Higher Education and Research Bill (HC Bill 78)

A

BILL

[AS AMENDED IN PUBLIC BILL COMMITTEE]

TO

Make provision about higher education and research; and to make provision
about alternative payments to students in higher or further education.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 The Office for Students

Establishment of the Office for Students

1 The Office for Students

(1) 5A body corporate called the Office for Students is established.

(2) In this Act that body is referred to as “the OfS”.

(3) Schedule 1 contains further provision about the OfS.

2 General duties

(1) In performing its functions, the OfS must have regard to—

(a) 10the need to promote quality, and greater choice and opportunities for
students, in the provision of higher education by English higher
education providers,

(b) the need to encourage competition between English higher education
providers in connection with the provision of higher education where
15that competition is in the interests of students and employers,

(c) the need to promote value for money in the provision of higher
education by English higher education providers,

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(d) the need to promote equality of opportunity in connection with access
to and participation in higher education provided by English higher
education providers,

(e) the need to use the OfS’s resources in an efficient, effective and
5economic way, and

(f) so far as relevant, the principles of best regulatory practice, including
the principles that regulatory activities should be—

(i) transparent, accountable, proportionate and consistent, and

(ii) targeted only at cases in which action is needed.

(2) 10In performing its functions, including its duties under subsection (1), the OfS
must have regard to guidance given to it by the Secretary of State.

(3) In giving such guidance, the Secretary of State must have regard to the need to
protect academic freedom, including, in particular, the freedom of English
higher education providers—

(a) 15to determine the content of particular courses and the manner in which
they are taught, supervised and assessed,

(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
20criteria in particular cases.

(4) The guidance may, in particular, be framed by reference to particular courses
of study but it must not relate to—

(a) particular parts of courses of study,

(b) the content of such courses,

(c) 25the manner in which they are taught, supervised or assessed,

(d) the criteria for the selection, appointment or dismissal of academic
staff, or how they are applied, or

(e) the criteria for the admission of students, or how they are applied.

(5) Guidance given by the Secretary of State to the OfS which relates to English
30higher education providers must apply to such providers generally or to a
description of such providers.

The register of English higher education providers

3 The register

(1) The OfS must establish and maintain a register of English higher education
35providers (referred to in this Part as “the register”).

(2) The register may be divided by the OfS into different parts representing such
different categories of registration as the OfS may determine.

(3) The OfS must register an institution in the register (or, where it has been
divided into parts, in a particular part of the register) if—

(a) 40its governing body applies for it to be registered in the register (or in
that part),

(b) it is, or intends to become, an English higher education provider,

(c) it satisfies the initial registration conditions applicable to it in respect of
the registration sought (see section 5), and

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(d) the application complies with any requirements imposed under
subsection (5).

(4) The OfS may not otherwise register an institution in the register.

(5) The OfS may determine—

(a) 5the form of an application for registration in the register (or in a
particular part of the register),

(b) the information to be contained in it or provided with it, and

(c) the manner in which an application is to be submitted.

(6) The Secretary of State may by regulations make provision about the
10information which must be contained in an institution’s entry in the register.

(7) Once registered, an institution’s ongoing registration is subject to satisfying—

(a) the general ongoing registration conditions applicable to it at the time
of its registration and as they may be later revised (see section 5), and

(b) the specific ongoing registration conditions (if any) imposed on it at the
15time of its registration and as they may be later varied (see section 6).

(8) References in this Part to the ongoing registration conditions of an institution
are to the conditions mentioned in subsection (7)(a) and (b).

(9) The OfS must make the information contained in the register, and the
information previously contained in it, publicly available by such means as it
20considers appropriate.

(10) In this Part—

(a) a “registered higher education provider” means an institution which is
registered in the register, and

(b) references to “registration” are to be read accordingly.

4 25Registration procedure

(1) Before refusing an application to register an institution, the OfS must notify the
governing body of the institution of its intention to do so.

(2) The notice must—

(a) specify the OfS’s reasons for proposing to refuse to register the
30institution,

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

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

(3) 35The 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 institution during the specified period in deciding whether to register it
in the register.

(5) 40Having decided whether or not to register the institution, the OfS must notify
the governing body of the institution of its decision.

(6) Where the decision is to register the institution, the notice must—

(a) specify the date of entry in the register, and

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(b) specify the ongoing registration conditions of the institution at that
time.

(7) Where the decision is to refuse to register the institution, the notice must
contain information as to the grounds for the refusal.

5Registration conditions

5 The initial and general ongoing registration conditions

(1) The OfS must determine and publish—

(a) the initial registration conditions, and

(b) the general ongoing registration conditions.

(2) 10Different conditions may be determined—

(a) for different descriptions of provider;

(b) for registration in different parts of the register.

(3) The OfS may revise the conditions.

(4) If the OfS revises the conditions, it must publish them as revised.

(5) 15Before determining or revising the conditions, the OfS must, if it appears to it
appropriate to do so, consult bodies representing the interests of English
higher education providers which appear to the OfS to be concerned.

(6) The OfS may, at the time of an institution’s registration or later, decide that a
particular general ongoing registration condition is not applicable to it.

