Y Pwyllgor Plant, Pobl Ifanc ac Addysg - Y Bumed Senedd

Children, Young People and Education Committee - Fifth Senedd

18/07/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Dawn Bowden Cadeirydd Dros Dro y Pwyllgor
Temporary Committee Chair
Hefin David
Janet Finch-Saunders
Sian Gwenllian
Suzy Davies

Y rhai eraill a oedd yn bresennol

Others in Attendance

Ben Arnold Cynghorydd Polisi, Prifysgolion Cymru
Policy Adviser, Universities Wales
Bethan Owen Dirprwy Brif Weithredwr, Cyngor Cyllido Addysg Uwch Cymru
Deputy Chief Executive, Higher Education Funding Council for Wales
Dr Bethan Winter Swyddog Polisi a Chyfathrebu, Undeb Prifysgolion a Cholegau Cymru
Policy and Communications Officer, University and College Union Wales
Dr David Blaney Prif Weithredwr, Cyngor Cyllido Addysg Uwch Cymru
Chief Executive, Higher Education Funding Council for Wales
Emil Evans Dirprwy Bennaeth, Coleg Caerdydd a'r Fro
Vice Principal, Cardiff and Vale College
Jassa Scott Cyfarwyddwr Strategol, Estyn
Strategic Director, Estyn
Joni Alexander Cyfarwyddwr Dros Dro, Undeb Cenedlaethol y Myfyrwyr Cymru
Interim Director, National Union of Students Wales
Maggie Griffiths Pennaeth Cynorthwyol, Grŵp Llandrillo Menai
Assistant Principal, Grŵp Llandrillo Menai
Margaret Phelan Swyddog Undeb Prifysgolion a Cholegau Cymru
University and College Union Wales Official
Meilyr Rowlands Prif Arolygydd Ei Mawrhydi, Estyn
Her Majesty's Chief Inspector, Estyn
Mike Williams Pennaeth Cynorthwyol, Coleg Sir Gâr/Coleg Ceredigion
Assistant Principal, Coleg Sir Gâr/Coleg Ceredigion
Professor Elizabeth Treasure Dirprwy Gadeirydd, Prifysgolion Cymru
Deputy Chair, Universities Wales
Professor Julie Lydon Cadeirydd, Prifysgolion Cymru
Chair, Universities Wales
Rob Simkins Llywydd, Undeb Cenedlaethol y Myfyrwyr Cymru
President, National Union of Students Wales

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Gareth Rogers Ail Glerc
Second Clerk
Phil Boshier Ymchwilydd
Researcher
Sarah Bartlett Dirprwy Glerc
Deputy Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 09:17.

The meeting began at 09:17.

Ethol Cadeirydd Dros Dro
Election of a Temporary Chair

Good morning, and welcome to the Children, Young People and Education Committee. We've received notification from the Chair, Lynne Neagle, that she's unable to attend the start of today's proceedings. In the absence of the Chair, and in accordance with Standing Order 17.22, I therefore call for nominations to appoint a temporary Chair.

Thank you. As there are no further nominations, I therefore declare that Dawn Bowden has been appointed temporary Chair. Thank you, Dawn.

Penodwyd Dawn Bowden yn Gadeirydd dros dro.

Dawn Bowden was appointed temporary Chair.

1. Cyflwyniad, Ymddiheuriadau, Dirprwyon a Datgan Buddiannau
1. Introductions, Apologies, Substitutions and Declarations of Interest

Thank you, and thanks to the rest of the committee for that support. Can I just move on to item 1 and ask if there are any further apologies this morning? I don't think there are. Hefin David will not be with us this afternoon but will be substituted by Alun Davies AM. So, just if we can note that. Are there any Members who wish to declare any interests before we continue? No.

2. Craffu ar ôl Deddfu ar Ddeddf Addysg Uwch (Cymru) 2015: Sesiwn Dystiolaeth 1
2. Post-legislative Scrutiny of the Higher Education (Wales) Act 2015: Evidence Session 1

If we can move, then, on to item 2, which is the first session of the post-legislative scrutiny of the Higher Education (Wales) Act 2015. This is, as I say, the first session, and we have the panel this morning from Estyn and the Higher Education Funding Council for Wales, so welcome to you all: David Blaney, chief executive of HEFCW, Bethan Owen, deputy chief executive of HEFCW, Meilyr Rowlands, HM chief inspector of Estyn, and Jassa Scott, strategic director of Estyn. Unless any of you have anything that you want to say in terms of opening remarks, we'll move straight into questions. Are you okay with that? That's fine. If I can ask Suzy Davies to open with the first set of questions.

