Higher Education and Research Bill (HC Bill 4)

(b) to determine the criteria for the selection, appointment and dismissal of
academic staff and apply those criteria in particular cases, and

(c) to determine the criteria for the admission of students and apply those
criteria in particular cases.

(2) 5For the purposes of this section, the OfS’s “access and participation functions”
are the functions conferred on it by or under—

(a) section 21 (refusal to renew an access and participation plan), and

(b) sections 28 to 33 (access and participation plans).

36 Power of Secretary of State to require a report

(1) 10The Secretary of State may, by direction, require the OfS to report to the
Secretary of State—

(a) in its annual report under paragraph 13 of Schedule 1, or

(b) in a special report,

on such matters relating to equality of opportunity as may be specified in the
15direction.

(2) “Equality of opportunity” has the same meaning as in section 31.

(3) Where the Secretary of State is provided with a special report, the Secretary of
State must lay it before Parliament.

(4) See paragraph 13 of Schedule 1 for the laying of the OfS’s annual reports.

20Powers to give financial support

37 Financial support for registered higher education providers

(1) The OfS may make grants, loans or other payments to the governing body of an eligible
higher education provider in respect of expenditure incurred, or to be incurred, by the
provider or a qualifying connected institution, for the purposes of either or both of the
25following—

(a) the provision of education by the provider or by another eligible higher
education provider;

(b) the provision of facilities, and the carrying on of other activities, by the
provider, or by another eligible higher education provider, which its governing
30body considers it is necessary or desirable to provide or carry on for the
purposes of, or in connection with, education.

(2) The OfS may make grants, loans or other payments to any person in respect of
expenditure incurred, or to be incurred, by the person for the purposes of the
provision by any person of services for the purposes of, or in connection with,
35the provision of education by eligible higher education providers receiving
financial support under subsection (1).

(3) “Eligible higher education provider” means a registered higher education
provider of a description prescribed by regulations made by the Secretary of
State for the purposes of subsection (1).

(4) 40“Qualifying connected institution”, in relation to an eligible higher education
provider, means a college, school, hall or other institution—

(a) to which the provider’s governing body propose to pay, with the
consent of the OfS, all or some of the payments made to it under
subsection (1), and

(b) which the OfS is satisfied has a sufficient connection with the provider
5for the purposes of that subsection.

(5) “School” has the same meaning as in the Education Act 1996 (see section 4 of
that Act).

(6) See section 39 regarding the terms and conditions of financial support under
this section.

38 10Financial support for certain institutions

(1) The OfS may make grants, loans or other payments to any person in respect of
expenditure incurred, or to be incurred, by the person for the purposes of the provision
of eligible higher education courses by—

(a) institutions in England maintained or assisted by local authorities in England
15or Wales, or

(b) English further education providers.

(2) “Eligible higher education course” means a higher education course prescribed
by regulations made by the Secretary of State for the purposes of subsection (1).

(3) In subsection (1)(a)—

(a) 20an institution “assisted” by a local authority has the same meaning as
in the Education Act 1996 (see section 579(5) to (7) of that Act), and

(b) the reference to a local authority in England or Wales has the same
meaning as in that Act (see section 579(1) of that Act).

(4) See section 39 regarding the terms and conditions of financial support under
25this section.

39 Financial support: terms and conditions

(1) A grant, loan or other payment under section 37 or 38 may be made on such
terms and conditions as the OfS considers appropriate.

(2) The terms and conditions may, in particular—

(a) 30enable the OfS to require the repayment, in whole or in part, of sums
paid by the OfS if any of the terms and conditions subject to which the
sums were paid is not complied with,

(b) require the payment of interest in respect of any period during which a
sum due to the OfS in accordance with any of the terms and conditions
35remains unpaid, and

(c) require a person to whom sums are paid by the OfS to provide the OfS
with any information it requests for the purpose of the exercise of any
of its functions.

(3) But the terms and conditions must not relate to the application of sums which
40are not derived from the OfS by the provider or any other person to whom the
grant, loan or other payment is made.

(4) Before determining the terms and conditions to be imposed on a grant, loan or
other payment, the OfS must consult such persons as it considers appropriate.

