must be consulted. Data requirements and needs evolve over time, and the body needs to maintain the ability to adapt to changes.

In response to comments made by the noble Lord, Lord Watson, I appreciate what he said. We do not feel it is appropriate, for example, to specify workforce data when all other data will—very importantly—be agreed under the duty to consult. The relevant body will have the duties to plan data publication in conjunction with the full range of interested parties, with sufficient flexibility to take a responsive approach.

Turning to Amendments 376, 377 and 383, given the OFS’s duty to have regard to the need to promote greater choice and opportunities for students, just to reassure my noble friend Lord Lucas, there is, to my mind, no question that under Clause 59(5), considering the needs of people thinking about undertaking higher education courses must include considering what would be helpful to prospective and potential students from a diverse range of backgrounds.

In considering Amendments 368, 379, 384, 396 and 406, it is expected that the views of higher education staff will be considered as part of the voice of the sector institutions. The OfS will also have the discretion to consult persons they consider appropriate, including any relevant bodies representing the staff interests. I think the noble Lord, Lord Watson, foresaw the words that I have just spoken.

[Lord Watson of Invergowrie]

On that point, the Minister said that it would be “expected” of the OfS, but I do not see what could be done if it chose not to do it. I would think it was a normal thing to do, but if it is expected, why not just say that or something equivalent to it in the Bill?

--- Later in debate ---

[Lord Lucas]

My Lords, I am grateful to my noble friend for his reply on Amendment 371, but I think he rather missed the point. In respect of school data, the Department for Education already publishes extensive information, under the heading of performance tables, as open data. The level of information has grown substantially over the years and is free for anyone to reuse, as is the database on schools, EduBase. I am very sorry to say, as the proprietor of the Good Schools Guide, that this has resulted in the emergence of a lot of competitors, which is thoroughly tiresome. While it would be convenient for me if the Government did not do it, it is very good for the economy and for students and pupils that they have, and it is the pattern I would like them to pursue with regard to university data.

The Department for Education also makes available the National Pupil Database, which is confidential, at various levels. The whole database is available to the “very serious” level of researchers, but anonymised information is also available at pupil level, which is immensely useful for understanding how schools are operating and how various examinations and other aspects of the school system are working. That is a precedent for really good practice that is, now, contained within the same department that will look after university data.

The practice for university data is different. It is either held by UCAS, in which case it is effectively not available to anybody, or by HESA. In the latter case, there is a long application process to determine whether it will let the data out because nothing is standardised and you have to ask permission from individual institutions. It then charges a hefty fee. This is a comfortable situation for me, as a user of HESA data, because it means I do not get a lot of competition, but it is not the way the market should be. The market should be open. The only reason that the use of the data is charged for is that HESA wants to make money out of it. If it is given the power to charge institutions then it is in the interests of the economy and the country that it makes it freely available whenever it can. It is much better for the country that HESA should make a little bit of money by making it available in a more restricted way and for a large fee, or a substantial fee—not an unreasonable fee; HESA is a good organisation. We should go open. The Government, as a whole, have made a lot of progress in making much bigger collections of data open, when they were formally charged for. There has been a lot of benefit from that. That is the practice we should follow with the university data.

[Lord Watson of Invergowrie]

My Lords, this has been a livelier group of amendments than had been anticipated. Gratitude is due to the noble Baroness, Lady Wolf, for exciting some controversy. It is a surprise that the shortest amendment to the entire Bill—it is just two letters—led to so much impassioned debate.

The Minister is treading on rather boggy ground if he feels that his legal people will be able to counter the argument of the noble and learned Lord, Lord Mackay, about the precedent for statutory bodies. The Minister has developed the practice of writing letters to us in Committee. I suggest to the noble and learned Lord, Lord Mackay, that he might write to the Minister on this particular point and perhaps assist in clarifying the position and getting the Minister to think again.

I liked the noble and learned Lord’s point about spotting a reference to an employee in the Bill. He was, of course, referring to a part that we will consider on Monday, but that it took his legal eagle eye to detect it underlines my point about staff being notable by their absence from the Bill, and hence, I would suggest, being undervalued. I take on board what the Minister said about it being expected that the OfS will consult staff. Experience tells us that expecting organisations or employers to do something on behalf of their staff often leads to disappointment, and that is why I believe it should have been a bit more explicit in the Bill. I suspect, however, that his comments today may well be quoted by a number of staff and their representative organisations in future. There is another question, which perhaps he could answer in one of his famous letters, which is: what recourse would be open to staff if it was shown that the OfS was not considering their views, as I suggested in my amendment?

Other noble Lords spoke about financial issues, which I think remain as they were prior to the debate, but it has been both enjoyable and interesting. On that basis, I beg leave to withdraw my amendment.

Amendment 366 withdrawn.

--- Later in debate ---

[Lord Willetts (Con)]

My Lords, having launched that original consultation document I am delighted that we now have these provisions in this Bill. It is welcome progress and the lack of legal framework to do it was the main reason for the delays. I very much hope that the new scheme can be brought in as quickly as possible. Although it is a familiar excuse, there are IT issues to be resolved and the noble Lord is right to press for rapid progress on that.

My one qualification to the noble Lord’s otherwise excellent speech was that we have to be careful not to assume that all Muslims take the view that the current arrangements are not acceptable within Islamic law. The good news is that there are many Islamic students whose religious advice is that they can use the current framework. There is a small number who do not believe that that is satisfactory and that is why we need this provision, but it is very important that this Committee does not give the impression that Muslims cannot use the current scheme. Many of them do and their imams say that they can.

[Lord Watson of Invergowrie]

My Lords, it is very much to be welcomed that Muslim students are to be offered Sharia-friendly student loans which should assist in applying to university, although I accept the point of the noble Lord, Lord Willetts, that only some students have been put off in the past in the belief that taking out a loan conflicts with their religious beliefs.

This is certainly a big step forward, but as the noble Lord, Lord Sharkey, outlined, when will it happen? He has traced the path that has been followed since 2012, when a government commitment was first made. As he said, the consultation exercise was undertaken and the Government responded in September 2014—quite quick for government replies. Their response said that,

“the Government supports the introduction of a Sharia-compliant takaful alternative finance product available to everyone, and will work on its development”.

That response also mentioned the need to find what was described as an “appropriate legislative window”. Two years on—more than that, in fact—we are at that window, yet we do not have a date for the commencement.

Amendments 442 and 516 in the names of the noble Lords, Lord Sharkey and Lord Willis, appear to me to be rather contradictory. Amendment 442 calls for the scheme to begin in the autumn of 2018, while Amendment 516 seeks its introduction immediately after the Bill becomes law, but no matter. We wish to see the scheme introduced as soon as it is practical, and I trust the Minister will outline the timescale that the Government have in mind. In particular, I hope they will offer some explanation if, as the noble Lord, Lord Sharkey, said, they suggested that a delay would be necessary until 2019. I found it very interesting that the noble Lord, Lord Sharkey, said that he had consultations with people in the Muslim community who said that it need not take that long, so we look forward to the Minister’s response on this important matter.

[Baroness Goldie]

My Lords, the debate has been helpful. I think we all agree that participation and choice in further and higher education must be open to everyone with the potential to succeed, irrespective of their background, gender or religion. I thank the noble Lord, Lord Sharkey, for a sensitive and reflective contribution to that debate.

The Government recognise that, under the current system, there are concerns that some prospective Muslim students may feel deterred from accessing student loans; we appreciate that they might consider that student loans are not consistent with the principles of Islamic finance. Our research has suggested to us that Muslim students are less likely to use student loans than their contemporaries. That is why the Government have introduced Clauses 80 and 81, which are ground-breaking and innovatory and set out our intention to provide the Secretary of State with the power, for the first time, to offer alternative payments alongside existing powers to offer grants and loans. We are the first Government to legislate to make alternative student finance possible, and we have legislated at the first opportunity. We are fully committed to making alternative student finance available.

--- Later in debate ---

[Lord Watson of Invergowrie]

My Lords, Amendments 446, 449 and 449B are in my name. Amendment 446 is a reaction to the fact that Conservative education policy has had a detrimental effect on the education and life chances of those from low and middle-income backgrounds. We can trace that back to 2010, when Labour left office, with 71% of state-educated pupils going to university. By 2014, that had fallen to 62%.