Thank you, Chair. Morning, everybody. I just want to begin by asking some questions about the Act's focus on fair access, and perhaps one of you could start off by telling me why you think it's so important that we have national outcomes as opposed to bespoke outcomes.

Maybe a couple of contextual comments and then address that specifically. I mean, the Act came into being because our previous regulatory powers as HEFCW had effectively been predicated on that which we funded, and with the tuition fee regime, the amount we were funding had dropped. Some institutions were exposed to us for as little as 2 per cent of their overall turnover, so it becomes difficult, then, to base regulation on that which you fund. So, that's why it started. The idea was to give us regulatory powers in lieu of the funding related powers, and that was all a very good idea, actually. What we've discovered in operation is regulation is actually less subtle than funding as a means of encouraging people to respond to policy priorities. So, in terms of the specifics, the importance of being able to have some sense of national priorities is important, because, actually, you have a policy context set by the Government, and we want to encourage institutions to respond to those policy priorities, and one of the best ways of doing that is to have some national targets for that.

The fee and access plan guidance to us—when we were constructing it, we were advised that, actually, we couldn't use national targets and require institutions to respond to those in fee and access plans, so they define their priorities in their way. Now, in the main, they're also responding to what they understand to be policy priorities, but there's a slight disjunction there; it's not as tidy as it could be, because the fee and access plans are about individual institutions and, as I say, we were advised that we couldn't require them to address national priorities. In reality, we're starting to do that a bit now, but it's not supported by the regulatory machinery.

09:20

So, are you saying that the guidance isn't strong enough or isn't directed enough, if I can put it like that, to help you achieve what you want for our universities in terms of regulation?

I think in some ways, it might be the opposite. I think one of the themes for us in the 2015 legislation was it was too prescriptive and there was too rigid an idea of what it was meant to achieve and what the machinery was meant to be and how it was meant to operate. And, actually, what I would advocate is less prescription and more flexibility, which would allow us, in the 2015 and, looking forward to the new post-compulsory education and training body, would allow that body, to, with consultation, construct a framework within the regulations that would be more flexible.

Okay. So, if you're talking about flexible routes, you're still looking at a national outcome. How do those two concepts fit together?

So, I think—. The idea of having national outcomes doesn't actually impinge upon institutional autonomy. We have to recognise that autonomy is a bounded concept where institutions are getting substantial amounts of public money; there's a responsibility that goes with that. And the way in which you have to try and work that is to balance the autonomy with the desire to see good progress towards national policy priorities, and the best way of doing that is to have a flexible regime where institutions can demonstrate individually how they're contributing to those national priorities. And the regulatory body, be it HEFCW now, or, in the future, the new body, can then have the flexibility to encourage or, if necessary, put pressure on institutions to improve their contribution to those priorities but not necessarily be straitjacketed by it.

Okay. So, what you're saying is every institution that's covered by these regulations starts from a different place and so giving them precisely the same route means that they're not going to end up at a, shall we say, collegiate conclusion. Would that be right?

They all have different contributions to make. There's also a theme running, again, through our assessment of the 2015 legislation, which is it's about our relationship as a regulator with individual institutions, and a lot of the progress towards policy priorities is better done collaboratively, but the regulatory machinery focuses on individual institutions.

All right. Thank you very much. You mentioned PCET there: have you got a view about whether the Act relies too heavily on using fee and access plans to focus on widening access? Obviously, universities aren't going to be seeking to be over-regulated, so is there another route in?

I don't think they're over-regulated, but I think what we have found is that funding is a more effective policy lever than regulation—

—and part of that is because, once you get into regulation, it's very prescribed, and, once you start going down a regulatory intervention, you've got very little flexibility to come off that path. Whereas, if you're having a conversation about funding, it can be a lot more subtle, and so—. Now, obviously, in a situation where we didn't have much funding, there wasn't much choice, but we're in a better place now and my view would be: 'Don't over-specify the regulatory machinery. Keep it as flexible as possible'. So, in the end—. There are only eight universities— nine if you include the Open University—in Wales. It's perfectly possible for us to have good conversations with them. We're not dealing with a situation like in England, where there are hundreds of them and you have to have machinery to do it. So, we don't need to over-prescribe the regulation.

Okay. I've got some very specific questions on the frequency and fee and access plans, but I just want to sneak this one in, if I may, Chair. Obviously, the Augar review doesn't directly affect Wales, but in real life, it's going to, isn't it, if any of its recommendations are implemented, and that balance between direct grant funding and student fees could change, would you see that as an opportunity for attaching more conditions to greater grant funding, or shouldn't that matter?

