Committee (5th Day) (Continued)
244: Clause 40, page 23, line 6, at end insert—
“( ) The OfS may not authorise a provider to grant research awards under subsection (1) unless it has first consulted—(a) UKRI; and(b) such other persons as it considers appropriate.”
My Lords, this amendment stands in my name and that of my noble friend Lady Wolf. It leads a group of amendments that concern the powers of the OfS, under Clause 40, to authorise higher education providers to grant degrees. This is an important group of amendments, including things as diverse as probationary degree-awarding arrangements and ecclesiastical licences, as well as the focused area covered by the amendments in my name—that of powers to grant higher and research degrees. I would like to talk about that very specific area and I want to make two points.
First, the expertise in relation to the specific requirements for higher and research degrees lies most strongly with the research community, which is more closely and obviously linked to the research councils and UKRI than to the OfS. Indeed, research councils have significant experience of research degree success criteria, as they provide much of the PhD funding in UK higher education institutions and have established the very successful doctoral training centres.
Secondly, the majority of the OfS’s work with new providers will relate to undergraduate provision of various forms by a diverse range of providers, many of whom will not offer, or aspire to offer, research or higher degrees. Therefore, this will be a relatively niche activity and perhaps quite a rarely used power for the OfS.
For those two reasons, it seems to me that it would be both valuable and appropriate for the Office for Students to be required to draw on the expertise in UKRI, and indeed to reach a joint agreement with it when granting powers towards higher and research degrees.
Amendments 244, 264A and 485B in this group, as well as Amendment 509, relate to the OfS and UKRI being required to work together to grant higher and research degree-awarding powers—something that appears logical and uncontroversial, and I ask the Minister to consider including this in the Bill. I beg to move.
My Lords, I have Amendment 251 in this grouping. In opening, I stress that I do not have a problem with alternative providers in HE. I chair the Higher Education Commission and we are presently undertaking an inquiry into alternative providers. They are numerous and the nature of their provision varies enormously. I heard from some of them earlier this afternoon. Some cater to thousands of students, others to a small number in what are essentially niche subjects.
What is important is that arrangements are in place to protect students. Last week we discussed the provision for student protection plans. At issue here is the giving of degree-awarding powers and the need to ensure that such powers are conferred on bodies that have the proven capacity to maintain the required standards of a UK degree, and to do so for as long as they have such powers.
There is considerable concern about provision for “probationary” degree-awarding powers. If a probationary period is to mean anything, it is that the continuation of degree-awarding powers is not guaranteed at the end of the period. What happens at the end of the three-year probationary period if such powers are not continued? What happens to students still at the institution? What worth attaches to the degrees of those who have already graduated? Furthermore, what is the risk to the UK HE brand if probationary degree-awarding powers are conferred on bodies with no established track record of delivering high-quality education? My amendment seeks to protect the position of students and of the HE brand, by ensuring that the OfS may not authorise a provider to grant degrees, unless the provider has validation arrangements in place.
I appreciate that confining the provision to validation by existing HE institutions runs the risk of imposing uniformity, with established institutions not being too keen on validating innovative teaching methods and possibly not fully appreciating the value of the alternative provision. The way round that is to ensure that there is an independent validating body. Clause 47 enables the Secretary of State to authorise the OfS to be the validator of last resort, but I recognise the problem of allowing the regulator to have such a power. It is not a power that should be vested in the regulator. I would rather see an independent body, akin to the old CNAA, created. That deserves serious consideration. I thus favour amending this clause along the lines of Amendment 251 and the other amendments in this group, along with the later removal of Clause 47 and its replacement by a provision that would create a body equivalent to the old CNAA. That, to my mind, would inject the necessary protections while not deterring new entrants to the field.
My Lords, I speak in favour of Amendments 251, 252, 259 and 260. In doing so, I very much echo the thoughts of the noble Lord, Lord Norton of Louth. These amendments would remove the probationary powers provisions and put a higher test before universities could award degrees. I tabled these amendments because the Government have seriously underestimated the risk to the reputation of the university sector in what they are doing. Collectively, we need to safeguard this reputation and to require that the OfS or a separate body—as has just been proposed—has the necessary confidence that the organisation to which it is granting degree-awarding powers has the capability to do this on an enduring basis.
I ask noble Lords to put themselves in the position of a student, either in this country or abroad, who comes across the word “probation”. They might wonder what the word means and look at the dictionary here. What the dictionary says is that it relates,
“to a process of testing or observing the character or abilities of a person who is new to a role or job”,
“relating to the release of an offender from detention subject to a period of good behaviour under supervision”.
I venture to suggest that not many students would be reassured by that definition and by the prospect of undertaking a degree at the end of which it would be possible for the whole institution to be found inadequate in its requirements, which must be a possibility under the very definition of these provisions. The term “probationary” is wrong and the concept of “probationary” is wrong. We should, instead, insist that anybody in a position to award degrees is able to do so with an enduring capability. This is a crucial point and it is unfortunate that we are coming to it so late in the evening, because I believe it to be fundamental.
The question your Lordships might ask is: what problem is trying to be solved? I am strongly in favour of new market entry and improving the validating process where it needs improving, but where is the body of evidence that justifies the introduction of probationary degrees? I cannot find it. I have looked carefully at the documents produced on Friday by the Minister, which were very helpful. Page 7 of the factsheet on the validation process refers to “anecdotal evidence”. I suggest that we as the House of Lords should not take our decisions on the basis of anecdotal evidence.
I also raise the question of whether there are any factual consequences of the current validation process. Here, I turn to the other document we received. Page 1 says:
“The role of incumbents in the current system also risks limiting innovation. Providers may be hesitant to validate courses that do not conform to their usual modes of delivery, entrenching existing models of higher education”.
Here is the point:
“For example, new providers wanting to offer accelerated degrees may find that established providers that mostly deliver traditional, full-time, three-year degrees are not prepared to validate their courses. We can see this happening already: the share of undergraduate students in English HEIs doing typical full- time first degrees has increased from 65% in 2010/11 to 78% in 2014/15”.
I do not think anybody who understands the higher education sector properly would think that that shift to full-time degrees is the consequence of validation. It is entirely a consequence of the way funding works for students. The evidence we have is either anecdotal or, in relation to any facts quoted here, fundamentally wrong.
This part of the Bill is deeply flawed. It needs to be rethought and reviewed fundamentally.
My Lords, I shall speak to two amendments in my name, which are probing amendments. Since they refer to the awarding of ecclesiastical degrees by the Holy See, I am bound to declare my interest as the holder of a papal knighthood.
I will say a word about church universities. The Catholic Church has 16 higher education institutions, including five universities, which are classified as church universities. These are part of the so-called Cathedrals Group. There are 16 universities in the United Kingdom with Catholic, Anglican and Methodist foundations. All are based on ethical principles. They are rooted in their local communities and in Christianity. They have a common commitment to social justice. An example of that is St Mary’s University, Twickenham, with its Centre for the Study of Modern Slavery.
Some 5% of all UK students—about 100,000—study in such universities. That is the equivalent of the total number of higher education students in Wales. They are specially connected to teaching. Some 30% of all primary and 16% of all secondary teachers have been trained in church universities. Roughly half of all those students in this country studying theology and religious studies are in church universities.
My amendments refer specifically to Roman Catholic ecclesiastical degrees. These are academic degrees—bachelor’s degrees; licentiates, which are equivalent to master’s degrees; and doctorates—recognised by the Catholic Church. They are used throughout the world, particularly with regard to philosophy, theology and canon law. They are often necessary qualifications for office within the Church throughout the entire world. The Holy See is a full member of the European education area and in this country two faculties which award degrees from the Holy See in philosophy and theology are at Heythrop College. In this country they are awarded in parallel with degrees; at Heythrop it is in parallel with degrees from the University of London.
Legislation in 1988 criminalised the awarding of degrees which did not have the authorisation of an Act of Parliament or a royal charter. Any degrees which did not have those foundations after 1988 were in fact criminal. Heythrop College of course, because it was founded before 1988, was exempt from that legislation, but the reason for these probing amendments is that the future of Heythrop College is in some doubt and, were it to close, the faculties which offer philosophy and theology would have to be transferred to other higher education institutions run by the Catholic Church and, under current legislation, would therefore be illegal. These two amendments would allow those degrees to be awarded if the Minister, when he replies, is gracious enough to accept them.
