Higher Education and Research Bill

Baroness Garden of Frognal Excerpts

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

[Lord Storey (LD)]

My Lords, on behalf of the noble Baroness, Lady Wolf, who is not well, I shall move this amendment and speak to this group. We wish her a speedy recovery. The Bill proposes to reverse the current legal position that prevents Ministers giving guidance and directions about particular courses of study. We have been told that the power is needed to resolve an existing legal lack of clarity about the Secretary of State’s power to communicate his—in this case—priorities. While the Government’s amendment means that the Secretary of State cannot now guide or direct the Office for Students to prevent the closure of existing courses or the creation of new ones, it will, nevertheless, still allow the Secretary of State to decide, in part, what subjects should be funded.

Although most funding for teaching will come from fees backed by student loans, direct funding from the Office for Students is essential to meet the additional costs of subjects that are expensive to teach; for example, chemistry and engineering, et cetera. The Bill would give the Secretary of State a new power to tell the Office for Students not to fund a particular subject if that subject cost more to teach than the maximum fee that the university was allowed to charge. This goes significantly beyond the current power to give general directions about ministerial priorities, which the Funding Council translates into allocations to universities.

With these proposed amendments, Ministers would still be able to give the Office for Students guidance and direction about their priorities for the funding available but the final decisions on funding for high-cost subjects would be taken by the Office for Students, as they are now by the Funding Council. I beg to move.

[Baroness Garden of Frognal (LD)]

My Lords, I support the amendments in this group to which I have added my name and those that have come from the Cross Benches—Amendments 69 and 510—on which I think we will be hearing shortly. These amendments come out of the report from the Delegated Powers Committee, which claims that the wide range of functions that are now being conferred on the Office for Students will give it the ability to bring change to the whole of the higher education sector. We consider that the guidance issued by the Secretary of State under Clause 2 will act as a significant control over how the Office for Students exercises its functions. However, we cannot guarantee that Secretaries of State will always be wise and non-interventionist, and I think that these amendments will provide much-needed safeguards in the Bill.

[Lord Norton of Louth (Con)]

My Lords, Amendments 65 and 510 in this group were tabled by the noble Lord, Lord Lisvane, who is unable to be with us today. I wish to make a few comments in support of those amendments.

The concept of quasi-legislation—the generation of rules and guidance by public authorities—is not new. However, the use of such quasi-legislation appears to be growing: it is convenient to government, it provides some degree of flexibility and it may also put it beyond legislative scrutiny and approval unless provision is made for such scrutiny and approval.

This Bill is of extreme importance. It creates a body, the Office for Students, that is much more powerful than HEFCE. The functions that it draws together are quite substantial and extensive. They enable the OfS, essentially, to shape the nature of higher education. That in itself raises issues which we will be discussing further. However, here, under Clause 2(2), we have the power to give guidance but without any transparency and with no parliamentary involvement. That matters, especially in the context of this Bill. Through the power to give guidance, the Minister may, effectively, usurp the power of the OfS. I am sure my noble friend the Minister will say that guidance will be rare and benign, but there is nothing to stop a future Secretary of State with less than benign intent using the power on a scale that is significant, both quantitatively and qualitatively.

As the noble Baroness has just said, this provision has been commented on by the Delegated Powers Committee. It stressed that there is no parliamentary scrutiny of the guidance and no requirement for it to be published. In response to the Government’s defence of the provision, the committee goes on to say:

“We are wholly unconvinced by the Department’s reasons”.


That includes, as I have already stressed, the fact that the remit of the OfS goes far broader than HEFCE, and the guidance that the Minister can give to HEFCE has no statutory basis.

The committee also makes the point, of course, that the requirement for the OfS to “have regard to” guidance rather limits it. The Office for Students could, if it had cogent reasons, discard the guidance. However, there would have to be compelling reasons for that, and, as the Delegated Powers Committee points out, under Clause 71(1), the Secretary of State has the power to give the OfS “general directions” about the performance of its functions.

There is a powerful case for ensuring there is parliamentary scrutiny and engagement in respect of the power to give guidance—that is the purpose of the amendments tabled by the noble Lord, Lord Lisvane. Other provisions in the Bill are clearly Henry VIII provisions. The measure is extensive in terms of the concept of quasi-legislation. I am sure we will be coming back to this on several occasions during the passage of the Bill. However, I look forward to my noble friend’s response acknowledging the significance of the powers that are being confirmed and I look forward to hearing what the Government plan to do about it.

