Higher Education and Research Bill: Lords amendments and Ping Pong

Following its passage through the Commons, the Higher Education and Research Bill 2016-17 was presented in the House of Lords on 22 November 2016 and had its Second Reading on 6 December 2016. The Bill was considered in committee in the House of Lords over six days between 9 January and 30 January 2017, and was considered on Report over four days from 6 March to 15 March 2017. Third Reading took place on 4 April 2017.

This briefing provides information on amendments made to the Bill during its progress through the House of Lords; it has been said that the Bill was “probably one of the most amended Bills in the history of Parliament.” The briefing has also been updated to include a summary of the consideration of Lords amendments by the Commons on 26 April 2017 and the Lords consideration of Commons amendments and reasons on 27 April.

The briefing covers the more substantive changes made and is not intended to provide exhaustive coverage of every agreed amendment. Unless otherwise stated, references in the briefing to clauses of the Bill refer to HL Bill 76 (as introduced to the Lords).

The purpose of the Bill

The Bill implemented the legislative proposals in the Department for Business, Innovation and Skills 2016 White Paper, Success as a Knowledge Economy: Teaching, Social Mobility and Student Choice and in Sir Paul Nurse’s 2015 report, Ensuring a successful UK research endeavour: A Review of the UK Research Councils by Paul Nurse.

It sought to bring forward a range of measures to increase competition and choice in the higher education sector, raise standards, and strengthen capabilities in UK research and innovation.

Full background on the Bill, and its provisions as originally presented, can be found in Library Briefing Paper 7609, Higher Education and Research Bill [Bill No 004 of 2016-17]. Information on amendments made to the Bill during its progress through the Commons is provided in Library Briefings 7768, Higher Education and Research Bill: Committee Stage Report, and 7859, Higher Education and Research Bill: Report Stage and Third Reading.

Amendments at Committee Stage

Over 500 amendments were tabled for the Bill’s Committee Stage in the Lords. On the first day of Committee, Lord Stevenson stated that the Public Bill Office had said that this was “the most amendments for any Bill in recent memory”.

All but one of the amendments accepted were Government or Government supported amendments and most were of a minor and/or technical nature. The more substantive Government amendments included:

• Setting out the responsibilities of the Director for Fair Access and Participation (DFAP) more clearly in the Bill, and making it clear that the Office for Students (OfS) will give responsibility for widening participation and access to the DFAP.
• Clarifying what types of providers can apply for what type of degree awarding powers (DAPs), particularly with regards to foundation degrees.
• Establishing the importance of knowledge exchange within United Kingdom Research and Innovation (UKRI).

The one non-Government amendment accepted in Committee placed a definition of a university on the face of the Bill; this would be the first time that such a definition was included in legislation. The definition provided, among other things, that universities must provide “an extensive range of high quality academic subjects” and must “make a contribution to society through the pursuit, dissemination, and application of knowledge…”.

Amendments on Report

Government amendments

Over 200 further amendments were tabled for the Report Stage. A large number of substantive Government or Government-supported amendments were agreed, many of which had either originally been proposed by non-Government Members during the Bill’s Committee Stage in the Commons, or were the fulfilment of commitments given by the Government at that time. A number of sector bodies and commentators, including Guild HE and Universities UK, welcomed the amendments.

The amendments included:

• Requiring the OfS and the Secretary of State to have regard to the need to protect the institutional autonomy of higher education providers. The amendments also defined institutional autonomy for the purposes of the Bill.
• Placing the OfS under a duty to have regard to the benefits of collaboration between higher education providers.
• Ensuring that the standards against which providers are assessed will be determined by the sector.
• Making clear that the OfS’s duty to promote student choice includes choice in types of provider, courses and the means by which they are provided – for example, full-time, part-time distance learning and accelerated courses.
• A new clause that would place the OfS under a duty to monitor, facilitate and report on student transfer arrangements.
• Providing for regulations to be made to introduce a higher fee cap for accelerated courses, with the aim of “stimulating the market” for accelerated courses.
• Setting out the specific conditions that will have to be met before the OfS can revoke a provider’s DAPs, and making clear that the powers in the Bill may not be used to revoke a provider’s Royal Charter in full.
• Requiring all registered higher education providers to be subject to the freedom of speech duty contained in the Education Act (No 2) Act 1986.
• Making changes to the governance of UKRI and its councils.
• Providing that when the Secretary of State makes grants to UKRI, the separate funding allocations to the individual councils will still be made and published as per current practice.
• Enshrining the Haldane Principle (defined as the principle that decisions on individual research proposals are best taken following an evaluation of the quality and likely impact of the proposals, such as through a peer-review process) in law.

