My Lords, I beg noble Lords’ indulgence because there will be a couple of times when I will need to look up the wording of the Government’s factsheet, which may cause a delay. Clause 47 states:
“If (having regard to advice from the OfS) the Secretary of State considers it necessary or expedient, the Secretary of State may by regulations … authorise the OfS to enter into validation arrangements”.
That sounds quite reasonable, until one realises what is actually happening here. The OfS is the regulator of the sector and is being authorised to award degrees.
This is an extraordinary proposition. For an organisation that is regulating higher education providers, and bestowing and removing from them the power to award degrees according to terms of registration committee conditions, also to award degrees may not be unprecedented but it seemed rather amazing when I first read the clause. I read it four or five times to make sure I had not completely misunderstood it.
Clearly, from what the Government have said they do not expect this to happen very often. One must rather hope it will not because, as I shall argue, the problem is not simply that this is not an appropriate thing for a regulator to do, it is that the Office for Students is not in a substantive position to do it properly. For example, the factsheet says that the OfS will, indeed, issue certificates and that:
“We would expect any degree certificate to reflect”,
the institution that it came from,
“whilst also making reference to the fact that the degree was validated and thus awarded by the OfS”.
I am not making a mistake; this is very clear. The idea is that there will be occasions when the OfS will award degrees.
It is my impression that the gas regulator is not allowed to set up and run gas supply companies. I do not think the communications regulator is busy setting up its own TV companies either. I therefore find it quite extraordinary that this is seen as an appropriate or, indeed, feasible state of affairs. In fact, I am completely confused that the same factsheet says that a,
“validating body and the provider being validated need to be registered Higher Education Providers”.
In a sense, that is quite logical: the OfS must be a regulated higher education provider, as well as a regulator for everybody else. But we have both the substantive problem of what a regulator should be—or indeed, as far as I know, is in any other sector—and a practical problem, because it is really not clear how this could be organised.
If you are a validator working with an institution you will do so in quite an intensive way. You will help to set up procedures and processes, and the assumption will therefore be that you know what you are talking about. If the OfS is going to start awarding degrees it will need a whole set of experienced and competent people on its staff. Indeed, on page 14 of the factsheet the Government say,
“we would expect the OfS to be ‘best in class’ in terms of demonstrating that its validation services abide by best practice”.
I am not sure who except the OfS will decide that it is “best in class” but that it what it aspires to be.
The factsheet then starts to wonder how it will go about this. The Government say that they would expect the internal structure of the OfS that is set up,
“to be suitably independent from its other functions, to avoid any conflict of interest. This could for instance take the form of a separate internal division”,
somewhere down the corridor. This is perhaps not as reassuring as most of us would wish but what is just as concerning in many ways is how the staff who are to do this, and who one would expect to include academics as well as people experienced in quality assurance, are somehow going to be found; that is, they will simply be drawn into the OfS whenever something like this happens. The faith of the Government is rather touching when they say:
“As we expect that the OfS board will between them have experience of providing Higher Education in England, the organisation would have the necessary expertise to recruit the staff needed to set up a validation function”.
I do not find this terribly convincing.
Why should the OfS need to do this in the first place? The argument is that there may be cases when interesting, innovative or new higher education providers cannot get validation from anybody else, either because no one has the specific expertise or because the sector as a whole has dug its heels in. That has not happened very much and we have had a huge growth in the number of validated institutions but let us suppose that the Government really want to set up something very new and innovative, which therefore needs hands-on and genuinely expert help. Let us also suppose that validation is not just about providing a formal signature but mentoring, setting up and checking systems, and, therefore, that validators must know about the subject area. That is exactly what validation needs to be.
For example, a college I know—one of the most outstanding colleges in the country, which does a great deal of higher education—has different validators for different subject areas because it works closely with different universities which have the in-depth subject expertise and expertise in the sorts of areas that it wants. I do not see how the OfS can possibly bring people in on a very short-term basis and provide that sort of input. In fact, the Government are quite clear that it would not. They say:
“Students would be taught by their provider”,
and that the OfS,
“would not have any day to day involvement in teaching”,
“As the institution being validated has to be a registered higher education provider, it needs to abide by the quality regime”— so one would hope.
The problem here is that to be a good new institution, you need a lot of hard work, a lot of expertise and, in many cases, a lot of help. If you say simply that in cases where an institution has a problem, it would just call in the OfS and it would do it, you are ignoring the substance of the whole exercise. How did we get into this mess? It is a legal mess. It is a mess because the legislation has not thought through how this would actually happen. How would somebody from the centre actually do it if they were trying to help a new, innovative, exciting institution get on its feet and get started, and for some reason there was not any help from a nearby established institution?
The Government say that this is necessary because there is “anecdotal evidence” that problems with validation have been limiting innovation. I am not sure that anecdotal evidence is quite what one would want as the basis for doing an overwhelming upheaval of a whole sector. However, it is true that, as a number of people have pointed out, the sector has been getting more uniform. There are fewer part-time students and fewer adult learners, and we have not had anything nearly as exciting as or on the scale of the plate-glass universities of the 1960s and 1970s. Although giving validation as the reason does not seem to be borne out by the evidence, it is true that it would be very nice to have more exciting new institutions in the system. I have tabled another amendment, which we will discuss later today, which addresses this point. While it is not reasonable to blame the validation system, there is a case for the Government feeling that something active needs to be done to increase the diversity, the innovation and the way in which our higher education sector responds.
Then the question is: if you accept my argument that just getting the OfS to set up a division down the corridor and pull in a few people who will not actually be involved in teaching or very involved at all is not the way, how else might we do it? There are two things I would like to say. First, as people have pointed out, in the past new institutions were not required to have a validation agreement. They were set up and they had degree-awarding powers. That was a different era but it was an era in which government acted in a much more far-sighted, interventionist and innovation-oriented way. These institutions were set up over a long period with money, with experienced staff, with vice-chancellors who were deeply involved in the sector, and with an enormous amount of preparatory time and resource, and then they got royal charters. I am not clear whether or not the Bill actually forbids institutions to have a royal charter on top of registration—probably not—but that was how they were set up and it does not seem to have caused any problems. But that is not the way that the Government seem to want to go.
Secondly, we were wrong not to spend more time thinking about an independent quality assurance organisation, which could act in this way and could bring in additional help. It would also be a very good idea to have, as the noble Lord, Lord Stevenson, suggested, the Open University or some other institution as a validator of last resort. But I think that the problem that is being flagged is not a problem. The solution is not a solution. It will not provide the help that new institutions need. It will not create diversity. It will create conflicts of interest. I do not think that many students will want a degree that says it was awarded by the Office for Students. I hope the Government will go away and think again.