The change from maintenance grants to loans is a regressive policy, introduced last year, that will leave students from low and middle-income backgrounds facing higher debts, which they may never be able to repay; we will discuss this in a later amendment. Bringing back the maintenance grant, which is what is proposed in this amendment, is a necessary move to ensure there is that investment in our young people, helping more of them access a university education, and providing the country with the highly educated and highly skilled workforce that we need.

English students already face some of the highest levels of student debt in Europe, with the average student graduating with anything up to £50,000 of debt. This is a particular problem for students from low and middle-income backgrounds, who are more likely to need to rely on loans to fund their studies. It is well known that students from more affluent backgrounds do not need a loan—they may take one out because it provides access to cheap money—but for low and middle-income students, that is not an option; they have to take that loan out. Increasing the amount of debt they face by replacing grants with loans could act as a disincentive that will stop some of them pursuing higher education at all.

It may well be asked: if you were to reintroduce this, what would it cost? Labour has in fact costed it. We reckon it would cost about £1.5 billion in each academic year but our policy is quite clear and has been stated before: we would raise corporation tax by 1% to 1.5%. By funding the policy in this way, it is a direct correlation: companies would be contributing to the education and training of the highly skilled, highly trained workforce that is needed to help Britain’s economy thrive in the 21st century. It would be a cause and effect in that respect.

I heard what the noble Lord, Lord Willetts, said about Amendment 449. I bow to his greater experience and, indeed, direct involvement in this until quite recently. The Student Loans Company appears to be a law unto itself. In many ways, it seems out of control. Repayment levels are well below projections and there is very little confidence in the company. The loans are regarded as a non-contingent tax liability, not a normal loan, and therefore they are not regulated. I hear what the noble Lord, Lord Willetts, said, and there are reasons for that, but the money has to come from somewhere. I accept that for those seeking a loan affordability is an issue. We are very concerned about the way in which the Student Loans Company operates.

Just a few minutes ago, in a quite unrelated set of amendments, we were treated to a further example. When the noble Baroness, Lady Goldie, told us that one of the reasons why the sharia-compliant finance product could not be introduced—and she did not appear to have the faintest idea of when it would be released—was that the Student Loans Company needed time to get its processes into suitable order. So thousands of Muslim students are forced to wait while the Student Loans Company dithers. That is symptomatic of the way in which that organisation operates. The Student Loans Company does need proper regulation, if not by the Financial Conduct Authority, then by some other means. If the noble Lord, Lord Willetts, thinks it is operating satisfactorily, he should say so, but I would be very surprised if he does.

The last amendment I will speak to is Amendment 449B. It traces back to when the noble Lord, Lord Willetts, was Higher Education Minister. In the 2015 Autumn Statement the then Chancellor announced that the repayment threshold on student loans was to be frozen at £21,000 from April 2017, instead of being uprated in line with earnings, as was promised in the marketing materials and in writing from—and I am not trying to score particular points—the noble Lord, the Minister at the time. That is an important point.

Labour MPs submitted a raft of amendments to this Bill in another place that were designed to stop retrospective changes to student loans by Ministers, and to bring them under regulation by the FCA. The key issue is that millions of students have taken out loans with an understanding that the threshold would increase with earnings, and have had their loans changed retrospectively and regressively. I say to both Ministers opposite that that is the sort of underhand tactic that undermines the public’s trust in politics and politicians, and that alone would be sufficient reason to overturn this decision. Worse, however, the change places additional financial burdens on poorer students and sets a dangerous precedent. It also falls short of the standards that we would expect from the private sector, where the FCA has the power to stop this happening.

The noble Baroness, Lady Garden, outlined the effect on students. Our amendment would prevent any changes to the repayment of a student loan after the terms and conditions of repayment had been agreed. This would apply to existing loans after the commencement of the Act, and it would ensure that such a situation would not recur by bringing loans under the regulation of the Consumer Credit Act 1974. These amendments demonstrate the need to regulate the student loan market and would provide the protection that students need and, we believe, deserve.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I broadly support, in particular, Amendment 446, tabled by my noble friend Lord Watson. Opportunistically, however, I ask the Minister, since we are discussing student fees, when there will be clarity vis-à-vis student finance for EU students who want to register for courses in 2018-19. They have no clarity at the moment, and this is putting some EU students off even thinking about applying to UK universities.

--- Later in debate ---

[Lord Storey (LD)]

My Lords, plagiarism is a form of cheating and an academic offence. “Contract cheating” is a particular type of plagiarism where a student commissions a third party to complete an assignment. They might even employ a ghost-writing tutor. The QAA says it poses a risk to the security of academic standards and the equitability of assessments, as well as reliability and validity. “Essay mills” produce assignments that are not completed under exam conditions, and other pieces of work such as coding assignments in computer science can be completed by a third party as well.

I knew nothing about this 18 months ago. It was not something I understood. Then a group of students from one of our redbrick universities made contact with me. They came to the House of Lords to talk about it. We sat out on the Terrace. They were genuinely upset that they saw this practice happening regularly among their fellow students. They said, “Why are we diligently doing our work when you can pay and you can cheat?”. As a result of them coming to see me, I wrote to the chief executive of the QAA, who kindly wrote back and said, “We don’t regard this as a particularly serious problem. The number of people we are talking about is minuscule”. I contacted him again and furnished him with quite an important file of evidence. He very kindly arranged to come and see me, and we talked it over—in quite robust terms. He then organised a private round-table discussion with a number of other academics. From that, a number of issues arose. I am very grateful to them for taking that initiative.

So how many students are we talking about? According to the QAA, about 17,000 students—about 0.7%—get caught cheating each year. Remember, those are the ones who are caught. The data do not show how many students plagiarised. Another report commissioned in 2014 showed that 22% of students reported having paid someone to complete their assignment. As I said, this type of cheating is referred to as contract cheating, a specific type of plagiarism where a student commissions a work produced by a third party for a fee.

How does this happen? Different approaches are taken and different sites can be used. The more established sites will have a bank of people who have previously written for them and essay commissions will go to those people, with the essay mill acting merely as an intermediary. Other sites go instead to an online freelance writer: the work will be reverse-auctioned and any writer registered on those sites will be able to bid for the work.

In a recent publication, Professor Phil Newton and Christopher Lang looked at the operational aspects in some depth. They found that turnaround times for commissioned essays are very small: between a day— 25% of those analysed—and 24 days. The average was five days. Most—80%—were fulfilled in the specified time. For every fulfilled request on a freelancer-type site, another 10 people bid for the work, suggesting significant spare capacity in the market. The prices range from £15 for law—a master’s, a 3,000-word dissertation —to £6,750 for a PhD or a 100,000-word dissertation, with a seven-day deadline.

I was talking to some students only yesterday who told me that people even approach them on their campus and say, “We can get you a 2:1. We can write your essay for you. We can write your dissertation for you”. These people actually approached them on the university campus.

What about the students themselves? Well, it must be noted that some students do not plagiarise intentionally. A disproportionate number of students who are caught cheating, I am sorry to say, are foreign students. We had the debate earlier on foreign students. Language competence is one of the main reasons for them cheating. There are also sometimes cultural difficulties. Interestingly, according to the Times investigation, foreign students are four times more likely to cheat. Universities have been criticised for enrolling foreign students with poor command of the English language because they pay higher fees. There is then real pressure on those students to complete their assignments.

What should we do about it? My amendment is based on what has happened in New Zealand, where it was quite a serious problem. As a result of them making the practice illegal, the problem has significantly improved.

I am minded to quote the QAA, which said that the way forward can be described in three words: “Education. Detection. Deterrence”. The QAA goes on to say that at present it has no legal or regulatory powers to take action against students quickly for plagiarism, using essay mills, websites or ghost writers. We see this as academic fraud. We need to take action now.

We are in our sixth day of Committee, and we have heard so many eloquent speeches about the importance of higher education, the incredible work our universities and students do and how important it is to maintain that quality. Well, maintaining that quality means making sure that academic fraud does not happen, and that all students are on a level playing field. I beg to move.

