Higher Education and Research Bill

Lord Watson of Invergowrie Excerpts

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

[Lord Willetts (Con)]

Noble Lords on all sides of the House appreciate the personal commitment of the noble Earl, Lord Listowel, to this issue. However, I have to say that there has always been a long queue of people who wish, for various reasons, to exempt students from fees. My view has always been that this is an extremely dangerous route to go down. Students do not pay fees, and as soon as one implies in some way that fees are a barrier to students getting into university, one feeds a misconception that can do enormous damage. Indeed, if students from care were not, through the Exchequer, repaying these fees, that would be a loss of revenues for the university. The noble Earl, Lord Listowel, has recognised that because his Amendment 449A provides an alternative means of financing their education out of public expenditure.

We have heard from the noble Baroness, Lady Brown, quite correctly, that we need to support more care leavers in university. If there were ever any public expenditure of the sort the noble Earl envisages in Amendment 449A, rather than devoting it to a group of students being exempt from fees that they are not going to pay anyway, it should be devoted to helping people leaving care to go to university. Exempting them from a fee that they are not going to pay anyway, or will pay only if they are in a well-paid job afterwards, is not the most effective way to help care leavers.

[Lord Watson of Invergowrie (Lab)]

My Lords, I, too, pay tribute, as I have in the past, to the noble Earl, Lord Listowel, for his hard work in many areas, particularly in respect of care leavers. We worked together last year quite effectively on the Children and Social Work Bill, and made some progress in terms of government concessions; I hope that we might have some success here as well.

I am slightly disappointed to hear what the noble Lord, Lord Willetts, said about exemption from fees, as that is not what is sought here, as I see it. The amendment seeks a limit on or exemption of part of the fees, but not an entire reduction. In the circumstances that is important, because we have to understand that for people leaving care even to get to university is quite an achievement in many cases. Only 5% of care leavers make it to university, compared with 38% of the population as a whole at that age. So it is incumbent on us to do what we can to offer some assistance.

The amendments proposed by the noble Earl, Lord Listowel, cover a number of areas, which together create a package which would be of considerable assistance. People leaving care are some of the most vulnerable young adults, and they need help and encouragement to make their own way in life after a childhood that has often been devoid of the kind of settled home environment that many of us simply take for granted. For that reason, it is surely right that any care leaver who succeeds in gaining the passes necessary to be offered a university place should not be denied it due to financial constraints. I take the point that the noble Lord, Lord Willetts, made about a university degree leading to higher earning, and that is the general backing that the Government, and Conservatives generally, give for tuition fees. That has some traction, but in this case you are dealing with people who have had many difficulties in their lives.

We also have to think about the question of accommodation, which another of the noble Earl’s amendments touches on. Some universities already discount fees; some do not charge fees to care leavers. But another issue is what happens outwith term time. As the noble Earl said in speaking to Amendment 229B, the question of accommodation can be a crucial factor. All too often, care leavers who begin a course of study do not complete it because they have been unable to settle during holiday periods, having no settled home to go to, to the extent that they do not feel able to resume their studies.

Being in care does not prevent young people achieving a successful life, but those who have spent time in the care system are less likely than other children to achieve academic success. In many cases, there has been a gradual improvement in educational outcomes, but the rate of care leavers going to university has hardly changed in recent years. Children in care have the wealthiest parent of all—the state—yet it fails them in the most fundamental aspect of child development: education. The noble Earl’s Amendment 122 should not be seen as a cost to the public purse. In the longer term, care leavers who complete their courses will put back more than they have received—an argument understood in Scotland. Last year, the Scottish Government decided that all young people who have experience of care and who meet the minimum entry standards will be offered a place at university. Of course, although fees are not an issue in that part of the UK, those students are awarded a full bursary, which will be worth £7,600 from academic year 2017-18.

That is an example of the extra, targeted help to those who most need it, so that young people who have had life experiences that most of us can barely imagine are given an enhanced chance to succeed in building a life for themselves. Reduced tuition fees should, I believe, be automatic for care leavers, although I accept what the Minister said on Monday about not all care leavers wishing to self-identify as such. There are various reasons for that and I hope we can at least try to understand them, but we should do all that we can to minimise those reasons in offering a helping hand into higher education. The group of amendments of the noble Earl, Lord Listowel, would provide a powerful means of doing so.

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[Lord Bew (CB)]

My Lords, I rise briefly to support the amendments in the name of the noble Lord, Lord Desai. I learned earlier this evening that he taught at the University of Pennsylvania, as did I and the noble Lord, Lord Norton of Louth. That university is about to be further distinguished by the fact that one of its alumni is to become President of the United States in two days’ time. But I did not agree with his saying that it is easy to assess university teaching, partly because of the mixture of research that is involved with teaching and the difficulties of making judgments in that area.