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[Baroness Garden of Frognal]

My Lords, in deferring to the noble Baronesses on the Cross Benches, Lady Brown and Lady Wolf, I now have pleasure in supporting the amendments in this group to which I have added my name. They express concerns raised by Universities UK and GuildHE, two bodies with immense expertise in this sector and fully committed to its standards and reputation.

As the noble Baroness, Lady Brown, has said, central to our concerns about the erosion of university autonomy is the need for the Government and the Bill to be clearer in their approach to standards. UUK and others have noted that the Bill unhelpfully elides quality and standards—we have had reference to this already in debate in this Chamber—but they are two separate concepts in higher education policy. While there is a legitimate role for the new Office for Students in assessing quality, standards are the preserve of independent academic institutions and should be free from political interference. The proposed changes to the Bill would therefore: separate quality and standards to enable different treatment in subsequent clauses; clarify the definition of standards to focus on threshold standards and a condition of registration focused on academic governance of standards; recognise that academic standards are sector-owned and ensure a sector-owned process for agreeing threshold standards; and remove or limit the reference to standards in relation to the teaching access framework, as it is inappropriate to attempt to rank standards.

Quality and standards are separate, distinct concepts in higher education. Amendments 63 and 129 to 131 would remove references to standards to make what was one potential condition of the OfS into two separate conditions for quality and standards. Amendment 131 would make robust academic governance a condition of registration with the OfS, which protects the principle that self-critical autonomous academic institutions are responsible for the maintenance of academic standards.

Amendments 167, 169 and 170 would ensure consistency of definition when it comes to quality and standards and, again, that governance of academic standards sits with the institution. Amendments 168, 180 and 184 seek to clarify that the proposed assessments of teaching quality established by these clauses is based on the quality of teaching in an institution and not on standards, while Amendments 214 and 215 would ensure the separation of quality and standards once again.

At various points the Bill brackets quality and standards together, as the noble Baroness, Lady Brown, has pointed out, when they are in fact related but distinct elements of quality assurance and assessment. Academic quality covers how an institution supports students to enable them to progress and achieve their award; academic standards are the student outcome standards that individual degree-awarding bodies set and maintain for the award of their own academic credit or qualifications. As drafted, the Bill risks the OfS being able in future to define and determine the standards applied, rather than ensuring that the standards set by autonomous universities are met.

During Committee in the Commons, the Minister gave some reassurance, saying:

“Let me be absolutely clear … this is not about undermining the prerogative of providers in determining standards. This is about ensuring that all providers in the system are meeting the threshold standards set out in the ‘Frameworks for Higher Education Qualifications’, a document endorsed and agreed by the sector”.—[Official Report, Commons, Higher Education and Research Bill Committee, 15/9/16; col. 308.]


This was helpful but the lack of clarity in the Bill should be addressed. It is essential that student outcome standards remain the responsibility of autonomous institutional academic communities and continue to reflect the pedagogical diversity of higher education. I hope the Minister will respond favourably to these amendments.

[Lord Willetts]

My Lords, briefly, I congratulate the noble Baroness, Lady Brown, on her lucid explanation of the thinking behind her amendments. She makes an absolutely correct point: quality and standards are distinct. As they were always put together in some of the original drafting, the understanding of their different functions in the system was being lost. She is right to remind the House of that. I do not know about the exact way in which her proposals have been drafted but the spirit in which she is trying to make that distinction much clearer must be right. We already have, through the QAA, a direct role in the regulation and inspection of quality, and that is right.

However, to just comment on what the noble Baroness, Lady Garden, said, there also is and has been a legitimate role in standards. Of course universities and higher education institutions have to be responsible for the specific decisions about standards, but threshold standards have been part of the QAA’s remit. At the moment, for example, in response to I think widespread concern about the effectiveness of the external examiner system—a concern raised by the Minister for Universities and Science, who it is good to see with us again today—HEFCE is investigating how that system operates. It is absolutely not, and should not be, intruding on the autonomy of individual institutions, but it is undoubtedly, in a broad sense, investigating and considering standards.