[Lord Watson of Invergowrie]

My Lords, I will say a few words in support of the noble Lord, Lord Storey. I commend him on the amount of preparation he has done for this amendment. I am very surprised at the extent of what he has revealed. I think we all know that, to a greater or lesser extent, cheating goes on—it is important to use that word—and in some cases fraud, but the extent of it is such that action needs to be taken. I am disturbed by the QAA more or less dismissing it, as the noble Lord, Lord Storey, said. And yet, as he pointed out, 17,000 students had been caught, and if that number were caught how many were getting away with it?

It is an issue that has to be addressed. Although there are means of catching cheats these days—software can be, and is, employed by universities that can spot and pick up patterns of writing—there are other ways that cannot be tracked easily. It would be helpful to have a recognition that this is a problem and for something at least to be said, if not done, by the Minister to indicate that the matter will be taken forward in a way that it has not been, effectively, up until now.

[Baroness Goldie]

My Lords, this amendment raises an important issue that is central to the quality and reputation of higher education in the UK. Plagiarism in any form, including the use of custom essay-writing services, or essay mills, is not acceptable and the Government take this issue very seriously. That is why the Government asked the QAA to investigate the use of essay mills in the UK. Following the QAA’s publication on this issue in August 2016, the Minister, my honourable friend Jo Johnson, said:

“Plagiarism is not acceptable and, on this industrial scale, represents a clear threat to standards in our universities … we are looking closely at the recommendations in this report to see what further steps can be taken to tackle this scourge in our system”.


The Government thank the QAA for its work exploring this issue and continue to work closely with it to progress the options and recommendations put forward. As a first step to addressing the issue, the Government have already met with Universities UK and the NUS to discuss a co-ordinated response. Within the next few weeks, my honourable friend the Minister will be announcing a new initiative, working with the QAA, Universities UK, the NUS and HEFCE, to tackle this issue.

On the amendment specifically, although we share the general intent, we are keen to ensure that non-legislative methods have been as effective as they can be before resorting to creating new criminal offences. That is where the initiative mentioned comes in. If legislation does become necessary, we will need to take care to get it right. We have to be absolutely clear about what activity should be criminalised and what activity should remain legitimate. That requires evidence, discussion and consensus. We do not yet have that.

To that extent, it is crucial we get the wording of the offence right. In the amendment tabled, it is unclear who would be responsible for prosecuting and how they would demonstrate intention to give an “unfair advantage”. For example, it may be difficult to prove that a provider intended to give an unfair advantage, or that an advertiser knew that an unfair advantage would be bestowed, and there is a risk of capturing legitimate services such as study guides under the same umbrella definition. What is an “unfair advantage”? On one view, a student who is able to afford a tutor when others cannot obtains an unfair advantage. That is surely not what this amendment is trying to catch. But can we be sure that it does not, and where do we draw the line instead? These are not things that can, or should, be rushed when the result is a criminal record.

The effectiveness of a legislative offence operating as a deterrent will depend on our ability to execute successful prosecutions, and as such, we will need to be confident about these principles, as well as about who has the power to prosecute and how they will capture sufficient evidence. Rather than taking a premature legislative response to this issue, we believe it is best first to work with the sector to implement non-legislative approaches. We will of course monitor the effectiveness of this approach and we will certainly remain open to the future need for legislation if it proves necessary.

I hope I have reassured the noble Lord that the Government are committed to addressing this issue. Although the Government remain open to future options, as we do not believe that legislative action is the best response at this time, I ask that the amendment be withdrawn.

--- Later in debate ---

[Baroness Brown of Cambridge]

My Lords, noble Lords will be glad to hear that I will move Amendment 470 in my name and that of my noble friend Lady Wolf as quickly as possible. This is a probing amendment with a simple purpose. We have many distinguished research institutions with long track records of PhD students receiving excellent support. However, some of these institutions are not able to award their own research degrees but have to do this through university collaborators. Examples, I believe, include the John Innes Centre and Rothamsted Research for plant sciences, and Pirbright Institute and the Moredun Institute for animal diseases.

The purpose of the amendment is to ask the Minister to think about whether there is an appropriate route to offer these institutions a path to research-degree awarding powers, should they wish to obtain them. There is a very strong focus in the Bill, understandably, on what is required for new institutions to get taught-degree awarding powers. These institutions come into a very different category. They are typically smaller and with smaller numbers of research students. Will the Minister be happy to think about whether there is an appropriate route to research-degree awarding powers for these institutions? I look forward to hearing the Minister’s thoughts. I beg to move.

[Lord Watson of Invergowrie]

My Lords, Amendment 471 in this group is in my name. It seeks to remove part of new Section 123B on supplementary powers of a higher education corporation in England:

“A … corporation in England has power to do anything which appears to the corporation to be necessary or expedient for the purpose of, or in connection with, the exercise of any of their principal powers”.


We want to withdraw this because we do not see why it should be necessary. It seems almost nonsensical. It is completely open ended. It would be interesting for the Minister to tell us to what he thinks it refers or might refer. I feel like coming out with a list of ridiculous examples of things that a corporation might choose to do that may be within the law and indeed within the exercise of its principal powers. I am not going to do that but just in the last few minutes we have had a couple of examples. What if a corporation decided to turn a blind eye to the sort of activities that the noble Lord, Lord Storey, outlined in terms of plagiarism and so on? What if a corporation thought, “Well, that helps our pass rates”? It is not illegal as yet—I hope it will be. In the amendment the noble Baroness, Lady Deech, just spoke to about free speech, the corporation could take action or not which may be seen to be offensive by students, staff or the public where the university or college was situated. I say to the Minister: what is this about? Why is it necessary and really should it not be deleted?

[Viscount Younger of Leckie]

The noble Lord has set me a task. I will keep my response suitably short, given the lateness of the hour. The Bill amends the Education Reform Act 1988 to deregulate the prescriptive statutory requirements that apply to higher education corporations in England, while ensuring that the route for FECs to achieve HEC status is kept open. The noble Baronesses, Lady Wolf and Lady Brown, suggested that research institutes should be given a similar legislative route. However, dozens of collaborative relationships exist between universities and research institutes across the country and they do not agree that these relationships are a shortcoming. For example, one such institute, the Laboratory of Molecular Biology, says on its website:

“This relationship, between the LMB and the University of Cambridge, gives our graduate students membership of two of the world’s leading research institutions”.


Further, there is no legislative barrier in this Bill that would, in principle, prevent an institution that provides supervised programmes of research embarking on the process of achieving registered higher education provider status, and ultimately seeking to gain its own degree-awarding powers, if it wished to do so and could meet the applicable requirements.

I turn to Amendment 471, spoken to by the noble Lord, Lord Watson. I begin by offering reassurance that these provisions are not new and nor do they allow a HEC to do whatever it pleases. The provision’s wording is the same as that already contained within existing legislation on HECs—specifically, Section 124(2) of the 1988 Act.

All the Bill does is remove the list of ways this power to do what is necessary or expedient can be exercised. This might include, for example, the power to supply goods and services, to enter contracts, or to acquire land or property. This list is detailed and non-exhaustive, and setting out specific powers in this way is perceived as outdated and unnecessarily restrictive. As a consequence, there is a risk that it stifles innovation and growth and slows down institutional change. It is also inconsistent with the Government’s commitment to establish a more level playing field in higher education.

We want to allow HECs the power to do anything that is necessary or expedient to further their objects, as many of their counterparts established under different corporate forms can do. For example, higher education institutions that are incorporated as companies under the Companies Act 2006 do not have their specific powers listed in legislation in this way.

I wish to reassure noble Lords that this will not give HECs an unfettered ability to do anything. A HEC’s powers must be permitted by law and exercised in furtherance of its objects. We also understand that HECs may wish to explicitly specify some or all of their powers, and they will be able to do this in their articles of government.

With that short explanation, I hope that the noble Baroness will withdraw her Amendment 470.

Higher Education and Research Bill

Lord Watson of Invergowrie Excerpts

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

[Lord Lucas (Con)]

My Lords, to pick up on the recently finished speech of the noble Baroness, Lady Wolf, I thoroughly agree with the three main points she made. First, producing a mixed indicator, as the Government propose, would not be useful to students or others looking at the quality of a university or a course. It would be like composing a meal out of mincemeat, cornflakes and cleaning fluid. Each of those things is useful in its own right, but mix them together and they have no function. Keep them separate, as the noble Baroness advocated, and you get some very useful data on which students can judge in their own terms the quality of a university.