Powers to grant degrees etc

40 Authorisation to grant degrees etc

(1) The OfS may by order authorise—

(a) a registered higher education provider to grant taught awards or
5research awards or both;

(b) a qualifying further education provider to grant foundation degrees.

(2) An authorisation under subsection (1) may authorise a provider to grant, as the
case may be—

(a) taught awards, research awards or foundation degrees of any
10description;

(b) specified taught awards, research awards or foundation degrees;

(c) taught awards, research awards or foundation degrees of a specified
description.

(3) In this Part—

• 15“taught award” means a degree, diploma, certificate or other academic
  award or distinction granted to persons who complete an appropriate
  course of study and satisfy an appropriate assessment;

• “research award” means a degree, diploma, certificate or other academic
  award or distinction granted to persons who complete an appropriate
  20programme of supervised research and satisfy an appropriate
  assessment;

• “foundation degree” means a foundation degree granted to persons who
  complete an appropriate course of study and satisfy an appropriate
  assessment.

(4) 25The OfS may not authorise a provider under subsection (1)(b) unless—

(a) the provider gives the OfS a progression statement, and

(b) the OfS considers that the proposals set out in that statement are
satisfactory and are likely to be carried out.

(5) A “progression statement” is a statement setting out what the provider
30proposes to do as regards making arrangements for securing that any person
granted a foundation degree in pursuance of the authorisation (other than by
virtue of section 41(3)(c) or (d) (honorary and staff degrees)) has an
opportunity to progress to one or more particular courses of more advanced
study.

(6) 35An authorisation under subsection (1) must specify—

(a) the date when it takes effect, and

(b) the period during which it has effect (which may be an indefinite
period).

(7) A provider authorised under subsection (1) has power to grant the authorised
40taught awards, research awards or foundation degrees (as the case may be) to
persons who complete the appropriate course of study, or programme of
supervised research, on or after the date the authorisation takes effect.

(8) It is for the provider to determine, in accordance with any relevant provisions
of the instruments relating to or regulating the provider—

(a) the courses of study or programmes of supervised research, and the
assessments, which are appropriate for the grant of an authorised
taught award, research award or foundation degree, and

(b) the terms and conditions on which any of the powers conferred by the
5authorisation may be exercised.

(9) An authorisation under subsection (1) may restrict the power to grant an
authorised taught award, research award or foundation degree to persons
enrolled with the provider at the time they complete the course of study or
programme of supervised research for which the award is granted.

(10) 10The OfS’s power to make an order under subsection (1) is exercisable by
statutory instrument; and the Statutory Instruments Act 1946 is to apply to
such an instrument as if the order had been made by a Minister of the Crown.

(11) An order under subsection (1) may make incidental, supplementary,
transitional or saving provision.

(12) 15In this section—

• “assessment” includes examination and test;

• “authorised” means authorised by the authorisation under subsection (1);

• “qualifying further education provider” means an English further
  education provider which is a registered higher education provider;

• 20“specified” means specified in the order under subsection (1) giving the
  authorisation.

41 Supplementary powers with authorisation

(1) An authorisation under section 40(1) may include power for the provider to
authorise other institutions to grant on the provider’s behalf—

(a) 25all the authorised taught awards, research awards and foundation
degrees, or

(b) such of those awards and degrees as are specified or are of a specified
description.

(2) An authorisation under section 40(1)(a) includes—

(a) 30power to grant the authorised taught awards or research awards, or
such of those awards as are specified or are of a specified description,
jointly with another institution,

(b) power to deprive a person of an authorised taught award or research
award granted by or on behalf of the provider in pursuance of the
35authorisation,

(c) power to grant honorary degrees of any description, or specified
honorary degrees, or honorary degrees of a specified description, and

(d) power to grant degrees of any description, or specified degrees, or
degrees of a specified description, to members of the academic or other
40staff of the provider.

(3) An authorisation under section 40(1)(b) includes—

(a) power to grant the authorised foundation degrees, or such of those
degrees as are specified or are of a specified description, jointly with
another institution,

(b) 45power to deprive a person of an authorised foundation degree granted
by or on behalf of the provider in pursuance of the authorisation,

(c) power to grant honorary foundation degrees of any description, or
specified honorary foundation degrees, or honorary foundation
degrees of a specified description, and

(d) power to grant foundation degrees of any description, or specified
5foundation degrees, or foundation degrees of a specified description, to
members of the academic or other staff of the provider.