09:25

Well, it'll be interesting to see what does land with Augar. If we got to a situation where there was more of the resource going into the sector coming through HEFCW, then we would be able to use that as a means of exercising policy leverage in a strong way. The more money that comes through us, the more we can exercise policy leverage.

Thank you for that clarity. Just on the fee and access plans, at the moment, you're asking to see annual plans, which isn't necessarily what the Act provides for. I don't think universities are terribly keen on this, because, of course, they're being asked to present plans when they haven't had their plans from two years previously evaluated. What have you got to say about that?

Well, I think the issue about the annual cycle—it is hard work for the institutions, and, for that matter, it's hard work for us. So, there's a bureaucracy around this that is, to be honest, a bit of a pain for all of us.

Well, can I ask why you don't do them just every two years, then, because you've got the option for that?

What you get then—. What we find, even with the annual plans, is that, because institutions need to get these things approved a whole year before the students arrive in order for the students to know what the fee levels are going to be when they apply, essentially, you're getting the plans being written around January, February, March time—a year and a half, almost, before the students arrive. By the time they get there, already some of them are out of date because the world has moved on, and we get quite a lot of variation requests in the summer just before the students start. If we started doing things that are going to then last for two years, actually, the world would move on still further, which gets further variation requests. It is a difficult balance to strike.

The other dimension to this is that we review those plans. So, each one of them is subject to monitoring. You can't start monitoring until after the year that the students have been in, and, actually, there's a time delay beyond that, because of data sets being available. If you had two-year plans, you'd have a year and a bit before the students start, the year the students are there, another year that the students are there, because it's two years, then a delay, then a bit of monitoring. By the time you've discovered whether they've done anything, the whole world has changed at that point. So, long timelines are attractive, but, actually, they mean the machinery just doesn't function.

Can you give us just a little bit of an idea of the variation, because, sitting where I'm sitting, I'm struggling to see what would be so different from year to year?

Well, even relatively minor things like they might have a new relationship with a new franchise partner, and they have to come in and specify that and change that. That sort of fluidity in relationships is a good thing, and it's constant. They might have new courses, or new types of courses, all of which need to be specified in the plan. They might have new locations of delivery; they do that at times. So, there's—. And in that sort of timeline, and particularly given the kind of volatility there is in the higher education world at the moment—you mentioned Augar; there's Brexit, there are all sorts of contextual things that are causing pressures, and institutions are trying to respond to those. They need to be fleet of foot, and this machinery actually is not, really.

Okay. Have there been any unintended consequences—behaviours driven by this annual cycle that are a bit on the unfortunate side, shall we say, short-termism?

I don't think we're seeing huge short-termism. What you do get is strands of continuity running through successive plans, so the activities that institutions do in one year, typically, they will want to do in subsequent years, informed by their evaluation. So, we do ask them to look back at what's happened and inform their future plans, but there's a hiatus there of two or three years, as I've just described. But we do see commonality of activities running through these plans, so I don't think it's as short term as it might feel just because it's a one-year cycle.

Okay, then. A final question from me: obviously, you've got powers to intervene if people, if universities, don't comply with their fee and access plans. Have you ever been close to ever having to need to do that?

We've never had to use our intervention powers, and our sense of how we regulate is that the intervention powers are really used in circumstances where a provider knows exactly what they've got to do and are steadfastly refusing to do it and, happily, we don't have providers who behave like that. There have been one or two occasions where we've had to have what I would call a conversation without coffee with a vice-chancellor, just to encourage a bit more ambition in some of the plans, but the conversation is enough; we haven't had to go beyond that.

Okay. So, connected to this, it's not directly related to fee and access plans, but I represent South Wales West, I'm very concerned about some of the information that seems to be coming out regarding Swansea University and, more lately, Lampeter, just outside my region. Where do your regulatory powers fit in, then? Because, obviously, that's a matter of huge concern to us as Assembly Members, that what are autonomous bodies who still have a level of regulation by HEFCW—we seem to be in the dark about some of the activity there, and HEFCW's role in managing that.

09:30

Obviously there are issues at Swansea that are about individuals, and I don't want to go there.

We couldn't quite understand why HR should result in a delay for the delivery of the accounts on time. That's the connection I couldn't make.

Okay. Well, I can address that. The accounts will come out at some point, but the issues that are being looked at in terms of the disciplinary process could—and I stress could—give rise to concerns about the control machinery within the institution. That's where the auditors have been having a closer look.

That's the connection.