Secondly, let these things be criterion-referenced. We have a real problem at the moment in GCSE—we are saying that every child should get English and Maths, but we are making that impossible, because we make these exams harder as students do better. About 30% are required to fail in order to meet the requirements of Ofqual. We have to be careful about this when we are looking at a bronze, silver or gold indicator. If we do not make these indicators criterion-referenced, we are saying that, whatever happens— however well our universities do—we will always call 20% of them bronze. In other words, we will put them into an international students’ “avoid at all costs” category. That seems a really harmful thing to do. If these criteria mean anything —if there is a meaning to any of the elements going into the TEF—we should be able to say, “We want you to hit 60%.” Why not? Why do the criteria have to be relative? They do not mean anything as relative criteria. They must have absolute meanings and they must be absolute targets.

Thirdly, this really adds up. The noble Lord, Lord Liddle, made it clear that gold, silver and bronze indicators—this big step change between the three grades —are not suited to a collection of imprecise measures. You do not know whether an institution that you have placed towards the bottom of silver is actually bronze or, worse, whether something in bronze is actually in the middle of silver. It is not that exact. You have to do what the Government do elsewhere in education statistics—for example, in value added on schools—which is, yes, to publish a value, but publish a margin of error too. That way, people get to learn that you might be saying: “This is actually 957 on your scale of 1,000, but the error margin is somewhere between 900 and 1,010.” You get used to the imprecision, to understand that this is not precise, so you can put a proper value on the information you are being given.

[Lord Watson of Invergowrie (Lab)]

My Lords, I am speaking to the proposal, in the name of my noble friend Lord Stevenson, that Clause 25 should not stand part of the Bill.

That clause refers to the Office for Students taking over HEFCE’s current administrative responsibilities to deliver the TEF on behalf of the Secretary of State. I say in passing how disappointed I am that so many in your Lordships’ House, whom I thought would come to hear this debate on TEF metrics, have now departed. Perhaps that was not the reason they were here after all. Those of us who are ploughing through the Bill until all hours of the night realise that this is an important topic. The fact that we have had so many speakers on it is a clear reflection of that.

As the Minister will be aware, there is widespread concern across the sector at the use of proxy metrics, including statistics on graduate earnings, in an exercise that was supposed to be about teaching quality. On the face of it, there is some logic to the metrics. It is difficult to imagine an excellent course, the teaching, support and assessment for which the students think are rubbish, and that a large proportion of the students do not complete; or that hardly anyone who completes it manages to find employment or get a place on a postgraduate course.

Where metrics are used, they have to be much more securely evidence-based than those suggested. Last week in Committee, our Amendments 196 and 198 would have obliged the Office for Students to assess the evidence that any proposed metric for assessing teaching quality is actually correlated to teaching quality, and ensured that, prior to making that assessment, the OfS consulted those who know first-hand what is needed to measure teaching quality: academic staff and students. The Minister did not comment on that point, so it remains one on which I should like to hear his opinion. The importance of ensuring the statistics used are reliable and evidence-based cannot be overstated. They must earn and retain the confidence of the higher education sector—and that involves academics, students and administrators.

In her Amendment 201, the noble Baroness, Lady Wolf, seeks to ensure the quality of the statistics used by the OfS, and this should be a basic requirement. I support my noble friend Lord Lipsey in questioning the validity and value of the National Student Survey. The survey merely asks students about their perceptions of teaching at their institution. By definition, these perceptions are subjective and cannot involve comparing institutions. I heard what the noble Lord, Lord Willetts, said, when he suggested that similar institutions could be compared in terms of their ethnic make-up and students’ economic background. That kind of benchmarking sounds improbable at best because, even if suitable comparators could be found, the question is, how would the outcome be weighted?

It sounds as though gold, silver and bronze categories would be created before the metrics had even been measured. As I said, that sounds improbable to me, and I agree with the noble Baroness, Lady Wolf, that benchmarking is surely not the answer. Linking institutions’ reputations to student satisfaction is likely to encourage academics to mark more generously and, perhaps, even avoid designing difficult, more challenging courses.

With academics increasingly held accountable for students’ learning outcomes, students’ sense of responsibility for their own learning—something I thought was a core aspect of higher education—will surely diminish. We are now entering an era where students dissatisfied with their grades can sue their universities. Improbable as that sounds, only last week the High Court ruled that Oxford University had a case to answer, in response to a former student who alleged that what he termed “boring” and “appallingly bad” teaching cost him a first-class degree and the opportunity of higher earnings.

This may be the shape of things to come. Last year, nearly 2,000 complaints were made by students to the higher education Ombudsman, often concerning contested degree results. Nearly a quarter were upheld, which led to universities being ordered to pay almost £500,000 in compensation. Does anyone seriously believe that the introduction of the TEF metrics will lead to a reduction in such complaints?

Metrics used to form university rankings are likely to reveal more about the history and prestige of those institutions than the quality of teaching that students experience there. The Office for National Statistics report, on the basis of which the TEF is being taken forward, made it clear that they were told which metrics to evaluate, leading to the conclusion that these metrics were selected simply because the data were available to produce them. It is widely acknowledged that students’ experience in their first year is key in shaping what they gain from their time at university, yet the focus of the proposed metrics, of course, is mainly on students’ experiences in their final year and after graduation.

The ONS report was clear that the differences between institutions’ scores on the metrics tend to be narrow and not significant. So the majority of the judgment about who is designated gold, silver or bronze will actually be based on the additional evidence provided by institutions. In other words, an exercise that is supposedly metrics-driven will in fact be decided largely by the TEF panels, which is, by any other description, peer review.

Although the Minister spoke last week about how the TEF would develop to measure performance at departmental level, the ONS report suggested that the data underpinning the metrics would not be robust enough to support a future subject-level TEF. Perhaps the Minister can clarify why he believes that this will not be the case—the quality of courses in a single university tend to be as variable as the quality of courses between institutions. As I said in Committee last week, this would also mean that students’ fees were not directly related to the quality of the course they were studying. A student at a university rated gold or silver would be asked to pay an enhanced tuition fee, even if their course at that university was actually below standard—a fact that was disguised in the institution’s overall rating.

Learning gain—or value added—has been suggested as an alternative, perhaps better, measure of teaching quality and is being explored in other countries. At a basic level, this measure looks at the relationship between the qualifications and skills level a student has when starting their degree programme, compared to when they finish—in other words, a proper, reliable means of assessing what someone has gained from their course of study.

The BIS Select Committee report on the TEF metrics published last year recommended that priority should be given to the establishment of potentially viable metrics relating to learning gain. I hope the Minister will have something positive to say on that today, or, failing that, on Report. We do not believe that the metrics as currently proposed are fit for purpose; more importantly, nor do many of those within the sector who will be directly involved with the TEF. That should be a matter of some concern for the Minister, for his colleague the Minister for Universities and Science, and indeed for the Government as a whole.

[Viscount Younger of Leckie (Con)]

My Lords, when we last met, and as the noble Lord, Lord Lipsey, said, we had a useful and wide-ranging debate on the TEF, and I value a further debate on this important subject.

The Conservative manifesto committed that we will,

“introduce a framework to recognise universities offering the highest teaching quality”.

During last Wednesday’s debate, I was pleased that, as the noble Lord, Lord Watson, noted, all noble Lords who spoke were in favour of improving teaching quality and of having a teaching excellence framework in some form.

Before discussing the specific issues raised today, I should like to clear up what appear to be some misapprehensions about how the TEF will operate. Before doing so, I should say that I will write to the noble Baroness, Lady Wolf, who raised a number of detailed points. I think it is best if I address those specific points in another letter. I should reassure noble Lords that I have just signed a letter relating to our previous day in Committee, and that should arrive on their doorsteps shortly.

It is important that when we discuss the TEF we do so in the context of the framework that has been set out, in detail, by the Government. To be clear, this framework has been designed over the past year and a half with the sector, through two consultations, and using the input of experts such as HESA and the ONS.

First, the TEF is not only—not even primarily—about the NSS, as I think the noble Lord, Lord Lipsey, acknowledges. The NSS is just one of three principal sources of metrics data being used, and we have explicitly said that the NSS metrics are the least important.

