Motion to Approve
That the draft Regulations laid before the House on 4 December 2017 be approved and that this House takes note of the Higher Education and Research Act 2017 (Transitory Provisions) Regulations 2017 (SI 2017/1145); of the Higher Education (Fee Limit Condition) (England) Regulations 2017 (SI 2017/1189); and of the Office for Students (Register of English Higher Education Providers) Regulations 2017 (SI 2017/1196).
Relevant document: 14th Report from the Secondary Legislation Scrutiny Committee
My Lords, this marks a particular moment in this House. Following Royal Assent of the Higher Education and Research Act in 2017, the regulations to be discussed here today will bring forward the Government’s historic reforms to the higher education sector.
I start by thanking the noble Lords of the Secondary Legislation Scrutiny Committee for their scrutiny of the HERA regulations laid before this House in December and detailed in the 14th report from the Secondary Legislation Scrutiny Committee.
My purpose here today is to speak to the draft access and participation regulations that require approval. They support our aim that anyone with the talent and potential to benefit from higher education should be able to do so. We have made good progress on this. The latest UCAS data shows that in 2017 disadvantaged 18 year-olds were 50% more likely to enter full-time higher education than in 2009. In addition, 18 year-olds were more likely to enter full-time higher education than ever before. We know, however, that there is more to do. For example, the number of mature students entering higher education has declined and certain ethnic groups are not achieving the outcomes that we would expect given levels of prior attainment. Government will shortly be setting out its priorities for access and participation through guidance to the Office for Students.
Through the implementation of the HERA, we want to make further progress on access and participation. The Office for Students was established on 1 January as the new regulator for higher education. The OfS brings together the previous responsibilities of the Director of Fair Access and the Higher Education Funding Council for England, which everyone knows as HEFCE. This will enable a strategic focus on access and participation activities. It will, for example, allow greater co-ordination of government funding to widen participation with the money that providers spend through their access and participation plans. This should ensure a greater impact on the ground.
The access and participation plan framework set out in HERA builds on existing arrangements for access agreements. These arrangements acknowledge institutional autonomy—one of the hallmarks of our world-class higher education system. Under HERA, the OfS has a duty to protect academic freedom, including with regard to admissions. This is the same arrangement as the Director of Fair Access had under the 2004 Act.
In addition, HERA will mean that all providers that want to charge fees and access student finance above the basic amount must have an access and participation plan approved by the OfS. Under the new system, newer providers of higher education will, for the first time, be able to charge and access student finance for higher-level fees. However, to do so, they must publicly set out and comply with their commitments to improve access and participation to higher education and have these regulated by the OfS.
The legislation places responsibility for access to and participation in higher education on the OfS, and this will be a key part of its remit. The OfS will have a champion for this focus—a Director for Fair Access and Participation. Chris Millward has been appointed to this role.
Noble Lords may remember that during the passage of the Higher Education and Research Bill there was some debate about this role and whether it was sufficiently clear in the legislation. Through amendments debated in this House, and with cross-party support, the expectations for this role were reinforced in the legislation. The Director for Fair Access and Participation, shorted to DfAP, will oversee the OfS’s functions on access and participation and will report on performance in this area to the other members of the OfS board. In practice, we expect the DfAP to approve access and participation plans with higher education providers.
The access and participation plans will replace access agreements under the 2004 Act and are an important mechanism for ensuring that students from disadvantaged backgrounds and underrepresented groups can access and succeed in higher education. In these published plans, providers set out what they are intending to do to widen access and to support students from disadvantaged and underrepresented groups to participate and succeed in higher education.
Any provider that is subject to a fee cap and wishes to charge tuition fees above the basic amount must, in line with current practice, have an access and participation plan approved by the OfS. Providers are expected to spend an approved proportion of the higher-level fees on activities to support students from disadvantaged and underrepresented groups to access and succeed in higher education.
Access agreements were introduced in 2004 and they have supported and encouraged improvements in widening participation. In 2018-19, universities and further education colleges plan to spend, through their agreements, over £860 million to widen participation. These regulations are important in ensuring that the full legal framework is in place to enable the OfS to approve access and participation plans developed by providers. They do not represent a major change in current arrangements regarding the approval of plans. As I indicated, they largely carry forward an existing way of working.