Could I just supplement on that in terms of the regulatory powers? Under the Act, we were required to have a financial management code, and that—in the nature that it was described in the legislation, it was actually quite restrictive in that it was just about the organisation and management of financial affairs. We previously had a machinery, which we've maintained, which is about regulation and governance in its wider sense—

More widely. And, at the moment, because of the restrictive nature of the financial code, we are running with two regulatory frameworks, which is not ideal and we're working to align them. But we're maintaining the funding agreements, or the regulation attached to that, so that we can continue to include some governance oversight, and specifically things around research management, which didn't fit in to the tight definition of financial management in the code. So, that was also a challenge for us in—

Okay. I think you might get some further questions on this alignment issue later, but thank you very much. Thank you, Chair.

Thank you, Suzy. Suzy, you did ask the question about whether the Act relies too heavily on using the fees and access plans to focus on widening access, but we didn't have any comments from Estyn. Do you have some—

Yes. I think what we can add to what David said in terms of our experience from other sectors is you need more tools in the box than just regulation. So, there are important aspects of quality assurance and quality enhancement mechanisms that can encourage the spread of good practice between different providers, so I think it's really important that the quality enhancement body does identify that good practice. So, for example, in our quality work we've been looking at thematic reports that pick up good practice in terms of equality and tackling poverty, in terms of, over the last few years, in the post-16 sector, things like barriers to equality in FE, and youth offending teams and youth support services and that sort of thing. So, it is important that it's more than just regulation in terms of these fee and access plans.

Just to supplement that, I think through ongoing inspection work as well, because, within our frameworks that we use for inspection, there's a very strong emphasis on that equality of access in a number of places, and we do look at that on inspection and we pick up good practice that we can then share. So, there are a number of examples of colleges, and I think because of the range of provision that they do have, they can in some ways work more flexibly. So, they may be doing outreach in the community in terms of English for speakers of other languages, which then engages somebody who can then follow a more vocational FE route, and then progress on to further routes. So, I think there's a definite emphasis, and that drives behaviours in the same way that funding and fee and access plans do—that that actual inclusion and equality framework of equality matters does drive behaviours as well and helps to spread that practice.

Okay, thank you. Thank you very much. We'll now move on to some questions from Janet Finch-Saunders on the gaps in the regulatory framework.

Thank you, Chair. This is mainly for HEFCW, but by all means join in if you wish to come in on this. Part-time and postgraduate provision are not regulated. What impact does this have on delivering the objectives of the Act?

One of the primary objectives of the Act was to ensure robust and proportionate regulation of institutions in Wales whose courses were supported by Welsh Government grants and loans. So, the Act established a regulatory framework around full-time undergraduate provision, so the fee and access plans are focused just on the full-time undergraduate provision. So, part-time and postgraduate provision don’t fall within the regulatory framework of fee and access plans, but part-time undergraduate and postgraduate courses are automatically designated for student support at Welsh publicly funded institutions. So, there is a gap there since the Diamond arrangements have been implemented. There’s provision, obviously, for additional student support now for part-time and postgraduate study, but no similar means to the full-time undergraduate for monitoring the fee levels and seeing the investment in widening access.

Essentially, we have two further education colleges that are now regulated for fee and access plan purposes. So, they’re subject to the same regulatory controls of fee and access plans as higher education institutions. But there’s also part-time undergraduate provision in colleges that are not regulated, in our terminology, and unless those colleges have opted to have course designation—I’ll try not to get too technical—

09:35

Yes, there are gaps there. So, there are colleges that are now choosing to have their quality assessed with the Quality Assurance Agency, but the machinery doesn’t require that. So, there are potential gaps, particularly on the quality assurance aspects of it.

I think, from a student experience perspective, there’s an assurance machinery that the experience that those students are getting is equivalent and the quality of what they’re receiving is that there is some assurance machinery that ensures that that’s consistent with other institutions.

It’s not to say that there is a quality problem with those providers. The reality is that we wouldn’t know because they’re not required to go through the quality machinery that our regulations otherwise require. So, there could be a problem.

In terms of any future post-compulsory education and training Bill, I think we’re concerned that much of the attention has been on FE and work-based and there’s a very large number of smaller sectors that don’t get mentioned a lot in that kind of debate, which we currently inspect, and the list is really quite long: adult education, careers, prison education, independent special colleges, youth work, youth worker training, special schools with sixth forms, post-16 pupils that are placed in independent schools by local authorities, Welsh for adults—it's a really long list, so I think it’s important that we keep those sectors in mind in any future PCET Bill.

