Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 16th January 2017 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, having blasted off at the noble Lord, Lords Willetts, on the previous amendment but one, I cannot possibly go back on that, so I shall not follow the noble Baroness, Lady Brown, on this amendment, although I have followed her on many others. Rather like the noble and learned Lord, I think that universities either come within the Freedom of Information Act or they do not. If they do not, we will in any case get the information in other ways, so that probably does not matter. However, it is interesting to look at the question the other way round. If a university sector of the size and prestigiousness of our institutions was not covered by the Freedom of Information Act, you would find that very strange.

[Viscount Younger of Leckie (Con)]

My Lords, the Government have given careful consideration to the range of views expressed in response to our 2015 Green Paper in relation to the application of the Freedom of Information Act 2000 to higher education providers. Over 100 consultation responses were received on this issue and, perhaps surprisingly, opinion was divided. The underlying principle behind freedom of information legislation is that people have a right to know about the activities of public authorities. Although not traditionally regarded as public authorities in the wider sense, the Act does currently apply to HEFCE-funded institutions in recognition of the fact that they are in receipt of direct public funding.

In seeking to apply the Freedom of Information Act equally to all registered providers, the effect of the amendment tabled by my noble friend Lord Lucas—and I thank him for that—would either be to remove all higher education providers from the remit of the Act, or impose an additional freedom of information obligation on providers which are not already covered, irrespective of whether they receive direct public funding. This amendment would extend the scope of freedom of information obligations in this case to all registered higher education providers with courses designated for student support.

In the 2015 Green Paper, we considered the application of the Act and the regulatory costs it could impose on higher education providers, some of which may be relatively small organisations. Having considered the views expressed by a range of stakeholders, our decision was, so far as possible, to maintain the status quo by applying freedom of information obligations to those providers who, in future, are eligible to receive direct grant funding from the Office for Students—namely, approved fee-cap providers. As part of our overall principle of risk-based regulation and seeking to reduce regulatory costs and barriers to entry where appropriate, we did not consider that there was a strong case for expanding the scope of the Freedom of Information Act more broadly. We already believe that more higher education providers will be regulated through our reforms.

In this short debate, I wanted to address an interesting question posed by the noble Lord, Lord Liddle, and supported by the noble Lord, Lord Storey. The gist of his question was why the Bill does not seek to provide a level playing field of regulatory obligations. I would like to expand a bit on my answer. The Bill continues a rather different approach, whereby those that receive the most significant funding directly from the public purse are subject to the provisions of the Freedom of Information Act. This is a targeted approach to regulation, imposing requirements on those—

[Lord Liddle]

I am not trying to be difficult with the noble Lord, but when he talks about direct public funding, does he mean any institution where a student can receive a loan in order to carry out their studies? In my view, when anyone is eligible for a student loan, there is an element of public funding because, as we know, there are going to be write-offs of these loans in the future by the Government. I think this phrase about “direct public funding”, with the greatest respect for the Minister, is a bit of a cop-out.

[Viscount Younger of Leckie]

It is slightly more complicated than that, and it may be that I should write a letter to clarify this, but there is the funding on the student side that the noble Lord is talking about, the tuition fee, where a private individual is receiving private funding, and on the other side, what we are talking about, funding that comes in the form of a grant to help with the top-up—for example, for a high-cost STEM course. I think it would be good if I wrote a letter of clarification on that. There has been some discussion outside the Chamber on this aspect and it gives me the opportunity to write further on this. Having said all that, there is a bit more I wanted to say about that.

[Baroness Brown of Cambridge]

Before the Minister finishes his speech, can he tell us whether “direct public funding” includes QR funding, HEIF and research funding from UKRI?

[Viscount Younger of Leckie]

I would be delighted to add that to the letter for clarification. These are complicated aspects that require proper clarification.

To complete my answer to the noble Lord, Lord Liddle, providers, as he would probably guess, will come in the future in many shapes and sizes. A one-size-fits-all approach to regulation risks would impose an unwarranted cost on smaller providers and new entrants that could stifle the positive effects of competition in the sector. The Independent Commission on Freedom of Information, chaired by the noble Lord, Lord Burns, concluded that the current application of the FoI Act is appropriate. It considered evidence that it may place traditional universities at a competitive disadvantage compared with alternative providers and found it unpersuasive.

In addition to comments made by my noble friend Lord Willetts, I thought that the noble Baroness, Lady Brown, put it rather succinctly. That backs up the equivocal aspect of this debate. I believe that there is a balance, and it has been helpful to have this discussion.

Given the importance of information to the effective regulation and scrutiny of higher education providers, we have introduced provisions elsewhere in the Bill to provide a high degree of regulatory oversight and transparency. For example, Clauses 8 and 9 would require the Office for Students to impose ongoing registration conditions on higher education institutions to provide it with the information it requires in order to carry out its functions and to publish specified information.

The noble Lord, Lord Storey, raised a point about information availability and I will attempt to deal with that. Through the Bill, we are making more information available to students than ever before, as I hope he will know. For example, both approved and approved fee cap providers will be subject to the transparency duty in Clause 9, which we discussed earlier in Committee, and the TEF will make much more information available for students. With that, I hope that my noble friend will agree to withdraw his amendment.

[Lord Lucas]

My Lords, I am grateful to my noble friend for that answer, if a little disappointed. As I learned in making my application for information and in going through the tribunal and afterwards, if you allow this difference of treatment, you are effectively saying to all the institutions covered by the Freedom of Information Act that all they need to do is claim “commercial confidentiality” and they will not have to publish anything. Anything that is commercially confidential is information that might affect a student in making a decision about which institution to patronise. Therefore, anything really important and interesting becomes unpublishable, and so the freedom of information registration has no function—except to find out what the vice-chancellor had for breakfast, which is clearly not commercially confidential and therefore we can continue to plague them on that. There is no point in registering institutions for the Freedom of Information Act if you then disapply it on such a large scale by failing to register their competitors. I understand that the Government have reached a decision and I will not trouble them again at Report, but I think that they have gone down the wrong road on this. For now, I beg leave to withdraw my amendment.

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[Lord Liddle]

May I add my tuppenceworth in support of the amendments? This seems crucial to the socially progressive innovation in higher education many of us on these Benches would like to see. The truth is that there has not been much attempt to enable people to do courses faster than the standard three or four years. Creating the financial possibility for this to happen would be a very good thing.

[Viscount Younger of Leckie]

My Lords, I wish to respond to Amendments 119, 120 and 121. The Government are committed to encouraging more accelerated degrees and other flexible provision. Indeed, we stated this in our last manifesto and I hope there will be an element of agreement between us on this.

The Bill will level the playing field for high-quality new entrants, making it easier for new specialist and innovative providers to enter the sector. Accelerated degrees are a particular strength of new and alternative providers, and this will help to ensure that students can access learning in the form that suits them. For example, Buckingham, BPP, Condé Nast College of Fashion and Design and the Greenwich School of Management all offer students the opportunity to complete an honours degree over two years. This means that the student incurs less debt and can enter or re-enter the workforce more quickly.

We are interested in understanding what more we can do to support flexible provision. We carried out a call for evidence in the summer seeking views from providers, students and others. This call for evidence resulted in more than 4,500 responses. A clear majority of these came from individual students and we were delighted to see this level of engagement. Many of the responding students expressed an interest in accelerated degrees, so this is clearly an important issue and the demand seems to be there.

On 20 December 2016, the Government published a summary of the call for evidence. This is a complicated policy area and we are now fully considering the evidence. Let me reassure noble Lords, however, that we are looking carefully at the options to remove barriers to accelerated degrees. While we certainly sympathise with the underlying intention of this amendment, as we continue carefully to consider the key issues, I ask that this amendment be withdrawn.

I move on to the amendments spoken to by my noble friend Lord Lucas. In a very similar approach, they both seek to link funding to academic credits as well as academic years. Again there is considerable sympathy with the issues that are raised here. The Government are committed to improving diversity of provision and to increasing student choice. Supporting students who wish to switch a higher education institution or a course is an important part of our reforms.

We also recognise the importance of part-time study, and this gives me another opportunity to trumpet this aspect of our reforms. There should be no doubt about our intention to promote this side. Studying part-time and later in life can bring enormous benefits for individuals, the economy and employers.

This area is also being considered as part of the call for evidence and is all part of us looking closely at the 4,500 responses. Again, it is complicated and I hope the Committee will indulge me and remember that it requires quite a bit of time to gather all the information. We will do that and return with the response in due course. Overall, the Government are already taking action to address some of the key areas of student choice as well as working to support students and their diverse needs.

I assure the Committee that we are actively considering all options in this area. I hope these warm words will be helpful. As we continue to consider the key issues as highlighted in our call for evidence, I ask that the amendment is withdrawn.

[Lord Stevenson of Balmacara]

I thank all noble Lords who have spoken in the debate. If I get the support of the noble Lord, Lord Liddle, who is quite mean with his support for some of the things that come from this side of the Committee, I am obviously on a winner. We will jump over that.

I make two points. If I gave the impression that this was about only new entrants, that was a mistake. I did not want to say that. I think the Minister accepts that the interest is there from all institutions that might follow what the student demand is. If the demand is for that, courses will follow.

I am puzzled why it takes so long to process 4,500 submissions. I understand that due attention must be given to them but the Minister has about 4,500 sheets in his file and has probably read it for today’s debate. I cannot believe it will take him much longer to get through the submissions. In the course of the debate on this amendment, we have now discovered a fifth way of the Government saying that they are not quite sure whether or not they will bring this back on Report. The Minister simply says he is spending more time reviewing the evidence before him before considering how he might bring it forward. He will only have to tell us and we will happily put it down on Report. I beg leave to withdraw the amendment.

Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 16th January 2017 Lords Chamber

[Viscount Younger of Leckie (Con)]

My Lords, we have had another good but much shorter debate on this important Bill. Once again it goes to the principle of autonomy, which is the cornerstone of our higher education system. I would like to say at the outset that I am sorry to hear that the noble Baroness, Lady Wolf, is indisposed. I am sure that all noble Lords will wish her a speedy recovery.

Before I speak about this group of amendments, let me be very clear. I heard the strength of feeling expressed in Committee last week about the need to protect institutional autonomy. I would like to inform noble Lords that, along with the Minister in the other place, I am actively considering what further safeguards may be needed to protect institutional autonomy and academic freedom as the Secretary of State and the OfS carry out their duties under the Bill. No doubt we will return to this issue on Report, so I will keep the rest of my remarks relatively brief.

We certainly want an open dialogue between the Government and the OfS, and the systematic involvement of the OfS in the policy-making process, just as there has been with HEFCE over the past 25 years—something to which my noble friend Lord Willetts alluded. As currently drafted, the Bill does not constrain the OfS from giving open and honest advice and analysis to the Government on matters within its regulatory remit. Let me also reassure noble Lords that the Bill prohibits the Secretary of State from framing guidance, setting terms and conditions of grant or giving directions to the OfS in terms of course content and how courses are supervised or assessed. The powers we have discussed today relate directly to the spending of public money and the accountability of the OfS. The Government have a legitimate role in setting priorities in these areas. That is why we are taking the time to think carefully about how we are going to ensure an appropriate level of oversight while at the same time properly protecting the vital concepts of institutional autonomy and academic freedom.

The noble Lord, Lord Storey, raised the issue of guidance and stated that there was a reversal of the 1992 Act. No reference is made to guidance in that Act, and we are strengthening the protections on ministerial guidance by making reference to institutional autonomy and academic freedom. An express power to issue guidance means that the Government do not automatically need to have recourse to setting the terms and conditions of grant or directions, which are less light-touch, so this is surely a sensible intermediate step.

I will now address the issue of parliamentary oversight, about which we have heard some speeches this afternoon. We have thought carefully about the use of these powers. The general focus of the contributions of my noble friend Lord Norton and the noble and learned Lord, Lord Judge, was that the guidance must be subject to parliamentary scrutiny. But the duty in Clause 2 is to “have regard to” guidance. As my noble friend Lord Norton said, where the OfS has cogent reasons, it can act outside that guidance—so the provision does not impose any obligation other than that the OfS should consider it. Directions under Clause 72 are different: they must be followed. That is why there is parliamentary scrutiny when those are made.

It is absolutely right that the Secretary of State should be ultimately responsible for the guidance that he or she gives the OfS, especially when it relates to directing public money towards government policy priorities. We envisage that the Government will issue regular guidance to the OfS in much the same way as they do to HEFCE. Imposing parliamentary oversight and approval on the giving of the Secretary of State’s guidance to the OfS would create a far less flexible process and would risk inhibiting the ability of the Secretary of State rapidly to issue ad hoc guidance in response to changing events. However, I reassure my noble friend Lord Norton that our approach to guidance will be transparent in a similar way to the guidance given to HEFCE—for example, with a published annual grant letter.

I hope that I have given a flavour of the careful balance that we continue actively to work to achieve here. I have noted the points raised and will actively take them into account ahead of Report. In the meantime, I ask the noble Lord to withdraw the amendment.

[Lord Storey]

My Lords, I think that it was a former Prime Minister who used the phrase, when losing the vote on bombing in Syria, “I get it”. I think that the Minister now gets it. I was pleased to hear him say that autonomy goes to the heart of our higher education, that he heard last week the strength of feeling on this issue and that the Government will actively consider that. At this stage, I beg leave to withdraw the amendment.

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[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a good and useful debate about, as everyone has said, important issues which at the moment are not as well established as they could be in the Bill, so I hope there will be an opportunity to return on Report to get them better organised. I do not think that any one of the amendments in this group, with respect to those who have tabled them, takes the trick. This also has to be interfaced back to what we will decide to do on institutional autonomy, which to some extent is the other side of the same coin.

As the noble Lord, Lord Smith, said, the two contributions from the noble Baronesses, Lady Brown and Lady Warwick, gave us a real insight into the difficulties that will arise if we do not get this right. I do not want to be too critical of the noble Lord, Lord Lucas, who is doing his best to raise a series of interesting questions, but Amendment 192 refers to making arrangements for the rating of the quality and standards of higher education. That is exactly the problem although I agree that the amendment is more subtle in some ways. If we do not approach this with real intelligence about how we use the two terms we will run into difficulty as we go further down the track. That being said, I understand where the noble Lord is coming from. We will probably have to come back to some of the issues that he raises at a future date.

I shall speak briefly to our Amendments 131 and 136. Amendment 131 is an attempt to try to ensure that in a particular part of the Bill, in assessing the quality of higher education providers as a whole—I am not talking about the individual quality; I am falling into my own trap here—there has to be a robust system to get people to a point at which they can be registered as higher education providers. Those systems must include a consideration that the provider has in place appropriate standards that they may apply. I apologise for the typo in the last line of the amendment which should read “providers”.

Amendment 136 tries to give a slightly more detailed interpretation of what a threshold standard is and relates it to,

“a student undertaking a higher education course provided by it, is sufficient to merit the award of a degree or other higher qualification”.

I agree with all noble Lords who have said that the breakdown here is between the sector, which is responsible for the threshold standards, and the necessary quality assessment, which should be done by an external body—it is currently done by the QAA. I also accept, as the noble Lord, Lord Willetts, and others have said, that the QAA has a very important role, which we will be revisiting in relation to establishing the conditions under which a body gets on to the register, therefore becoming a higher education provider, and is eligible for access to student support.

Listening to this debate, I was struck by two things. First was the sense that we are all grouping around a particular area which needs to be unpicked. As I said, no one of these amendments does it exactly, but we know what we are looking for. Secondly, the Government need to signal—if they can—their willingness to look at this again on Report. I welcome what the noble Viscount said in his opening remarks: there will be a statement or a further chance to come in and discuss how we are going to make sure that, as it leaves this place, the Bill has appropriate wording for institutional autonomy, which is at the centre of all we are discussing.

[Viscount Younger of Leckie]

My Lords, this has been another helpful debate. I stress that I have listened carefully to the arguments made today on this issue. I reassure the House that, based on the strength of feeling expressed here, the Minister for Universities and Science and I will actively consider what more we can do to address the concerns raised about the Bill in relation to standards. I agree with the noble Baroness, Lady Warwick, that this matter is an integral part of the Bill and I understand its significance. We may want to return to this on Report. I hope that reassures the noble Lord, Lord Stevenson, too.

[Lord Stevenson of Balmacara]

The Minister has now used a third variation. I think he is trying to say that this is an issue which will come back on Report. We can do it or he can do it, but if we agree that it is something we will be discussing we do not need to hedge around it. It is clearly an issue that we will want to return to in future. If the Minister can confirm that, it will calm us all down considerably.

