Higher Education and Research Bill

Lord Judd Excerpts

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

[Baroness Goldie]

My Lords, I shall speak to the government amendments and wait to hear from the noble Lord, Lord Judd, before responding to his amendment. These government amendments relate to the various appeals processes contained in the Bill in relation to a decision by the OfS to deregister a provider, impose a monetary penalty, vary or revoke degree-awarding powers or revoke a university title. The amendments address points of inconsistency and are intended to ensure a smooth and clear appeals process. I emphasise that the amendments clarify and put beyond doubt various procedural points, including that no decision can come into effect while any appeal, including a further appeal, can be brought or is pending; that a provider may appeal against the decision itself, the date on which it comes into effect or both; and that a provider may appeal, in relation to degree-awarding powers and university title only, the exact sequencing of a decision, an appeal and any order which brings the decision into effect. These amendments further align the various appeals provisions across the Bill. They are not a change of policy but simply to try to iron out inconsistencies. I beg to move.

[Lord Judd (Lab)]

My Lords, I am very interested to find my amendment surrounded by government amendments, and I am not quite sure whether to interpret that as good will from the Government towards my amendment or what. Due process sounds an awfully boring phrase, but it is often terribly important. My amendment is very brief and to the point and is about due process. I should remind the Committee that I am involved in the governance of three universities—the LSE, the University of Newcastle and the University of Lancaster. The rights to appeal in the Bill are somewhat patchy. In particular, there is no right to appeal against a decision not to register an academic provider or to challenge the suspension of registration. Decisions over the registration, suspension or deregistration of academic institutions represent significant examples of the exercise of discretionary power by the Office for Students. It seems only right that in the exercise of these powers the Office for Students is properly accountable, and my amendment seeks to ensure that. It is not right that it should be accountable to an appeals process for decisions about removal from the register and yet will not have the same accountability for decisions to suspend or not to register. This conforms to the norms of public law that bodies should be properly accountable.

[Baroness Deech (CB)]

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

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

--- Later in debate ---

I omitted to respond to a point raised by the noble Baroness, Lady Deech, who inquired about the assessment by government lawyers of the potential for claims arising. I do not have that information but I undertake to write to her.

[Lord Judd]

My Lords, the Minister has not altogether reassured me. There is a very important principle in justice that it should not only be done but be seen to be done. There is also an anxiety that it would not be possible to have new applicants who challenged the established order because they were bringing a completely new or fresh approach. If they are refused recognition, surely the normal practice of law is that they should be able to appeal against that decision. I do not see why the Government should resist that, because it is in everyone’s interest that everyone can understand why the applicant was refused. Otherwise, anxiety might begin to build up about what was really happening, along with the anxiety that the Government were backing some of the existing club, as it were, in excluding new members. I am still anxious about the principle of justice in this context, but I will consider very carefully what the Minister has said. At this stage, I shall not move my amendment.

Amendment 145 agreed.