The regulations provide the detail on the content and arrangements for approving and varying access and participation plans. The regulations provide a framework for the process by which the OfS, through the DfAP, may approve access and participation plans with providers. They also provide for a system of review of approval decisions such as where the OfS is minded not to approve a plan. The arrangements for the approval of access and participation plans are essentially the same as those that have been in place and set out in regulations since 2004. They have worked well over that period and the intention is to retain the process largely as it is.
However, it is always good to review policy and we have taken that opportunity here. Key changes we have made in these regulations which should lead to improvements in access and participation plans include the following areas. Plans will now be required to consider participation, success and preparedness for progression from higher education, as well as access. This support across the so-called student life cycle is important as access is meaningful only if entrants go on to complete their courses and achieve good outcomes. That could include studying for a masters or a graduate-level job. The regulations require the OfS to take account of whether a provider has given its students an opportunity to comment and considered their views when developing its plan. This change was included following representations made during the passage of the Act. We have listened and taken steps to ensure that the views of students will formally be taken into account. The regulations also require that providers evaluate their plans as well as monitoring progress. It is right that providers invest their efforts in identifying the most effective ways of supporting students.
While we have not made dramatic changes to the existing system regarding access and participation plans, the new legal framework for OfS regulation should improve its efficacy. Where there are serious concerns that a provider has not complied with commitments in its access and participation plan, or other conditions of registration, the OfS will have access to a wide and more flexible set of sanctions and intervention measures to tackle these issues with the individual provider than were available to the Director of Fair Access previously. This could include further monitoring, monetary penalties, suspension from the OfS register or deregistering providers in extreme cases.
Let me take a moment to reinforce the benefits the other regulations noted here today will bring. As part of the implementation of HERA they will underpin some of the mechanisms that will allow the Office for Students to operate. Through the January transitional regulations, and further regulations to follow, we will also ensure a smooth passage to the new regulatory framework. The mandatory fee limit condition regulations and the register regulations will provide some of the practical and legal framework underpinning the OfS. They will allow the OfS to begin registering providers from April 2018 and this will allow the full regulatory framework to come into effect from academic year 2019-20. The register regulations will underpin the OfS register as a vital transparency tool, providing standardised headline information about each provider. The fee limit condition regulations will deliver the detailed framework for the capping of student fees for qualifying students and courses at providers registering in the approved fee cap part of the OfS register. The level of those fees will need to be approved through affirmative regulations by both Houses in due course.
It is within this environment, created by HERA powers, that policy objectives such as those on access and participation will be delivered and allowed to flourish. I assure all noble Lords that the instruments noted today do not determine tuition fee limits, nor do they prejudge responses to the extensive consultations undertaken. They are part of the process of bringing the Office for Students into legal existence and enabling it to set up the practical tools, for instance its register of providers, that it needs in order to regulate.
In summary, these regulations provide important detail that allows providers to develop their access and participation plans in line with government priorities. They ensure that the OfS can approve plans in a fair and transparent fashion and I beg to move that these regulations be approved.
My Lords, I too express my appreciation of the Secondary Legislation Scrutiny Committee, which drew these instruments to the special attention of the House because of the issues of public policy that they are likely to raise. The committee’s inquiries confirmed something that I believe noble Lords are well aware of, which is that the OfS has enormous and unprecedented powers to interfere in and directly manage our universities. When during the passage of the Bill we were pressing the Minister and the Government to take a more active interest in a number of areas, in particular an accelerated process for bestowing a university title, the response was that the regulator must be left to regulate. Professor Stephen Littlechild, who is the godfather of modern regulation, has recently been writing frequently about how much of it has gone wrong because the regulator and the Government seek to manage rather than to regulate. I have to say that the very short history of the OfS inclines me to feel that we are faced not with a Government who want to leave a regulator to regulate but with one who wish to tell the regulator precisely how to manage. Although it is too early to know, there is plenty of scope for doing this in the areas where these regulations are relevant.
Before I move on to my particular concerns, I would like to state for the record my interest as a full-time member of King’s College London and as a governor of our Mathematics School, which is very much a part of our current offer agreement. I am enormously proud of my university’s record on access. The way we have done it holds many lessons for others, so I pay tribute to that record and will use it to show how important it is for universities to really work at making it possible for young people from all backgrounds to realise their potential and to follow the courses for which they are suited.