(7) 20Where the decision is made after the institution’s registration, the OfS must
notify the governing body of the institution of its decision.

6 The specific ongoing registration conditions

(1) The OfS may, at the time of an institution’s registration or later, impose such
conditions on its registration as the OfS may determine (“the specific ongoing
25registration conditions”).

(2) The OfS may at any time vary or remove a specific ongoing registration
condition.

(3) Before—

(a) varying or removing a specific ongoing registration condition on an
30institution’s registration, or

(b) imposing a new specific ongoing registration condition on its
registration,

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

(4) 35The 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 of the institution
may make representations about the proposal (“the specified period”),
and

(c) 40specify the way in which those representations may be made.

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

(6) The OfS must have regard to any representations made by the governing body
of the institution during the specified period in deciding whether to take the
5step in question.

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

(8) If the OfS decides to vary or remove a specific ongoing registration condition
or impose a new specific ongoing registration condition, the notice must—

(a) 10specify the condition (as varied), the condition being removed or the
new condition (as the case may be), and

(b) specify the date when the variation, removal or imposition takes effect.

(9) For the purposes of this section, a specific ongoing registration condition is
“new” if it is imposed otherwise than at the time of the institution’s
15registration.

7 Proportionate conditions

(1) The OfS must ensure that the initial registration conditions applicable to an
institution and its ongoing registration conditions are proportionate to the
OfS’s assessment of the regulatory risk posed by the institution.

(2) 20“Regulatory risk” means the risk of the institution, when it is registered, failing
to comply with regulation by the OfS.

(3) In light of its duty under subsection (1), the OfS must keep the initial
registration conditions applicable to an institution and its ongoing registration
conditions under review.

25Mandatory registration conditions

8 Mandatory ongoing registration conditions for all providers

(1) The OfS must ensure that the ongoing registration conditions of each
registered higher education provider include—

(a) a condition that requires the governing body of the provider to notify
30the OfS of any change of which it becomes aware which affects the
accuracy of the information contained in the provider’s entry in the
register,

(b) a condition that requires the governing body of the provider to provide
the OfS with such information for the purposes of the performance of
35the OfS’s functions as the OfS may require it to provide, and

(c) a condition that requires the governing body of the provider to provide
a designated body with such information for the purposes of the
performance of its duty under section 59(1) (duty to publish English
higher education information) as the body may require it to provide.

(2) 40In subsection (1)(c), “designated body” means a body for the time being
designated under Schedule 6.

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9 Mandatory transparency condition for certain providers

(1) The OfS must ensure that the ongoing registration conditions of each
registered higher education provider of a prescribed description include a
transparency condition.

(2) 5A transparency condition is a condition that requires the governing body of a
registered higher education provider to provide to the OfS, and publish, such
information as the OfS requests in relation to one or more of the following—

(a) the number of applications for admission on to higher education
courses that the provider has received;

(b) 10the number of those applications that were received according to—

(i) gender,

(ii) ethnicity, and

(iii) socio-economic background;

(c) the number of offers made by the provider in relation to those
15applications;

(d) the number of those offers that were accepted;

(e) the number of students who accepted those offers that completed their
course with the provider.

(3) “Prescribed” means prescribed by regulations made by the Secretary of State
20for the purposes of this section.

10 Mandatory fee limit condition for certain providers

(1) The OfS must ensure that the ongoing registration conditions of each
registered higher education provider of a prescribed description include a fee
limit condition.

(2) 25In this Part, “a fee limit condition” means a condition that requires the
governing body of the provider to secure that regulated course fees do not
exceed the fee limit.

(3) “Regulated course fees” are fees payable to the provider by a qualifying
person—

(a) 30in connection with his or her undertaking a qualifying course, and

(b) in respect of an academic year applicable to that course which begins at
the same time as, or while, the provider is registered in the register.

(4) A “qualifying person” means a person who—

(a) is not an international student, and

(b) 35is within a prescribed description of persons.

(5) An “international student” means a person who is not within any description
of persons prescribed under section 1 of the Education (Fees and Awards) Act
1983 (charging of higher fees in case of students without prescribed connection
with the UK) for the purposes of subsection (1) or (2) of that section.

(6) 40A “qualifying course” means a higher education course of a prescribed
description.

(7) The power to prescribe descriptions of higher education course under
subsection (6) may not be exercised in such a way as to discriminate—

(a) in relation to courses of initial teacher training, between different
45courses on the basis of the subjects in which such training is given, and

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(b) in relation to other courses, between different courses at the same or a
comparable level on the basis of the areas of study or research to which
they relate.

(8) The OfS has no power, apart from this section, to limit the fees payable to an
5English higher education provider.

(9) In this section—

  • “higher education course” does not include any postgraduate course
    other than a course of initial teacher training;

  • “prescribed” means prescribed by regulations made by the Secretary of
    10State for the purposes of this section.

(10) Schedule 2 contains provision about determining “the fee limit”; see section
78(2) for the meaning of “fees”.

11 Duty to publish a list regarding the fee limit condition

(1) The OfS must publish in each year a list of—

(a) 15the registered higher education providers who have a fee limit
condition as an ongoing registration condition, and

(b) the fee limits as determined under Schedule 2 in relation to each of
those providers for fees in connection with each qualifying course
provided by the provider in respect of each relevant academic year.

