Higher Education (Access and Participation Plans) (England) Regulations 2018

Viscount Younger of Leckie Excerpts

Monday 22nd January 2018 Lords Chamber

Moved by

[Viscount Younger of Leckie]

That the draft Regulations laid before the House on 4 December 2017 be approved and that this House takes note of the Higher Education and Research Act 2017 (Transitory Provisions) Regulations 2017 (SI 2017/1145); of the Higher Education (Fee Limit Condition) (England) Regulations 2017 (SI 2017/1189); and of the Office for Students (Register of English Higher Education Providers) Regulations 2017 (SI 2017/1196).

Relevant document: 14th Report from the Secondary Legislation Scrutiny Committee

[Viscount Younger of Leckie (Con)]

My Lords, this marks a particular moment in this House. Following Royal Assent of the Higher Education and Research Act in 2017, the regulations to be discussed here today will bring forward the Government’s historic reforms to the higher education sector.

I start by thanking the noble Lords of the Secondary Legislation Scrutiny Committee for their scrutiny of the HERA regulations laid before this House in December and detailed in the 14th report from the Secondary Legislation Scrutiny Committee.

My purpose here today is to speak to the draft access and participation regulations that require approval. They support our aim that anyone with the talent and potential to benefit from higher education should be able to do so. We have made good progress on this. The latest UCAS data shows that in 2017 disadvantaged 18 year-olds were 50% more likely to enter full-time higher education than in 2009. In addition, 18 year-olds were more likely to enter full-time higher education than ever before. We know, however, that there is more to do. For example, the number of mature students entering higher education has declined and certain ethnic groups are not achieving the outcomes that we would expect given levels of prior attainment. Government will shortly be setting out its priorities for access and participation through guidance to the Office for Students.

Through the implementation of the HERA, we want to make further progress on access and participation. The Office for Students was established on 1 January as the new regulator for higher education. The OfS brings together the previous responsibilities of the Director of Fair Access and the Higher Education Funding Council for England, which everyone knows as HEFCE. This will enable a strategic focus on access and participation activities. It will, for example, allow greater co-ordination of government funding to widen participation with the money that providers spend through their access and participation plans. This should ensure a greater impact on the ground.

The access and participation plan framework set out in HERA builds on existing arrangements for access agreements. These arrangements acknowledge institutional autonomy—one of the hallmarks of our world-class higher education system. Under HERA, the OfS has a duty to protect academic freedom, including with regard to admissions. This is the same arrangement as the Director of Fair Access had under the 2004 Act.

In addition, HERA will mean that all providers that want to charge fees and access student finance above the basic amount must have an access and participation plan approved by the OfS. Under the new system, newer providers of higher education will, for the first time, be able to charge and access student finance for higher-level fees. However, to do so, they must publicly set out and comply with their commitments to improve access and participation to higher education and have these regulated by the OfS.

The legislation places responsibility for access to and participation in higher education on the OfS, and this will be a key part of its remit. The OfS will have a champion for this focus—a Director for Fair Access and Participation. Chris Millward has been appointed to this role.

Noble Lords may remember that during the passage of the Higher Education and Research Bill there was some debate about this role and whether it was sufficiently clear in the legislation. Through amendments debated in this House, and with cross-party support, the expectations for this role were reinforced in the legislation. The Director for Fair Access and Participation, shorted to DfAP, will oversee the OfS’s functions on access and participation and will report on performance in this area to the other members of the OfS board. In practice, we expect the DfAP to approve access and participation plans with higher education providers.

The access and participation plans will replace access agreements under the 2004 Act and are an important mechanism for ensuring that students from disadvantaged backgrounds and underrepresented groups can access and succeed in higher education. In these published plans, providers set out what they are intending to do to widen access and to support students from disadvantaged and underrepresented groups to participate and succeed in higher education.

Any provider that is subject to a fee cap and wishes to charge tuition fees above the basic amount must, in line with current practice, have an access and participation plan approved by the OfS. Providers are expected to spend an approved proportion of the higher-level fees on activities to support students from disadvantaged and underrepresented groups to access and succeed in higher education.

Access agreements were introduced in 2004 and they have supported and encouraged improvements in widening participation. In 2018-19, universities and further education colleges plan to spend, through their agreements, over £860 million to widen participation. These regulations are important in ensuring that the full legal framework is in place to enable the OfS to approve access and participation plans developed by providers. They do not represent a major change in current arrangements regarding the approval of plans. As I indicated, they largely carry forward an existing way of working.