However, there is a number of ways in which the current regulations go about changing the status quo ante and which have lurking within them some real risks. The particular focus is on participation by specified groups or those who are underrepresented and on tracking and demonstrating their success. No one could be against talented young people being admitted to university when they are able to benefit from it and do well while they are there, but if you are a timid administrator—most administrators are, by virtue of their position, somewhat timid—it is only too easy to read into this an invitation in effect to have quotas and to look at this as the thing that you have to fulfil in order to get your plan approved. Anyone with any sense of 20th-century history must feel deeply uneasy about this in spite of the Minister repeating, correctly, that at least in principle universities are to remain autonomous in their admissions processes.
I am very concerned about this emphasis, in particular the emphasis on supporting participation by specified students, not even groups but individual people, and the importance for a university to follow through on this. The wording is unnecessary and risky, and it makes me deeply uneasy. I worry that we may lose something which has been a huge piece of progress in my lifetime, which is that assessment is anonymous. This is something that student leaders and students feel strongly about. They feel that they should be marked on the basis of their work without one knowing who it is one is marking. As someone who does a great deal of marking, I think that they are absolutely right because I am always surprised when I find out who got which marks. In spite of the fact that I of course believe that I am objective and expert, it turns out that it is really hard to remove prior conceptions from your assessment if you know who people are. I am really quite anxious about this. I am anxious about the wording and the idea that we will be monitored, and whether we are tracking specified students to ensure that they are successful.
I simply want to lodge that and say that I hope that other legislation and conventions will protect the sector from what seem to be real risks lurking in the way that these regulations go beyond what we had and place far more emphasis not just on access and providing help to people, as we do with our special medical programme. We have a special introductory year. After that they are like everybody else. That is how they want it. I understand that the Government are trying to achieve something entirely worthy, but there are real risks here to which I would like to draw your Lordships’ attention.
My Lords, I thank the Minister for introducing these regulations, particularly for drawing attention to the access and participation plan. It will come as no surprise to him that I will talk about disabled students. During the passage of the Bill and afterwards we had a long interaction about what would happen for disabled students. The Minister might say that this does not apply to disabled students, but they are an underrepresented group. I cannot see why, when we go through the rest of this, disabled students should be excluded.
The only reason might be because there are actions in place, but I am afraid that they are not very good. The noble Baroness, Lady Wolf, and I might be looking at different bits of this, but I think of it as the yin and yang of intervention. Universities now have to take on a far greater role in supporting disabled people who are getting less in the way of grants and support than under the old DSA system. Those with lesser needs are supposed to be dealt with by the institution. So far so good—it fits in with the Equality Act and those going through are paying fees.
The problem is that there is no universal guidance about a baseline or good practice. When we last looked at this, roughly half of disabled students were failing. We are saying that half of them did not have something successful in place. I went to see the wonderfully named disabled students sector leadership group, which prepared nearly a year ago Inclusive Teaching and Learning in Higher Education as a Route to Excellence—if ever there was a worse-named document, I have not come across it. When I asked where the guidance and the structure were, as it was taking on something new—remember that this was a year ago, although it was 18 months into the system; they had had a year’s warning—I was told, “We thought we’d let the courts sort it out”.
Apparently it has not moved on. People have individual programmes, some of which are related to the integrity of the university. We cannot tell them what to do. The Equality Act still applies to them, so how do these two processes combine? We have a group who will have problems completing their courses if we do not take some form of intervention. We know that because we have had a system that gave them individual support as an individual package as opposed to the institutional systems providing them. How do these two sets of approaches work together?
I have been on about this for quite a long time now, and I would like to get a definitive answer. Will the Office for Students take on the role of making sure that individual higher education institutions have a sufficiently good plan? Has it had long enough to identify those who are not doing it well? Other institutions have done it. How will it be made to improve things? The institutions risk losing students, and that loses fees. That is the institutions’ problem; society’s problem is the student with debt, no qualification and a sense of failure. I ask the Minister to give me some guidance today on how the Office for Students will sort this out. If it will not, why on earth is it there?
