Higher Education and Research Bill (HC Bill 78)

Higher Education and Research BillPage 80

(a) the body is suitable to perform the assessment functions, and

(b) designating the body would be appropriate for securing the effective
assessment of the quality of, and the standards applied to, higher
education provided by English higher education providers.

(3) 5If the Secretary of State decides to designate the recommended body, the
Secretary of State must—

(a) notify the body of the designation before the date on which the
designation takes effect (“the effective date”), and

(b) publish notice of the designation before that date.

(4) 10The notice of the designation must state—

(a) the name of the body, and

(b) the effective date.

(5) If the Secretary of State decides not to designate the recommended body, the
Secretary of State must publish the reasons for not doing so.

15Bodies suitable to perform assessment functions

4 (1) A body is suitable to perform the assessment functions if the body satisfies
conditions A to D.

(2) Condition A is that the body is capable of performing the assessment
functions in an effective manner.

(3) 20Condition B is that—

(a) the persons who determine the strategic priorities of the body
represent a broad range of registered higher education providers,

(b) the body commands the confidence of registered higher education
providers, and

(c) 25the body exercises its functions independent of any particular higher
education provider.

(4) Condition C is that the body consents to being designated under this
Schedule.

(5) Condition D is that the body is a body corporate and is not—

(a) 30a servant or agent of the Crown, or

(b) a body to which the Secretary of State appoints members.

Removal of designation

5 (1) The Secretary of State may by notice remove a designation under this
Schedule.

(2) 35The notice must—

(a) include the reasons for the Secretary of State’s decision, and

(b) specify the date on which the designation is removed.

(3) The Secretary of State may only remove the designation if—

(a) the Secretary of State is satisfied that removing the designation
40would be appropriate for securing the effective assessment of the
quality of, and the standards applied to, higher education provided
by English higher education providers, or

(b) the designated body consents to the removal of the designation.

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(4) Before removing the designation the Secretary of State must consult—

(a) the OfS,

(b) a number of registered higher education providers that, taken
together, appear to the Secretary of State to comprise a broad range
5of the different types of such providers,

(c) a number of persons that, taken together, appear to the Secretary of
State to represent, or promote the interests of, a broad range of
students on higher education courses provided in England by
registered higher education providers,

(d) 10a number of persons that, taken together, appear to the Secretary of
State to represent, or promote the interests of, a broad range of
employers of graduates, and

(e) such other persons as the Secretary of State considers appropriate.

(5) In determining whether a designation under this Schedule should be
15removed, the Secretary of State must have regard to any relevant
information that the OfS has provided to the Secretary of State.

(6) The Secretary of State must publish a notice under this paragraph.

Part 2 Oversight by the OfS

20Application

6 This Part applies if there is a body designated under this Schedule to
perform the assessment functions.

Oversight arrangements

7 The OfS must make arrangements for holding the designated body to
25account for the performance of the assessment functions.

Annual report by the designated body

8 (1) As soon as possible after the end of each annual reporting period, the
designated body must prepare and send to the OfS a report about the
performance of the assessment functions during the period.

(2) 30“Annual reporting period”, in relation to a designated body, means—

(a) the period of 12 months beginning with the effective date, and

(b) each successive period of 12 months.

Triennial report by the OfS

9 (1) As soon as possible after the end of each triennial reporting period, the OfS
35must prepare and send to the Secretary of State a triennial report about—

(a) how the designated body has performed the assessment functions
during the period,

(b) whether the designated body should continue to be designated
under Part 1 of this Schedule,

(c) 40the appropriateness of any fees charged by the designated body
under section 27, and

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(d) any other matters that the OfS considers relevant.

(2) In preparing a triennial report, the OfS must have regard to any views
provided to the OfS by a person listed in sub-paragraph (3) about—

(a) the matters listed in sub-paragraph (1)(a) to (c), and

(b) 5what other matters, if any, should be dealt with in the report.

(3) Those persons are—

(a) registered higher education providers,

(b) persons representing, or promoting the interests of, students on
higher education courses provided in England by registered higher
10education providers,

(c) persons representing, or promoting the interests of, employers of
graduates, and

(d) such other persons as the OfS considers appropriate.

(4) “Triennial reporting period”, in relation to a designated body, means—

(a) 15the period of 3 years beginning with the effective date, and

(b) each successive period of 3 years.

Power of the OfS to give directions

10 (1) The OfS may give the designated body general directions about the
performance of any of the assessment functions.

(2) 20In giving such directions, the OfS must have regard to the need to protect the
expertise of the designated body.

(3) Such directions must relate to—

(a) English higher education providers or registered higher education
providers generally, or

(b) 25a description of such providers.

