A Motion of Regret: a constitutional avenue to ensure that fee rises are decoupled from TEF?

Opinion piece by G. R. Evans

On April 4 the Higher Education and Research Bill left the Lords for the Commons after its Third Reading and on the same day the Technical and Further Education Bill also went back to the Commons with some Lords’ amendments.  The following day the Lords debated a Motion of Regret.

This is a rarely used but powerful constitutional device. Because the Parliament Acts of 1911 and 1949 apply only to primary legislation, the House of Lords retains powers of veto (though not powers of amendment) over secondary legislation. It rarely uses those powers, not least because to do so might easily tempt any Government to amend the law to remove them.  But when used they may be ‘fatal’ not only to the specific piece of secondary legislation being vetoed, but with more far-reaching policy consequences.

The Higher Education and Research Bill now faces a period of ping-pong, for it seems unlikely that without some hard nudging, the House of Commons will simply approve the Bill in the radically amended form in which it will now reach the elected House. One of the most contentious of the Lords’ successful Amendments is like to be Lord Kerslake’s Amendment 19 to Clause 11 passed on Division on 6 March,  263 to 211, decoupling the right to charge higher inflation-linked tuition fees to TEF performance.

So Lord Stevenson’s Motion of Regret could prove important as a nudge. It runs as follows:

That this House regrets that the Higher Education (Basic Amount) (England) Regulations 2016 and the Higher Education (Higher Amount) (England) Regulations 2016 together with retrospectively changed loan conditions for existing students are further incremental burdens on students that risk worsening the opportunities for young people from low-income backgrounds, mature students and those undertaking part-time courses; and calls on Her Majesty’s Government to report annually to Parliament on the impact on the economy of the increasing quantum of graduate debt, estimates of payback rates, and the estimate of the annual cost to the Exchequer of the present system.

The Motion refers to the  21st Report from the Secondary Legislation Scrutiny Committee (January 2017), which sets out the various areas of concern in paras.7-14, to which Lord Stevenson spoke in the debate.  As he noted, the Regulations were ‘negative instruments’ – that is legislation which passed unless challenged – and ‘the time for praying against them has long passed’. However, the Secondary Legislation Scrutiny Committee had drawn these Instruments to the special attention of the House:

on the ground that they give rise to issues of public policy likely to be of interest to the House.

Lord Stevenson summarised his argument at the beginning of a lengthy speech in which he was able to rehearse, with close reference to the Committee’s detailed concerns, many of the themes which had occupied members of the House of Lords in the debates of the preceding four months while the Higher Education and Research Bill had been before them:

I am going to argue that the neoliberal marketisation of our higher education system is wrong in principle, because higher education is not a market; that it loads students with personal debt; that it will not improve opportunities to study for young people from disadvantaged and low-income backgrounds, mature students and those who wish to undertake part-time courses; and that linking fee rises, thereby increasing the personal debt of students, to only one of the attributes of a good university is a mistake. I will end by arguing that the cost of these polices to the public purse is now so complex and uncertain that it is virtually impossible to challenge what the Government are doing: we need more and more regular information and I call on the Government to provide it.

Baroness Garden spoke next, to endorse what he had said, emphasising ( in line with one of the Lords’ amendments to the Bill) that:

We on these Benches totally reject the idea of linking fees to teaching excellence framework gradings, as the noble Lord, Lord Stevenson, set out. They are an untried and untested form of assessment which should not be used to determine fees. There appears to be no correlation between increased fees and improved teaching quality.

Lord Bew added his support a little later.

Lord Willetts spoke at some length in defence of his own policy-changes and their consequences.  Lord Younger reminded the House that:

the parliamentary process is still ongoing, and I look forward to Peers’ further engagement on this matter. Our policy intention remains to link maximum fees to the quality of provision via the teaching excellence framework as part of our wider reform package, as we are doing through these regulations. It is counter to government policy to see fee caps rise under any other circumstances.

Lord Stevenson, wriggled uncomfortably under the flow of personal compliments he received because he was, as Baroness Garden noted,  with ‘much regret’, ‘stepping down from his Front-Bench role’. Bringing peers back to the matter in hand, he concluded by emphasising the significance of his choice of an unusual constitutional device:

I have now realised, after nearly seven years here, that the way to tackle these issues is by tabling this sort of Motion because in the normal cut and thrust of debate and in the discussion of legislation and questions, one can never get down to a serious debate about serious issues.

He gave notice that it might need to be used again on this topic when the missing supplementary information had been published:

I just want something simple. If we cannot interpret this system on the basis of the DfE’s published accounts, perhaps tabling another Motion at an appropriate time agreed with the Minister, because he is a friend as well, would be the way forward. However, in the interim, we should get things started by testing the opinion of the House on whether it would like to see more information on this interesting area.

The Motion of Regret was carried on Division by 174:162.

Update on Amendments to the Higher Education and Research Bill

David Midgley has kindly provided this useful summary of recent developments:

The text of the Bill as amended by the Lords in report stage is now available at https://www.publications.parliament.uk/pa/bills/lbill/2016-2017/0112/17112.pdf.

The most significant changes with regard to the regime proposed for higher education are these:

  • Lord Kerslake’s amendment of 6 March to the effect that the TEF “must not be used to rank English higher education providers as to the regulated course fees they charge”, carried by 263 votes to 211, which is now Clause 12;
  • Lord Blunkett’s amendment of 8 March, carried by 280 votes to 186, which requires any “scheme to assess and provide consistent and reliable information about the quality of education and teaching” to be subject to rigorous independent scrutiny, and precludes it from being “used to create a single composite ranking of English higher education providers” – this has become Clause 27;
  • Baroness Wolf’s amendment of 8 March, carried by 201 votes to 186, which makes explicit the role of the Quality Assessment Committee in relation to the authorisation of any new provider and requires such a provider to have been “established for a minimum of four years with satisfactory validation arrangements in place” before authorisation may be issued – this has been incorporated into Clause 47 (as sub-sections 12 and 13); and
  • Lord Judge’s amendment of 8 March, carried by 185 votes to 151, which has the effect of strengthening the power of appeal against a revocation of degree-awarding powers and/or university title – the relevant clause is now Clause 49.
  • Also of considerable importance for the future of universities is Lord Hannay’s amendment of 13 March, carried by a noteworthy 313 votes to 219, which seeks to protect the position of international students in British higher education – this appears as Clause 90 in the latest version of the Bill.
  • Also carried on 6 March, by 200 votes to 189, was Baroness Royall’s amendment, which requires that all eligible students should have “the opportunity to opt in to be added to the electoral register”, which has now been incorporated into Clause 16.