My Lords, I want to raise just one issue. The noble Lord, Lord Addington, has referred to disabled students. The noble Baroness, Lady Wolf, referred to her pride in her institution’s access programme for young disadvantaged students. I want to refer to mature part-time students; there has been a huge reduction in the number attending our universities, mainly because of the high level of fees and the huge debt, which older students are not prepared to take on. It is unclear to me—perhaps the Minister will explain it—how the access and participation plans will address this problem. Will they look at it? If so, what will they do in relation to the regulation of the proposals for that specific group? In the past, those drawing up access and participation plans have not been asked to look at this issue. Will they be in the future? What will the Office for Students expect them to cover in relation to trying to recruit more people who are likely to be both disadvantaged and from groups which have been underrepresented in higher education for many years?
My Lords, I thank the Minister for setting out these regulations in such detail. Debating statutory instruments is frustrating in that we cannot amend or reject them, but these are not controversial and such a debate gives us an opportunity to reflect, review and offer suggestions.
It seems extraordinary that someone might be proposed as an OfS board member whose university credentials had been exaggerated and who was on record as making remarks that could not be consistent with the standards stipulated for public appointments. For many of us, the greater iniquity was the lost opportunity to broaden the base of the board and reflect diversity, in particular the total neglect of the FE sector, which provides a significant number of HE students. The board also lacks known champions of adult and part-time learners—I entirely endorse what the noble Baroness, Lady Blackstone, has just said.
In his reply to my question on this matter a few days ago, the Minister replied with the names of vice-chancellors and other members of the HE sector, none of them known for their expertise nor interest in further education. Is this valuable sector once again to be marginalised and overlooked? How will such students be represented on the board of the OfS?
Just as there are still no active further education sector representatives on the body, so there are no representatives of the National Union of Students nor university or college staff. I am sure that the Minister will remember our concern during the passage of the Bill that the Office for Students seemed reluctant to let any students near its deliberations. These deficits need to be remedied rapidly if we are to have confidence that, as the regulations are taken forward, they will have input from people on the board who know about the issues that they are supposed to represent.
Will the Director for Fair Access take the lead on these issues? The Minister suggested that he would. Can we be assured that he will not be subordinate to the director of the OfS?
Can the Minister also say whether the tertiary funding review will include part-time and mature students? I come back to them again and again, because they are too critical to be forgotten. These students have been the most adversely affected by student finance changes since 2012. Since 2010-11, part-time participation has fallen by 61% and the number of mature students has declined by 39%. Yet they will be essential to fill the skills gaps and the employment vacancies where the younger generation does not have the numbers, nor indeed the skills, to meet demand. In addition, the part-timers do a great deal to support widening participation.
On widening participation, what steps are being taken to encourage more of those from disadvantaged backgrounds going to university, partly because of the decline in part-time opportunities? We note with concern the decline in the overall number of students from lower participation areas entering HE, which in England has fallen by 15% since 2011-12. Figures for full-time students have risen by 7% but this has been offset by a simultaneous 47% fall in part-time students from those same cohorts. Far more must be done by both institutions and government to ensure that higher education is accessible to all and that we can support students through their studies. Little progress has been made in narrowing the gap between those most and least likely to enter higher education since 2014. The Sutton Trust has pointed out that many of these issues go far back into primary and secondary education as well. I wonder whether the Office for Students will have any interest in talking to and liaising with schools on this.
My noble friend Lord Addington has spoken of the issues of disability in this respect. The OfS has a key responsibility to protect students from poor-quality, transient and negligent providers. That should be particularly important in the case of disabled students or those needing more support. Student protection plans should be a requirement of all providers and will be especially important when HEIs are taken over. There are ever more examples of universities and HE institutions being taken over by other outside bodies, the latest being BPP earlier this year. What assurances can the Minister give about what will happen to access and participation plans in the event of takeovers? As the noble Baroness, Lady Blackstone, asked, will the Minister confirm that HE institutions should take part-time and mature learners into account in their access and participation plans?
The Minister also highlighted the fact that there is a worrying increase in the number of disadvantaged young students dropping out of university after their first year of the course—we need more regulations to address that. As he also said, there are ethnic differences here. We find that black students are more than 50% more likely to drop out of university than their white and Asian counterparts. More than one in 10 black students drop out of university in England, according to a report by two charitable universities trusts, the UPP Foundation and the Social Market Foundation. Can the Minister say what action is being taken in respect of these cohorts in deciding on the access and participation plans that are presented to the Office for Students? Can he give us assurances that the new Director for Fair Access and Participation will be able to sustain the work of OFFA in terms of resources and his actual position in the OFS when he takes on these powers? Will he have powers under the Act and the regulations that allow him to be in the driving seat on these issues and will he have enough resources? There should be people on the board with positive experience of disadvantage that will feed into the decision process outlined in today’s regulations.