Provided that we have the capacity for that type of engagement in standards to occur—as we heard from what the Minister said in the other House, the threshold standards is a legitimate function as well—I hope it will be possible to find a way forward which embraces the spirit of what the noble Baroness, Lady Brown, is doing but at the same time recognises that any regulator has some legitimate role in standards, not just in quality.

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Moved by

[Baroness Garden of Frognal]

72: After Clause 2, insert the following new Clause—
“Meaning of higher education
For the purposes of this Act, the provision of higher education by English higher education providers comprises higher education provision by—(a) universities,(b) colleges of further education, and(c) other higher education providers, both registered and unregistered.”

[Baroness Garden of Frognal]

My Lords, in the absence of the noble Baroness, Lady Wolf, I beg to move this amendment, to which I have added my name. It attempts to ensure that a proper meaning of higher education is in the Bill—the public deserve to know what the Bill means by it. In the absence of a clear definition, it is important to specify the organisations that can provide it. Universities and colleges of further education are important providers of higher education and must not be overlooked in the Bill, but there are other providers, which may be registered or unregistered. There are different criteria for registered and unregistered providers, and both have a part to play. We also need to make it clear that not all providers are universities. So, not necessarily on the face of the Bill but somewhere in the guidance, there should be clarification, as provided for in the amendment.

[Baroness Watkins of Tavistock (CB)]

My Lords, I draw attention to my interests, as declared in the register.

I support the amendment, to which I have added my name. As the noble Baroness, Lady Garden, has already pointed out, the majority of higher education will be undertaken in traditional higher education institutions, including further education colleges. Those institutions are accountable for innovative, appropriate curriculum design, as outlined earlier by my noble friend Lady Brown. It is appropriate that curriculum design includes enabling students to have degrees awarded when a proportion of their programme is either with employers or on placements. In health, for example, students need to learn in hospitals and communities, and some very innovative new approaches in higher education are associated with degree-level apprenticeships. At the University of Exeter there is an ambitious approach to the new degree-level apprenticeship schemes, which involve working with employers and their staff. The first of these programmes commenced in September 2016—a BSc honours in digital and technology solutions. It involves working with four employers, including IBM.

A degree-level apprenticeship offers a new route to achieving a university degree in collaboration with employers. Apprentices are full-time, paid employees of the business partner, but a proportion of the student’s time is spent participating in a programme, using blended learning, residential teaching blocks and assessed projects and placements.

Therefore, it is imperative that we are clear in the Bill about the definition of higher education and that we recognise that, whether it is in health or industry, part of students’ higher education experience is increasingly in a workplace. Amendment 72 would encompass, and make provision for, this approach through the definition that it provides, thus strengthening the Bill at this point.

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[Viscount Younger of Leckie]

My Lords, I can understand the motivation behind this amendment. At the outset, I would like to address a point raised by the noble Baroness, Lady Watkins, when discussing definitions. As she will know, we want to encourage innovative approaches, and the question of degree apprenticeships very much comes into that. We wholeheartedly support the need for innovative provision and I want to assure her that the Government are fully committed to degree apprenticeships—this is captured by the OfS’s duty on promoting choice. In the absence of the noble Baroness, Lady Wolf, I would be happy to further discuss this amendment outside the Chamber with her or any other speaker in today’s debate. For now, I shall keep my comments relatively brief.

I fear that this amendment inadvertently goes too far in that it seeks to extend the regulatory coverage of the OfS to all higher education providers as defined by the proposed new clause, including those not on the register. The OfS must focus its resources and regulatory activity where public money is at stake. Extending its duties in this manner—for example, in promoting quality, choice, opportunity, competition, value for money and equality of opportunity—increases the OfS’s regulatory purview and risks decreasing its ability to focus attention where it is needed most; that is, on monitoring those institutions which pass the regulatory entry requirements to the OfS register.

We discussed definitions at some length last Monday. The Bill uses “higher education providers” as a blanket term to mean any provider of a higher education course as defined by the Education Reform Act 1988, including further education colleges providing higher education. This is already defined in the Bill in Clause 77. I very much noted the question raised by the noble Baroness, Lady O’Neill, and which was alluded to by the noble Lord, Lord Stevenson, on clarification of what “English higher education provider” means. Although I have, I hope, reassured noble Lords that it is defined in Clause 77, I do feel another letter coming on to clarify to the House exactly what we mean by that. I hope that that is of some help. Therefore, we believe that introducing a new definition is unnecessary and could have unintended consequences.

