Higher Education and Research Bill (HC Bill 78)

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(b) references to higher education do not include education provided by
means of any postgraduate course other than a course of initial teacher
training.

32 Variation of a plan

(1) 5The Secretary of State may, by regulations, make provision enabling an access
and participation plan which has been approved by the OfS under section 28
to be varied.

(2) The regulations must provide for a variation to take effect only if approved by
the OfS.

33 10Review of decisions on approval or variation

Regulations made by virtue of section 28 or 32 must include provision—

(a) requiring any decision of the OfS under section 28 or 32 affecting the
governing body of an institution to have effect in the first instance as a
provisional decision,

(b) 15enabling the governing body to apply for a review of the provisional
decision to a person, or panel of persons, appointed by the Secretary of
State in accordance with the regulations,

(c) enabling the Secretary of State to pay remuneration and allowances to
any person so appointed,

(d) 20prescribing the grounds on which an application for the review of a
provisional decision may be made, and

(e) requiring the OfS to reconsider its provisional decision, and make a
final decision, having regard to any recommendation of the person or
panel.

34 25Advice on good practice

(1) The OfS may—

(a) identify good practice relating to the promotion of equality of
opportunity, and

(b) give advice about such practice to registered higher education
30providers.

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

35 Duty to protect academic freedom

(1) In performing its access and participation functions, the OfS has a duty to
protect academic freedom including, in particular, the freedom of
35institutions—

(a) to 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) 40to determine the criteria for the admission of students and apply those
criteria in particular cases.

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

Higher Education and Research BillPage 21

(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) The Secretary of State may, by direction, require the OfS to report to the
5Secretary 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
direction.

(2) 10“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.

Powers to give financial support

37 15Financial 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 following—

(a) 20the 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 body considers it is necessary or desirable to provide or
25carry 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,
the provision of education by eligible higher education providers receiving
30financial 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) “Qualifying connected institution”, in relation to an eligible higher education
35provider, means a college, school, hall or other institution—

(a) to which the provider’s governing body proposes 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
40for the purposes of that subsection.

(5) “School” has the same meaning as in the Education Act 1996 (see section 4 of
that Act) but also includes a 16 to 19 Academy (as defined in section 1B(3) of
the Academies Act 2010).

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

38 Financial support for certain institutions

(1) The OfS may make grants, loans or other payments to any person in respect of
5expenditure 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 or Wales, or

(b) English further education providers.

(2) 10“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) an 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) 15the 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
this section.

39 Financial support: terms and conditions

(1) 20A 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) enable 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
25sums 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
remains unpaid, and

(c) require a person to whom sums are paid by the OfS to provide the OfS
30with 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
are not derived from the OfS by the provider or any other person to whom the
grant, loan or other payment is made.

(4) 35Before 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) 40a registered higher education provider to grant taught awards or
research awards or both;

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

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(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
description;

(b) 5specified taught awards, research awards or foundation degrees;

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

(3) In this Part—

  • “taught award” means a degree, diploma, certificate or other academic
    10award 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
    programme of supervised research and satisfy an appropriate
    15assessment;

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

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

(a) 20the 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
proposes to do as regards making arrangements for securing that any person
25granted 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) An authorisation under subsection (1) must specify—

(a) 30the 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
taught awards, research awards or foundation degrees (as the case may be) to
35persons 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
40assessments, 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
authorisation may be exercised.

(9) An authorisation under subsection (1) may restrict the power to grant an
45authorised 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.

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(10) 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.

(11) An order under subsection (1) may make incidental, supplementary,
5transitional or saving provision.

(12) In this section—

  • “assessment” includes examination and test;

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

  • “qualifying further education provider” means an English further
    10education provider which is a registered higher education provider;

  • “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
15authorise other institutions to grant on the provider’s behalf—

(a) all 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) 20An authorisation under section 40(1)(a) includes—

(a) power 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
25award granted by or on behalf of the provider in pursuance of the
authorisation,

(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
30degrees of a specified description, to members of the academic or other
staff 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
35another institution,

(b) power 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
40degrees of a specified description, and

(d) power to grant foundation degrees of any description, or specified
foundation 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
45degree granted jointly with another institution, the power to deprive
mentioned in subsection (2)(b) and (3)(b) is only exercisable jointly with that
institution.

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(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
5an 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) 10The 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,

15to 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) 20The 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) 25An 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 30Variation 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
35authorisation,

the 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
40representations about the proposal (“the specified period”), and

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

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(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
5in 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
10when 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
15could 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 20Appeals 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) 25that 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) 30confirm 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
35an authorised registered higher education provider requiring the provider to
offer to enter into validation arrangements in respect of—

(a) all the taught awards and foundation degrees that the provider is
authorised to grant, or

(b) such of those taught awards and foundation degrees as are specified in
40the 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.

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(3) Commissioning 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
5provider under which the first provider—

(a) grants 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) 10In this section, “authorised”, in relation to a registered higher education
provider, 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) 15by or under any other provision of an Act of Parliament, or

(iii) by 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
20necessary or expedient, the Secretary of State may by regulations—

(a) authorise 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
25the regulations or are of a description so specified.

(2) Regulations 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
30regulations or are of a description so specified.

(3) Regulations 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
authorised registered higher education providers to enter on its behalf into—

(a) 35all the validation arrangements that the OfS is authorised to enter into
by the regulations, or

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

(5) But regulations under subsection (1) may not include power for the OfS to
40authorise a provider to enter on its behalf into validation arrangements which
are—

(a) arrangements in respect of taught awards or foundation degrees that
the provider is not authorised to grant, or

(b) arrangements that the provider is not authorised to enter into.

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(6) 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
OfS under validation arrangements.

(7) In this section, “validation arrangements” means arrangements between the
5OfS 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) authorises the provider to grant a taught award or a foundation degree
on behalf of the OfS.

(8) 10In this section, “authorised”, in relation to a registered higher education
provider, 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) 15by or under any other provision of an Act of Parliament, or

(iii) by Royal Charter, or

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

(9) Validation arrangements may provide for—

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

(b) 20the authorisation to grant a taught award or a foundation degree on
behalf 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
25degrees, etc) is amended as follows.

(2) In 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
30whose activities are carried on, or principally carried on, in Wales.

(9) See 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
351992 before the coming into force of this section.

49 Unrecognised 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) 40an award granted or to be granted by a university, college or
other body which it is authorised to grant by—

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(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) 5regulations 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) 10the authorisation mentioned in paragraph (za), or

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

(3) In 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) 15After subsection (9) insert—

(9ZA) For the purposes of this section as it extends to England and Wales, “the
appropriate 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) 20so far as the power to make an order under that provision is
exercisable in relation to Wales, the Welsh Ministers.”

(6) In 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”
25substitute ““the appropriate authority” means”.

(7) In subsection (10)(a)—

(a) for “means” substitute

(i) means”, and

(b) after “outside the United Kingdom” insert , and

(ii) 30includes the Office for Students”.

50 Unrecognised degrees: supplementary

(1) Section 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) 35for “Secretary of State” substitute “appropriate authority”,

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

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

(3) After subsection (1A) insert—

(1B) “The appropriate authority” means—

(a) 40in the case of a weights and measures authority in England, the
Secretary of State,

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