House of Lords
Wednesday 8 March 2017
Prayers—read by the Lord Bishop of Oxford.
Male Abusive Behaviour
My Lords, the Government’s Ending Violence Against Women and Girls strategy sets out our ambition both to support victims and to improve early intervention measures to prevent reoffending and to stop these crimes happening in the first place. The Government are funding a number of new approaches to manage perpetrators of domestic abuse, including the Drive project, which helps perpetrators change their behaviour. We also fund the national Respect helpline, which offers perpetrators advice and support.
My Lords, I know all noble Lords will welcome the additional funding for the prevention of domestic violence announced in today’s Budget. Does my noble friend the Minister agree that to address what are often intergenerational cycles of violence by men towards their wives and partners, it is important to work with those perpetrators, as she mentioned, by offering training programmes such as the Domestic Violence Intervention Project?
My noble friend is absolutely right. Intergenerational domestic violence is not only meted out on generations of women but those behaviours are passed on to the children. It is breaking those cycles through education and working with perpetrators in those programmes that we hope will break the mould.
My Lords, since it costs about £50,000 per annum to keep a child in care, and roughly the same amount to keep a person in jail, can the Minister tell the House what efforts are made to ensure that police, local authorities and schools work together to identify perpetrators and get them into prevention programmes?
The noble Baroness raises a very important issue about those agencies that she talks about working together. When I was at DCLG the troubled families programme unearthed an awful lot of instances of domestic violence. Health professionals have a role to play in identifying, for example, a bruise as a result of violence. There are so many things that our professionals can do in identifying and reporting those issues. The police are now better trained not only to take domestic violence seriously but to issue domestic violence protection orders to give the woman—usually—in the relationship some time away from the perpetrator of violence.
My Lords, the Minister will be aware that much of the work that is being done now in relation to domestic abuse is being done by my former honourable friend Dame Vera Baird, who is the lead for police and crime commissioners. No doubt she will accept that 92% of victims of domestic violence are women and many seek help in women’s refuges. Is she aware that Women’s Aid has said that the current funding model proposed by the Government will lead to the destruction of the women’s refuge programme? What are the Government going to do about it?
I pay tribute to Vera Baird because I know she does an awful lot of work in this area. The first thing I looked at when I was at DCLG was the whole area of domestic violence—the refuges and the prevention models. The noble Baroness is absolutely right: it is important to keep these refuges open so that no woman is turned away. In fact, there was a significant announcement in the Budget today about underpinning our VAWG strategy, but those interventions to stop domestic violence happening in the first place are also very important.
The noble and learned Baroness makes a very good point. It is what children see—their experiences of what is normal—that will shape the behaviour of young boys and young girls. Young girls may lose the value in themselves and young boys may not value girls as they grow up. The noble and learned Baroness is absolutely right, and work has been done in this sphere over the course of this Government and the previous Government.
My Lords, does the Minister agree that there are certain problems in the wording of this Question? Most men who engage in abusive behaviour do not recognise it as abusive and do not seek support, so there has to be a very important balance between preventive and restorative measures.
The right reverend Prelate hits on a sad point: not only do some men not recognise what they are doing as violence or coercive control but, unfortunately, some women do not realise that they are the victims of violence and coercive control. That is a very sad thing in today’s society, so I thank him for raising it.
My Lords, it is the turn of the Conservative Benches.
My Lords, I was very surprised to learn that as many as one in three victims of domestic violence are male. I have no doubt that male victims feel ashamed and embarrassed, and that they just will not be believed. Do male victims of abuse receive the same help, support and refuge facilities as women and if not, why not?
My noble friend is right to point out that there are male victims of domestic violence but I do not think the number is as high as one in three. I think something like 7% or 8% of victims are men. He raises a very important point, however: for men, shame is a terrible thing, which often prevents their coming forward and seeking help. Advice lines for men are available—for example, the Men’s Advice Line. I am not undermining the suffering that men go through.
My Lords, I declare my interests in Changing Lives and the Lloyds Bank Foundation. We are doing a lot of work with perpetrators, but also in making sure that commissioners know and understand what is needed in this area. May I remind the Minister that it is becoming increasingly clear that virtually 100% of those women who end up on the wrong side of the criminal justice system or homeless have suffered abuse as children and then again as adults? This is a real crisis in our society and we have to take hold of it. When I first got involved in one of the first refuges in the country 40-odd years ago, we simply had no idea of the extent of the problem. Women are not here to be abused. We must have equality; that is the basic thing that needs to be taken through schools and every other way.
If I have time to answer the noble Baroness, I completely concur with her point: not only are these women victims of homelessness, sometimes, but of drug abuse or depression, which may have arisen from it or be a result of it. The problems arising from domestic violence are massive and the cost to society is too.
Local Government: Women in Leadership Roles
My Lords, on International Women’s Day, I will open with congratulations to my noble friend; she has been a leader in local government for well over a decade now. As she knows, the Government are fully committed to equality for all. We continue to provide support to the local government sector to achieve this—for example, through our support of the Local Government Association’s work. Effective, representative leadership is at the heart of our democracy. As independent bodies, local authorities have a responsibility to ensure that this is the case for local government in the workforce, in political life and beyond.
My Lords, only 14.7% of local authorities are led by women. I do not think that is enough. We can compare that with the Government, where we have our second woman Conservative Prime Minister, whose Cabinet is 35% women. How can Her Majesty’s Government support local government with initiatives to increase the number of women in senior roles in local government, particularly with lessons learned not only by central government but by the private sector?
My Lords, my noble friend is certainly right with those statistics. The £20 million annual budget to deliver a range of programmes offering support and assistance to local government through the LGA includes specific measures accentuating opportunities for women. For example, in October 2016, a “Be a Councillor” event was geared particularly towards women and as a result we now have more women councillors.
My Lords, the theme of this year’s International Women’s Day is “Be bold for change”. I would welcome the Minister’s commitment to be bold for change, not just by giving some money to the LGA to encourage more women to become councillors but by being proactive in encouraging more women to be council leaders. Until 50% of councils are led by women, we should not be satisfied. Does he agree?
My Lords, across the range I agree. All political parties have a part to play in this. If we look at representation in Parliament, the noble Baroness will be aware that in the general election the Liberal Democrats did not elect a single woman MP. That has now improved: they have one. We all have a part to play; certainly the Government do. Political parties have a part to play, as do private industries. All of us together need to improve the position in public life and private life.
My Lords, having more women in local government is essential. It is often a precursor to office in other fields, such as becoming a Member of Parliament. Does the Minister agree that women want to serve but there must be a responsibility, as he said, on all political parties to ensure that women are treated equally? Does he therefore agree that the Government should adopt the recommendation from the Women and Equalities Committee in another place that, to achieve parity among candidates, we need legislation that involves financial penalties for underperformance, and that this measure would increase the number of women councillors and women in all walks of elected positions? This happens in other countries. Will he comment on that and do his best to make sure it happens?
My Lords, I know the noble Baroness has done considerable work in Wales in relation to the National Assembly. She will be aware that there was a mandatory position on all-women shortlists, or twinning at one stage, although that has since been dropped. There are many ways that we can achieve success, and part of it is through action by political parties and part through action by government. She will perhaps be aware that today the Prime Minister and the Chancellor have announced £5 million to assist women returning to work. This is the sort of thing we need to look at. Action needs to be taken perhaps on indirect discrimination which has affected women and on the gender pay gap we have, but there are many different matters that can be addressed, and I do not think there is a silver bullet.
My Lords, the position in central government has been improving steadily. In local government, 25% of chief executives are women, while in my own department more than 50% of the workforce are women. The Permanent Secretary, Melanie Dawes, is the champion for women across government and has been doing things today for International Women’s Day and on a regular basis. Central government can set an example that we hope will be picked up in the private sector, although it has to be said that the private sector has improved significantly over the last five years.
My Lords, I am sure the whole House wants to see the proper and appropriate representation of women in local government, in central government and in the professions. But would the Minister accept that with the increasing drive to larger and larger local government units, pushed by the Treasury, the proportion of women drops off? Women are more highly represented in the smaller authorities than in the larger ones, let alone LEPs and combined authorities. That is because of the cost, particularly in rural areas, of transport, childcare and so on, which falls in practice disproportionately on women and makes them unable to stand. The Minister has talked about indirect discrimination, but could he also look at institutional discrimination, in which the structures bear down more heavily and inappropriately on women?
My Lords, I take issue with the noble Baroness in relation to some of that. I do not think there is anything inevitable about women not being encouraged or able to lead larger organisations. For example, we are looking in government at the FTSE 350 companies, where there has been considerable improvement on leadership over the last five years. I accept what she says about the challenges, which we have to address, but I do not think there is anything inevitable about women not leading larger organisations—although she perhaps did not mean to imply that. The Government need to look at some of the indirect measures that we can take.
FTSE Companies: Gender Balance
My Lords, since 2010, the number of women on FTSE 350 boards has more than doubled, and there are now only 11 all-male boards. Last November, the government-commissioned, business-led Hampton-Alexander review published its first report, focused on senior executive positions in FTSE companies. The Government support the challenging targets for 33% of senior leadership positions in the FTSE 100 and 33% of FTSE 350 board directors to be women by 2020.
Does my noble friend agree that the private sector has much to learn from the pioneering work we led in the Cabinet Office in the coalition Government, when the proportion of women newly appointed to the boards of public bodies rose from 36% to over 48% by 2015? The key barrier that we broke down was an excessive insistence on previous track record and experience in similar roles, which meant the same people being constantly recycled from one public body to another. I am told the same constraints often operate in the private sector. Will my noble friend explore whether replacing the requirement to show a lengthy track record with an insistence on talent and capability could achieve the same breakthrough in the private sector?
My noble friend makes a very valid point, and I congratulate her on her extensive work on modernising and increasing diversity in the public appointments system. During the Davies review, the Government launched a code of conduct for executive search firms, which required signatories to ensure that significant weight is given to relevant skills, competencies and personal capabilities, rather than just a narrow focus on career experience. The Hampton-Alexander review continues a focus on recruitment: the fifth recommendation in its first report is for search firms to redouble their efforts and consider extending the code of conduct to include recruitment to senior executive roles.
My Lords, on this International Women’s Day, I am wearing this purple scarf in support of the thousands of women demonstrating outside this place for pensions justice. I raise the issue of women on sporting boards, whose numbers are actually declining. The Women in Sport survey found that almost half of Britain’s sporting bodies are failing to meet the 30% target set for them. Will the Minister use this opportunity to reinforce to them the serious threat that they are under of losing their funding unless this injustice is rectified?
I certainly concur with the noble Baroness that women’s representation on sporting boards is woeful. In fact, I had a very interesting conversation with the noble Baroness, Lady Grey-Thompson, about the generally male attitude in sport. What I said to my noble friend absolutely applies to sport: women on boards enhance the professions and sports that they represent, rather than the other way round.
The noble Lord raises a very good point. In fact, my noble friend—I cannot remember her name; I can see her—Lady McGregor-Smith has done extensive work on this. On the back of that, the Government are setting up a Business Diversity and Inclusion Group chaired by the Business Minister, Margot James. It will bring together business leaders and organisations to co-ordinate action to remove barriers in the workplace and monitor employers’ progress. The noble Lord is absolutely right.
My Lords, does the Minister agree that this is a particularly appropriate time to have these Questions, because Marie Curie has just been honoured as a shining example of courage in driving back the frontiers of the unknown in supporting radiotherapy, although it cost her her life?
My Lords, although I look forward to the day when there are women on every FTSE board, there are those of us who believe that other boards, executive boards, often have much more power than company boards, where the number of women is at present even lower. I hope the Minister will agree that it is so important that we encourage women to break through the glass ceiling and get on to those executive boards in industry.
The noble Lord is absolutely right. If we look around this House, there are many examples of such women on executive boards. It is not just the non-exec boards, and it is not just who is on the board now; it is about looking at the pipeline of who is coming through, because it is from the pipeline that you will get your executive and non-executive members of the future.
My Lords, fly-tipping blights communities and poses a risk to human health and the environment. Tackling this issue is a priority for the Government. As set out in our manifesto, we have given councils the power to issue fixed penalty notices for small-scale fly-tipping. This builds on previous action, including giving authorities the power to seize and crush vehicles involved, strengthening sentencing guidelines for environmental offences and publishing a revised Waste Duty of Care Code of Practice.
I thank the Minister for his reply, but clearly the existing powers are simply not working. Figures issued by Defra just last week show that the incidence of reported fly-tipping increased by 4% last year, while the amount that Her Majesty’s Government spent on both prevention and prosecution fell by 4%. Given that many people consider that high levels of landfill taxation are a contributory factor to the increase in fly-tipping, will Her Majesty’s Government consider the possibility of increasing the level of money for enforcement action against waste crime funded from this tax?
My Lords, I thank the right reverend Prelate for that question. I should point out that the statistics of increases of 4% in the incidence of fly-tipping have to be looked at very carefully, because different local authorities gather these statistics in different ways. It would be useful to examine how these figures look this time next year because the power for local authorities to issue fixed penalty notices came in only in May 2016, so we would like to think there will be some effect on this issue next year. The right reverend Prelate also mentioned landfill tax. I will take careful note of what he said, but as he is aware, this goes into central government.
My Lords, I declare my interest as a member of Sheffield City Council, where last year there were 12,000 incidences of fly-tipping. That equates to 33 a day, which is replicated in most local authorities across the country. In light of that and of the LGA predicted funding gap of £5.8 billion in three years’ time for local government, will the Government introduce a compulsory bring-back scheme by producers of bulky items, such as mattresses and sofas, to contribute to dealing with the issue of fly-tipping?
My Lords, the noble Lord raises an interesting point on a bring-back scheme. That happens with some white goods, such as fridges or washing machines, when the company agrees to take back the old ones. The House must be aware that there have been 494,000 enforcement actions over the last year against fly-tipping. Also, we must not forget that, with regard to larger-scale fly-tipping, in the 2015 spending review a further £20 million was made available to fight waste crime.
My Lords, does the Minister understand the anger felt by farmers that, because fly-tipping occurs on their private land, they are expected to pay their own clean-up costs, which can often total thousands of pounds? The NFU reports that dumping is happening on an industrial scale, with two-thirds of farmers affected, so can the noble Lord give some comfort to those farmers that meaningful action will be taken to address the problem of dumping on private land?
The noble Baroness brings our attention to the problem in rural areas, which is a real blight on our landscape. In many cases, it is more obvious in rural areas than in urban areas. The local authorities will provide advice and guidance on how to prevent further fly-tipping, or may investigate if there is sufficient evidence. The noble Baroness will also be aware of the National Fly-tipping Prevention Group, which is chaired by the Government and includes representatives from central and local government, enforcement authorities, the waste industry and private landowners. Under its framework, it is outlining the best practice for prevention, reporting, investigation and clearance of fly-tipping.
The noble Duke will be aware also that on public land it is the responsibility of local authorities to remove the rubbish. It is unacceptable wherever it happens. He referred to fly-tipping on his own land, and therefore he should be aware that the National Fly-tipping Prevention Group, as part of its representation, has members of the NFU and landowners who are looking at this problem. However, the noble Duke is quite correct that, for dumping on private land, it is the responsibility of the landowner. Of course, when enforcement takes place through the Environment Agency for large-scale dumping, it will make every effort to track down the person who has dumped the rubbish and prosecute them.
My Lords, the Minister has given us a lot of statistics. But if in my local borough it costs more than £50 to the local authority or a rubbish removal company to remove a divan and base, perhaps it is not surprising that many people who are not as observant of the law as myself will dump these. Surely the way of stopping that is to stop these usurious charges by local authorities.
I will have to write to the noble Lord on those issues relating to local authorities. However, when householders wish to have rubbish removed from their gardens, they must ensure that the person or company they hire carries a waste carrier licence, so that the householder fulfils their duty of care for the rubbish to be removed correctly.
Surrey County Council: Financial Issues
Private Notice Question
My Lords, as the Government have repeatedly made clear, there is no special deal for Surrey County Council—there never has been and there never will be. The final local government finance settlement was laid in Parliament on 20 February. It is clear that the Government have not provided any additional funding to Surrey and have not promised to do so. Surrey informed the Government that it wanted to become a pilot for the 100% business rate retention scheme. DCLG made it clear that this was not possible for 2017-18 but that it could apply for 2018-19 when it will be more widely available.
So we have Councillor David Hodge CBE speaking to the Secretary of State for Communities and Local Government while he is sitting in his car at Downing Street; the Secretary of State then scuttling in to see the Chancellor; and a special adviser ringing Councillor Hodge back—a man we have heard is not the sort who gives up—to tell Councillor Hodge what he can and cannot say and to make reference to a Surrey MP who has been outstanding. Will the Minister tell us what are the issues decided upon, what is the sweetheart deal and what is the gentlemen’s agreement that has been reached between the Government and Surrey County Council? Are the Government being straight with us or did Councillor David Hodge dream up these events? Will the Minister tell us which he thinks it is?
My Lords, I have already indicated to the noble Lord that the Government have been totally honest on this throughout. Surrey County Council asked whether it could be part of the business rate retention scheme for 2017-18. That applies to devolution deals, and has been taken advantage of by Greater Manchester, the city of Liverpool, the West Midlands and London. It is not open to other authorities. We have indicated that they can apply, like other authorities—and we discussed this with other authorities before we discussed it with Surrey—for 2018-19, when it is open to all local authorities, and they will then be eligible for that assistance.