(4) In the case of an authorised taught award, research award or foundation
degree granted jointly with another institution, the power to deprive
mentioned in subsection (2)(b) and (3)(b) is only exercisable jointly with that
10institution.

(5) In this section, “authorised” and “specified” have the same meaning as in
section 40.

42 Variation or revocation of section 40 authorisation

(1) The OfS may, at any time, by a further order under section 40(1), vary or revoke
15an authorisation given by a previous order under that provision.

(2) That is the case even if the authorisation was given for an indefinite period.

(3) The OfS may, in particular, make such an order revoking an authorisation if the
provider ceases to be a registered higher education provider.

43 Variation or revocation of other authorisations to grant degrees etc

(1) 20The OfS may by order vary or revoke an authorisation given to an English
higher education provider or an English further education provider—

(a) by or under an Act of Parliament, other than under section 40(1) of this
Act, or

(b) by Royal Charter,

25to grant taught awards, research awards or foundation degrees.

(2) That is the case even if the authorisation was given for an indefinite period.

(3) An order under subsection (1) varying an authorisation may only make such
provision as could be made by an order giving authorisation under section
40(1).

(4) 30The OfS may, in particular, make an order under subsection (1) revoking an
authorisation if the provider is not a registered higher education provider.

(5) The OfS’s power to make an order under subsection (1) is exercisable by
statutory instrument; and the Statutory Instruments Act 1946 is to apply to
such an instrument as if the order had been made by a Minister of the Crown.

(6) 35An order under subsection (1) may make incidental, supplementary,
transitional or saving provision.

(7) Any power to vary or revoke an authorisation mentioned in subsection (1),
which is a power which exists immediately before the coming into force of this
section, ceases to exist on that coming into force.

44 40Variation or revocation of authorisation: procedure

(1) Before—

(a) making a further order under section 40(1) varying or revoking a
provider’s authorisation, or

(b) making an order under section 43(1) varying or revoking a provider’s
authorisation,

5the OfS must notify the governing body of the provider of its intention to do so.

(2) The notice must—

(a) specify the OfS’s reasons for proposing to take the step in question,

(b) specify the period during which the governing body may make
representations about the proposal (“the specified period”), and

(c) 10specify the way in which those representations may be made.

(3) The specified period must not be less than 28 days beginning with the date on
which the notice is received.

(4) The OfS must have regard to any representations made by the governing body
of the provider during the specified period in deciding whether to take the step
15in question.

(5) Having decided whether or not to take the step in question, the OfS must notify
the governing body of the provider of its decision.

(6) If the OfS decides to vary or revoke a provider’s authorisation, the further
order under section 40(1) or the order under section 43(1) must specify the date
20when the variation or revocation takes effect.

(7) The notice must also contain information as to—

(a) the rights of appeal, and

(b) the period within which an appeal may be made.

(8) The variation or revocation may not take effect at any time when an appeal
25could be brought against the decision to vary or revoke or such an appeal is
pending.

(9) But that does not prevent the variation or revocation taking effect if the
governing body of the provider notifies the OfS that it does not intend to
appeal.

45 30Appeals against variation or revocation of authorisation

(1) The governing body of a provider may appeal to the First-tier Tribunal against
a decision of the OfS to vary or revoke, by a further order under section 40(1)
or an order under section 43(1), an authorisation given to it.

(2) An appeal may be on the grounds—

(a) 35that the decision was based on an error of fact;

(b) that the decision was wrong in law;

(c) that the decision was unreasonable.

(3) On an appeal, the Tribunal may—

(a) withdraw the decision;

(b) 40confirm the decision;

(c) remit the decision whether to confirm the decision, or any matter
relating to that decision, to the OfS.

46 Validation by authorised providers

(1) The OfS may enter into arrangements (“commissioning arrangements”) with
an authorised registered higher education provider requiring the provider to
offer to enter into validation arrangements in respect of—

(a) 5all the authorised taught awards and foundation degrees, or

(b) such of those taught awards and foundation degrees as are specified in
the commissioning arrangements or are of a description so specified.