I understand the sprit in which this amendment has been tabled. However, the OfS’s regulatory role is defined by those providers that it registers. I respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Garden of Frognal]

I thank the Minister for his reply and note that Clause 77 includes the meaning of “higher education providers”, but not in quite the same clear way that we have set out here. We look forward to hearing a fuller explanation in answer to the question posed by the noble Baroness, Lady O’Neill. This amendment was on a point of clarification. It was not the intention that it sit on the face of the Bill but rather that we have a simple explanation of “higher education” which would include full and part-time students and all the other different points we will come to later in the Bill. Meanwhile, I beg leave to withdraw the amendment.

Amendment 72 withdrawn.

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[Lord Stevenson of Balmacara]

My Lords, in the absence of the noble Baroness, Lady Royall, and with her consent, I shall introduce her amendment. I am grateful to the noble Baroness, Lady Garden of Frognal, and the noble Lords, Lord Judd and Lord Lexden, all of whom are in their places, for their support.

This amendment was moved in Committee in another place by my honourable friend Paul Blomfield. It raises an issue he has been concerned about and has experience of, in that he sits for a constituency in Sheffield which is alleged to have the highest number of students who are registered to vote. The underlying issue is the move to individual electoral registration under which all of us are required to sign up individually to vote. This has had a huge impact not only on family households, where many people have dropped off the register, but on the practice which had been going on for many years in universities. The standard way in which that operated was that universities which had halls of residence, or at least organised accommodation for students, registered them en bloc. That, unfortunately, has been outlawed and there is a real danger that students will not be on an electoral register—not necessarily the one where the university is, but any one.

That has two implications. It is important that people should be registered to vote. If you do not have a chance to vote, you are not a part of the overall democratic process. That is a bad thing, particularly for students and young people, who should be brought in at the earliest opportunity—perhaps even younger than today—in order to ensure that they get into the habit of voting and participate as a result. It is a particular issue for universities, which will not have the voice of those who are participating at university in the wider democratic process. There are two sides to this.

If students are not registered in the university or higher education institution they are at, those constituencies will not only be disadvantaged in terms of the representation of people who live and operate in those places but will shrink, which will affect the size of constituencies and therefore have an impact on the way in which they are drawn up. Many issues arise from the initial proposal.

The background to the particularity of this amendment is that attempts were made to see whether universities could help and assist in this. It was found early on that universities already collect most of the data needed to register students. All that is needed is a national insurance number. This is not routinely collected by universities because students are not employed there.

Obviously there are ways in which one could pose questions to students at points in the process of being at university without being intrusive. The example I have here is from the University of Sheffield—but there are other institutions—which worked with the city’s electoral registration officer and introduced questions for students at the time they were registering or reregistering for their courses. The first question was, “Do you wish to register to vote?”. If they said no, no further action was taken; and if they said yes, they would like to register to vote, they had to provide their national insurance number. The results were amazing: 64% of students opted to register to vote within Sheffield, although there were difficulties in getting some students to find their national insurance number—a problem not confined to students; I can never remember where mine is. I have now memorised it because I got so cross about being unable to complete forms online at the time I wanted to do them. I now have it and can give it to you now, if you want it, without breaching any personal information, of course.

The Cabinet Office then made a change and issued new guidance, which meant that it did not have to have a national insurance number. This was a sensible and unexpected move in support of the process by the Cabinet Office, and I am delighted it happened. We have an opportunity to help in that process. It has a more general particularity than just this Bill, but it is an opportunity that we should take to do it.

The amendment would create an opportunity within which universities could help participation using their function, not as a public sector body but as a public body with wider interests in the public well-being, in order to achieve the good outcome of having more people registered to vote. I beg to move.

[Baroness Garden of Frognal]

My Lords, I have added my name to this amendment for the good reasons set out by the noble Lord, Lord Stevenson, to ensure that all eligible students are provided with an opportunity to opt in to the electoral register at the location in which they are studying. Since I have been in the Chamber I have been handed a helpful briefing from the Cabinet Office on this very amendment, which points out that as part of the Government’s Every Voice Matters campaign, the Minister for the Constitution is holding a series of round tables, including with the higher and further education sector, to assess what barriers there may be to electoral registration and what the Government could do to address them, so this issue is under active discussion.