Well, what a fine mess somebody has got us into. Here we are, as has been described, with phone calls from a car to the Secretary of State—not even a meeting. Whatever the Minister believes, certainly the leader of Surrey County Council believes, as I have seen and listened to today on YouTube, that there was a gentlemen’s agreement—on International Women’s Day. Does the Minister agree that subterfuge of this sort undermines the essential prerequisite of trust and confidence that has to exist between local government and central government? Will he ensure that the Secretary of State comes clean on this gentlemen’s agreement and reveals all the other secret deals done with Conservative-run councils?
My Lords, let me restate—indeed, this was confirmed by Councillor Hodge yesterday—that there is no deal. There was never any question of special arrangements for Surrey; it is subject to the same rules as every other local authority. It can apply for consideration for the business rates retention scheme for 2018-19; it may wish to do that or not—I do not know—but it is open to that authority as it is to all authorities, whatever their political complexion. That is the position.
My Lords, I wonder if the Minister understands that there is real concern that Surrey had less need of the additional money for social care than any other authority in the country because it has the lowest proportion of population with entitlement to publicly funded social care. I know that the Minister is coming to the north-east soon, and I hope that before he does so he will put pressure on the Chancellor to ensure that the additional money for social care is allocated on the basis of need. In the north-east, there is not a single authority where less than 65% of those eligible for social care require publicly funded social care, as against 1% in Surrey. Again, the tax base in the north-east is much lower because of the lower property base and ability to raise council tax. This is an issue of need around the country, and there should not be any special deals for Surrey without addressing the needs of places such as the north-east.
My Lords, I am very much looking forward to my visit to the north-east, which the noble Baroness kindly mentioned, which as she knows includes a visit to domestic abuse services. On the finance settlement, the Government’s and therefore the department’s position is very much that we wanted Surrey to come to the agreement that more than 97% of councils came to. It chose not to do so and therefore is outside of that agreement. When I am in the north-east I shall be in listening mode, but I hope that the noble Baroness is not exaggerating my powers to persuade councillors.
This is a Private Notice Question, of which the Minister had previous notice. Can he now try, instead of reading from a prearranged brief, to answer the specific questions put by my noble friend Lord Kennedy of Southwark? His questions were absolutely clear but they were not answered. I am sure that if he needs him to, my noble friend will repeat them.
My Lords, I was absolutely clear. I am not reading from a prepared brief. The position is absolutely clear, and we have made a Written Ministerial Statement on it. I hope that the noble Lord is not seeking to make mischief—it would be unusual if he were not. There is no sweetheart deal with Surrey. There was never a prospect of a sweetheart deal with Surrey. Surrey is in the same position as every other local authority except that, as I indicated, regrettably it did not sign up to the financial deal. I do not accept the proposition the noble Lord seeks to put—that the position Surrey is putting forward is the correct position. I am sorry, but he wishes me to say something I do not want to say and am not going to say. The Government’s position is absolutely clear—there is no special deal. I make that absolutely clear.
My Lords, I have no idea. That is a question for Surrey to answer. However, we have had a freedom of information request, which I believe the noble Lord opposite knows about. We are very keen to respond to that and will do so. All the relevant documents, which I am sure will set out this matter very clearly, will be disclosed.
My Lords, as I have just indicated, I have set out the Government’s position very clearly: that there is no gentlemen’s agreement. There is no written agreement, as I think was suggested. As I have just said, there is a Freedom of Information Act request to which we are responding by disclosing the relevant documents. I am sure that will illustrate the point I am making—that there is no special deal at all for Surrey.
My Lords, I am not here to fling accusations about. That is a matter for him to deal with. I am willing to take questions that are put to me but I cannot take questions that are properly a matter for Surrey County Council and its leader to deal with.
My Lords, the question has to be answered. Either the leader of Surrey County Council was lying or he completely misunderstood his conversations with the Secretary of State and all those others to whom he spoke. Therefore, the Government are suggesting either one or the other. I am sure that the Minister will decline to comment on either of those but can he tell us categorically whether anyone in No. 10 was involved in the discussions with Surrey County Council?
My Lords, the discussions with Surrey County Council were conducted quite properly by officials in the department and by the Secretary of State, as you would expect with local authorities and local authority leaders. We are having discussions across the board with Norfolk, Hampshire, Lincolnshire—I think—and Suffolk. They are not unique to the position of Surrey. I want to make that absolutely clear. There is nothing special about a single local authority leader having discussions with the Department for Communities and Local Government or with the Secretary of State. That is absolutely right and we would be criticised if that did not happen.
Higher Education and Research Bill
Report (2nd Day)
Clause 26: Rating the quality of, and the standards applied to, higher education
62: Clause 26, page 16, line 10, leave out “give ratings” and insert “assess”
My Lords, I realise that this does not have quite the interest of yesterday’s debate on the withdrawal from the European Union. I declare, as always, my interest as a former chairman of King’s College London.
Clause 26 deals with the quality of teaching in our universities. All universities—and, I am sure, all noble Lords—accept the objective of wishing to continue to raise the standard of teaching in our universities, but the question is whether the metrics or the rating system will achieve that. The purpose of this amendment is simply to delete from the Bill the word “rating”. The teaching excellence framework is under way and will classify each university as gold, silver or bronze.
Times Higher Education recently published a table of universities with the highest international reputation in the world, and in the top 20 are 10 British universities: Imperial College London, Oxford, Cambridge, University College London, the London School of Economics, King’s College London, Edinburgh, Warwick, Glasgow and Manchester. The irony is that, when the ill-named Office for Students publishes its new classifications and some of these very same universities, as expected, are graded silver or bronze—in other words, graded as second or third-class universities—this will be despite their well-deserved reputation in this country and abroad.
The teaching excellence framework, as currently designed, will use ratings and, because Clause 26 requires the use of ratings, it will be legally necessary to continue with them until the next higher education Bill in 20 or 30 years’ time. However, if we change “rating” to “assessment”, a future Minister or “Office for Higher Education”, which I believe would be a better name, will have the option not to use a ratings system. Many noble Lords have voiced concerns and doubts about the gold, silver and bronze grades—as have many involved in, or interested in, higher education.
Ministers argue—indeed, on Monday my noble friend Lord Younger proudly announced—that 299 providers have joined the teaching excellence framework and that it has near-unanimous support. But in fact these providers had no choice. On the website of the University of Warwick, with which I have no connection, the vice-chancellor says that,
“we agree with the fundamental proposition that universities should provide high quality teaching, we don’t believe that TEF will measure that”.
He goes on to say that,
“the Government has us over a barrel. It has linked TEF to fees and potentially our ability to recruit international students. The risks are too high”.
So the Government must understand that there are grave concerns about the teaching excellence framework, about the metrics and about the gold, silver and bronze scheme. My amendment would allow, in the future, a different system of assessing teaching, and I very much hope that the Government will accept it. It is designed to be helpful. I beg to move.
My Lords, I declare my interests as set out in the register. I shall speak to Amendment 72 in my name and in the names of the noble Baronesses, Lady Garden and Lady Wolf. I thank them for their support and for the work that they have done on the Bill. This is the first time in my life that I have been wedged between a duke and a viscount, and it is appropriate to know my place as a baron in your Lordships’ House.
My interest in the Bill is both as someone who benefited greatly from higher education as a mature student and as someone who has taught and still teaches in higher education and has had a long-standing interest in quality as Secretary of State and beyond. I put on the record that I think that all of us in this House agree that it is right that we drive forward and drive up the quality of teaching and learning in our university sector. It has long been neglected, and the driving force of the research excellence framework has to be matched so that the experience in the classroom, in the lecture theatre and in tutorials can be properly evaluated and given the rating that it really deserves. That brings me to the nub of the Bill.
As the noble Duke, the Duke of Wellington, said, there are real issues about the nature of the metrics being used. The teaching excellence framework could well be undermined by a simple lack of confidence on the part of those who are crucially involved in it, both in teaching and as students receiving that teaching.
I have not spent as much time on this Bill in your Lordships’ House as I would have liked, although I have spoken on a number of occasions. However, I pay tribute to those who have spent and will continue to spend an enormous amount of time on it. I give credit to the Government for the way in which they have listened, reflected on and responded to suggestions so far, which has made a great difference to the quality of the Bill. My noble friend Lord Stevenson and other colleagues have spent hours not only in the Chamber but outside working on the Bill, and liaising and negotiating with the Government and colleagues. That has made a tremendous contribution and I hope that, whatever the irritations of the moment about the capacity of the House of Lords to bring about change in legislation, the Government will continue to want to listen and learn, in particular in relation to the metrics of the TEF.
I have a great deal of time for Chris Husbands, the vice-chancellor of Sheffield Hallam University. He is reviewing the trial of TEF 2, as I understand it is now called, and no doubt he will bring forward positive proposals for change. But if there is no proper way of taking forward that change, what guarantees does anyone have that the process will have a satisfactory outcome? Changing the nature of the way in which the TEF is being taken forward by the Government at the moment, and dealing with concerns about the narrowness of the metrics and about the process of how future change will be dealt with, explains why the amendment includes references to the role of Ministers and of this House and the House of Commons through statutory instruments. Providing for proper transparency and accountability is important; that is why we should have a continuing interest in and concern about what is taking place.
The nub of the amendment is that change must take place in the lecture theatre and through the process of learning, not from outside. It has to be driven by, and created and expanded from, what is taking place, and from spreading best practice in higher education generally. There is a great deal of good practice as well as some extremely shoddy and unacceptable teaching. As the noble Baroness, Lady Wolf, said in our debate on Monday, it is based on the presumption that this is about students. If it is about students, you would expect student bodies to be in favour of the proposals—but they are not. You would expect universities to be universally in favour of them—but they are not.
I just want to refer to the Faustian deal that Universities UK and the old HE body appear to have made with the Government. I have no idea how it came about. Much of what is in the letter sent out last week is highly commendable, but the timing and its presumption that the deal has been done are unworthy of those with the highest academic standards at their fingertips and the best interests of the sector at heart. So let us presume that we have made great progress, although a great deal can still be done. Let us hope that Ministers have the confidence to continue listening and reflecting so that they can bring to bear the wisdom that has been evident both in this House and beyond, and will be prepared to adjust and to deliver something that we all want to see: considerable improvement not only now but in the future so that we can provide the kind of support for teaching that has been evident for research for so long.
I shall finish on a crucial note. The reputation of our universities is of course affected by the investment in and the outcome of research—but, in the end, universities and higher education were created from and have built on the most fundamental element of all: scholarship. It has been about building a theory of knowledge and the ability to impart it—and to do so well— with clear communication and with engagement in all forms of learning, including new distance learning, the use of information technology and the ability to move forward effectively.
The amendment seeks to generate further progress and to be a driving force for doing just that. Yes, we are in favour of considerable improvement; yes, the TEF could be a mechanism, if properly improved, to do that; and no, it cannot be seen to be doing it if it is too narrow.
I will draw attention to the ranking positions, which were mentioned by the noble Duke, the Duke of Wellington. There was a bit of a giveaway in the debate on Monday when the noble Viscount on the Front Bench mentioned the vice-chancellor of Nottingham Trent University. I declare an interest because one of my stepdaughters got a first-class degree from Nottingham Trent three years ago and I have a great deal of time for the university. The giveaway was in what was quoted from the vice-chancellor, who clearly believes that the kind of relative appraisals and rankings proposed will lead to people adjusting their view of reality about the holistic overview quality of universities in this country.
We on this side of the House know all about people who believe that they can set aside reality and that people will go with them—but you cannot. So the relative judgments to help students know what type of university they are going to and what they are going to get are fine, but relative outcomes are not suitable in terms of a judgment of the ranking of universities across the board in this country. What is, is—and universities should be judged holistically on what they offer and the outcome measures they provide, not on what the comparator is with another institution of a particular type. Therefore, we need to be clear that in future we will want to lift the quality in every aspect of higher education, whatever the background and historic resonance of the university. In the end, we want people to know that quality means quality.
My Lords, I support the amendments proposed by the noble Duke, the Duke of Wellington. I have added my name to Amendment 72 in the name of the noble Lord, Lord Blunkett, and I entirely endorse all that he has said. I pay tribute to him for all that he has done for education in this country. His amendment is supported by the noble Baroness, Lady Wolf, and myself, and I shall speak briefly to Amendment 73, which stands in my name and that of my noble friend Lord Storey.
Amendment 72 sets out a scheme to evaluate teaching and encourage best practice based on systems already in place in universities. In Committee, my noble friend Lord Storey said:
“Teaching is not just about knowledge but also about how you relate to young people. The most knowledgeable and gifted professor may be unable to relate to a young person, and therefore cannot teach the subject”.—[Official Report, 18/1/17; col. 272.]
That is why I come back to my call for all those required to teach in universities to be offered training in the skill of teaching. Having a higher education teaching qualification would be ideal, but it is very unlikely to meet the favour of the Government or, indeed, of universities. It is important that training in how to teach should be available to all those who are expected to teach in universities. That would do more to raise standards than the threats of the TEF metrics. I repeat the call to end zero-hours contracts for academic staff, to which we will refer later today. Constant employment insecurity is not conducive to commitment to high standards of teaching.
The amendment in the name of the noble Lord, Lord Blunkett, offers a productive way forward. It calls for assessment of meeting or not meeting expectations and would certainly minimise the damaging league tables or single composite rankings, which do much more to disincentivise those working hard in challenging situations than they do to encourage those who regularly feature at the top of such rankings.
I also pick up the noble Duke’s point. It may be that universities that support the TEF do so not just to raise teaching standards but because the Government are coercing them with fee rises. It would be interesting to see, if fee rises were uncoupled, how many would be so wholehearted in this untried and untested set of metrics.
Our Amendment 73 has already been addressed in earlier debates. It would prevent the TEF being used to determine eligibility for a visa for students to attend universities. I shall not speak more on that because we covered this issue pretty comprehensively. I certainly support all the amendments in this group.
My Lords, I shall speak to Amendment 69 on the National Student Survey and Amendment 67 on postponing by a year the ability of TEF rankings to affect the fees universities can charge. Noble Lords will be relieved to hear that I will not repeat the longish and geekish speech I made in Committee on the National Student Survey. I look forward to hearing from the noble Lord, Lord Bew—a man whose expertise in this field no one in the House will doubt—putting the main arguments forward. However, the House ought to be updated on two recent developments that bear on the validity of the NSS.
First, there is the letter of 23 February from Ed Humpherson, the director-general for regulation at the UK Statistics Authority, to the DfE, responding to concerns raised with that authority on the NSS. It is a letter that needs a little reading between the lines, but in summary it refers approvingly to what Ministers have done to downgrade the NSS in the TEF. I will come back to that in a minute. It tells the department it must address the recommendations in the ONS report of June 2016 on the NSS and of the Royal Statistical Society in July 2016. Why do I draw attention to those two documents? They are the fundamental and official documents on which the critics of the NSS rest their case. They also take reading between the lines, but when this is done they are excoriating critiques.
Secondly, there is the question of benchmarking. Those reports and everyone who has addressed this subject agree that you cannot use the TEF for direct comparison between institutions. You simply cannot use it to compare the Royal College of Music and Trinity Laban—the two conservatoires that my noble friend Lord Winston and I have the honour of chairing—with Kingston University or any other I could mention. Instead, we are supposed to use benchmarking, which means comparing similar institutions.
Benchmarking raises its own set of statistical questions, which I will spare the House, so the Government decided that they needed an independent report on benchmarking and its statistical difficulties. What does that report say? It says nothing. Why does it say nothing? It is because it does not exist. Why does it not exist? It is because the Higher Education Statistics Agency, which admits this perfectly freely, has failed to commission it. It has been very difficult to get anyone to take it on. The pillar that bears the NSS in the TEF may be of solid oak, or it may be completely rotten. Without that study we have no idea.
The amendment I am speaking to calls for an inquiry into the NSS. I am delighted by all the concessions that the Government have made on the NSS in the TEF—although I should not call them “concessions”; they have given way to reason on these subjects—including its official downgrading to the least important metric, the admission of its shortcomings for small institutions, the one-year postponement of the subject TEF and the lessons-learned exercise. All those are sensible and welcome concessions from the Government. However, they mandate one further concession. It would be a self-inflicted blunder by the Government now to go ahead and let the TEF stop some universities’ raising fees on the original timetable until and unless that lessons-learned exercise has been completed and, indeed, the study that was supposed to have been commissioned by the Higher Education Statistics Agency has been commissioned.
We have been jumping in the dark into a pit whose depth we do not know. I want, and most noble Lords want, the TEF to work, but a rushed TEF, littered with statistical errors, will not work. If Ministers want the TEF to last—they do, and I do—they need a measured timetable for its introduction. They need to give it time to bed down. Otherwise, the flaws that I and others have been pointing to in this debate will turn from glints in the eyes of the geeks to real-world inadequacies and perhaps in some cases will even threaten the existence of the institutions that lose out as a result of those flaws. That would undermine the legitimacy of the whole scheme.