(4) The designated body must comply with any directions given under this
paragraph.

Duty of the OfS to inform the Secretary of State about significant concerns

11 The OfS must inform the Secretary of State if it has significant concerns
30about—

(a) how the designated body is performing the assessment functions, or

(b) the continued suitability of the designated body to carry out those
functions.

Part 3 35Interpretation

12 (1) In this Schedule—

  • “assessment functions” has the meaning given in section 26;

  • “designated body” means a body for the time being designated under
    this Schedule;

  • 40“the effective date”, in relation to a designated body, has the meaning
    given in paragraph 3;

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  • “graduate” means a graduate of a higher education course provided in
    England by a registered higher education provider;

  • “standards” has the same meaning as in section 13(1)(a).

(2) References in this Schedule to a body that is suitable to perform the
5assessment functions are to be read in accordance with paragraph 4.

Section 56

SCHEDULE 5 Powers of entry and search etc

Power to issue search warrant

1 (1) A justice of the peace who is satisfied that the requirements in sub-
10paragraph (3) are met in relation to relevant higher education premises may
issue a warrant under this paragraph (a “search warrant”) in respect of the
premises.

(2) “Relevant higher education premises” means premises in England which—

(a) are occupied by a supported higher education provider or a linked
15institution in relation to such a provider, and

(b) are used for, or in connection with, the provision of higher education
courses by such a provider,

but does not include premises which are used wholly or mainly as a private
dwelling.

(3) 20The requirements of this sub-paragraph are met in relation to premises
occupied by a supported higher education provider or a linked institution in
relation to such a provider if—

(a) there are reasonable grounds for suspecting that there is, or has been,
a breach of a registration condition or funding condition of the
25provider,

(b) the suspected breach is sufficiently serious to justify entering the
premises,

(c) entry to the premises is necessary to determine whether the
suspected breach is taking place or has taken place, and

(d) 30either of the requirements in sub-paragraph (4) is met.

(4) The requirements referred to in sub-paragraph (3)(d) are—

(a) that entry to the premises has been, or it is likely to be, refused;

(b) that requesting entry may frustrate or seriously prejudice the
purpose of entry.

(5) 35References in this Schedule to a registration condition of a supported higher
education provider are to an ongoing registration condition of the provider
(see section 3(8)).

(6) References in this Schedule to a funding condition of a supported higher
education provider are to—

(a) 40a term or condition subject to which a grant, loan or other payment
under section 37 or 38 (financial support for providers) was paid to
the provider, or

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(b) a condition imposed on the provider by or under regulations made
under section 22 of the Teaching and Higher Education Act 1998
(financial support for students) in connection with the designation of
a course for the purposes of that section.

5Application for search warrant by an authorised person

2 (1) A search warrant may be issued only on the application of a person
authorised in writing by the OfS or the Secretary of State to exercise the
powers conferred by a search warrant (an “authorised person”).

(2) An application for a search warrant in respect of premises may be made
10without notice being given to—

(a) the supported higher education provider or linked institution
occupying the premises, or

(b) any other persons who may be affected by it.

(3) An application for a search warrant in respect of premises must be
15supported by an information in writing.

(4) An authorised person applying for a search warrant must answer on oath
any question that the justice of the peace hearing the application asks the
person.

Search warrant

3 (1) 20A search warrant must—

(a) specify the name of the authorised person who applied for it,

(b) specify the date on which it is issued,

(c) state that it is issued under this Schedule,

(d) specify the premises to be searched,

(e) 25specify the supported higher education provider or linked
institution occupying the premises, and

(f) identify, so far as is possible, the suspected breach of a registration
condition or funding condition of the provider.

(2) A search warrant may permit or require a constable to accompany an
30authorised person who is executing it.

(3) A search warrant authorises an authorised person to enter each set of
premises specified in the warrant on one occasion only unless it specifies
that it authorises multiple entries.

(4) If a search warrant specifies that it authorises multiple entries, it must also
35specify whether the number of entries authorised is unlimited or limited to
a specified maximum.

(5) Two copies must be made of a search warrant that specifies only one set of
premises and does not authorise multiple entries.

(6) As many copies as are reasonably required may be made of any other kind
40of search warrant.

(7) The copies made under sub-paragraphs (5) and (6) must be clearly certified
as copies.