There are a number of other issues. There are issues on senior pay transparency, for instance, where extraordinary packages for some vice-chancellors have raised great concerns. We wonder whether the TEF is positively reflecting teaching, as we did, indeed, when the Bill was going through. There are issues around freedom of speech, where the OfS has a role, and on assurances on institutional autonomy, as the noble Baroness, Lady Wolf, has already highlighted. We had lively debates on all this during the passage of the Bill and I am not sure that all of us are entirely reassured on what is happening at the moment. When we considered the Bill in Committee, the detail on much of this was quite opaque and it remains so even with today’s regulations. We shall continue to monitor developments in all these important areas where we expressed such concern during the passage of the Bill. Of course, our deliberations were cut short because of the early election: we might have managed to tease out more of them during the normal process of ping-pong.
Finally, I express appreciation of the former Minister, Jo Johnson. He was assiduous in trying to ensure that opposition voices were heard, and I hope that his successor will equally be in listening mode as the measures in the Act are implemented.
My Lords, as the Minister explained, these regulations are the start of a succession of statutory instruments that will come before the House in implementing the Higher Education and Research Act. In these opening remarks it is not possible to debate the regulations without reflecting on the general principles behind the Act and the huge changes taking place in our higher education system. We have seen the tripling of fees, the introduction of loans and the ending of maintenance grants, promoted by the Government as market-driven and aimed at putting students at the heart of the system. Unfortunately, as my noble friend Lord Stevenson said at Second Reading, in reality it relied on the all-too-familiar neoliberal ideology which places faith in the unregulated free market as the most efficient allocator of resources, and which of course has privatisation, deregulation and individualism as the so-called engines of economic growth.
If we look at the outcome in practice, what do we see? There is no competition in fees, students are leaving universities with debts of around £50,000—a large majority will not pay them in full—we have the most expensive undergraduate courses in the world, and there has been a complete collapse in part-time provision and a reduction in home-based postgraduate students. Some vice-chancellors took the Government at their word and paid themselves enormous salaries and perks in the belief that they were FTSE 250 companies. Most worrying is the huge uncovered gap in the public finances. There have been a number of reports on this, including from the Education Policy Institute, which reckoned:
“The contribution of student loans to net government debt is forecast to rise from around 4 per cent of GDP today to over 11 per cent in the 2040s”.
We still have no answer from the Government to what on earth they will do to face up to the issue.
I find it somewhat ironic that alongside the Government’s genuflection to free market ideology we have the creation of the OfS, which brings with it the tools of what could be a heavy-handed regulator, determined to micromanage what universities do. I am not an expert in higher education but I know a little bit about the health service, and I could not help reflecting that this is in parallel to what has happened in the health service. We had the Health and Social Care Act 2012, which is full of the language of the market. Indeed, it brings in the Competition and Markets Authority to oversee the activities of NHS providers, with draconian powers of intervention. But, at the same time, Ministers continued to micromanage the NHS and set up a number of other bodies to interfere and intervene in what they do. We have ended up with the worst of all worlds: a heavily top-down micromanaged system within a legislative framework designed to promote a market—the point the noble Baroness, Lady Wolf, made.
It seems that we risk going there in higher education. This tension was seen all too clearly in the character of the last Education Minister. One moment he was extolling the virtues of the market and new private providers, and the next threatening the same institutions with draconian punishments if they did not do what the Minister wanted. Intervention in the pay of vice-chancellors might be justified in the public sector, but it sits rather uneasily in the competitive market that Mr Johnson was so keen on. We now have a change of Ministers; the on/off review of student loans is on again. The Minister should tell us what direction higher education policy is going in.
The key to our concern is whether Ministers, instead of promoting scholarship and encouraging research or a concern for truth, have as their goal turning the UK’s higher education system into an even more market-driven one at the expense of both quality and the public interest. It is worth reminding the House that this is not a broken system which needs shoring up and intervention. It is the second-most successful higher education system in the world, with four universities ranked in the top 10. When and how will the Government give us an assurance that they are stepping back from their market-driven obsession and that they intend the OfS to be a sensible, balanced regulator?