I beg the Minister, who has made so much progress with this Bill, not to concede, at the last minute, an own goal which may mean that what could have been a reasonable victory turns into a dreadful loss.
My Lords, I shall speak to my Amendment 68 in this group. I support very much what my noble friend the Duke of Wellington has said. I think he has an elegant approach in his amendment. Mine is different but we have the same concern. I am sure there are exceptions, but by and large this House wants the TEF to succeed. We want students to have more and better information on the quality and style of teaching than they have at the moment. We want universities and other higher education institutions to be motivated to improve the quality of their teaching.
We have some severe worries about the present quality of information, but let us set out and see what we can do over the next few years to improve it. After all, universities are supposed to be good at that sort of thing and, as we said, we have Chris Husbands in charge of the process. That gives me a good deal of hope and confidence. However, we cannot, on the basis of an unreformed, much criticised, hardly understood set of measures, leap into giving universities gold, silver and bronze metrics. If we give a university a bronze measure, the likelihood is that it will be struck off the list in those countries where students are centrally funded, such as the Gulf states. We will cause severe problems to students in countries where face is important, such as those in the Far East, who will have to say to their friends, “I am going to a bronze-rated university”. Bronze will be seen as failing because these universities will be marked out as the bottom 20%.
This is just not necessary. We have succeeded, in our research rankings, in producing a measure of sufficient detail and sophistication for people to read it in detail. It produces quite marked differences between institutions, but nobody reads it as a mark of a failing institution. It is information, not ranking, which is why I come back to my noble friend’s amendment as being a useful way of approaching this.
However much we may allow the Government or a Minister to learn by making mistakes, we cannot allow them to make this mistake, because it will do so much damage to universities in their international recruitment. I suggest that we allow the Minister to rank universities as gold, give them praise where praise is due and leave the other 80% unmarked. I think that that would go down okay: to give praise to a relatively limited number—just because an actor has an Oscar does not mean that you do not think any other actor is good. It sort of works. Let us do it like that until we get to the point where we really know that those in the bottom 20% deserve to be there.
To come back to something said by the noble Lord, Lord Lipsey, if we are doing this on the benchmarking scheme, a lot of those who will be awarded bronze do not deserve to be. They are good, but they are just not quite as good as their peers. It appears weird to set out a national system of quality and to say to the world at large, “These are rubbish universities” just because they are not quite as good as their peers. I hope the Government will step back from this.
My Lords, I wonder whether I could tell your Lordships’ House a story, which follows on entirely from what the noble Lord, Lord Lucas, has said. I was chancellor of the University of the West of England and took a group of professors to China. We went to prestigious universities and to some that were less so. I met the deputy Minister of Education. Everybody in China was with us; we were about to do all sorts of work. However, an assessment came out that showed that, according to the Times, we were below the 50 number. China said that it would not work with any of us and so we retreated. That is exactly what the noble Lord, Lord Lucas, has said in relation to those who might be bronze. It really will not do. We had already been working with China in the various universities, including the University of Peking and the University of Tsinghua in Beijing, but because of our rating, which came out after we left, we no longer did business with them.
I, too, support this group of amendments. Rather bizarrely, just as this debate started—it is not because he knew that I was sitting in the Chamber or would be talking about higher education—I had an email from Professor Colin Lawson of the Royal College of Music to tell me that the Royal College of Music has just been rated second in the world for music education. He says, “Notwithstanding my disdain for these rankings, this is something I am very pleased with”.
There is a real issue here. To follow up on what the noble Lord, Lord Lipsey, said, it is utterly ridiculous to suggest that you can assess arts teaching by this kind of approach of rankings. Music is interpreted in all sorts of ways. Just as art colleges are rather similar—I believe that drama colleges are as well—all sorts of endeavours such as this cannot be rated in the way that the Government propose. This is extremely dangerous, particularly for the conservatoire, which attracts a large proportion of its students from Asia and depends very much on them.
Perhaps I may briefly declare an interest. I am professor of science and society at Imperial College. The reason I was not involved so much in Committee is that I had been teaching in schools on behalf of the university in Lancashire, Yorkshire, Derbyshire, Lincoln and Avon in the same week as the Committee stage and trying to get back to London in time on the train service, which is rather difficult. We teach practical science in the reach-out lab and have had PhD students coming through assessing the teaching. It is very clear that it is one thing to be able to assess learning, but teaching assessment is extremely complex. None of the ways in which we are doing this at the moment is nearly adequate. It is a major problem, because if we get it wrong the risk of damage in these cases is massive.
I shall give just one example, because I recognise that this is the Report stage. Some years ago, on two occasions, I ran a free communications course for students at Imperial College. The courses lasted for one and two days, students signed up on a first come, first served basis, and they were massively oversubscribed because undergraduates wanted to learn how they could communicate their science better. What was really interesting—I do not say this in my favour—was that the British and EU students almost universally gave us a rating of nine or 10 on the assessment of the course afterwards. The Chinese and other Asian students were not giving us anything like that rating: they gave us four, five or six, averaging about five. The reason for this, when we did a questionnaire with them, was that, unlike the British students, they said, “This is not going to get me a job anywhere; this is not going to be of any value to me commercially”. Yet, of course, in terms of the education of a student, it is vital.
I beg the Government to think about this rating system extremely carefully. If we get this wrong, we will damage not only the very top universities but other universities that are coming up at present. That would be a disaster for the United Kingdom and for our education.
My Lords, I support the amendments moved by the noble Duke and spoken to by the noble Lord. I declare my interest as Master of Pembroke College in Cambridge. I want to make three very quick points.
First, everyone on all sides of the House agrees on the importance of promoting the excellence of teaching in universities. The emphasis that the creation of the teaching excellence framework places on teaching to sit alongside research as the benchmarks of what universities should be all about is something that we all want to welcome, but the practicalities of how the Government are going about it leave, to my mind, something to be desired.
Secondly, there is going to be an inevitable crudity about the metrics that are used. The metrics that the Government are suggesting now are somewhat better than those that originally appeared in the Government’s Green Paper, but none the less they are still going to be a very crude measurement of how well a university is doing its teaching. The process of assessing research quality at universities, as the noble Lord, Lord Lucas, has said, is detailed, analytical, nuanced and looks in a very serious way at the quality of research that a university does. The teaching excellence metrics that are proposed are totally different and they are crude.
Thirdly, there will be an inevitable crudity of perception about the ratings given. The noble and learned Baroness gave a very clear example of this. I use a very obvious analogy: the curse of star ratings in theatre reviews. When we look at the top of the theatre review, we look at whether it has one star, two stars, three stars, four stars or five stars and that is, in most cases, all we look at. We do not then look down and read the analysis of how good the play really was. Exactly the same is going to happen with universities. Are they gold, silver or bronze? If they are bronze, we are not going to look at them. This is, to my mind, an impossibly crude way of assessing, as we ought to assess, genuinely, what quality of teaching is being offered by our universities. I really urge the Government to think again about this imposition of ratings, which will have a perverse effect.
My Lords, I want to add a few words to what has already been said. I very much agree with most of the amendments in this group, and especially with what the noble Duke, the Duke of Wellington, and other speakers said about gold, silver and bronze. I also support my noble friend Lord Blunkett’s amendment, which is a very thoughtful way of trying to approach an exceedingly difficult subject.
I will repeat what I have said on numerous occasions. It is vital that teaching is given the kind of support and effort that goes into research. One thing that we have perhaps got wrong in our universities is that we have been inclined to reward research much more than good teaching. One reason for that is that it is rather easier to measure. We have publications and all the metrics that go with looking at citations and so on, which do not exist for teaching. But if we are going to go down this route, we have to get it right, because if we fail we will abandon any kind of effort to improve teaching, and that would be a tragedy.
One thing that is wrong with the approach that the Government have taken is that it feeds what is, in my view, an insatiable need for grades and ratings. There is much too much of this, and it fails to look at the very important nuances of what constitutes good seminar teaching, good lectures, a good learning environment—whether it is laboratories or libraries—and good assessment and appraisal of students. That will get lost in these sorts of gradings.
There are a couple of things that have not been said, I think, by anybody in this debate. What is the impact of this on students? What happens to the students in a university who are suddenly told, “We are very sorry, but your university has been rated bronze”? This is not like going to Which? or a consumer advice organisation and deciding that you have made a mistake in the vacuum cleaner you have bought. You can go out and buy another vacuum cleaner, but these students are stuck in the same institution, which may or may not improve. Actually, I suspect that many of them will not improve because it does not motivate academic staff to be labelled in this way. People get better in response to praise, not this sort of rather crude criticism. I am rather taken by what the noble Lord, Lord Lucas, said, about it being fine to indicate those institutions or departments within them that have done extraordinarily well, because that is giving praise and those institutions should be asked to be role models and support some of their neighbouring institutions that are not doing quite so well.
It is a bad system that is being created for academic staff and students, let alone for universities in their international recruitment. Everything that has been said about that is absolutely right. People trying to decide where to study who live in a small Indian provincial city do not have all the information that might be available to potential students living in this country so these sorts of labels will have a very big impact, and they will last for a long time. Even if an institution gets better, it will be stuck with this label for a long time before it can escape from it.
Finally, this sort of crude denomination, labelling and grading will also affect employers, who, again, do not have all the information they might need to make the rather subtle decisions about the students they want to recruit and where they have come from. They will use this and decide that a student coming from a bronze institution is not going to be as good a recruit as a student from a gold institution. That, again, seems a very undesirable situation and will damage the students not only during their time at the institution but in terms of where they are going to go in their initial and early careers.
My Lords, I want to say a few words about the teaching excellence framework, but before I do that, I want to add my comments to those already made about the huge amount of effort that has been put into the Bill already. It is very obvious that the department has been listening. Some wise words have been said today already about improving the teaching excellence framework, and I am sure they will be listened to as well. I have just a bit to add, which is more by way of explanation than of questions to the Government and suggestions for improvement. Several suggestions have been made already, which I am sure will be listened to.
A lot of concern has been expressed about how the TEF is dominated by metrics, which implies a mechanistic approach that largely disregards the human element. I want to try to expand on that. To start with, it is not an automated process. It involves a central element of human judgment at its core. All TEF judgments are made not by some algorithm of metrics but by TEF assessors. These assessors will consider a provider submission—a personalised, unique document written by the providers themselves and addressed to the panel to make their case for excellence. They can use this document to explain their metrics or set out other unique aspects of their teaching practices. That all comes from the universities themselves. The assessors themselves are highly qualified and have been chosen from more than a thousand applications submitted to HEFCE. They weigh up the evidence in the metrics and the universities’ submissions, and use both to reach a holistic judgment. One source of evidence does not overrule the other; both are considered in the round to reach a final judgment. This is to emphasise that there is a lot of human output with real, personal judgments being used. It is not entirely dominated by the metrics.
I have one quick word on gold, silver and bronze. It is my understanding that although this system is being used in the first pilot, which I think will be completed in April, it will not necessarily stick. Although the Government are convinced that there must be some sort of distinction between the very best, the not-so-good and the really not too good at all, I think there will be a much subtler way of going about it. With any luck, it will not be restricted to just three categories. I hope that, as this system of analysis—the teaching excellence framework—becomes more familiar, it will be welcomed by the sector and by most of us.
My Lords, I support Amendment 69, which is in my name and that of the noble Lord, Lord Lipsey. I have to declare my interest as an elderly pedagogue—as a visiting professor at King’s College London, where the college itself has just produced a statement with its students union. As it happens, and totally coincidentally, this is broadly in line with the arguments that I am about to advance.
I am well aware of the concessions made in this area and grateful to the Government for them. They have gone a considerable way but I am still not convinced that the Government are fully aware of the dangers implicit in a survey of the NSS sort. These dangers are very real, given the Government’s other stated objectives in higher education. For example, at an earlier stage of the debate the Minister praised the Athena SWAN scheme, which is designed to promote the role of women in higher education. But it should be noted that Erasmus University has carried out a survey in similar style to that of the NSS scheme, which demonstrates a clear in-built bias in student reporting against women. The bias was about 11% against women lecturers. There is therefore a real problem.
Anybody involved in this who has looked at these student survey reports, as I did during my 25 years as a professor in the university in Belfast, knows that there are real dangers of bias—and that is one of them. In one case, I have seen the outstanding scholar in the field—in the world—referred to in the most dismissive terms because a scholar is essentially eccentric, and there is not the toleration among young people today of eccentricity that there was a generation ago. It is as simple as that and it is worth making that point.
Secondly, there is the problem of racism. Again, I am absolutely certain that the Government’s approach in this respect is sound and good. In fact, the Minister in the other place, Jo Johnson, has identified himself very much with the race equality charter in higher education, in which the noble Baroness, Lady Lawrence, has played a significant role. There is no question of where the Government stand on this matter. None the less, I hope that attention will be paid to a paper on this problem produced at the University of Reading by Adrian Bell and Chris Brooks. It shows, in a very calm and not overstated way, from a review of the literature that there is potentially a racist bias. There is certainly something that looks like a bias in favour of white professors in this sort of exercise. There are problems of racism and sexism. There was a very good discussion of this in an article by Chris Havergal in the Times Educational Supplement on 14 August 2016.
Finally, as I have said before, I am an elderly pedagogue, and I have some experience of looking at student assessment forms. We are in this position for two principal reasons. I absolutely accept that across the House we want to see the TEF succeed. One reason is that, once one moves to fees, I am afraid that something like this is absolutely inevitable. The other reason is that the research assessment exercise, which began in a very low-key, relatively amateur way in our universities, became much more specialised. Its format had to be improved. It was not just that scholars and universities had their attention directed towards doing research because that is how your career is made, but because vast amounts of ordinary university time was spent in gaming the exercise. Everybody involved in this knows that this is the case. In other words, we were seeking a spurious scientific metric: “Is a quarter of an article in this journal equal to a third of an article in another journal?”. So it went on. Noble Lords will be amazed, but everybody who works in universities knows that what I am saying is true. The amount of time spent by academics in meetings on this!
I have a vision of how this Bill began in the mind’s eye of a Government. About 10 years ago, there was a story in the Daily Mail in which students went to their professor’s door and found a note saying, “Sorry I can’t be here to teach you this afternoon as I have to go to London for a meeting of the research assessment panel”. That professor would know that his vice-chancellor would never say that that was inappropriate. If we have already made a mistake in doubling down on a pseudo-scientific, over-elaborate metric without realising its dangers, we should not repeat it when it comes to teaching.
My Lords, I believe we can get this right. I declare, or confess, a life spent in higher education. We saw a great wave of—let us say—enthusiastic assumptions that we could get rankings, and then sobriety struck. I was very pleased to see this morning on the BBC education news that Singapore, which was a hotbed of ranking, has decided that it is not the way in which to assess children’s learning, and I do not think it is the way to assess undergraduate or postgraduate learning. It is important that we should be looking not for rankings but for excellence. The reason we should not be looking for rankings is fundamentally that we are looking for excellence, as far as it can be achieved. If you merely rank, you do not know who is excellent. It could be the case that the top-ranked were nevertheless not excellent or that, very fortunately, there was a great deal of excellence even in the middle of the rankings, so let us get rid of rankings and look for excellence.
My Lords, I support the amendments. In allowing the simple-minded rankings of bronze, silver or gold, we would be substituting for all other measurements or assessments a fairly crude system of three measures. Nobody is going to read beyond “bronze”, which probably does not give enough credit. It is a very unsubtle method of ranking. I would like to see the test used for assessments and not for rankings, and I speak as one whose university would expect to be highly ranked. The system is too crude, and we would very possibly lose the “bottom 20%” fairly sharply, which would not be a good idea at all.
My Lords, I too very strongly support this group of amendments. I share the very great concern expressed around the House, particularly at the thought of blackening the names of a number of our universities, on which we depend so very much for all sorts of reasons. The criticisms made around the House are compelling as to the obvious deficiencies of the present scheme.
One hopes that this is not the case, but if at the end of this debate the Government remain disinclined to change the approach of using gold and silver stars, ratings and that sort of thing, I urge that universities at least—there are a group of clauses in the Bill which specify what an institution has to do to justify that title—should be spared from the nonsense involved in the scheme as presently envisaged. They should not have to do this. They are already assessed through more sophisticated, nuanced approaches, and they should not have to be ranked in the way that this absurd scheme proposes.
My Lords, first, I thank the Minister for listening and in some respects changing some of the issues. I was pleased to receive the briefing pack before coming into the Chamber, which was emailed to me as well. I want to talk about two issues: teaching and information.
I do not really get it. Quite simply, if you want to improve the quality of teaching, you do that not through ranking but through the individual who is teaching. We certainly expect a lecturer, professor or other member of staff at a university to have the academic ability and qualifications, or the renown, but we also expect them to be able to teach the subject. How do you do that? Presumably, it is not beyond the wit of universities to perhaps devise their own crash course in teaching. It was considered for FE—City & Guilds—so why could it not happen in universities? Why are we suggesting that a TEF will make an individual lecturer or professor a good teacher? It will not. Teaching skills, and the ability to teach, are not the same as having academic capabilities. This has to be about both, and if we want to improve teaching—which we need to do in our universities—then it will be through some form of teaching qualification.