(2) 20A “relevant academic year”, in relation to a qualifying course, is an academic
year which is applicable to the course and which is due to start in the calendar
year after the calendar year in which the list is published.

(3) The OfS must send a copy of each published list to the Secretary of State who
must lay it before Parliament.

(4) 25The Secretary of State may by regulations prescribe the date by which a list
under this section must be published by the OfS.

12 Mandatory access and participation plan condition for certain institutions

(1) This section applies where—

(a) a fee limit condition will be or is one of the ongoing registration
30conditions of an institution, and

(b) the governing body of the institution requests the imposition of an
access and participation plan condition in order to access the higher fee
limits available in respect of the fee limit condition for institutions who
have such a plan.

(2) 35An access and participation plan condition—

(a) may be an initial registration condition that is applicable to the
institution, and

(b) must be one of its ongoing registration conditions.

(3) In this Part, “an access and participation plan condition”, in relation to an
40institution, means a condition requiring that—

(a) there is an access and participation plan in relation to the institution
which—

(i) has been approved by the OfS under section 28 (power to
approve an access and participation plan), and

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(ii) is in force, and

(b) the governing body of the institution complies with the general
provisions of that plan (within the meaning of section 31).

(4) A governing body of an institution is not to be regarded as having failed to
5comply with the requirement mentioned in subsection (3)(b) by reason of its
failure to comply with a general provision of the plan if it shows that it has
taken all reasonable steps to comply with the provision.

Other registration conditions

13 Other initial and ongoing registration conditions

(1) 10The initial or ongoing registration conditions may, in particular, include—

(a) a condition relating to the quality of, or the standards applied to, the
higher education provided by the provider (including requiring the
quality to be of a particular level or particular standards to be applied);

(b) a public interest governance condition (see section 14);

(c) 15a condition relating to the provider having a student protection plan
which has the OfS’s approval (including requiring the provider to have
such a plan);

(d) a condition requiring the payment of a fee charged under section 63(1)
(initial fee and annual fee for ongoing registration);

(e) 20a condition requiring the payment of a fee charged under section 27 or
61 (fees charged by designated bodies) or section 64(1) (other fees
charged by the OfS).

(2) For the purposes of subsection (1)(a), “standards” means the standards used by
an institution to ascertain the level of achievement attained by a student
25undertaking a higher education course provided by it.

(3) For the purposes of subsection (1)(c), “a student protection plan” is a plan for
the protection of students if an event specified by the OfS were to occur (for
example, the closure of a course).

14 Public interest governance condition

(1) 30For the purposes of section 13(1)(b), “a public interest governance condition”
in relation to a provider means a condition requiring the provider’s governing
documents to be consistent with the principles in the list published under this
section, so far as applicable to the provider.

(2) The OfS must determine and publish a list of principles applicable to the
35governance of English higher education providers.

(3) The principles must be those that the OfS considers will help to ensure that
English higher education providers perform their functions in the public
interest.

(4) The list may include different principles for different descriptions of English
40higher education providers.

(5) The OfS may revise the list.

(6) If the OfS revises the list, it must publish it as revised.

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(7) The list (as originally determined and as revised) must include the principle
that academic staff at an English higher education provider have freedom
within the law—

(a) to question and test received wisdom, and

(b) 5to put forward new ideas and controversial or unpopular opinions,

without placing themselves in jeopardy of losing their jobs or privileges they
may have at the provider.

(8) Before determining or revising the list, the OfS must consult—

(a) bodies representing the interests of English higher education providers
10which appear to the OfS to be concerned,

(b) the Secretary of State, and

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

Enforcement of ongoing registration conditions

15 Power to impose monetary penalties

(1) 15The OfS may impose a monetary penalty on a registered higher education
provider if it appears to the OfS that there is or has been a breach of one of its
ongoing registration conditions.

(2) A “monetary penalty” is a requirement to pay the OfS a penalty of an amount
determined by the OfS in accordance with regulations made by the Secretary
20of State.

(3) The Secretary of State may by regulations make provision about matters to
which the OfS must, or must not, have regard in exercising its power under
subsection (1).

(4) Schedule 3 contains provision about—

(a) 25the procedure for imposing a monetary penalty,

(b) rights of appeal,

(c) the recovery of the penalty and interest, and

(d) the retention of sums received.

16 Suspension of registration

(1) 30The OfS may suspend a registered higher education provider’s registration if
it appears to the OfS that there is or has been a breach of one of its ongoing
registration conditions.

(2) Where a provider’s registration is suspended, the OfS—

(a) must specify the purposes for which the provider is not to be treated as
35a registered higher education provider during the suspension (“the
excepted purposes”), and

(b) may impose conditions on the governing body of the provider which,
if satisfied, will result in the OfS lifting the suspension (“the remedial
conditions”).

(3) 40During the suspension of a provider’s registration—

(a) the provider is treated as a registered higher education provider for all
purposes other than the excepted purposes, and

(b) the provider’s entry in the register remains but must specify—