[Viscount Younger of Leckie]

It is amusing playing around with words. We may, indeed, want to return to this on Report: I would not want to go any further than that. However, I hope that the warmth of the words gives an indication of the direction we wish to go in. It is right that I keep my comments on this group of amendments relatively brief. In addition, I am happy to write to noble Lords on this matter to provide further clarification. I hope that noble Lords will have received quite a long letter from me today, based on the last day in Committee. I hope that all the points raised were helpful.

My noble friend Lord Lucas made some helpful comments on Amendment 192. I reassure him that the OfS can already collaborate with others as part of this assessment. HEFCE, which currently administers the TEF, has collaborated with the QAA and others without specific legislative provision allowing them to do so. HEFCE currently undertakes an important role in assessing standards as part of its quality duty. As my noble friend Lord Willetts said, standards are currently part of the QAA’s quality code. However, I acknowledge that the current lack of an explicit mention for standards has created uncertainty. That is why standards are mentioned on the face of the Bill. I hope we can all agree that it is essential that the Office for Students can ensure that providers are genuinely offering qualifications of a suitable standard to be considered higher education, even if we need to discuss precisely how we have achieved that within the current drafting.

The noble Baronesses, Lady Brown and Lady Garden, spoke about separate quality and standards. I understand the points raised on the difference between the two. However, decoupling quality and standards is not the approach taken by the sector in the UK quality code. Any assessment of quality and standards may need to consider both in order to protect the value of a qualification. However, the OfS can apply a condition on quality or standards: it does not have to apply both. I hope this provides some helpful clarification on that front.

On degree classification and grade inflation, I agree that the sector needs to do more here. We are committed to supporting them in this: HEFCE’s work with the Higher Education Academy to implement approaches to training external examiners, and the teaching excellence framework, which will recognise providers that are genuinely stretching students and delivering good outcomes for their students, are examples of important actions in this area.

We do not want to undermine the prerogative of providers in determining standards. As the noble Baroness, Lady Garden, said, this is about ensuring that all providers in the system are meeting the threshold standards that are set out in a document endorsed and agreed by the sector, as she mentioned—Frameworks for Higher Education Qualifications. I reassure the Committee that there is no intention to rate standards in the TEF. However, part of excellence in teaching is ensuring that students are stretched to achieve their full potential. One of the TEF criteria is, therefore, the extent to which course design, development, standards and assessment are effective in stretching students to develop independence, knowledge, understanding and skills that reflect their full potential. For this reason, we believe that the inclusion of standards is crucial to ensuring that the TEF can make a true, holistic assessment of teaching excellence.

I repeat that the standards that are regulated against should be, first and foremost, standards that are set by the sector, rather than prescribed narrowly within legislation. As I have said, I will be reflecting carefully and expect that we will return to this issue on Report. I therefore ask that Amendment 63 be withdrawn.

[Baroness Brown of Cambridge]

I have listened with interest to the Minister and I am very pleased that he has offered to write to us. I think he also offered further discussion in this area. We are actually in strong agreement about much of what the Bill is trying to achieve in this area, but there remains some concern about the wording used to describe it. On the basis that there is further engagement to come in this area—indeed, the Minister has indicated, I think, that it is likely to come back on Report—I beg leave to withdraw the amendment.

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[Lord Stevenson of Balmacara]

My Lords, this is a topic that came up on the first day in Committee when I was asked a question, which I was unable to answer, by the noble Baroness, Lady O’Neill, as to what the definition in that amendment would have meant in terms of incorporation, location, geographical reach, et cetera. These are issues that I think are within, although not explicit in, this amendment.

I think the genesis of this amendment, which was well explained by the noble Baroness, Lady Garden, is the worry that nowhere in the text of the current Bill is there an inclusive notion about how our education is expressed. There would be some value in having one, not because of any particular concerns about status or legal position but more to ensure that in seeking competition over quality, for instance, or more innovation, we are not by accident or lack of design excluding those who might be effective in terms of that operation. It is perfectly possible, as the previous speaker clearly said, that much of the innovative work that may come out of the degree-level apprenticeships will be done outside the universities and current colleges of higher education. It may even be done outside colleges of further education or in the workplace and other areas.

We have later amendments that will attempt to introduce an alien concept into much of UK higher education—and possibly more particularly, into English higher education—by getting away from the hegemony of the three-year undergraduate degree. It is always resisted by policymakers that the concept of a university course that they have in mind is one that is entered into by people who have just reached their 18th birthday, have left school and will study perfectly for three years and then go off to have wonderful careers elsewhere while using the skills they have acquired, whereas the truth, of course, is that higher education in its widest definition is extraordinarily broad and diverse, and rightly so. Indeed, one of the problems that we all hoped would be solved by this legislation was to try to bring in some ways in which we could see a more discursive route—if that is not too much of a word—through higher education for those who wish to stop halfway through, take a job, reflect on what they have learned, go back in and perhaps do something else. All the things we see in other higher education systems—such as multiplicity of access and different routes through experience as well as academic learning, both of which are valued and built in to the solution—are not the cornerstones of what we currently see in our higher education system. There will be difficulties in applying them, problems in assessing them and extraordinary circumlocutions, I suspect, in trying to incorporate them into the present arrangements, but come they will. Even if new technology was not going to be a major player in terms of what we are doing for the future, the changes that would be necessary to accommodate young people who are starting their journey in higher education would mean that we would have to think about this again. This is a long way away from the exact wording that we are considering in Amendment 72, but that proposed new clause would at least give us an inclusive version of the current scene in our education and I can commend it for that.

The question raised by the noble Baroness, Lady O’Neill, is important, and we would still like to hear from the Minister. If he is not prepared today to give us a response on this narrow point of where “English higher education providers” takes us in terms of provision of higher education, can he write to us as soon as possible? I think it will influence how we take forward this particular matter.

[Viscount Younger of Leckie]

My Lords, I can understand the motivation behind this amendment. At the outset, I would like to address a point raised by the noble Baroness, Lady Watkins, when discussing definitions. As she will know, we want to encourage innovative approaches, and the question of degree apprenticeships very much comes into that. We wholeheartedly support the need for innovative provision and I want to assure her that the Government are fully committed to degree apprenticeships—this is captured by the OfS’s duty on promoting choice. In the absence of the noble Baroness, Lady Wolf, I would be happy to further discuss this amendment outside the Chamber with her or any other speaker in today’s debate. For now, I shall keep my comments relatively brief.

I fear that this amendment inadvertently goes too far in that it seeks to extend the regulatory coverage of the OfS to all higher education providers as defined by the proposed new clause, including those not on the register. The OfS must focus its resources and regulatory activity where public money is at stake. Extending its duties in this manner—for example, in promoting quality, choice, opportunity, competition, value for money and equality of opportunity—increases the OfS’s regulatory purview and risks decreasing its ability to focus attention where it is needed most; that is, on monitoring those institutions which pass the regulatory entry requirements to the OfS register.

We discussed definitions at some length last Monday. The Bill uses “higher education providers” as a blanket term to mean any provider of a higher education course as defined by the Education Reform Act 1988, including further education colleges providing higher education. This is already defined in the Bill in Clause 77. I very much noted the question raised by the noble Baroness, Lady O’Neill, and which was alluded to by the noble Lord, Lord Stevenson, on clarification of what “English higher education provider” means. Although I have, I hope, reassured noble Lords that it is defined in Clause 77, I do feel another letter coming on to clarify to the House exactly what we mean by that. I hope that that is of some help. Therefore, we believe that introducing a new definition is unnecessary and could have unintended consequences.

I understand the sprit in which this amendment has been tabled. However, the OfS’s regulatory role is defined by those providers that it registers. I respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Garden of Frognal]

I thank the Minister for his reply and note that Clause 77 includes the meaning of “higher education providers”, but not in quite the same clear way that we have set out here. We look forward to hearing a fuller explanation in answer to the question posed by the noble Baroness, Lady O’Neill. This amendment was on a point of clarification. It was not the intention that it sit on the face of the Bill but rather that we have a simple explanation of “higher education” which would include full and part-time students and all the other different points we will come to later in the Bill. Meanwhile, I beg leave to withdraw the amendment.

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[Lord Stevenson of Balmacara]

My Lords, this is a relatively brief group of amendments that are primarily concerned with drafting issues, although I would like to make a substantive point about consultation with respect to Amendment 428.

In moving Amendment 74, I want to draw the attention of your Lordships to the subsection referenced, which is at page 3, line 9. Noble Lords may not have a copy of the Bill with them, but it is a very short subsection and I will read it out so as to not to trouble noble Lords with having to fuddle with their papers. It reads:

“The Secretary of State may by regulations make provision about the information which must be contained in an institution’s entry in the register”.


The question on whether or not these regulations will be negative or affirmative needs to be resolved, and I would be grateful for confirmation from the Minister when he comes to respond as to which variety we are talking about here. However, assuming that there will be regulations in a secondary legislation format, the question that then arises is: why is it a discretionary power?

All too often in your Lordships House we question whether the wording of the statute should be “may” or “must”. This subsection contains both “may” and “must”—it allows the Secretary of State to require information which “must” be contained in an institution’s entry in the register. Noble Lords will understand why that is the case; registers would be worth nothing if they did not contain, or had a discretionary amount of, information, so the register would not be complete, and in that sense it is a “must”. However, I am concerned about the wording that the Secretary of State “may” by regulations make provision. Does that mean that the Secretary of State has an opportunity not to make regulations about those provisions? I would be grateful for confirmation on the record from the Minister.

Amendment 77, which seeks to amend Clause 5(5), is again a drafting issue. Noble Lords may feel that I am obsessed by that, but every now and then it seems important to focus on the wording. This subsection says:

“Before determining or revising the conditions, the OfS must, if it appears to it appropriate to do so, consult bodies representing the interests of English higher education providers which appear to the OfS to be concerned”.


That is a double concession to the possibility that the OfS has discretion in these matters. Surely, it is always appropriate for the OfS, given its responsibilities, to consult bodies representing the interests of English higher education providers. The Minister may well say that it is inconceivable that it would not do so, but in that case why give it the discretion not to? There is a case for revising that drafting. It has a “must”, which I like—“the OfS must”—but I do not think the legislation can qualify a “must” by saying “if it appears to it appropriate to do so”. It is almost certainly always appropriate to consult before a body as important as the OfS determines or revises its conditions.

Amendment 428 proposes that, under Clause 69, the OfS must consult bodies representing the interests of English higher education providers, including staff and students, as well as those who appear to the OfS to be concerned. There is a discretion there, which I am not challenging to the same extent, but the question whether the providers will be sufficient to represent the staff and students’ interests which may be affected seems to me to be important. I would be grateful for the Minister’s response. I beg to move.

[Viscount Younger of Leckie]

My Lords, I assure the Committee that there is a clear obligation on the OfS to consult when it first determines the initial and ongoing registration conditions and on significant subsequent changes. This will be taken forward through the consultation on the regulatory framework under which the OfS will operate. Clause 69 is clear that, before the OfS can publish its regulatory framework, it must first undertake a wide-ranging consultation.

Subject to the passage of the Bill, the consultation on the new regulatory framework will take place in autumn 2017, so the OfS can begin accepting and assessing applications from new and existing providers in 2018, in time for the 2019-20 academic year. I hope the noble Lord, Lord Stevenson, has taken note of this timetable. We mentioned it earlier in Committee—I think on the first day. We are deliberately taking our time over the introduction of the new regulatory framework and regime. We are not rushing into this. The OfS must have time to consult fully and take on board the views of a very wide range of stakeholders. The new regulatory approach to higher education will be very carefully introduced.

Clause 69 places a very clear duty on the OfS to take into account representations from every part of the sector. It makes provision for the OfS to consult any persons that it considers appropriate and is drafted in such a way that it gives the OfS discretion to consult higher education staff.

On the question of students, which the noble Lord, Lord Stevenson, raised, we will look to the OfS strongly to encourage providers to engage and consult with students and other stakeholders as a matter of good practice. However, we do not believe that it is right to be prescriptive further than that.

The OfS register will cover all providers regulated by the OfS and will share some similarities with HEFCE’s register of providers. However, whereas HEFCE’s register is primarily a regulatory tool, the OfS register is aimed squarely at students. I reassure the Committee that, although the Bill states that the Secretary of State “may” make regulations, this is standard legislative drafting. It is not meant to imply that the Secretary of State will not do so; I can assure noble Lords that she will. I can also assure noble Lords that the Government firmly expect the OfS to consult on how it will run the register. With that explanation, I ask the noble Lord to withdraw his amendment.

[Lord Stevenson of Balmacara]

I thank the Minister for his response. I notice that he did not confirm whether the regulations would be affirmative or negative. Perhaps he could write to me on that point—it is not a significant thing. I think his wording is sufficient to reassure me on the main point. I am never going to win this “may”/“must” battle, but I am not going to stop. I beg leave to withdraw the amendment.

--- Later in debate ---

[Viscount Younger of Leckie]

My Lords, I am grateful to the noble Baroness, Lady Garden of Frognal, and the noble Lord, Lord Storey, for raising the important issue of mental health support for students. I know that there has been some discussion in the Corridors not far away on this very subject. The noble Baroness and the noble Lord will know how seriously I take this subject.

We have heard today from noble Lords how deeply mental health issues can affect students, staff and families. I particularly listened to the very sobering anecdotal evidence from the noble Lord, Lord Storey, and I am sure that many of us could relate our own experiences that illustrate similar issues.

Mental health is a priority for this Government. Noble Lords will be aware that just last week the Prime Minister announced a package of measures to transform mental health support in our schools, workplaces and communities. The reforms will have a focus on improving mental health support at every stage of a person’s life. This will include a major thematic review of children and adolescent mental health services across the country, led by the Care Quality Commission, which will identify what is working and what is not. A new Green Paper on children and young people’s mental health will set out plans to transform services in schools, and importantly universities, and indeed for families.

As we have discussed at length, higher education institutions are autonomous bodies, independent from the government. Each institution is best placed to identify the needs of their particular student and staff body and to develop appropriate support services. There are many examples of universities providing excellent support for their students and, of course, their staff, which the noble Baroness, Lady Garden, raised, both for mental health and in the context of wider pastoral care. But as we know, there are also too many examples of universities that could certainly do more. The higher education sector itself is working to improve mental health support. Universities UK recently launched a programme called Wellbeing in Higher Education. It will focus on the need for a whole university or institution approach to mental health and well-being.

UUK is working closely with Public Health England, expert voices from student services and charities such as Student Minds. Let me be clear: the Government expect higher education providers to provide appropriate support services for all their students and staff, including those with mental health issues. This is a deeply important issue. The upcoming Green Paper provides the excellent opportunity to look at this issue in greater detail. We believe that we should not pre-empt the issues or any recommendations that may come out of this particular Green Paper.

The noble Lord, Lord Storey, raised the link between mental health and retention. We agree that retention is extremely important for universities and that is why we will take retention metrics into account as part of the TEF. The Director for Fair Access and Participation will be looking beyond just the point of access to the whole student life cycle, which is something that I have spoken about in previous debates in Committee.

Once again, I am grateful to noble Lords for their contributions, but ask that the amendment be withdrawn.

[Lord Storey]

My Lords, I thank the Minister for his thoughtful reply. I am delighted that mental health is a priority for the Government. The Minister said that the Government expect universities to make provision, so as well as “shall” or “must” or “maybe” we now have “expect” on the list. I just want an amendment that makes it happen. At this stage—we will no doubt come back to it—I will withdraw the amendment.

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[Lord Stevenson of Balmacara]

My Lords, these are sensible and appropriate amendments for the Minister to consider. They are there because of a feeling that the balance between what is reasonable and what is bureaucratically required may have got slightly out of proportion in the drafting. There is not much in them, but a few additional little words would make a huge difference to how institutions have to operate in the regimes within which they work. When the noble Baroness responded to an earlier amendment, she said that it was important for the OfS to be seen as independent of the institutions to which it relates. Because it is a regulator it would be inappropriate for the OfS to be engaged in too much detailed negotiation and discussion, so it would not be appropriate for it to get involved itself in assessing what type of material is done. It would therefore be quite appropriate for the drafting to reflect a sense that there is a stop in the broader flow of information to only those things which are material, important or relevant. I strongly support the amendment.