Perhaps the OfS has not had the best of starts. The first press release from this new body, issued on 1 January, made depressing reading. It was full of guff about choice and competition, with five prosaic lines from the chairman, Sir Michael Barber—of blessed memory—who managed to split an infinitive in welcoming what he described as outstanding appointments to the board, including a Mr Toby Young. Two weeks later, the very same Sir Michael got up to say how much he welcomed Mr Young’s resignation. That is all we have heard from Sir Michael Barber about Mr Young and his appointment. In addition to the debacle over that appointment there is the point raised by the noble Baroness, Lady Garden. This is not a small board but a large one, so how can it be that there are no active further education sector representatives, as confirmed by the Permanent Secretary last week in front of the PAC? Nor are there any representatives of the National Union of Students or university or staff bodies on the board. Will the Government rectify this?
The main SI before us today is the one on access and participation. The recent end-of-cycle report from UCAS offered really concerning statistics, stating that young people from the most advantaged backgrounds are still 5.5 times more likely to enter university with the highest entrance requirement than their disadvantaged peers. As Les Ebdon, the outgoing Director of Fair Access, said in response last month,
“people with the potential to excel are missing out on opportunities. This is an unforgivable waste of talent”.
As my noble friend Lady Blackstone said, the statistics and discussion often focus on the number of 18 year-olds, but to me the 61% fall in part-time participation since 2010-11 is alarming, with the number of mature students declining by 39%. Do we have any doubt that this will impact on our economy and the skills agenda? I thought that Birkbeck put it right in its evidence on access and participation. It said:
“The vast majority of our students are aged over 21. Most choose evening study because they work full-time … Provision for part-time and mature learners is important for social mobility”.
What will the Government do to turn this depressing statistic around?
The Minister referred to the role of the Director for Fair Access and Participation, which was of course debated extensively during the passage of the Bill. Can he assure me that that director will be able to sustain the work of OFFA on resources and his actual position within the OfS? Will the director have a direct line to the Secretary of State and not simply report to members of the OfS board and the OfS chief executive?
One of the SIs we are debating, Statutory Instrument 1196, focuses on the register of higher education providers. If Ministers are still going down this route, they presumably want the market to embrace failures. I want to ask the Minster about the failure regime. I refer specifically to the collapse of the London College of Creative Media. Wonkhe’s briefing reported that after the college collapsed and entered into recent administration its validating body, the Open University, worked very hard to find a new provider. Despite doing so with a compatible partner, a speedy closed sale by the administrators to a different provider altogether caused considerable shock. That raises a number of questions. How can a provider of higher education be allowed to collapse, apparently without much warning, when strict financial checks are meant to be in place? As Wonkhe’s briefing asked, what does a change of ownership mean for the validating body, and what say can it or regulators have over this? Who ensures that students’ interests are protected when debts are owed and providers change hands at breakneck speed?
I fully support what the noble Lord, Lord Addington, said on the disabled students’ allowance. The need for proper guidance is clear, with a baseline against which to assess the performance of individual universities.
The health of our higher education institutions is of crucial importance to the UK. We clearly need to do nothing that would cause that position to be at risk. The OfS has a clear role in mitigating that risk but it has to respect the institutional autonomy of our universities and resist the temptation to micromanage every corner of university life. I wish it well but I believe its performance needs to be kept under close scrutiny. Ministers need to step back from their market-obsessed approach and give universities the support that they require.
My Lords, I thank all noble Lords for their contributions. I was given prior warning that this debate on the regulations would turn into a broader debate on a number of issues raised during the long passage of the Higher Education and Research Act, and I welcome that. It is good to go over these issues again, and I hope that I can address all the questions asked by noble Lords. If I do not do so or need to get some more specific detailed answers to noble Lords, I will certainly do so and put a copy of the letter in the Library of the House.
