Higher Education and Research Bill

Lord Lucas Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords
Wednesday 8th March 2017 Lords Chamber

[Viscount Younger of Leckie (Con)]

I am sorry to interrupt my noble and learned friend but I believe that the amendment is within the group we have just concluded.

[Lord Lucas (Con)]

My Lords, I believe that my noble and learned friend has the right to speak to any amendment in its place in the Marshalled List.

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Moved by

[Lord Lucas]

126: Clause 59, page 37, line 24, at end insert—
“( ) The OfS may publish any information that it holds as Open Data if it considers it to be in the public interest to do so.”

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[Lord Lucas]

My Lords, with the permission of the noble Lord, Lord Willis, I wish to speak also to Amendment 127. With these amendments I seek merely to replicate existing good practice, as my noble and learned friend said that he was seeking to do a moment ago.

It appears to me that one of the great successes of the coalition Government was the move to open data. One of my earliest exposures to that occurred in 1996 and 1997, when I was the Whip here for the Ministry of Agriculture in the middle of the BSE crisis and we spent a year trying to understand what was happening—what the route of infection was and how the disease worked. We had some good scientists in the Ministry of Agriculture, but eventually we took the decision to release the data to outside scientists. Three weeks later, we had the answer. It was not that they were better scientists but that there were more scientists with a different set of ideas. That success has been replicated in many aspects of the economy through this Government’s determination to make data open and accessible for commercial and other purposes to a very wide range of people. I regret to say that in my own business, The Good Schools Guide, this has resulted in all sorts of competitors popping out of the woodwork who suddenly have access to all sorts of interesting data about schools and are doing things with those data that I had not thought of doing. That is very tiresome, but as a principle it is excellent.

University data have been locked away. There is a great chunk of data in UCAS. Anybody who has tried to deal with that body has found that it is an astonishingly hard nut to crack. It is unco-operative, even to the extent of destroying references which might have been used to link UCAS data to other datasets. I hope that is now changing. This Bill is a great instrument in that regard. However, UCAS has lots of data which students need to know, such as data on the actual requirements to get on to a particular course. For example, a document may say that AAB grades are required to get on a particular course, but is that what is actually required? Smart schools know that that is not the case and that you can get on that course with three Bs. However, unless you have that sort of resource, you tend to think that what is stated by UCAS is accurate. What are the chances of getting on a course? What is the ratio of applicants to places? Again, those seem to me obvious data that should be available. Therefore, I hope that there will be an attitude of openness and of making data consistent, easily understood, linked to other data sources and produced promptly.

At the moment, HESA data on who has joined universities and on what terms appear 18 months after those students have joined their universities. Why is that? There is absolutely no good reason at all for that. There is no similar practice in the DfE with regard to schools and schools data. Those data are provided much more quickly. Providing data late merely means that everything is out of date, less connected, less relevant and harder to keep up with.

If we adopt an attitude of providing open data where possible, and managed closed data as with the national pupil database but making it as accessible as possible, we will get much better information sets available to students and we will really start to get at questions such as drop-out rates. Why do students drop out of courses? We do not know. It is not a good thing. It is very tough for the students and it is not fun for anybody. It is certainly not fun for the Government, who end up with a chunk of loan that will probably never be repaid. We need to understand why that is happening. Students need to see that this is coming. As others have said, getting HESA’s permission to publish those sorts of data is extremely hard. It is something on which we absolutely ought to be taking a lead, as the Government have done in other areas in the Bill.

I want from my noble friend the comfort of knowing that in this Bill the Government have equipped themselves with everything they need to make data open wherever they can and that they will not accept old practices as the way that things should go forward. I beg to move.

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[Lord Young of Cookham]

My Lords, I am grateful to those who have spoken in this debate for addressing data issues. I entirely share the view of my noble friend that as much data as possible should be made openly available as soon as possible, and I have no difficulty in endorsing the broad principles that he enunciated.

However, I do not think that the issue here is about the powers to obtain data under the Bill. The current drafting already enables the OfS to make data available in connection with the performance of its functions and it also gives the Secretary of State the power to require application-to-acceptance data for qualifying research purposes. I am sure my noble friend will accept that, however we draft the powers of the OfS, data protection rules will necessarily mean that open data are subject to restrictions on sensitive and personal data.

With regard to the amendment in the name of the noble Lord, Lord Willis, although I sympathise with its intent, the OfS will be a regulator of HE providers, with the power to require such information from them as is required to perform its functions. However, it is not feasible to expand its remit to impose conditions on private companies that it does not regulate and with which it has no regulatory relationship.