[Viscount Younger of Leckie]

My Lords, the mandatory registration conditions placed on all providers are important and it is right that they are being debated. While I understand the reason for these amendments, existing provisions in the Bill provide sufficient protection for providers from unnecessary or unreasonable requests for information; the amendments are therefore unnecessary, but I will give some fuller explanations.

A key element of the Bill is that the OfS must act in a proportionate manner when formulating and exercising its regulatory powers. In accordance with Clause 2, the OfS must have regard to the principles of best regulatory practice including the principle that regulatory activities must be accountable and proportionate. As such, I can provide noble Lords with an assurance that any information the OfS requires for inclusion in the register will be restricted to that which is necessary for it to perform its functions or to enable students and others to make informed choices. We anticipate that a provider’s entry in the register will be factual and will include, for example, the provider’s registered name, the addresses of the governing body and the registered locations at which courses are delivered. We also anticipate that it will include the category of registration of a provider, whether that provider is subject to a fee limit and details of any quality reviews that have been undertaken. The Secretary of State will make regulations setting out the information to be contained in an institution’s entry in the register. I hope this reassures the House that the OfS will not seek excessive or unnecessary amounts of data from providers and, therefore, the requirement to notify the OfS of changes will not be frequent or onerous. Even then, the failure by a provider to notify the OfS of a change of detail would not necessarily, in itself, lead to sanctions. It would need to adopt a proportionate response taking into account the subject matter and the nature of the omission.

I turn to data that the OfS may request to perform its functions. Once again, proportionality is key here, as described in Clause 7. This stipulates that the conditions of registration, both initial and ongoing, must be proportionate to the degree of regulatory risk the provider presents. So the OfS must ensure that its requests for information are reasonable and proportionate. In respect of information that the OfS may require to enable publication of English higher education information, Clause 59 states that the OfS, or the designated body, must have regard to the desirability of reducing the burden on providers of collecting information and to the availability of data from other sources. The OfS must also consult higher education providers and persons who represent, or promote the interests of, students and employers. This is to ensure that the data being requested are of demonstrable benefit and have the support of the sector and students. This should ensure that providers will only be subject to requests for information which are judged by the sector as adding value.

That was a little bit of a lengthy explanation but I hope that the noble Baroness and the noble Lord, Lord Stevenson, can agree that there are a number of important controls in place and that the noble Baroness will withdraw the amendment.

[Baroness Brown of Cambridge]

I thank the noble Viscount for his detailed reply and for his assurances about controls on the proportionate behaviour of the OfS. While disappointed, I am happy to withdraw the amendment.

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Moved by

[Viscount Younger of Leckie]

86: Clause 8, page 5, line 38, leave out from “its” to end and insert “duties under sections (Duty to compile and make available higher education information)(1) and 59(1) (compiling, making available and publishing”

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[Lord Willetts]

My Lords, briefly, I support this amendment but ask my noble friend Lord Lucas whether the obstacle is not somewhere else. The universities do not necessarily have as much data about their graduates as we think they do. Sadly, the Foreign Office and the British Council do not have enough. They try to host parties for Chevening scholars in embassies around the world and have a limited database of who the people are who were on the scholarships in the past. There is, sadly, surprisingly little information. The organisation that has the data is the Student Loans Company, and the legislation around it is heavily constrained because it is treated essentially as an arm of HMRC, with all the confidentiality that goes with that. If I were a university that wanted to communicate with my alumni, instead of putting an obligation on me, I would say, “Please, can there be some way in which we can communicate with our alumni via the Student Loans Company database?”, as that is where the contact addresses are. I hope there might be some way in which, in the spirit of these excellent amendments, that could be facilitated. That is the infrastructure we do not have. The American universities have built it up over generations. There was the great observation: “If only Osama bin Laden had been to Harvard Business School, because the Americans would have found him within 24 hours”. They are very good at tracking down their graduates, we are not so good at it, and access to the Student Loans Company data would make that a lot easier.

[Viscount Younger of Leckie]

My Lords, this group of amendments relates to collaboration across the higher education sector. I thank my noble friend Lord Lucas for highlighting these issues and for allowing this short and interesting debate. I value his knowledge in this area and, should he wish, I would be happy to meet him to discuss these matters further. I reassure him that the Bill does not preclude collaboration on any of these important issues, which I suspect he knows. The Government support collaboration where it is in the best interests of students and where it is not anti-competitive. Furthermore, the OfS has specific duties to promote quality, choice and equality of opportunity. If it considers that promoting collaboration is necessary to achieve these aims, it has the capability to do so.

I will take each of my noble friend’s amendments in turn. He draws attention to the importance of collaboration to evaluate access and participation proposals. I reassure the House that the Government absolutely agree with the importance of widening participation, which will be a key part of the remit of the Office for Students. The new Director for Fair Access and Participation will be at the heart of the new regulator and will sit on the board. This reflects the high priority that this Government are giving to widening participation. The OfS will be able to use the information it gathers from access and participation plans and through working with higher education institutions and sector bodies to evaluate what works in widening participation, building on the good work already done by OFFA.

My noble friend also raised the need for collaboration between providers to attract international students to the UK. He mentioned the well-received GREAT campaign, which does an excellent job. The Government acknowledge that, as well as competing for individual students, the higher education sector has a shared interest in promoting the excellent education provided by our universities to prospective international students. Various sector bodies and mission groups already do an excellent job in promoting UK universities on the global stage and there are many instances of successful collaboration between providers. Furthermore, as the noble Baroness, Lady Brown, rightly pointed out, the British Council also plays an importance role in this respect.

The third issue raised by these amendments is the importance of greater collaboration to enable more effective communication with current and former students. Many universities already run effective alumni programmes. There are also a number of existing routes to communicate with current and former students, such as through the Student Loans Company—as my noble friend Lord Willetts said—and we expect the OfS to work in partnership to deliver effective communications.

The fourth issue is collaborating to keep track of former students’ locations and employment statuses. The Government appreciate the importance of monitoring the long-term outcomes for students finishing higher education. It is very much an important part of our reforms. The OfS will work with the designated data body and others to ensure appropriate data gathering. As your Lordships will know, there is already a graduate destination survey and we are developing the longitudinal education outcomes data.

I turn now to Amendment 445. As my noble friend Lord Lucas will be aware, the Student Loans Company administers student loan accounts in the UK. I am happy to reassure my noble friend that the SLC already shares information with other government departments where this is of assistance in recovering student loan debt. The Government also published the joint repayment strategy in February last year, which provides more detail of the work under way in this area. We do not believe that this amendment is necessary, given that other frameworks are in place for the SLC to share information where this is of assistance in recovering student loan debt. I thank my noble friend for allowing me to give, I hope, some reassurance to him on all his amendments and I ask him to withdraw this amendment.

[Lord Lucas]

My Lords, I am grateful to my noble friend for his answer and I will certainly take him up on his offer of a meeting between Committee and Report. To reply briefly to the noble Baroness, Lady Brown of Cambridge, I say that Cambridge is part of the United Kingdom as well as being a university with commercial interests and there are some things that one does because they are of interest to us all rather than just the interest of oneself. Responding to the need to boost the economy abroad, boost trade and improve our international relationships, we can all act as individual actors and say we will reserve to ourselves all our knowledge and skills or we can share them. This is a time when a certain degree of sharing is necessary and Cambridge and others should recognise that though they are grand and important and have great reputations they consequently have a great ability to contribute to the nation through sharing.

As far as my noble friend Lord Willetts’s remarks are concerned, we have just given the National Citizen Service the right to require HMRC to communicate with its customers on behalf of the National Citizen Service, so the precedent for allowing the Inland Revenue to send out messages has been established. We really ought to open up the Student Loans Company in the same way because we must surely be able to make great use of that kind of communication with the alumni of British universities. It is just communication. It is just sending out information. I will look further into the proposition that we do not need any help in improving our loan recovery rate from overseas students and I will incorporate that in my conversations with the Minister when we get there, but for now I beg leave to withdraw the amendment.

Armed Forces: Capability

Viscount Younger of Leckie Excerpts

Thursday 12th January 2017 Lords Chamber

[Lord Robertson of Port Ellen (Lab)]

My Lords, let me start by paying just a moment of tribute to Lord Lyell, who died yesterday. He was the secretary of the All-Party Defence Group and a formidable and energetic supporter of Britain’s Armed Forces. He will be greatly missed by the House and by many of those whom he met.

This is a very timely debate—never more so to those of us who watched yesterday’s press conference in New York. On a distinguished panel last year, I was asked what I believed was the greatest threat to the safety and security of our country. I considered some of the immediate and looming challenges and threats, some of which are pretty formidable: the migration flows that have suddenly ended up on our shores; the spread of religious experience extremism and jihadi violence plumbing new depths of savagery; a restive and resurgent Russia; a rising China; and the disruption by North Korea. Add to that fragile and failed states spreading mayhem across borders, international conflicts, climate change, cyber warfare and the global proliferation of lethal technology and weapons. On top of all that, there is the rise and dominance of organised crime, population growth, pandemics and financial instability.

That is a pretty formidable cocktail of trouble for us to face. However, my answer to the question of what was the greatest threat is actually different: it is ourselves. We are our own worst enemies. We are short-sighted, penny-pinching, naively optimistic, complacent and ostrich-like to the way in which the world has become interconnected and more fragile, unpredictable and incendiary. We are grossly unprepared and underresourced to meet the challenges of the coming years. These threats are potent and deadly, and some of them are very urgent.

At the end of the Cold War, I made a speech at Chatham House in which I coined what was to be a much-quoted phrase when I said that there had been a “bonfire of the certainties”. The fall of the Berlin Wall had unleashed a flood of optimism that had made Kremlinologists redundant overnight and robbed us of the albeit dangerous manageability of the Soviet/West confrontation. Some were even rash enough to say that it was the “end of history”. All of us took a substantial peace dividend and defence budgets were cut radically over the next five years. I believe we are now seeing another bonfire, this time of the post-Cold War certainties. In doing so, we have left ourselves vulnerable and, in many ways, unready. If we look at the way in which we have responded to this new world of regional conflicts, violent civil wars and other violent manifestations of the turmoil that I have already listed, we see that it hardly measures up to the scale of what faces us.

If anyone doubts my contention that we are our own worst enemy, just let them look at the debate in both Houses of this Parliament on 29 August 2013. The President of the United States had drawn a red line on President Assad using chemical weapons on his own people in a conflict that was already tearing his country apart and spreading to every part of the Middle East and beyond. Consequently, when the sarin gas attacks on civilians were confirmed, President Obama rightly decided that a military attack should be mounted to degrade President Assad’s war machine. Our Prime Minister at the time agreed, said he wanted to join this wholly justified action and recalled Parliament in order to put it to the House of Commons. The Commons, with my own party playing an opportunistic and disgraceful part, refused to give permission for the UK to join the response to the hideous chemical attacks on civilians.

The Prime Minister, having been defeated on an issue of grave military consequence, not only did not resign, which you would have thought in all honour he should have done, but instead swiftly closed off the possibility of even reconsidering the decision. It did not need John Kerry, the outgoing US Secretary of State, to remind us of this last week and lay the blame for President Obama’s retreat from his red lines on the British House of Commons on that August day. We all already knew it and we must all share the responsibility, even those of us who supported the government position, for the carnage that followed. Tears for Aleppo will never be enough. I love my country. I care about its future and the safety of our people in a very troubled world. That is why I am ashamed that that night this Parliament, where I have served for 38 years, did what it did. As events have spiralled into horror since then, with a line coming directly from that vote, my shame turns to anger.

Now, in eight days’ time, we will have President Donald Trump as the leader of the western world—the Donald, with his Mexican wall, with new protectionism and isolationism, with his serious questioning of NATO solidarity, with a belief in torture and with Lieutenant-General Michael Flynn as his key security adviser. Perhaps we do not actually need more enemies in the world today.

We in this country have Brexit. Going against the grain of history, our country is about to embark on a tortuous journey, with no known destination, that will absorb people, time and talent and will suck the energy out of our political system just as the challenges to Europe come crashing in on us. Our influence on our European neighbours will dramatically and inevitably diminish. Although they will still need our military, as Europe finds Trump’s America turning away we will find it difficult to take the lead that we usually claim. Reports this week that Britain’s claim to the Deputy SACEUR position has been challenged by France are just the latest evidence of that slipping influence. Our Foreign Office, the soft-power arm of government, at the same time as bearing the burden of maintaining our influence in the rest of the world, will be eclipsed by the Brexit vortex as its budget, already smaller than the budget for the US Embassy in Baghdad, will come under renewed pressure.

In our crazy complacency we seem quite oblivious to the fact that the relative peacefulness of the world today, as we look over a new precipice, has been achieved by our nuclear deterrent and by our institutions and processes, which require diplomacy, intelligence, involvement and, crucially—when it is required and at the end of the line—decisive interventions. Where will the space be left for all that as we paddle through the treacle of dismantling 40 years of integration?

What confirms again that we are our own worst enemy is the attitude to spending on defence and security. Yes, I agree with and welcome the fact that we are spending the NATO target of 2%; we are right in many ways to crow that we are among the few who do. That is good so far as it goes, but we should wait for a moment. After all, have we stretched the definition of 2% to get there? Are we not confusing percentages with capabilities? Who can doubt, as well, that the Brexit devaluation of the pound will now have a serious effect on the defence budget? I hope that the noble Earl the Minister will tell us how much it is estimated that blow will cost his department.

In 1997-98, as Secretary of State for Defence, I led the strategic defence review with, among others, my noble friend Lord Reid. It radically remodelled and modernised our post-Cold War forces. In the preface to the review, I said that post-Cold War problems,

“pose a real threat to our security, whether in the Balkans, the Middle East or in some trouble spot yet to ignite. If we are to discharge our international responsibilities in such areas, we must retain the power to act. Our Armed Forces are Britain’s insurance against a huge variety of risks”.

That is as true today as it was when I wrote it. The question is whether we in this country have properly retained that power to act. Some doubt will be cast on that by the distinguished speakers who will speak after me in this debate.

The Minister will undoubtedly tell us at the end of the debate that there is formidable hardware in the pipeline, from Trident to the carriers that were the centrepiece of my 1998 review. The question remains, though: is it enough to meet the challenges we are facing when so many of them are urgent and so potent?

My worry is that we are sleepwalking into a potential calamity. My depressing catalogue of threats, after all, does not even take account of what I said in 1998 of trouble spots yet to ignite. As I wrote those words, we could not have foreseen the conflict the very next year in Kosovo, the attacks of 9/11, the implosion of Syria, the whole of the Arab spring and, indeed, the rise of Daesh/ISIS. We have today a crisis of optimism—hoping for the best and failing to prepare for the worst.

You might legitimately ask, having heard my gloomy assessment and warning, what we should be doing. Here are just a few of my thoughts. First, we must retain and protect our own defence industrial base. That alone gives us some real control in the UK. At the same time, we must encourage and participate in joint projects with our European NATO allies. European contributions to NATO are not just limited by financial shortcomings but by wasteful duplication, and we must continue to press our NATO allies to boost spending and capabilities. If they—and we—did that, we might help expand the growth in our economies.

Secondly, we must continue to promote our values and principles on the world stage. We must defend NATO as the cornerstone of our national and collective defence and tell the people of this country, and indeed the wider world, how essential the alliance remains. Article 5, where an attack on one is an attack on all, is not a choice; it is a solemn obligation. Anybody who questions it questions the whole basis of collective security. Our communication policy on this whole issue is, frankly, pathetic.

Thirdly, we must be aware of and act on the dangers inherent in the present confrontation between Russia and the West. Without the tripwires and warning arrangements of the Cold War, we are in grave danger of making a mistake or a miscalculation with potentially catastrophic results.

Our much-reduced military is still among the very best in the world. Our diplomats have few peers internationally. Our intelligence services are relied on by most of the free world. It is now time for our Government to recognise the dangers to Britain and to live up to their high standards. Never in my lifetime was bold and courageous leadership more necessary and more urgent.

[Viscount Younger of Leckie (Con)]

My Lords, before we hear from my noble friend Lord King, I remind the House that this is a time-limited date with Back-Bench speeches limited to four minutes. Timing is particularly tight, so I entreat Peers to wind up immediately when the clock displays four minutes.

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[Baroness Dean of Thornton-le-Fylde (Lab)]

My Lords, I join with others in thanking my noble friend Lord Robertson for this debate today and for introducing such wide-ranging coverage of the issues that we face. I was not at all surprised that he included personnel in that. As the very new chairman of the Armed Forces’ Pay Review Body, I was called in by the first Defence Secretary of the new Labour Government to be told that the staging of the pay award by the Tory Government that had caused so much demoralisation in the Armed Forces for several years was going to stop. Whatever the review body recommended, our Armed Forces would get—and the Labour Government honoured that agreement right the way through.