My Lords, in the absence of the noble Baroness, Lady Wolf, who is unable to introduce it herself this evening, I shall speak to Amendment 269, to which I have added my name. I support all the amendments in this group that have already been spoken to. This amendment creates a new clause which confirms the role of the Advisory Committee on Degree Awarding Powers within the designated quality body to provide independent, expert advice before degree-awarding powers and university title are conferred, or creates a committee of the Office for Students which fulfils much the same function as the current Advisory Committee on Degree Awarding Powers where no body has been designated. This provides independent, expert scrutiny and advice to the OfS.
The Bill amends the Further and Higher Education Act 1992 to give the newly created Office for Students the ability to give and remove institutions’ degree-awarding powers and to award or remove the use of university title. This power currently sits with the Privy Council, which acts on the basis of guidance and criteria set out by the department for business, with advice from the Quality Assurance Agency. It is important that any new higher education providers awarding their own degrees, or calling themselves “university”, meet the same high requirements as existing universities. Appropriately robust market entry standards serve the interests of students by minimising the risk of early institutional failure or the need for intervention by the OfS, and we are not reassured that this is currently the case in the proposals put forward by the Government. Of course, we support new providers in the system, but we need particularly to scrutinise the fast-track private providers, as proposed in the Bill.
We propose a new clause legislating for a degree of independent oversight of the OfS in awarding degrees and university title to provide checks and balances on these very important decisions. In practice, this would require the OfS to take the advice of an independent specialist committee within the designated quality body or, where no quality body is designated for the OfS, to set up a statutory committee along the lines of the existing Advisory Committee on Degree Awarding Powers. I look forward to hearing the Minister’s response to the various amendments in this group.
My Lords, I strongly support the comments made by the noble Lords, Lord Norton and Lord Kerslake. I preface my contribution to this debate by reiterating my concerns about the Government’s proposals to make it easier for alternative providers to award degrees and subsequently to achieve university title. I have not been reassured by any of the Minister’s explanations or by the detailed letters he has so courteously sent us during our debates over the last two weeks. The Government want to further diversify the sector. Yes, we need to reach potential students with different offerings and different types of courses, and in parts of the country that are poorly served. Of course, I support that, but not at the risk of selling these students a pig a poke.
There are enough examples from the States in particular which should give us pause for thought. There is one very familiar name, which I will not mention, but the closure of one of the largest for-profit providers, Corinthian Colleges, has left 16,000 students without certificates or degrees. The risk that the same could happen here does not seem even to be acknowledged by the Government. The Government’s commitment to diversifying the sector will be undermined by introducing this additional risk for students, because the loss of reputation will send a very negative ripple across the whole sector and abroad.
Students are at the heart of the Bill, yet it is students who will suffer if private providers that are going to be given the benefit of the doubt with probationary DAPs cannot deliver, or go under. A recent QAA report highlighted the importance of new entrants working closely with existing providers through the well-established validation procedures. On the whole, these validation arrangements have worked very well and we have not been offered any convincing evidence to the contrary. Indeed, my noble friend Lady Cohen, whose university has successfully gone through this process, said that it worked well and that they learned a lot from it. Of course, if the Bill can improve these validation relationships for the benefit of students, so much the better.
I can understand that potential entrants to the market are frustrated that they have to prove themselves against strict criteria. But it is surely far better for students, and probably in the long term for the providers themselves, that there are high standards for entry which minimise the risk of institutional failure. Why do we need to fast-track? It is not as if we are desperately short of universities. There are around 130 well-established institutions; nor are we short of alternative providers. Nobody seems to know the exact figure, although I hope the Bill’s provisions on registration will correct that. The DfE thinks that there are about 400 which receive some sort of taxpayer funding. A much smaller number has been awarded degree-awarding powers. So far these providers have made a limited contribution to diversity. They are focused largely on law, business and finance, and BPP, we were told, is going into nursing. They are mostly in London and the south-east, rather than in the so-called cold spots, where provision is limited or non-existent. That is scarcely surprising as they need to be in the more lucrative markets to satisfy shareholders of the business’s viability. I do not see that that is changing, even if these new arrangements are introduced.
Finally, who really benefits from probationary DAPs? It is not students, who are essentially paying to be guinea pigs for a new provider; but possibly not even new providers, who may find the label “probationary” more of a challenge when recruiting students and staff than they might as new institutions with robust validation arrangements. I urge the Government to think extremely carefully about this. In doing that I support Amendments 251, 252 and 259.
My Lords, my friend the right reverend Prelate the Bishop of Portsmouth is unable to be in his place this evening, but in his place I bring before your Lordships Amendment 268A. I endorse all the general comments made by the noble Lord, Lord Murphy of Torfaen, about the Cathedrals Group of universities. While I am not armed with the expertise, his amendments appear to make sense for the particular purpose.
I am sure that almost all noble Lords in the Committee are aware that the Archbishop of Canterbury has possessed the power to confer degrees since the Ecclesiastical Licences Act 1533. Certainly the landscape of higher education has changed in the almost 500 years since then, when the only other English degree-awarding institutions were Oxford and Cambridge. The Higher Education and Research Bill that we are rightly considering so carefully is very welcome in recognising that changing landscape and legislating to ensure that the sector continues to evolve as successfully as it has done so far.
Amendment 268A deals with a particular corner of that landscape and it may help to indicate briefly how this power is exercised. Lambeth degrees, as they are often informally called, are now issued in one of two distinct ways. The first is following examination or thesis, under the direction of the Archbishop’s Examination in Theology, usually referred to as the AET. Since 2007, the AET has been offered as an MPhil research degree, with the opportunity to extend to a PhD. These research courses are offered at a level that meets QAA requirements but at a reasonable cost and with user-friendly access. Although allocated research supervisors will be fully qualified to offer guidance and criticism, the emphasis is on individual research, requiring a high level of self-motivation and commitment to study. Students on the AET have access to the Office of the Independent Adjudicator and although, as one document rather charmingly puts it,
“the Archbishop is not a university”,
this provision is included within the current HEFCE register.
The second is the awarding of higher degrees—often, though not always, doctorates—in a range of disciplines to those who have served the Church in a particularly distinguished way and for whom an academic award would be particularly appropriate. They can be awarded in divinity, law, arts, medicine or music. It could therefore be said that in addition to the scholarly merit required of a possible recipient, they have an honorary character. Indeed, some past and current Members of this House have been recipients; for example, the noble Lord, Lord Sacks, was awarded a doctorate of divinity in 2001.
While originally conveyed by the Act of 1533, the Archbishop’s power to award degrees was recognised following the Education Reform Act 1988, within the relevant statutory instrument—for connoisseurs, it is the Education (Recognised Bodies) Order 1988, no. 2036—and under the Further and Higher Education Act 1992, to which Amendment 268A refers.
Lambeth degrees are not given lightly—surely no degree is lightly awarded—and they are regarded as a great honour by their recipients. Archbishop Justin—the most reverend Primate the Archbishop of Canterbury—places great emphasis on the rigour of the AET, and he is not alone in his belief that the course makes a valuable contribution to theological research. The AET enables those from all backgrounds among the Anglican communion around the world, who may not have access to the privilege of studying for an English degree any other way, to do so, and diversity among the small group of students who study for the AET is rightly valued highly.
As an example, in Durham we are currently hosting a highly gifted young Burundian while he undertakes research for a Lambeth PhD. He is on the staff of the newly founded Bujumbura Christian University in Burundi. On his return there, he will play a significant role in its development. His research is in the ethics of entrepreneurial business development in a developing nation. Currently, only 3% of Burundians study at a higher education institution, so his involvement in developing a new one is significant for the nation as a whole. The Lambeth degree process is thus serving the poorest and neediest nations. It is of real significance and needs to be maintained.
This is simply a saving amendment, and I hope that the Minister will say whether it is the Government’s intention to adopt this amendment or to offer one of their own to the same effect on Report in order to ensure that this long-standing, beneficial and, indeed, unique provision is explicitly respected in the Bill. If the Minister is unable to be so definite, perhaps he might be willing to arrange a meeting before Report to discuss how best the necessary provisions can be made.