Of course information should be available: the more information, the better, because in this day and age, particularly with social media, students look at the information to decide which university they go to. They also visit those universities, often with their parents, to decide which is the place for them. Your Lordships would be surprised by some of the considerations that they decide on—I have to say that whether the accommodation has en-suite facilities ranks very highly. I guess that it is increasingly through social media that students tell other prospective students what the place is like: whether the lectures are suddenly cancelled; whether assignments and dissertations are handed in on time and marked correctly; the numbers in lectures; the numbers in tutorials; and how competent and supportive personal tutors are.
Then we come to the issue of ranking. I like the analogy the noble Lord, Lord Smith, made with theatre and cinema stars. The difference is that there are different stars in different publications: one might give it three stars and one might give it one star. We cannot do that with these rankings: once you are a bronze, you are a bronze. I want the Government to understand why we oppose this. It is for a number of reasons. University teachers—lecturers—will want to teach at gold universities. That is human nature. They will not want to say, “I am at a bronze university”. It will affect social mobility. Students do not want to say, “My university was a bronze university”. I think it was the noble Baroness, Lady Blackstone, who said that praise is far better than wielding a stick.
I was really impressed by the briefing of the president of King’s College, Ben Hunt, who said it so well:
“The labelling of many successful and international institutions as bronze in TEF rankings will have negative consequences internationally. The methodology behind TEF is not reflective of the teaching quality of students, but will lead UK universities to be perceived nationally and internationally as below standard”.
How right that is. Driving up standards is not about labelling; it is about providing information, being supportive and ensuring the quality of the teachers in those organisations.
I agree with the noble Lord, Lord Bew. I know that the student survey will be a very small part of the TEF, but research has shown that where student surveys are used, they often discriminate against women and BME lecturers. If we are to use student surveys, I hope that they will be a very small part of the methodology.
I do not want our great universities being labelled gold, silver and bronze. As I said at Second Reading, I do not foresee many universities putting a banner outside their premises saying, “This is a bronze university”. They just will not do that.
My Lords, I agree with those who have expressed deep anxiety about the impact of this gold, silver and bronze scheme. When I first read about it, I thought it was a further trivialisation of the whole concept of education and scholarship. It seemed to me to be the language and preoccupations of the market—marketing creeping in and distorting still further that ideal. I have said before that I wish that we could get back to the concept of universities as a community of scholars—I would hope, an international one. Students are not clients or customers: they belong to the university and they should be contributors to it. Student surveys encourage the concept of “the university and us”; whereas they should be encouraged to contribute to thinking about how the university is functioning and how it could improve its provision.
I also agree with those who have expressed another anxiety. If we are really concerned about the quality of higher education, how on earth will it help to start having oversimplified measures of this kind? When I was much younger, I held HMIs in very high esteem because of the contribution they were making to education in schools in Britain. Several inspectors were good family friends, one of whom was a godmother of one of our children. They were not going around failing schools; they were assessing their strengths and weaknesses and finding out how to help overcome any weaknesses. It should be the same for universities. There is a great deal of room for helpful assessment.
Another issue is that it is a crude measurement. I do not believe that scientific objectivity can be established. This system is inevitably a very subjective process, based on the experience and values of the people who concoct it. It is too crude, in another sense. In a university, you may have areas in which the teaching is weak and for which a great deal could be done to enhance it. That may apply to some of our older universities as well as our newer ones It is not uniform. There may be areas within the university where there is amazing excellence in teaching.
We need a much more sensitive approach that looks at the university as a living entity and reports convincingly—of course we need the information—on its different dimensions and patterns of success and failure, such as, what is strong and what is weaker. Surely, too, we should not be discouraging teachers with innovative approaches to teaching that may not lend themselves easily to crude metrics of this kind. I hope the Government have listened to the debate and will say that they understand that this may not be the right approach, and will go away, think about it and come back with something better.
My Lords, I rise to speak to Amendments 62 to 66, 88 and 93, tabled by the noble Duke, the Duke of Wellington, and Amendment 72, tabled by the noble Lord, Lord Blunkett, to all of which I have added my name. I declare my usual interest as a full-time professor at King’s College London, but also note that I am a founding editor and editorial board member of Assessment in Education, a leading international academic journal in the field.
I have listened with interest to all the remarks made by other noble Lords and have agreed with the overwhelming majority of them. I just want to comment on an issue that is at the heart of the amendments to which I have added my name. It concerns the profound difference between using a single composite measure and having a wide variety of measures that are reported separately.
One of the prime rules of assessment—indeed, of measurement—is that you do not throw away information if you can avoid it. The Government have, rightly and repeatedly, emphasised their commitment to transparency and to giving students better information about teaching quality and other aspects of the higher education courses to which they might or do subscribe. But the trouble is that a composite measure is the opposite of transparent. It is also a problem that it is seductively simple: three stars, four stars—how can one resist it? We believe it is somehow objective because that is how we respond to a single number. In modern societies, we love rankings. But if we add up measures of different things and produce a single number, we are not being transparent and we are not being objective. What we are presenting to people, first, throws away large amounts of information and, secondly, imposes our value judgment on those different measures. When we use different indicators, add them up and create a single rank or score, we are denying other people the chance to see how it was done. It is irrelevant whether you gave equal weight to each measure or decided to do all sorts of clever things and weighted one thing at threefold and another at a half; the point is that by doing that, you have imposed your judgment. The students for whom these are designed—the students we want to help—may have different interests from you, as the noble Lord, Lord Storey, has pointed out.
That is why I support the proposal from the noble Lord, Lord Blunkett, that a scheme to assess quality must report individual measures individually. It is also why I completely agree with the noble Duke, the Duke of Wellington, that the last thing we want to do is impose on Governments, quite possibly for the next 30 years, the obligation to create rankings.
In this case, we are not even adding apples and oranges, which at least are both pieces of fruit. We are adding up things that are completely different. If the numbers are measuring or representing different things—and doing so with varying degrees of error, as is always the case—adding them up will compound the error. Obviously it would be nice to have a wonderful single measure, but the fact that we would all like one does not mean that it is better to have an unreliable one, rather than not have one at all. On the contrary, it is worse.
We know why most universities have signed up to this. On Monday, the Minister pointed out that if they do not agree to link TEF scores to fees they will,
“lose £16 billion over the course of the next 10 years”.—[Official Report, 6/3/17; col. 1140.]
Universities are in a corner and over a barrel—as we have heard, that is exactly how you would feel if you were the vice-chancellor of Warwick.
It seems to me that this is all quite unnecessary. The Conservative manifesto did not commit to rankings, to a single measure or to labelling people as gold, silver or bronze. It said that students would be informed of where there is high-quality teaching. That is something to which everybody in this House would sign up. I very much hope that the Government will continue to listen and will move away from a current commitment that can only be harmful, for all the reasons that people in this House have talked about so eloquently this afternoon.
My Lords, this has been a passionate debate, which reflects accurately that this is the most contentious part of the Bill—certainly the email traffic that all of us have experienced would bear that out.
As we have heard from many noble Lords, the metrics proposed for the TEF are flawed, and confidence in their effectiveness remains extremely low among academic staff, students and more than a few vice-chancellors. The noble Duke, the Duke of Wellington, referred to the University of Warwick. I have to say that that is more reflective of the general view than that sent out in the rather unconvincing letter from Universities UK and GuildHE a few days ago.
We on these Benches have consistently said that we are of course in favour of a mechanism that enhances the quality of teaching and of the general student experience. But, due to the differentiation of tuition fee levels, the TEF as it stands—even with the improvements made thus far—is not fit for purpose. In view of these uncertainties, and because the reputation of UK higher education institutions needs to be handled with particular care in the context of the upheaval that will result from our impending departure from the EU, it would be inadvisable to base any form of material judgment on TEF outcomes until the system has bedded down.
That is why Amendments 67 and 68 in the names of my noble friend Lord Lipsey and the noble Lord, Lord Lucas, calling for delays in the implementation of the TEF and the linkage of any fee increases to it, are sensible. As we on these Benches have argued consistently, we do not believe that there should be such linkage. In many ways, using student feedback as part of a framework that leads to fee increases, while at the same time purporting to represent and embody the interests of students, is contradictory. My noble friend Lord Blunkett has outlined why it is appropriate for the Secretary of State and not the Office for Students to bring forward a scheme to assess the quality of teaching.
In Committee, we tabled an amendment which sought to ensure that any rating scheme had only two categories: “meets expectations” and “fails to meet expectations”. So we welcome the fact that that principle is incorporated in my noble friend’s amendment. The amendment has the benefit of being straightforward without a confusing system of three categories, all of which would be deemed by the OfS to have met expectations—to different extents, of course. However, as many noble Lords have said, that is not how it would appear either to potential students, to those awarding research grants or to the world at large.
Amendment 72 also highlights the need for consistent and reliable information about the quality of education and teaching at institutions. The fact that what is proposed in the Bill would guarantee neither is a major reason why so many have opposed the TEF in its current form. The requirement to have the data and metrics on which the TEF is based subject to evaluation by the Office for National Statistics was advocated in Committee, but it merits reconsideration today. Without a firm base on which to establish the TEF, it is unlikely to gain the confidence not just of institutions but of staff and students, on whose futures it will have great bearing.
The future standing of higher education in the UK will depend on the Government rethinking their approach to these issues. It has to be said that not one noble Lord in the debate this afternoon has spoken in favour of the TEF as proposed. I ask the Minister and his colleague Minister Johnson to give that fact due weight of consideration.
I apologise for not being faster to my feet to intervene slightly earlier before the last speaker, but there are a couple of points that still need making. I declare an interest as an honorary professor at the University of Cambridge and before that as rector of Imperial College. Probably more relevantly, over the past 15 years or so I have been much involved in the assessment of universities in Hong Kong and Singapore.
I have two main points to make. First, the assessment as proposed at present by government is simply not useful to students. It may satisfy administrators or others, but it is not useful for students in so far as it does not have sufficient granularity. Within a university there may be departments that are outstanding in their teaching and others which are not, and that is the information that is of value to students—not some blanket assessment of the university as a whole.
Secondly, there is an implicit assumption in all this that, if a university is not teaching well or if a department is not teaching well, it is because it is not trying hard enough. That might or might not be the case, but it may also be that there is insufficient resource in that university to do better. Indeed, the proposal to link the level of support or the ability to increase fees may initiate a vicious downward spiral of despair, discouragement and pessimism in those institutions which are given the lowest ranking.
My Lords, it is clear from today’s debate and those that preceded it that many noble Lords feel passionately about the teaching excellence framework, or TEF. Many noble Lords agree with the need for a renewed emphasis on improving teaching quality. Many noble Lords have also said that they agree that students need clear information to make well-informed decisions. These concerns are important motivational factors behind why the Government have chosen to introduce the teaching excellence framework and why it featured in the Conservative manifesto in 2015.
I understand that some noble Lords may feel that we have not listened to their concerns. I assure them that we have listened closely, considered carefully and responded thoroughly. I thank the noble Lord, Lord Blunkett, for his words and the general spirit in which this Bill has been handled across the Chamber so far.
Noble Lords expressed concern that the speed of implementation was too fast. In response, the Minister Jo Johnson committed to further piloting subject-level TEF for an additional year. Two full years of piloting is in line with the best practice demonstrated in the development of the REF. As with the REF pilots, these will be genuine pilots, involving a small number of volunteer institutions, with no public release of individual results and no impact on fees or reputation. Noble Lords expressed concerns, too, about the metrics and ratings and whether both would be interpreted appropriately. I shall return to this point later in my speech but, just briefly, the Minister has responded by committing to a comprehensive lessons-learned exercise, following the trial year that is already under way, to explicitly consider all those points.
I say again that we have listened and we have responded—but we must keep sight of the intended purpose of this policy. On that note, I turn to Amendments 62 to 66, 88 and 93 from my noble friend the Duke of Wellington. I reflected carefully on the point that my noble friend made about the use of the word “assessment” instead of “rating” in the drafting of the Bill. However, while these amendments are well intentioned, an assessment without an outcome will neither help to better inform students nor provide the incentives needed to elevate the status of teaching in our system.
I note that my noble friend raised the issue of the sector, specifically Warwick, buying into the TEF only because of the link to fees. However, I can cite contrasting views. I will quote no less an institution than Cambridge University as an example of the type of comments sent to us by the sector. We need to establish a balance here. Cambridge University states:
“Cambridge welcomes the Government’s desire to recognise teaching excellence, and supports the continued emphasis on a higher education system that embeds principles of diversity, choice and quality”.
I will expand on those points by turning to Amendment 72, which also features in this group and was tabled by the noble Lord, Lord Blunkett. Amendment 72 goes even further than the amendments suggested by my noble friend the Duke of Wellington and would turn the TEF into a pass or fail system. This amendment overlooks the fact that we already have a system that determines whether or not providers have or have not met baseline minimum expectations: it is run by HEFCE and the QAA and is called the quality assessment regime. It plays a critical role in maintaining standards and we do not need another system to do the same thing.
What the TEF offers is differentiation. In order to be eligible for a TEF rating of any kind, a provider must be meeting the baseline standards expected of a UK higher education provider. Therefore, a provider must at least “meet expectations” before they can receive a bronze award. Let me be clear that receiving a bronze award is not a badge of failure, as has been suggested by noble Lords today and during recent debates, including in Committee. I strongly reassure noble Lords that we are working closely with the British Council, Universities UK International and others to ensure that a provider that attains a bronze is recognised globally for its achievement. However, the Government are not complacent about the worries and concerns that—
I am very grateful to the noble Viscount for giving way. I am trying very hard to understand his argument. It seems to me that it may not be the intention of the Government or of the Office for Students that a bronze rating will be seen as a badge of failure. However, it is the perception of everyone else who looks at it that is the problem.
I take note of what the noble Lord has said. I will be saying more about this in a moment. I understand the concerns on this issue. I say again that the Government are not complacent about the concerns that the noble Lord, Lord Smith, and others have. We have explicitly committed to consider the ratings and their international impact as part of the lessons learned exercise. Not all providers will be able to get a bronze award. The Government have listened to the concerns raised by this House and noble Lords and I am pleased to announce that the Office for Students will label providers without a quality assessment as, “ineligible for a teaching excellence award” on both the register and in key information for students. Let me be quite clear that this indicates to students, parents and employers that there is a level that sits below bronze.
In contrast, the implication of this amendment is that the vast majority of the sector will end up being labelled wrongly as “meets expectations”—unless the intention is that much of the sector will actually be termed a failure, as in pass or fail. Without clear differentiation it is impossible to tell students where the best teaching can be found. GuildHE and Universities UK wrote to noble Lords last week expressing their support for the Government’s approach. Steve Smith, vice-chancellor of Exeter University, said:
“Some of the most controversial aspects of the TEF are … essential to its success. Genuine, clear differentiation is critical if we are truly to incentivise teaching”.
I thank the Minister for giving way. Will he confirm that when the Government carried out the consultation on the teaching excellence framework, one of the questions asked was: do you agree with the descriptions of the different TEF ratings proposed? Will he also confirm that an overwhelming 55% said no? On the basis of that, the Government came up with the gold, silver and bronze. Now the Minister is hearing unanimously from noble Lords and university leaders that this will not work for universities, will damage the sector and will create the wrong perception. So surely the Government should listen again. If they have listened before, they can listen now.
We continue to listen, and I have said that we are beefing up our lessons-learned exercise. To come back to the point that the noble Lord raised, it is true that we consulted everybody, and a number of ideas were put forward, including pass and fail and the one to 10 rating. It is not true to say that everyone was against the gold, silver and bronze system. We have come to this decision and think that it is right to go ahead on this basis. It is not just the higher education providers who believe that differentiated assessment is the right methodology. Alex Neill, director of policy and campaigns at Which?, said:
“Our research has shown that students struggle to obtain the information they need to make informed decisions about university choices. We welcome measures to give students more insight into student experience, teaching standards and value for money. These proposals could not only drive up standards, but could also empower students ahead of one of the biggest financial decisions of their lives”.
I know that the noble Lord, Lord Blunkett, raised student opposition to the TEF—I think that he may have indicated that no students were in favour—but students are not opposed to the principle of differentiation and ratings, which, as he knows, rests at the heart of the TEF. For example, in a survey for Times Higher Education, 84% of university applicants said that a good score in the TEF would definitely make them consider choosing a particular institution. So there is another side to this argument.
Furthermore, without differentiation, there will be no incentive for the vast majority of higher education providers to improve. Retesting whether providers “meet expectations” does nothing to encourage excellence beyond this—
I think that my noble friend is making an assumption that 20% represents bronze. The gold, silver and bronze system is a good thing and we should look at it positively. For example, if a new provider opens its doors, as it were, after three years and is already at the bronze level, with the opportunity to go up to silver and gold, surely that has to be a positive thing, and it is also something that students from here and abroad can look at.
Does the Minister accept that he is missing one of the key points of this debate? A university is made up of a whole host of different departments that contribute to teaching. There may be one lecturer who is excellent but in the next department there may be a lecturer who is pretty poor. You cannot classify all the staff in an institution simply on the basis of a gold, silver or bronze rating. Students apply for courses within those institutions and, unless a course has some badge of honour in terms of its teaching, we will be missing the point altogether. This is about people; it is not simply about institutions.