As the noble Lord has said, under the old system of block registration, universities could go quite some way in assisting their students to become enrolled, but under individual electoral registration that has ceased to exist and the focus is on individuals to register. The benefit is that this system is more resilient to fraud, has a reduced risk of a student being registered at two locations, and—which I think is rather more important—has a reduced risk of a student being able to vote at several locations. But as we know, when someone is moving house, registering to vote is a low priority and many people realise that they did not get around to registering only when it comes to election time and it is already too late. Analysis by the Electoral Commission shows that areas with a high concentration of certain demographics, including students, private renters and especially young adults, where people move on a regular basis are particularly in danger of having low registration numbers. It is therefore important that special care is taken to prevent at-risk groups failing to register and have their say at an election.

We are well aware that universities already encourage students to register and vote, as the noble Lord, Lord Stevenson, spelled out. Sheffield has been successful in increasing the number of students registered and many other institutions are already taking steps to encourage young people to ensure that they are on the register. Surely it is vital that the student voice should be heard in the democratic process, and that young people should get into the habit earlier rather than later of making their voices heard in elections. For all those reasons, I hope that favourable attention will be given to this amendment to try to make sure that as many students as possible are both registered to vote and then use their vote.

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[Lord Storey]

My Lords, your Lordships’ House has an excellent record on the issue of mental health. In fact it was this House that persuaded the Government, by insisting on it, on parity of NHS treatment of physical and mental illness.

On many issues we are persuaded by our own personal experiences. I remember taking my daughter the couple of hours’ drive to university, five years ago now. A couple of years later she said to me, “You don’t realise the abject horror that was. You put me in the car with all my possessions and dropped me off at this strange place where I knew no one and had to sink or swim”. In her halls she befriended and became close to a girl who was in her first year and whose sister, a year older, was at another university. Very tragically, those girls’ father then died at a relatively young age. Both sisters were completely traumatised. You would be; you are a young girl away from home for the first time, and your father dies. One university was absolutely stunning in the support that it gave that girl. Her sister at the other university did not even get to see her personal tutor; no support was given at all. That is the difference. That is why this amendment says, importantly, that the university “must”—not “may”—provide services for mental health.

It is often said that when it comes to mental health, ignoring the problem—if it is even recognised in the first place—is not the solution. However, neither is dealing with it alone. Nationally, only 13% of the NHS budget is currently committed to mental health services, despite the fact that mental health illness accounts for 28% of the total burden to the NHS. The problem in many universities across the UK is the same: the underfunding of support services does not accurately reflect today’s reality. Many thousands of children and young people when at university are isolated, unhappy and—because of the pressures of the new regime, if you like—perhaps have eating disorders and self-harm. Tragically, of course, some can take their own lives.

There is still huge stigma around mental health, which means that young people are not getting the support they need. The amendment is important not only for those who might develop mental health problems during their time at university but for those who have experienced mental health problems in the past. Young people who need help and support from mental health services can find themselves with no help or support when they most need it. To get any service from adult mental health services, the threshold in terms of severity of illness is higher than for children and adolescent mental health services, CAMHS, so many young people are locked out from receiving the service. For some, their illness has to reach a crisis point before they receive the service that they need, with the effect that their entry to the service is more traumatic and costly to the young person, their family and the service than if their needs had been met earlier. Differences between service locations and the style of the two services alienate many young people, who end up slipping off the radar of services. Ensuring that mental health support services are available to students when they need them is really important.

I have one final observation. There is a clear link between poor mental health and student retention. The emphasis on student retention is higher in those institutions that provide proper mental health support than in those that do not. I hope we will realise that, just as we have done in the education service as a whole and in the NHS, providing a service in universities is hugely important. Sometimes we say, “Oh, there’s no money available”, but of course there is money available. I sometimes have a little wry smile on my face when I get to Euston station and see all the billboards advertising different universities. The cost of that runs into hundreds of thousands of pounds. Surely we can find the money for every university to provide mental health support for its young students—not “may”, but “must”.

