The government is clearly determined to drag the Bill over the finishing line. In endeavouring to do so, they have made a deal with Labour MPs and peers to make some significant alterations to the Bill that will be acceptable to all sides and let it pass into law.
MPs will vote on the changes today (Wednesday) and the Lords tomorrow (Thursday), when we expect the Bill will finally become the Higher Education and Research Act 2017, now probably with only a limited period of ‘ping pong’ between the two houses.
The headline level changes made by the Lords during the passage of the Bill – decoupling TEF and fees, and removing students from net migration targets – have been rejected and removed from the Bill. But there is substantial new government-approved language and some real concessions, many of which that also appear to be as a result of HE sector lobbying.
TEF and fees – delays and reviews
The ‘staggering’ of tuition fee levels on the basis of TEF outcomes has been delayed once more, to the academic year 2020-21. The fees “sub-level” amount, previously expected to be the “half-inflation increase” for TEF Bronze awards, must be equal to the higher amount until at least 2020-21. Parliament will also now be given the power to approve future draft statutory instruments for setting fee levels – a procedural tweak that could see annual fee increases come under greater political scrutiny.
Furthermore, TEF will now be subject to an independent and legally mandated “lesson learned” report within the 2019-20 academic year. This report will have to be carried out by someone independent of the government and who “appears to the Secretary of State to be a person who would command the confidence of registered higher education providers”. The report will consider:
(a) the process by which ratings are determined under the scheme and the sources of statistical information used in that process,
(b) whether that process, and those sources of statistical information, are fit for use for the purpose of determining ratings under the scheme,
(c) the names of the ratings under the scheme and whether those names are appropriate,
(d) the impact of the scheme on the ability of higher education providers to which the scheme applies to carry out their functions (including in particular their functions relating to teaching and research),
(e) an assessment of whether the scheme is in the public interest, and
(f) any other matters that the appointed person considers relevant
Whoever is appointed to conduct this report will have huge power over the future of the TEF, effectively carrying out an equivalent of Lord Stern’s recent review of the REF. This is a significant concession of government power over the process and means that there is a great deal up for grabs in how assessments of teaching excellence might be made. The inclusion of sub-clause (e) even puts the entire basis of TEF up for review, a concession which may please the many opponents of the framework in the sector.
Interestingly, the Office for Students will be given the power to make cooperation between higher education providers and electoral registration officers a condition of registration as a provider. The OfS may not, in the end, chose to make use of this power, but if it does, campaigners for easing the process of student electoral registration may feel this is a step in the right direction.
Some further requirements for market entry of new providers have been outlined, in what might arguably be a climbdown from the government’s attempts to fully liberalise the market. The OfS will now be required to take advice from the designated quality assurance body (expected to be QAA), who must take advice in turn from a defined subset of stakeholders (currently the Advisory Committee for Degree Awarding Powers, made up of established providers) when considering new applications for degree awarding powers.
Furthermore, though a four-year track record of delivery will not be required to obtain degree awarding powers (DAPs), the OfS will have to go out of its way to notify the Secretary of State when granting DAPs to institutions that hasn’t previously had a validation agreement either with another higher education provider or OfS itself. McDonald’s appears to have much more power over the fate of Byron Burger than Jo Johnson had originally envisaged.
For the sector’s part, when authorising the use of university title, the Secretary of State and OfS must now consult with the representative bodies of higher education providers and students.
The grounds for appealing a registration decision by the OfS have been broadened following pressure by Lord Judge.
And in a very small gesture on international students, the new transparency duties (previously covering making information available on domestic admissions) will now how to include information that will be “helpful” for prospective international students. “It must, in particular, consider whether information about the numbers of international students on higher education courses provided by registered higher education providers would be appropriate information”.
What happens next?
The Commons will debate and also certainly approve these changes on Wednesday and the Bill will head to the Lords on Thursday for its final legislative lap.
After a Commons debate, a “message” will be sent to the Lords, notifying them of these changes to the Bill, and these will be debated in the upper chamber. The Lords may “agree” to these changes (either with a further amendment or as they stand), or “disagree” with them or (either with or without proposing an amendment “in lieu” or by providing a reason via a hastily convened three-person “reasons committee”) – a message is then sent back to the Commons who will debate and possibly modify any subsequent changes. Any modifications are sent back to the Lords, as before. Following these concessions this week, a protracted period of this ‘ping pong’ looks unlikely.
This piece was updated on Wednesday morning to reflect further amendments to the Bill and the expected timetable for the rest of the week.