My Lords, I will speak about Amendments 135 and 136. It was a bit of a shock to many people to find that the Competition and Markets Authority had entered this rather competitive field of regulation. The CMA’s job is to promote competition and make markets work. I think much of the debate we have had over the past few weeks is precisely about how universities are not really about competition and markets; they are about collaboration, scholarship and research.
The OfS is replacing HEFCE, which was the lead regulator, but the OfS is not taking over the Office of the Independent Adjudicator. I declare my interest as the first holder of that office, a few years ago. The OfS is intended to be a single, student-focussed regulator. I think the Government might be seen to be undermining their own scheme if they allow the CMA to meddle in affairs which really are not suitable for it. There is already far too much compliance and legalism for universities to deal with—human rights, health and safety, data protection, freedom of information, judicial review, Prevent guidance and much more, including the common law. There is a crowded enforcement field as well—the CMA, other higher education bodies, consumer protection legislation, the Office of the
Independent Adjudicator, Scottish and Northern Irish ombudsmen, government departments, the Advertising Standards Authority and the Quality Assurance Agency. The CMA admits how fragile its own guidance is because everything depends on how the courts would interpret consumer law applied to universities’ functions.
I would argue that the CMA is also an inappropriate regulator because it shows little experience of how universities work. It is insistent on clear information being given about course variation before a student signs up. This is an example of how it is inappropriate. The prospectus for a student goes to print four or five years before the potential student who has read it graduates some years further on. It is impossible, therefore, in a prospectus to lock in lecturers for five years because of sabbaticals, fluctuating demand and finances, and even building works. How can a university predict what its fees will be five years from now, especially with new mechanisms being introduced right now? The CMA has recently opined that it thinks that it is unfair for universities to withhold formal qualifications from a student who is in debt. Does it have any idea how difficult it is to chase a student through debt collection procedures or failure to provide campus accommodation the following year—which it suggests as a sanction—when a student has left with no forwarding address or gone abroad, as frequently happens?
The CMA will also come into conflict and overlap with the Office of the Independent Adjudicator. The latter has been in existence for about 13 years and has decided thousands of cases, many of which have a consumer flavour. It has given a wide range of advice to universities about the same issues that the CMA has involved itself in. The OIA’s task, however, is to decide what is fair and reasonable. This is not the same as the CMA’s perspective, which is about deciding a dispute on the precise terms of the contract.
The Office of the Independent Adjudicator offers alternative dispute resolution, which is far better than resort to litigation. Unlike the CMA, the OIA can be flexible and offer resolution tailored to the needs of the wronged student—not money but a chance, for example, to retake a year or have extra tuition. The OIA should prevail over the CMA because it was based on a statute designed to provide that one specialised service for students; namely, the settlement of complaints according to what is fair.
There is something wrong in theory about letting the CMA drive issues of university information and practices. Its perspective would cement the student as a paying customer expecting to reach an acceptable outcome. But we are dealing in this Bill with a participatory process—education, not training; knowledge, not skills; and teaching, not rote learning—in a situation that involves a relationship of give and take between students and lecturers, parents and universities, and employers and government. We do not want the commercialisation of this relationship, as if it were the purchase of a car. We want value placed on stimulation, career guidance and intellectual growth, not just the path to a paper qualification.
The consumer model that the CMA applies results in a totally one-sided set of contractual details. It seems to think that there are no obligations on students
to pull their weight and no enforcement mechanisms against students’ own shortcomings. There is no mention by it, or in the TEF, of students’ efforts and their responsibility to learn. This one-sided market approach is more likely to lead to complaints about poor teaching after an unacceptable result has been handed down. We expect collaboration and not competition.
Higher education is not like a consumer transaction. The education relationship is unique. There is no fixed outcome which can be measured by organisations such as the CMA because the quality of the experience is determined by the aptitude and hard work of the student, as well as the facilities and teaching offered by the university.
Higher education is one of a class of major events in life which do not readily lend themselves to government by contract. Such situations are too emotional and personal, with no clear goal and perhaps an imbalance of power. The issue may be too important for the rest of society to be left to the narrow issue of a contract between the individual parties. Only overall regulation focused on the goals of higher education and the student will do, not intervention from an unrelated and unrepresentative body such as the CMA.
The CMA focuses on choice, price and competition. It assumes that satisfying the consumer-student is all that matters. Its view of contracts is about the provision of education, but it is no help when it comes to what education should achieve. Its interventions will not only overlap and conflict with the Office of the Independent Adjudicator but will lead to more micromanagement, box-ticking, checking and inspection, and not to greater quality or public benefit. It has no place in this new system.