I respect the noble Lord’s experience. We have had discussions outside the Chamber about the data aspect and I will be coming on to speak about the data and about how the assessments are made. I would argue that this is not just looking at the high levels—the gold, silver and bronze—
Perhaps I may complete my sentence. It is not just looking at the gold, silver and bronze ratings. Yes, they are the high-level ratings but every student has the opportunity to look at the levels below those to find out what they mean and what the detail and data are within those assessment levels.
My Lords, the Minister quoted the University of Cambridge. In its most recent briefing, dated 3 March, recommendation 4 reads:
“The Bill should place an obligation upon the OfS to undertake a consultation to determine the most suitable quality assessment body, which should be separate from the OfS. The OfS should not be permitted to act unilaterally with regard to assessing quality”.
Perhaps I may make some progress, but I would like to say again that the lessons-learned exercise is one that we take seriously, having listened to noble Lords both today and in Committee. I hope that the House will respect the fact that we will be looking at this a great deal over the next two years.
My Lords, I might have misunderstood him, but would the Minister kindly clarify that he is now proposing a fourth category so that we will have gold, silver, bronze and ineligible? That is a bit like a gentleman’s fourth at Oxford years ago, which was a badge of shame. Is that the case?
There is no badge of shame. It is simply that we want to clarify that gold, silver and bronze occupy a particular platform of award level. Most international students would respect the fact that bronze is an award, not a badge of failure. But I want to clarify that there is a level below it, which is in effect a sort of non-level. I hope that that clarifies the position.
Let me move on. I appreciate that noble Lords want to ensure that whatever format the assessment takes, it is carried out rigorously and is based on reliable sources of evidence. I can assure noble Lords that the Government feel just the same. For example, we have already commissioned an independent evaluation of the metrics, which was carried out last year by the Office for National Statistics. Given that this evaluation has already taken place, repeating it, as proposed in Amendments 69 and 72, is unnecessary. The report proposed minor amendments to the metrics being used for the TEF, and the Government are already working with HESA and HEFCE on addressing those concerns for future TEF assessments. All of the metrics used for the TEF are credible, well established and well used by the sector.
My Lords, I feel as though I must have read a different ONS report from the one given to the Minister. You can clearly identify the outliers in the NSS data, those at the bottom and those at the top, but the rankings in the middle are so uncertain that you cannot discriminate or put in order the vast bulk of English higher education institutions. So, to say that minor amendments were called for uses the word “minor” in a way that I personally would not.
Perhaps I may move on to the NSS, in particular to the amendments spoken to by the noble Lords, Lord Bew and Lord Lipsey. I would like to reassure the House on some of the specific concerns that they have raised about the TEF in today’s debate, and I shall start with the NSS. While we recognise its imperfections—I did listen carefully to the speech of the noble Lord, Lord Lipsey—we consulted with the sector, which echoed the types of remarks made jointly by Professor Anthony Forster, vice-chancellor of the University of Essex, and Professor David Richardson, vice-chancellor of the University of East Anglia, who said:
“The National Student Survey (NSS) provides the most robust and comprehensive basis for capturing students’ views about the quality of their education and student experience”.
As I say, we recognise its drawbacks and we have put in place appropriate safeguards. For example, we use specific questions from the NSS that are directly relevant to teaching, not the overall satisfaction question, about which concern has rightly been raised.
I would also like to use this opportunity to do some further myth-busting about the TEF. First, the TEF is not just about metrics. Providers can give additional qualitative and quantitative evidence to the TEF assessors through their provider submission. My noble friend Lady Eccles alluded to the human element of the TEF, and she was right to do so. Secondly, the metrics are not worth more than the provider submission. The TEF assessors will consider both the metrics and the provider-submission evidence holistically before making a judgment. Thirdly, all assessors get contextual information about the providers they are assessing, including maps reflecting employment in the region and the make-up of the students studying at that provider. Fourthly, although I have made the important point that the metrics are not perfect, they are robust datasets which have been used by the sector for more than 10 years. This means that a TEF rating is not a box-ticking exercise and it is not an equation. It is a rigorous and holistic assessment process that is overseen by one of the sector’s most respected figures, Chris Husbands, vice-chancellor of Sheffield Hallam University. I know that he has been given fulsome praise by many in the House today, including the noble Lord, Lord Blunkett, and my noble friend Lord Lucas.
Highly qualified assessors, vice-chancellors, pro vice-chancellors and other experts in teaching and learning, as well as student and employer representatives, weigh up and test the evidence they receive before reaching a final judgment, which again reflects the human element. The noble Baroness, Lady Wolf, suggested that we should not throw away information. We are not throwing away information. The OfS will publish all the underlying metrics and provider submissions. However, composite measures have value. Why else would the vast majority of universities represented by noble Lords today award their students a specific degree class? We have to think about that.
I remind noble Lords that the Government listened carefully in Committee and made a number of important changes to the TEF in light of the suggestions made by noble Lords. We have slowed the implementation timetable and we have committed to revisit key concerns raised by the House in the lessons-learned exercise. I reiterate that the lessons-learned exercise will consider the following: the way in which the metrics have been used by the TEF assessors; the balance of evidence between core metrics and additional evidence; whether commendations should be introduced for the next round of TEF assessments; and the number and names of the different ratings and their initial impact internationally.
The lessons-learned exercise will survey all participating providers. The Department for Education will also collect feedback from panellists and assessors and involve further desk-based research. I am sure your Lordships will agree that the department has responded to the concerns raised by planning a thorough exercise.
Where we have not made changes we have done so with good reason. Following the Committee stage, we considered carefully the suggestion made by the noble Baroness, Lady Garden, that all those in universities must have a teaching qualification. However, such a requirement would fly in the face of the points that noble Lords have made about institutional autonomy. Indeed, the amendment agreed by noble Lords on Monday covers the freedom of English higher education providers to determine the selection and appointment of academic staff.
The amendments in this group challenge the fundamental nature of the TEF. The words in the manifesto were carefully chosen to echo the way that the REF is described. It said that the Conservative Government would,
“introduce a framework to recognise universities offering the highest teaching quality”.
A framework that allows only for a pass or fail assessment offers no gradients. A framework that offers no opportunity to recognise the highest teaching quality simply does not meet the Conservative commitment. I do not want noble Lords to misinterpret these amendments as offering constructive tweaks. They strike at the very foundations of what we want to achieve.
However, I reassure noble Lords that the Government remain committed to developing the TEF iteratively and working with noble Lords to do so. Developing the framework to date has involved two formal consultations and thousands of hours of discussions with the sector and with students, and we have only just begun. Universities UK has offered to engage with any noble Lord who wishes to provide input into its feedback to the department as part of this lessons-learned activity.
Many of the concerns we have heard throughout the course of the Bill were made in the early days of the research excellence framework introduced by a Conservative Government more than 30 years ago. We are still iterating that framework now. The noble Lord, Lord Bew, suggested that the REF was bureaucratic and encouraged gaming. We have designed something substantially less bureaucratic than the REF and have put in a number of safeguards at every stage to prevent gaming. I am sure the noble Lord has read the fact sheets, which I hope help him with his view on that.
The TEF has already started to change sector behaviour for the better and, given the same opportunities as the REF, will propel the quality of higher education teaching to new heights. I hope that this House will be able to look back 30 years from now with pride at what the TEF has achieved. I ask that the amendment be withdrawn.
My Lords, I am grateful to all noble Lords who have participated in this debate about various amendments. Every noble Lord who has spoken has criticised the gold, silver and bronze proposal. The Minister said that it will be reviewed after a year. However, Clause 26 requires a system of rating, and the spirit of my amendment was to delete the word “rating” and put in “assessment”. If the Government had been prepared to accept my amendment—I regret that they did not—it would have drawn the teeth of much of the opposition in this House to Clause 26. Other amendments go much further than mine. Therefore, sadly, I hereby beg leave to withdraw Amendment 62.
Amendment 62 withdrawn.
Amendments 63 to 69 not moved.
Amendments 70 and 71
70: Clause 26, page 16, line 43, leave out subsection (5)
71: Clause 26, page 16, line 44, leave out subsection (6)
Amendments 70 and 71 agreed.
72: Clause 26, leave out Clause 26 and insert the following new Clause—
“Scheme to provide information about the quality of higher education and higher education teaching
(1) The Secretary of State must by order bring forward a scheme to assess and provide consistent and reliable information about the quality of education and teaching at English higher education providers and at higher education providers in Wales, Scotland or Northern Ireland which apply to participate in such a scheme.(2) The scheme must be wholly or mainly based on the systems in place in higher education providers which ensure that the courses offered are taught to a high standard.(3) The Secretary of State, or that body designated by the Secretary of State to develop such a scheme, must, before such a scheme is introduced, and on a regular basis thereafter, obtain independent evaluations, including an evaluation from the Office for National Statistics, of the validity of any data or metrics included in such a scheme.(4) Any scheme introduced must evaluate and report on whether an institution meets expectations or fails to meet expectations on quality measures, but must not be used to create a single composite ranking of English higher education providers.(5) The Secretary of State’s power to make an order under subsection (1) is exercisable by statutory instrument, a draft of which must be laid before, and approved by, a resolution of each House of Parliament.”
In light of the Minister’s response and, with respect, the fact that things have got worse rather than better with the words “ineligible for a teaching excellence award”, it would be wise to test the view of the House and give the Government time to think again.
Amendment 73 not moved.
Clause 27: Performance of assessment functions by a designated body
74: Clause 27, page 17, line 14, after “are” insert “—
My Lords, I beg to move Amendment 74 and I shall speak to our government amendments first, before we can all turn to Amendment 116A. These amendments respond directly to concerns raised in Committee about the need for expert advice for any decisions relating to degree-awarding powers. They will ensure that only institutions that can demonstrate evidence of high-quality provision, or the clear potential to do so, should be granted such powers.
We have been clear that we will create a level playing field for new providers, with the option of a direct route to entry into the sector—one that does not depend on the need for validation by incumbent providers. We recognise that, for many providers, validation agreements can work well and are the preferred way to develop a track record. This will continue to be the case under the new regulatory framework, particularly for providers that are not yet able to demonstrate the potential to award their own degrees. For these providers it is important that the validation services on offer are comprehensive and accessible to them. Unfortunately, this is not always the case, which is why I will be resisting Amendment 119 when we come to debate it later.
We also want to create an alternative, direct route to entry for those providers committed to the higher education sector for the long term who can clearly demonstrate the potential to award their own degrees. Therefore, our proposals deliberately provide for two routes to DAPs. The first is via validation, although we propose to reduce the track record requirement for DAPs to three years. The second is via an additional test and close supervision for the first three years. This approach has been endorsed by Independent Higher Education. Alex Proudfoot, writing today on our proposals for degree-awarding powers and validation said:
“The Office for Students must be empowered to press ahead with regulation which better supports validation … And where validation is not the most appropriate route, the OfS also needs the power to identify this and provide an alternative route for these providers”.
We listened closely in Committee and considered carefully the amendment which the noble Baroness, Lady Wolf, tabled and to which Universities UK gave strong support. The amendments I am tabling today directly address these key concerns and I am pleased to see that they have the support of the noble Lord, Lord Stevenson, and the noble Baroness, Lady Wolf. We agree with Universities UK and the noble Baroness on the importance of a high quality threshold for new providers. We will absolutely not risk the reputation of the sector as a whole and the livelihoods of students by permitting poor-quality providers to have degree-awarding powers. We also recognise the value and importance of diverse and informed perspectives in determining whether a provider is competent to award its own degrees. This is why we have tabled these amendments that ensure that the OfS must seek and have regard to expert advice from the designated quality body or, where no designation has been made, a committee of the OfS, before awarding degree-awarding powers to any provider. It must also request such advice in relation to a variation or revocation of such powers. In both cases, the advice in question should be informed by the expertise of persons who are not part of the OfS. We expect this to include strong representation from persons who have experience of awarding degrees, as well as representatives of challenger institutions, further education providers, students and employers—as set out in the amendments. In cases of research degree-awarding powers, the advice must be informed by the views of UKRI.
The OfS must have regard to this advice before deciding whether to make an order to authorise, vary or revoke any kind of degree-awarding powers. This is a very robust process. It will ensure that only the best providers can access degree-awarding powers and, as recognised by Universities UK and GuildHE in welcoming and supporting these amendments, that independent expert scrutiny is built into the system. I therefore do not believe that any further changes beyond the government amendments are needed to ensure a robust process that protects students and the reputation of the sector. I invite other noble Lords, should they so wish, to address their amendments in this group before I respond to their concerns.
My Lords, I reiterate my support for the government amendment to which I have put my name because this is actually a big move forward in clarifying in the Bill what is needed to ensure that, as the sector grows, we have really high quality. However, something more is needed. The Bill sets forth the whole environment for the sector, possibly for decades to come. Over the years we have moved to a situation where most people do not understand what is going on. I know that this sounds very strange but it is true. People do not understand—and I include myself in this much of the time—how degree-awarding powers can be given, where powers lie, and what can and cannot be varied.
My Amendment 116A is intended to complement and add to the improvements that the Government are proposing by modifying somewhat and clarifying the process by which new institutions may receive degree-awarding powers, ensuring that these are clearly understood—because they are in the Bill—and to further reduce, to a very low level indeed, any remaining risk that students may end up with degrees from institutions that failed early in their existence and are therefore effectively devalued in the labour market. I do not think that a degree awarded by the Office for Students is likely to be understood or valued, and we should be thinking about two clear alternatives, which are set out in my amendment. These are that,
“the provider has been established for a minimum of four years with satisfactory validation arrangements in place, or … the Quality Assessment Committee is assured that the provider is fully able to maintain”—
from day one—
“the required standard expected for the granting of a United Kingdom degree … and may therefore be authorised to grant taught awards or research awards … and has reported to the Secretary of State”.
I will come back to why I think that is important. The OfS should also be assured,
“that the provider operated in the public interest and in the interest of students”.
There are a few points that I want to underline. First, thinking in terms of four years is really quite important. I would like to see that in the Bill for institutions that come through the validating requirements. The reason for that is, as the Government have frequently said, we want to know whether or not an institution works and is deserving of degree-awarding powers. That means that it needs to have gone through the process of educating people and giving them degrees and those people need to go out into the labour market. We need to see whether their degrees are robust and still stand up and bring them labour market recognition and labour market power. My sense is that four years is actually a pretty good number and that is why we have had it up to now. We should recognise that it is a number that has worked and put it in the legislation and have done with it. One thing I have discovered is that there is an extraordinary ability to vary things through guidance, and my sense is that the four-year figure really matters.
The other change is in giving degree-awarding powers without a validation period. There are cases where this is clear and important, but it should involve the Secretary of State. The reason is that, again, having degree-awarding powers is a really valuable thing. That is why private companies buy and sell universities; they think that they can do very well out of them. If you move to being able to do this straightaway, then you need to be quite secure that it can be done. I would not argue that everybody should have to have a validation process. That is not the case in the statute at the moment and certainly was not the case when many of our best younger universities moved straight to being universities, as many people including the noble Lord, Lord Willetts, pointed out in Committee.
One of the more informal questions that often comes up is: supposing that MIT wanted to set up here? I do not think that MIT probably would want to, but one day, if my dreams come true, the Government might want to create the equivalent of Caltech here—something really new, exciting and very different, which could become a university straightaway. If we were asked whether we wanted to validate anybody like that who came along, there would be a competitive, fighting queue around the block. If future Governments realise that their higher education policy needs to be more active and in some ways more interventionist about meeting the needs of the future, as the noble and learned Lord, Lord Mackay, pointed out on Monday, then they will need to be able to do that.
Why do I also suggest that the Secretary of State has to come into this? As I said, creating something which can go straight out and give degrees to students is a big thing. The Secretary of State is the accountable one. A regulator is not accountable, or the same thing as an elected politician. If you made sure that this was happening, most of the time it will be fine—of course it will—but the reality is that, a few years from now, the caravan will have moved on and people will not be looking at things with the same clarity. If there is this possibility, any new institution coming about in this way must be of very high quality. We need to be absolutely sure of that, and it seems not unreasonable to suggest that the elected, accountable Secretary of State should be involved in some way in that decision.
I have added my amendment to the government amendments, which are excellent, as I said, because this is an opportunity to have a clear set of rules and possibilities for the next few decades, and we still need to tidy some of this up. I also consider that the deletion of Clause 48, which suggests that the OfS can put itself on the register and award degrees, is consequential to this amendment. I would be grateful if the Minister could confirm whether this is the case.
My Lords, I too thank the Government for their amendments, which are much needed and beneficial. I have put my name to Amendment 116A because the four-year period is absolutely right. As the noble Baroness, Lady Wolf, has said, it would enable students to go through a cycle of university education and into the labour market. There would then be feedback and we could see clearly whether any issues needed ironing out before that awarding status is given. Feedback should also include things such as facilities: for example, the quality of the library and, dare I say it, perhaps the quality of teaching as well.
I apologise for just throwing this out—it may be that I have missed it—but perhaps I may take the liberty of asking the Minister this. If a private provider gets degree-awarding status and, goodness forbid, that provider goes into liquidation, what happens to the student loans that have been taken out? Will the Government guarantee that they can get those loans back, so that they can pay for the course somewhere else?