My Lords, I rise briefly to support my noble friend Lord Norton’s amendment, which would be the ideal. Certainly, we have to move away from where we are in this. I do not find the idea of validation by the OfS satisfactory, with all its conflicts of interest, but universities which set and mark their own degrees are used to that sort of conflict. This sector seems plagued with such conflicts, but I would rather do without them. We have to get to a point where universities acting as validators are not permitted and are in some way controlled by the OfS—if we do not have the arrangement that my noble friend proposes—so that they do not indulge in competitive behaviour in the way that they have in the past. It is an extremely unsatisfactory process at the moment. Validation can last for three years only. That is not in the interests of students. They must have longer-term arrangements with the universities and the universities must be held to them, if that is what we are to go on with.
One can look at examples such as the London College of International Business Studies—a 150 year-old institution, one way and another—which has its degrees validated in Switzerland. It has gone to the altar three times with UK universities, each time being left in the lurch, although it got a QAA pass in the course of one of them. It is now engaged to the Open University and has high hopes of it. I wish it good fortune, but that is not a fair way of asking an organisation to get degree-awarding powers. There has to be good behaviour and consistent behaviour on behalf of the universities.
We also need to solve the problem facing Cordon Bleu. It is an institution operating in 20 countries, awarding degrees in most of them, and extremely highly respected. It cannot come to the UK because, under the validation arrangements currently in place, the validating institution gets a complete licence to use the validatee’s IP to do whatever it wants. Indeed, we have seen one of Cordon Bleu’s competitors pillaged in that way by a UK university. All its IP was taken and used to run that university’s own degrees. That cannot be permitted as a relationship between someone seeking validation and someone offering it.
Whatever we do, we must improve where we are. I am not particularly impressed by what is in the Bill at the moment, but I very much hope that between us we can reach something that will support the entrance of good organisations to degree-awarding in this country in a way that takes account of their quality and the good reasons that they have for thinking they might be allowed to award degrees. However, as others have said, the legislation must absolutely protect the reputation of degrees in this country. We cannot have a situation where substandard organisations get to award degrees.
My Lords, this has been a very interesting debate. It has shone a light in strange places that I did not think we would ever get to. As a not very good Scottish Calvinist, I am probably the least able to contribute to the debates that were organised by my noble friend Lord Murphy and the right reverend Prelate. However, they make good points and I hope the Minister will be able to help to move that debate forward.
I do not like the idea that my noble friend Lord Murphy’s institutions have to act illegally but be forgiven in the courts when they are finally taken account of. We should get ahead of the game and try to sort this out.
We started with the question of how research awards needed to be done jointly between UKRI and the OfS, if that is the body. This is something we will come back to, so it is no disrespect to say that we need not spend too much time on it now, particularly as the principal proposers of Amendment 509 are missing, in one case because of fog and in the other, I think, because of Cambridge. I cannot remember which is which—your Lordships can probably guess. It is therefore probably better if we pick that up when we come back.
That leaves the central issue posed by the noble Lord, Lord Kerslake, which is how we can find a structure in a system that has institutions of the highest quality by all accounts that can provide the assurance, support and effective answers to any of the questions raised by new challenger institutions, without those challenger institutions feeling that their operations and ways of working will be squished in some sort of force majeure that will be offered by the established club.
The amendments are very interesting. The words that have been used to attack the concept of probationary degrees need nothing further from me; I think that is right. That is not the way the Government should go on this. We are looking at a way of making sure that the quality assessment—the ability to come to an enduring decision about an institution that wishes to seek degree-awarding powers—is done in a way that reflects its ability to fulfil the necessary requirements in terms of capacity, financial security, academic capacity and the rest, but does not interpose somebody else’s view about what the institution should be doing on top of that.
The right reverend Prelate suggested that some of the stuff he was talking about had been going on since 1533. That puts in perspective people’s worries about a four-year period during which tests are made of whether institutions coming into the system are able to cope. Certainly, my discussions, which were mentioned by others, suggested that people who had been through that process found it valuable, so it would be very stupid to throw it away without further consideration.
I went down memory lane with the noble Lord, Lord Norton of Louth, because I started my career in academic administration with CNAA. It was bureaucratic and a little heavy-handed but it worked very effectively. It is interesting that the final vestiges of CNAA still exist in the Open University. Maybe that is where we might want to look, as a future amendment suggests, before we start trying to create something that will not stand the test of time or advance higher education in the UK, and may indeed cause problems, many of which have been raised in this short debate.
I am grateful to the noble Lords for the opportunity to speak to this important group of amendments. Once again, I acknowledge the experience of noble Lords who have contributed to this short debate, including my noble friend Lord Norton, who has chaired the Higher Education Commission.
It is vital that the OfS and UKRI are empowered to work together. Hence, Clause 106 ensures that the two organisations can co-operate and share information in relation to any of their functions, including granting research degree-awarding powers. UKRI will play a key role in developing research degree-awarding powers’ criteria and guidance, including for postgraduate research degrees, and it will work closely with the OfS to design the process for assessing applications and in its operation. We will make this explicit in the published government guidance on degree-awarding powers. The Secretary of State will also have powers to require this co-operation to take place if the OfS and UKRI do not do so of their own accord. UKRI will be responsible for all research funding, including postgraduate research. It will support postgraduate training and doctorates, as the research councils do now.
I do not agree that legislation is the right route to formalise the detail, due to the risk of unintended consequences. Instead, a memorandum of understanding between the OfS and UKRI will be produced. This will provide detail on how oversight of the sector’s interests as a whole will be maintained, including how the two bodies will work together in respect of postgraduates.
Turning to the amendments relating to the OfS granting time-limited or probationary degree-awarding powers, the current system has protected quality successfully and, as I hope I made clear in my earlier remarks, we are not proposing a complete overhaul. Reference has been made to factsheets, and we have set this out in more detail on a factsheet specifically on degree-awarding powers and university title, which we published last week. I hope noble Lords have found it helpful.
However, I make it clear that this does not mean we should be satisfied with the status quo. Under the current regime, new and innovative providers have to wait until they have developed a track record before operating as degree-awarding bodies in their own right, no matter how good their offer is or how much academic expertise they have. To develop that track record, they are usually reliant on finding another institution to validate their provision and must negotiate a validation agreement, which can be one-sided and sometimes prohibitively expensive. My noble friend Lord Lucas asked about validation arrangements. I agree with his points about the problems with validation. We will come to that in more detail in a later debate, so I hope he has some patience for that.
We strongly believe that the sector needs to have at its heart informed student choice and competition among high-quality institutions. This incentivises institutions to raise their game, with the potential to offer students a greater choice of more innovative and better-quality courses. The noble Lord, Lord Kerslake, claimed that the shift to full-time undergraduate degrees was not due to validation and a lack of innovation. I quote to him Paul Kirkham, who he may know is vice-chair of Independent Higher Education:
“I can see essentially only one ‘product’ in the higher education world that has real currency—the three year, full-time, on-campus undergraduate university degree, almost exclusively priced at a single point. This is a high cost and inflexible approach that, with in excess of 50% of the population wishing to engage, cannot be the only solution”.
Our plans for probationary degree-awarding powers mean that high-quality providers do not need to rely on incumbents and can be permitted to award degrees in their own name from the start—subject to close supervision.
However, let me reassure noble Lords, including in particular the noble Lord, Lord Kerslake, that quality is absolutely still paramount. In order to become eligible for degree-awarding powers, including probationary powers, all providers will have to register, and we expect this to be in either the “approved” or the “approved (fee cap)” category. This will ensure that all applicants meet high market-entry conditions, which we see as including quality and financial sustainability, management, and governance criteria.
In order to access probationary degree-awarding powers, we plan that providers will also need to pass a new, specific test to demonstrate that they have the potential to meet the full degree-awarding power criteria by the end of the three-year probationary period. We fully expect probationary degree-awarding power holders to be subject to appropriate restrictions and strict oversight by the OfS in order to safeguard quality. We expect this oversight to be not unlike the support of a validating body—except that new providers will not need to ask a competitor to do this.
My noble friend Lord Norton asked what would happen to students if a provider loses their probationary degree-awarding powers. We expect all providers with degree-awarding powers, including those with probationary degree-awarding powers, will have a student protection plan in place. This will set out plans to ensure that students can complete their course and obtain their degrees, or to provide alternatives if for any reason that is not possible. I think this was made quite clear in the Committee, but I should say again that it would be highly unusual if an institution with probationary degree-awarding powers failed, and it would have gone down a long process to get to that point. It is not expected to happen, particularly as we are setting out such stringent criteria at the beginning of that process.
