My Lords, Section 23 of the Higher Education Research Act 2017—HERA—which relates to the assessment of the quality of higher education provided by registered providers, currently places no restrictions or stipulations on how the OfS might make an assessment of quality or standards. Clause 17 provides some much-needed clarity, or so we hope. It puts beyond doubt the ability of the OfS to determine minimum expected levels of student outcomes. These levels would be taken into account alongside
many other factors, such as the context in which a provider operates, when the OfS makes its overall and well-rounded assessment of quality.
Amendments 63 and 64, in the name of my noble friend Lord Lucas, seek to add provision for the mental health and well-being of students to the outcomes measures that higher education institutions are evaluated against, in addition to academic and post-study progression measures, and to allow for more than one measure that institutions are expected to meet. I reassure my noble friend and other noble Lords that student mental health is something that this Government and the OfS take extremely seriously. The testimony that we have heard from many noble Lords in this debate has shown exactly why this issue is so important.
We continue to work closely with the higher education sector to promote effective practice. Higher education providers are autonomous bodies, independent of government, and have a responsibility to support their students, including those with mental health conditions or mental health needs. They are experts in their student population and best placed to identify the needs of their student body. The Government therefore strongly support Universities UK’s step-change programme, which focuses on the need for a whole-institution approach and in doing so supports the spread of good practice and the agreement of guidelines for co-commissioning and the provision of mental health and well-being services. In addition, the Government actively back the sector-led university mental health charter which aims to drive up standards in promoting student and staff mental health and well-being and invites universities to meet high standards of practice, including in areas such as leadership, early intervention and data collection.
While it is for higher education providers to determine what welfare and counselling services they need to provide to their students to offer that support, the OfS provides funding, support and guidance to providers to support students’ mental health. Noble Lords are right to say that sufficient attention has not been paid to this issue in the past and that, while steps are being taken to put this right and move in the right direction, there is more to do. As the noble Baroness, Lady Morris, noted, that may not be best addressed through more legislation or regulation. However, I reassure noble Lords that, if the OfS wished to impose a condition of registration that related directly to mental health, the exiting legislation under HERA is flexible enough for it to do so.
The Government and the OfS do not see that as the right route at this stage. Rather, the aim of Clause 17 is to put beyond doubt the ability of the OfS to set minimum expectations of quality and performance by reference to objectively measurable outcomes. My noble friend Lord Lucas acknowledged that there may be some difficulty in defining those outcomes on something such as mental health provision. I confirm to my noble friend that the existing legislation can be read so as to allow institutions to be subject to more than one measure, so Amendment 64 is not required.
I turn to Amendments 65 to 68 in the name of the noble Baroness, Lady Sherlock. I first reassure the noble Baroness in relation to Amendment 65 that not only does the OfS already have a statutory duty to
consult before determining or revising its regulatory framework in relation to outcomes, it has already undergone one round of consultation, as she has already noted, and a further consultation on specific outcome levels is planned for late autumn.
With regard to Amendment 66, leaving out “not”, as the amendment does, completely reverses the purpose of this clause. Driving up quality and standards in higher education is a priority for this Government and a fundamental part of the levelling-up agenda. This amendment would mean that students would be expected to accept that they might achieve different outcomes—and in some cases, lower ones—depending on their background. That cannot be right. That is why we included the provision in this clause to make it clear that there is no mandate on the OfS to benchmark the minimum levels of standards it sets based on factors such as particular student characteristics. Benchmarking or setting minimum levels by reference to the outcomes the OfS would expect from students with certain characteristics or certain types of providers risks entrenching disadvantage in the system.
I hope I can clarify one point and reassure a number of noble Lords, including the noble Baronesses, Lady Sherlock and Lady Morris. Subsection (7) means that the OfS is not obliged to set minimum expected levels of outcome based on these factors. It does not prevent the OfS collecting data or considering the type of students a provider has. Indeed, the OfS will look at this when reaching a rounded judgment of quality.
The noble Baroness, Lady Sherlock, asked whether this is about clarifying the existing approach or giving new powers or a new approach. The OfS is already regulating based on absolute student outcomes data. In practice, the amendment will not affect the OfS’s current approach but will put beyond doubt its ability to continue to operate in this way. I will return to this point later in relation to the amendments tabled by my noble friend Lord Willetts.