Further information on the amendments was published by the Government ahead of the Report Stage: Higher Education and Research Bill Amendments Tabled Ahead of Lords.

Non-Government amendments

Seven non-Government supported amendments were also agreed at Report Stage:

• Baroness Royall (Lab) moved an amendment that would require higher education providers to give all eligible students the opportunity to opt to be added to the electoral register as part of the registration process.
• Two amendments were made concerning the Teaching Excellence Framework (TEF). The first, moved by Lord Blunkett (Lab), removed and replaced the clause relating to the TEF. The new clause required the Secretary of State to bring forward a scheme for assessing the quality of education and teaching at higher education institutions but, among other things, provided that the scheme must not be used to create a composite ranking of providers. The second amendment, moved by Lord Kerslake (Crossbench), prohibited TEF rankings from being used to determine the fees that providers can charge.
• Baroness Wolf (Crossbench) moved an amendment providing that the OfS could not grant DAPs to a provider unless it has been established for four years or, alternatively, if the OfS’s Quality Assurance Committee is assured that the provider is able to maintain the required standard and has reported to the Secretary of State.
• Lord Judge (Crossbench) moved two amendments which altered the grounds under which providers may appeal against a decision by the OfS to vary or revoke its degree awarding powers or university title. The amendments replaced three grounds for appeal with one, that the decision was wrong.
• The final non-Government amendment, moved by Lord Hannay (Crossbench), inserted a new clause that would, among other things, remove international students from the net migration target.

Amendments at Third Reading

A group of nine minor and technical Government amendments were agreed without division or debate at Third Reading. Two non-Government amendments were also debated but both were withdrawn.

Ping Pong

On 18 April 2017, the Prime Minister Teresa May announced her intention to seek the approval of Parliament for an early general election on 8 June. This was agreed by the Commons on 19 April 2017. This meant that consideration of Lords amendments to the Bill occurred during the pre-dissolution ‘wash-up’ period.

All of the non-Government amendments agreed by the Lords were rejected by the Commons and, in all cases, amendments in lieu were agreed:

• In place of putting a definition of university on the face of the Bill, amendments were agreed requiring the OfS to have regard to factors set out in guidance before granting university title to a provider. They additionally required the Secretary of State to consult bodies representing the interests of higher education providers and students before issuing such guidance.
• Concerning the TEF, amendments in lieu were agreed that:
  • made any altering of tuition fee limits subject, as a minimum, to the affirmative procedure;
  • delayed the introduction of differential fee caps for providers with different TEF ratings until 2020; and
  • required the Secretary of State to commission an independent review of the TEF within one year of the clause being enacted.
• Three amendments in lieu were agreed concerning the electoral registration of students. They provided for the OfS to be able to require providers to take specified steps to co-operate with electoral registration officers in England for the purpose of enabling the electoral registration of students.
• Regarding international students, the agreed amendments in lieu required the OfS when considering what information should be published by the designated data body, to consider what would be helpful to international students and providers recruiting them. The amendments additionally provided that the designated data body must consider whether information about the numbers of international students would be appropriate information to publish.
• On DAPs, the amendments in lieu required the OfS to seek advice on whether a provider has the ability to provide and maintain higher education of an appropriate quality and standard before granting DAPs. They additionally required the OfS to inform the Secretary of State as soon as possible after granting taught DAPs to a provider that has not previously operated under validation arrangements.
• Regarding appeals against OfS decisions to revoke DAPs or university title, the Minister stated that the amendments in lieu achieved the same thing as Lord Judge’s original amendments but aligned the wording more closely with terminology used elsewhere in legislation.

The amendments in lieu are set out in full in the Government paper, Higher Education and Research Bill Commons Amendments in lieu and reason.

The Bill returned to the Lords on 27 April 2017. The Lords agreed not to insist on any of its amendments and accepted all of the amendments in lieu proposed by the Commons.

Of the issues discussed during Ping Pong, that of international students provoked the strongest debate. Speakers in both Houses expressed disappointment that Lord Hannay’s original amendment had not been accepted by the Government, with some speakers contending had it not been for the ‘wash-up’ a compromise on the issue could have been reached. It was also suggested by some that the Prime Minister and the Home Office may have blocked more significant concessions on the issue.

The Bill received Royal Assent on 27 April 2017.