Secondly, the TEF is about much more than metrics. Providers submit additional evidence alongside their metrics, and this evidence will be given significant weight by the panel. The work of the panel will be driven as much by judgment as by metrics, ensuring that the distinctive character of institutions, as well as the diversity of missions and approaches across the sector, are recognised in the ratings awarded. Furthermore, final decisions on TEF ratings will be taken by a peer review panel, not by Ministers or civil servants.

We also consider it vital that judgments are based on a combination of core metrics, with additional and qualitative evidence, wedded together by expert peer judgment. It is for providers to determine what and how to teach, and excellent teaching can take many forms. However, great-quality teaching, defined broadly, increases the likelihood of good outcomes. In our consultation, over 70% of those who responded welcomed our approach to contextualising the data and provider submission.

I reassure noble Lords that we are not naive about the use of metrics. Chris Husbands, the TEF chair, has noted that the approach that the TEF takes is realistic about the difficulty of assessing teaching quality. He said:

“It does not pretend to be a direct audit of the quality of teaching. Instead, it uses a range of evidence to construct a framework within which to make an assessment—looking at a range of data on teaching quality, learning environments and student outcomes”.


Turning to Amendments 187, 197 and 190, that is why the development of the TEF, including metrics, is a phased process of development. Our consultation on the metrics included a table of the potential unintended consequences and our proposed mitigations. We will continue to collaborate and work with the sector to make further improvements, learning lessons from the initial, trial year. The aim is to instil and gain the confidence of the sector, and I believe we have made a very positive start. As Dame Julia Goodfellow, president of Universities UK, said:

“The government’s response to the Teaching Excellence Framework consultation demonstrates that it has consulted and listened to the university sector”.


I am concerned that some of the amendments in this group add a level of process which could reduce the incentive to make further changes to the scheme or the metrics by requiring that they are laid before Parliament as they change. This reduction in flexibility is not required by other schemes supported by many noble Lords, such as the research excellence framework.

I now turn to amendments to prohibit the use of the National Student Survey. We are listening carefully to concerns on the NSS, but we cannot ignore the only credible, widely used metric that captures students’ views. We are not using the general satisfaction ratings in the TEF; rather, we are using specific questions related to teaching quality. My noble friend Lord Willetts highlighted that point. However, as the noble Lord, Lord Lipsey, acknowledges, we recognise the limitations of the NSS and have taken steps to mitigate these, including directing TEF assessors not to overweight the three NSS-based metrics and making them aware that NSS scores can be inversely correlated with stretch and rigour. Looking at three years-worth of data will mitigate concerns about the effects on small providers. It will also help to address the concerns of the noble Lord, Lord Lipsey, about spikes created by a non-response. The need for care when interpreting results for small providers has been drawn to the attention of the TEF assessors. However, overall the panel will be encouraged in its assessment to reward and recognise quality wherever it finds it, without being bound by guideline distributions of gold, silver and bronze.

--- Later in debate ---

With that, I ask the noble Lord to withdraw his Amendment 187.

[Lord Watson of Invergowrie]

My Lords, the Minister said there are no quotas, but unless my memory fails me, when we discussed the TEF, he said he thought that gold and bronze would have roughly 20% each and the rest would be what he termed “in the middle”. I understand that they are not firm quotas, but it seems that the Government have a fairly clear idea of what they expect the outcome to be.

[Viscount Younger of Leckie]

I will have to check Hansard, but I believe I was speaking about the current system and how it is working now. I should stress that there is no quota and it could well be that these percentages are different when operated under the TEF. There is no particular expectation. I believe I was answering the question about how it might be likely to be very different.

Higher Education and Research Bill

Lord Watson of Invergowrie Excerpts

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

[Lord Watson of Invergowrie (Lab)]

My Lords, I shall speak to Amendment 266, in the name of my noble friend Lord Stevenson, which I am pleased to hear that the noble Lord, Lord Lisvane, liked. Indeed, given the comprehensive manner in which he opened the debate, I have little to add.

Clause 40(10) provides for the OfS’s power to make an order authorising degree-awarding powers to be exercisable by statutory instrument. As the noble Lord, Lord Lisvane, said, it is unusual, to say the least, for the power to make statutory instruments to be conferred on organisations or people other than Ministers. I hope the Minister can explain to noble Lords why this departure from accepted practice is justified.

Amendment 266 would require the statutory instrument first to be approved and made by the Privy Council as an Order in Council. Many universities have degree-awarding powers that were awarded by the Privy Council, so the question for the Minister and the Government is: why take that away? In this amendment we are not asking the Minister to do something; we are asking him not to do something. We say that there have been no examples of universities clamouring for change, so why not leave things as they are?

My noble friend Lord Stevenson will speak in more detail about the Privy Council on a later group, but I want to stress now that it is an independent body, completely impartial and well respected. That is something not to be cast aside lightly. This is the established process for introducing new universities, and the current system has worked well over many years. We do not believe the case for such a radical change as handing all powers to the OfS has been made, but if the Privy Council is to be replaced, its replacement should be as rigorous as the Privy Council, and at least capable of building a reputation as strong as its reputation. The OfS cannot as things stand, and may not ever, achieve that status. It is essential to ensure scrutiny by the Privy Council of the power to grant awards.

The noble Lord, Lord Lisvane, as a member of the Delegated Powers and Regulatory Reform Committee, understandably quoted from that committee’s report on this part of the Bill. He commented, I think, on paragraph 30; I want to highlight what the committee said in paragraph 28, commenting on Clause 43, which enables the OfS by order to vary or revoke degree-awarding powers. Although exercised by statutory instrument, these powers would not be subject to parliamentary scrutiny. The DfE had sought to justify this to the committee, but the committee’s response was unequivocal. Paragraph 28 says:

“We are not in the least convinced by the Department’s reasons. We do not believe that the requirement for detailed consideration by the OfS, and the existence of a detailed procedure including rights of appeal, are incompatible with an order under clause 43 being subject to Parliamentary scrutiny … There is nothing on the face of clause 43 which limits the way in which the OfS is able to exercise the powers, leaving it wholly to the discretion of the OfS when and in what circumstances the powers should be exercised. We therefore recommend that the powers should be subject to Parliamentary scrutiny and that the affirmative procedure should apply”.


There is nothing I can add to that—an opinion reached after due deliberation by a committee with no political axe to grind. I imagine the Minister may feel more than a little uncomfortable at the fact that he and his department are effectively ignoring the judgment of noble Lords. They do not deliver such verdicts lightly, and I believe that the Minister and his team need to revisit the report and reconsider their position on the manner in which the OfS is to be permitted to act on varying or revoking institutions’ degree-awarding powers.

[Viscount Younger of Leckie]

My Lords, my noble friend Lady Goldie has asked me to apologise to the Committee as she has succumbed to her bad cold and I will be in the hot seat for the rest of the evening.

I entirely agree that we need to ensure that the processes around the award, variation and revocation of degree-awarding powers and the award and revocation of university title are sound and fit for purpose. I will explain why we believe the Bill does just that. However, we will continue to listen and reflect on whether there are further improvements that we can make to these processes. I say that at the outset.

I shall deal with the amendments to Clause 40. At the moment, we have a lengthy process for the award of degree-awarding powers, which involves the Privy Council seeking advice from the department, which in turn seeks advice from HEFCE and the QAA. This is unduly complex, and through our reforms we are seeking to streamline the process without lowering standards. This is why, under our plans, the OfS would run the whole process from application through to award. Decisions on degree-awarding powers would be taken by the OfS, as an independent, arm’s-length body, on the basis of published criteria set out in guidance, and should be made after having consulted relevant bodies such as the designated quality body. It is therefore only logical that the OfS would also make the order that grants degree-awarding powers. Adding the Secretary of State or Privy Council approval would, under the new regime, have little benefit other than complicating the process.

I turn to the amendments that would ensure that orders varying or revoking degree-awarding powers and revoking university title have to be made by the Secretary of State, who would also deal with the processes of variation and revocation. Giving order-making powers to persons and bodies other than the Secretary of State or the Privy Council is not unprecedented—for example, Ofcom has order and regulation-making powers. The OfS, as an independent regulator, is best placed to make an assessment as to whether degree-awarding powers or university title should be awarded, varied or revoked. It will have much better insight into the provider in question and the sector as a whole than the Secretary of State ever could. Therefore, our intention is that these decisions are taken by the OfS on the basis of published criteria set out in guidance, the detail of which the department intends to consult on.

