Higher Education and Research Bill

Lord Norton of Louth Excerpts

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

[Lord Norton of Louth (Con)]

My Lords, I have Amendment 251 in this grouping. In opening, I stress that I do not have a problem with alternative providers in HE. I chair the Higher Education Commission and we are presently undertaking an inquiry into alternative providers. They are numerous and the nature of their provision varies enormously. I heard from some of them earlier this afternoon. Some cater to thousands of students, others to a small number in what are essentially niche subjects.

What is important is that arrangements are in place to protect students. Last week we discussed the provision for student protection plans. At issue here is the giving of degree-awarding powers and the need to ensure that such powers are conferred on bodies that have the proven capacity to maintain the required standards of a UK degree, and to do so for as long as they have such powers.

There is considerable concern about provision for “probationary” degree-awarding powers. If a probationary period is to mean anything, it is that the continuation of degree-awarding powers is not guaranteed at the end of the period. What happens at the end of the three-year probationary period if such powers are not continued? What happens to students still at the institution? What worth attaches to the degrees of those who have already graduated? Furthermore, what is the risk to the UK HE brand if probationary degree-awarding powers are conferred on bodies with no established track record of delivering high-quality education? My amendment seeks to protect the position of students and of the HE brand, by ensuring that the OfS may not authorise a provider to grant degrees, unless the provider has validation arrangements in place.

I appreciate that confining the provision to validation by existing HE institutions runs the risk of imposing uniformity, with established institutions not being too keen on validating innovative teaching methods and possibly not fully appreciating the value of the alternative provision. The way round that is to ensure that there is an independent validating body. Clause 47 enables the Secretary of State to authorise the OfS to be the validator of last resort, but I recognise the problem of allowing the regulator to have such a power. It is not a power that should be vested in the regulator. I would rather see an independent body, akin to the old CNAA, created. That deserves serious consideration. I thus favour amending this clause along the lines of Amendment 251 and the other amendments in this group, along with the later removal of Clause 47 and its replacement by a provision that would create a body equivalent to the old CNAA. That, to my mind, would inject the necessary protections while not deterring new entrants to the field.

[Lord Kerslake (CB)]

My Lords, I speak in favour of Amendments 251, 252, 259 and 260. In doing so, I very much echo the thoughts of the noble Lord, Lord Norton of Louth. These amendments would remove the probationary powers provisions and put a higher test before universities could award degrees. I tabled these amendments because the Government have seriously underestimated the risk to the reputation of the university sector in what they are doing. Collectively, we need to safeguard this reputation and to require that the OfS or a separate body—as has just been proposed—has the necessary confidence that the organisation to which it is granting degree-awarding powers has the capability to do this on an enduring basis.

I ask noble Lords to put themselves in the position of a student, either in this country or abroad, who comes across the word “probation”. They might wonder what the word means and look at the dictionary here. What the dictionary says is that it relates,

“to a process of testing or observing the character or abilities of a person who is new to a role or job”,

or,

“relating to the release of an offender from detention subject to a period of good behaviour under supervision”.

I venture to suggest that not many students would be reassured by that definition and by the prospect of undertaking a degree at the end of which it would be possible for the whole institution to be found inadequate in its requirements, which must be a possibility under the very definition of these provisions. The term “probationary” is wrong and the concept of “probationary” is wrong. We should, instead, insist that anybody in a position to award degrees is able to do so with an enduring capability. This is a crucial point and it is unfortunate that we are coming to it so late in the evening, because I believe it to be fundamental.

The question your Lordships might ask is: what problem is trying to be solved? I am strongly in favour of new market entry and improving the validating process where it needs improving, but where is the body of evidence that justifies the introduction of probationary degrees? I cannot find it. I have looked carefully at the documents produced on Friday by the Minister, which were very helpful. Page 7 of the factsheet on the validation process refers to “anecdotal evidence”. I suggest that we as the House of Lords should not take our decisions on the basis of anecdotal evidence.