I think the other area, which is more to do with HE, is the increasing professionalisation of the workforce in education. So, for example, we inspect initial teacher training in higher education, but you’ve got similar issues, and we don’t currently inspect youth worker training or FE lecturer initial training or work-based learning assessors. So, there’s a potential area there of expansion.

Yes. Those are potential gaps, yes.

I think the public-funded element of it, which I think David touched on there, is an important one, because through the Learning and Skills Act 2000, which gives us our inspection duties and powers, there’s very much a focus on publicly funded education and training. That’s why that whole list is so huge—because there’s a whole range of publicly funded education and training, which people sometimes don’t think about. But nevertheless, that is public funding and should be appropriately quality assured and we should be making sure that, for those learners, a lot of whom are the most vulnerable learners, there are appropriate arrangements to make sure that that funding is being put to good use and is bringing them benefits.

You're okay now. Okay, that's lovely. Thank you.

We'll move on, then, to some questions from Hefin David on the collaboration between further and higher education providers and quality assurance.

09:40

Okay. Just before I explore collaborative activity in a broader sense, can I just read you the evidence from the University and College Union that was received by the committee? They said:

'the requirement placed upon HEFCW to be responsible for the quality of the total provision of an HE provider, including when the registered provider is an FE Institution, is problematic. This is because it means that the quality of provision in these FE Institutions will be inspected by two different bodies with statutory powers to do so—QAA and Estyn',

with QAA contracted to do the quality work on behalf HEFCW. And QAA

'have significantly differing methods and approaches to Estyn—which is ostensibly a schools focused body and, in our view, adds little value to FE quality and the student experience in Wales.' 

It's a bit of a mess.

Well, I'll let Estyn defend themselves, but in terms of the—

In terms of the arrangements under the Act, and Margaret is correct that both Estyn have a statutory responsibility in respect of what goes on in FE colleges and we do in respect of everything in an FE college that happens to be regulated for us. So, if we were not such good friends, you could imagine that we would both be going in there. As it is, we have a perfectly good operational relationship with Estyn. We don't send our people in to look at stuff that they're already doing. So, operationally, we're making it work, but actually I suspect—. My view is that that particular issue in the 2015 legislation was a mistake.

I think it makes perfect sense that we would have responsibility for quality, but I think they just didn't really think about FE colleges coming in, and then you've just got that potential overlap.

And just before I open up to Estyn—there are lessons there, then, for the PCET Bill—

There are. So, my view would be, again, don't over-specify. So, I think the new body should have a statutory responsibility, but then work out how to discharge that responsibility itself, and my view would be that the stuff that goes on in the world of FE and schools should be given to Estyn to look after, because that's where the expertise is.

But wouldn't one regulatory body lead to problems, in that sense, if you're dividing—?

I could see a way of establishing a common set of principles, wherever you are applying a quality frame across from 16 onwards. But the reality is that provision that's HE has to sit within a UK-wide context and, therefore, the body would have to make use of the UK-wide machinery for HE. Using a single made-in-Wales approach for that won't work. So, there are differences between FE, HE and schools, and I think the body needs the flexibility to be able to reflect those differences in its machinery.

Okay, and I think we'll return to that with pre-legislative scrutiny later in the year. Estyn.

I don't think that's a representative view, really, and I'm not just saying that because I'm Estyn. If you look at the responses to the technical consultation, everyone was saying that the mechanisms actually work really well currently, so I'm not sure where that particular comment came from.

I think this talk of having one body is a little bit misleading because if you had one body for FE and HE, you would have a different body for schools. So, where do you have the continuity? Do you have it between schools and FE, and then the argument is that HE is quite different, because you're creating knowledge—it's a different sort of sector and there's quite a lot of commonality between schools and FE, and having that break in quality assurance mechanisms at 16 is problematic in lots of different ways, not least because of the existence of sixth forms.

So, although there could be some lessons to be learnt about tidiness between FE and HE, I think, generally, the mechanisms work really well now. And it even works well in HE, where we inspect initial teacher training, as we were talking about, and potentially other professions, like youth workers and FE lecturers. There isn't any practical problems about that.

There are no practical problems, but there is still, in the Act, the problem of dual responsibility at FE level for regulated institutions, of which there are two.

I think that's something that could be tidied up going forward in the new legislation. I think we're going to be, later this year, starting to consult on new inspection arrangements from 2021. I think there's opportunity to work with stakeholders to build those towards potentially more collaborative arrangements following legislation.