My Lords, I briefly intervene in this debate to welcome the proposals that the Government have now brought before us. There is, as we recognised in debates at earlier stages, always a balance to be struck. On the one hand is protecting the interests of students, which must be paramount, and the reputation of British higher education as a whole. On the other hand, the fact is that most of the innovation and advances in higher education in England have occurred as a result of new providers coming in and doing things differently. The history of the growth in, and success of, higher education in our country has been that doing things differently from the start is easier than changing an existing body. The arrangements in the new clause today get that balance right.
If anything, the process will now be more rigorous and defined than the kind of process that we had when decisions on degree-awarding powers and university title were taken by, among other bodies, the Privy Council on advice. This is superior to what went before. I feel a bit wary of referring to the 1960s now that the noble Baroness, Lady Wolf, has referred to them. But the fact is that one of the most exciting experiments in the growth of higher education in this country in the 1960s was when universities got their title and degree-awarding powers from the very beginning. We should not be far more restrictive than we were then.
My Lords, it is worth reflecting that we had quite a long discussion of this issue in Committee, when opinions were more sharply divided than they are now. Amendment 116A, which has been spoken to and which we have put our name to, was originally drafted in slightly different terms. The balancing point between the end of the first part and the second part was that the new provider would have to be established for a minimum of four years with validation arrangements and that the QAC had to be assured that the provider could meet the required standards for the long term. We are listening and reflecting on what the Government say as much, I am sure, as they listen and reflect on what we say. We have decided to change our position on this and now align ourselves with the noble Baroness, Lady Wolf, who has spoken on this amendment. We are prepared to accept that it is a good balance. I agree with the noble Lord, Lord Willetts, that we now have it about right. There is a route through which new institutions can come forward and receive degree-awarding powers: one of partnership and which has a minimum of four years. We would like to see that maintained because it has a value, but there is also the opportunity to be assessed and assured directly, without having to have a waiting period.
I am glad that, in all this debate, we have now lost the idea that there will in any sense be a probationary period; there will be no such thing as probationary degrees. We are talking about getting something up and started, which will have external value and be recognised by everyone in this country and abroad as a new institution that is of the standard required in UK higher education. We can therefore support this, which is why we are happy to sign up to the proposals in government Amendment 116. We acknowledge, although we did not sign up to them, that the new arrangements set out in the government amendments introduced by the Minister will be an effective and efficient way of carrying this forward. We support them but hope to amend the amendments that have been tabled.
The narrow point is about whether the Government’s proposals mean that new, innovative providers can come forward without what the Government allege has been a problem with trying to find validation, and the cost of that. Given that the information from the Minister’s department was that there were of the order of more than 400 new providers, of which just over 100 have degree-awarding powers already, there does not seem to be much of a problem here. We should not be too shaken into worrying about the status to which the higher education system in the UK might have fallen by having this new charge for innovation. I am a bit sceptical about that; it can be overstated. Nevertheless, I accept the general principles proposed here and we are therefore able to accept them. But the measures that are in place would be of value if the specific words in Amendment 116A, in the name of the noble Baroness, Lady Wolf, were in place. I hope very much that, when it comes to it, she will invite the House to have an opinion on that.
My Lords, I have nothing against new providers coming in. I should declare that I taught for 14 years at the University of Essex, which was a new provider and which I think achieved very high standards. It was of course believed not to have done so until the first research assessment exercise, which revealed that it was doing very well.
However, the deep difference that we have not yet explored in this debate is that we used to assume that new providers, like old providers, would have a system of governance of a sort that we recognise in this country. We have talked quite cosily about the governing bodies of institutions, but it is not clear to me that that is an apt way of speaking about the full range of possible providers that might come forward under this more open scheme. In effect, the burden is being transferred from governing bodies to a regulator. A regulator may say that there are certain standards of governance that it thinks are important or even that it believes that university councils should undergo some sort of fit and proper person test. That would be a reasonable thought, but that is not in the Bill at present, so when we think about new providers, we must open our minds to the full range of possibilities, and we may wish to set some restrictions on the sorts of institutions that would be appropriate. I use the euphemism deliberately.
My Lords, I thank the noble Baroness, Lady Wolf, and all noble Lords for their comments on our amendments. Let me assure the noble Baroness and the House that we are in agreement that we must assure the quality of degree-awarding powers and that the OfS must request expert advice before granting degree-awarding powers. The amendments that I have tabled and have already explained achieve this.
However, I do not believe that the Secretary of State should have a role in this process. The OfS, as the independent regulator, is best placed to make such decisions, taking them independently of government. It is also important that we streamline the currently bureaucratic degree-awarding power processes while ensuring that the focus is on quality. In addition, I question the value the Secretary of State would add, given the robust checks and balances in place in awarding and revoking degrees, in particular with the addition of our amendments. They require the OfS to seek independent, expert advice in making any decisions regarding degree-awarding powers. A role for the Secretary of State runs counter to the desire of the sector to have such decisions taken by an independent body, as distant from government as HEFCE is today, and not to politicise the process.
We are all in agreement on the importance of setting a high quality bar for new providers, and I thank noble Lords for their challenge in this area. I reassure noble Lords that protections for quality are provided for under our planned reforms. All providers would need to meet rigorous quality tests similar to those set out in the UK quality code. They would also need to meet robust tests for financial sustainability, management and governance that demonstrate their ongoing commitment to their students and to higher education. To award, degree providers would have either a track record or meet additional quality tests. Independent, expert advice must be sought on all DAPs awards and for their variation and revocation where that is on the ground of quality. Finally, there is an ability in Clause 15 to set a public interest governance condition.
The noble Baroness, Lady Wolf, asked whether the deletion of Clause 48 is consequential. There are two routes into the sector: validation or direct entry. I therefore do not agree with the noble Baroness that the proposed deletion of Clause 48 is consequential to Amendment 116A. She also questioned the Secretary of State’s role. She said it is needed because it is a big thing—I think that was the expression she used. As I said earlier, we believe that the regulator is best placed to make the decision on degree-awarding powers, but the Secretary of State is able to issue guidance and, where necessary, to give directions. We therefore feel that the power she has suggested is too great.
The noble Lord, Lord Storey, asked what happens if a provider goes into liquidation. All providers that are registered in the approved or approved fee cap categories are expected to have student protection plans in place to ensure that students can complete their courses and obtain their degrees, even if their provider has to exit the market. That takes account of their loans, which was the gist of his question.
Amendment 74 agreed.
Amendments 75 to 78
75: Clause 27, page 17, line 14, at end insert “, and
(b) the functions of the relevant body under section (Grant, variation or revocation of authorisation: advice on quality etc)(advice on quality etc to the OfS when granting degree awarding powers etc).”
76: Clause 27, page 17, line 16, after second “functions” insert “under section 24 ”
77: Clause 27, page 17, line 16, leave out “do not cease to be exercisable by the OfS” and insert “—
(a) so far as they relate to the assessment of the standards applied to higher education provided by a provider, cease to be exercisable by the OfS, and(b) otherwise do not cease to be exercisable by the OfS.”
78: Clause 27, page 17, line 19, after second “of” insert “any of”
Amendments 75 to 78 agreed.
Schedule 4: Assessing higher education: designated body
Amendments 79 to 82
79: Schedule 4, page 86, line 32, at end insert—
“( ) the Secretary of State is satisfied that the designated body is failing to perform in an effective manner its functions under section (Grant, variation or revocation of authorisation: advice on quality etc), or”
80: Schedule 4, page 88, line 13, after “protect” insert “—
81: Schedule 4, page 88, line 14, at end insert “, and
(b) the designated body’s ability to make, or make arrangements for, an impartial assessment of the quality of, and the standards applied to, higher education provided by a provider.”
82: Schedule 4, page 88, leave out line 37
Amendments 79 to 82 agreed.
Clause 28: Power of designated body to charge fees
Amendments 83 to 86
83: Clause 28, page 17, line 34, leave out from “body” to “may” in line 35
84: Clause 28, page 17, line 38, after “standards)” insert “, or section (Grant, variation or revocation of authorisation: advice on quality etc)(advice on quality etc to the OfS when granting degree awarding powers etc),”
85: Clause 28, page 18, line 8, after “24(1)” insert “or (Grant, variation or revocation of authorisation: advice on quality etc)”
86: Clause 28, page 18, line 12, leave out “section 24(1)” and insert “sections 24(1) and (Grant, variation or revocation of authorisation: advice on quality etc)”
Amendments 83 to 86 agreed.
Clause 29: Power to approve an access and participation plan
Amendment 87 not moved.
Clause 31: Content of a plan: fees
Amendment 88 not moved.
Amendments 89 to 92
89: Clause 31, page 19, line 26, leave out “applicable”
90: Clause 31, page 19, line 28, leave out “applicable”
91: Clause 31, page 19, line 28, leave out “in relation to an institution”
92: Clause 31, page 19, line 30, leave out “applicable to that institution”
Amendments 89 to 92 agreed.
Amendment 93 not moved.
Clause 32: Content of a plan: equality of opportunity
Amendments 94 to 96 not moved.
Amendment 97 not moved.
Clause 35: Advice on good practice
Amendment 98 not moved.
Clause 36: Duty to protect academic freedom
99: Clause 36, page 21, line 32, at end insert—
“( ) In performing those functions, subsection (1) applies instead of section 3(1)(za) (duty of OfS to have regard to the need to protect institutional autonomy) in relation to the freedoms mentioned in subsection (7)(b) and (c) of that section.”
Amendment 99 agreed.
100: After Clause 37, insert the following new Clause—
“Duty to monitor etc the provision of arrangements for student transfers
(1) The OfS—(a) must monitor the availability of schemes or other arrangements provided by registered higher education providers for student transfers and the extent to which those arrangements are utilised by students generally or students of a particular description,(b) must include in its annual report a summary of conclusions drawn by it, for the financial year to which the report relates, from its monitoring under paragraph (a), and(c) may facilitate, encourage, or promote awareness of, the provision of arrangements by registered higher education providers for student transfers.(2) For the purposes of this section, “a student transfer” is where—(a) a student transfers from a higher education course (“course X”) provided by a UK higher education provider (“the transferring provider”) to a different higher education course (“course Y”) provided by the same or a different UK higher education provider (“the receiving provider”),(b) the receiving provider recognises, or takes account of, the study undertaken, or a level of achievement attained, by the student—(i) on course X, or(ii) on another higher education course provided by the transferring provider,when the receiving provider is determining the study to be undertaken, or the level of achievement attained, by the student on course Y, and(c) either the transferring provider or the receiving provider is a registered higher education provider, or both are registered higher education providers.(3) For the purposes of subsection (2), there may be an interval between the student ceasing to undertake course X and starting to undertake course Y.(4) The duty under subsection (1)(a) may be discharged by the OfS monitoring as described in that provision—(a) arrangements for student transfers provided by all registered higher education providers or a particular description of such provider;(b) all such arrangements for student transfers or a particular description of such arrangement or student transfer.(5) In this section—“annual report” means the annual report under paragraph 13 of Schedule 1; “financial year” has the same meaning as in that Schedule (see paragraph 12(6));“higher education course”—(a) in the case of a provider in England or Wales, has the meaning given in section 79 (1);(b) in the case of a provider in Scotland, means a course falling within section 38 of the Further and Higher Education (Scotland) Act 1992;(c) in the case of a provider in Northern Ireland, means a course of any description mentioned in Schedule 1 to the Further Education (Northern Ireland) Order 1997 (S.I. 1997/1772 (N.I. 15));“UK higher education provider” means an English higher education provider or a higher education provider in Wales, Scotland or Northern Ireland.(6) For the purposes of applying the definition of “higher education provider” in section 79 (1) to the reference in the definition of “UK higher education provider” in subsection (5) to a higher education provider in Wales, Scotland or Northern Ireland, the reference to “higher education” in the definition of “higher education provider” in section 79 (1)—(a) in the case of an institution in Wales, has the meaning given in section 79 (1);(b) in the case of an institution in Scotland, has the same meaning as in section 38 of the Further and Higher Education (Scotland) Act 1992;(c) in the case of an institution in Northern Ireland, has the same meaning as in Article 2(2) of the Further Education (Northern Ireland) Order 1997 (S.I. 1997/1772 (N.I. 15)).”
100A: After Clause 37, in subsection (1)(c), leave out “may” and insert “must”
I thank the Minister for Amendment 100. We had a quick gloss over this the other day, and I sought a device to bring Amendment 100 back because in our heady and heavy discussions, sometimes we have lost sight of the other side of higher education and, in particular, of students who are working part-time and the significant number of students who drop out of higher education. Every year, approximately 8% of students drop out of their courses; for some courses the figure is as high as 30%. I am doing some work on nursing degrees, and research is showing that as many as 35% of students start a degree but do not finish it. That is a huge waste of talent. Some of those people—albeit very few of them—come back to complete their degrees, but the whole system in the UK is very much geared against that. If you fail, you fail: that is the maxim throughout our education system. It applies at GCSE and A-levels and certainly at university.
The Government are to be hugely congratulated on Amendment 100 which, for the very first time, accepts that this is a real issue. One of the problems is that if students are on the wrong course, how do they transfer to another one, particularly one at another university? Students often enter vocational degrees later in life, and there are changes in their lives. A student marries, or their partner needs to move for their career, so the student needs to go to another institution to complete their studies, and there is a host of problems in doing that. Very few institutions have a robust, well-advertised, student-friendly system whereby students can leave and come back, or leave and go to another university.
The trouble is that we have a higher education system that prizes its autonomy above everything else. It is one of the great strengths of our education system. In the short time I have been in your Lordships’ House and the time I was in the other place, I have seen nothing excite people more, be they MPs or Peers, than attacks on the higher education system. Everyone comes out, as your Lordships have seen this afternoon.
I want to make sure that we do something about it when students, for whatever reason—sometimes it is for personal reasons; sometimes it is because they are just not coping with the course—drop out of the system. The first step is to make sure you have a robust system whereby students know they can transfer somewhere else if they are not succeeding, or if they drop out, they can either return or transfer somewhere else if they need to. Amendment 100 deals with a lot of those issues, but the Government have slightly let us down here—I say “slightly” because I very much support what they are trying to do. New subsection (1)(a) says that the Office for Students “must monitor the availability”, while new subsection (1)(b) says that it,
“must include in its annual report a summary of conclusions drawn … for the financial year”.
But when it comes to the vital part—ensuring that universities have robust systems in place to enable students to arrange transfers—the amendment brings in the word “may”. New subsection (1)(c) says that the OfS,
“may facilitate, encourage, or promote awareness”.
Your Lordships know full well what “may” means—it basically means you do not have to do it. That is the problem with this.
The previous Labour Government, in 2009, brought in some similar regulations, which were advisory. The current Government, to their credit, did a piece of research in summer last year on what was happening with student transfer in various universities. I read the results, which were published in December, and they were hugely disappointing. It is not this Government’s fault, the previous Government’s fault or the previous Labour Government’s fault. The reality is that this is not taken seriously by most universities. I have the most enormous regard for the noble Baroness, Lady Wolf, but we had a slight spat in Committee when I said that the Russell group universities were the worst offenders. I stick by that, although in actual fact I do not know. She took me to task, but the reality is that she does not know either, as they do not publish anything to back up the case.
Through Amendment 100A, I want to change the word “may” to “must”, so that the Office for Students must facilitate, must encourage and must promote awareness of the provision of arrangements. Universities would then have to have a system, because that system would be reported back to the OfS and would appear in the annual report. It is a very simple change. I am sure that the Minister, in his wisdom and in his love and affection for all that is happening in the higher education system, will agree to this very small amendment, which would make a huge difference to the very significant number of students who, for whatever reason, drop out. We want them back.
My Lords, I support my noble friend’s amendment for all the good reasons that he has given. In addition, given that the Government are making provision for some providers to fail, it is important that measures are in place for students to have records of the credits they have accumulated from their studies, so that they are best placed to find an alternative provider without going back to the start and can get credit for partial awards they have achieved. I know that even in the days of the polytechnics, with their single validator, the CNAA, it was not always straightforward for students to take their credits from one polytechnic to the other; with different and varied providers, it will be even less straightforward. It is a time-consuming process, as providers need to be able to match the credits from an organisation to bring them across into their own systems. But it is still well worth doing, and the Bill could help by making it mandatory for institutions to set up systems to,
“facilitate, encourage, or promote awareness of … arrangements … for student transfers”.
Changing this one word, “may” to “must”, should enable that to happen.
My Lords, I understand the reason for this amendment but am not sure that it is appropriate, because it is the Office for Students that would do the “musting”—if I can call it that—but the arrangements have to come from the higher education providers, which are dealt with by new paragraphs (a) and (b). The OfS finds out exactly what is going on and reports it. That may put pressure on individual providers to get along with arrangements. You cannot facilitate an arrangement unless the people wanting to make it are willing. There is also the problem with time when it comes to facilitating, encouraging or promoting awareness. In due course, the thing will become known, but the amendment is saying it must be done all the time—it is a continuing obligation. In the circumstances of this clause, “may” is the better word for this part of the arrangement.
My Lords, this is quite a complicated matter for higher education providers—as I have learned to call them—as the reasons why students come to a halt on their journey are very varied. Sometimes, they are not really committed to continuing, sometimes they are not really able to continue on the course, and sometimes there is another course with slightly different requirements to which they would be very well suited. It has to be a very hands-on process, and does not always go successfully, but nor would it even with this amendment.