I stress that giving degree-awarding powers on a time-limited and renewable basis is not new, and it is already the case that alternative providers and further education providers are granted those powers on a six-yearly renewable basis. We intend that all degree-awarding powers are granted on a three-year, time-limited basis in the first instance, with the opportunity for all to progress to indefinite degree-awarding powers—but subject to satisfactory performance. This will be the same for all providers.
Turning to Amendment 269, as now, we would expect an independent committee to play a vital role in the scrutiny of applications, bringing to bear its unique and expert perspective on the process and enabling the OfS to draw on its expertise.
Briefly, I thank the right reverend Prelate the Bishop of Portsmouth—and the right reverend Prelate the Bishop of Durham, who spoke on his behalf—and the noble Lord, Lord Murphy, for tabling Amendments 268A, 338ZA and 338ZB. I know that my officials have already been discussing some of these issues with the most reverend Primate’s office, and rather than trying to respond to these amendments today, I offer to meet the noble Lord and the right reverend Prelates to discuss specific issues in more detail outside the Chamber. I hope that will be helpful, rather than going into all the arguments this evening.
We will continue to listen carefully to your Lordships’ concerns. We are fully committed to maintaining quality, but at the same time, we want to ensure that there is a clear and simple route for new, innovative and high-quality providers to enter the market. I hope that by spending some time answering the questions, I have provided some reassurance to noble Lords on this important subject. In the meantime, I ask the noble Baroness, Lady Brown, who spoke on behalf of the noble Baroness, Lady Wolf, to withdraw Amendment 244.
I just wanted to come back on this issue of the shift in proportion between full-time and part-time degrees. Could the Minister confirm that the significant cause of that shift is the falling off of part-time degrees and that that is related not to the issue of validation but to the change around funding arrangements? We must be clear about the causes of changes here, or we are likely to find the wrong solutions.
There can indeed be quite a full debate on the causes of the changes and I hope that in previous debates I have acknowledged the changes in the marketplace. Our aim as a Government is to address these changes. I think that we are all on the same page on that. I am happy to speak to the noble Lord, Lord Kerslake, further on that particular issue—in other words, concerning the issues that are leading up to our reforms.
My noble friend has dealt with the point about a body that is awarded a degree-awarding power on a probationary basis and then does not have that power granted at the end of the probationary period, where for current students a student protection plan would be in place. However, if it is a degree-awarding body it may have already awarded degrees. What value does he think would attach to those degrees?
Again, I can speak to my noble friend outside the Chamber, but surely there is no change to the current situation. In an extreme position where a provider fails, a student who has a degree from that failed provider would have to take that with him or her. There is surely no change and no reflection in terms of what we are trying to do here.
I thank the Minister for his detailed answer, and the other noble Lords for their important contributions to this debate. I feel slightly embarrassed as the leader of the one of the most specific areas of amendments to be the person responding on behalf of all those who have contributed.
I thank the Minister for his assurance that it will be explicit in the public guidance about UKRI and the OfS that they must work together in the area of research degrees and that this will feature in the memorandum of understanding on how they work together. That is extremely positive. I should still like to see in the Bill that they must work together rather than that they can work together. However, I thank him for his assurance that this will be explicit in guidance.
I am sure that the right reverend Prelate and the other noble Lord who spoke about the ecclesiastical issues will be happy with the agreement to meet the Minister to take those key areas forward. There is still a significant concern in the Committee, which I share, about the probationary degree-awarding powers, protection for students and whether the evidence is that it is the inability to find a validation partner that is stopping innovation in the system. I am delighted that the Minister has offered further meetings to continue this discussion. I am sure it will come up again as we discuss the validator of last resort, and may well also come up on Report. However, in the light of the detailed response from the Minister and the offers of meetings, I beg leave to withdraw the amendment.
Amendment 244 withdrawn.
Amendment 245 had been withdrawn from the Marshalled List.
Amendments 246 to 250
246: Clause 40, page 23, line 9, leave out “, research awards or foundation degrees” and insert “or research awards”
247: Clause 40, page 23, line 11, leave out “, research awards or foundation degrees” and insert “or research awards”
248: Clause 40, page 23, line 12, leave out “, research awards or foundation degrees” and insert “or research awards”
249: Clause 40, page 23, line 15, after “degree” insert “(including a foundation degree)”
250: Clause 40, page 23, line 24, at end insert—
““foundation degree only authorisation” means authorisation under subsection (1) to grant taught awards where foundation degrees are the only degrees which the provider is authorised to grant.”
Amendments 246 to 250 agreed.
Amendments 251 and 252 not moved.
253: Clause 40, page 23, leave out line 25 and insert—
“(4) An order under subsection (1) which would give a provider foundation degree only authorisation may be made only if—(a) the provider is an English further education provider,”
Amendment 253 agreed.
Amendments 254 to 256 had been withdrawn from the Marshalled List.
Amendment 256A not moved.
Amendment 257 had been withdrawn from the Marshalled List.
258: Clause 40, page 23, line 32, leave out “41(3)” and insert “41(2)”
Amendment 258 agreed.
Amendments 259 and 260 not moved.
Amendments 261 to 263
261: Clause 40, page 23, line 40, leave out “, research awards or foundation degrees” and insert “or research awards”
262: Clause 40, page 24, line 3, leave out “, research award or foundation degree” and insert “or research award”
263: Clause 40, page 24, line 7, leave out “, research award or foundation degree” and insert “or research award”
Amendments 261 to 263 agreed.
Amendments 264 and 264A not moved.
265: Clause 40, page 24, line 11, after “instrument” insert “with the approval of the Secretary of State”
My Lords, the amendments in this group which stand in my name and the names of my noble and learned friend Lord Judge, my noble friend Lady O’Neill of Bengarve and the noble Lord, Lord Norton of Louth, do three things. Amendment 265 would require the Secretary of State’s approval before the OfS could make an order authorising the grant of degrees. What is proposed in the Bill would replace the powers conferred upon the Privy Council by Section 76 of the Further and Higher Education Act 1992. Indeed, I like Amendment 266, tabled by the noble Lord, Lord Stevenson of Balmacara, even more than I like mine, as his would maintain the status quo. I do not like the idea of delegating law-making powers to bodies other than Ministers. The Delegated Powers Committee noted that such delegations were not unprecedented. For example, I am aware of a delegation under Section 42 of the Wildlife and Countryside Act 1981, and under the Communications Act 2003. However, the existence of precedents does not necessarily make the principle acceptable. When powers are delegated to Ministers, those Ministers are within the reach of Parliament. Under the Bill, the OfS will be, for practical purposes, beyond Parliament’s reach.
The series of amendments starting with Amendment 277 and ending with Amendment 298 deal with the power to vary or revoke authorisations. They take this power away from the OfS and would give it to the Secretary of State. Amendment 511 would make any SI made by the Secretary of State subject to the affirmative procedure. Those would still be Henry VIII powers, and unwelcome on that account, but they would at least be exercised by Ministers. The Delegated Powers Committee, of which I am a member, said in its 10th report of this Session that:
“There is nothing on the face of Clause 43 which limits the way in which the OfS is able to exercise the powers, leaving it wholly to the discretion of the OfS when and in what circumstances the powers should be exercised”.
The committee recommended that the powers should be subject to parliamentary scrutiny and that the affirmative procedure should apply. That would be achieved by these amendments.
Amendment 301 would remove the possibility of a decision on appeal being remitted to the OfS by the First-tier Tribunal, and this issue arose in the group of amendments led by Amendment 142 which we considered last Wednesday, when I argued that such a provision could allow the OfS to be in effect a judge in its own cause. The Minister promised me a written explanation of a similar power in Clause 20, which he has now provided with his letter today. The heart of his explanation is that this power to remit allows the OfS to remake its decision with the benefit of the tribunal’s judgment. He also confirmed that remitting a decision does not rule out a further appeal. I am very grateful for this explanation, which entirely meets the points that I made on that specific provision.