The regulations provide the detail on the content and arrangements for approving and varying access and participation plans. The regulations provide a framework for the process by which the OfS, through the DfAP, may approve access and participation plans with providers. They also provide for a system of review of approval decisions such as where the OfS is minded not to approve a plan. The arrangements for the approval of access and participation plans are essentially the same as those that have been in place and set out in regulations since 2004. They have worked well over that period and the intention is to retain the process largely as it is.

However, it is always good to review policy and we have taken that opportunity here. Key changes we have made in these regulations which should lead to improvements in access and participation plans include the following areas. Plans will now be required to consider participation, success and preparedness for progression from higher education, as well as access. This support across the so-called student life cycle is important as access is meaningful only if entrants go on to complete their courses and achieve good outcomes. That could include studying for a masters or a graduate-level job. The regulations require the OfS to take account of whether a provider has given its students an opportunity to comment and considered their views when developing its plan. This change was included following representations made during the passage of the Act. We have listened and taken steps to ensure that the views of students will formally be taken into account. The regulations also require that providers evaluate their plans as well as monitoring progress. It is right that providers invest their efforts in identifying the most effective ways of supporting students.

While we have not made dramatic changes to the existing system regarding access and participation plans, the new legal framework for OfS regulation should improve its efficacy. Where there are serious concerns that a provider has not complied with commitments in its access and participation plan, or other conditions of registration, the OfS will have access to a wide and more flexible set of sanctions and intervention measures to tackle these issues with the individual provider than were available to the Director of Fair Access previously. This could include further monitoring, monetary penalties, suspension from the OfS register or deregistering providers in extreme cases.

Let me take a moment to reinforce the benefits the other regulations noted here today will bring. As part of the implementation of HERA they will underpin some of the mechanisms that will allow the Office for Students to operate. Through the January transitional regulations, and further regulations to follow, we will also ensure a smooth passage to the new regulatory framework. The mandatory fee limit condition regulations and the register regulations will provide some of the practical and legal framework underpinning the OfS. They will allow the OfS to begin registering providers from April 2018 and this will allow the full regulatory framework to come into effect from academic year 2019-20. The register regulations will underpin the OfS register as a vital transparency tool, providing standardised headline information about each provider. The fee limit condition regulations will deliver the detailed framework for the capping of student fees for qualifying students and courses at providers registering in the approved fee cap part of the OfS register. The level of those fees will need to be approved through affirmative regulations by both Houses in due course.

It is within this environment, created by HERA powers, that policy objectives such as those on access and participation will be delivered and allowed to flourish. I assure all noble Lords that the instruments noted today do not determine tuition fee limits, nor do they prejudge responses to the extensive consultations undertaken. They are part of the process of bringing the Office for Students into legal existence and enabling it to set up the practical tools, for instance its register of providers, that it needs in order to regulate.

In summary, these regulations provide important detail that allows providers to develop their access and participation plans in line with government priorities. They ensure that the OfS can approve plans in a fair and transparent fashion and I beg to move that these regulations be approved.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, I thank all noble Lords for their contributions. I was given prior warning that this debate on the regulations would turn into a broader debate on a number of issues raised during the long passage of the Higher Education and Research Act, and I welcome that. It is good to go over these issues again, and I hope that I can address all the questions asked by noble Lords. If I do not do so or need to get some more specific detailed answers to noble Lords, I will certainly do so and put a copy of the letter in the Library of the House.

I shall address the issues raised in no particular order. The noble Baroness, Lady Wolf, began by asking about the role of the OfS and the link with government. I think she said there was a danger that the Government might be seen to be telling universities what to do. I reassure the noble Baroness that the OfS is an arm’s-length body. The Secretary of State can give guidance or directions to it and, in doing so, they must have regard to the need to protect the institutional autonomy of English higher education providers. HERA sets clear limitations in this context in order to protect academic freedoms and institutional autonomy. For the first time, it also makes explicit that guidance cannot relate to parts of courses, their content, how they are taught or who teaches them, or admissions arrangements for students. The OfS will absolutely be left to do its job as the regulator. I know we had much discussion about this, but I further reassure the noble Baroness that this is the case.

The noble Baroness also raised concerns about specified persons or students. I reassure her that there is no intention to set targets or quotas. To do so would infringe institutional autonomy, one of the hallmarks of our world-class higher education system. The OfS, like the DFA under the 2004 Act, has a duty to protect academic freedom.

