Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 18th January 2017 Lords Chamber

[Viscount Younger of Leckie (Con)]

My Lords, I am grateful for the opportunity to speak to this issue and I thank the noble Earl, Lord Listowel, for raising it. Everyone who wants to and has the ability should be able to go to university, including care leavers. We know that care leavers face specific difficulties accessing and succeeding in higher education; universities take their responsibilities in this area very seriously and progress has been made. Care leavers are recognised as a priority group by universities and a particular focus is placed on supporting them during the admissions process. It is not appropriate for government to interfere in providers’ admissions processes, as they are autonomous institutions. We are, however, introducing the care leaver covenant, so that organisations can set out the commitment that they make to care leavers. We see this as the main vehicle for engaging the higher education sector in the wider effort to improve care leavers’ outcomes. I will not have time to go into all the issues that arise under the covenant but we would like to see some more practical things being offered, such as providing dedicated contact time to support accessing and completing courses of study, and organising outreach activities, taster sessions and staff awareness sessions. We see this as primarily being the way forward.

As the noble Baroness, Lady Brown, said, support for care leavers in access arrangements has grown considerably over the years. Around 80% of the access agreement actions that are agreed between the Director of Fair Access and a provider to widen participation as a condition of charging higher fees include activity to support access and success in higher education for care leavers. These include pre-entry visits to the institution, taster sessions—as I mentioned earlier—summer schools, and academic support to raise attainment. Universities frequently prioritise care leavers for financial and other support for students. Provision often includes substantial cash bursaries and fee waivers, and a named contact to assist care leavers.

As the noble Lord, Lord Watson, said, most higher education institutions offer year-round accommodation for care leavers, as stated by the Buttle Trust. For those institutions that do not offer year-round accommodation, local authorities are required, as corporate parents, to ensure that suitable accommodation is available during vacation periods, as set out in the Children Act 1989. Given that this duty already exists for local authorities, we should not duplicate it for higher education institutions.

I turn to Amendments 122A and 449A. In addition to support for accommodation outside term time, local authorities must provide financial assistance to the extent that the young person’s educational needs require it, as well as a £2,000 higher education bursary. Students defined as care leavers in the student support regulations are treated as independent students when their living costs support is assessed. This means that most care leavers qualify for the maximum living-costs support package for their higher education course. For 2016-17 this was around £8,200 and £10,702 in London. Given the nature and extent of support that is offered to care leavers to equalise support and opportunity, I do not therefore consider it necessary to provide tuition fee reductions or grants for care leavers. Like other eligible students in higher education, care leavers qualify for loans to meet the full costs of their tuition.

I will move on to Amendment 138A. Student protection plans should play an essential role in ensuring that institutions have made the necessary steps to protect all their students, by offering real protection to students should their provider or course close. The OfS will issue guidance on student protection plans, which is expected to include advice on what additional or alternative protective measures should be considered for particularly vulnerable groups of students or those from disadvantaged backgrounds, such as care leavers.

Given the existing measures to support care leavers, the focus on them as a priority group by the Government, universities and the Director of Fair Access, the financial and pastoral support provided by universities, the care leaver covenant, and the progressive and relatively advantageous student finance offering that we have in place, I hope that noble Lords are in no doubt about our aspirations for care leavers to go to and succeed at university. I am not therefore convinced that these amendments are necessary to deliver our goals and I ask the noble Earl to withdraw his amendment.

[The Earl of Listowel]

My Lords, I thank the Minister for his response. I am grateful to all noble Lords who have spoken in this debate, particularly to my noble friend Lady Brown, who highlighted the fact that more care leavers go to prison than into higher education. I imagine that is still the case and it should give us pause for thought. I very much welcome the detail of the Minister’s response. I will withdraw the amendment but may come back on Report with a couple more to press some of these issues a little further. I beg leave to withdraw the amendment.

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Moved by

[Viscount Younger of Leckie]

124: Schedule 2, page 77, line 23, after “be” insert “equal to or”

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[Baroness O'Neill of Bengarve (CB)]

My Lords, I very much regret delaying things at this hour, but I ask for a clarification on Amendment 139, moved by the noble Lord, Lord Stevenson of Balmacara. It states that an English higher education provider is a higher education provider in England: we go back to this territory. I thank the Minister very much for the letter that was quickly sent to those of us who asked about it, but the clarification provided in the letter does not meet the need.

The letter states: “If an overseas university wishes to set up a base in England and wishes to appear on the register for its students to be potentially eligible for student support and to apply for English degree-awarding powers and university title, but most of its students are based overseas, then it will need to set up a presence in England as a separate institution”. It is not clear to me whether that separate institution is incorporated under English law or could be incorporated under other laws. That needs clarification. I think the letter is intended as a clarification of Clause 77. However, I do not think it really takes account of the reality of contemporary distance learning, because it continues: “But if it was the case that such an overseas university had more students based in England and overseas, it would be able to meet the definition set out at Clause 77 without establishing a separate institution in England”. The OfS will of course have to apply a risk-based approach to regulating such institutions and could impose stricter initial or ongoing registration conditions where it considered that such an institution presented a greater degree of regulatory risk.

If this overseas institution that has a majority of its students in England is not incorporated under English law, I am not clear how this will work. Maybe I am being thick about this but I think I can imagine an overseas institution that is primarily teaching via MOOCs that has, as it happens, more students registered in England than it has registered in whatever jurisdiction it is incorporated in. I ask myself whether that is an adequate protection. Would we need to be clear that an English higher education provider or the sub-institution it sets up be incorporated under English law? In particular, would any holding of property or funds by that subsidiary institution have to be under English law?

