Universities UK
020 7419 5605
www.universitiesuk.ac.uk
[email protected]
@UniversitiesUK
GuildHE
020 3393 6132
www.guildhe.ac.uk
[email protected]
@guildhe
Woburn House
20 Tavistock Square
London
WC1H 9HB
19 January 2017
Dear Member
As the President of Universities UK and Chair of GuildHE, collectively representing over 170
higher education providers in England, Wales, Scotland and Northern Ireland, we are writing
to you during Committee Stage to reiterate why the sector supports the principle of new
legislation. The current regulatory framework has not kept up with the implications of fee
changes, increased competition and the growth in new alternative providers. That is why we
support the objectives of the bill to provide greater protection for students and ensure that all
providers of higher education – old and new – can be regulated fairly, consistently and on the
basis of risk. Nevertheless, we strongly support a modest number of significant amendments,
which we believe will improve the bill in ensuring the continued success and reputation of a
higher education sector comprised of highly achieving autonomous institutions.
We have been struck by the extremely high level of interest in improving the bill shown by
members of the House of Lords. We welcome the expertise, knowledge and ideas that are
being brought towards the common goal of improving this piece of legislation. However, with
more than 500 amendments across a broad range of subjects under consideration, we believe
that focusing changes in the following 10 areas of the bill will ensure that the government can
achieve its policy aims to encourage diversity and choice, while also guaranteeing that the UK
sector maintains its global reputation for excellence – something which is more important than
ever in these uncertain times.
We have therefore summarised below our main concerns and the amendments which have
been tabled, and in some cases discussed, which we consider help to achieve our shared
objectives.
1. Protecting institutional autonomy
As speaker after speaker said during the debate on day one of Committee stage, institutional
autonomy is a key feature in delivering world-class, competitive and effective higher education
institutions and systems. We would go further and say that institutional autonomy is vital to
the success and integrity of our higher education sector – and indeed there is much evidence
to support this. The bill as currently drafted includes a number of areas where a future regime
could seek to intervene in areas which are matters for individual institutions and we believe
this should be clarified and protections strengthened in the bill. amendment 1, which was
added to the bill at Lords Committee stage, does not fully address the sector’s concerns about
this issue.
We are therefore supporting amendment 65, which deals specifically with the relationship
between the government and higher education providers. This amendment both prevents
direct interference in the governance of institutions and protects the freedom of academic staff
to question received wisdom and put forward new ideas.
2. Separating – and properly defining – quality and standards in the bill
Central to our concerns about the erosion of university autonomy is the need for the
government, and the bill, to be clearer in its approach to standards. UUK and GuildHE have
noted that the bill unhelpfully elides quality and standards – two separate concepts in higher
education policy – in a number of places. While there is a legitimate role for the new Office for
Students (OfS) in assessing quality and threshold standards, academic standards are the
preserve of independent academic institutions and should be free from political interference.
While we are pleased that Viscount Younger of Leckie in his letter of 18 January 2017 has
agreed to ‘actively consider’ what more can be done to address concerns, we believe that
multiple amendments are necessary to fully separate and properly define quality and
standards, namely: amendments 63, 131, 137, 167, 170, 180, 184, 204, 205, 206, 210, 212,
214, 215. The most important of these, however, is amendment 137, followed by amendment
167 and 170.
3. Creating a strong, independent body to scrutinise the award of Degree Awarding
Powers and University Title – including probationary Degree Awarding Powers
The bill amends the Further and Higher Education Act 1992 to transfer the granting of degree
awarding powers (DAPs) and university title (UT) from the Privy Council to the new OfS, and
provides new powers to revoke these designations. It is important that any new higher
education providers awarding their own degrees or calling themselves ‘university’ meet the
same high requirements as existing universities.
We believe additional oversight is needed over the new powers held by the OfS to ensure that
there are sufficiently robust market entry standards. We are therefore supporting amendment
269. This new clause would require the OfS to take the advice of an independent, specialist
committee within the designated quality body when granting or revoking DAPs/UT or, where
no quality body is designated for the OfS, to set up a statutory committee along the lines of
the existing Advisory Committee on Degree Awarding Powers.
We also have reservations about the ability for new providers to award degrees, on a
probationary basis, from day one as we do not believe this is in the best interest of students.
We therefore support amendment 257.
4. Promoting collaboration as well as competition
In Clause 2 of the bill, a duty is placed on the OfS to encourage competition in the higher
education sector. While both UUK and GuildHE recognise the importance of competition, there
are also many circumstances where collaboration is beneficial to students, the economy and
society.
We believe that amendment 35 and amendment 37 are necessary to encourage
collaboration among providers where appropriate. These amendments stress the importance
of collaboration between providers, as well as competition, where this is in the interests of
students. It also seeks to recognise that the mission of the higher education sector extends
beyond just students and employers, and that institutions also have important responsibilities
to wider society.
5. Ensuring appropriate confidentiality during ongoing investigations and fair,
transparent and proportionate use of powers
The bill sets out the process for the investigation and sanctioning of higher education providers
which appear to breach their registration conditions. There is an issue regarding appropriate
confidentiality in the process – particularly where allegations are not subsequently upheld –
because of the significant risks to the reputation of an individual provider and the higher
education sector as a whole.
UUK and GuildHE are therefore urging parliamentarians to support amendments 144, 148
and 153 to the bill. These changes would ensure confidentiality while providers are under
investigation for alleged misconduct, in order to protect students, staff and the reputation of
the provider in question.
Connected to this issue of the fair, transparent and proportionate use of powers, the bill
introduces the ability for courts to issue powers of search and entry to registered providers
which appear to breach their registration conditions. This is a significant new power and, if
invoked, would constitute a serious intrusion on institutions and likely cause considerable
distress to staff (and potentially students).