The second clutch of amendments in this group begins with Amendment 344 to Clause 53 and ends with Amendment 360 to Clause 55. The purpose of these mirrors those to Clause 43 but here the subject is the revocation of authorisation to use the title of university, which would no doubt follow the withdrawal of degree-awarding powers as provided for in Clause 43. Once again, the issue is the ability of the OfS to revoke such an authorisation by order, even if it was provided for in an Act or a royal charter. As with Clause 43, this is—if I may employ the expression—Henry VIII on stilts, however improbable a mental picture that may conjure up. As with Clause 43, I do not believe it is acceptable to delegate to the OfS such significant law-making powers in the sector which it is to regulate.
In two of his now growing series of helpful letters—those of 21 December and 11 January—the Minister told us that the Bill does not allow the OfS to take away royal charters. However, it seems to me that the powers given to Ministers by Clause 110, to amend or revoke provisions of a royal charter, are merely consequential upon a decision taken by the OfS. So if the OfS is the prime mover, the fact that it is the Minister who has to exercise that power is a distinction which may not be a practical difference. To complete the picture, Amendment 512 would make Clause 53 SIs made by the Secretary of State subject to the affirmative procedure, again as recommended by the Delegated Powers Committee. I beg to move Amendment 265.
My Lords, I shall speak to Amendment 266, in the name of my noble friend Lord Stevenson, which I am pleased to hear that the noble Lord, Lord Lisvane, liked. Indeed, given the comprehensive manner in which he opened the debate, I have little to add.
Clause 40(10) provides for the OfS’s power to make an order authorising degree-awarding powers to be exercisable by statutory instrument. As the noble Lord, Lord Lisvane, said, it is unusual, to say the least, for the power to make statutory instruments to be conferred on organisations or people other than Ministers. I hope the Minister can explain to noble Lords why this departure from accepted practice is justified.
Amendment 266 would require the statutory instrument first to be approved and made by the Privy Council as an Order in Council. Many universities have degree-awarding powers that were awarded by the Privy Council, so the question for the Minister and the Government is: why take that away? In this amendment we are not asking the Minister to do something; we are asking him not to do something. We say that there have been no examples of universities clamouring for change, so why not leave things as they are?
My noble friend Lord Stevenson will speak in more detail about the Privy Council on a later group, but I want to stress now that it is an independent body, completely impartial and well respected. That is something not to be cast aside lightly. This is the established process for introducing new universities, and the current system has worked well over many years. We do not believe the case for such a radical change as handing all powers to the OfS has been made, but if the Privy Council is to be replaced, its replacement should be as rigorous as the Privy Council, and at least capable of building a reputation as strong as its reputation. The OfS cannot as things stand, and may not ever, achieve that status. It is essential to ensure scrutiny by the Privy Council of the power to grant awards.
The noble Lord, Lord Lisvane, as a member of the Delegated Powers and Regulatory Reform Committee, understandably quoted from that committee’s report on this part of the Bill. He commented, I think, on paragraph 30; I want to highlight what the committee said in paragraph 28, commenting on Clause 43, which enables the OfS by order to vary or revoke degree-awarding powers. Although exercised by statutory instrument, these powers would not be subject to parliamentary scrutiny. The DfE had sought to justify this to the committee, but the committee’s response was unequivocal. Paragraph 28 says:
“We are not in the least convinced by the Department’s reasons. We do not believe that the requirement for detailed consideration by the OfS, and the existence of a detailed procedure including rights of appeal, are incompatible with an order under clause 43 being subject to Parliamentary scrutiny … There is nothing on the face of clause 43 which limits the way in which the OfS is able to exercise the powers, leaving it wholly to the discretion of the OfS when and in what circumstances the powers should be exercised. We therefore recommend that the powers should be subject to Parliamentary scrutiny and that the affirmative procedure should apply”.
There is nothing I can add to that—an opinion reached after due deliberation by a committee with no political axe to grind. I imagine the Minister may feel more than a little uncomfortable at the fact that he and his department are effectively ignoring the judgment of noble Lords. They do not deliver such verdicts lightly, and I believe that the Minister and his team need to revisit the report and reconsider their position on the manner in which the OfS is to be permitted to act on varying or revoking institutions’ degree-awarding powers.
My Lords, my noble friend Lady Goldie has asked me to apologise to the Committee as she has succumbed to her bad cold and I will be in the hot seat for the rest of the evening.
I entirely agree that we need to ensure that the processes around the award, variation and revocation of degree-awarding powers and the award and revocation of university title are sound and fit for purpose. I will explain why we believe the Bill does just that. However, we will continue to listen and reflect on whether there are further improvements that we can make to these processes. I say that at the outset.
I shall deal with the amendments to Clause 40. At the moment, we have a lengthy process for the award of degree-awarding powers, which involves the Privy Council seeking advice from the department, which in turn seeks advice from HEFCE and the QAA. This is unduly complex, and through our reforms we are seeking to streamline the process without lowering standards. This is why, under our plans, the OfS would run the whole process from application through to award. Decisions on degree-awarding powers would be taken by the OfS, as an independent, arm’s-length body, on the basis of published criteria set out in guidance, and should be made after having consulted relevant bodies such as the designated quality body. It is therefore only logical that the OfS would also make the order that grants degree-awarding powers. Adding the Secretary of State or Privy Council approval would, under the new regime, have little benefit other than complicating the process.
I turn to the amendments that would ensure that orders varying or revoking degree-awarding powers and revoking university title have to be made by the Secretary of State, who would also deal with the processes of variation and revocation. Giving order-making powers to persons and bodies other than the Secretary of State or the Privy Council is not unprecedented—for example, Ofcom has order and regulation-making powers. The OfS, as an independent regulator, is best placed to make an assessment as to whether degree-awarding powers or university title should be awarded, varied or revoked. It will have much better insight into the provider in question and the sector as a whole than the Secretary of State ever could. Therefore, our intention is that these decisions are taken by the OfS on the basis of published criteria set out in guidance, the detail of which the department intends to consult on.
Let me provide some further reassurance that these powers are not intended for everyday use. We intend that the OfS and the new quality body will work with providers to address any emerging problems early on. Removal of degree-awarding powers or university title is therefore likely to be a rarely used, but necessary, safeguard for quality in the system. In addition, the OfS would always, in accordance with its general duties listed in Clause 2, have regard to important factors, which includes the need to promote quality. These are additional safeguards to ensure that the OfS’s powers are not abused. Any decision to subsequently revoke degree-awarding powers or university title will be regulatory decisions. We think it is right that they should be taken by the regulator, not a Minister. However, we recognise the significance of these powers and have therefore made sure that there are appropriate safeguards in place. These are set out in Clauses 44, 45, 54 and 55. They include the OfS having to notify the provider of its intentions and to give reasons; the OfS having to give the provider a chance to respond and take account of that response before making a decision; and, as the Committee will know, a right of appeal to the First-tier Tribunal. This safeguards against any undue interference with the institutions’ autonomy. We believe that an appeal to the First-tier Tribunal provides for the most independent review of a case.
I address a point raised by the noble Lord, Lord Lisvane, about providers with royal charters. I will explain how the process would work in that case. We do not envisage a scenario where the use of powers in Clause 110 would result in the revocation of an entire royal charter which established the institution. The Secretary of State can amend royal charters where appropriate so that the charters operate smoothly, but only where they reflect any changes made by the OfS to degree-awarding powers or university title contained in the royal charter—for example, a revocation of university title. This is not a general power to amend but must be linked to changes made by the OfS in relation to degree-awarding powers and university title. Importantly, I reassure noble Lords that any amendments or revocations made by the Secretary of State would be subject to parliamentary scrutiny via the affirmative procedure, which I think, and hope, that the noble Lord, Lord Lisvane, mentioned and acknowledged. If we were to introduce parliamentary scrutiny for the orders on top of this already very strong, but also lengthy process of appeals, as suggested by Amendments 511 and 512, we would further delay the implementation of any decision, and thus potentially put students at risk. It would also introduce unnecessary complexity into the system: how would parliamentary scrutiny work alongside an appeals process and what if they reached different conclusions? Again, I emphasise that we have designed the processes in such a way that there is no need for Ministers to get involved. It will be a regulatory process, instigated by the regulator and decided by the independent judiciary.
While I understand the intention behind these amendments, I believe that the controls and protections in place are adequate and therefore the amendments are not necessary. However, as I said at the beginning, I will reflect on any further improvements that could be made. In the meantime, I ask the noble Lord to withdraw the amendment.