[Baroness Garden of Frognal]

My Lords, I support my noble friend’s amendment. In coalition, our Health Minister, Norman Lamb, campaigned staunchly for parity of esteem and funding for mental health in order to bring it up to the same standards as physical health. We are still a long way from achieving that parity.

My noble friend has spoken particularly about students. In the amendment we included care for university staff, many of whom work under intense pressure. The introduction of new assessment measures in the Bill may well increase those pressures on staff, many of whom may be on insecure contracts, with high ambitions, high expectations and long hours. We know that many universities already have a great duty of care to their staff as well as their students, but this measure would see all universities, as places of study and work, fulfil their duty of care to both their staff and their students.

[Lord Judd]

My Lords, I commend the amendment. It is enlightened and imaginative. University should be a thrilling and fulfilling experience. Of course it should be testing—there is no question about that—but it should be an experience in which a person develops their potential and begins to flourish intellectually and as a being. There is no doubt now, with our increasing awareness of the nature of mental illness, that there are disturbing numbers of students for whom that is just not the reality, and university becomes a hell. As a civilised society, we should not tolerate a situation like that when very often quite a small amount of highly professional help can enable students to come out of this nightmare and join the rich learning experience. The amendment is just the sort of thing this House should take part in.

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Moved by

[Baroness Garden of Frognal]

110A: Clause 9, page 6, line 14, at end insert—
“( ) Information provided to the OfS and published under subsection (2) must separately identify the number of care leavers within each overall figure.”

[Baroness Garden of Frognal]

My Lords, I recognise that the noble Earl, Lord Listowel, is not here to move the initial amendment in this group, but the other two are my Amendments 113 and 115, which have already been spoken to, largely by my noble and learned friend Lord Wallace, the noble Baroness, Lady O’Neill, and the noble Lord, Lord Stevenson. These amendments have been proposed by the Open University which, of course, has a tremendous record in encouraging diversity of applicants, both through age and through disability.

An analysis of current statistics demonstrates the dramatic decline in the number of part-time students aged 21 and over. In England, the number of part-time students aged 21 and over has declined by 57% since 2007-08. Since then, nearly 400,000 part-time students aged 21 and over have been lost from higher education. Most initial entrants into higher education studying part-time are aged 31 to 60. Participation by this age group has declined more steeply than any other, a decrease of nearly 60% since 2007-08 compared to 2014-15. As age group data are already collected by the Higher Education Statistics Agency from HEIs, it would not be overly resource-intensive for HEIs themselves to publish such data if this is included in the Bill.

The second amendment refers to disability, which is also seen as a disadvantage to social mobility. The Bill makes no provision for compulsory reporting to improve transparency. By introducing compulsory publication of data relating to the access, participation and attainment of disabled students, not only will transparency be markedly improved but HEIs will be encouraged to take greater responsibility for working towards eliminating the disabled student attainment gap. The Equality Challenges 2015 data report indicated that 68.7% of disabled students attained a First or 2.1 degree qualification compared to 70.4% of non-disabled students. Therefore, closing or substantially narrowing gaps such as these between those with or without disabilities is a key theme in the recently published Green Paper on work, health and disability.

I recognise the point made that disabled students may choose not to self-declare, but, in any event, it could be helpful in raising both aspiration and attainment to have these characteristics listed. I look forward to the Minister’s response. I beg to move.

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[Baroness Goldie]

For reasons which I think are apparent to us all, there are issues of sensitivity there. It would be ill-advised either to disregard or underestimate the significance of that sensitivity. I repeat that interesting and important points have been raised. We will reflect on them. On the specific issue raised by the noble and learned Lord’s colleague, I undertake to write. I ask the noble Baroness to withdraw the amendment.

[Baroness Garden of Frognal]

My Lords, I thank the Minister for responding, in particular to the amendment in the name of the noble Earl, Lord Listowel, who as we all know is a tremendous champion for those in care. All the amendments aim to make it a more level playing field for groups which have not hitherto had the same advantages. I also thank my noble friend Lord Willis and my noble and learned friend Lord Wallace for their interventions—my noble friend Lord Willis raised an interesting issue about the data of HESA not being accessible. We shall all seek ways of increasing the engagement of these particular groups in higher education. In the light of the Minister’s remarks, I beg leave to withdraw the amendment.

Amendment 110A withdrawn.