On the personnel that we have and the capability of our Armed Forces, we can have the best policies in the world, get a real 2% defence budget, make the changes and invest, but unless we have the continuation of professional Armed Forces personnel, backed and supported by their families, we will not succeed. Part of the worldwide reputation our Armed Forces have for their professionalism, talent and whatever they bring wherever they go is because we have this concordat.

The Armed Forces have their covenant, which is welcome and has been improved over the past few years, and they have the Armed Forces’ Pay Review Body, which is independent. There is a report due out shortly but I looked at its report from last year and it makes worrying reading. I looked at the previous three as well and they make incrementally worrying reading.

What do Armed Forces personnel and their families see? They—and I—see a Prime Minister who has been in office for nearly a year and has not made one major speech on international security or defence. How are they supposed to feel about that when so much of our security as a nation depends on them and their ability? Many of them see the 2% as smoke and mirrors. They do not understand why pensions should be included in defence spending. An accountant may be able to argue that but you will never convince our people, or many of us in the Chamber today, that that is spending on defence equipment and personnel. They saw last year the announcement by the Government that from 2016, for four years, the maximum pay award they will get year on year will be 1%. Our Armed Forces people are not slow off the mark; they know what is going on and in evidence to the review body they asked why that should be imposed on them when the very people who are imposing it—MPs—are getting more than 1%. Yet we expect our Armed Forces to continue to give the commitment that they have given.

The review body is independent. It has been respected by Governments across the piece. Yet in 2010, and again last year, the Treasury quite arbitrarily, without reference to the review body, cut the commitment bonuses—the commitment to go and do the job. It is in the report. It makes worrying reading indeed. Just 14% of our Armed Forces think that morale is high. If that were a company, it would be looking at itself and at what it could do to improve it. Just 36% were satisfied with their lifestyle and remuneration package. Just under half of them were dissatisfied with the impact on their partner’s career. Many partners have to put their career in abeyance when their Armed Forces partner is serving.

Paragraph 2.14 of the report was one of the most worrying aspects. The review body said:

“One of the most powerful messages … was that personnel were losing trust in their employer”—

the MoD, the Government. So I ask the Minister: do the Government intend to maintain the 1% for the next four years? If they do, do they not agree that that will affect recruitment and retention? Will the impact that the drop in the value of the pound—£1.50 the night of Brexit; £1.20 last night—will have on the MoD budget have to be met out of the MoD budget?

[Viscount Younger of Leckie]

My Lords, as I am in charge of time management, I make a further strong entreaty that remaining speeches must conclude as the clock reaches four minutes.

Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 11th January 2017 Lords Chamber

[Viscount Younger of Leckie (Con)]

My Lords, the Government wholeheartedly agree that part-time education, distance learning and adult education bring enormous benefits to individuals, the economy and employers. The noble Baroness, Lady Garden, eloquently echoed these points in some detail in her speech. The noble Baroness, Lady Bakewell, happily provided us with useful continuity following her remarks in Committee on Monday on this subject and mentioned the importance of offering and encouraging new learning activities and opportunities for the elderly. Of course, she is quite right on that. The noble Lord, Lord Winston, raised the future needs of the economy, which again is an extremely good point in this short debate. That is not only important now but, as he rightly points out, will be even more important to the economy in the future.

Our reforms to part-time learning, advanced learning loans and degree apprenticeships are opening significant opportunities for mature students to learn. There were also powerful short speeches from the noble Lords, Lord Blunkett and Lord Bilimoria, on lifelong learning, which is another important area. That was also mentioned by the noble Baroness, Lady Blackstone.

The OfS will promote student choice, and by allowing new providers into the system, prospective students can expect great choice of higher education provision, including part-time and distance learning. For example, we know that in 2014-15, 56% of students at new providers designated for Student Loans Company support are over the age of 25, compared with 23% at traditional higher education providers. The reforms complement the other practical support that the Government are already giving part-time students, including, for the first time ever, providing tuition fee loans. We are also consulting on providing part-time maintenance loans.

On the amendments, I reassure noble Lords that the Bill places a general duty on the OfS to have regard to the need to promote choice and opportunity for students. This duty is broad and intended to ensure that the OfS looks across the whole range of different modes of study and student needs. We have already heard a good part of the range in this short debate. I should include the subject of lone mothers, which was raised by the noble Baroness, Lady Lister, and the noble Baroness, Lady Wolf, who made an important point about work-based students. It is important that we keep the duties of the OfS broad and overarching so as not to overburden the organisation with too many competing and overlapping duties to which it must have regard.

Placing specific duties alongside general duties might also lead a future OfS to assume some sort of hierarchy of student needs where the needs of part-time students outweigh other duties and/or the needs of full-time students. The Secretary of State’s guidance to the OfS would instead be used to ask the OfS to take forward certain policy priorities such as part-time study. It is vital that we maintain and enhance innovative forms of provision in the sector. As the noble Lords, Lord Blunkett and Lord Winston, said, this will improve the opportunities for students to choose the type of course that is right for them, reflecting their diverse needs. We will of course make clear in our guidance to the OfS that having regard to innovation is part of its general role in having an overview of the sector and the role of providers.

Beyond the Bill, to help answer the question of the noble Lord, Lord Rees, we are considering how best to support accelerated degrees following our call for evidence on accelerated courses and switching universities or degree, and how best to support part-time students with maintenance loans which can also support more online learning. The legislative arrangements for the Quality Assessment Committee, which broadly replicates the current role of HEFCE’s quality, accountability and regulation committee, do not specify types of institution or learning that should be represented. Where possible, members should have experience, preferably current, of higher education provision, and the majority of members should be independent of the OfS. It will then be down to the OfS to balance the range of skills and backgrounds it needs to create a successful committee, enabling it to have the flexibility to respond to challenges and priorities now and into the future.

However, I welcome the opportunity to set out how much importance the Government place on part-time learning, lifelong learning, adult education, distance learning and alternative modes of higher education delivery. I should like to answer a point raised by the noble Baronesses, Lady Garden, Lady Wolf and Lady Lister, on the decline in part-time student numbers. I will be quite open with the Committee, as I should be, and say that the reasons for the decline in part-time numbers since their peak in 2008 are somewhat complex and there is no silver bullet in responding to that decline. However, our policies go further than ever before in helping hard-working people who want to gain new skills and advance their careers by studying part-time. It was the noble Lord, Lord Stevenson, and the noble Baroness, Lady Wolf—

[Baroness Lister of Burtersett]

I am sorry to intervene, but while the reasons may be complex, can the Minister give us some idea of what he believes those complex reasons are?

[Viscount Younger of Leckie]

I do not want to go precisely into that at the moment except to say only that the Government continue to look at these complex points. The Bill addresses the issue by making sure that all the groups mentioned in this debate are being considered. In addition, outside the Bill, we are doing much for part-time learning by putting it into a generic form, and we are offering tuition fee loans for part-time students so that they can choose to study. This does not affect the tuition support available. For the first time ever we intend to provide financial support to part-time students similar to that given to full-time students, and in 2018-19 we intend to introduce new part-time maintenance loans, on which we are currently consulting.

[Baroness O’Cathain (Con)]

I thank my noble friend for giving way. Surely one of the reasons is the appalling lack of broadband access throughout the country. Going back to what the noble Lord, Lord Giddens, said about the technological advances that are going to transform education and learning, it is nevertheless a fact that people find it extremely difficult to get involved if their broadband connection goes on and then off. I see in her place across the Chamber the chair of the Digital Skills Committee, which tried to encourage people to get a grip on this, but unfortunately the momentum seems to have gone out of it.

I almost intervened earlier to say that one of the main advantages of part-time and distance learning is that it keeps people’s brains going and reduces the potential impact of mental health problems.

[Viscount Younger of Leckie]

My Lords, I said that these are complex matters and, as I said, I do not intend to lead the Committee or be led into this particular trap. Perhaps I may stress the point made by my noble friend. The Government are extremely aware of the issues in some areas of the country as regards broadband support. The Committee will be aware that separately we are working very hard on this aspect.

[Lord Winston]

Does the Minister not accept that one of the problems is the attitude to part-time learning, something that will become more and more important in our society? The Bill tends to see it as a second-rate form of education, which it clearly is not, and in the future will be even less so, particularly when we have distance learning, in which most universities are beginning to invest very heavily. The important issue is that part-time learning is not by its nature second-rate.

[Viscount Younger of Leckie]

The noble Lord is right. It certainly is not second rate, but I must say again that many of the other types of people who want to learn—many were mentioned today, including lone mothers—must be considered as well. That leads into a completely separate debate as to who you give priority to. The whole point of our reforms is that the OfS will be given this broad scope to cover everybody who might fall into these categories. Far from being second rate, it is very important, and I hope I have made that clear to the Committee.

[Baroness Blackstone]

I assume from what the Minister said he will not accept any of these amendments. As someone who has been involved in policy in this area, as both a provider and a politician, part-time studies always take second place in all the thinking that is ever done. That is true of officials, UUK and many universities. If the Government want to see part-time higher education and mature students playing a bigger part, which I greatly welcome, I cannot understand why the Minister is resisting making sure that there will be somebody in the Office for Students who will speak up for this form of higher education, who has knowledge and expertise about it and who will work with his or her colleagues to make sure it is promoted and gets its rightful place. If the Government do not accept this, I fear that, whatever he may say about their commitment, this will not happen in practice. Will he explain to the Committee why he is resisting accepting the amendments?

[Viscount Younger of Leckie]

I think I have done that. The whole point is I want to avoid placing undue restrictions on the OfS. I hope I have formed a strong argument that, in the way we have formed a new framework for the OfS and with the make-up of the new board, the skills and expertise on the board will give due reference to not just part-time workers but all the other groups caught and spoken about this afternoon. We do not feel it is right to place undue restrictions on the OfS. To that extent, I ask noble Lords not to press their amendments.

[Lord Stevenson of Balmacara]

Is the noble Viscount aware that he is committing a bit of a solecism? The Bill centres on making sure that future structures and operations of higher education are inclusive, have a place for the social mobility agenda and bring forward as many of the skills and talents of the past that they can. As he has admitted, it is based on a lack of an analytical approach to the current problems, which he regards as complex, but he is not prepared even to share the broad areas of concern that it is about. I ask him at least to write to us one of his excellent letters, one of which arrived just as I was sitting down for the debate. Will he spend a bit more time giving us a bit more of the context to this, not taking up the time of the Committee, but at least informing those who wish to be? Also, it is very rare to have someone as distinguished as a former Minister of Higher Education and a master of Birkbeck College offering herself to be on the board of the OfS and to be so discourteously refused.

[Viscount Younger of Leckie]

I do not know about that, my Lords, but I reiterate that I take all remarks made this afternoon extremely seriously, as I do in all aspects of Committee. I will want to look very carefully at all the remarks that have been made, not least on this subject. I absolutely have listened to what the noble Baroness, Lady Blackstone, said. I will reflect on her remarks very carefully over the next few days.

[Lord Lucas]

My Lords, I am very grateful for what my noble friend said about my Amendment 53, but he prompts me to ask a couple of supplementary questions. Where, in the order of things, does consideration of credit accumulation come? Will that be in the Secretary of State’s guidance? Where, in this part of the Bill looking at what the OfS is to do, is it that it should pay some attention to what people want by way of higher education? We seem to be going to have a body focused on producers and on ministerial ideas of what it should be doing, but there is no mention of what students, employers and others want and need. Should not the OfS pay some attention to that?

[Viscount Younger of Leckie]

I thank my noble friend for that. Indeed, credit accumulation or credit transfer, however it might be defined, has come up and will come up in the Bill. I cannot explain to him exactly where, but it has been raised by the noble Lord, Lord Stevenson, and others. I reassure my noble friend that we will address and, I hope, debate this issue in due course.

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[Viscount Younger of Leckie]

My Lords, before I address this group of amendments, I wish to respond to the opening remarks of the noble Lord, Lord Stevenson, to whom I listened carefully. We have worked well together in the dim and distant past on one or two major Bills. I echo his thoughts in saying that that worked well. I hope that we will continue to work well together during the passage of this Bill. However, I remind him that this is only day 2 in Committee. I also remind him and the Committee that my aim at this stage of the Bill—I hope that I have expressed this—is to listen very closely and carefully to all the views expressed and to reflect on them. I hope the Committee will take the general spirit of what I am saying in the right way, to the extent that I have already written some letters of clarification following Monday’s debate, which have already been passed to noble Lords. I hope that we can continue in that spirit. I hope that reassures the noble Lord that the Government are taking seriously the points that have been raised. I address the amendments in this group in that spirit of listening.

I am grateful for this opportunity to discuss the vital role of the new Director for Fair Access and Participation, and, importantly, how he will operate within the Office for Students. I share noble Lords’ desire to ensure that this role is appropriately defined in legislation, given the fundamental importance of improving widening access and participation in higher education. I pick up an interesting point that the noble Baroness, Lady Brinton, raised about access statistics. It is interesting to note that the proportion of young people from disadvantaged backgrounds going into higher education is up from 13.6% in 2009-10 to 19.5% this year, which is a record high. In our latest guidance to the Director of Fair Access dated February last year, we acknowledge that selective institutions, including Oxbridge and the Russell group, already do much to widen access. However, we are convinced that more could, and should, be done, and have asked the Director of Fair Access to push hard to see that more progress is made.

While it has always been our clear intention that the OfS would give responsibility for activities in this area to the Director for Fair Access and Participation, we listened to persuasive arguments that this should be set out more clearly in legislation. We have now tabled a number of amendments to make this clearer on the face of the Bill. To confirm the point made by my noble and learned friend Lord Mackay, these government amendments seek to clarify that the director will be responsible for overseeing the OfS’s performance on access and participation and reporting on that performance to the OfS board. In other words, it is the role of the DFAP to ensure that these obligations are met. In addition, our amendments confirm that the director is responsible for performing the access and participation functions, plus any other functions which are formally delegated by the OfS. Amendment 16 makes it clear that the director will report to the OfS board on performance in this vital area.

In addition, we are ensuring that the legislation makes it clear that if, for any reason, the OfS does not delegate the access and participation functions, it must set out in its annual report both the reasons why and the length of time that these functions were not delegated. This signifies that we envisage this function not being delegated to the DFAP to be very much the exception and not the rule.

My noble friend Lord Willetts mentioned Professor Les Ebdon, the current Director of Fair Access, who has welcomed these amendments, saying:

“These changes will be crucial in helping the Government to find a high calibre Director for Fair Access and Participation, who can challenge universities and colleges to make further, faster progress towards their targets, while acting as a high profile champion for fair access issues”.

The noble Baroness, Lady Brinton, made the point that the director must be a senior person with a high profile in the sector and a senior level of respect and credibility, and she is right. We will launch a recruitment process for the director shortly. We agree that it must indeed be a senior figure who commands respect in the sector. I also assure noble Lords that there are arrangements to call providers to account where they are considered to be failing to meet their access and participation plans. Sanctions include the power for the OfS to refuse to renew an access and participation plan, to impose monetary penalties and, in extreme cases, to suspend or deregister providers.

The noble Baronesses, Lady Brinton and Lady Blackstone, raised issues about the DFAP’s reporting requirements. I reassure the Committee that the work of the DFAP will not be separate from the work of the OfS, so its work will be reported to Parliament as part of the OfS’s overall accountability requirements. It would not be consistent with integrating the role into the OfS to require separate reporting from a single member of the OfS when the organisation would be governed collectively by all members. Clause 36 allows the Secretary of State to direct the Office for Students to provide reports on issues relating to equality of opportunity in access and participation.

I listened carefully to the interesting remarks of the noble Earl, Lord Listowel, about bright pupils from low-income backgrounds who may become great scientists. I am happy to write to him on that, and we also agree that this is an important issue.

The noble Baroness, Lady Quin, asked what advice the Government are taking from providers that have a good record on access and participation. Again, I reassure her that the Green Paper that preceded the Bill received over 600 responses, including from institutions with good track records on access and participation. This has been supplemented with follow-up meetings, and ongoing engagement with the sector directly and through HEFCE and OFFA.

The noble Earl, Lord Listowel, asked what we would do to support care leavers to enter higher education—again, another good point. Care leavers are a target group in the Director of Fair Access’s guidance to universities in writing their access agreements. Support for care leavers and access agreements has grown considerably over the years, and around 80% of access agreements include specific action to support care leavers.