I understand that the Minister will reflect on this, and no doubt the department is preparing its response to the Delegated Powers Committee’s report. I wonder whether the Minister will take the content of this short debate and feed it into that process, so that it might carry some weight in deciding the government position.
Indeed, the noble Lord makes a good point. I am sure that will be taken into account in terms of any further improvements we might wish to make.
Before my noble friend sits down, could he just clarify on the first amendment of the noble Lord, Lord Lisvane? Under Clause 40(10), the OfS can make an order exercisable by statutory instrument and,
“is to apply to such an instrument as if the order had been made by a Minister of the Crown”.
Am I therefore right in believing that, under Clause 113(3), if it is a statutory instrument, it could be prayed against? If that is the case, does that not put the Minister in a difficult situation?
My noble friend is very adroit at raising some complicated issues. I should answer the question but also go into some detail as to the different scenarios that might occur. I respect the quality of advice that he gives.
I am very grateful to the Minister for his careful and detailed reply. The noble Lord, Lord Norton, is on to a good point there. If it is an SI Act 1946 statutory instrument, the Act contains the praying procedure. It would indeed put a Minister perhaps in rather a difficult position, having to defend the case, while having, as it were, abrogated responsibility. That is no doubt something about which we will hear, perhaps in a further edition of these exciting letters.
I do not quarrel with the proposition that the OfS will be best placed to make the assessment, but that does not necessarily mean that the OfS should be able to engage in the law-making process. I fancy that we have once again encountered what we encountered last Wednesday: two reasonable people can disagree about something without either of them being unreasonable. Issues of policy and principle arise in this group of amendments which might well benefit from being reconsidered on Report, but in the meantime I am very happy to beg leave to withdraw the amendment.
Amendment 265 withdrawn.
Amendment 266 not moved.
267: Clause 40, page 24, leave out lines 18 and 19
Amendment 267 agreed.
Amendments 268 to 268A not moved.
Clause 40, as amended, agreed.
Amendment 269 not moved.
Clause 41: Supplementary powers with authorisation
Amendments 270 to 275
270: Clause 41, page 24, line 25, leave out “, research awards and foundation degrees” and insert “and research awards”
271: Clause 41, page 24, line 27, leave out “and degrees”
272: Clause 41, page 24, line 29, leave out “(a)”
273: Clause 41, page 24, line 41, leave out subsection (3) and insert—
“(3) But in the case of a foundation degree only authorisation, the references in subsection (2)(c) and (d) to degrees are to foundation degrees only.”
274: Clause 41, page 25, line 7, leave out “, research award or foundation degree” and insert “or research award”
275: Clause 41, page 25, line 9, leave out “and (3)(b)”
Amendments 270 to 275 agreed.
Clause 41, as amended, agreed.
276: After Clause 41, insert the following new Clause—
“Automatic review of authorisation
(1) The OfS must consider whether to vary or revoke an authorisation given under section 40(1)—(a) if the ownership of the registered provider is transferred,(b) if the owner of the registered provider has restrictions placed on its degree-awarding powers in relation to another registered provider under its control or ownership, or(c) for any other reason considered to be in the interest of students enrolled at the institution or the public.(2) A decision taken under subsection (1) to vary or revoke an authorisation shall be carried out in accordance with section 43.”
My Lords, I can be quite brief. This is a bit of a fishing expedition—I am sorry, I should recall that: it is a probing amendment. The point of it is that we have to anticipate how new providers will enter the market and what sort of form and format they will take. This is not an acknowledgement going back to the question asked by the noble Baroness, Lady O’Neill, about what these bodies are and how they are constituted, but it raises the same issues. We already have at least one relatively new provider, whose ownership is quite clearly based outside the UK, and the question arises whether the change of ownership could raise any questions about previous decisions taken by the regulator or other body in respect of the degree-awarding powers or the register to which this institution might be attached. We do not know the answer to that yet, because the situation has not yet emerged, but it raises issues about probity and the ability of an institution to survive, if the ownership places new restrictions on it.
While we are still stuck with—in the words of the noble Lord, Lord Willetts—the old trustee model, no doubt these things could probably be arranged, because the whole point of these trustee or charitable-type approaches is that they have longevity and create a stable environment. However, if we are moving to a situation where perhaps a private equity company is in ownership and it may well have different motives for operating and owning an operation, then questions arise. I look forward to the Minister’s response, to see whether there is anything there that we might wish to return to. I beg to move.
My Lords, I shall be brief as well. It remains our policy that degree-awarding powers cannot be transferred or sold. As now, if a holder of degree-awarding powers was involved in a change of ownership, it would be expected to inform the OfS and demonstrate that it remained the same cohesive academic community that had been awarded those powers originally. We need to maintain flexibility to adapt to changing circumstances, so it is appropriate that these matters are covered through guidance, in the same way that the process operates currently. I hope that with that extremely short explanation, the noble Lord will withdraw his amendment.
That was a little briefer than I had anticipated, but I will look at it carefully. In the meantime, I beg leave to withdraw the amendment.
Amendment 276 withdrawn.
Clause 42 agreed.
Clause 43: Variation or revocation of other authorisations to grant degrees etc
Amendment 277 not moved.
Amendments 278 and 279
278: Clause 43, page 25, line 25, leave out “, research awards or foundation degrees” and insert “or research awards”
279: Clause 43, page 25, line 29, at end insert—
“( ) When applying section 40(4) and (5) in the case of such an order, the reference in section 40(5) to a foundation degree granted other than by virtue of section 41(2)(c) or (d) (honorary and staff degrees) is to be read as a reference to a foundation degree granted other than by virtue of whatever is the equivalent of section 41(2)(c) or (d) in the case of the provider.”
Amendments 278 and 279 agreed.
Amendments 280 and 281 not moved.
282: Clause 43, page 25, line 34, at end insert?
“( ) A statutory instrument containing an order under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
My Lords, I am moving the amendment in the name of my noble friend Lord Stevenson. The amendment intends to establish the principle that a statutory instrument containing an order to revoke an institution’s authorisation to grant degrees must be an affirmative statutory instrument. We believe that such a draconian action as revocation—which in some circumstances is potentially fatal to the institution concerned—should not simply be left to the OfS to issue as a statutory instrument. I take on board the points the Minister made in respect of group 13 a few moments ago, when he talked about the OfS being an independent body. That also applies to the Privy Council, but it has been written out of the equation. It should not be possible for such a statutory instrument to be made unless a draft has been laid before and approved by a resolution of both Houses of Parliament.
In response to an earlier amendment before the dinner break the Minister stated that requiring the affirmative principle would delay a decision that had been recommended by the OfS. If that is the case in certain situations, so be it. If ever there was a case where the maxim “Better to get it right than to get it right now” applied, this is it. Depriving an institution of degree-awarding powers is sufficiently important for Parliament to have its say, and any delay that results is surely justified in terms of due process.
I made my remarks on the importance of retaining the Privy Council in the debate on the group containing Amendment 266, and I shall not repeat them. However, I shall again draw to your Lordships’ attention the fact that the Delegated Powers and Regulatory Reform Committee made a further comment on Clause 53, which impacts on this group. I will not repeat what the noble Lord, Lord Lisvane, said at that time. But the committee made it very clear that it took the view there were significant new legislative powers being given to the OfS that are not subject to any limits to their exercise, and that there should be parliamentary scrutiny with the affirmative procedure applying. I think that is a very important point to make. I know that the Minister is considering this and other aspects of the committee’s report but, in the meantime, I beg to move.
My Lords, I speak to my Amendment 298A, which is on the Marshalled List. At this stage of the proceedings, as an older Member of this House, I must be allowed to make an observation. We have gone a long way down the road I predicted. We are trying to make the best of this legislation. We are trying to engage in damage limitation, which becomes almost a cause. As an older man, I grieve at how far we have drifted from the concept of a university as an international community of scholars awarding degrees, based on the distinction of the university. This is a sad road we have taken, and we are dealing with the consequences: the commercialisation and marketing of the whole concept of universities and higher education. I have great difficulty in coming to terms with this language of markets and of students as consumers, as distinct from students as contributors to a community of scholars. It is a sad situation, but we are in the situation we are in, and we have to try and make it as acceptable as possible.
