HERB returns to parliament for final act
Today, the Higher Education & Research Bill returns to the House of Commons for its final reading as MPs consider the amendments made by the Lords and a new set of ‘compromise’ amendments designed to have HERB become law by end of play on Thursday (when parliament will be suspended prior to its dissolution before Wed 3 May).
The amendments are fragmentary, technical and basically hard to read. GuildHE and Universities UK have again published a letter setting out their support and providing a gloss on the changes.
The headlines are:
- The government is seeking to overturn the Lords amendment breaking the link between TEF outcomes and differential fees. This amendment will be replaced with one committing to defer any such link until 2020/21, after an independent review of TEF in 2018. The review will be led by an individual who ‘commands the confidence’ of HEIs.
- This doesn’t mean that tuition fees will be frozen until 2020/21 but that there is no mechanism to set different maximums for different institutions. Future changes to the maximum tuition fee will be agreed by both Houses of parliament.
- It does mean that the only incentive for institutions to participate in the TEF (which is voluntary) over the next few years is to influence the development of the policy.
- The government is seeking to remove the Lord’s upfront clause which would have defined a university in law. Instead the government has pledged to consult with the sector about new guidance on the award of university title. This guidance will be given to the Office for Students (which will be created by HERB). It’s worth remembering that the White Paper pledged to remove the current specifications on minimum size meaning that we could see universities in future that do not even meet the size requirements for sixth form colleges (200 students).
- Regarding degree awarding powers, the government is seeking to strike down the Lords amendment that would require those seekng to award degrees to have a track record. Its replacement amendment again tries to compromise by offering improved scrutiny of the process and by involving more sector expertise in the decisions. This is inadequate given the plans the government has to award probationary degree awarding powers on the basis of recruitment policies.
- International Students: the government is insisting that international students remain with the immigration numbers and targets. From what I’ve seen, the government refused to compromise over this issue – insisting that the relevant Lords amendment be removed.
Overall, I find it hard not to feel that Labour, UUK and GuildHE have missed the main issues around probationary degree awarding powers and like Alison Wolf I would have preferred to let the bill die than allow that to move forward. Particularly as the new guidance on DAPs, like the new guidance on university, has not yet been put forward for consultation.
Critical Education 
“This doesn’t mean that tuition fees will be frozen until 2020/21 but that there is no mechanism to set different maximums for different institutions.”
Under section 26 of the Higher Education Act 2004, a draft of the regulations to increase either the higher or basic amount must be laid before, and approved by a resolution of, each House of Parliament unless the increase is no greater than is required to maintain the value of the amount in real terms.
http://www.legislation.gov.uk/ukpga/2004/8/section/26
Regulations were made in December 2016 to increase the basic and higher amounts, but only for “eligible institutions” defined in the regulations.
http://www.legislation.gov.uk/uksi/2016/1206/contents/made
http://www.legislation.gov.uk/uksi/2016/1205/contents/made
The Higher Education and Research Act repeals section 26 of the Higher Education Act 2004. Does this mean those regulations are also revoked?
The Act was published yesterday. I haven’t had a chance to review those clauses yet.
FYI I put these questions to the DfE and basically section 26 of the Higher Education Act 2004 allowing inflationary rises in the fee limits without a parliamentary vote remains in force (allowing the regulations which increased the fee limits to £9,250 and £6,165 in 17/18 to take full effect) until regulations are made under the HE&R Act 2017 to bring into force the repeal of section 26 of the 2004 Act and commence the new provisions in the 2017 Act which require a parliamentary vote to raise fees. Given the current composition of parliament with minority Government, one wonders whether they will delay the repeal of the current arrangements to allow inflationary fee increases without the need for a parliamentary vote to continue under the 2004 provisions until they start differentiating fees under the HE&R Act 2017 from 2020?
https://www.whatdotheyknow.com/request/higher_education_and_research_ac#incoming-990116
As the Higher Education and Research Act changed the Parliamentary procedure for increasing the fee limits from the negative procedure to the affirmative procedure, a vote needs to be won in both Houses of Parliament to raise the higher amount beyond £9,250 IF the Government bring into force the new provisions which would repeal the existing provisions in section 26 of the Higher Education Act 2004. With English votes for English laws, the Government won’t have the DUP votes to win a vote in the House of Commons so I don’t think there’s a Parliamentary majority to raise fees even by inflation.
The Government can get round this for the time being by delaying bringing into force the new fee limit provisions in the Higher Education and Research Act 2017 and thereby continuing to give effect to the 2004 legislation that doesn’t require them to win a Parliamentary vote to raise fees by inflation. This is the legislation under which the fee caps were raised to £9,250 and £6,165 and they could continue to raise fees under this legislation for the time being until they want to differentiate fees based on TEF results from 2020 at the earliest which would then require the provisions in the Higher Education and Research Act to be brought into force.
Whether they will do this or bring into force the Higher Education and Research Act fee limit provisions to force a vote on inflationary rises in the fee caps for 2018/19 remains to be seen…
The Government might just be OK to win a vote to increase fees under the HE&R Act as they have a Conservative majority in England although controversially they’d need the support of the DUP MPs in a vote of the whole House first when the policy would not apply to Northern Ireland. They’d also need the House of Lords to approve the fee increase although I don’t think they’d block it.
https://secondreading.uk/elections/english-votes-for-english-laws-after-ge2017