I shall address the issues raised in no particular order. The noble Baroness, Lady Wolf, began by asking about the role of the OfS and the link with government. I think she said there was a danger that the Government might be seen to be telling universities what to do. I reassure the noble Baroness that the OfS is an arm’s-length body. The Secretary of State can give guidance or directions to it and, in doing so, they must have regard to the need to protect the institutional autonomy of English higher education providers. HERA sets clear limitations in this context in order to protect academic freedoms and institutional autonomy. For the first time, it also makes explicit that guidance cannot relate to parts of courses, their content, how they are taught or who teaches them, or admissions arrangements for students. The OfS will absolutely be left to do its job as the regulator. I know we had much discussion about this, but I further reassure the noble Baroness that this is the case.
The noble Baroness also raised concerns about specified persons or students. I reassure her that there is no intention to set targets or quotas. To do so would infringe institutional autonomy, one of the hallmarks of our world-class higher education system. The OfS, like the DFA under the 2004 Act, has a duty to protect academic freedom.
The noble Lord says it is well known, but I have no evidence to show that at all. I would like to see that evidence. There may have been some reports in the press, but I cannot take the noble Lord up on that point.
In continuing the previous successful approach, the intention is that the OFS will agree the targets and benchmarks higher education providers set for themselves, in keeping with the views expressed by the clear majority of respondents to the 2015 higher education Green Paper. The term “specified prospective students” is defined in the regulations and the intention is to target those from underrepresented groups.
I now turn to the points raised by the noble Lord, Lord Addington. I know he feels very strongly about the guidance given to universities—what guidance should be given and where we are with that. He and the House will know that there have been a good few meetings on this subject. He may not particularly like it, but I say again that there is already guidance, published by the Equality and Human Rights Commission, on what institutions should be doing to fulfil their obligations under the equalities legislation. We have thought about this over the past few months and do not believe that prescriptive guidance is appropriate; there is no evidence that institutions want it. Institutions are responsible for making their own decisions about supporting disabled students, and they have information to enable them to do so. That information and guidance comes from a range of other bodies. I cited them the last time we debated this matter, so I will not go through them now.
Before the Minister leaves that point, I said that about half were failing. A field study shows that the best figure for achievement was 65% and the worst was 42%. There are various aspects to this. Does this not suggest that progress has not been good?
We still maintain that we want institutions to think imaginatively about the support that individual students might need, and we will support them in that. That is because each institution is different: they have different needs and courses, and are based in different parts of the country. We think it is absolutely essential that they be allowed to decide for themselves how disabled students, including those with dyslexia, are looked after. I know that we and the noble Lord do not agree on this. Institutions vary in size, and within institutions there can be great variation in the way courses are actually delivered. Disabled students vary greatly in the type and level of support they require to complete their course successfully. The sector is moving towards greater inclusivity, but I am also aware that both the sector as a whole and particular institutions need to do more. However, we do not think being more prescriptive is the way forward.
The noble Baroness, Lady Garden, asked why there were no further education representatives on the OfS board. She has written a letter to me about this, and I have promised to reply. I asked today when that letter is due—it is coming shortly. Notwithstanding that, I will try and answer the question. Schedule 1 to the Higher Education Research Act 2017 sets out the desirable criteria for the composition of the OfS board, which Ministers have to have regard to in making appointments. These criteria were subject to a rigorous parliamentary debate about whether particular representation was necessary to enable the board to operate effectively—for example, a representative from the further education sector. Parliament concluded that there should not be a requirement for specific representation from every single part of the sector that might have an interest in higher education or in the OfS. Instead, the criteria to which the Secretary of State must have regard include the desirability of having members with experience of “providing higher education” and members from,
“a broad range of the different types of English higher education providers”.
We believe that the board as a whole meets these criteria. However, I am absolutely aware of the importance of further education and of the points made by the noble Baroness. The letter may tell us more, but that is the answer I can give at this stage.
That point has already been noted but I will take it back to the department.
The noble Baroness also raised the issue of retention rates, saying that they had worsened recently. This is certainly an issue we are looking at closely, and we have put in place policies to ensure that universities remain focused on it. These regulations extend the remit of access agreements to become access and participation plans, the intention being that they will support both access and student success for disadvantaged groups. The TEF will use non-continuation rates as a core metric when ascribing gold, silver or bronze status to individual universities, although—before a noble Lord intervenes—this method of assessment is going to be subject to a review.
The new transparency condition created by HERA will require many higher education providers to publish their completion rates, broken down by gender, ethnicity and socioeconomic background. Making this data public will shine a light on providers that are underperforming in this area. Transparency is very important.
