Government defeated in the Lords over TEF and fees

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Last night the government was defeated on the matter of student voter registration, and perhaps more seriously for the overall reforms, the link between TEF and fees.

The Higher Education and Research Bill has a new clause 12:

(1) The scheme established under section 26 must not be used to rank English higher education providers as to the regulated course fees they charge to a qualifying person; or the unregulated course fees they charge to an international student; or the number of fee paying students they recruit, whether they are qualifying persons or international students.
(2) In this section “regulated course fees”, “qualifying person” and “international student” have the same meaning as in section 11.

This amendment was proposed by Lord Kerslake (chair of the board of governors of Sheffield Hallam University – an institution which incidentally also boasts TEF Chair Chris Husbands as vice chancellor), Lord Stevenson and Baroness Garden, representing Labour, Liberal Democrat and Crossbench peers. 263 voted in favour of the amendment (including two Conservative peers the Duke of Wellington and Lord Norton of Louth), 211 against.

What this means is that the Teaching Excellence Framework, as things currently stand, no longer has a bearing on the amount that higher education providers can charge. Not only has the link between fees been broken, this amendment would effectively make it illegal for the government to use the TEF as a way to differentiate universities’ ability to recruit international students – something that has been feared since the Home Secretary hinted at such a plan in the Autumn.

The debate

The debate itself provided a succinct summary of the well-rehearsed arguments against linking TEF to fee levels – that the metrics (particularly the NSS) are not suitable and are not reliable, that the TEF is untried and its validity uncertain, and that students have overwhelmingly been against the idea.

In his opening speech, Lord Kerslake summarised what many saw as the central issue: “the TEF is not ready. There is not yet a settled methodology. Indeed, the very fact that the Government have agreed to a fundamental review this summer, including how the metrics are flagged, the balance between the metrics and the provider submissions, and the number and names of the ratings, tells us that we are some way off where we need to be on this.”

On similar lines, Lord Lipsey queried: “[…] When the TEF is such a self-evident mess, why put all your money on having the fees link, which will make people even angrier at the effects of the TEF? Why not show a little patience?”

And Baroness Blackstone agreed that: “It is not the right time to attach the decision about the fees that can be charged to the TEF because we do not have a TEF that is yet suitable and up to scratch in how it will operate.”

Viscount Younger’s response went far beyond the “firmly believes” that seasoned Committee viewers will remember with a shudder. In voting for this amendment, he cautioned, peers “will lose [the sector] £16 billion over the course of the next ten years”. Apart from being a poor counter-argument, it also flew in the face of recent history – fees have already been increased for TEF1 participants (just about all institutions) on the strength of a successful QAA HE Review.

What next

What happens next will likely determine the fate of the TEF. The proposal now has to return to the House of Commons, where the amendment could be removed by vote, and Lords would need to vote again to add the same or similar words to the Bill. But a three-line whip in the House of Commons would be politically unattractive; a fresh confrontation on the issue there would likely propel tuition fees to the top of political agenda once again – not a prospect that the government is likely to relish.

Alternatively, accepting that the link between TEF and fees is cut would probably be fatal for the exercise. Without the clear financial incentive, it’s unlikely that most providers would take part in its future iterations. The government could allow fees to rise with inflation without the TEF’s influence, but without the quid pro quo of the new framework informing the rises, this doesn’t look like an attractive option for ministers.

The danger could be avoided in various ways: government concessions could be offered that fall short of the Lords amendment (perhaps delaying the TEF fee linkage for additional years or allowing further lessons to be learned). Or, as Viscount Younger attempted yesterday evening, they could threaten sanctions for the sector to frighten Lords into compliance. However, this is less likely to be well-received.

The government is also rapidly running out of parliamentary time: we could expect to see all-night sittings in both houses if the Lords opposition continues and we approach – via Easter and Whitsun recesses – the new parliamentary session in early May. If not passed by this point, the Bill would be ‘lost’, and must start again with a Commons first reading – delaying, for instance, the establishment of OfS and UKRI.

With many other pieces of important legislation either in the Lords or likely to start ping-ponging (declaring Article 50 being the obvious key candidate), this becomes a serious risk.

Voter registration

An offer that Jo Johnson would work with HEFCE to actively promote student voter registration was not enough to forestall a Lords vote on the issue – Amendment 52, added to clause 15 of the bill, provides for the automatic registration of students as voters and permits the data sharing that would be needed to accomplish this. This follows earlier work in during the Commons Third Reading last year by Paul Blomfield MP and others. The principle is uncontroversial and has been widely supported in the sector, and it would be surprising if a serious attempt were made to remove this clause in the Commons.

Elsewhere an attempt (Amendment 54) to restrict student enrolment by providers in breach of registration was defeated by 140 votes to 45, and peers also voted on Amendment 57, which attempted to place a duty on the OfS to find places for students inconvenienced by a provider ceasing to offer a course. This amendment, brought by Lord Stevenson and Lady Wolf, was also defeated by 148 to 26.

The Lords adjourned shortly before 10 pm, and if this session was anything to go by, we could expect further fireworks on Wednesday as peers consider amendments around student credit transfer, procedures for dealing with institutions entering and leaving the sector and more on the TEF.

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