My Lords, as the noble Baroness, Lady Wolf, set out very clearly, her amendment would allow the OfS to place,
“quantitative restrictions on the number of new students that the provider may enrol”,
if it has,
“reasonable grounds for believing that a registered higher education provider is in breach of an ongoing registration condition with respect to the quality of the higher education provided … or to its ability to implement a student protection plan”.
She went into some interesting and rather unfortunate detail about what can happen when colleges or providers get into serious difficulty.
The amendment has echoes of Amendment 142, moved by the noble Lord, Lord Lisvane, last week, which sought to replace the words,
“it appears to the OfS”,
with,
“the OfS has reasonable grounds for believing”,
relating to the power to impose monetary penalties in Clause 15. Restrictions on new students would be a new power following the provisions of Clause 15. In effect, it is another form of monetary penalty, which we support in principle, although we would be concerned if it were left open-ended. As soon as a breach is shown to have been brought to a conclusion, we believe the restriction should be lifted so as not to harm existing students, who are blameless but could be affected—as the noble Baroness, Lady Wolf, graphically explained—to their detriment through the institution either being closed, or having fewer resources.
I read closely the Minister’s response to the noble Lord, Lord Lisvane, from our debates on Wednesday. I cannot say that he made a convincing case for rejecting the rather stronger words in that amendment. He basically stated that as the wording in the Bill is used in other legislation—he quoted the apprenticeships Act of 2009—there was therefore no reason to change it. He did not come up with any other reason, despite the noble Lord, Lord Lisvane, saying in moving the amendment that “it appears to” was but one of the options available and one of the lower ones at that.
Although the words “it appears to” are used in other pieces of legislation, few use the formulation in the context of a decision to take enforcement action,
which is what raises concern with this Bill. The noble Lord, Lord Lisvane, stressed that the aim was to raise the legal threshold before the OfS was entitled to take action. In doing so, he was supported by the noble and learned Lord, Lord Judge, one of whose cases was quoted. It seems at least odd that the Government feel that their lawyers, who I suggest probably do not have the noble and learned Lord’s expertise and experience, know better on this matter. The same applies to some extent to the amendment in the name of the noble Baroness, Lady Wolf. Having had time to reflect, perhaps the Minister will—if not today, before Report—come to the view that it is appropriate to raise the standard required of the OfS in such situations.