Although I do not believe that these amendments are the answer to overcoming barriers to accessing data, I agree that greater collaboration between sector bodies on sharing and making comparable data available to students and researchers is something that we must continue to strive for. We would expect the OfS and the body designated to compile and publish higher education information on behalf of the OfS to play a part in encouraging that collaboration. The requirement to consult on what, when and how data are published will ensure that the interests of the sector, as well as those of students and prospective students, as called for by my noble friend, are taken into account. Moreover, in the spirit of co-regulation we must also recognise that the sector is already taking measures to address the points raised by my noble friend through the recently published HESA open data strategy, along with the recommendations made in the Bell review around the co-ordination of data.

I turn now to Amendment 130, which relates to an issue raised by the noble Lord, Lord Stevenson, in Committee. I understand his concerns about the job security of higher education staff and I can reassure him that the Government value the crucial contribution of HE staff. I remind the noble Lord that we are not seeking to determine on the face of the Bill exactly which data must be collected. Data requirements and needs evolve over time. The relevant data body needs to maintain the ability to adapt to changes and therefore data requirements will be decided through a period of consultation. The OfS will have a duty to consult on data collection and publication in conjunction with the full range of interested parties. In respect of the publication duty, the OfS will also have the discretion to consult persons that it considers appropriate, including any relevant bodies representing the staff interest. It would be inappropriate to specify workforce data when all other data requirements will be agreed through a period of consultation. It also risks pre-judging the consultation process.

However, I can offer the noble Lord some reassurance on workforce data. The current data body, HESA, already collects data on so-called “atypical” academic staff whose working arrangements are not permanent. This is governed by the code of practice for higher education data collections. Discussions were held last year between the trade unions, employers’ representatives and HESA on improving understanding of employment patterns in the HE workforce. This has led to proposed improvements to the HESA staff record. These are currently going through consultation with a view to being implemented in 2017-18. We are confident that this issue will be considered as part of the data consultation and that the OfS will want to build on HESA’s positive action in this area. I would therefore ask my noble friend to withdraw his amendment.

[Lord Lucas]

My Lords, I am grateful to my noble friend. He has answered all the points I raised very satisfactorily.

I am delighted that the noble Lord, Lord Stevenson of Balmacara, spoke to his amendment as well. There are datasets that are not obvious but which can have a great effect on the way the sector progresses. If the sort of information he is suggesting is made public, there will be a trend towards better behaviour. Students care about these things. If you are considering a university, you care about who is going to be teaching you and what sort of workforce it is. Also, the fact that a university has a strong cadre of highly valued permanent staff who have been in post for a long time is something that can be used in its recruitment policy. It is the sort of thing that students like to know, so I would encourage the OfS to look wide in its definition of data, and certainly to include things like gender relationships and relationships in general between students and staff. That sort of thing is a great driver of good behaviour. From time to time we hear stories of bad behaviour, so unless the information is surfaced and it becomes commonplace for higher education institutions to have to tell people what is going on, these things can too easily be hidden.

I commend the Government for their attitude to data and I look forward to the OfS following the diktat that my noble friend has just outlined. With that, I beg leave to withdraw the amendment.

Amendment 126 withdrawn.

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[Baroness Deech (CB)]

My Lords, I will speak about Amendments 135 and 136. It was a bit of a shock to many people to find that the Competition and Markets Authority had entered this rather competitive field of regulation. The CMA’s job is to promote competition and make markets work. I think much of the debate we have had over the past few weeks is precisely about how universities are not really about competition and markets; they are about collaboration, scholarship and research.

The OfS is replacing HEFCE, which was the lead regulator, but the OfS is not taking over the Office of the Independent Adjudicator. I declare my interest as the first holder of that office, a few years ago. The OfS is intended to be a single, student-focused regulator. I think the Government might be seen to be undermining their own scheme if they allow the CMA to meddle in affairs which really are not suitable for it. There is already far too much compliance and legalism for universities to deal with—human rights, health and safety, data protection, freedom of information, judicial review, Prevent guidance and much more, including the common law. There is a crowded enforcement field as well—the CMA, other higher education bodies, consumer protection legislation, the Office of the Independent Adjudicator, Scottish and Northern Irish ombudsmen, government departments, the Advertising Standards Authority and the Quality Assurance Agency. The CMA admits how fragile its own guidance is because everything depends on how the courts would interpret consumer law applied to universities’ functions.