The noble Baroness, Lady Blackstone, asked about a student’s progression both during and after their time at university. It is right that the access and participation statements cover the whole student life cycle for students from disadvantaged backgrounds; that is our intention in extending the coverage of access and participation plans from just access. Access is meaningful only if entrants go on to complete their studies—which is rather obvious—and progress to a good job or to further study.

With those responses in mind, I therefore ask the noble Lord to withdraw Amendment 14, and I will move the government amendments.

[Lord Giddens]

Will anybody be responsible for monitoring wider trends in labour markets in the context of higher education and integrating that with issues of access? If you do not do that, access is relatively meaningless. You cannot simply leave it to the Treasury. Which office will do that? Where is the forward planning in all this?

[Viscount Younger of Leckie]

I understand that the Director for Fair Access and Participation will have the right to find these statistics, which will assist him in his role. I cannot envisage a situation where he would not wish to be aware of the bigger picture to carry out his role effectively.

[Baroness Brinton]

I asked a question about Amendment 27 and the fact that when the Director for Fair Access and Participation is not responsible, that has to be reported in the annual report. I asked for some specific examples other than, obviously, when he or she would be away, to try to understand why that wording was used in the amendment.

[Viscount Younger of Leckie]

It would be better to write a letter to clarify that in detail.

[Lord Willis of Knaresborough]

I asked a specific question about the transfer of students, using their acquired learning, on to courses in other universities. Despite what has been said in this House, the vast majority of universities, particularly in the Russell group, will not accept students whose prior learning comes from other organisations. If we are to deal with this issue, it is important that the Office for Students has the power within its overall remit to ensure that fair arrangements are made between universities to allow students to transfer.

[Lord Willis of Knaresborough]

I would like to see the evidence for it.

[Viscount Younger of Leckie]

That was a very interesting short debate but perhaps I may reassure noble Lords that this issue has been raised before by the noble Lord, Lord Stevenson. I think we are talking about credit transfers and other means of ensuring that students who do not continue with their studies for whatever reason can be accepted at another university. The Government are looking at that very seriously and I believe that we will have a further debate on it during the course of the Bill.

[Lord Stevenson of Balmacara]

I thank those who have participated in this debate and in particular the noble Baroness, Lady Brinton, whose comments were very helpful in getting us to the heart of the issue. I want to make two observations. First, I fully accept what the Minister has said about the willingness to engage with us. He said several times that he was taking note of what we were saying, but that was not quite what I had in mind. He also said at one point that he was taking account of the points. Perhaps he could write one of his wonderful letters to explain the nuances or the difference. It does not need to go to everybody and I will be happy to receive it at any point in the next few weeks.

[Viscount Younger of Leckie]

Perhaps I may clarify that. It is simply that I am listening and reflecting at this stage, and I do not think we should get too involved in the semantics of particular words.

[Lord Stevenson of Balmacara]

They were the Minister’s words, not mine, but I hear what he says. I hope that he is taking account, rather than just listening, as that would give us a more satisfactory sense of what we are doing.

Secondly, I was struck by the thinking behind the point made by the noble Lord, Lord Willetts, and I will read Hansard very carefully. He is very wise and has thought about this issue. I came to it in a rather simplistic way, reading access and participation as effectively one word—that the participation was the access having been granted, which I think was the sense understood by the noble Baroness, Lady Brinton. However, in his explanation, whether wittingly or unwittingly—I am sure it was wittingly; I would never assume that he would act in any other way—he led a slightly different line of thought, which I think we may want to come back to at a later stage. Is this office about access and participation in the combined sense—following up those who have been given specific access because of a disability or a disadvantage, and making sure that they have the chance to benefit—or is it about the wider question of participation, which would be a completely different sense? I shall be happy if the noble Lord can help us on that point.

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Moved by

[Viscount Younger of Leckie]

15: Schedule 1, page 71, line 11, leave out from “for” to end of line 12 and insert “—
(a) overseeing the performance of the OfS’s access and participation functions,(b) performing, in accordance with paragraph 11, any of those functions, or other functions, of the OfS which are delegated to the Director under that paragraph, and(c) reporting to the other members of the OfS on the performance of the OfS’s access and participation functions.”

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Moved by

[Viscount Younger of Leckie]

17: Schedule 1, page 71, line 17, leave out “paragraph” and insert “Schedule”

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[Viscount Younger of Leckie]

My Lords, I quite understand the desire of the noble Lord, Lord Stevenson, for greater transparency in the administration of public bodies. However, I am concerned that this amendment would unduly limit the flexibility to respond to the possible circumstances in which removal of a board member might be necessary.

General public law principles and the terms and conditions of members’ appointments already ensure Ministers act rationally, reasonably and fairly in removing public appointees. Currently, the Secretary of State has the power to appoint members to the HEFCE board under such terms and conditions as he or she sees fit, detailing the circumstances whereby it would be appropriate for that member to be dismissed. This arrangement has worked successfully to allow Secretaries of State to lay out what they expect from HEFCE board members, while allowing for flexibility to customise these expectations according to the priorities of the day. This is also fair to board members themselves, as what is expected of them is made clear through the terms and conditions. We are replicating those arrangements in this Bill.

It is also important to recognise that there could be many occasions when it would be inappropriate for the Secretary of State to divulge the grounds for dismissal in an individual case. For example, if the member were removed for problems relating to health or the personal life of themselves or their family, it may well be inappropriate to reveal that publicly. More generally, the reputation of a dismissed member, and therefore their employment prospects, might be impinged were the reasons for his or her dismissal made public. There may also be legal implications for a breach in confidentiality.

Although it has never been necessary to remove a HEFCE board member from office, if the occasion had arisen, the Secretary of State would have corresponded directly with that member to lay out the reasons for the dismissal. This correspondence would have to explain the decision in detail, and the dismissed member would have the right to publish that letter should they wish.

I turn now to Amendments 20 and 21, on the remuneration and compensation of board members. Let me reassure noble Lords that the OfS is a public body and, as such, the salary of its chair and chief executive will be made public in the usual way via a list of the remuneration of senior civil servants and officials from the public sector. In line with HM Treasury’s financial reporting manual, the OfS will already be expected to publish data relating to board member remuneration, allowances, expenses and compensation as part of its annual reporting process.

Turning to Amendment 23, let me assure the noble Lord, Lord Stevenson, that I wholly understand and sympathise with his desire to ensure that the OfS board is able to take the often difficult decisions with which it will be faced, free from political influence. However, I do not believe that this amendment is the right way to achieve that. To bar the Secretary of State’s representative from participating effectively in OfS board deliberations would create a barrier to the OfS board having access to the latest policy thinking from government when considering strategic decisions, in the way that HEFCE is currently able to. Current legislation allows the Secretary of State’s representative to take part in discussions at HEFCE board meetings, and such discussions have routinely been two-way, with both HEFCE’s decisions and government policy thinking benefiting as a direct result. This arrangement has not, though, led to any credible doubt about the independence of the HEFCE board or to suggestions of undue influence.

We believe that this is because the current legislative framework makes very clear that the Secretary of State’s representative on the HEFCE board has no formal influence over or voting rights as regards board decisions, and this Bill replicates those clear and explicit limits on how the Secretary of State’s representative can act at OfS board meetings. I trust that these reassurances have been helpful and ask that the noble Lord withdraws his amendment.

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[Lord Triesman (Lab)]

My Lords, I support this amendment and Amendment 509A. I do not want to repeat the points that have been made about the relative importance of teaching at undergraduate and postgraduate level and teaching and research—all those seem to me to be fundamental, systemic qualities of the university system. The noble Lord, Lord Willetts, was helpful to us in using the analogy of a divorce. I have never tried that myself—not the analogy; I have never tried divorce—but I know that a good deal of attention then needs to be given to the children of that divorce. This is the attention being given to the children of this organisational divorce.

I will make one additional point which I think justifies the requirement for an annual report and for it to contain what is specified in the amendment. If the materials produced by world-class universities in other countries can show any dissonance in university provision in another country—in this case, it could be here—they will do so. They see themselves as being in a very competitive world. If they feel that there is a lack in standards of integration, particularly of research and teaching, they will say so and do their best to persuade students who might otherwise come here to go somewhere else. I make this as a completely empirical point; it is not ideological. You could sit in the library of many British Council offices around the world, look at the reports and see it for yourselves. I ask noble Lords to think about how we protect our reputation. One key way is to protect our reputation for the integration of these matters.

I have one question to add to those being asked of the Minister. At the moment, the Secretary of State, usually through the Minister for Higher Education—however named; in this case it is quite right to say that two Secretaries of State may complicate the matter—usually writes an annual letter in which a number of the sorts of things that are in this amendment are specified. They are not orders to the system but guidance as to the things that the Government might think important. Will the institution of the provision of such an annual letter continue? If it does, there will be a requirement for an annual review, because otherwise it would be impossible for people to take into proper account what is asked of them by the Secretaries of State.

I do not think that there has ever been a fundamental objection to the letter that is sent annually. Every so often it was galling to try to go through it. None the less, it was a reasonable way for people to say, “These are the things that concern us”, without trying to take control over autonomous institutions. If provision of such a letter is to continue and there is merit in it, this amendment would add further merit.

[Viscount Younger of Leckie]

My Lords, I appreciate all the contributions that noble Lords have made to this short debate. The Government have consistently agreed with the many stakeholders who have said that it is crucial that the OfS and UKRI work together on a variety of issues across their respective remits. I assure noble Lords that we will reflect carefully on the points raised in the debate on these amendments and consider them in the days ahead.

My noble and learned friend Lord Mackay, the noble Baroness, Lady Brown, and the noble Lord, Lord Smith, spoke of joint responsibilities and were right to cite some areas where they could be very helpful, particularly in the areas of research degree-awarding powers, the higher education innovation fund and looking at the overall health of the sector. Through Clause 106, we have empowered the two organisations to co-operate and share information. This power will support a number of their functions by allowing for a full and shared understanding of issues such as the stability, sustainability, efficiency and effectiveness of HE providers and the research base. The factsheet on this topic that we published in November 2016 provides further evidence of the priority that the Government attach to OfS/UKRI collaboration, and I hope noble Lords have found it helpful.

The Bill gives the two bodies discretion to decide between them the areas where they will co-operate. It also gives the Secretary of State the power to require them to co-operate should voluntary joint working between the organisations fail. Let me assure the noble Lord, Lord Stevenson, that we fully expect that there will be some sort of governance arrangement between the two organisations which oversees their joint activity. While the two organisations may decide that such a governance arrangement is most effectively delivered in the form of a joint committee, it is not necessary to mandate this in legislation, although we will reflect on the views raised in this debate. Nor do we think that the best approach is to specify in the Bill the areas in which both organisations should work together. However, I can assure noble Lords that it is our firm intention that, in the unlikely event that collaboration between the two organisations is not systematically happening, the Government will use the power in Clause 106 to compel it.

While the noble Lord, Lord Stevenson, and the noble Baroness, Lady Brown, through Amendments 22 and 508A respectively, have identified many likely areas of joint working, it seems probable that the areas in which the OfS and UKRI will need to collaborate will change in the future. We are of course mindful of the need for this legislation to stand the test of time. My noble friends Lord Jopling and Lord Willetts spoke of the OfS and UKRI co-operating. We remain to be convinced that further obligations are necessary. We agree that the OfS and UKRI need to exercise some discretion and would not want to prescribe in the Bill a list of areas of co-operation, as it would be restrictive and not future-proofed. As I have said, both organisations will report annually and we expect those reports to include areas of joint working. We are not convinced that creating a separate joint reporting duty is necessary. This may prove overly bureaucratic and require the organisations to duplicate effort.

Similarly with Amendment 509A, I propose that the Bill provides a strong legislative basis to ensure effective joint working. Such co-operation will need to take place at all levels throughout each organisation. While I understand and welcome the intention of the noble Baroness, Lady Brown, I do not believe that this should be the responsibility of a single board member. In our view, it is preferable that responsibility is shared by the whole board. This is why the recently published advertisement for UKRI board members lists among their key duties that of ensuring that,

“strong, collaborative relationships are put in place to aid joint working with the Office for Students, the devolved HE funding bodies and other key partners”.

I hope this provides some reassurance.

The noble Baroness, Lady Brown, and my noble and learned friend Lord Mackay asked about various areas of joint working, including the awarding of research degrees. The OfS will be responsible for all degree-awarding powers, including research degree-awarding powers. However, I can reassure them that the OfS will work jointly with UKRI in making decisions around research degree-awarding powers.

I am therefore grateful to noble Lords for their suggestions. As I said at the beginning, we will reflect carefully on the amendments, but I respectfully ask that this amendment be withdrawn.

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Moved by

[Viscount Younger of Leckie]

24: Schedule 1, page 73, line 32, at end insert—
“( ) But a function which is one of the OfS’s access and participation functions may only be delegated to the Director.”

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As I said, the substantive debate on international students is for another day but, given the great concern among universities across the sector at the threat to the international student intake, without even considering the threat to research, the Minister would be well advised to undertake his reflection on those amendments in advance and place himself in a position to offer a positive response at that time.

[Viscount Younger of Leckie]

My Lords, before I turn to the issues raised in this group on international students—and as the noble Lord, Lord Watson, said, we are due to have a more substantive debate on the question of international students at a later point in the Bill—I want to address Amendment 26, proposed by the noble Lord, Lord Sutherland.

This Government are absolutely committed to ensuring the accountability and transparency of the OfS, and this Bill includes a range of provisions regarding the establishment and governance arrangements of the OfS, including placing a duty on the OfS to make an annual report on the performance of its functions and lay its annual accounts before Parliament. It is our firm expectation that the annual report will include details of the registration and de-registration of institutions, funding decisions made by the OfS and the operation of the Quality Assessment Committee. Furthermore, we will expect the OfS to make information available throughout the year on its website and through communications, in a similar way to how HEFCE and OFFA have operated.

However, we do not think that it would serve a useful purpose to be overly prescriptive about the content of the OfS annual report in the Bill. Comments have been made to that effect this evening under different amendments. That could risk having unintended consequences of influencing the organisation’s priorities in a way which could limit its ability to act with appropriate levels of independence and respond to changing priorities. We acknowledge that our firm expectation is that any decisions on funding or registration will be included.

The noble Lord, Lord Sutherland, raised the big and important question about the assessment of quality for universities and providers, and how this would work. It is a very fair question. I refer him to the fact sheet on quality assurance published in the autumn. We will write further to him with further detail—and I offer a meeting for him to meet officials and my good self should that be wished.

I turn to the remaining amendments in this group. I am grateful for the opportunity to discuss the important issue of international students. This Government very much welcome the contribution that international students make to the UK—and passionate speeches were made by a number of noble Lords, including the noble Lord, Lord Broers, and particularly the noble Lord, Lord Bilimoria, and my noble friend Lord Waldegrave. The contribution is not only economic, as the noble Lord, Lord Watson, said; international students enrich our universities by bringing fresh ideas and new perspectives. There is no doubt that the Government recognise this.

I also reassure noble Lords, including the noble Lord, Lord Puttnam, that the Government are committed to ensuring that international students continue to come to the UK. There is no cap on the number of international students who can study here, nor is there any plan to introduce one. The UK is the world’s second most popular destination for international students, behind only the United States, and that is a proud achievement.

I recognise some of the anxieties that have been raised here. The noble Baroness, Lady Blackstone, raised an interesting point about the loss of Indian students, as she put it. I reassure her and the Committee that we continue to welcome high numbers of Indian students. India was our second-largest source country for international students in the academic year 2014-15. We are continuing to promote the UK’s great education offer with India—for example, through the new Study UK Discover You campaign. Home Office data show that around 90% of Indian students who applied for a tier 4 visa were granted one.

I shall address directly some points raised by the noble Lord, Lord Winston, who spoke about the concern about student numbers falling. The UK higher education sector is diverse, as he will know, and there are a number of factors affecting why a student chooses to study in the UK and at a particular institution. Not everyone will necessarily have the same experiences, but the UK remains a highly attractive destination for international students. This is backed up by some of the latest data, published on 1 December, which show that university-sponsored visa applications have risen by 8% since 2011. University-sponsored visa applications to Russell group universities were 6% higher in the year ending September 2016. So we continue to punch above our weight internationally, attracting the most overseas students after the US, with the UK getting 10% of the market share. I again emphasise that we welcome genuine students and we have no plans to cap the number who can come here to study.