[Lord Hunt of Kings Heath]

It is all very well saying that this body has institutional autonomy, but it is well known that Ministers put pressure on the chairman to appoint Mr Toby Young. That is not a very good sign of autonomy, is it?

--- Later in debate ---

[Viscount Younger of Leckie]

The noble Lord says it is well known, but I have no evidence to show that at all. I would like to see that evidence. There may have been some reports in the press, but I cannot take the noble Lord up on that point.

In continuing the previous successful approach, the intention is that the OFS will agree the targets and benchmarks higher education providers set for themselves, in keeping with the views expressed by the clear majority of respondents to the 2015 higher education Green Paper. The term “specified prospective students” is defined in the regulations and the intention is to target those from underrepresented groups.

I now turn to the points raised by the noble Lord, Lord Addington. I know he feels very strongly about the guidance given to universities—what guidance should be given and where we are with that. He and the House will know that there have been a good few meetings on this subject. He may not particularly like it, but I say again that there is already guidance, published by the Equality and Human Rights Commission, on what institutions should be doing to fulfil their obligations under the equalities legislation. We have thought about this over the past few months and do not believe that prescriptive guidance is appropriate; there is no evidence that institutions want it. Institutions are responsible for making their own decisions about supporting disabled students, and they have information to enable them to do so. That information and guidance comes from a range of other bodies. I cited them the last time we debated this matter, so I will not go through them now.

[Lord Addington]

Before the Minister leaves that point, I said that about half were failing. A field study shows that the best figure for achievement was 65% and the worst was 42%. There are various aspects to this. Does this not suggest that progress has not been good?

[Viscount Younger of Leckie]

We still maintain that we want institutions to think imaginatively about the support that individual students might need, and we will support them in that. That is because each institution is different: they have different needs and courses, and are based in different parts of the country. We think it is absolutely essential that they be allowed to decide for themselves how disabled students, including those with dyslexia, are looked after. I know that we and the noble Lord do not agree on this. Institutions vary in size, and within institutions there can be great variation in the way courses are actually delivered. Disabled students vary greatly in the type and level of support they require to complete their course successfully. The sector is moving towards greater inclusivity, but I am also aware that both the sector as a whole and particular institutions need to do more. However, we do not think being more prescriptive is the way forward.

The noble Baroness, Lady Garden, asked why there were no further education representatives on the OfS board. She has written a letter to me about this, and I have promised to reply. I asked today when that letter is due—it is coming shortly. Notwithstanding that, I will try and answer the question. Schedule 1 to the Higher Education Research Act 2017 sets out the desirable criteria for the composition of the OfS board, which Ministers have to have regard to in making appointments. These criteria were subject to a rigorous parliamentary debate about whether particular representation was necessary to enable the board to operate effectively—for example, a representative from the further education sector. Parliament concluded that there should not be a requirement for specific representation from every single part of the sector that might have an interest in higher education or in the OfS. Instead, the criteria to which the Secretary of State must have regard include the desirability of having members with experience of “providing higher education” and members from,

“a broad range of the different types of English higher education providers”.

We believe that the board as a whole meets these criteria. However, I am absolutely aware of the importance of further education and of the points made by the noble Baroness. The letter may tell us more, but that is the answer I can give at this stage.

[Baroness Garden of Frognal]

If they are to represent a broad variety of providers, should further education not be within that broad variety?

[Viscount Younger of Leckie]

That point has already been noted but I will take it back to the department.

The noble Baroness also raised the issue of retention rates, saying that they had worsened recently. This is certainly an issue we are looking at closely, and we have put in place policies to ensure that universities remain focused on it. These regulations extend the remit of access agreements to become access and participation plans, the intention being that they will support both access and student success for disadvantaged groups. The TEF will use non-continuation rates as a core metric when ascribing gold, silver or bronze status to individual universities, although—before a noble Lord intervenes—this method of assessment is going to be subject to a review.

The new transparency condition created by HERA will require many higher education providers to publish their completion rates, broken down by gender, ethnicity and socioeconomic background. Making this data public will shine a light on providers that are underperforming in this area. Transparency is very important.

