Higher Education and Research Bill

Baroness Wolf of Dulwich Excerpts

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

Moved by

[Baroness Wolf of Dulwich]

143: After Clause 15, insert the following new Clause—
“Power to restrict enrolments
(1) If the OfS 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 by the provider, or to its ability to implement a student protection plan which forms a condition of its registration, the OfS may place quantitative restrictions on the number of new students that the provider may enrol.(2) The Secretary of State may by regulations make provision about the procedures for imposing such restrictions and about rights of appeal.”

[Baroness Wolf of Dulwich (CB)]

My Lords, this amendment stands in my name and that of the noble Baroness, Lady Garden.

Before explaining why this slightly technical-sounding amendment is the way it is, I should like to explain that I tabled it because quite technical issues are central to the purpose of the Bill and to the Government’s commitment to preserve and raise the quality of the higher education system, ensuring that students throughout the country and the system get a fair and quality deal from the institutions that they attend and to which many of them now pay a great deal of money.

One of the slightly curious aspects of the Bill is that the sanctions which it mentions, and which can be brought to bear by the Office for Students when an institution appears not to live up to its promises and commitments and to the requirements placed on it, seem to be either rather draconian or very restricted. The sanctions are either a draconian response of withdrawing degree-awarding powers or university title, or a whole range of fines, which might be in response to a fraud, on which there is a whole schedule allowing powers of entry. However, what is striking about the sanctions is that they are very different from the way in which, for example, the regulators in the health or school sectors tend to approach their task, which is much more about maintaining or improving something as a going concern—that is, how they might work with it.

I have raised the issue of certain powers, which we understand from the Minister are seen as not as relevant under the proposed new regime as they were under the old one, both because closing down an institution in which students are studying should be seen as an absolutely last resort—I think we all share the Government’s determination that institutions should be of high quality and serve their students—and because a bit of history is in order.

In recent years we have seen a very large increase in the number of institutions in this country that provide higher education. Some have been universities, where numbers have increased, and many have been alternative providers, where numbers have increased enormously. Some of the alternative providers have degree-awarding powers and some award higher national diplomas or certificates, but many of them also have tier 4 sponsor status, which allows them to enrol students from outside the EU. Between May 2010 and September 2016, no fewer than 968 institutions had their tier 4 sponsor status withdrawn. That is a fairly terrifying number, because all those institutions had students in them, who were studying and had paid money—and, basically, they had their education and their plans pulled out from under them.

As part of this recent history, there was also a somewhat fraught hearing with the Public Accounts Committee, which I seem to remember was not happy with the way that the Government had been regulating these institutions, and an NAO report. Following that, BIS, as it then was, took additional powers, which included imposing student number controls on alternative providers. One of the other things that has happened in the last few years is that student number controls for universities have been lifted, so universities can recruit and enrol as many students as they wish. I am not implying that an alternative provider is a bad thing—actually, I am strongly in favour of greater diversity and of an open, diverse and innovative sector—but, in a spirit of risk-based regulation, we have to take account of that recent history.

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[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.

[Baroness Wolf of Dulwich]

I thank the Minister most sincerely for what he has just told us and for—I do not want to call it a gloss—the additional information he has provided. I am extremely relieved to know that it is clearly the intent of the Government that the OfS should have a wide range of actions and get deeply involved not merely in risk regulation but in avoidance of catastrophe, which I have alluded to. I am extremely grateful to the Minister, I am delighted to have had the points of fact he has just given us placed on the record, and I beg leave to withdraw the amendment.

Amendment 143 withdrawn.

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[Baroness Deech]

I am glad to support the noble Lord, Lord Lipsey. I have the National Student Survey in front of me. It raises profound questions about what higher education is and how it has become perverted, in that we see the student now as a consumer, because the student is paying at least £9,000.

I draw attention to some statements in the survey. One says that the workload on the student’s course is manageable. We ought to think about what that means: manageable for whom, whether you are a lazy student or an avid one? Another says that the course does not apply unnecessary pressure on the student. I am not sure about that either. There is another that says that all the compulsory modules are relevant to the student’s course. Even now, 50 years after completing a law degree, I am still pondering whether Roman law was really relevant to my course, but I yield to those who thought it was. That was long before we joined the European Union, which in a way made Roman law and the continental system more relevant. These questions would be better addressed to someone going on a package holiday. I am not sure that as it stands this student survey should play a part in the most profound questions that we face—about what a university is, what sort of young people we wish to turn out and by what process. So I hope that the survey will not be included, or that if it is it is thoroughly revised, bearing in mind the outcomes for which we are looking.

[Baroness Wolf of Dulwich]

My Lords, I support the comments of the noble Lord, Lord Lipsey, on the National Student Survey, and will speak to Amendments 194 and 201 standing in my name. Before doing so I would like to underline that we are talking about the use of measures to give ratings. With respect to the comments made by the noble Baroness, Lady Blackstone, I think that there is a huge difference between what is useful internally and what is suitable for a high-profile, high-stakes national rating system. In my first amendment I have suggested, or requested, that any measures used should be criteria-referenced, and therefore provide a substantive rating and indication of attainment or degree of attainment. I am slightly alarmed that this is even at issue, and take issue with the noble Lord, Lord Willetts, when he suggests that benchmarking is the way forward.