Having said all that, it is important to give a balance to this debate; I am very aware that there are concerns around Brexit, which have been well explored and well discussed in this Chamber in Questions and debates—we are very aware of that. I understand the good intention of requiring the OfS to gather and publish information on international students. However, I am not convinced that this amendment is required. The Bill already includes provisions requiring the OfS to monitor and report on the financial health of the sector in the round. To do this, the OfS will need to have a clear picture of the types of students and the income that they bring to the sector. Also, Clause 8(1)(b) requires all registered providers to give the OfS such information as it needs to perform its functions. This will allow the OfS to gather information on EU and international student numbers and income generated, where this is required to enable the adequate monitoring of financial health. There is also a wide range of information on EU and international students already in the public domain through the Higher Education Statistics Agency. HESA already publishes detailed information about international student numbers along with a breakdown of which countries they are travelling from.

I turn to Amendments 28, 48 and 465, proposed by my noble friend Lord Lucas. I respect the support that he has had this afternoon and I have been listening carefully to this particular debate. I recognise the need to have as much data as possible available on international students and I hope the detail that I have provided already today on the availability of this information reassures him. Let me turn to one specific part of my noble friend’s amendment. If I have looked carefully at his suggestion, details should be published of the percentage of total visa applications that are successful—or, if I may put it another way, the percentage of visas that are refused for each educational institution. Institutions that are tier 4 sponsors are required to undergo an annual basic compliance assessment to ensure that they are complying with their obligations. One element on which they are measured is the visa refusal rate for their prospective students. Should that level exceed 10%, an institution stands to lose its ability to sponsor international students, although discretion can always be exercised and specific circumstances taken into account.

We have deliberately avoided publishing details of the scores of those who pass the basic compliance assessment as this information is seen as commercially sensitive. Imagine for a moment that an institution has only very narrowly scraped over the line. The Home Office will recognise that it has passed and will not take any action against it, assuming there are no other causes for concern. But were it to become known that it was close to the line, its reputation might suffer. Prospective students might assume that there was a greater risk that it would fail next time round and therefore be more inclined to apply to an apparently more secure competitor. I am sure your Lordships will understand how damaging the release of these data could be to affected institutions and recognise the potential implications, both reputationally and financially—and, by the way, the implications on international students coming to this country. I am sure that the institution concerned would want to take any action that it might consider appropriate away from the full glare of the public spotlight. That is why the information is regarded as commercially sensitive and why I believe it must remain so.

The Government also recognise the importance of clear and accessible advice regarding immigration policies. This is why the Home Office takes steps to ensure that key stakeholders are engaged and involved in any changes, whether formally through consultation or more informally when key stakeholders gather for the regular Home Office-led forum meetings. Changes to the Immigration Rules are communicated to all tier 4 sponsors when the rules are laid in Parliament. Where appropriate, changes to the Immigration Rules include transitional arrangements to allow for providers and students to prepare for the change in policy. DfE Ministers and officials regularly meet with sector representatives to ensure clear communication to help inform strategic planning.

On the issue of protecting and enhancing the contribution of international students, I am not persuaded that this amendment is necessary. The UK higher education institutions have proved extremely successful at attracting international students, which I alluded to earlier in my comments. That the UK is the second most popular place to study overseas in the world is testament to that. This Government also have a strong record of promoting UK higher education globally through the GREAT campaign and through our partners at the British Council.

I ask the noble Lord, Lord Sutherland, to withdraw his amendment and I hope that he will accept my explanations.

--- Later in debate ---

Moved by

[Viscount Younger of Leckie]

27: Schedule 1, page 74, line 20, at end insert—
“( ) If, at any time in the financial year to which the report relates, all of the OfS’s access and participation functions were not delegated to the Director under paragraph 11, the report must include a statement specifying—(a) the period or periods in that year during which those functions were not delegated to the Director, and(b) the reasons why they were not so delegated.”

Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Wednesday 11th January 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

The question has been raised with me as to whether the provisions of Clause 2, in preventing an intervention by the Secretary of State, may have the effect of preventing the Secretary of State coming in to try to support vulnerable subjects. We know that some subjects are very important—for example, physics—yet they are quite expensive to teach. So in the interests of economy, institutions might be inclined to abandon courses in these subjects. The restrictions on the Secretary of State are not, I think, intended to exclude that kind of provision, but I should like confirmation of it.

The other thing that I want to mention relates to Amendment 56, tabled by the noble Baronesses, Lady Wolf and Lady Brown, about,

“the overall strength and quality of higher education provision”.

I am wondering what the “strength” aspect of higher education is. I would be glad of some clarification.

[Viscount Younger of Leckie (Con)]

My Lords, I thank noble Lords for a thoughtful and wide-ranging debate—a debate in two halves, or one-quarter and three-quarters. I must make sure that the House remembers the eloquent speech from the noble Lord, Lord Stevenson, before the dinner break. I hope to do justice in responding to all the important issues raised, and on this occasion I make no apologies for speaking for slightly longer on this group. For those areas where I do not have time to go into detail, I shall write a letter.

The Government are keen to ensure that the general duties afford the OfS the ability to make sound judgments and take action according to priorities. It is essential that this legislation sets out a high level of core priorities for the OfS but does not burden it with a long list of specific duties that it must attempt to balance without sufficient flexibility to be responsive as priorities change. The noble Lords, Lord Stevenson and Lord Liddle, raised the issue of ranking and the prioritisation of duties, which is a fair point, but I reassure them and other noble Lords that there is no implied ranking in the list of OfS duties in Clause 2. They are all important and must be considered in the balance. I agree with the noble Lord, Lord Liddle, that the competition duty must not override other duties. Clause 2 is deliberately drafted with that in mind. There is no hierarchy, and no obligation to prize one of the listed matters over any other. Ultimately, this approach is very much at the heart of optimising the effectiveness and breadth of the future OfS. A discretion is given to the OfS to decide how to weigh matters in the balance in individual cases. The OfS must be able to use its judgment on how best to balance regard for these duties. It must be able to take strategic action and be responsive to priorities, while still retaining accountability for ensuring that no duties are unduly neglected.

--- Later in debate ---

[Lord Addington]

My Lords, I do not know what the answer is but I suspect that there is a duty under the Equality Act. I point out to the Minister that the fact that everything has changed because of the DSA and because the guidance is not in place has driven this. That is my concern. We are already a term late with something that is a fundamental shift. This should have been addressed months ago and has not been. I would be prepared to meet with any officials or to do anything that gives more clarity here. This whole sector needs to know. The British Dyslexia Association’s helpline is probably the biggest proof that there is a problem here, as it hears from a lot of very worried people who want to know what is going to happen to them, and institutions that do not know what to do.

[Viscount Younger of Leckie]

On this particularly important but sensitive subject I take note of the comments made by the noble Lord, Lord Addington, and the noble Baroness, Lady O’Neill. If I can create a broad sweep around this subject, it might be helpful for us to arrange a meeting to ensure that we can give both noble Lords and indeed the Committee confidence that we are looking seriously at how, under the new framework, the disabled are properly looked after and monitored during their period at providers, including universities.

On the question of vocational education and Amendments 43 and 47, these amendments recognise the importance of ensuring a joined-up vocational education sector to deliver the opportunities and skills for learners and to drive economic productivity. The higher education sector has an important role in providing both academic qualifications and vocational and technical skills to deliver the capabilities needed by employers. The duties on the OfS to have regard to the need to promote quality and greater choice and opportunities, and the need to encourage competition, are applicable broadly across the range of higher education provision. This includes vocational and professional higher education courses, linking in with the Government’s post-16 skills plan and apprenticeships to ensure that we have a comprehensive academic and technical skills offer.

To reassure my noble friend Lord Lucas, who tabled Amendment 47, it will be important for the Office for Students to co-operate appropriately with a range of other bodies, including the Skills Funding Agency and the Institute for Apprenticeships and Technical Education, and Clause 58 makes specific provision to enable this.

Finally, I will say a brief word about student involvement in the OfS, which was raised by the noble Baroness, Lady Garden. We have already discussed this with regard to other amendments and have acknowledged it through the amendment introduced in the other place which guarantees dedicated student representation on the OfS board. Students are at the heart of the OfS and our wider reforms; I have said that before and I think it is generally acknowledged. We have been listening and will continue to listen to students throughout implementation, and the OfS will embed student engagement, in all its forms, throughout its work.

We have covered a wide range of issues in this debate and I am grateful to noble Lords for their considered contributions. I maintain that it is essential that the legislation sets out the high-level priorities for the OfS while providing sufficient flexibility to respond to changing priorities. I am confident that Clause 2 on the whole delivers our shared aim of ensuring that we maintain our world-class, diverse and inclusive higher education system in the interests of students and taxpayers. However, I can assure noble Lords that the Government will reflect further on several of the issues raised by these amendments as the Bill progresses through this House. In the meantime, I hope that the noble Lord will agree to withdraw his amendment.

--- Later in debate ---

[Lord Adonis]

My Lords, I turn to the issue of geographic diversity. One of the prime areas where there has been collaboration is in creating campuses and a university presence in areas of the country where it otherwise would not have been either an economic or a prime mission of a university to seek to make such provision. The example that comes to mind from my time as a Minister, and where quite a lot of work was done by government bodies to foster collaboration, was in Medway. As I recall, that was a collaboration between the University of Greenwich, the University of Kent and, I think, another institution to enable higher education provision to be made in a very challenging and deprived area. A sole provider would not have been prepared to move in there. The same was true of the creation of higher education provision in Cornwall, which, as I recall, was a collaborative vision on a similar basis. Looking at the need to spread geographical provision more widely, fostering collaboration between institutions, and further education institutions where necessary, will be very important to making any provision at all.

Collaboration is not only between prestigious institutions, although I should add that in my experience the Government can foster collaboration of any kind where they are prepared to sign very large cheques, which has a large part to do with Crick. However, where we want to see more provision in areas of the country where it is not at the moment in the prime mission of any institution to provide it, collaboration between different types of institution may be a prime way to see that come about.

[Viscount Younger of Leckie]

My Lords, I assure the noble Baronesses, Lady Wolf and Lady Brown, and the noble Lord, Lord Stevenson, that I fully understand the principles they seek to address here. To reassure the noble Baroness, Lady Brown, on the new duties for collaboration and innovation, we are wholly supportive of collaboration and innovation where it is in the interests of students. I hope I can go some way to answer the question raised by my noble friend Lord Willetts on how collaboration and competition will work. I will say a little more about that later. For example, providers could share services to generate efficiencies that allow more resources to be focused on teaching, offer courses in partnership, or design new styles of degree programmes to meet differing students’ needs. These are essentially non-competitive ways to enhance the offering from both or more institutions should they decide to collaborate.

I will start by saying a little more about collaboration. The general duties of the Office for Students are absolutely consistent with the idea that providers should continue to collaborate and innovate in the new regulatory system. There should be no conflict with the OfS’s duty to have regard to encouraging competition between higher education providers where it is in the interest of students. My noble friend Lord Jopling is right in his assessment that the OfS is already required under Clause 2 to have regard to,

“the need to promote quality, and greater choice and opportunities for students”.

Such collaboration and innovation is implicitly and undoubtedly in the student interest. To pick up on the question asked by my noble friend Lord Willetts, there is nothing inherent in that “have regard to” duty that would prevent the OfS also supporting collaboration between higher education providers if it considers it is also in the interests of students, employers or the wider public—for example, by supporting the merger of two providers.

The noble Lord, Lord Winston, asked in his thoughtful, brief intervention how the OfS would enforce collaboration. We do not wish to create an expectation that the OfS should be formally or actively regulating this type of activity. That would be unnecessary.

On innovation, we concur with the noble Lord, Lord Stevenson, about a lack of innovation in the higher education sector. It is important for the OfS to have a focus on supporting a competitive market. That means it must regulate fairly and allow all providers to operate under the same set of rules. This will make it simpler for new high-quality providers to enter and expand, help to drive up teaching standards overall, enhance the life chances of students, drive economic growth and be a catalyst for social mobility.

Competition will incentivise providers to raise their game, fostering innovation. New providers can respond innovatively to what the economy demands and equip students with the skills needed for jobs of the future. So promoting innovation, like collaboration, does not require a separate duty. When it is in the student interest, the OfS will be fully able to support it because the student interest is at the very heart of the OfS. Requiring the OfS to have regard to encouraging competition only where it is shown to be in the interest of students, employers and the wider public would be unnecessary, burdensome and inflexible to implement. The current wording already limits the promotion of competition to where it is in the interests of students and employers. The amendment would mean that the OfS would have to demonstrate that in some way that these various interests were met, placing an unnecessary evidential burden on the regulator and, in turn, on higher education providers.

I now turn to whether the OfS should have regard to encouraging competition where this is in the interest of the public or of wider society. The Bill makes explicit the general duty to encourage competition,

“where that competition is in the interests of students and employers”.

In doing so, it emphasises that the student interest is at the heart of the OfS and recognises the wider public benefits associated with maximising choice and competition in the higher education sector.

As I set out in the previous debate, operating in the public interest or that of wider society is implicit in the role of the OfS as a public body that is accountable to the Secretary of State and to Parliament. The noble Baroness, Lady Wolf, spoke of the conflict between the roles of the CMA and the OfS and asked me to provide further detail. As I said on Monday, I look forward to discussing this matter later in Committee, when we will consider the noble Baroness’s proposed new clause. I hope that she will have a little patience and that we can discuss that at more length later on in the Bill. In the meantime, I hope that I have been able to reassure the noble Baroness, Lady Wolf, and the noble Baroness, Lady Brown, who spoke at the beginning of this debate, that we have struck the right balance—and it is a balance. I hope that she will not press her amendment.

[Lord Stevenson of Balmacara]

I think that it was my amendment, but the noble Baroness may choose not to move her amendment at the appropriate time. I am grateful to everyone who has contributed to this debate. It has been a good mini-debate on the other half of the question about what Clause 2 sets out to do.

I am left with one question. I realise that it cannot be answered at this stage, but I wonder whether the Minister could write to me about it. We bandy around the word “regulator” a lot and I think that we all have slightly different versions of what it means. It would be helpful before we go to the later stages of discussing what the OfS is to have a clear definition. I am thinking in particular about the generic rules that apply to regulators; for instance, the amendment to the ERR Bill to require all regulators to have regard to growth—there were others of a similar class. As I understand it, the implication is that whatever the statute contains when this Bill becomes an Act will have to be read as if it also included an exhortation to ensure that all work was done to provide growth. There is nothing wrong with growth—we supported that—but it was aimed mainly at economic and not social regulators. There have been difficulties with applying it in the social work area, for instance, and other areas, so it would be useful and comforting if the Minister could write to us explaining exactly what the term regulator implies. That would give reassurance to some of us who have been worrying about this issue. The suggestion that we should have as the main functions of the Office for Students a set of pretty high-level statements and not a detailed list is fine, but I would like to see that list in relation to whatever else comes with the responsibility of being a regulator. I beg leave to withdraw the amendment.

Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 9th January 2017 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

I speak as a lawyer, not as an academic. Indeed, until recently I thought that I was the only Member of the House who has not ever been a governor, chancellor or vice-chancellor of one of these institutions. As my noble friend Lady Wolf has now twice explained, the only direct relevance of this proposed new clause goes to the title of the body in question. In short, it goes only to Clauses 51 to 55 of the Bill. I understand her concern to be with regard to bodies being allowed to be called universities. Effect would be given to that if one said at the start of this new proposed clause: “For the purposes of Clauses 51 to 55, a higher education institution”—because that is what the whole of the rest of the Bill is about, assiduously avoiding any distinction between universities and those such bodies that are not—“should be regarded as entitled to use the title of university if it is an autonomous institution”, to return to the language of Amendment 1, et cetera.

With the best will in the world, although it seems to be the opinion of many in the House that the amendment will affect the view generally as to the autonomous nature of these institutions, as drafted it will not. It goes only to the title. It does not go even to the degree-awarding powers. That has nothing to do with whether a body is or is not called a university. Therefore it is much more appropriate, when concerned not with the title but with the autonomy of these higher educational institutions, to look at the amendments to which others have referred, Amendments 65 and 165, which deal not only with universities but with all higher education institutions.

If we want to give universities some special status, which this Bill as drafted at the moment assiduously does not, we have to recast the thing as a whole and say, “If you are a university, not only will you be able to call yourself such but these consequences follow”.