The noble Baronesses, Lady Garden and Lady Blackstone, and the noble Lord, Lord Hunt, spoke about part-time study. That is very important, as it was in our discussions during consideration of the Bill. We have been taking steps to help those wanting to study part-time by offering financial support in the form of loans to cover fees and maintenance costs. We are working towards launching a new maintenance loan for part-time students studying degree-level courses from August this year. In addition, the Government are looking at ways of promoting and supporting a wide variety of flexible and part-time ways of learning.

For example, we are consulting on how we can help to make accelerated degrees more commonly available, a subject which the noble Baroness, Lady Garden, and I were wholly involved in this morning. Shorter courses offer to students the benefits of lower costs, more intensive study and a quicker return to the workplace. I know that mature and part-time students is a subject of interest here, and it is one of the areas the Government asked the Director of Fair Access to consider in the latest guidance—which, by the way, goes back to February 2016.

The noble Baroness, Lady Garden, asked what happens to an access and participation plan if there is a change to the provider—maybe it is sold or taken over. Under the regulatory framework proposals on which we consulted on behalf of the OfS, we suggest that any provider that is sold or is merging with another provider must notify the OfS as soon as reasonably possible. The OfS will then carry out a risk assessment and review what impact this change will have on the provider’s registration status. The outcome will determine whether any further regulatory action is required, such as the imposition of specific registration conditions and perhaps increased monitoring.

The noble Baroness asked what the Government were doing to ensure that more students from BME backgrounds could access and participate in higher education, which is a good point. We have seen record numbers of BME students going into higher education over recent years, and entry rates for all ethnic groups increased in 2017, reaching the highest recorded level. Black 18 year-olds have seen the largest increase in entry rates to full-time higher education over the period, increasing from 27% in 2009 to 40.4% in 2017, a proportional increase of 50%. Gaps in retention between black and white students have also narrowed. However, there is more to do. We are introducing further measures through HERA to tackle equality of opportunity. This includes the transparency condition, which will for the first time require all universities to publish applications, offers and acceptance rates broken down by gender, ethnicity and socioeconomic background.

The noble Lord, Lord Hunt, asked about the Toby Young point. I know we had a debate during an Oral Question not so long ago and I do not think anything has changed. This is an issue that was unfortunate. The process and the due diligence that was gone through for his appointment were absolutely fine up until the point where we were not in a position to look at the 50,000 or so tweets that Mr Young sent. I pledged to the House that we have a “lessons learned” exercise on the go on that. Representation on the OfS board was debated in Parliament, and the make-up of the board complies with the requirements of the criteria set out in the Higher Education and Research Act. At the moment, during the “lessons learned” approach, we have not yet decided when the last position on the board will be decided. That is something we are considering very carefully in the light of what has happened.

The noble Lord also spoke about competition in the sector. He will know that the OfS has duties that are clearly set out in HERA, one of which is to have regard to the need to encourage competition where that is in the interests of students and employers. That is, if you will, a break that has been included. I hope that gives the noble Lord some reassurance on the issue.

The noble Baroness, Lady Garden, asked about the new arrangements for access and participation. Once it is integrated into the OfS—this brings us back to the regulations we are debating today—we expect that bringing resources and expertise from HEFCE and OFFA together in a single organisation, while still having a dedicated champion for widening participation appointed by Ministers, will provide a greater focus on access and participation. HERA ensures that the Director for Fair Access and Participation will be responsible for overseeing the performance of the OfS’s access and participation functions, for reporting to other members of the OfS on the performance of its functions.

The noble Lord, Lord Hunt, asked why, as he put it, we cannot get the Russell group or Oxbridge to do more on access and higher education. I have already mentioned that 18 year-olds from disadvantaged backgrounds are entering full-time higher education at record rates, including to the most selective universities. However, the noble Lord is right to some extent: more could and should be done. As I mentioned, in the latest guidance the Government have asked the Director of Fair Access to push hard to see that more progress is made at our most selective institutions via the access agreements, and it is an important point. Prior attainment is obviously a critical factor, and universities have been asked by the DFAP to take on a more direct role in raising attainment in schools as part of their outreach activity.

I am not sure I have entirely covered all the questions that were raised but I hope that, with all those answers to a number of questions, I have helped.

[Lord Addington]

I asked specifically whether the access plans will cover disability adaptation. If the Minister can clarify that now, either way, it would help with what happens in future.

[Viscount Younger of Leckie]

They will, but to be able to put some meat on the bones of that, I will write the noble Lord a further letter to provide clarification. I know that this is an important and sensitive area, particularly for him. I beg to move.

Motion agreed.