[Viscount Younger of Leckie]

My Lords, in the interests of brevity I shall write a full letter addressing the main amendments in this clause. Just before I conclude, I want to say that the issue focuses on the provider which carries on some of its activities outside England. The only proviso is that it must carry out most of its activities in England. We are focusing on the English higher education provider.

The amendments, particularly Amendments 140 and 164, go to the important principle of academic freedom that we all agree underpins the success of our higher education sector. I believe that there is no difference of view on that matter. As I said earlier this week, the Minister in the other place and I are reflecting on this issue, taking account of the views that we have heard in this place. I listened carefully to the comments raised by the noble Baroness, Lady O’Neill, and, as a result of the letter that she received today, the very best thing to suggest is that I will meet her to take her points further and/or write to her.

While I understand and sympathise with the intention behind all these amendments—I promise that I will follow up with a full letter and the new clause—I do not think they are necessary, and ask the noble Lord to withdraw his amendment. Just before I conclude, I want to clarify one point and to address the issue raised by the noble Lord, Lord Stevenson, who asked me to clarify my position on the linking of the TEF fees. I have also had time to check the Conservative manifesto. I agree that the manifesto commitment was to introduce a TEF, and I want to make this quite clear to the House.

[Lord Stevenson of Balmacara]

I thank the Minister for that clarification. I am sure that we will return to the issue on a more substantive basis in the future.

I was very grateful to the noble Baroness, Lady O’Neill, for raising that question. I almost did a little riff at the beginning because I wanted to explain why my amendment looks like nonsense; the world of Alice in Wonderland came to mind. It was precisely because of my frustration because I could not get my mind round what was meant by an English higher education provider, and whether that was different from a higher education provider in England, and what did it all mean anyway? I am grateful to the Minister for saying that he will write again about that because, like the noble Baroness, I have read the letter, but only briefly, and I do not think that it clarifies exactly where we need the clarification, which is: what is the constitutional position and where could these places be sued since it is all now on a contractual basis? Until we know how they are constituted and where they are, we will not be able to do that. With that, I beg leave to withdraw the amendment.

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[Lord Watson of Invergowrie]

My Lords, I do not rise to add anything to the remarks of the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge—I am not able to do so; the points they make sound very sensible and backed up with legal opinion. I hope that the Minister will take them on board. I rise on an amendment on which I and my colleagues have no involvement to make the more general point that I am sure that the Minister is going to say, “This is all very well, it sounds fine, but it’s not necessary—in the best of all worlds it will all be fine”. It is getting very tiresome. This is not the way in which legislation is meant to progress in your Lordships’ House. There have been absolutely zero concessions so far from the Government since the Bill came to your Lordships’ House. It is inconceivable that anyone outside looking in would accept that every amendment put forward is unnecessary or does not fit in with the Bill. That cannot be the case. I say in all good faith to the noble Viscount the Minister—and to the noble Baroness the Minister—that I am not making a political point as it is not one of my amendments but, with so many amendments on this Bill, they cannot all simply be turned down flat. I hope that he will bear that in mind, if not on this group of amendments then as we move forward.

[Viscount Younger of Leckie]

I shall address the points raised by the noble Lord directly. He will know that we are and have been listening and that I gave some very warm words on certain amendments on the previous day in Committee. I therefore ask him to take back that point. I think that it is uncalled for, if I may say so.

I want to be brief in responding to this group of amendments. I thank the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, for raising these issues. I will be brief, as they were. The Bill states that the OfS may take these actions if it appears to the OfS that a breach of conditions has occurred. While I understand and respect the honourable intentions of noble Lords here, this test is used in other legislation, as I have mentioned before. For example, under Section 151(1)(a) of the Apprenticeships, Skills, Children and Learning Act 2009, Ofqual may impose monetary penalties on a body that it has recognised for the purpose of awarding or authenticating certain qualifications where,

“it appears to Ofqual … that a … body has failed … to comply with any condition to which the recognition is subject”.

This provision has been in force since 1 May 2012.

It is also the case that the usual public law considerations will apply so that the OfS may be legally challenged if it acts irrationally or unreasonably or fails to follow the proper procedure. The OfS, as a public body, must at all times act reasonably and proportionately in accordance with public law when exercising its powers. In addition, before suspending a registration, imposing a penalty or deregistering a higher education provider, the OfS must give the reasons for the action. Decisions to deregister or to impose a penalty are subject to appeal to the First-tier Tribunal. So it is my belief that,

“it appears to the OfS”,

requires the OfS to make a judgment and take responsibility for its decisions—and that, we believe, is the right approach. The OfS is obliged under Clause 2(1)(f) to regulate in a,

“transparent, accountable, proportionate and consistent”,

way. It is in all of our interests to want a more engaged OfS applying its judgment flexibly and sensibly. And Clause 2 of the Bill is relevant here too—making it clear that the OfS must follow the principles of best regulatory practice, including that its regulatory activities should be,

“transparent, accountable, proportionate and consistent, and … targeted only at cases in which action is needed”.

I think it is best that I write in full on the points raised by the noble Lord, Lord Lisvane, when he spoke to Amendment 159. Therefore, without further ado, I ask the noble Lord to withdraw Amendment 142.

[Lord Lisvane]

I am very grateful to the Minister. If I may borrow the phraseology of my noble and learned friend Lord Judge, I think this may well be an occasion on which two entirely reasonable people can disagree without either one of them being unreasonable. Given that, the lateness of the hour and the delightful promise of another of the noble Viscount’s splendid letters, I beg leave to withdraw the amendment.