[Viscount Younger of Leckie (Con)]

My Lords, I am grateful for this opportunity on the first day back after the Recess to discuss our vision for universities. However, before I turn to the amendment I want first to thank noble Lords for their strong engagement to date. I have had time to reflect, as I am sure have other noble Lords, on the lengthy debate at Second Reading and I have been working hard over the Christmas period to consider the points that were raised and to engage on the issues, as we have throughout the passage of this Bill. I hope that noble Lords have received my subsequent letters. I and the team have been kept somewhat busy with the not inconsiderable number of considered and thoughtful amendments that have been tabled to date and I look forward to responding to each and every one of them. I also look forward to a good debate over the coming weeks and welcome the scrutiny that a Bill as important as this rightly deserves. As I said at Second Reading, we have been listening and continue to reflect, and I am looking forward to hearing the views and contributions of noble Lords from across the Committee. It is fair to say that we have made a pretty good start on this, the first debate.

The Bill before us today is the product of lengthy and thorough consultation and consideration, from the 2011 White Paper of my noble friend Lord Willetts entitled Students at the Heart of the System through to the White Paper published by the Minister for Universities, Science, Research and Innovation in May of last year, supported by a Green Paper that received more than 600 responses. The Bill also incorporates recommendations from Sir Paul Nurse’s review of the research councils, the review undertaken by the Higher Education Commission and the report of Professor Simon Gaskell on the long-awaited and much-needed reforms to the regulation of higher education.

Our English universities are some of our most valuable national assets and are powerhouses of intellectual and social capital. We believe that our reforms will help them to continue to thrive into the 21st century and beyond. The noble Baronesses, Lady Wolf and Lady Warwick, and the noble Lords, Lord Winston and Lord Krebs, have spoken authoritatively and passionately about their history, from papal bulls to the Dearing report. I also want to assure noble Lords that we do not intend to stop consulting and listening. In fact, we have listened carefully to the concerns raised around the pace at which we intend to implement the reforms, and I would like to take a moment to set out how we now intend to respond to these valid concerns.

As stated in the White Paper, we are aiming for the Office for Students to be in place in time for the 2018-19 academic year. This new regulatory framework, rather than being overly regulatory, as the noble Lord, Lord Bragg, suggested, improves on the current piecemeal approach to regulation. It will reduce the overall regulation of the sector for a risk-based approach. However, like noble Lords, we recognise the risks to students and providers of taking forward the implementation of the new regulatory framework in a way that may cause unnecessary disruption and instability to the sector. It is also important that further detailed development of the new regulatory framework is driven by the OfS executive team rather than it being led by the Government and then handed over to the OfS to implement. The campaign to recruit a chair is live and we expect to launch the CEO campaign shortly. The Director for Fair Access and Participation recruitment process will follow shortly afterwards. Therefore, subject to the passage of the Bill, this will allow the OfS to consult on its new regulatory framework in the autumn of this year and to begin accepting and assessing applications from new and existing providers in 2018, in time for the 2019-20 academic year rather than in 2018-19. This allows more time for thorough consultation on the detail of the new regulatory framework and for the sector to be ready for the new regime.

The noble Baroness, Lady Garden, asked whether the Minister had had discussions on these reforms with the skills Minister and I can reassure her that this has indeed happened. Regular discussions take place and the Bill is also complementary to the Technical and Further Education Bill, thus carrying out two reform programmes in parallel. This gives the best opportunity to support young people, a point rightly raised by the noble Baroness.

Let me now turn to this proposed new clause. The noble Lord, Lord Stevenson, has already quoted the definition that was set out by the Minister for Universities and Science in the other place and I agree that it is worthy of note. I note that several definitions have been made. Many of them carry favour.

Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

Monday 9th January 2017 Lords Chamber

[Viscount Younger of Leckie (Con)]

My Lords, I am grateful for the opportunity to speak to this important group of amendments. Our universities are a key part of national life and contribute significantly to the public good and economic prosperity. I fully understand that protecting the sector’s reputation is at the heart of many of the amendments. I assure the House that the Government’s reforms are designed to ensure exactly that and that, like now, only high-quality providers will be able to enter the market, award their own degrees and obtain university title. Once again, I assure noble Lords that the Government are determined to protect institutional autonomy in the Bill every bit as much as the current legislative framework has protected it for the past quarter of a century or so, and I will say a little more about that later.

First, I will address the new clause in Amendment 2. The Government agree that our universities should be expected to have high standards and to do more than simply teach courses. They benefit the communities they are based in, and there is a strong correlation between opening universities and significantly increased economic growth. However, we believe that what matters is this contribution, not the form of the institution. Universities are private, autonomous bodies, not public bodies as such, although of course they contribute greatly to the public good. They therefore come in a variety of forms, as has been discussed, and we value this diversity immensely, as I mentioned in the first debate. We would not wish to exclude excellent institutions such as the University of Law from having full university status simply because it is for-profit. My noble and learned friend Lord Mackay asked why profit is so vilified; he makes a fair point.

Our reforms do not seek to overhaul the current framework for obtaining degree-awarding powers or university title in any major way. Currently any provider, regardless of its corporate form or background, can obtain degree-awarding powers if it passes rigorous scrutiny. Only providers with degree-awarding powers can apply for university title. Again, they need to meet specific criteria but these are not tied to corporate form. The proposed new clause would in effect introduce a two-tier system of universities or degree-awarding providers, when what we are trying to achieve is a more level playing field. It would be a step back in time, rather than further developing a well-functioning system.

To ensure that only high-quality providers can obtain degree-awarding powers, we are planning to keep a track record requirement of three years for all those that seek full degree-awarding powers. However, in parallel, we are also planning to introduce, as has been mentioned, a new route of obtaining degree-awarding powers on a probationary basis. This would mean that high-quality providers that have the potential to achieve full degree-awarding powers can be permitted to award degrees in their own name from the start—crucially, subject to close supervision. As the noble Baronesses, Lady Cohen and Lady Brinton, mentioned, under the current regime new and innovative providers have to wait until they have developed a track record lasting several years before operating as degree-awarding bodies in their own right, no matter how good their offer is or how much academic expertise they have. This stifles innovation, and the new clause would further entrench this system of new providers usually having to rely on incumbents.

However, I assure noble Lords that quality is still paramount. As we set out in one of the published factsheets to accompany the Bill on market entry and quality assurance, in order to be able to access time-limited probationary degree-awarding powers, providers will also need to pass a new and specific test for probationary degree-awarding powers. I realise from the tone of their remarks that this may not necessarily please the noble Baronesses, Lady Cohen and Lady Brinton, but we believe that this is important as a quality check. We absolutely do not intend a complete overhaul of the system of degree-awarding powers. We fully intend that the current criteria will continue to exist in a broadly similar form.

Returning to institutional autonomy, noble Lords will know that, while this concept has been central to our higher education system for many years, the Further and Higher Education Act 1992, which establishes the current legislative framework, does not explicitly mention institutional autonomy. The Bill goes considerably further by placing in legislation explicit new protections for the freedom of English higher education providers. Those protections apply to all the ways in which the Secretary of State may influence the Office for Students: guidance, conditions of grant, and directions. In each case, the Bill places a statutory duty on the Secretary of State to,

“have regard to the need to protect academic freedom … of English higher education providers”.

We strengthened this further on Report in the other place.

I assure noble Lords that there is no disagreement, as I see it, over the importance that we place on institutional autonomy and academic freedom. We have sought to protect these fundamental principles in the Bill. I agree that they are the cornerstone, as many noble Lords have said this afternoon, of our higher education system’s success. We have heard considered and well-informed debate—more so on this group of amendments—and I am grateful for the views that have been put forward, but we believe that the Bill enshrines and protects academic freedom. Having said that, I recognise the strength of feeling that has been expressed about institutional autonomy. I continue to listen and reflect on views from noble Lords and will reflect further on this issue. I hope that gives some reassurance regarding the concerns raised on this issue. These provisions represent the most comprehensive suite of explicit statutory protections for institutional autonomy ever contained in a single Bill.

Amendment 55, spoken to by the noble Lord, Lord Kerslake, places a duty on the OfS to have regard to,

“the need to act in a manner compatible with the principle of institutional autonomy”,

when it discharges its statutory functions. I understand and sympathise with the motivation of the amendment, but in the light of the new and additional protections I have just described, the Government do not feel that a statutory duty on the OfS is appropriate. I reassure noble Lords that the existing provisions in the Bill already require that academic freedom and institutional autonomy be taken into account by both the OfS and the Secretary of State. As such, the amendments are unnecessary.

The noble Lord, Lord Kerslake, asked whether it is right that the Office for Students can intervene “if it appears” that registration conditions have been breached. Intervention based on “if it appears” is standard legislative drafting and is underpinned by the usual public law considerations so that the OfS cannot act irrationally. As a public body, the OfS must at all times act reasonably and proportionately in accordance with public law when exercising its powers.

Similarly, I find myself in agreement with the main intention of the amendments relating to the Secretary of State’s powers to set conditions of grant and give directions to the OfS. But I assure noble Lords that the Bill as drafted does not leave any room for a future Secretary of State to be lackadaisical about this duty. The amendments, while well intentioned, do not add much by way of strength to the duty as it stands. As I have outlined, the Bill includes new and additional protections for institutional autonomy. I sympathise with the motivation for these amendments but I am not sure that adding a duty to have regard to institutional autonomy adds much in practice to the protections already in the Bill. I fear that the amendments may require future Secretaries of State to become rather more interventionist than they are now, guiding or directing the OfS to act in particular ways in particular cases to protect institutional autonomy.

Amendments 425 and 431 relate to the Secretary of State’s powers to set conditions of grant and give directions to the OfS. These amendments, while well intentioned, do not add much by way of strength to the duty as it stands and may risk inadvertently weakening other duties of the Secretary of State in the Bill which do not have this amended formulation.

I am entirely sympathetic to the intention behind Amendment 66, which seeks to build on existing protections within the Bill to ensure that when the Secretary of State gives guidance to the OfS, it is prevented from naming individual higher education providers. However, the restrictions on the Secretary of State already in the Bill will have the effect of preventing individual institutions being named in the Secretary of State’s guidance to OfS. Clause 2(6) requires that guidance,

“which relates to English higher education providers must apply to such providers generally or to a description of such providers”.

It is hard to conceive of a scenario where the Secretary of State could comply with these restrictions and yet name individual institutions. On that basis, I assure noble Lords that this amendment is not necessary to ensure the protections it seeks, and that we may rely on these being implicit in current drafting.

I am grateful for the thorough and thoughtful nature of Amendments 65, 71 and 165. The desire and determination of noble Lords to ensure that the Bill protects institutional autonomy is both evident and impressive—again, as we have discussed extensively today. However, I do not believe that these definitions of institutional autonomy and academic freedoms add anything substantive to the protections already enshrined within the Bill. Furthermore, as detailed in my letter to noble Lords following Second Reading, the Bill holds the Haldane principle at its core. The Government are fully committed to the fundamental tenet that funding decisions should be taken by experts in their relevant areas. The amendment risks compelling the Secretary of State to issue guidance to the OfS on issues beyond its remit, which I believe is unintended.

Amendment 165, tabled by the noble Lord, Lord Stevenson, seeks to include in the definition of institutional autonomy the right of providers,

“to constitute and govern themselves”,

as they consider appropriate. It is of course quite correct that providers have this right. However the powers of the OfS, or indeed any other body empowered by the Bill, to influence how providers constitute and govern themselves are already very limited. The public interest governance condition in Clause 14, for example, merely seeks to ensure that the governing documents of providers subject to this condition have best governance practice embedded within them. As now, the public interest principles are not intended to prescribe in any detail how providers are to be governed. We expect that they will continue to operate in tandem with sector-owned codes, such as that of the Committee of University Chairs.

Finally, Amendment 65, as put forward by the noble Lord, Lord Kerslake, would add specific protection for academic staff to speak and challenge freely. Again, there is no disagreement from the Government about the importance of this protection. However, institutions are autonomous and the Government cannot interfere in any decisions regarding academic staff, therefore only the institution itself can protect the freedom of its academics. The Bill already takes steps to ensure that this will continue to be the case by allowing the OfS to place a public interest governance condition on all registered providers, which will ensure that their internal governance must include the principle of freedom for academic staff. We therefore believe that the amendment is not needed.

The amendments that I have just spoken about—and there are quite a few—have understandable and laudable motivations, which the Government share. But on the whole they do not substantively add to the protections for institutional autonomy already contained in the Bill. In some cases, they may interfere with the OfS and UKRI’s distinct areas of responsibility, or create a risk of requiring more intervention from the Secretary of State rather than less. None the less, I will consider carefully the points that have been raised, as the Government agree that it is fundamentally important to ensure that the Bill protects institutional autonomy. The suggestions from noble Lords have been very helpful in understanding some of the concerns about this aspect of the Bill.

Amendment 73 would require providers to operate—

[Lord Hannay of Chiswick]

My Lords, I think that the Minister is drawing to a close. He has not yet addressed the question I put to him about the compatibility with institutional autonomy of the consultation that is taking place about student visas for certain subjects. Will he please address that matter, because there is a genuine potential contradiction here? I am not suggesting a contradiction in his intention but it does not look to me as if the findings of that consultation, if they were turned into an attempt by the Government to tell universities which courses they could offer to overseas students, would be compatible with institutional autonomy. Can he please now respond to that?

--- Later in debate ---

[Viscount Younger of Leckie]

Yes, of course. I doubt that I will be able to give a response such that the noble Lord, Lord Hannay, will nod and agree that it is a full response. I will endeavour to write to him with a fuller response but the situation at the moment is that we have no plans to cap the number of genuine students who can come to the UK to study, nor to limit an institution’s ability to recruit genuine international students based on its TEF rating or any other basis. I know that the noble Lord’s question was much more detailed than that. The best thing I can do is to meet him offline and/or write a letter giving him a full answer. I am well aware that he is very exercised about this issue, as are a number of other noble Lords in this Chamber.

--- Later in debate ---

[Baroness Deech]

Before the Minister sits down, may I take him back to his statement that there cannot be any interference by the OfS and the Government in the governance of universities because they are autonomous? However, as has often been mentioned this evening, under the 1988 Act university commissioners were sent to rip up the charters of Oxford and Cambridge colleges, and perhaps of other universities too, in the interests of ending academic tenure. Despite protests, they were rewritten. It was the Government’s will, and no amount of protestations at the time about academic freedom made any difference.

[Viscount Younger of Leckie]

Let me give what I hope will be further reassurance that when the Office for Students is set up, as set out in the Bill in different clauses, academic autonomy will be exceptionally important. However, if there is a failing institution, the OfS will have the right to step in, but the steps it must take are long and quite onerous. I reassure the House that many steps have to be gone through before it goes down that route. I am sure we will have more debate about that.

[Lord Kerslake]

My Lords, I express my thanks for the support that I received from all parts of the House for Amendment 65. I am very aware of the hour and will not rehearse every argument made, but I will pick up on one point, which is that this amendment is not in itself a guarantee that Ministers or the Office for Students would act properly, but it would help. This is the crucial point for me. I am disappointed with the Minister’s response. I see this as a practical, simple and necessary amendment to secure institutional autonomy. Just to be clear, the amendment states:

“The Secretary of State, in issuing guidance and directions, and the OfS, in performing its functions, have a duty to uphold the principle of institutional autonomy”.

It is hard to see any situation in which that would lead to greater intervention rather than less. In the circumstances we are in, I shall not press the amendment. I hope there will be an opportunity for further conversation, and I give notice that I will return to this issue at a later stage.

Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 9th January 2017 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, of course the serious side to the light-hearted comments is that the name will conceal as much as it will reveal about what is going on here. I understand entirely my noble friend Lord Lipsey’s wish to raise this in a relatively light-hearted way and I do not want to be a party pooper but we need a lot more certainty about what exactly this new architecture, which was one of the great calling cards of the Bill when it was first introduced, is actually going to do and deliver.

A number of amendments further down the list will bear on this and we may well need to return to the name once—and only once—we have decided what we are going to have. For instance, we are now told that the Office for Fair Access will have a slightly different role in government amendments due to be discussed on the next day in Committee. That will change the nature of what the OfS does because, if the government amendments are accepted, it will not be allowed to delegate powers that would normally be given to the Office for Fair Access to anybody else, and it will have to ensure that the director of the Office for Fair Access has a particular role to play in relation to access agreements that are created under that regime. In that sense, the power of the OfS as originally conceived was already diluted at the Government’s own behest. We need to think that through before we make a final decision in this area.