--- Later in debate ---

[Viscount Younger of Leckie]

There can indeed be quite a full debate on the causes of the changes and I hope that in previous debates I have acknowledged the changes in the marketplace. Our aim as a Government is to address these changes. I think that we are all on the same page on that. I am happy to speak to the noble Lord, Lord Kerslake, further on that particular issue—in other words, concerning the issues that are leading up to our reforms.

[Lord Norton of Louth]

My noble friend has dealt with the point about a body that is awarded a degree-awarding power on a probationary basis and then does not have that power granted at the end of the probationary period, where for current students a student protection plan would be in place. However, if it is a degree-awarding body it may have already awarded degrees. What value does he think would attach to those degrees?

[Viscount Younger of Leckie]

Again, I can speak to my noble friend outside the Chamber, but surely there is no change to the current situation. In an extreme position where a provider fails, a student who has a degree from that failed provider would have to take that with him or her. There is surely no change and no reflection in terms of what we are trying to do here.

--- Later in debate ---

[Viscount Younger of Leckie]

Indeed, the noble Lord makes a good point. I am sure that will be taken into account in terms of any further improvements we might wish to make.

[Lord Norton of Louth]

Before my noble friend sits down, could he just clarify on the first amendment of the noble Lord, Lord Lisvane? Under Clause 40(10), the OfS can make an order exercisable by statutory instrument and,

“is to apply to such an instrument as if the order had been made by a Minister of the Crown”.

Am I therefore right in believing that, under Clause 113(3), if it is a statutory instrument, it could be prayed against? If that is the case, does that not put the Minister in a difficult situation?

[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.

--- Later in debate ---

[Lord Liddle (Lab)]

My Lords, I rise to speak to Amendments 282A and 347B, which stand in my name. I declare an interest as the pro-chancellor of Lancaster University.

I am learning a lot tonight about parliamentary procedure and affirmative resolutions, and about the relationships between independent regulators, Secretaries of State and Ministers, and I congratulate the noble Lord, Lord Lisvane, on carrying out such a good exercise in educating me. The questions posed by these amendments are very important. My noble friend Lord Judd is right: if you are to have a much more liberalised system with free entry, you have to have regulation and procedures so that it operates in a fair way.

The purpose of my amendments is simple. I would like to see the OfS be under a statutory obligation to set out its reasons for all the decisions that it has taken. I would like Parliament, once a year, to be able to debate a report which looks at whether, having set out a common set of principles by which the rules should operate, the regulator sticks with it. I think that that is a necessary addition to the ad hoc business of affirmative statutory instruments, and that it would be a sensible addition to the Bill.

[Lord Norton of Louth]

My Lords, I have great sympathy with what the noble Lord, Lord Liddle, has just said. On the lead amendment, Amendment 282, which seeks to make such an order subject to the affirmative resolution procedure, I revert to a point that I made a few moments ago. As I read it, the order-making power in subsection (5) would presumably be subject to being prayed against. I would have thought that if any authorisation was revoked, it would be likely to be highly controversial and therefore might well trigger the order being prayed against. However, that would create the same situation, because the revocation would be by the OfS but the defence would have to be by the Minister, who would be somewhat detached from the whole exercise. I am not sure how that is addressed, and I look forward to my noble friend’s comments.

[Viscount Younger of Leckie]

My Lords, I am grateful for the opportunity to explain the provisions on the revocation of degree-awarding powers and university title. I make it absolutely clear that these powers are not intended for frequent use, as I have mentioned before. We see them as a rarely used but necessary safeguard for quality in the system. We know that these powers are significant and that is why we have endeavoured to include strong safeguards, including a right of appeal to the First-tier Tribunal. We have listened carefully and will continue to reflect on whether there are further improvements that we can make, and we will no doubt discuss this matter further on Report.

Our higher education system is world-class and university title and degree-awarding power are valuable assets. It is the responsibility of those that have obtained these prestigious titles to uphold their reputation. However, without powers to hold such providers accountable, we risk undermining the reputation of our universities. Let us consider the impact if a university’s quality and standards were to drop to a wholly unacceptable level, to the extent that it was widely known that its degrees were not comparable to others and the provider in question had done nothing to address this. Would we really want such an institution to continue to benefit from the prestige of a university title?