09:45

It works because we've made it work, but I think there is a differentiation. In our inspections, we're looking first-hand at teaching and learning, and that's one of the strong points. That's different from regulating at a fee and access point. So, I think there are ways that we can look at how we think at an institutional level and what's required there in terms of ensuring appropriate governance, strategic management and how we can maybe join up our work there and then supplement that with something that actually drives quality in the day-to-day work of lecturers, tutors et cetera on the ground.

I think UCU made those comments in the technical legislation as well, so they're not new comments, but I think there's a strong evidence base that our impact on FE provision is quite clear. We've got strong relationships, and I think we've seen that the quality of teaching and learning has gone up over the years, and the quality of self-evaluation. People really value things like our peer inspector involvement in inspections—in terms of building evaluative capacity back into the system, it's a really valuable part. So, I think there's potential to tidy it up and build on the current strengths of the two aspects that we have currently.

I think we can call that a robust defence. [Laughter.] Can I come back to HEFCW just about one other issue? You explained the Act limits your ability to facilitate collaborative activity to meet Welsh Government priorities. Can you just elaborate on that? Is that what we're talking about or is there a bigger issue?

There's nothing in the 2015 Act that encourages or facilitates collaboration, effectively, because it's all predicated on individual regulated bodies. So, any encouragement of collaboration, which we undertake, is done outside the Act. And there are times when that's a bit clumsy. Some of the strongest contributions a sector can make in respect of widening access are not actually about the individual institutions and their students, it's about people working together within a region to encourage aspiration. The aspiration might well see people become HE students, but not in that region, it could be somewhere else. And, actually, that's still an important contribution, but it's completely not caught by our regulatory machinery. It is actually caught by our funding interventions. We fund them to behave in these ways. It's back to the point I was making earlier—funding is a much more effective policy lever than regulation.

Okay, that's helpful to know. Chair, shall I move on to—?

And sanctions. Yes. Universities Wales have said that

'The current system provides strictest regulation of the institutions who pose the lowest risk'—

of the existing eight universities.

'At the moment the regulation has been increased for institutions that have already strong track records, rather than new and alternative providers.'

And I'm reading there that they're saying that we've got a heavily regulated sector. Do you think that's the case?

We don't see that they're over-regulated, because the key purpose of regulation is protection of students and the investment of public funds. So, that requires a reasonable level of regulation. The current level is appropriate in view of the challenging environment the sector is in at the moment. Our regulatory process was largely in place before the Act. However, what we would accept and we would agree with is that the Act has introduced additional bureaucracy and administrative challenges for institutions, their governing bodies, and ourselves. So, there certainly is an additional administrative process. The substance of the regulation we don't think is too much. But that's more a result of the implementation details and the processes that have to be followed under the fee and access plans than what we're doing.

Okay. I'm intrigued by something, David Blaney, you said earlier about conversations without coffee with the vice-chancellor. I infer from that that if I'm not offered coffee I'm in trouble. [Laughter.] But they've dealt with issues. So, have you ever issued a direction under the Act—I assume you haven't, from what you've said—or come close to doing so?

Shall I go? We haven't got any examples where we've actually utilised the intervention powers, and it's probably too early to tell whether they are of any help. But, again, the fee and access plan can put us in a process and timeline process that could end up having to make interventions in an unhelpful way from a timing point of view.

09:50

Yes, and that that they give us set timelines as well for certain approvals, whereas you might want to phase the interventions.

But on the whole, you find that informal approaches are effective anyway.

Yes, we have a kind of concept of regulation with four different types of intervention. The most positive is where institutions know what they are meant to do and they are doing it and we can celebrate. At the other extreme, they know what they are meant to do, and they don't want to do it, and we have to slap. In a sense—. I used the term 'slap'. That was in the model; it wasn't my vocabulary. In a sense, the use of our formal intervention tools is in the 'slap' end of the territory, and if we have to get there, my view is that something has gone badly wrong beforehand.

Yes, and Universities Wales said that they believe there is potential for you to issue a direction enforceable by injunction for minor matters. 

There is potential, but it's an extremely long and complex process, and why would you go there if you're acting reasonably and working in partnership, and able to implement by reasonable conversation? So, as David said, you don't get to that stage unless you have someone who is behaving unreasonably and not co-operating.

Not yet. Okay. What kind of regulatory tools would you need in order to be more responsive to these issues? I'm assuming you'd moderate some of the tools.

The tools at the moment are a little bit nuclear. So, we can direct, we can get people to spend money on activity, but all of that can be legally challenged. Then, in the extreme, we can refuse to give them a fee plan, which means that we close them, effectively, because their access to income dries up overnight. Are we going to go there? Well, actually, they have to believe that I might, but it would be a pretty nuclear option to do it.

