Higher Education and Research Bill

Lord Lisvane Excerpts

2nd reading (Hansard): House of Lords
Tuesday 6th December 2016 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I should first declare that I am one of the founders of the New Model in Technology & Engineering university being established in Herefordshire and an honorary fellow of Lincoln College, Oxford. I express my thanks to the noble Viscount the Minister and his Commons colleague Jo Johnson, for the time and trouble they have taken to engage with noble Lords on this Bill. I think that has been very widely appreciated throughout the House.

I do not have the formidable expertise of many of my Cross-Bench colleagues on the subject matter of the Bill, but I have taken a particular interest in the proposals for delegated powers and especially for the powers to be conferred upon the Office for Students. I hope I shall not offend against the guidance in the Companion—I think it is in chapter 8—about dealing with matters of detail on Second Reading but, as I think will become clear, a lot of these matters of detail are in fact exemplary of broader and important principles.

I first observe that this Bill contains examples of what one might call quasi-legislation, the giving of ministerial guidance, not formal delegated powers which can be formally controlled but nevertheless giving substantial legal authority to Ministers. This has for some time been an insidious and unwelcome change in the character of law-making. The prime example in this Bill is in subsections (2) to (6) of Clause 2. The powers proposed there are extensive with, so far as I can see, no parliamentary check. The powers proposed to be given to the OfS and the degree of discretion which the OfS is to have in exercising those powers are concerning, to say the least. To take just one example, under Clause 15 the OfS may impose monetary penalties,

“if it appears to the OfS that there is or has been a breach of one of its … registration conditions”.

“Appears” is subjective. There is no requirement to determine that there actually has been a breach, nor any reference to an investigative process, although Schedule 3 allows the provider to make representations. The same degree of subjectivity appears in Clause 16 dealing with suspension and Clause 18 dealing with deregistration.

On the monetary penalty provisions, if there is an appeal to the First-tier Tribunal, as allowed for in Schedule 3, the tribunal may withdraw the requirement to pay the penalty, confirm the requirement to pay, or remit the decision as to whether to confirm the requirement to pay back to the OfS. This seems to me, rather worryingly, to be giving the ultimate decision to one of the parties to the appeal, for there are no further rights of appeal. There are more examples in the Bill.

I found the powers proposed to be given to the OfS, centred upon Clauses 40 to 45, extraordinary, and I am very surprised that they survived unamended in the Commons. Clause 40(10) allows the OfS to make its orders by statutory instrument,

“as if the order had been made by a Minister of the Crown”,

but they will not have been made by a Minister of the Crown; they will have been made by the OfS. Clause 43 would allow the OfS by order to vary or revoke an authorisation to an HE provider or an FE provider, even if that authorisation was by Act of Parliament or royal charter.

This is not an ordinary Henry VIII clause—of which we see far too many in any event—where there is at least the involvement of Ministers answerable to Parliament. Clause 43 would empower a body corporate to make secondary legislation amending or even repealing primary legislation without ministerial consent and without any parliamentary scrutiny.

In recent months we have seen framework Bills such as the Childcare Bill, and Bills such as the Housing and Planning Bill, where we were asked to take on trust large areas of policy which would be sketched in by SI after Royal Assent. In this Bill, we now have delegation of legislative power in its own sector to a body corporate. I look forward to pursuing these issues further in Committee and on Report.

Higher Education and Research Bill

Lord Lisvane Excerpts

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

Moved by

[Lord Lisvane]

142: Clause 15, page 9, line 18, leave out “it appears to the OfS” and insert “the OfS has reasonable grounds for believing”

[Lord Lisvane (CB)]

My Lords, as this is the first time I have spoken in Committee on the Bill, I should declare, as I did at Second Reading, that I am one of the founders of the New Model in Technology & Engineering university to be established in Herefordshire —and I am most grateful to the Minister for his mention of that in earlier proceedings. I am also an honorary fellow of Lincoln College, Oxford.

In view of the lateness of the hour, I shall be as quick as I can with this slightly technical set of amendments, all but one of which are concerned with the concept of legal certainty. In each case, they seek to raise the standard required. The Bill allows the OfS to take action “if it appears” to the OfS that particular circumstances have arisen. The actions are rather serious ones—imposing monetary penalties; suspending registration; deregistering; or refusing to renew an access and participation plan.

--- Later in debate ---

[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.

Amendment 142 withdrawn.