Let me provide some further reassurance that these powers are not intended for everyday use. We intend that the OfS and the new quality body will work with providers to address any emerging problems early on. Removal of degree-awarding powers or university title is therefore likely to be a rarely used, but necessary, safeguard for quality in the system. In addition, the OfS would always, in accordance with its general duties listed in Clause 2, have regard to important factors, which includes the need to promote quality. These are additional safeguards to ensure that the OfS’s powers are not abused. Any decision to subsequently revoke degree-awarding powers or university title will be regulatory decisions. We think it is right that they should be taken by the regulator, not a Minister. However, we recognise the significance of these powers and have therefore made sure that there are appropriate safeguards in place. These are set out in Clauses 44, 45, 54 and 55. They include the OfS having to notify the provider of its intentions and to give reasons; the OfS having to give the provider a chance to respond and take account of that response before making a decision; and, as the Committee will know, a right of appeal to the First-tier Tribunal. This safeguards against any undue interference with the institutions’ autonomy. We believe that an appeal to the First-tier Tribunal provides for the most independent review of a case.

I address a point raised by the noble Lord, Lord Lisvane, about providers with royal charters. I will explain how the process would work in that case. We do not envisage a scenario where the use of powers in Clause 110 would result in the revocation of an entire royal charter which established the institution. The Secretary of State can amend royal charters where appropriate so that the charters operate smoothly, but only where they reflect any changes made by the OfS to degree-awarding powers or university title contained in the royal charter—for example, a revocation of university title. This is not a general power to amend but must be linked to changes made by the OfS in relation to degree-awarding powers and university title. Importantly, I reassure noble Lords that any amendments or revocations made by the Secretary of State would be subject to parliamentary scrutiny via the affirmative procedure, which I think, and hope, that the noble Lord, Lord Lisvane, mentioned and acknowledged. If we were to introduce parliamentary scrutiny for the orders on top of this already very strong, but also lengthy process of appeals, as suggested by Amendments 511 and 512, we would further delay the implementation of any decision, and thus potentially put students at risk. It would also introduce unnecessary complexity into the system: how would parliamentary scrutiny work alongside an appeals process and what if they reached different conclusions? Again, I emphasise that we have designed the processes in such a way that there is no need for Ministers to get involved. It will be a regulatory process, instigated by the regulator and decided by the independent judiciary.

While I understand the intention behind these amendments, I believe that the controls and protections in place are adequate and therefore the amendments are not necessary. However, as I said at the beginning, I will reflect on any further improvements that could be made. In the meantime, I ask the noble Lord to withdraw the amendment.

[Lord Watson of Invergowrie]

I understand that the Minister will reflect on this, and no doubt the department is preparing its response to the Delegated Powers Committee’s report. I wonder whether the Minister will take the content of this short debate and feed it into that process, so that it might carry some weight in deciding the government position.

[Viscount Younger of Leckie]

Indeed, the noble Lord makes a good point. I am sure that will be taken into account in terms of any further improvements we might wish to make.

--- Later in debate ---

Moved by

[Lord Watson of Invergowrie]

282: Clause 43, page 25, line 34, at end insert?
“( ) A statutory instrument containing an order under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

[Lord Watson of Invergowrie]

My Lords, I am moving the amendment in the name of my noble friend Lord Stevenson. The amendment intends to establish the principle that a statutory instrument containing an order to revoke an institution’s authorisation to grant degrees must be an affirmative statutory instrument. We believe that such a draconian action as revocation—which in some circumstances is potentially fatal to the institution concerned—should not simply be left to the OfS to issue as a statutory instrument. I take on board the points the Minister made in respect of group 13 a few moments ago, when he talked about the OfS being an independent body. That also applies to the Privy Council, but it has been written out of the equation. It should not be possible for such a statutory instrument to be made unless a draft has been laid before and approved by a resolution of both Houses of Parliament.

In response to an earlier amendment before the dinner break the Minister stated that requiring the affirmative principle would delay a decision that had been recommended by the OfS. If that is the case in certain situations, so be it. If ever there was a case where the maxim “Better to get it right than to get it right now” applied, this is it. Depriving an institution of degree-awarding powers is sufficiently important for Parliament to have its say, and any delay that results is surely justified in terms of due process.

I made my remarks on the importance of retaining the Privy Council in the debate on the group containing Amendment 266, and I shall not repeat them. However, I shall again draw to your Lordships’ attention the fact that the Delegated Powers and Regulatory Reform Committee made a further comment on Clause 53, which impacts on this group. I will not repeat what the noble Lord, Lord Lisvane, said at that time. But the committee made it very clear that it took the view there were significant new legislative powers being given to the OfS that are not subject to any limits to their exercise, and that there should be parliamentary scrutiny with the affirmative procedure applying. I think that is a very important point to make. I know that the Minister is considering this and other aspects of the committee’s report but, in the meantime, I beg to move.

[Lord Judd (Lab)]

My Lords, I speak to my Amendment 298A, which is on the Marshalled List. At this stage of the proceedings, as an older Member of this House, I must be allowed to make an observation. We have gone a long way down the road I predicted. We are trying to make the best of this legislation. We are trying to engage in damage limitation, which becomes almost a cause. As an older man, I grieve at how far we have drifted from the concept of a university as an international community of scholars awarding degrees, based on the distinction of the university. This is a sad road we have taken, and we are dealing with the consequences: the commercialisation and marketing of the whole concept of universities and higher education. I have great difficulty in coming to terms with this language of markets and of students as consumers, as distinct from students as contributors to a community of scholars. It is a sad situation, but we are in the situation we are in, and we have to try and make it as acceptable as possible.

Under my last amendment, I talked about fairness, justice, transparency and accountability, and this amendment is about exactly the same theme. I talked previously about decisions not to register or to suspend, and now I want to talk briefly about why it is that there are no rights of appeal against the OfS refusing to authorise providers to grant degrees. Apparently, by this legislation, rights of appeal are allowed only when the OfS decides to vary or revoke such an authorisation. However, the decision to authorise or not in the first place is a significant decision and a significant exercise of power, which will determine whether a provider could enter the market—here I go using the word myself—or not. There seems no justification to deny a right of appeal where the OfS has decided not to grant authorisation.

There must be transparency and accountability. I absolutely understand and relate to the noble Lord, Lord Lucas, when he says that we cannot have institutions below the grade granting degrees. If we go down that road, there will be a temptation for people who are just opportunist money-makers to get into the money-making business by awarding degrees. We know this, so we have to have safeguards—of course I understand that. But I also understand the Minister when, in the logic of his position as he sees it, he says we cannot rule out the possibility that there will be newcomers to the field who will bring something new, fresh and challenging and who ought to be taken very seriously. I understand the logic of that point, and my amendment tries to take that point on board.

We cannot have an alienated public who think that there are high-handed university administrators and regulators, as well as universities themselves, making these strategic decisions without having to explain to those involved, let alone the wider public, why they have come to particular conclusions. Indeed, I can see a case for saying that, if what I advocate comes to pass, it will be a very educative experience for the public, because there will be an explanation of why a particular authorisation cannot be allowed. I think that the amendment and the principles behind it matter, and I am aware that I am becoming a collaborator in damage limitation.

--- Later in debate ---

[Viscount Younger of Leckie]

I note the point the noble Lord, Lord Adonis, has made and that will definitely be part of our general reflection.

I now turn to the processes and safeguards. The OfS, as an independent regulator, will be best placed to make decisions on whether to vary or revoke an authorisation to grant awards or revoke a university title. However, there is a statutory process that must be followed. Clauses 44 and 54 provide that the OfS give appropriate notice to the governing body of the provider, set out its reasons why it considers it necessary to take the step of variation or revocation and must have regard to any representations made by the provider before proceeding. I agree that the OfS should be able to draw on all relevant information, including from other parties. Clause 58 enables that already.

Turning to Amendments 282 and 347A, we want to move to a system where quality, rather than the age of an institution, will be the yardstick and where the OfS has powers to vary or revoke degree-awarding powers and to revoke the university title of any institution, no matter how they were obtained. This is essential to achieve a level playing field among providers.