Well, that's political. We don't do politics. The reality is—. I'm going to be like a stuck record, but, actually, you can be much more effective in encouraging good behaviour in terms of policy priorities with funding. In the end, that works far better.

Thank you for those questions. I move on now to questions from Siân Gwenllian on the making of the Act and the transition arrangements.

Ie, diolch. Rydym wedi cyffwrdd ychydig bach ar hyn yn barod, wrth edrych ymlaen i'r dyfodol, mewn ffordd, a'r gwersi sydd i'w dysgu o Ddeddf 2015. Fe wnaf i ofyn i chi yn gyntaf: dwi'n credu eich bod chi'n dadlau y dylai'r diwygiadau addysg a hyfforddiant ôl-orfodol weld ymddiriedaeth yn y corff newydd hyd braich i ddatblygu'r peirianwaith rheoleiddio gweithredol. Sut gellir sicrhau bod hyn yn gweithio mewn unrhyw Fil addysg a hyfforddiant ôl-orfodol yn y dyfodol? Mae croeso i chi hefyd os oes gennych farn ar hwn hefyd.

Yes, thank you. We have touched on this a little already, in looking ahead to the future and the lessons to be learned from the 2015 Act. I'll ask you first: I think that you argue that the reforms to PCET should show trust in the new arm's-length body to develop the regulatory framework in its operation, or the operational regulatory machinery. How can we ensure that this will work in any future PCET Bill? You can feel free to share your views too.

If I start, you are absolutely right. Our view is absolutely that if you've accepted the conceptual logic of having an arm's-length body—and that seems to be the consensus and it's where the Government is at—then why would you have a dog and bark yourself? The whole point about the arm's-length body is that it should be able to create the machinery within its space to be able to do its job and do it effectively.

The one caveat to that would be—and this is the same in the 1992 legislation that set up the funding council. It's very instructive to look at that, the 1992 Act that set up the funding council. If you look at the clauses that relate to the actual funding council—only about a dozen clauses or something like that; I haven't counted—there is very little detail. It basically says, 'You'll have a council, you'll do some funding and you'll sort out quality.' The reason that the 1992 legislation is still workable today is precisely because it wasn't over-specified. The funding council, over the years, has been able to construct the operational arrangements to do that.

But, the one thing that is in that Act and should be in any other future arrangements is an obligation to consult in respect of the machinery that's put into place. So, that then is the checks and balances, if you like, rather than trying to establish the checks and balances by specifying in legislation and regulation, because this stuff is just too complex to really do that effectively, and what you do is you discover, as we were talking about earlier on, the fact that we have responsibility for quality in FE for those regulated FE colleges. That’s a classic example of how, when you're trying to do these things in regulation or in legislation, it’s so easy to get it wrong. And of course, also, if you think how the world has changed since 1992—it’s massive. It’s a completely different world and yet that legislation is still effective because it’s allowed the flexibility for the body to actually do the job. So, that’s why we think that’s how it should be.

09:55

And I think we agree. I think our response might have been misinterpreted. What we were trying to suggest was that the primary legislation shouldn't be so detailed that it prevents that flexibility, and that, although that might set the broad powers in duties, the actual detail of how that will be delivered should be developed through statutory guidance or regulations by the body itself. So, I think we're agreeing, and if that didn't come across in our written response, then apologies. We weren't seeing a big set of subsequent regulations underneath the primary legislation itself, but that same general principle that there should be the broad powers and duties within the primary legislation, and the detail, such as the detail of the quality principles or something, should actually be determined by the body itself.

Yes. I am, actually, interested in this question and I presume at some point in the future you'll be giving evidence to the Constitutional and Legislative Affairs Committee, because I completely understand your argument for this. But my experience of being in this place for nine years is that we have quite a lot of Swiss-cheese Bills, and it’s the size of the holes that matter, and the ability of this Assembly to scrutinise what goes in the holes in due course. So, when it come to the balance of what goes on the Bill, as it happens, I'm also a fan of arm's-length bodies, but the longer the arm, the greater the clarity and the accountability of that body to its funders as well. So, I would be looking for assurances from you that when you're working with Welsh Government and putting this Act together, you will pay some attention to the accountability of the new PCET body and how that can be scrutinised, because at the moment, and I'm not talking about the current legislation, but the general trend in this place, if you like, is that we always miss out that accountability bit at the end. So, I'd be grateful if you'd nod when I'm saying these things just to give us an indication that it’s a concept that’s being taken on board as well. Because the scrutiny of legislation really is our job, but actually directing what goes into it, I think, is probably yours.

