Commons library briefing paper on Higher Education and Research Bill 2016-17: Lords amendments

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 paper provides information on amendments made to the Bill during its progress through the House of Lords. It covers the more substantive changes made, but 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 Government has also published a document setting out the Lords amendments and giving details: Higher Education and Research Bill Explanatory Notes.

The purpose of the Bill

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

It seeks 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 during Committee Stage 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. This included making clear that further education institutions that gain foundation degree awarding powers will not be prevented from going on also to gain powers to grant higher degrees.
• Establishing the importance of knowledge exchange within United Kingdom Research and Innovation (UKRI), for example by amending the functions of UKRI to provide that it may “facilitate, encourage and support knowledge exchange.”

The one non-Government amendment accepted in Committee was highly significant and arguably demonstrated the strength of the Lords’ concerns about the changes to the higher education sector that the Bill could bring about. The amendment, moved by Lord Stevenson (Labour) places 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 provides, 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 House of 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 Government 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 will be assessed are 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 degree awarding powers, 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 requires 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, provides that the scheme must not be used to create a composite ranking of providers. The second amendment, moved by Lord Kerslake (Crossbench), prohibits 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 and ensure that no restrictive immigration rules in addition to those already in place are put on international students with an offer to study in the UK.

Amendments at Third Reading

A group of nine minor and technical Government amendments were agreed at Third Reading. The Government spokesperson, Viscount Younger, stated that the amendments were simply to clarify the drafting of the Bill and to ensure that it is consistent across the board. All the amendments were agreed without division and with no debate. Two non-Government amendments were also debated but both were withdrawn.

The date has not yet been announced for the Commons consideration of the Lords amendments.