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Powers conferred by search warrant

4 (1) A search warrant authorises an authorised person—

(a) to enter the premises specified in the warrant at a reasonable hour,

(b) to search the premises to the extent that is reasonably required for the
5purpose of determining whether there is, or has been, a breach of a
registration condition or funding condition of the relevant supported
higher education provider,

(c) for that purpose, to inspect items found on the premises,

(d) for that purpose, to copy documents found on the premises, and

(e) 10to seize and retain items found on the premises which the authorised
person reasonably believes are evidence of a breach of a registration
condition or a funding condition of the relevant supported higher
education provider.

(2) A search warrant may be executed by any authorised person.

(3) 15A constable accompanying an authorised person under paragraph 3(2) may,
if necessary, use reasonable force to enable the exercise of the powers
conferred by the warrant.

(4) An authorised person entering premises under a search warrant may—

(a) be accompanied by such other persons as the authorised person
20considers necessary, and

(b) take onto the premises such equipment as the authorised person
considers necessary.

Entering and searching premises

5 (1) Where the occupier of the premises to be entered and searched is present at
25the time when an authorised person seeks to execute a search warrant, the
authorised person must—

(a) identify himself or herself to the occupier,

(b) produce to the occupier documentary evidence that he or she is an
authorised person,

(c) 30produce the search warrant to the occupier, and

(d) supply the occupier with a certified copy of it.

(2) Where the occupier of the premises is not present at the time when an
authorised person seeks to execute a search warrant—

(a) if another person who appears to the authorised person to be in
35charge of the premises is present, sub-paragraph (1) has effect as if
references to the occupier were references to the other person;

(b) if there is no such person present, the authorised person must leave
a certified copy of the warrant in a prominent place on the premises.

(3) An authorised person who enters premises under a search warrant must
40take reasonable steps to ensure that, when the authorised person leaves the
premises, they are as secure as they were before the authorised person
entered them.

(4) Entry and search under a search warrant may not take place after the end of
the period of one month beginning with the date on which it is issued.

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Inspecting, copying, seizing and retaining items

6 (1) The powers conferred by a search warrant to inspect, copy, seize and retain
items found on premises include—

(a) power to require a person on the premises who is holding or
5accountable for items that are on the premises to produce them,

(b) power to require a person on the premises to provide an explanation
of an item or state where an item may be found,

(c) in relation to documents kept by means of a computer, power to
require them to be produced in a form in which they are legible and
10can be taken away, and

(d) power to require a person on the premises to provide such other
assistance as the authorised person may reasonably require.

(2) Those powers also include—

(a) power to check the operation of a computer or electronic storage
15device, and

(b) power to require a person within sub-paragraph (3) to provide the
authorised person with such reasonable assistance as the authorised
person may require for that purpose.

(3) A person is within this sub-paragraph if the person is—

(a) 20a person by whom or on whose behalf the computer or device is or
has been used, or

(b) a person having charge of, or otherwise concerned with the
operation of, the computer or device.

(4) The power conferred by a search warrant to inspect, copy, seize and retain
25items does not include power to inspect, copy, seize or retain excluded
items.

(5) “Excluded items” means items that are—

(a) items subject to legal privilege (as defined in section 10 of the Police
and Criminal Evidence Act 1984);

(b) 30excluded material (as defined in section 11 of that Act);

(c) special procedure material (as defined in section 14 of that Act).

(6) If an item is seized from premises in the exercise of powers conferred by a
search warrant, the authorised person executing the warrant—

(a) must make reasonable efforts to give a notice to a person who
35appears to be the occupier of the premises or otherwise to be in
charge of the premises (an “affected person”), and

(b) if it is not reasonably practicable to do so, must leave a copy of the
notice in a prominent place on the premises.

(7) A notice under sub-paragraph (6) must—

(a) 40state what has been seized and the reason for its seizure, and

(b) specify which registration condition or funding condition the
authorised person believes has been breached.

(8) An authorised person exercising powers under a search warrant must—

(a) make a record of items seized from premises in the exercise of the
45powers, and

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(b) if a person who appears to the authorised person to be an affected
person in relation to the premises asks for a copy of that record,
provide a copy of that record to that person within a reasonable time.

(9) An item which is seized in the exercise of powers under a search warrant
5may be retained as long as is necessary in all the circumstances, including for
use as evidence on a prosecution for an offence.

(10) An item may not be retained for use as evidence on a prosecution for an
offence if a photograph or a copy would be sufficient for that purpose.

(11) Nothing in this paragraph confers power to search a person.

10Offence

7 (1) A person commits an offence if, without reasonable excuse, the person—

(a) intentionally obstructs the exercise of a power conferred by a search
warrant, or

(b) fails to comply with a requirement reasonably imposed in the
15exercise of a power conferred by a search warrant.

(2) A person guilty of an offence under this paragraph is liable on summary
conviction to a fine not exceeding level 4 on the standard scale.