(2) Commissioning arrangements may require a provider to offer to enter into
validation arrangements subject to conditions specified by the OfS.

(3) 10Commissioning arrangements may not require a provider to offer to enter into
validation arrangements that the provider is not authorised to enter into.

(4) In this section, “validation arrangements” means arrangements between one
registered higher education provider and another registered higher education
provider under which the first provider—

(a) 15grants a taught award or a foundation degree to a person who is a
student at the other provider, or

(b) authorises the other provider to grant a taught award or a foundation
degree on behalf of the first provider.

(5) In this section, “authorised”, in relation to a registered higher education
20provider, means authorised to grant taught awards or foundation degrees, and
to enter into validation arrangements, by—

(a) an authorisation given—

(i) under section 40(1),

(ii) by or under any other provision of an Act of Parliament, or

(iii) 25by Royal Charter, or

(b) an authorisation varied under section 43(1).

47 Validation by the OfS

(1) If (having regard to advice from the OfS) the Secretary of State considers it
necessary or expedient, the Secretary of State may by regulations—

(a) 30authorise the OfS to enter into validation arrangements, and

(b) require the OfS to offer to do so with—

(i) registered higher education providers generally, or

(ii) such registered higher education providers as are specified in
the regulations or are of a description so specified.

(2) 35Regulations under subsection (1) may authorise the OfS to enter into validation
arrangements in respect of—

(a) all taught awards and foundation degrees, or

(b) such taught awards and foundation degrees as are specified in the
regulations or are of a description so specified.

(3) 40Regulations under subsection (1) may require the OfS to offer to enter into
validation arrangements subject to conditions specified in the regulations.

(4) Regulations under subsection (1) may include power for the OfS to authorise
registered higher education providers to enter on its behalf into—

(a) all the validation arrangements that the OfS is authorised to enter into
45by the regulations, or

(b) such of those validation arrangements as are specified in the
regulations or are of a description so specified.

(5) Regulations under subsection (1) may include power for the OfS to deprive a
person of a taught award or foundation degree granted by or on behalf of the
5OfS under validation arrangements.

(6) In this section “validation arrangements” means arrangements between the
OfS and a registered higher education provider under which the OfS—

(a) grants a taught award or a foundation degree to a person who is a
student at the provider, or

(b) 10authorises the provider to grant a taught award or a foundation degree
on behalf of the OfS.

(7) Validation arrangements may provide for—

(a) the grant of a taught award or a foundation degree by the OfS, or

(b) the authorisation to grant a taught award or a foundation degree on
15behalf of the OfS,

to be subject to such conditions as the OfS considers appropriate.

48 Sections 40 to 47: consequential amendments

(1) Section 76 of the Further and Higher Education Act 1992 (power to award
degrees, etc) is amended as follows.

(2) 20In the heading, after “etc” insert “: institutions in Wales”.

(3) In subsection (1), after “any institution” in both places insert “in Wales”.

(4) After subsection (7), insert—

“(8) References in this section to an institution in Wales are to an institution
whose activities are carried on, or principally carried on, in Wales.

(9) 25See section 40 of the Higher Education and Research Act 2016 regarding
institutions in England.””

(5) The amendments made by this section do not affect the continuing validity of
any orders made under section 76 of the Further and Higher Education Act
1992 before the coming into force of this section.

49 30Unrecognised degrees

(1) Section 214 of the Education Reform Act 1988 (unrecognised degrees) is
amended as follows.

(2) In subsection (2), before paragraph (a) insert—

“(za) an award granted or to be granted by a university, college or
35other body which it is authorised to grant by—

(i) an authorisation given under section 40(1) of the Higher
Education and Research Act 2016 (“the 2016 Act”),

(ii) an authorisation varied under section 43(1) of the 2016
Act, or

(iii) 40regulations under section 47(1) of the 2016 Act;

(zb) an award granted or to be granted by a body for the time being
permitted by a body falling within paragraph (za) to act on its

behalf in the granting of that award where the grant of that
award by that other body on its behalf is authorised by—

(i) the authorisation mentioned in paragraph (za), or

(ii) regulations under section 47(1) of the 2016 Act;”.”