In light of this, we are supporting amendment 364 to the bill, which would restrict powers of
search and entry just to suspected incidences of fraud or serious financial mismanagement.
The relationship between the OfS and registered providers is fundamentally a civil one, and
we believe that a criminal proceeding like search and entry should only be used in cases
involving serious misconduct like those outlined in the amendment.
6. Ensuring the Secretary of State exercises his/her powers appropriately –
including taking unsolicited advice from the OfS and prohibiting the Secretary
of State from directing the OfS to stop funding particular courses
We welcome government changes to the bill which mean the Secretary of State cannot now
guide or direct the OfS to prevent either the closure of existing courses or the creation of new
ones. We do, however, believe that further changes are needed to prevent the Secretary of
State from interfering in the courses for which the OfS provides funding.
UUK and GuildHE agree with a number of speakers in the third session, and consider it
important for the OfS to give unsolicited advice to the Secretary of State in the exercise of
his/her powers under the bill.
We are therefore urging peers and MPs to support amendments 64, 427 and 433, which all
relate to interference by the Secretary of State in the funding of particular courses, and
amendments 60, 424 and 430 about unsolicited advice from the OfS. These changes would
both support the autonomy of our higher education sector, and help inform decisions made by
the Secretary of State with respect to the sector.
7. A holistic view of the sector – UKRI and OfS working and reporting jointly
The creation of the OfS and UKRI splits the governance and funding arrangements for
teaching and research. UUK and GuildHE members will work constructively with government
to make these arrangements work, but in the context of universities, teaching and research
are intrinsically linked, with staff, infrastructure and financial resources used to deliver
research, education and innovation-related activities often being one and the same. The close
links between teaching and research often help universities to respond to emerging research,
help students develop key skills and better equip graduates for employment.
As members have already discussed during Committee, we consider that the bill should be
strengthened to require greater collaboration and joint enterprise between these two bodies
which will in turn help ensure there is a more holistic view of the sector. While we acknowledge
that the government published a factsheet on 15 November 2016 outlining plans for a
memorandum of understanding between UKRI and OfS and detailing areas where they will
work together, we think this should be strengthened further. We therefore recommend that the
government requires this cooperation on the face of the bil
We would therefore support amendments – such as amendment 22 – and in particular agree
about the importance of a joint annual report to Parliament which would require the two bodies
to collaborate.
We welcome the Minister Jo Johnson MP’s remarks in the Commons Committee stage
wherein he stressed that changes to research councils would not be made without an
affirmative resolution. However, we would go further and support amendment 484 which
would require the secretary of state to consult before adding or omitting a research council.
8. Encouraging international students and staff recruitment
While international students are not the main focus of this legislation, UUK and GuildHE
believe that the bill presents a good opportunity to address serious policy concerns.
Regrettably, recent government policies have led to the number of international students
coming to the UK flatlining in the last few years, resulting in the UK losing market share of
internationally mobile students to our major global competitors. In particular concerns about
the attractiveness of the UK as a destination for students and staff are growing given the
uncertainty about the impact of Brexit.
Lord Hannay and others have tabled a number of amendments about international students
and staff. UUK and GuildHE are particularly supportive of amendments 462 and 464, which
are aimed at trying to ensure that international students are not treated for public policy
purposes as long-term migrants. This would encourage policies which recognise the unique
nature of student migration, and prevent any further restrictions being placed on international
students and staff seeking to come to the UK.
9. Removing the ability of the OfS to validate degrees
The only clause which we consider should be removed from the bill entirely is Clause 47. The
ability for the regulator to also validate degrees (and thereby operate within the market it
regulates) continues to be widely seen as inappropriate – indeed a conflict of interest - for a
regulator and unnecessary.
We believe there are no circumstances in which the proposal in Clause 47 would be
appropriate or necessary, and so there is no reason for this clause to remain in the bill even
as a ‘backstop’ power. The policy intent is covered by Clause 46, which allows the OfS to
make arrangements with a higher education provider to act as a ‘validator of last resort’. We
strongly support the entry of high quality new providers to the higher education sector and we
would speak in support of a national validator of choice in addition to the existing validation
market to show that we are not opposing validation of new providers per se.
UUK and GuildHE are consequently calling on parliamentarians to oppose the inclusion of
Clause 47 in the bill entirely. Baroness Wolf and several others have already given notice of
intention at Committee stage to oppose this clause.
10. Maintaining diversity in the sector
The success of the UK higher education sector is built on its diversity. We welcome the
government’s commitment to student choice but think the bill could do more to safeguard the
existing diversity of the higher education sector. Specialist institutions and institutions founded
by the churches provide distinctive and valued learning environments that enhance choice for
students and for graduate employers. We therefore believe the bill should draw on existing
provisions in the Further and Higher Education Act 1992 which require HEFCE to have regard
to institutions of a denominational character and institutions with distinctive characteristics.
We are supporting amendment 58, which has been tabled by the Lord Bishop of Portsmouth,
to try to achieve this. If passed, this amendment would place a duty on the OfS to maintain
diversity in provision, particularly for providers with a denominational character or with
distinctive characteristics.
In addition to these 10 areas, we would also take this opportunity to signal the concerns of
chartered universities regarding changes proposed in the bill and the need for assurances that
new powers given to the OfS will not be used inappropriately or in a politically motivated way,
and also encourage members to ensure that the impact of legislative changes which will affect
institutions in the devolved nations are properly considered.
On behalf of our member institutions, our students and staff, thank you for your support in
improving and amending the Higher Education and Research Bill.
Dame Julia Goodfellow
President of Universities UK and
Vice-Chancellor of the University of Kent
Professor Joy Carter
Chair of GuildHE and
Vice-Chancellor of the University
of Winchester