Amendment 282 would unlevel the playing field for revocation of degree-awarding powers. We included a right of appeal for any revocation decision because we felt that this was the most appropriate and independent review, and that it would therefore be the best way to safeguard the interests of the provider, including its institutional autonomy. An appeal to the First-tier Tribunal is an opportunity for a provider to present evidence to support its case. It provides for a politically neutral and objective judgment of the merits of the case. I see the logic behind these amendments and we value the expertise of Parliament, as well as the important scrutiny functions. However, on matters of regulation, we believe such scrutiny and safeguards are better provided by the courts, rather than by Parliament. The regulatory framework will apply to all providers equally. If we accept this principle when it comes to other rights and obligations, I find it difficult to justify treating a provider that got its degree-awarding powers in the 1970s—such as the University of Buckingham, for example—differently from one that gets them in 2020.

Before I finish, let me briefly address the amendment of the noble Lord, Lord Judd, which would allow for appeals against unsuccessful degree-awarding power applications. There currently is no such provision and the appeals provision in the Bill has been drafted to cover scenarios where the OfS makes a decision that deprives providers of a status or powers, or imposes a monetary penalty. I can provide some reassurance: we expect that there will continue to be internal complaints mechanisms similar to those run by the QAA at present. The amendment is therefore not needed.

I am afraid there is no time to address the thoughtful points raised by the noble Lord, Lord Judd, on the path universities are travelling down. I say only that there is undeniably an important, international market where we are in the business of attracting students who realise that they have a choice. We have to be realistic and remember that.

As I said, we appreciate the need to get the safeguards right. While we feel we have struck the right balance, we will continue to reflect on any areas of improvement. In the meantime, I ask the noble Lord, Lord Watson, to withdraw Amendment 282.

[Lord Watson of Invergowrie]

My Lords, I thank the noble Viscount for his response and noble Lords who have participated in this short debate. It has been quite lively, with some interesting points made. On the points made by my noble friend Lord Liddle that the OfS should set out its reasons, allowing Parliament to debate its report annually, there seems to be no rational reason why that should not occur, because it does for several other regulators—although, is the OfS a regulator? That debate is continuing. I heard the noble Viscount say that he will consider that and we will return on Report, but whether the reports would be dull or refer to events that had happened frequently is not quite the point. We are all grateful to my noble friend Lord Adonis for drawing attention to Schedule 1’s requirement for an OfS report and welcome the Minister’s willingness to consider that before we move on to Report.

The noble Viscount—a man we are increasingly coming to recognise as the man of letters—said that Amendment 282 would “unlevel the playing field”. I am not sure whether that is a new verb added to our language, but none the less, as I understand it that compares existing providers with new arrivals. I do not see that it would necessarily do that. He mentioned the University of Buckingham. Yes, that has been there some 50 years outwith the system, because it was not part of the mainstream for many years, but the argument we had on the new providers needs to be separated from the situation of those that have held degree-awarding powers for a long time, rather than those that have recently got them and may be deprived of them for good reason, inasmuch as it could be said they should not have had them in the first place. That may be correcting an award that was done earlier than would have been appropriate.

The internal complaints mechanism to which the noble Viscount referred also needs to be looked at again. He said in response to my noble friend Lord Judd that there is an appeal provision against the decision of the OfS to vary or revoke degree-awarding powers, but not for those trying to have those powers granted. This impacts on a discussion we had earlier when the noble Viscount used terminology along the lines of, “It’s different if they’re in the system”, as opposed to being outside, and that they have to be treated differently if they already have the powers, as opposed to just seeking them. There is a basic justice issue there of an individual or organisation having the right to appeal against a decision that affects them adversely. A provider without degree-awarding powers would by definition not be part of the internal complaints mechanism to which the noble Viscount referred. I do not think he has answered my noble friend’s point. Again, I am sure this is something to which we will want to return on Report.

I welcome the fact that the noble Viscount has taken on board the points made. I look forward to returning to them. On that basis, I beg leave to withdraw the amendment.

Amendment 282 withdrawn.

Higher Education and Research Bill

Lord Watson of Invergowrie Excerpts

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

[Baroness Garden of Frognal (LD)]

My Lords, I have added my name to the amendment moved by the noble Baroness, Lady Wolf, which is self-explanatory. She has set out very clearly the reasons behind it: to ensure that the OfS can place restrictions on the number of new students a particular higher education provider may enrol, if it has reasonable grounds for believing that the provider is in breach of a registration condition.

Given that the Bill aims to improve the student experience, it is particularly important that, if a higher education provider is falling short in the provision it should be offering, the OfS should, as part of its duty, have powers to intervene to prevent cohorts of new students being enrolled. The registration conditions in the Bill are important but, as the noble Baroness, Lady Wolf, set out, it is important that the OfS should have a range of sanctions available if a particular provider is not abiding by the registration conditions, and that those sanctions should be proportionate. On the amendment’s second paragraph, it is only right that that there should be regulations setting out the procedures, but only right too that rights of appeal for any such sanction should be added to the clause.

[Lord Watson of Invergowrie (Lab)]

My Lords, as the noble Baroness, Lady Wolf, set out very clearly, her amendment would allow the OfS to place,

“quantitative restrictions on the number of new students that the provider may enrol”,

if it has,

“reasonable grounds for believing that a registered higher education provider is in breach of an ongoing registration condition with respect to the quality of the higher education provided … or to its ability to implement a student protection plan”.

She went into some interesting and rather unfortunate detail about what can happen when colleges or providers get into serious difficulty.

The amendment has echoes of Amendment 142, moved by the noble Lord, Lord Lisvane, last week, which sought to replace the words,

“it appears to the OfS”,

with,

“the OfS has reasonable grounds for believing”,

relating to the power to impose monetary penalties in Clause 15. Restrictions on new students would be a new power following the provisions of Clause 15. In effect, it is another form of monetary penalty, which we support in principle, although we would be concerned if it were left open-ended. As soon as a breach is shown to have been brought to a conclusion, we believe the restriction should be lifted so as not to harm existing students, who are blameless but could be affected—as the noble Baroness, Lady Wolf, graphically explained—to their detriment through the institution either being closed, or having fewer resources.

I read closely the Minister’s response to the noble Lord, Lord Lisvane, from our debates on Wednesday. I cannot say that he made a convincing case for rejecting the rather stronger words in that amendment. He basically stated that as the wording in the Bill is used in other legislation—he quoted the apprenticeships Act of 2009—there was therefore no reason to change it. He did not come up with any other reason, despite the noble Lord, Lord Lisvane, saying in moving the amendment that “it appears to” was but one of the options available and one of the lower ones at that.

Although the words “it appears to” are used in other pieces of legislation, few use the formulation in the context of a decision to take enforcement action, which is what raises concern with this Bill. The noble Lord, Lord Lisvane, stressed that the aim was to raise the legal threshold before the OfS was entitled to take action. In doing so, he was supported by the noble and learned Lord, Lord Judge, one of whose cases was quoted. It seems at least odd that the Government feel that their lawyers, who I suggest probably do not have the noble and learned Lord’s expertise and experience, know better on this matter. The same applies to some extent to the amendment in the name of the noble Baroness, Lady Wolf. Having had time to reflect, perhaps the Minister will—if not today, before Report—come to the view that it is appropriate to raise the standard required of the OfS in such situations.

[Viscount Younger of Leckie (Con)]

My Lords, the Bill creates the conditions to improve the overall quality and diversity of the higher education sector, creating a level playing field through a risk-based approach to regulation. Clause 6 enables the OfS to impose specific, ongoing registration conditions on a provider. The practical effect of this is that the OfS will assess the compliance of all higher education providers with the appropriate conditions and will adjust its regulatory approach accordingly. This is central to the risk-based approach to regulation that the OfS is being established to provide.

In practice, we envisage that, if the OfS considers that an institution or an element of an institution, such as its financial sustainability, poses a particularly high risk, it can add, change or tailor the registration conditions applicable to that provider to address that risk. I hope I can reassure noble Lords that the Bill already provides for the OfS to set a student number control condition in cases where it is appropriate and proportionate; for example, an institution that the OfS considers may be in breach of registration conditions that relate to quality of provision could have a student number control imposed by the OfS as an additional specific registration condition, if the OfS believes that such action is reasonable and proportionate. The OfS may also exercise this power if it considers that there is a risk that the provider is recruiting more students than its student protection plan can properly cater for.