One has to be very careful. In my experience, academic staff and the student counselling services have a great deal to do when an individual student hits one of these vicissitudes, and the process is not always successful. But we should also remember that in countries where they ostensibly have more of a credit transfer system than we have ever managed to achieve here, you cannot say, “Oh, I am not really enjoying my course here; I would prefer to be on that course there”. The process will be extremely difficult and very expensive for the institutions. On balance, “must” facilitate may not, for those additional reasons, be quite the verb that we want here.
My Lords, the Government take the views of the noble Lord, Lord Willis, on student transfer very seriously, and I have appreciated the short discussions I have had with him. This is why, as we discussed on Monday, we have proposed Amendments 100, 139 and 141. I appreciate the warm words expressed on our amendments by the noble Lord, albeit they were perhaps rather lukewarm on Amendment 100.
The new clause will place a duty on the OfS to monitor arrangements put in place by registered higher education providers to enable students to transfer within or between providers and monitor the take-up of those arrangements. Furthermore, the OfS will have a duty to report annually on its findings. As my noble and learned friend Lord Mackay said, the government amendment will also enable the OfS to facilitate, encourage or promote awareness of arrangements for student transfer, so that the OfS can help ensure students understand the options for changing course or institution and so that best practice is promoted among higher education providers.
I thank the noble Lord, Lord Willis, for his Amendment 100A, which reflects the importance he attaches to this issue. It is well intentioned, and we have genuinely considered it. However, given the Government’s assessment of the evidence of barriers to student transfer, it is not desirable to adopt the amendment, some of the reasons for which were put rather eloquently by the noble Baroness, Lady O’Neill. Such an approach would reduce the flexibility available to the OfS as it develops its understanding, particularly through its monitoring, and could be overprescriptive, burdensome and interfere with institutions’ autonomy.
The government amendment will achieve our shared aims without interfering with or overly mandating how the OfS responds to its findings on student transfer, so, with respect, I ask the noble Lord to withdraw his amendment.
My Lords, I thank noble Lords who have spoken in this brief debate. It was certainly worth raising the issue. In particular, I thank my noble friend Lady Garden for her support. I never like to disagree with the noble and learned Lord, Lord Mackay, because he is usually right on this matter. The reason I wanted a “must” is that otherwise, this issue will go into the long grass. I hope I am wrong and that the Office for Students, when it reports, will be able to keep a close eye on what is happening. That will be the real test.
I listened with interest to the comments of the noble Baroness, Lady O’Neill. Again, I was disappointed, because I value her comments enormously. It saddens me that we are unable in this country to adopt what we see working incredibly well in the States, particularly with community colleges, where with sufficient credits students can move to Ivy League universities where they show real talent. We seem to have a silo-based higher education system, and this was an attempt to move away from that and ensure that all learning gained in higher education systems can be accredited and used as a credit for further learning. With those few comments, I thank the House for listening, and I beg leave to withdraw the amendment.
Amendment 100A (to Amendment 100) withdrawn.
Amendment 100 agreed.
Clause 38: Financial support for registered higher education providers
101: Clause 38, page 22, line 11, leave out “or by another eligible higher education provider”
My Lords, these minor and technical amendments simply clarify the drafting of the Bill; they ensure that it is consistent across the board and refine the consequential amendments relating to HEFCE ceasing to exist. Essentially, they tidy up the Bill. I would be happy to explain any of them, should noble Lords so require. I beg to move.
Amendment 101 agreed.
102: Clause 38, page 22, line 14, leave out “or by another eligible higher education provider,”
Amendment 102 agreed.
Amendment 103 had been withdrawn from the Marshalled List.
Clause 41: Authorisation to grant degrees etc
104: Clause 41, page 24, line 11, leave out paragraph (a)
My Lords, this is a very small amendment and I rather hope that it is a tidying-up amendment that the Government will go away and decide to agree. At the moment, as part of the general rethinking of the sector, it is possible for institutions to apply for just bachelor-level degree-awarding powers, bachelor’s and master’s or bachelor’s and research, but one group is regrettably shrinking in size: foundation degrees. That is important because, in another part of the woods, we are trying to rethink and redevelop tertiary education, and foundation degrees are a sub-degree level to which there is a lot of business and employer input.
By what is to me is a strange quirk, although the Minister may be able to explain it, the only people who can have foundation degree-only powers are FE colleges. I cannot see why other institutions should not also in certain circumstances have those powers. My amendment would simply delete that restrictive clause and leave it to the OfS to give foundation degree-only awarding powers to any institution where that seems appropriate. I beg to move.
My Lords, I am grateful to the noble Baroness for her explanation. She tried to link it with the amendments I just moved and put it in the same category as tidying up. Hers is a more substantial proposition than those that I just put to the House. I agree with the noble Baroness that foundation degrees are important and can be—indeed, are—awarded by a wide range of institutions, which includes but is not limited to the FE sector.
Under the Bill, subject to meeting registration conditions, institutions that provide higher education will be able to apply for TDAPs—taught degree-awarding powers. That is a broad suite of powers that includes the ability to grant foundation degrees. The ability to apply for the powers to award only a foundation degree was always intended as specifically relevant to the FE sector, and it has never been the Government’s intention to change this position under the Bill. The sector is defined by reference to Section 91(3) of the Further and Higher Education Act 1992 and includes further education corporations and sixth-form colleges.
We are mindful of the fact that the landscape has changed since foundation degree-awarding powers were first introduced almost a decade ago—in particular, with the introduction of providers such as institutes of technology or national colleges. On institutes of technology, it is envisaged that existing FE colleges or higher education providers will be part of the consortium that is the IoT, and they will be involved in the provision of higher education. Given that involvement, we do not envisage any impediment towards the ability of such providers to deliver courses leading to foundation degrees, should they wish so to do. Against that background, I hope that the noble Baroness will be minded to withdraw her amendment.
I have to say that I do not find the answer satisfactory, because I still do not see why, in that case, one still has a foundation degree-only awarding power in the mix at all. I continue to feel that it is odd to bar the possibility of something which might be useful in this changing landscape. Nothing here says that you have to do it.
However, I accept that the Government are not minded to do this, at least on this occasion. I very much hope that they might think about it some more. On that basis, I beg leave to withdraw the amendment.
Amendment 104 withdrawn.
105: Clause 41, page 25, line 2, at end insert—
“( ) See sections 42, 43 and (Grant, variation or revocation of authorisation: advice on quality etc) which make further provision about orders under subsection (1).”
Amendment 105 agreed.
Amendment 106 had been withdrawn from the Marshalled List.
Clause 43: Variation or revocation of section 41 authorisation
107: Clause 43, page 25, line 30, at end insert—
“( ) The OfS may make such an order revoking an authorisation given to a provider only if condition A, B or C is satisfied.”
My Lords, we have always been clear that the OfS’s powers to revoke degree-awarding powers or university title would be used only as a last resort. However, we heard concerns both in this Chamber and from the Delegated Powers Committee that the Bill is not clear enough in limiting the OfS’s powers in this area. The concern was that it would leave it wholly to the discretion of the OfS when and in what circumstances the powers should be exercised. We have listened to these concerns and responded. We are introducing further, strong safeguards, setting out in precisely which circumstances the OfS can revoke degree-awarding powers or university title.
I will keep my remarks relatively brief, and I am pleased to see that the amendments have support from the noble Lord, Lord Stevenson. Put simply, the amendments carry forward the position that DAPs and university title holders should normally be registered, and allow for DAPs to be revoked where there are serious quality concerns, and for university title to be revoked where all DAPs, other than the ability to grant foundation degrees, have been lost. As we discussed earlier, if the OfS wants to revoke DAPs on grounds of quality, it would need to seek advice from the designated quality body.
Additionally, condition C in Clauses 43, 44 and 54 relates to changes in circumstances, which covers sales, mergers or similar structural changes. This reflects current policy, where eligibility for DAPs and university title is reviewed following such changes.
Currently, providers need to demonstrate that they continue to be the same institution that was granted DAPs originally—and are therefore competent to continue to award degrees—and that they can still meet all university title criteria. If providers fall short of such requirements, so that there are serious concerns around quality, the OfS will be able to revoke DAPs. University title could also be lost.
I turn to government Amendments 195, 196 and 199, and the subject of royal charters. Let me briefly address our amendments, which are closely related to revocation. We have always said that the power of the Secretary of State to make consequential changes to a royal charter under Clause 112 is not intended to be used to revoke an entire charter. Our amendments now make this clear in legislation, which I hope will provide further reassurance that we do not seek to unduly interfere with the autonomy of institutions. I now invite other noble Lords to speak should they wish.
My Lords, my right reverend friend the Bishop of Winchester is unable to be in his place this evening, but I bring before your Lordships his Amendment 119A. I am grateful to the Minister for the constructive discussions we have had with him and his officials, and for co-sponsoring this amendment.
One of the features of the rich diversity of higher education provision is the power exercised by the Archbishop of Canterbury to confer degrees under the Ecclesiastical Licences Act 1533. It may help your Lordships to briefly recapitulate the background to this power. Lambeth degrees, as they are often colloquially termed, are now issued in one of two distinct ways.
The first of these 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. This provision is already registered with HEFCE, and students following these programmes have access to the Office of the Independent Adjudicator, while the standards which apply are those which accord with the requirements of the QAA.
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. It enables those who may not otherwise be able to study for an English degree in any other way to do so. In particular, it opens up such opportunities to students across the Anglican Communion and makes a significant contribution to the development of further and higher education when those students return home.
The second route is the awarding of higher degrees—they are 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. Indeed, Members of your Lordships’ House have received such degrees, among them the noble Lord, Lord Sacks.
Although this is perhaps a less familiar part of the higher education landscape than some your Lordships have been considering, it is by no means merely a historical curiosity. These powers have been in active use ever since the passage of the 1533 Act and were recognised following the Education Reform Act 1988, by means of the inclusion of the Archbishop of Canterbury in the list of approved degree-awarding bodies in the relevant statutory instrument. Should your Lordships be eager for the reference, it is the Education (Recognised Bodies) Order 1988, No. 2036. These powers were left unaltered by the Further and Higher Education Act 1992.
The amendment ensures two things. First, it ensures that the Archbishop’s degree-awarding powers are appropriately safeguarded, both for those degrees conferred as a result of the submission of a thesis or the successful sitting of an examination or other form of academic assessment, and for degrees conferred on those who warrant an academic award for their scholarly or intellectual contribution to the work of the Church or to the place of faith in society. Secondly, the amendment properly brings within the new regulatory framework those awards—via the AET—which will now fall under the oversight of the Office for Students.
My Lords, I briefly express our support, as shown by the fact that we have signed up to those amendments on revoking degree-awarding powers, introduced by the Minister. We had a good discussion of this in Committee, and it was an area of concern to many noble Lords. We had thought of tabling an amendment to try to pick up on a couple of areas that seemed unresolved. However, after discussion and reflection with both the Bill team and the Minister we were able to sign up to the group and we are therefore happy with what is now before us.
We are also pleased that the amendment in the name of the right reverend Prelate the Bishop of Winchester has been accepted by the Government. We have all had trouble when we have had to address right reverend Prelates in their place, and the idea that we also have to stumble over the words “holder of degree-awarding powers” when referring to the most reverend Primate the Archbishop of Canterbury is another thought that will make it even more difficult to engage with them in future. We are very pleased that the Archbishop has these powers and, since 1533, an unbroken record of awards of degrees that we will recognise in future through this legislative process.
There is only one question left in my mind. The Government have been very good in bringing forward Amendment 196, which records in the Act that no provision of the Bill may be used to revoke an institution’s royal charter—with the rather weasel words—“in its entirety”. It does not mean to say that the Government will not revoke parts of the royal charter. I do not expect a response today, but perhaps the Minister might write to us with some examples of how that power might be used in future. I ask the slightly deeper question: since we are now fully aware of the powers of the Privy Council—which seem to include the ability to go and get from Her Majesty the Queen in Council changes to any royal charter, including that of the BBC, without much publicity ever occurring—why on earth have the Government decided to put this forward in the Bill at all? I would be very interested to receive that answer. With that slight aside, I am happy to support the amendments.
My Lords, first, I will be happy to write a letter to the noble Lord, Lord Stevenson, which I hope on this occasion will be a short one, to clarify some aspects of our Amendment 196.
I want to make some very brief remarks on Amendment 119A, tabled by the right reverend Prelate the Bishop of Winchester, and spoken to by the right reverend Prelate the Bishop of Oxford, which we fully support. We fully recognise the unique position that the most reverend Primate the Archbishop of Canterbury is in when he awards degrees to those who have served the Church. We agree that the Archbishop’s ability to award such degrees, which do not require a course of study, supervised research or assessment, should be left untouched by the OfS. This amendment achieves this, while being clear that any taught or research degrees awarded in the usual manner—for example, following a course of study as part of the Archbishop’s Examination in Theology—will remain covered by the Bill.
I am pleased with the progress we have made on these matters. With these amendments added, it leaves the Bill in very good shape by giving the OfS the powers it needs while being crystal clear that these are underpinned by strong safeguards. It strikes the right balance between institutional autonomy and protecting students, and the quality and reputation of our HE sector.
Amendment 107 agreed.
Amendments 108 to 110
108: Clause 43, page 25, line 31, leave out from beginning to “if” and insert “Condition A is satisfied”
109: Clause 43, page 25, line 32, at end insert—
“(4) Condition B is satisfied if—(a) the OfS has concerns regarding the quality of, or the standards applied to, higher education which has been or is being provided by the provider, and(b) it appears to the OfS that those concerns are so serious that—(i) its powers by a further order under section 41(1) to vary the authorisation are insufficient to deal with the concerns (whether or not they have been exercised in relation to the provider), and(ii) it is appropriate to revoke the authorisation.(5) Condition C is satisfied if—(a) due to a change in circumstances since the authorisation was given, the OfS has concerns regarding the quality of, or the standards applied to, higher education which will be provided by the provider, and(b) it appears to the OfS that those concerns are so serious that—(i) its powers by a further order under section 41(1) to vary the authorisation are insufficient to deal with the concerns (whether or not they have been exercised in relation to the provider), and(ii) it is appropriate to revoke the authorisation.(6) Where there are one or more sector-recognised standards, for the purposes of subsections (4)(a) and (5)(a)— (a) the OfS’s concerns regarding the standards applied must be concerns regarding the standards applied in respect of matters for which there are sector-recognised standards, and(b) those concerns must be regarding those standards as assessed against sector-recognised standards.”
110: Clause 43, page 25, line 32, at end insert—
“( ) See sections (Grant, variation or revocation of authorisation: advice on quality etc) and 45 which make further provision about further orders under section 41 (1).”
Amendments 108 to 110 agreed.
Clause 44: Variation or revocation of other authorisations to grant degrees etc
Amendments 111 to 115
111: Clause 44, page 25, line 35, leave out “or an English further education provider”
112: Clause 44, page 26, line 8, at end insert—
“( ) The OfS may make an order under subsection (1) revoking an authorisation given to a provider only if condition A, B or C is satisfied.”
113: Clause 44, page 26, line 9, leave out from beginning to “if” in line 10 and insert “Condition A is satisfied”
114: Clause 44, page 26, line 10, at end insert—
“(5A) Condition B is satisfied if—(a) the OfS has concerns regarding the quality of, or the standards applied to, higher education which has been or is being provided by the provider, and(b) it appears to the OfS that those concerns are so serious that—(i) its powers by an order under subsection (1) to vary the authorisation are insufficient to deal with the concerns (whether or not they have been exercised in relation to the provider), and(ii) it is appropriate to revoke the authorisation.(5B) Condition C is satisfied if—(a) due to a change in circumstances since the authorisation was given, the OfS has concerns regarding the quality of, or the standards applied to, higher education which will be provided by the provider, and(b) it appears to the OfS that those concerns are so serious that—(i) its powers by an order under subsection (1) to vary the authorisation are insufficient to deal with the concerns (whether or not they have been exercised in relation to the provider), and(ii) it is appropriate to revoke the authorisation.(5C) Where there are one or more sector-recognised standards, for the purposes of subsections (5A)(a) and (5B)(a)—(a) the OfS’s concerns regarding the standards applied must be concerns regarding the standards applied in respect of matters for which there are sector-recognised standards, and(b) those concerns must be regarding those standards as assessed against sector-recognised standards.”
115: Clause 44, page 26, line 18, at end insert—
“( ) See sections (Grant, variation or revocation of authorisation: advice on quality etc) and 45 which make further provision about orders under subsection (1).”
Amendments 111 to 115 agreed.