The question of how registration is to take place is a quasi-regulatory function. We have an elephant parading around the Bill—it is supposed to walk around in a room but perhaps we ought not to extend the metaphor too far—in the role of the CMA, to which I hope the Minister will refer. If we are talking about regulatory functions, we need to understand better and anticipate well where the CMA’s remit stops and starts. The Minister was not on the Front Bench when the consumer affairs Act was taken through Parliament last year, but that Act is the reason why the CMA now operates in this area. It is extracting information and beginning to obtain undertakings from higher education providers regarding what they will and will not do in the offers they make through prospectuses, the letters sent out under the guise of UCAS, the obligations placed thereby on the students who attend that institution and the responsibilities of the institution itself. I do not wish to go too deep into it at this stage because there will be other opportunities to do so, but until we understand better the boundaries between the Office for Students and the CMA, it will be hard to know what regulatory functions will remain with the OfS and what name it would therefore be best put under. “Office” is common to many regulators but the letters in acronyms can also be changed.

We are back to where we were on the last group: we are not yet sure what the assessment criteria and regimes will be, but perhaps we know more about the criteria than the regime. It is one thing if a committee is to be established with responsibility for assessing the fitness to be on the register and the quality of the teaching as provided. But if an independent body were established and called the quality assurance office or some such similar name, as it would be under a later amendment, it would be doing a lot of the work currently allocated to the Office for Students. I do not have answers to any of these points. I am sure that the Minister will give us some guidance but it would be helpful, when he is ready and able to do so, if he set out in a letter exactly what he thinks the architecture might look like and what the justification therefore is for the name.

The most poignant point was that made by the noble Baroness, Lady Garden: that an Office for Students without student representation on it seems completely bonkers. I do not understand why the Government continue to move down this path. The amendment brought in on Report in the other place was one of sorts to try to move towards that. But it is a measure of the Government’s inability to grasp the issues here in a firm and convincing way that the person who is expected to occupy that place at the Office for Students, as provided for by the amendment, is somebody able to represent students. It is not necessarily a student, which seems a little perverse. I put it no more strongly than that.

Given that the current draft arrangements in the higher education sector for obtaining metrics relating to the grading of teaching quality in institutions has five students on the main committee and two or three students allocated to each of the working groups set up to look at individual institutions, there is obviously a willingness at that level to operate with and be engaged with students. Why is that not mirrored in the Office for Students? Regarding further use, it is really important that we get that nailed down. If it were a genuinely student-focused body—a provision which many governing bodies have—then the Office for Students might well be the right name for it. But until those questions are answered, I do not understand why the Committee would not accept my noble friend Lord Lipsey’s sensible suggestion.

[Viscount Younger of Leckie (Con)]

My Lords, before I start, the Committee might be relieved to hear that my contribution will be somewhat shorter than previous contributions were. I start off, though, by thanking the noble Lord, Lord Lipsey, for his contribution to this short debate. I know how personally committed he is to ensuring that our higher education system is delivering for current and future students, and I value his insight.

This Bill sets out a series of higher education reforms which will improve quality and choice for students, encourage competition and allow for consistent and fair oversight of the sector. To keep pace with the significant change we have seen in the system over the past 25 years, where it is now students who fund their studies, we need a higher education regulator that is focused on protecting students’ interests, promoting fair access and ensuring value for money for their investment in higher education. I hope that noble Lords will recognise that the creation of the Office for Students is key to these principles. The OfS will, for the first time, have a statutory duty focused on the interests of students when using the range of powers given to it by the Bill. As Professor Quintin McKellar, vice-chancellor of the University of Hertfordshire, said in his evidence in the other place,

“the Government’s idea to have an office for students that would primarily be interested in student wellbeing and the student experience is a good thing”.—[Official Report, Commons, Higher Education and Research Bill Committee, 6/9/16; col. 22.]

It is our view that changing the name of the organisation to the “Office for Higher Education” rather implies that the market regulator is an organisation that will answer to higher education providers alone rather than one which is focused on the needs of students. That goes against what we are trying to achieve through these reforms. Our intention to put the student interest at the heart of our regulatory approach to higher education goes beyond just putting it in the title of the body. The Government are committed to a strong student voice on the board of the OfS, and that is why we put forward an amendment in the other place to ensure that at least one of the ordinary members must have experience of representing or promoting the interests of students.

The noble Baroness, Lady Wolf, mentioned that she thought that students were opposed to these reforms that we are bringing forward. I would like to put a bit more balance to that, because there is a wide range of student views about the reforms. There is some strong support for elements of the reforms as well as, I admit, some more publicised criticism—for example, supporting improvement in teaching quality and introducing alternative funding products for students. As I have already mentioned, we made that change at Report stage to make sure that there is greater student representation on the OfS.

The noble Lord, Lord Stevenson, raised a point about the role of the CMA. To reassure him, we will set out more detail later in Committee about the relationship between the OfS and the CMA.

As a regulator, the OfS will build some level of relationship with every registered provider, and one of its duties will be to monitor and report on the financial sustainability of certain registered providers. However, this does not change the fact that the new market regulator should have students at its heart, and we therefore believe that the name of the organisation needs to reflect that. For this reason, and with some regret in withdrawing from potentially receiving the bottle of champagne, I respectfully ask the noble Lord, Lord Lipsey, to withdraw the amendment.

[Lord Lipsey]

My Lords, I thank the Minister for his reply, but I have to say that if we are going to go on like this, it is going to be very hard pounding. I have great respect for the Minister, and I know he has the interests of education at heart. All he had to say was that the Government are prepared to consider alternative titles before we come back to this on Report and if we can find one better than OfS, they will be happy to consider it and we would all have gone home—if we can get a taxi—happy. Instead, he defended this with some arguments that I do not feel the force of.

The Minister said that if it was called the “Office for Higher Education” it would mean that it was acting in the interests of higher education providers only. Does Ofgas operate just in the interests of gas providers? Of course it does not. These regulators do not work in that way. “Office for Higher Education” is a wholly neutral term and means that it will be active in the interests of all those involved in every way in higher education and will not be just a representative of a particular group.

Incidentally, the Minister said the OfS would be representing a particular group and would be representing students because it is about fairer access. The whole point is that, at the time when people are trying to access universities, they are not students at all, or at least they are only school pupils. That is a very good object for a body of this kind, but is not one that can be said to be in the interests of students.

I really would ask the Minister to think again between now and Report. If he is not able to do so, we will take the winner of the champagne and put it to a vote on Report. I hope the House will support me, because if things like this become controversial, in a political sense, across the Floor of the House, I am afraid we are going to find the Bill very hard to digest. However, I beg to leave to withdraw the amendment.

--- Later in debate ---

[Baroness Wolf of Dulwich]

It looks like I am going to be the last speaker, noble Lords will be relieved to know. I support the general tenor of all the amendments in this group, particularly Amendment 7 and the idea that people’s experience should be current or recent. That is extraordinarily important, particularly in an area such as higher education which changes very fast. A number of noble Lords have talked about the importance of further education and the importance of—and decline in the number of—part-time students. We are concerned about these extraordinarily important things, yet it seems that none of the current authorities and institutions which deal with higher education has much idea about why this has happened. We did not intend to have the decline in part-time students that we have. Government after Government have talked of the importance of increasing the role of further education colleges in higher education, because they are central to the availability of part-time courses, retraining and lifelong learning. Yet the role of further education has not in fact increased. The numbers have not increased and the proportion has tended to decline.

So these are real challenges. But it also seems to me that one of the reasons we have got ourselves into this situation is that we do not have enough people with current and recent experience involved at the highest levels of policy-making. Therefore, of all these amendments, I most strongly support the proposal that the Office for Students should look for people to join its board who are deeply involved in the sector in the areas which it is looking for, not people who can tick a box because 20 years ago they were on the board of governors of something. I hope very much that the Minister will take that point away and think about it. I cannot see any way in which it undermines the purposes of the Bill and of government policy. That one small thing might make a big difference to the effectiveness of the Office for Students.

[Viscount Younger of Leckie]

My Lords, I say at the outset that once again I have shortened my comments, bearing in mind the hour. Nevertheless, these amendments need to be properly addressed, so I hope that the Committee will bear with me.

I reassure noble Lords that the Government are committed to a fair and open appointment process for the OfS chair. The final appointment will be made by the Secretary of State, but the process will allow for scrutiny of the appointment by Parliament. We have previously stated our openness to a committee of Parliament scrutinising the nomination of the chair of the OfS before the final appointment is made. I confirm that there will be this opportunity for parliamentary scrutiny in the appointment of the first chair—for whom the selection process is well under way, as noble Lords may know. I note that the noble Lord, Lord Liddle, agrees that the chair of the OfS should not be ratified by a resolution of Parliament but that there should be parliamentary scrutiny. That is correct, despite some comments made this evening that were not particularly in favour of that.

Amendments 4 and 18 would be a departure from the accepted practice set out in the governance code. It is standard practice for the chairs of regulators to be appointed by the respective Secretary of State. We believe that our plans for scrutiny are sufficient and that it is right that the Secretary of State should retain the power to appoint the chair of the OfS board.

Throughout the development of this legislation, the Government have engaged and consulted widely with students and their representatives and we are committed to ensuring that this approach is reflected in the final OfS structure and arrangements. We have already amended the Bill in the other place to ensure that at least one of the ordinary members of the OfS must have experience of representing or promoting the interests of students.

As regards the comments just made by the noble Baroness, Lady Wolf, and the noble Lord, Lord Stevenson, requiring one member of the OfS board to be currently engaged in representing students, as proposed by Amendment 5, would narrow the choice of potential candidates for this role. It could potentially exclude someone who has excellent recent experience of representing students but who has since gone into the working world or further study, thus gaining valuable experience and skills. Furthermore, the standard length of term for public appointments is four years. As such, insisting that the student representative be a current student risks being incompatible with the standard time lines of most courses of study or sabbatical roles as student representatives. That is why we chose the form of wording that we put forward on Report in the other place.

I turn now to the desirability criteria for the OfS board appointments. The Government believe that it is essential that the OfS board should be representative of the broader range of stakeholders in the higher education system. The current legislation that sets out the appointment process for appointments to the current HEFCE board requires the Secretary of State to have regard to experience of higher education, business or the professions. I reiterate that this has worked well for many decades. None the less, this legislation goes further in ensuring a diverse range of board members by setting out seven desirability criteria. These include experience of providing higher education and experience of creating, reviewing, implementing or managing a regulatory system. The seven criteria have been framed broadly so that they allow for flexibility to include board members with the breadth and depth of experience and skills. The Bill in its current form preserves the crucial flexibility for the Secretary of State to constitute the OfS board in the most appropriate way for the challenges and opportunities of the particular day. I reiterate that we need to form a framework that allows us to look ahead a long period of time.

Private Colleges

Viscount Younger of Leckie Excerpts

Wednesday 21st December 2016 Lords Chamber

[Lord Storey]

To ask Her Majesty’s Government what plans they have for further regulation of private colleges.

[Viscount Younger of Leckie (Con)]

The Higher Education and Research Bill, which is currently undergoing scrutiny in this House, will introduce a single regulatory system administered by a new body, the Office for Students. This will replace the current fragmented, complex and outdated system and will regulate all higher education providers, including private providers, by the same standards and conditions proportionate to their risk. While the Bill progresses through Parliament, we remain committed to strengthening the current alternative provider system.

[Lord Storey]

I am delighted to hear the Minister’s reply. Does he not agree that while it is important that more students from disadvantaged backgrounds get the opportunity to pursue higher level courses, when some private colleges enrol them they have problems with basic English and numeracy and they need extra support? When colleges have a progression rate meaning that 50% fail and the pass rate is very low, that does not help and support these young people.

[Viscount Younger of Leckie]

I note what the noble Lord says but the recruitment practices and academic performance of alternative providers, including available progression rates, are all taken into account by the department and, as he will know, by the Quality Assurance Agency for Higher Education. We can and do take action when these fall below acceptable standards. Validation agreements are different for every provider but the degree-awarding body is ultimately responsible for the quality of the learning programme. Under our planned reforms we will give the Office for Students enabling powers to improve validation agreements, including regular monitoring.

[Baroness Sugg (Con)]

My Lords, we have seen the detrimental effect of low-quality private colleges on the students studying at them and on the reputation of the sector. Given the importance of protecting the United Kingdom’s position as a world leader in higher education, can my noble friend explain what the Government are doing to clamp down on these inferior providers?

[Viscount Younger of Leckie]

The main point to make, as we take these reforms through and provide a framework for new alternative providers to set up, is that we will look at the importance of quality and not just quantity. New providers and increased competition in the system should improve the capacity and agility of the higher education sector as well as encouraging innovation to transform its ability to respond to economic demands.

[Lord Watson of Invergowrie (Lab)]

My Lords, the Higher Education and Research Bill to which the Minister has referred is currently before your Lordships’ House. It is causing concern because of the manner in which many new private higher education institutions could be allowed to enter the sector. There are already several well-established private higher education institutions that work to widen access to higher education. Even though they do not have degree-awarding powers, they are rigorously regulated by the Quality Assurance Agency for Higher Education. Does the Minister not accept that the proposal to allow new private higher education institutions to have degree-awarding powers from day one represents an unwarranted risk which could see students being offered a standard of education that is at best problematic?

[Viscount Younger of Leckie]

There is a balance to be struck here. We are very keen to encourage the setting up of new providers, examples of which include Ravensbourne College in east London and the Condé Nast College of Fashion and Design, but the key point that he is really alluding to is quality. If new providers are setting up and are given provision for degree-awarding powers from day one, it is critical that the quality conditions are met. Perhaps I may reassure the noble Lord that the bar for these conditions is set very high.

[Baroness Brinton (LD)]

My Lords, the Centre for Global Higher Education report published earlier this year entitled, The Entry and Experience of Providers of Higher Education in Six Countries, states:

“Private providers are quick to suffer the consequences of diminishing demand, forcing institutions to close. This can have serious educational and financial consequences for students at failing institutions who sometimes can be left in limbo”.

Given the current arrangements, with HEFCE as a regulator and the high hurdle of a royal charter for a new HE institution, what will the Government do to ensure that any new private providers in the UK do not become at risk of this happening?

[Viscount Younger of Leckie]

One of our reforms is to set up the Office for Students, as I mentioned earlier. It will provide one register to set a level playing field. This means that if, in what would perhaps be an unusual case, a private provider does not meet the standards required, there are student protection processes in place. That is an important part of our checks and controls.

[Baroness Wolf of Dulwich (CB)]

My Lords, as the Minister will know, additional powers were taken recently to allow the Home Office and what was then BIS to place caps on numbers where there were concerns about quality and recruitment among private providers. It appears that that power will be lost under the provisions of the Higher Education and Research Bill, which will impose quality restrictions but, if provisional degree-awarding powers are given, will set no caps on numbers. In other words, the Government are actually getting rid of some of the powers that they have taken in recent years. I would be grateful if the Minister could clarify if this is indeed the case and whether it would not be wise to retain for new institutions the ability to place a clear cap on student recruitment numbers.

[Viscount Younger of Leckie]

The new alternative providers, such as the recently announced Dyson Institute, will include some student number controls, but there will be a rigorous risk-based approach to quality assurance and a moratorium on the designation of new higher national courses. There will also be a fit-and-proper-person test for the running of APs. The noble Baroness and I will meet later and I look forward to talking further to her about that issue.

[Lord Cormack (Con)]

My Lords, does my noble friend know the current percentage of foreign students at these private colleges? What does he expect it to be in a year’s time?

[Viscount Younger of Leckie]

I do not have that particular figure, but there is no change and no cap on foreign students coming to study in this country, as the Home Secretary has made clear.

Higher Education and Research Bill

Viscount Younger of Leckie Excerpts

Wednesday 21st December 2016 Lords Chamber

Moved by

[Viscount Younger of Leckie]

That it be an instruction to the Committee of the Whole House to which the Higher Education and Research Bill has been committed that they consider the bill in the following order:

Clause 1, Schedule 1, Clauses 2 to 10, Schedule 2, Clauses 11 to 15, Schedule 3, Clauses 16 to 26, Schedule 4, Clauses 27 to 56, Schedule 5, Clauses 57 to 60, Schedule 6, Clauses 61 to 67, Schedule 7, Clauses 68 to 84, Schedule 8, Clause 85, Schedule 9, Clauses 86 to 109, Schedule 10, Clauses 110 to 116, Schedules 11 and 12, Clauses 117 to 119, Title.

Motion agreed.