Higher Education and Research Bill

Lord Lisvane Excerpts

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

Moved by

[Lord Lisvane]

265: Clause 40, page 24, line 11, after “instrument” insert “with the approval of the Secretary of State”

[Lord Lisvane (CB)]

My Lords, the amendments in this group which stand in my name and the names of my noble and learned friend Lord Judge, my noble friend Lady O’Neill of Bengarve and the noble Lord, Lord Norton of Louth, do three things. Amendment 265 would require the Secretary of State’s approval before the OfS could make an order authorising the grant of degrees. What is proposed in the Bill would replace the powers conferred upon the Privy Council by Section 76 of the Further and Higher Education Act 1992. Indeed, I like Amendment 266, tabled by the noble Lord, Lord Stevenson of Balmacara, even more than I like mine, as his would maintain the status quo. I do not like the idea of delegating law-making powers to bodies other than Ministers. The Delegated Powers Committee noted that such delegations were not unprecedented. For example, I am aware of a delegation under Section 42 of the Wildlife and Countryside Act 1981, and under the Communications Act 2003. However, the existence of precedents does not necessarily make the principle acceptable. When powers are delegated to Ministers, those Ministers are within the reach of Parliament. Under the Bill, the OfS will be, for practical purposes, beyond Parliament’s reach.

The series of amendments starting with Amendment 277 and ending with Amendment 298 deal with the power to vary or revoke authorisations. They take this power away from the OfS and would give it to the Secretary of State. Amendment 511 would make any SI made by the Secretary of State subject to the affirmative procedure. Those would still be Henry VIII powers, and unwelcome on that account, but they would at least be exercised by Ministers. The Delegated Powers Committee, of which I am a member, said in its 10th report of this Session that:

“There is nothing on the face of Clause 43 which limits the way in which the OfS is able to exercise the powers, leaving it wholly to the discretion of the OfS when and in what circumstances the powers should be exercised”.


The committee recommended that the powers should be subject to parliamentary scrutiny and that the affirmative procedure should apply. That would be achieved by these amendments.

Amendment 301 would remove the possibility of a decision on appeal being remitted to the OfS by the First-tier Tribunal, and this issue arose in the group of amendments led by Amendment 142 which we considered last Wednesday, when I argued that such a provision could allow the OfS to be in effect a judge in its own cause. The Minister promised me a written explanation of a similar power in Clause 20, which he has now provided with his letter today. The heart of his explanation is that this power to remit allows the OfS to remake its decision with the benefit of the tribunal’s judgment. He also confirmed that remitting a decision does not rule out a further appeal. I am very grateful for this explanation, which entirely meets the points that I made on that specific provision.

The second clutch of amendments in this group begins with Amendment 344 to Clause 53 and ends with Amendment 360 to Clause 55. The purpose of these mirrors those to Clause 43 but here the subject is the revocation of authorisation to use the title of university, which would no doubt follow the withdrawal of degree-awarding powers as provided for in Clause 43. Once again, the issue is the ability of the OfS to revoke such an authorisation by order, even if it was provided for in an Act or a royal charter. As with Clause 43, this is—if I may employ the expression—Henry VIII on stilts, however improbable a mental picture that may conjure up. As with Clause 43, I do not believe it is acceptable to delegate to the OfS such significant law-making powers in the sector which it is to regulate.

In two of his now growing series of helpful letters—those of 21 December and 11 January—the Minister told us that the Bill does not allow the OfS to take away royal charters. However, it seems to me that the powers given to Ministers by Clause 110, to amend or revoke provisions of a royal charter, are merely consequential upon a decision taken by the OfS. So if the OfS is the prime mover, the fact that it is the Minister who has to exercise that power is a distinction which may not be a practical difference. To complete the picture, Amendment 512 would make Clause 53 SIs made by the Secretary of State subject to the affirmative procedure, again as recommended by the Delegated Powers Committee. I beg to move Amendment 265.

--- Later in debate ---

[Viscount Younger of Leckie]

My noble friend is very adroit at raising some complicated issues. I should answer the question but also go into some detail as to the different scenarios that might occur. I respect the quality of advice that he gives.

[Lord Lisvane]

I am very grateful to the Minister for his careful and detailed reply. The noble Lord, Lord Norton, is on to a good point there. If it is an SI Act 1946 statutory instrument, the Act contains the praying procedure. It would indeed put a Minister perhaps in rather a difficult position, having to defend the case, while having, as it were, abrogated responsibility. That is no doubt something about which we will hear, perhaps in a further edition of these exciting letters.

I do not quarrel with the proposition that the OfS will be best placed to make the assessment, but that does not necessarily mean that the OfS should be able to engage in the law-making process. I fancy that we have once again encountered what we encountered last Wednesday: two reasonable people can disagree about something without either of them being unreasonable. Issues of policy and principle arise in this group of amendments which might well benefit from being reconsidered on Report, but in the meantime I am very happy to beg leave to withdraw the amendment.

Amendment 265 withdrawn.