I will come to this issue in Amendment 189, in my name, but there is a real danger that the Government are aiming for a spurious scientificity in their attempt to deal with the problem. On the other hand, Amendments 133A and 133B hit on something that can and should be dealt with to protect students’ interests. It shows greater objectivity in the treatment of students, which is all the more necessary in the epoch we are now in, when these matters are greatly disputed, much more than they were a generation ago. Broadly speaking, it is easier, and I think more appropriate, to meet the requirements of the government manifesto by aiming at things which actually hit at what I might call the fecklessness of university teachers—not marking properly or quickly enough, not being good enough at getting in contact, not replying to emails. Those are things that legislation should be aiming to correct to protect teachers, but it should not aim at a spurious scientific metric, which is quite a dangerous thing to do.

The thinking behind Amendments 133A and 133B, in the name of the noble Lord, Lord Desai, is very solid and goes to the heart of putting, as the Minister said, the student and the legitimate protection of the student’s interests at the heart of things, rather than seeking a bogus popularity among students. This is a legitimate concern for students and they have a right to be protected in this matter.

[Lord Watson of Invergowrie]

My Lords, as someone who is not an academic, I find it quite surprising that amendments of this sort should be necessary, but given that they have been moved and supported by very long-established academics, it is clear that there is an issue here. I thought that that blind-marking assessment was what happened all the time in the established universities, but it may not be the situation in some of the newer or smaller providers, and the question is what will happen with some of the future providers. To me, this is something any student should have a right to expect. Nobody, whatever their background, should be discriminated against, consciously or unconsciously, by whoever is involved in marking an assessment. If we are being told by academics, as it appears we are, that these amendments are necessary, I would certainly want to support them. I hope the Minister will take it in good faith that they are necessary.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Desai, for tabling these amendments, which speak to concerns about unconscious bias in admissions and assessment, which I know we all take very seriously. As we have established, institutional autonomy is a vital principle for higher education, and academic freedom will continue to be protected through the Bill. I suggest the matters raised in these amendments are for individual institutions to take their own decisions on, as independent and autonomous bodies.

Amendment 133A would add a new requirement to Clause 13 to ensure that judgments made by higher education staff when making an assessment of a student’s work are not pre-determined by knowledge of the student whose work is under consideration. Under the current quality system, this is covered by the UK Quality Code. Expectations and guidance to ensure that judgments of student performance are based on the extent to which the student is able to demonstrate achievement of the corresponding intended learning outcomes are of course the essence of what is intended by that quality code. Indeed, all providers are expected to abide by the requirements of the quality code, and that will continue under the OfS. We would not want to undermine the flexibility of providers to achieve a fair assessment by introducing a new level of prescription, which the amendment would do. We do not feel that would be in the best interests of providers or indeed of students.

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[Lord Judge (CB)]

My Lords, I support the amendment. I shall not repeat how subjective the test is,

“if it appears to the OfS”—

but it is entirely subjective. These are very wide-ranging powers that are envisaged; they are very serious powers that will be exercised. Of course, as the Minister said on 9 January, they are powers that will have to be exercised reasonably, not on a whim, and would be subject to a judicial review—but a judicial review of such a decision would succeed only if the decision made by the OfS were unreasonable in a particular legal sense, so that no body exercising these particular powers in this situation could have exercised them in this way. It will not succeed merely because the decision is wrong.

If I may make it more personal, two reasonable people can disagree with each other and both can still be reasonable. If the Minister disagrees with me—perhaps he will, perhaps he will not—I may respectfully suggest to him that he is wrong, but I would certainly not suggest to him that he was being unreasonable. It is a point of view. There is a great deal to be noticed in the context of what the reasonable exercise of powers actually amounts to.

These amendments are designed, as I see it, to secure from the outset that the office must believe that there are reasonable grounds for its decision to deploy its statutory powers. Framed in this way, the grounds for relief can themselves be examined. Although there are passages in the schedule which deal with that, it would encourage greater thought and analysis being given to any process of deploying the draconian powers that are being vested in the office.

[Lord Watson of Invergowrie]

My Lords, I do not rise to add anything to the remarks of the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge—I am not able to do so; the points they make sound very sensible and backed up with legal opinion. I hope that the Minister will take them on board. I rise on an amendment on which I and my colleagues have no involvement to make the more general point that I am sure that the Minister is going to say, “This is all very well, it sounds fine, but it’s not necessary—in the best of all worlds it will all be fine”. It is getting very tiresome. This is not the way in which legislation is meant to progress in your Lordships’ House. There have been absolutely zero concessions so far from the Government since the Bill came to your Lordships’ House. It is inconceivable that anyone outside looking in would accept that every amendment put forward is unnecessary or does not fit in with the Bill. That cannot be the case. I say in all good faith to the noble Viscount the Minister—and to the noble Baroness the Minister—that I am not making a political point as it is not one of my amendments but, with so many amendments on this Bill, they cannot all simply be turned down flat. I hope that he will bear that in mind, if not on this group of amendments then as we move forward.

[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.