I am in complete agreement with the noble Baronesses, Lady Wolf and Lady Garden, about the importance of providing the OfS with the tools it needs to ensure the quality of higher education provision. However, given the powers already conferred on the OfS through Clause 6, it is unnecessary to include in the Bill one example of the conditions that could be imposed. Indeed, including one example of such a condition might appear to exclude other conditions which might be more appropriate in the circumstances of a particular provider, including those which have no plans to increase their student numbers. However, I appreciate the noble Baroness, Lady Wolf, raising this and I hope I can provide some further reassurance for her, focusing particularly on overseas providers, which she mentioned. Our plans will speed up and streamline process without lowering standards. In order to become eligible for degree-awarding powers, any provider must register and pass rigorous entry requirements. It is a high bar which only high-quality providers will be able to meet. We welcome overseas providers which meet this test increasing choice for students. Providers that cannot meet the rigorous entry criteria will not be able to become registered or obtain access to degree-awarding powers or university title.

The noble Baroness, Lady Wolf, asked what sanctions are available to the OfS. I start by saying that the best principles of regulatory practice will be adhered to. These include transparency, accountability, proportionality, consistency and, where issues are targeted, targeting only cases where action is needed. Specifically, the escalated suite of actions and sanctions available to the OfS includes: putting in place a support strategy or issuing a direction for a provider to take specified actions; imposing additional specific ongoing registration conditions—for example, as I mentioned earlier, student number controls; or imposing a monetary penalty. We envisage that most often this will be used where a breach has occurred but has now been remedied, but it can also be used alongside a suspension. Also—and by the way, this is as a last resort—the OfS can order deregistration. To further reassure the noble Baroness, this will be where all other efforts have failed or it is clear that imposing monetary penalties or suspensions will simply not be sufficient to deal with the provider. I hope that, with those reassurances, the noble Baroness will withdraw her amendment.

--- Later in debate ---

[Lord Watson of Invergowrie]

My Lords, we support the amendments in this group in the names of the noble Baronesses, Lady Brown and Lady Wolf. It is appropriate that until the OfS has issued a monetary penalty notice to a provider, has issued a notice to suspend a provider’s registration, or has issued a notice to remove a provider from the register, the OfS should keep its intentions and the reasons for them confidential, as already stated by the noble Baroness, Lady Brown.

Confidentiality is an important factor in situations such as these and it is necessary to protect against that all too common suspicion that there is no smoke without fire. Even if exonerated, an institution may never completely recover its reputation, and the ensuing stigma could have serious effects on its ability to attract students, academics and research funding. There could be significant risks in such situations, not just to the reputation of the individual provider but to the higher education sector as a whole. For that reason, these amendments are necessary.

[Baroness Goldie (Con)]

My Lords, I first apologise for my voice. I have a heavy head cold and my remarks may be more impenetrable than usual.

I agree with the noble Baroness that it is important to protect provider reputation in the early stages of an OfS investigation while evidence is being gathered. We recognise that even the knowledge that the OfS is considering sanctions could have a detrimental effect on a provider in a number of ways. I hope I can reassure your Lordships that the Bill already contains safeguards to protect the interests of providers in the circumstances outlined, and that it is moreover highly unlikely to be in the interests of the OfS to disclose that it is considering sanctions.

When the OfS is considering action as a result of a perceived breach of registration conditions, the primary objective is generally to achieve compliance. I am sure your Lordships agree that the desired outcome, for the benefit of students and the provider alike, is that the provider takes the actions necessary to ensure compliance with the conditions of registration that have been placed on it. Providers are expected to be given guidance and time to enable them to take corrective action or make further representations to the OfS. Only in very serious circumstances would we expect sanctions to be imposed. Disclosing details of possible sanctions during this sensitive period, when the OfS has yet to decide to take action, and when discussions, representations, remedial action and evidence-gathering may be ongoing, would not generally be either appropriate or helpful.

I assure your Lordships that under the Bill, in Clause 2, the OfS must have regard to the principles of best regulatory practice and act in a proportionate, accountable and consistent manner. As the noble Baroness is aware, there are many regulatory bodies covering a wide range of areas of activity in the UK which do indeed implement and deploy that best practice. As such, the OfS, like any other public body, would not look to disclose information prematurely or unnecessarily that could have an adverse effect on a provider before a decision was taken. To do so would not be in accordance with regulatory best practice. Let me be clear: if a decision has been taken to impose a sanction, we would expect the OfS to consider making it a specific condition of registration that a provider’s governing body advises students promptly and accurately of the OfS’s sanctions. The OfS itself may also look to publicise the details if appropriate, especially where this may be in the interests of students.

I hope that this reassures the noble Baroness and I ask her to withdraw this amendment.

--- Later in debate ---

[Baroness Deech (CB)]

My Lords, I support the noble Lord, Lord Judd, and ask the Government whether they have fully considered the appeal and legal implications of this new structure. There is already quite a body of education lawyers. I have no doubt, subject to correction by noble and learned Lords, that every single significant decision in the Bill will be appealed when it comes into force. The awards of gold, silver and bronze will immediately spark judicial review, as will the metrics used for the teaching excellence framework. Grant and non-grant of title are mentioned in the Bill. Registration, validation, numbers of students, access—every single vital decision is unprotected, quite rightly, from appeals and, in particular, judicial review, which could bring a whole system to a halt.

There is already a student complaints system which will, I am sure, expand, given the promises that will have to be made under the new structure being brought into effect by the Bill. Have the Government thoroughly considered all the areas in the Bill that will be open to judicial review and how institutions and the OfS will cope with it?

[Lord Watson of Invergowrie]

My Lords, it seems to me that my noble friend Lord Judd’s suggestion would be a very useful addition. The comments of the noble Baroness, Lady Deech, just now support that.

In response to the previous group of amendments, the Minister stated that under Clause 2(1)(f) the OfS must give due consideration to “best regulatory practice”. Surely, offering somebody the opportunity to appeal a decision, which could have pretty far-reaching consequences, cannot be described as anything other than best regulatory practice. On that basis, I hope the Minister will accept the amendment in the name of my noble friend Lord Judd, along with the Government’s amendments, because it is undoubtedly a question of best regulatory practice.

[Baroness Goldie]

My Lords, I note that a similar amendment to that proposed by the noble Lord, Lord Judd, has been tabled in relation to the provisions on degree-awarding powers, which we will come to in future sessions.

The appeals provision in the Bill has been drafted to cover specific scenarios where the OfS makes a decision that deprives providers of a status powers or imposes a monetary penalty. I understand the sincerity behind the amendment tabled by the noble Lord, Lord Judd, but he is proposing something additional: extending the appeals provisions to unsuccessful applications to join the OfS register.

I was interested to hear the noble Baroness, Lady Deech, say that her apprehension is that the justice system would become overloaded without this amendment. The Government’s contention is that extending the appeals provisions to unsuccessful applications could achieve that very consequence, which would be undesirable and could also encourage ill-prepared applications. But let me provide some reassurance—

[Lord Watson of Invergowrie]

It is not about just unsuccessful applicants but situations where a registration is suspended, having already been given.

[Baroness Goldie]

I thank the noble Lord for his intervention. I might observe that there is a distinction: suspension is a temporary compliance measure. Although there is no formal right of appeal, the Office for Students is required to notify an institution of its intention to suspend registration and allow 28 days for the institution to make representations. So there is a process, which means that the institution at risk of suspension has a right of comment and an opportunity to take remedial action.

[Lord Watson of Invergowrie]

I realise that the Minister is a lawyer—that is understood—but she seems to be making a significant distinction. It is not just about having a right to comment, saying “I wish you hadn’t done that”. This is about the right to appeal a decision—building an appeal and trying to have it overturned.

[Baroness Goldie]

I cannot claim to be a lawyer— I am a very long since defunct lawyer—but what I am endeavouring to do, without reference to legal parlance, is to draw a distinction between the scenario I have outlined, where we understand that appeals could be competent and would be important, and that outlined by the noble Lord, Lord Watson. We think there is a difference between the scenario I have outlined and suspension, which by its very nature is an interim process—either it will be dealt with or it will not be dealt with.

I will try to provide some reassurance. Where the OfS proposes to reject an application to the register, or indeed to suspend a provider’s registration, the provider is afforded a minimum period of 28 days to make further representations to the OfS before the final decisions are taken. In these circumstances, I asked the noble Lord, Lord Judd, to consider not moving his amendment.