The noble Baronesses, Lady Garden and Lady Blackstone, and the noble Lord, Lord Hunt, spoke about part-time study. That is very important, as it was in our discussions during consideration of the Bill. We have been taking steps to help those wanting to study part-time by offering financial support in the form of loans to cover fees and maintenance costs. We are working towards launching a new maintenance loan for part-time students studying degree-level courses from August this year. In addition, the Government are looking at ways of promoting and supporting a wide variety of flexible and part-time ways of learning.
For example, we are consulting on how we can help to make accelerated degrees more commonly available, a subject which the noble Baroness, Lady Garden, and I were wholly involved in this morning. Shorter courses offer to students the benefits of lower costs, more intensive study and a quicker return to the workplace. I know that mature and part-time students is a subject of interest here, and it is one of the areas the Government asked the Director of Fair Access to consider in the latest guidance—which, by the way, goes back to February 2016.
The noble Baroness, Lady Garden, asked what happens to an access and participation plan if there is a change to the provider—maybe it is sold or taken over. Under the regulatory framework proposals on which we consulted on behalf of the OfS, we suggest that any provider that is sold or is merging with another provider must notify the OfS as soon as reasonably possible. The OfS will then carry out a risk assessment and review what impact this change will have on the provider’s registration status. The outcome will determine whether any further regulatory action is required, such as the imposition of specific registration conditions and perhaps increased monitoring.
The noble Baroness asked what the Government were doing to ensure that more students from BME backgrounds could access and participate in higher education, which is a good point. We have seen record numbers of BME students going into higher education over recent years, and entry rates for all ethnic groups increased in 2017, reaching the highest recorded level. Black 18 year-olds have seen the largest increase in entry rates to full-time higher education over the period, increasing from 27% in 2009 to 40.4% in 2017, a proportional increase of 50%. Gaps in retention between black and white students have also narrowed. However, there is more to do. We are introducing further measures through HERA to tackle equality of opportunity. This includes the transparency condition, which will for the first time require all universities to publish applications, offers and acceptance rates broken down by gender, ethnicity and socioeconomic background.
The noble Lord, Lord Hunt, asked about the Toby Young point. I know we had a debate during an Oral Question not so long ago and I do not think anything has changed. This is an issue that was unfortunate. The process and the due diligence that was gone through for his appointment were absolutely fine up until the point where we were not in a position to look at the 50,000 or so tweets that Mr Young sent. I pledged to the House that we have a “lessons learned” exercise on the go on that. Representation on the OfS board was debated in Parliament, and the make-up of the board complies with the requirements of the criteria set out in the Higher Education and Research Act. At the moment, during the “lessons learned” approach, we have not yet decided when the last position on the board will be decided. That is something we are considering very carefully in the light of what has happened.
The noble Lord also spoke about competition in the sector. He will know that the OfS has duties that are clearly set out in HERA, one of which is to have regard to the need to encourage competition where that is in the interests of students and employers. That is, if you will, a break that has been included. I hope that gives the noble Lord some reassurance on the issue.
The noble Baroness, Lady Garden, asked about the new arrangements for access and participation. Once it is integrated into the OfS—this brings us back to the regulations we are debating today—we expect that bringing resources and expertise from HEFCE and OFFA together in a single organisation, while still having a dedicated champion for widening participation appointed by Ministers, will provide a greater focus on access and participation. HERA ensures that the Director for Fair Access and Participation will be responsible for overseeing the performance of the OfS’s access and participation functions, for reporting to other members of the OfS on the performance of its functions.
The noble Lord, Lord Hunt, asked why, as he put it, we cannot get the Russell group or Oxbridge to do more on access and higher education. I have already mentioned that 18 year-olds from disadvantaged backgrounds are entering full-time higher education at record rates, including to the most selective universities. However, the noble Lord is right to some extent: more could and should be done. As I mentioned, in the latest guidance the Government have asked the Director of Fair Access to push hard to see that more progress is made at our most selective institutions via the access agreements, and it is an important point. Prior attainment is obviously a critical factor, and universities have been asked by the DFAP to take on a more direct role in raising attainment in schools as part of their outreach activity.
I am not sure I have entirely covered all the questions that were raised but I hope that, with all those answers to a number of questions, I have helped.