I would argue that the CMA is also an inappropriate regulator because it shows little experience of how universities work. It is insistent on clear information being given about course variation before a student signs up. This is an example of how it is inappropriate. The prospectus for a student goes to print four or five years before the potential student who has read it graduates some years further on. It is impossible, therefore, in a prospectus to lock in lecturers for five years because of sabbaticals, fluctuating demand and finances, and even building works. How can a university predict what its fees will be five years from now, especially with new mechanisms being introduced right now? The CMA has recently opined that it thinks that it is unfair for universities to withhold formal qualifications from a student who is in debt. Does it have any idea how difficult it is to chase a student through debt collection procedures or failure to provide campus accommodation the following year—which it suggests as a sanction—when a student has left with no forwarding address or gone abroad, as frequently happens?

The CMA will also come into conflict and overlap with the Office of the Independent Adjudicator. The latter has been in existence for about 13 years and has decided thousands of cases, many of which have a consumer flavour. It has given a wide range of advice to universities about the same issues that the CMA has involved itself in. The OIA’s task, however, is to decide what is fair and reasonable. This is not the same as the CMA’s perspective, which is about deciding a dispute on the precise terms of the contract.

The Office of the Independent Adjudicator offers alternative dispute resolution, which is far better than resort to litigation. Unlike the CMA, the OIA can be flexible and offer resolution tailored to the needs of the wronged student—not money but a chance, for example, to retake a year or have extra tuition. The OIA should prevail over the CMA because it was based on a statute designed to provide that one specialised service for students; namely, the settlement of complaints according to what is fair.

There is something wrong in theory about letting the CMA drive issues of university information and practices. Its perspective would cement the student as a paying customer expecting to reach an acceptable outcome. But we are dealing in this Bill with a participatory process—education, not training; knowledge, not skills; and teaching, not rote learning—in a situation that involves a relationship of give and take between students and lecturers, parents and universities, and employers and government. We do not want the commercialisation of this relationship, as if it were the purchase of a car. We want value placed on stimulation, career guidance and intellectual growth, not just the path to a paper qualification.

The consumer model that the CMA applies results in a totally one-sided set of contractual details. It seems to think that there are no obligations on students to pull their weight and no enforcement mechanisms against students’ own shortcomings. There is no mention by it, or in the TEF, of students’ efforts and their responsibility to learn. This one-sided market approach is more likely to lead to complaints about poor teaching after an unacceptable result has been handed down. We expect collaboration and not competition.

Higher education is not like a consumer transaction. The education relationship is unique. There is no fixed outcome which can be measured by organisations such as the CMA because the quality of the experience is determined by the aptitude and hard work of the student, as well as the facilities and teaching offered by the university.

Higher education is one of a class of major events in life which do not readily lend themselves to government by contract. Such situations are too emotional and personal, with no clear goal and perhaps an imbalance of power. The issue may be too important for the rest of society to be left to the narrow issue of a contract between the individual parties. Only overall regulation focused on the goals of higher education and the student will do, not intervention from an unrelated and unrepresentative body such as the CMA.

The CMA focuses on choice, price and competition. It assumes that satisfying the consumer-student is all that matters. Its view of contracts is about the provision of education, but it is no help when it comes to what education should achieve. Its interventions will not only overlap and conflict with the Office of the Independent Adjudicator but will lead to more micromanagement, box-ticking, checking and inspection, and not to greater quality or public benefit. It has no place in this new system.

[Lord Lucas]

My Lords, I have a lot sympathy with what the noble Baroness, Lady Deech, said. Where I disagree with her is on university admissions. That seems to me to be a pure consumer transaction. The consumers are provided with information on which they are asked to make a decision. This is an area where I like the idea of there being common standards across the consumer realm rather than some cosy deal that, in the case of higher education, makes it unnecessary to provide the consumers with the level of information and reassurance that they have elsewhere. I think that it is even more necessary. It is probably the second or third biggest single transaction that most people will make in the course of their lives: their commitment to the amount of student loan they will end up with at the end of three years and their commitment to a direction in life which may require a lot of effort and sacrifice to change if they have taken one particular way down.

At the moment I think that it should be very much open to question by the CMA whether what is being provided to students is true, accurate and as much as they should have. Yes, I agree that the Office for Students should have a role in this, but the standards, the bar which we are aiming at, should be set in accordance with our national standards—and at the top of the range of national standards. I think that the CMA has a role in that. So I agree with the noble Baroness, Lady Deech, about what happens when you are in a university: all those sorts of relationships, the outcomes and the need for students to contribute, it being a partnership and so forth. It is very hard to read that as a consumer contract. But that first moment of decision—or that rather strung-out moment of decision—seems to me to be very much CMA territory.