Under my last amendment, I talked about fairness, justice, transparency and accountability, and this amendment is about exactly the same theme. I talked previously about decisions not to register or to suspend, and now I want to talk briefly about why it is that there are no rights of appeal against the OfS refusing to authorise providers to grant degrees. Apparently, by this legislation, rights of appeal are allowed only when the OfS decides to vary or revoke such an authorisation. However, the decision to authorise or not in the first place is a significant decision and a significant exercise of power, which will determine whether a provider could enter the market—here I go using the word myself—or not. There seems no justification to deny a right of appeal where the OfS has decided not to grant authorisation.
There must be transparency and accountability. I absolutely understand and relate to the noble Lord, Lord Lucas, when he says that we cannot have institutions below the grade granting degrees. If we go down that road, there will be a temptation for people who are just opportunist money-makers to get into the money-making business by awarding degrees. We know this, so we have to have safeguards—of course I understand that. But I also understand the Minister when, in the logic of his position as he sees it, he says we cannot rule out the possibility that there will be newcomers to the field who will bring something new, fresh and challenging and who ought to be taken very seriously. I understand the logic of that point, and my amendment tries to take that point on board.
We cannot have an alienated public who think that there are high-handed university administrators and regulators, as well as universities themselves, making these strategic decisions without having to explain to those involved, let alone the wider public, why they have come to particular conclusions. Indeed, I can see a case for saying that, if what I advocate comes to pass, it will be a very educative experience for the public, because there will be an explanation of why a particular authorisation cannot be allowed. I think that the amendment and the principles behind it matter, and I am aware that I am becoming a collaborator in damage limitation.
My Lords, I rise to speak to Amendments 282A and 347B, which stand in my name. I declare an interest as the pro-chancellor of Lancaster University.
I am learning a lot tonight about parliamentary procedure and affirmative resolutions, and about the relationships between independent regulators, Secretaries of State and Ministers, and I congratulate the noble Lord, Lord Lisvane, on carrying out such a good exercise in educating me. The questions posed by these amendments are very important. My noble friend Lord Judd is right: if you are to have a much more liberalised system with free entry, you have to have regulation and procedures so that it operates in a fair way.
The purpose of my amendments is simple. I would like to see the OfS be under a statutory obligation to set out its reasons for all the decisions that it has taken. I would like Parliament, once a year, to be able to debate a report which looks at whether, having set out a common set of principles by which the rules should operate, the regulator sticks with it. I think that that is a necessary addition to the ad hoc business of affirmative statutory instruments, and that it would be a sensible addition to the Bill.
My Lords, I have great sympathy with what the noble Lord, Lord Liddle, has just said. On the lead amendment, Amendment 282, which seeks to make such an order subject to the affirmative resolution procedure, I revert to a point that I made a few moments ago. As I read it, the order-making power in subsection (5) would presumably be subject to being prayed against. I would have thought that if any authorisation was revoked, it would be likely to be highly controversial and therefore might well trigger the order being prayed against. However, that would create the same situation, because the revocation would be by the OfS but the defence would have to be by the Minister, who would be somewhat detached from the whole exercise. I am not sure how that is addressed, and I look forward to my noble friend’s comments.
My Lords, I am grateful for the opportunity to explain the provisions on the revocation of degree-awarding powers and university title. I make it absolutely clear that these powers are not intended for frequent use, as I have mentioned before. We see them as a rarely used but necessary safeguard for quality in the system. We know that these powers are significant and that is why we have endeavoured to include strong safeguards, including a right of appeal to the First-tier Tribunal. We have listened carefully and will continue to reflect on whether there are further improvements that we can make, and we will no doubt discuss this matter further on Report.
Our higher education system is world-class and university title and degree-awarding power are valuable assets. It is the responsibility of those that have obtained these prestigious titles to uphold their reputation. However, without powers to hold such providers accountable, we risk undermining the reputation of our universities. Let us consider the impact if a university’s quality and standards were to drop to a wholly unacceptable level, to the extent that it was widely known that its degrees were not comparable to others and the provider in question had done nothing to address this. Would we really want such an institution to continue to benefit from the prestige of a university title?
There are already circumstances where eligibility for these titles is reviewed—for instance, in the case of mergers. But introducing these refined and express powers is vital to effectively regulate the sector. They make it clear to all providers what is at stake if quality drops to unacceptable levels. We intend for the OfS and the new quality body to work with providers to address any emerging quality problems early on, as I said when I addressed some points made in a previous group of amendments. In practice, we envisage that the OfS would have imposed additional ongoing registration conditions on the provider to seek to improve the situation, which would probably have had an improvement plan in place. A revocation would therefore occur only if such interventions have failed to produce the necessary results.
I note with interest the suggestion of an annual report to Parliament, proposed by the noble Lord, Lord Liddle. I suspect that in most years it would be a rather dull report, as we do not believe the use of these powers would be frequent. However, I will certainly take the suggestion seriously and into account when reflecting about the processes more generally.
My Lords, I can see that under Schedule 1 the OfS must prepare a report on the performance of its functions during each financial year in any case. Given the magnitude of the decisions to which my noble friend Lord Liddle referred, it would be a very straightforward and simple amendment to require that annual report to have regard to the exercise of the functions under this clause.
I note the point the noble Lord, Lord Adonis, has made and that will definitely be part of our general reflection.
I now turn to the processes and safeguards. The OfS, as an independent regulator, will be best placed to make decisions on whether to vary or revoke an authorisation to grant awards or revoke a university title. However, there is a statutory process that must be followed. Clauses 44 and 54 provide that the OfS give appropriate notice to the governing body of the provider, set out its reasons why it considers it necessary to take the step of variation or revocation and must have regard to any representations made by the provider before proceeding. I agree that the OfS should be able to draw on all relevant information, including from other parties. Clause 58 enables that already.
Turning to Amendments 282 and 347A, we want to move to a system where quality, rather than the age of an institution, will be the yardstick and where the OfS has powers to vary or revoke degree-awarding powers and to revoke the university title of any institution, no matter how they were obtained. This is essential to achieve a level playing field among providers.
Amendment 282 would unlevel the playing field for revocation of degree-awarding powers. We included a right of appeal for any revocation decision because we felt that this was the most appropriate and independent review, and that it would therefore be the best way to safeguard the interests of the provider, including its institutional autonomy. An appeal to the First-tier Tribunal is an opportunity for a provider to present evidence to support its case. It provides for a politically neutral and objective judgment of the merits of the case. I see the logic behind these amendments and we value the expertise of Parliament, as well as the important scrutiny functions. However, on matters of regulation, we believe such scrutiny and safeguards are better provided by the courts, rather than by Parliament. The regulatory framework will apply to all providers equally. If we accept this principle when it comes to other rights and obligations, I find it difficult to justify treating a provider that got its degree-awarding powers in the 1970s—such as the University of Buckingham, for example—differently from one that gets them in 2020.
Before I finish, let me briefly address the amendment of the noble Lord, Lord Judd, which would allow for appeals against unsuccessful degree-awarding power applications. There currently is no such provision and the appeals provision in the Bill has been drafted to cover scenarios where the OfS makes a decision that deprives providers of a status or powers, or imposes a monetary penalty. I can provide some reassurance: we expect that there will continue to be internal complaints mechanisms similar to those run by the QAA at present. The amendment is therefore not needed.
I am afraid there is no time to address the thoughtful points raised by the noble Lord, Lord Judd, on the path universities are travelling down. I say only that there is undeniably an important, international market where we are in the business of attracting students who realise that they have a choice. We have to be realistic and remember that.
As I said, we appreciate the need to get the safeguards right. While we feel we have struck the right balance, we will continue to reflect on any areas of improvement. In the meantime, I ask the noble Lord, Lord Watson, to withdraw Amendment 282.
My Lords, I thank the noble Viscount for his response and noble Lords who have participated in this short debate. It has been quite lively, with some interesting points made. On the points made by my noble friend Lord Liddle that the OfS should set out its reasons, allowing Parliament to debate its report annually, there seems to be no rational reason why that should not occur, because it does for several other regulators—although, is the OfS a regulator? That debate is continuing. I heard the noble Viscount say that he will consider that and we will return on Report, but whether the reports would be dull or refer to events that had happened frequently is not quite the point. We are all grateful to my noble friend Lord Adonis for drawing attention to Schedule 1’s requirement for an OfS report and welcome the Minister’s willingness to consider that before we move on to Report.