I have an example from the rail regulator. We can be told what proportion of trains are late, which is a substantive measure: we can have a target—which in fact it has—which says that it is reasonable that there should be X per cent, and then you fall this far short. We can be told whether a given rail company is doing better or worse than the others. This year it is really pretty easy for everybody to do better than Southern, but does that mean that they are all doing well? I do not think that you can conclude that.

If you have benchmarked or relative measures, the problem is that all that you are being told is how people stand relative to each other. We might have a system in which the quality of teaching was excellent across the board, yet in which half the institutions would by definition be below average; or we could have a system in which all the institutions were doing rather poor-quality teaching, yet in which half of them would be above average. That is not the sort of system that we wish to use. We would not wish to imply to students that that gave them helpful information. A measure that is bad does not become good by being made relative; and a measure that is good is good in its own right, not simply by being turned into something in which you rank people on the curve. That is an important aspect of how the Office for Students approaches the sorts of ratings that it gives and the way in which it conceives of them.

[Lord Willetts]

Does the noble Baroness accept that her objection is the opposite of the one raised by the noble Lord, Lord Lipsey? His objection was that these are raw data that cannot be trusted. As a result of that concern, they are being benchmarked, and that indeed raises the valid questions which she has raised.

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[Baroness Wolf of Dulwich]

I think the noble Lord, Lord Lipsey, meant a number of things, but I am not saying that raw data are the problem. I think he was also referring to aspects such as whether you have a decent sample size. Benchmarking is not the answer. I am somewhat alarmed that it seems to have become a major part of what is under discussion.

My second amendment is something that is not an exceptional ask in the world of regulation. Before elaborating, I have a request for the Minister. If at the end of this debate he does not think that the Office for Students can and should report on whether its statistics meet the UK Statistics Authority’s code of practice, will he explain why? Most regulators which I know that are involved in collecting statistics for information and regulation proudly boast on their websites that their statistics meet the code of practice.

Things that we can be proud of in this country are the UK Statistics Authority and that we have a record of knowing what makes a good-quality statistic and of making sure that among public bodies and for public purposes we do our very best to meet those criteria. One thing we know, for example, is the importance of sample size. We know about the importance of the reliability of measures. We know that in many things it is quite difficult to get a valid measure and that it is just as well to say that we cannot measure them properly.

Another thing we know is that the quality of statistics can change over time and that you have to keep looking at them. One thing that has clearly changed over time is the degree to which one can assume that a standard that was used in one time and place has been carried over to another. Many of us in these debates have been standing up for the quality of university education. It is pretty clear that in North America, this country and many other countries over time there has been grade inflation and that the proportion of people getting higher-class degrees and higher marks cannot be fully explained by harder working students, miraculous teaching or any other splendid innovation. There has been a slippage. One of the reasons there has been grade inflation and one of the reasons why we need to be very careful about this—this is why I raise the point quite clearly—is that students like easy grades. Since student satisfaction is quite important for promotion, particularly in North America, it has also been studied a great deal. We know that student satisfaction judgments and scores rise the more easily instructors, lecturers and examiners grade. We also know—these are statistics that I use a great deal in my teaching because students like them—that lecturers and professors get higher student satisfaction scores if they are good looking. This applies to both men and women; it is completely gender-neutral.

So there are things we know about specific statistics, and we also know more broadly that there are things we need to look at to know whether statistics are valid, reliable and fit for purpose. As the noble Lord, Lord Lipsey, has indicated, there are aspects of student satisfaction measures which require careful attention before they are used for something as important and high-stakes as a rating of teaching quality issued by the regulator.

The final thing I want to say about the importance of observing a code of good practice—and I have no reason to suppose that the Office for Students will not, but it would be nice to have reassurance that it will—is that you cannot add up completely unrelated statistics to make a meaningful total grade. This is often described as “apples and oranges”. Apples and oranges are relatively easy to add up, but trying to take a large number of different measures with different levels of validity—different levels of reliability in terms of whether you would get the same thing if you measured it again; different types of statistics, some with clear numbers attached and some judgmental—and adding those all up into a single judgment is a pretty dicey affair, at best. It is interesting that it is something that on the whole has not been done in research. It has always been done at a much more disaggregated level. However, it is also something which we need to be very careful about because, among other things, it risks not informing students but misleading them.

I find it very strange that, at the same time as saying that we want to give maximum information to students, we are also saying that the Government in their wisdom—or the Office for Students in its wisdom—are going to pull it all together into a single-rank order which cannot be unpacked. What is really useful to students is to have lots of different information on different aspects, so that they can look for the things that they most want.

Is there any reason why we should not expect the Office for Students to follow the code of good practice that we already have in this country and which many other regulators follow? I also suggest that, once again, we only use statistics which actually have substantive meaning. That in itself makes it extremely unlikely that a gold, silver, bronze all-encompassing, all-singing, all-dancing rating is going to fit the bill.

House resumed.