116: After Clause 44, insert the following new Clause—
“Grant, variation or revocation of authorisation: advice on quality etc
(1) The OfS must request advice from the relevant body regarding the quality of, or the standards applied to, higher education provided by a provider before making— (a) an order under section 41(1) authorising the provider to grant taught awards or research awards,(b) a further order under section 41(1)—(i) varying an authorisation given to the provider by a previous order under section 41(1), or(ii) revoking such an authorisation on the ground that condition B in section 43(4) is satisfied, or(c) an order under section 44(1)—(i) varying an authorisation given to the provider, as described in that provision, to grant taught awards or research awards, or(ii) revoking such an authorisation on the ground that condition B in section 44(5A) is satisfied.(2) In this section “the relevant body” means—(a) the designated assessment body, or(b) if there is no such body, a committee which the OfS must establish under paragraph 8 of Schedule 1 for the purpose of performing the functions of the relevant body under this section.(3) Where the OfS requests advice under subsection (1), the relevant body must provide it.(4) The advice provided by the relevant body must be informed by the views of persons who (between them) have experience of—(a) providing higher education on behalf of, or being responsible for the provision of higher education by—(i) an English higher education provider which is neither authorised to grant taught awards nor authorised to grant research awards,(ii) an English further education provider, and(iii) an English higher education provider which is within neither sub-paragraph (i) nor sub-paragraph (ii),(b) representing or promoting the interests of individual students, or students generally, on higher education courses provided by higher education providers,(c) employing graduates of higher education courses provided by higher education providers,(d) research into science, technology, humanities or new ideas, and(e) encouraging competition in industry or another sector of society.(5) Where the order authorises the provider to grant research awards or varies or revokes such an authorisation, the advice provided by the relevant body must also be informed by the views of UKRI.(6) Subsections (4) and (5) do not prevent the advice given by the relevant body also being informed by the views of others.(7) The OfS must have regard to advice provided to it by the relevant body under subsection (3) in deciding whether to make the order. (8) But that does not prevent the OfS having regard to advice from others regarding quality or standards.(9) Where the order varies or revokes an authorisation, the advice under subsection (1) may be requested before or after the governing body of the provider is notified under section 45 of the OfS’s intention to make the order.(10) Where there are one or more sector-recognised standards, for the purposes subsections (1) and (8)—(a) the advice regarding the standards applied must be advice regarding the standards applied in respect of matters for which there are sector-recognised standards, and (b) that advice must be regarding those standards as assessed against sector-recognised standards.(11) In this section—“designated assessment body” means a body for the time being designated under Schedule 4;“humanities” and “science” have the same meaning as in Part 3 (see section 107).”
116A: After Clause 44, at end insert—
“( ) The OfS must not authorise a provider unless—(a) the provider has been established for a minimum of four years with satisfactory validation arrangements in place, or(b) the Quality Assessment Committee is assured that the provider is fully able to maintain the required standard expected for the granting of a United Kingdom degree for the duration of the authorisation, and may therefore be authorised to grant taught awards or research awards or both, and has reported to the Secretary of State; andthe OfS is assured that the provider operated in the public interest and in the interest of students.( ) In this section the “Quality Assessment Committee” is the Committee established under section 25 and “validation arrangements” has the same meaning as in section 47(4).”
My Lords, I listened carefully to the Minister’s response on this and I have to say that I was rather disappointed. I was very pleased with the government amendment, to which I put my name, but I feel that, as part of thinking hard about how new providers enter the system in the decades ahead, we have to be aware of the fact that, although there is enormous promise, there are also enormous threats. I am rather taken aback by how many new providers we have.
Looking at the fact sheet on degree-awarding powers, I note that there is an intention to reduce the typical amount of time before a track record is approved as adequate in validation to three years rather than the existing four, which is not a good idea. If completely new institutions are going to go straight to having degree-awarding powers, I reiterate the importance of being absolutely sure that it is a special type of institution, that it is well established and that there is a good reason for this. It is worth remembering that we have now, around the world, a large number of cases of institutions that have gone through apparently quite thorough regulatory oversight and have still failed—in large numbers in the United States.
I accept that the Secretary of State has set up a regulator, which will be independent, and clearly I do not think that he or she should involve themselves in every decision. However, this is a very important part of our higher education system and our reputation. If we are creating brand new institutions that can go forth and give degrees straight away, and which therefore often carry the rather strange term of having “probationary” degree-awarding powers, this ought to go right up to the top. In the next few years we will have a new and, I hope, exemplary regulator with a very well-known and highly respected chairman. However, the reality is that regulators are subject to regulatory capture and, as time goes on—particularly if we have the volume of new entrants coming through that the Government would like—there will be real risks.
For that reason, as well as because I would like to encourage the Secretary of State to be involved in this and to think actively about where something really exciting can occur and should be given support, the suggestion in our amendment that on that route the Secretary of State should have some involvement remains a good one. Therefore, rather sadly, I would like to test the opinion of the House on this.
Amendment 116, as amended, agreed.
Clause 46: Appeals against variation or revocation of authorisation
117: Clause 46, page 27, line 24, leave out from “appeal” to end of line 27 and insert “shall be on the grounds that the decision was wrong.”
My Lords, I declare my interests as the commissary for the University of Cambridge and a visiting professor at King’s College London. I regard Amendment 123 as consequential on Amendment 117. The amendment arises in the context of what was described just a few minutes ago as the last-resort power, granted by Clauses 44 and 54 of the Bill. The OfS has power to revoke the authority of a university to grant degrees and to deprive the university of the name and title “university”. They are, either or both, processes that would destroy the university in question.
The Bill envisages an appeal process but, certainly in relation to these powers—in my respectful submission, destructive powers—it would be depressingly inadequate. The objective of Clause 46, and Clause 56 as amended, is to provide an appropriate remedy for such a destructive power. A remedy is provided in the Bill: a form of judicial review. I am not sure that many in this House will often hear a former judge deride a remedy by way of judicial review, and I am not deriding it—I am saying that it is not good enough, because a judicial review has limitations. It provides for an assessment of the process for correcting errors, but it is not, and never has been, a remedy that enables the merits, or otherwise, of a particular case and decision to be considered. In other words, it does not provide for a full appeal from the decision—rather a review of the way in which the decision was reached.
My argument is very simple: that simply will not do here. You cannot win a judicial review, and the grounds provided in the present Bill do not enable you to provide an argument based on this simple proposition that the decision was wrong—that’s it—and it should. A step of this kind, which can lead to the destruction of a university, is so serious that the university should be entitled to go to the First-tier Tribunal with the simple argument, “This is not good enough. Your judgment is wrong. You have made a premature decision. You have made a decision that is too severe”. None of those arguments is encapsulated in the present basis for appeal that is provided.
A university can argue that the decision was wrong in law, but that is not much of a concession, since being wrong in law is being wrong in law. It can argue that the decision was unreasonable, but unreasonable does not mean wrong. Two perfectly reasonable people can disagree. Both would be reasonable; neither would be unreasonable. To be unreasonable in the law—and I hope that I shall be excused for using this sort of language—you have to be able to show that the decision was batty, which is not quite what we have in mind here. As to the facts, that does not help very much, because what matters is the inference that you draw from the facts, and subsection (2)(c) of this clause, listing the present grounds, underlines how limited the basis of appeal would be.
The argument is that we are dealing with the issue of last resort—the final destruction of a university and an institution’s ability to grant degrees—and we are saying that, at best, you are entitled to a judicial review. I speak of course in the context of the university, but it is just worth bearing in mind that we are also talking about something that affects the students at that university as well as the staff and those who have left that university, particularly those who have left it in the last few years, on whose CV there appears a first class honours degree from X failed university. From their point of view, it would be just as catastrophic as it would be for the university itself.
Finally, we must hope that these powers will never be used and that the issue will never arise for decision. If it does arise, it will be a very rare occasion. If what we are considering is an issue of this importance, which will, one hopes, occur only very rarely, we must make a proper remedy. I beg to move.
I will speak very briefly to lend support in as full a measure as I may to this proposed amendment. I echo everything that was said by the noble and learned Lord. The contrast between what is provided for in Clause 46(2) and what his amendment strives for—a full merits appeal—is as well illustrated in the language of Clause 46(2)(b) as in any other way, because for this purpose you have to show that the decision was “wrong in law”. If the Bill had wanted to say that it was wrong in law or in fact—just wrong—it could have said so. That is what is now proposed. Judicial review is simply not a sufficient basis of appeal for decisions as fundamentally and crucially important to the future of the institution and those who are affected by it as is required.
My Lords, I support the amendment. As I understand the structure of the Bill, it restricts the appeal that a university or higher education provider would have to call in question the decision to destroy it. As my noble and learned friend Lord Judge said, destruction of a university involves a lot of people apart from the university, but it deals with the university in the most destructive way possible. Therefore, it seems to me that a full appeal is the least that could be expected. The jurisdiction is to a tribunal—a First-tier Tribunal—not to the High Court. My noble and learned friend’s amendment accepts that but says that full examination of the merits must be allowed. The only way in which that can be done is to do what my noble and learned friend suggested. It is abundantly plain that this must be right.
My Lords, they used to say that real tennis was the game of kings. I suspect that the game of Parliament is listening to noble and learned Lords tearing into a piece of badly drafted legislation. We have enjoyed that very much. I will add one point and make a concluding comment. Clause 46 is the first of two. I hope that the noble and learned Lord will accept that Amendment 123 to Clause 56 is consequential as it deals with exactly the same matter as Amendment 117. We do not wish to encourage noble Lords to repeat themselves—although that would be much more fun. Secondly, we were not able to sign up to this amendment because when it was tabled it was immediately snapped up by others. Therefore, we were not able to express our public opinion of it. However, should the noble and learned Lord wish to test the opinion of the House, we will support him.
My Lords, looking at the names on this amendment, it is certainly a gold star amendment, to use the language of the OfS. When I looked at it, I was relieved to see that the name of my noble and learned friend Lord Mackay was not on it. Therefore, I was somewhat disappointed when he rose to his feet to lend his formidable support to the amendment.
I can see that these amendments stem from concerns that there need to be appropriate safeguards and checks on the OfS’s powers under Clauses 43, 44 and 54. We fully agree and have listened to the concerns expressed in Committee. As a result, we have tabled two sets of amendments. First, there is Amendment 116 after Clause 44 and related amendments, which we have just discussed in an earlier debate. These ensure that the OfS must seek expert advice before granting degree-awarding powers or varying or revoking them on quality grounds. Secondly, there are amendments to Clauses 43, 44 and 54, which we have just debated in the group with Amendment 107. These amendments clearly set out the limited set of circumstances where the powers of revocation can be used, such as in cases of serious quality concerns. These further strengthen already very robust safeguards, including statutory processes guaranteeing providers the opportunity to make representations and a right of appeal. By the way, there is nothing in the Bill to prevent further appeals to higher courts.
Noble Lords also suggested in Committee an annual report on how the OfS exercises its powers of revocation under Clauses 43, 44 and 54. I accept that this is a good idea and would contribute to greater transparency. I can therefore tell noble Lords that in respect of each year where the OfS has made use of its powers to revoke degree-awarding powers or university title, we will ensure that a report be laid before Parliament that includes information on how the powers have been used.
Turning turn specifically to the amendment, the grounds for appeal in Clauses 46 and 56 have been carefully chosen and are largely based on what a judicial review would take into account. Despite the noble and learned Lord’s disparaging remarks about judicial review, it is the way in which public bodies are held accountable. These are sensible and appropriate grounds which balance the need for a regulator to make robust and confident decisions using its unique expertise with the need to hold that regulator to account where it makes decisions that are not within the reasonable scope of its powers. The Bill as drafted achieves that balance.
An appeal can be brought on three grounds, as the noble and learned Lord outlined. The first is that the decision was based on an error of fact. This means that if the OfS based its decision on wrong or incomplete facts, it can be overturned by the tribunal. The second ground is that a decision was wrong in law. We have specified in our amendments, to which I referred a moment ago, exactly when the OfS can revoke degree-awarding powers and/or university title, and how it has to go about it. For example, if the OfS decided to take the step of revocation outside the circumstances we have now specified in the Bill, its decision could be overturned by the First-tier Tribunal. Likewise, Clauses 45 and 55 provide that the OfS must have regard to representations made. If it did not do so, this could amount to being wrong in law and would therefore be grounds for appeal. Lastly, an appeal can be brought on the grounds that the decision was unreasonable. A provider could appeal against the OfS on the basis that its decision was unreasonable, having regard to the facts of its case.
Those grounds for appeal are complemented by strong procedural safeguards, which, again, are clearly set out in the Bill. These ensure that any decision made by the OfS must be legally correct and factually accurate and reflect a reasonable judgment, the OfS having carefully considered the available facts and applied its expertise according to the law. That is a very high standard to which the Bill holds the OfS to account.
By contrast, there are real risks in taking the route mapped by these amendments. They propose a more general and much less clean-cut ground of appeal—namely, that an appeal may be brought when the decision of the OfS is “wrong”, as explained by the noble and learned Lord. That is far less certain for the provider, for the regulator and indeed for the tribunal. It would also expand the range of cases that could go to appeal. What is “right” from one angle might always be seen as “wrong” from another. For example, will a provider that has its degree-awarding powers revoked on entirely justifiable grounds ever see that as anything other than “wrong”? Surely that provider should not have an automatic right of appeal, with all the delay, uncertainty and cost that that involves. The amendment would appear to allow that, as the balanced limitations of factual and legal accuracy and reasonableness would have been dispensed with.
Furthermore, the amendment would require the court to decide whether it agreed with the expert judgment reached by the OfS. Such an exercise would allow—indeed, it would require—a tribunal to put itself in the regulator’s shoes and then substitute its judgment for that of the OfS. I have to ask whether that is really the right place for the tribunal to be—asserting expertise in higher education rather than, in a more focused way, looking at lawfulness, factual accuracy and reasonableness. I respectfully suggest that it is not. Changing the grounds of appeal in this way would risk creating a process whereby the tribunals, rather than the OfS, regulated the HE sector. That is a powerful argument which noble Lords have so far not addressed.
I do not believe that the amendments are the right way to go—although they are well meant, I do not think they will take us in the right direction. Therefore, with respect, I ask the noble and learned Lord, Lord Judge, to withdraw his amendment.
Is the noble Lord able, with the resources at his disposal, to give any examples of this formula being used in the case of other regulators? We are contemplating a process that challenges a decision taken by a regulator, so it would be helpful to know whether this is the normal pattern or whether the suggestion of the noble and learned Lord, Lord Judge, is the normal pattern.
My Lords, we have just heard an utterly reasonable argument but, with great respect, it is wrong, and that is the issue the amendment is intended to address. Reasonable decisions may be wrong. Looking at this issue in depth, one hopes that the power will never have to be exercised. However, if it is, it will be an extraordinary power wielded by the OfS and it will not be open to the university in question to say, “We agree. All your facts are well set out but you have reached the wrong conclusion”. That seems to be a ground of appeal that ought to be available.
We need not worry that amending the clause in the way we have respectfully suggested will lead to a huge torrent of cases. We hope that there will be no case at all but, if it arises, the straightforward way to go about it will be to say to the tribunal, “We are arguing that this was wrong”. The tribunal is well able to assimilate the reasons why the OfS reached the decision it did, and will hear argument on behalf of the university. I propose to ask for the opinion of the House.
Clause 47: Validation by authorised providers
117A: Clause 47, page 28, line 17, at end insert—
“(5A) The governing body of a provider involved in such commissioning arrangements may appeal to the First-tier Tribunal in respect of either the conditions specified by the OfS under section 47(2) or the validation arrangements made by the first provider (as defined in section 47(4)).(5B) The grounds and procedures for any appeal made under (5A) are those specified in section 46.”
My Lords, I will not say that this is a tidying-up amendment, having been quite rightly told off about that, but it is meant to bring things into line and make sure that everyone in this emerging landscape of higher education is able to operate with confidence, knowing that if things are going wrong they have a route of appeal.
The amendment addresses validation, an area that Ministers are concerned about because they consider it to be fraught with problems for new providers. It is an area where new and innovative providers are encountering difficulties. There has been for a long time a difference of opinion about how major an issue this is. What the amendment sets out to do is state clearly that, if a commissioning arrangement involving the validation of a new provider by an existing provider goes wrong, there should be a means by which to appeal.
The Bill gives the OfS powers which, curiously enough, no one as far as I know has challenged during our long and slow progress. We seem to have had amendments to almost every clause, but not to this one. I think it is recognised that, if we are going to try to make it easier for good, new innovative providers to come in, there should be an active role for the Office for Students in that. It may wish to ensure that one provider can work with another institution, validate its degrees and help it to mature, and it has the power to do so. In the same way, there are existing powers for two institutions to get in touch with each other and go through validation. While I know that this is a major issue of concern for the Government, it is also true to say that the Competition and Markets Authority does not think that this is an area where there is a real problem with the market.
However, the relationship is not always easy, so the purpose of my amendment is simply to make sure that if things go wrong where a provider is involved in a commissioning arrangement of this sort, where one institution is the potential validator of degrees and another institution hopes to have its degrees validated if they are good enough, there is a clearly marked out route of appeal to the First-tier Tribunal. That is what this amendment sets out to introduce into the Bill. On that basis, I hope that the Government will see this as something which would ensure that everyone has a route of appeal and that they will consider it seriously. I beg to move.
My Lords, I did not understand why this provision is in the Bill. I was rather surprised when I first saw it, and when I raised the point at a meeting, those promoting the Bill seemed to be almost equally surprised. However, I have now found out exactly what it is for. It is intended to deal with situations where someone has gained a degree through various nefarious practices and that is discovered. Once you understand that, it is quite normal and certainly not unexpected that the same provision should apply to other arrangements. However, this is a special one for this particular situation. I am happy with the explanation and I shall not press my amendment.