(3) 5In subsection (2)(a), after “Act of Parliament” insert “(other than section 40(1),
43(1) or 47(1) of the 2016 Act)”.

(4) In subsection (2)(c), for “Secretary of State” substitute “appropriate authority”.

(5) After subsection (9) insert—

“(9ZA) For the purposes of this section as it extends to England and Wales, “the
10appropriate authority” means—

(a) so far as the power to make an order under subsection (2)(c) is
exercisable in relation to England, the Office for Students, and

(b) so far as the power to make an order under that provision is
exercisable in relation to Wales, the Welsh Ministers.””

(6) 15In subsection (9A)—

(a) for “and section 215 as they extend” substitute “as it extends”, and

(b) for “the reference to the Secretary of State is to be read as a reference to”
substitute ““the appropriate authority” means”.

50 Unrecognised degrees: supplementary

(1) 20Section 215 of the Education Reform Act 1988 (“the 1988 Act”) (unrecognised
degrees: enforcement) is amended in accordance with subsections (2) and (3).

(2) In subsection (1)—

(a) for “Secretary of State” substitute “appropriate authority”,

(b) for “him” substitute “the appropriate authority”, and

(c) 25for “he” substitute “the appropriate authority”.

(3) After subsection (1A) insert—

“(1B) “The appropriate authority” means—

(a) in the case of a weights and measures authority in England, the
Secretary of State,

(b) 30in the case of a weights and measures authority in Wales, the
Welsh Ministers, and

(c) in the case of a weights and measures authority in Scotland, the
Scottish Ministers.””

(4) Section 216 of the 1988 Act (identification of bodies granting or providing
35courses for recognised awards) is amended in accordance with subsections (5)
to (10).

(5) In subsections (1) and (2)—

(a) for “Secretary of State” substitute “appropriate authority”, and

(b) for “him” substitute “the authority”.

(6) 40After subsection (2) insert—

“(2ZA) For the purposes of this section as it extends to England and Wales, “the
appropriate authority” means—

(a) so far as the functions in question are exercisable in relation to
England, the Office for Students, and

(b) so far as the functions in question are exercisable in relation to
Wales, the Welsh Ministers.””

(7) 5In subsection (2A), for “the references in subsections (1) and (2) above to the
Secretary of State are to be read as references to” substitute ““the appropriate
authority” means”.

(8) In subsection (3)—

(a) in the opening words for “either” substitute “it”, and

(b) 10before paragraph (a) insert—

“(za) provides any course which is—

(i) in preparation for a degree to be granted by a
recognised body falling within paragraph (za) or
(zb) of section 214(2) which the recognised body
15is authorised to grant by the authorisation or
regulations mentioned in that paragraph, and

(ii) is approved by or on behalf of that recognised
body where that approval is authorised by that
authorisation or those regulations;”.”

(9) 20In subsection (3)(a), after “a recognised body” insert “falling within paragraph
(a) or (b) of section 214(2)”.

(10) In subsection (4), for “214(2)(a)” substitute “214(2)(za), (zb), (a)”.

(11) Section 232 of the 1988 Act (orders and regulations) is amended in accordance
with subsections (12) and (13).

(12) 25After subsection (4), insert—

“(4A) The power of the Office for Students to make an order under section 214
or 216 is exercisable by statutory instrument; and the Statutory
Instruments Act 1946 is to apply to such an instrument as if the order
had been made by a Minister of the Crown.””

(13) 30In subsection (5), after “fit” insert “or, in the case of orders under section 214 or
216 made by the Office for Students, the Office for Students thinks fit”.

(14) The amendments made by section 49 or this section to section 214 or 216 of the
1988 Act do not affect the continuing validity of any orders made by the
Secretary of State under section 214 or 216 of the 1988 Act before the coming
35into force of this section.

(15) Such orders made by the Secretary of State under section 214 or 216 of the 1988
Act have effect after the coming into force of this section as if made by the OfS
under section 214 or 216 of the 1988 Act.

(16) The power in section 217(2) of the 1988 Act may be exercised so as to extend to
40any of the Channel Islands any amendment made by section 49 or this section
to sections 214 to 216 of the 1988 Act with such adaptations and modifications
(if any) as may be specified in the Order.