Self-incrimination

8 (1) An explanation or information provided by a person in response to a
20requirement under paragraph 6(1)(b) or (d) or (2)(b) may be used in
evidence against the person, subject to sub-paragraphs (2) to (4).

(2) In criminal proceedings against the person—

(a) no evidence relating to the explanation or information may be
adduced by or on behalf of the prosecution, and

(b) 25no question relating to it may be asked by or on behalf of the
prosecution.

(3) Sub-paragraph (2) does not apply if the proceedings are for—

(a) an offence under paragraph 7 of this Schedule, or

(b) an offence under section 5 of the Perjury Act 1911 (false statements
30made otherwise than on oath).

(4) Sub-paragraph (2) does not apply if, in the proceedings—

(a) evidence relating to the explanation or information is adduced by or
on behalf of the person who provided it, or

(b) a question relating to it is asked by or on behalf of that person.

35Interpretation

9 (1) In this Schedule—

  • “authorised person” has the meaning given in paragraph 2;

  • “document” means anything in which information of any description is
    recorded;

  • 40“item” includes—

    (a)

    a document;

    (b)

    a computer or electronic storage device;

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  • “linked institution”, in relation to a supported higher education
    provider, has the meaning given in section 56(3);

  • “relevant supported higher education provider” means—

    (a)

    in the case of premises occupied by a supported higher
    5education provider, that provider, and

    (b)

    in the case of premises occupied by a linked institution in
    relation to a supported higher education provider, that
    provider;

  • “supported higher education provider” has the meaning given in
    10section 56(2).

(2) For the purposes of this Schedule, references to items found on premises
include—

(a) documents stored on computers or electronic storage devices on the
premises, and

(b) 15documents stored elsewhere which can be accessed by computers on
the premises.

Section 60

SCHEDULE 6 English higher education information: designated body

Part 1 20Designation

Recommendation

1 (1) The OfS may recommend to the Secretary of State that a body is designated
for the purposes of section 59.

(2) The OfS may recommend a body only if it considers that the body is suitable
25to be designated under this Schedule.

Consultation prior to recommendation

2 (1) Before recommending the designation of a body under this Schedule, the
OfS must consult in accordance with sub-paragraph (3) about whether there
is a body that is suitable to be designated under this Schedule.

(2) 30The Secretary of State may direct the OfS to consult in accordance with sub-
paragraph (3) about whether there is a body that is suitable to be designated
under this Schedule.

(3) The OfS consults in accordance with this sub-paragraph if it consults—

(a) a number of registered higher education providers that, taken
35together, appear to the OfS to comprise a broad range of the different
types of such providers,

(b) a number of persons that, taken together, appear to the OfS to
represent, or promote the interests of, a broad range of students on
higher education courses provided in England by registered higher
40education providers,

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(c) a number of persons that, taken together, appear to the OfS to
represent, or promote the interests of, a broad range of employers of
graduates, and

(d) such other persons as the OfS considers appropriate.

(4) 5If the OfS consults in accordance with this paragraph, it must—

(a) decide whether to recommend the designation of a body under this
Schedule, and

(b) notify the Secretary of State of its decision.

(5) The OfS must publish its decision under sub-paragraph (4).

10Designation

3 (1) This paragraph applies where, in accordance with paragraphs 1 and 2, the
OfS recommends the designation of a body (“the recommended body”)
under this Schedule.

(2) The Secretary of State may designate the recommended body only if the
15Secretary of State considers that the body is suitable to be designated under
this Schedule.

(3) If the Secretary of State decides to designate the recommended body, the
Secretary of State must—

(a) notify the body of the designation before the date on which the
20designation takes effect (“the effective date”), and

(b) publish notice of the designation before that date.

(4) The notice of the designation must state—

(a) the name of the body, and

(b) the effective date.

(5) 25If the Secretary of State decides not to designate the recommended body, the
Secretary of State must publish the reasons for not doing so.

Bodies suitable to be designated under this Schedule

4 (1) A body is suitable to be designated under this Schedule if the body satisfies
conditions A to D.

(2) 30Condition A is that the body is capable of performing the duty of the
relevant body under section 59(1) in an effective manner.

(3) Condition B is that—

(a) the persons who determine the strategic priorities of the body
represent a broad range of registered higher education providers,

(b) 35the body commands the confidence of registered higher education
providers, and

(c) the body exercises its functions independent of any particular higher
education provider.

(4) Condition C is that the body consents to being designated under this
40Schedule.

(5) Condition D is that the body is a body corporate and is not—

(a) a servant or agent of the Crown, or