The noble Viscount—a man we are increasingly coming to recognise as the man of letters—said that Amendment 282 would “unlevel the playing field”. I am not sure whether that is a new verb added to our language, but none the less, as I understand it that compares existing providers with new arrivals. I do not see that it would necessarily do that. He mentioned the University of Buckingham. Yes, that has been there some 50 years outwith the system, because it was not part of the mainstream for many years, but the argument we had on the new providers needs to be separated from the situation of those that have held degree-awarding powers for a long time, rather than those that have recently got them and may be deprived of them for good reason, inasmuch as it could be said they should not have had them in the first place. That may be correcting an award that was done earlier than would have been appropriate.
The internal complaints mechanism to which the noble Viscount referred also needs to be looked at again. He said in response to my noble friend Lord Judd that there is an appeal provision against the decision of the OfS to vary or revoke degree-awarding powers, but not for those trying to have those powers granted. This impacts on a discussion we had earlier when the noble Viscount used terminology along the lines of, “It’s different if they’re in the system”, as opposed to being outside, and that they have to be treated differently if they already have the powers, as opposed to just seeking them. There is a basic justice issue there of an individual or organisation having the right to appeal against a decision that affects them adversely. A provider without degree-awarding powers would by definition not be part of the internal complaints mechanism to which the noble Viscount referred. I do not think he has answered my noble friend’s point. Again, I am sure this is something to which we will want to return on Report.
I welcome the fact that the noble Viscount has taken on board the points made. I look forward to returning to them. On that basis, I beg leave to withdraw the amendment.
Amendment 282 withdrawn.
Amendment 282A not moved.
Clause 43, as amended, agreed.
Clause 44: Variation or revocation of authorisation: procedure
Amendments 283 to 289 not moved.
My Lords, I remind the Committee that if Amendment 290 is agreed, I cannot call Amendment 291 because of pre-emption.
290: Clause 44, page 26, line 18, leave out from second “the” to end of line 20 and insert “notice of the decision must specify the date on which the variation or revocation takes effect under the order to be made under section 40(1) or 43(1).”
Amendment 290 agreed.
Amendment 291 not moved.
Amendments 292 to 294
292: Clause 44, page 26, line 24, after “The” insert “order under section 40(1) or 43(1) implementing the decision to vary or revoke the authorisation may not be made and the”
293: Clause 44, page 26, line 24, leave out from “when” to end of line 26 and insert “—
(a) an appeal under section 45(1)(a) or (b), or a further appeal, could be brought in respect of the decision to vary or revoke, or(b) such an appeal is pending.”
294: Clause 44, page 26, line 27, after “prevent” insert “the order under section 40(1) or 43(1) being made or”
Amendments 292 to 294 agreed.
Amendment 295 not moved.
296: Clause 44, page 26, line 29, at end insert—
“(10) Where subsection (8) ceases to prevent a variation or revocation taking effect on the date specified under subsection (6), the OfS is to determine a future date on which the variation or revocation takes effect under the order to be made under section 40(1) or 43(1).(11) But that is subject to what has been determined on any appeal under section 45(1)(a) or (b), or any further appeal, in respect of the decision to vary or revoke.”
Amendment 296 agreed.
Clause 44, as amended, agreed.
Clause 45: Appeals against variation or revocation of authorisation
My Lords, I remind the Committee that if Amendment 297 is agreed, I cannot call Amendments 298, 298A or 299 because of pre-emption.
297: Clause 45, page 26, leave out lines 32 and 33 and insert “either or both of the following—
(a) a decision of the OfS to vary or revoke, by a further order under section 40(1) or an order under section 43(1), an authorisation given to it;(b) a decision of the OfS as to the date specified under section 44(6) as the date on which the variation or revocation takes effect.”
Amendment 297 agreed.
Amendments 298 to 299 not moved.
300: Clause 45, page 26, line 40, at end insert—
“( ) vary the date on which the variation or revocation takes effect under the order to be made under section 40(1) or 43(1);”
Amendment 300 agreed.
Amendment 301 not moved.
302: Clause 45, page 26, line 42, after “decision” insert “(including the date on which the variation or revocation takes effect)”
Amendment 302 agreed.
Clause 45, as amended, agreed.
Clause 46: Validation by authorised providers
Amendments 303 and 304
303: Clause 46, page 27, line 5, leave out “and foundation degrees”
304: Clause 46, page 27, line 7, leave out “and foundation degrees”
Amendments 303 and 304 agreed.
305: Clause 46, page 27, line 8, at end insert—
“( ) The OfS may propose conditions on validation arrangements between two registered higher education providers in order to protect the student interest including—(a) referring registered providers to an appointed arbitration panel to resolve disputes related to existing arrangements, and(b) giving guidance to registered providers on existing arrangements.”
My Lords, when I talked earlier about the need to give the OfS some axis in making sure that validation arrangements work well, this was what I meant. I beg to move.
That is the second speediest moving of an amendment I have heard so far in Committee. I will be almost as brief, since we have alluded to the fact, if we have not specifically mentioned it, that the answer to a lot of our problems about the validations issue, which will come up in both this and the following group, where there is a clause stand part, and the power of validation of last resort being given to the Office for Students is to pick up the fact that the CNAA, of blessed memory, still exists, in rump form, in the Open University. That is where all its functions and assets were transferred—not that it had very many assets, I am sure—at the time of its dissolution, around the time that the polytechnics were given their degree-awarding powers and we abolished the binary line, effectively. So we have a situation in which it would be possible, I think, to obtain a validator of last resort at very little cost and certainly at no considerable worry in terms of new structures or arrangements. It would certainly resolve one of the issues that is devilling the question of the powers of the OfS, and I very much hope that this amendment will be considered very carefully.
My Lords, in the absence of the noble Baroness, Lady Wolf, I will speak to Amendment 311, in her name and mine. We support the option of identifying a central validation body. The current system of awarding bodies works well, although it is recognised that protectionist practices are sometimes adopted on both sides. We therefore agree that validating bodies should commit to competition, diversity and innovation, although that should not mean that all comers must be validated. Expertise in validation lies in the objective and impartial appraisal of an institution’s capacity to deliver and maintain appropriate standards of quality and student experience.
While the precise terms of such an arrangement will be decided between the provider and the OfS, the amendment would require any such arrangement to make specific provision for the national validating body to be able to refuse to validate a qualification if it has concerns about the quality of higher education provided. There is much merit in the proposal of the noble Lord, Lord Stevenson, for using the Open University as a validator of last resort. It is a body with very wide-ranging expertise and would be a respected body for the task—much more appropriate than the Office for Students itself.
My Lords, in view of the very brief comments made by noble Lords in this extremely short debate, I shall also keep my comments short. I am happy to write to noble Lords if they feel that my comments are too short.
I understand that my noble friend Lord Lucas’s amendment is born of a wish to protect students, but I reassure him that there are already strong protections in place. I also reassure noble Lords once again that on our student protection plans our policy is to ensure that students’ interests are protected if a provider’s validation agreements break down.
I will comment a bit further on providers declining to validate on quality grounds. We expect that the OfS’s commissioning process should be open and transparent, so that providers clearly understand what would be expected of them if they agree to extend their validation services to other registered providers in this way. In all cases we expect the commissioned provider would need to be assured of the quality of the provision that it agrees to validate. The OfS’s commissioning process should therefore allow providers to decline to enter into validation agreements on quality grounds. So we believe that this amendment is not necessary. I therefore ask my noble friend to withdraw Amendment 305.
My Lords, I thank my noble friend for that brief reply. Perhaps he might enlarge on it when we meet, if not in a letter afterwards. I beg leave to withdraw the amendment.
Amendment 305 withdrawn.
Amendment 306 not moved.
Amendments 307 to 309
307: Clause 46, page 27, line 16, leave out “or a foundation degree”
308: Clause 46, page 27, line 18, leave out “or a foundation degree”
309: Clause 46, page 27, line 21, leave out “or foundation degrees”
Amendments 307 to 309 agreed.
Amendments 310 and 311 not moved.
Clause 46, as amended, agreed.
House adjourned at 10.18 pm.