Amendment 67 seeks to probe the OfS’s powers of intervention at subject level. The current drafting in subsection (7) is intended to make it clear that the OfS is not required to determine and publish different minimum levels to reflect differences, including differences in the subjects being studied. While this does not preclude the OfS from doing so, the intention here is for minimum levels to be set by reference to the outcomes set out in subsection (5).
The noble Baroness, Lady Sherlock, asked me to clarify her understanding, based on correspondence with Bill officials, of the powers of intervention at subject level. The OfS can intervene at subject level. As the noble Baroness noted, the OfS has an obligation to be proportionate in its interventions. However, any conduct that the OfS has decided constitutes a breach can be enforced, whether that conduct relates to all subjects or an individual subject. Courses could also be included in extremis.
The noble Baroness also asked how the OfS may assess quality when it comes to modular provision, given the changes that we are aiming to make in the LLE. The Government and the OfS are working closely together as part of the development of the lifelong learning entitlement. The OfS quality measures are
designed to be flexible and used effectively by the OfS across a diverse provider base and different courses, for example part-time courses. As we will come on to, the OfS is currently consulting on its approach to regulating quality and standards. This includes consideration of its approach to modular and flexible provision. The OfS will consult on the indicators it proposes to use and how it proposes to take the context of the provider into account as it makes regulatory judgments. The purpose of Clause 17 is to provide clarity on the ability of the OfS to use absolute outcome measures, not to remove its ability to use other contextual or relative information.
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On Amendment 68, I can reassure the noble Baroness that the OfS already has a statutory duty, under Section 2 of HERA, to have regard to the need to promote equality of opportunity when exercising any of its functions, and that will also apply to this measure. That duty applies to the whole student lifecycle for disadvantaged students and traditionally underrepresented groups.
Amendment 69, from my noble friend Lord Willetts, seeks to place new requirements on the OfS to publish an assessment of the effects of its decisions, and to allow institutions to be given opportunities to account for any differences in information. Amendment 71 requires the DfE to share the information used to assess institutions. As the independent regulator, it is for the OfS to decide which data or measures it wishes to consider when using student outcomes to assess quality. However, I can reassure noble Lords that, as part of the consultation later this year, the OfS will consult on the student outcome measures it proposes to use as minimum baselines, and set out the impact on students, institutions and courses.
In response to the noble Baroness, Lady Morris, who made the point that getting this right requires properly involving universities and HE providers in setting the right outcome measures, that is exactly the aim of the two consultation processes that the OfS has undertaken and will be undertaking later this year.
As I have tried to emphasise to noble Lords, the OfS does and will continue to look at overall contexts before reaching a well-rounded judgment of performance, and higher education providers will have an opportunity to respond to the OfS as part of that consultation. More generally, HERA also enables providers to make representations to the OfS, and, in the case of deregistration decisions, to bring appeals where the OfS is proposing to use enforcement powers in an individual case.
I turn finally to Amendment 70, from the noble Baroness, Lady Sherlock, which relates to the UK Quality Code and requires the OfS to work with devolved Administrations to minimise different assessments of higher education quality. Higher education is, of course, a devolved matter, and it is absolutely right that each Administration should be free to drive up quality in the way that they think is best. I understand, however, that the noble Baroness is concerned about the removal of a direct reference to the UK Quality Code from the guidance in the regulatory framework of the OfS, and about the possible impact that might have on the
reputation of the UK’s higher education sector. The OfS has made it clear that its regulatory requirements would continue to cover the issues expressed in the expectations and core practices of the quality code, which will remain an important feature of the regulatory framework. The Office for Students is not proposing to abolish the UK Quality Code—indeed, it has no power to do so. I will take the opportunity to make it clear that the UK Quality Code will continue to be an important part of the sector, and one that providers will continue to be able to use.
I believe that all the amendments in this group seek to ensure that the OfS takes a well-rounded view of provision when making an assessment of quality, and in doing so does not inadvertently reduce access to students from particular backgrounds or access to particular subjects. I hope that I have reassured noble Lords that that will be the case, while also ensuring that the OfS has the powers it needs to ensure that every student, regardless of background, has the right to expect the same minimum level of quality from their education, and the same opportunities to achieve successful outcomes.
I therefore hope that my noble friend will feel able to withdraw his amendment, and that other noble Lords will not feel the need to move theirs when they are reached.