So, just to respond to that, I absolutely agree with the idea that the arm's-length bodies need to be accountable to the Assembly, and the machinery for that should be reporting and should be appearing at events like this to be held to account. In terms of our involvement in the thinking behind the legislation for the new body, we don't see that—we're not in that conversation. Legislation and policy thinking is Welsh Government; it’s not with us.

No, we're an external stakeholder, just like all the other external stakeholders.

Dw i'n cymryd o'ch ymatebion chi, felly, eich bod chi ddim yn dweud yr un peth ag y mae Prifysgolion Cymru yn ei ddadlau. Os dwi wedi cael hyn yn anghywir, wnewch chi, plîs, ddweud? Dwi’n credu eu bod nhw’n dweud na fyddan nhw ddim yn cefnogi unrhyw fath o Fil fframwaith sy’n ceisio gadael y manylion pwysig i gael eu penderfynu nes ymlaen drwy reoliadau. Ydych chi’n dweud dipyn bach yn wahanol?

I take it from your responses, therefore, that you are not saying the same thing as Universities Wales is arguing. If I've misunderstood, please, do say so. I think that what they are saying is that they will not be supporting any kind of framework Bill that seeks to leave the important details to be decided later by regulation. But you're saying something slightly different.

I think we are. So, I think we are in a slightly different place from the universities on this, but I think there are also different types of framework Bills—or Swiss-cheese Bills. So, I think what we're saying is, actually, the body should determine how to put the detail onto the framework, and I think the framework Bill that Universities Wales are talking about is one where the Government subsequently decides what the detail should be through Government regulation. These are quite different, I think. So, what we're arguing is that the Government in the Bill should set out the expectations and a high-level framework, but leave it to the body to sort out the detail of that, but require the body to consult in doing so. And that then gives you a check and balance. I think that’s different. We're not arguing that you should have a framework Bill and that the Government then, subsequently, plugs the gaps with regulation, because they'll do it with the same potential for mistakes as we've discussed already. And if the body is responsible for putting the detail in, it's also much more easy for that body to respond to circumstances as they unfold, to respond to operational experience, not only of the body but of the sector as well, and to be able to change those. If that's all wrapped up in regulation, then you've got a much more cumbersome machinery to change it, and it's just not fleet of foot enough.

10:00

O ran yr amseru, felly, hefyd, a threfniadau pontio, dwi'n credu roedd yna broblemau efo Deddf 2015, bod yna amser pontio eithaf hir. Ydy hwnna'n wers i'w dysgu wrth symud ymlaen efo deddfwriaeth newydd?

In terms of the timing, also, and the transition arrangements, I think that there were problems with the 2015 Act, in that it was quite a long transition period. Is that a lesson that can be learnt as we move forward with new legislation?

You might think it was a long transition period, but it was two years, from 2015 to 2017. Actually, the final bits of the machinery we've only just put in place in the last few months. It's taken us four years to get there. Some of that is to do with the fact that the way in which it's specified makes it just difficult to do it. We could have done it more quickly with less detail in the legislation.

Ie, ocê, mae hynny'n ddefnyddiol. Ydy Estyn yn cytuno efo hynny?

Okay, that's useful to know. Does Estyn agree with that?

Ydyn, rŷm ni yn cytuno. Mae'r pethau yma yn cymryd amser, ac mae'r ddealltwriaeth sydd gyda ni o beth mae pobl yn siarad amdanyn nhw yn golygu bod yna amser perthnasol yn cael ei ddynodi i'r broses yma. Dwi'n meddwl bydd angen lot o hyfforddiant ac yn y blaen, ac mae'r pethau yna yn cymryd amser, felly mae angen sicrhau bod yna ddigon o amser.

Yes, we agree. These things do take time, and the understanding that we have of what people are talking about means that there is a relevant time allocated for this process. I think that a lot of training and so on will be needed, and these things do take time, so we need to ensure that there is sufficient time for that.

A beth am y cyfnod o graffu unrhyw ddeddfwriaeth newydd? Oes yna wersi i'w dysgu o hynny, o'r broses flaenorol? Os ydy o'n weddol o syml, efallai bod dim angen, ond fe gawn ni weld beth ddaw drwodd yng nghynnwys y Bil, mae'n debyg. Ond oes yna wersi i'w dysgu o'r broses flaenorol efo hynny?

And what about the period for scrutinising any new legislation? Are there lessons to be learnt from the previous experience? If it's relatively simple, perhaps there is no need for that, but we'll see what emerges in the contents of the Bill, I dare say. But are there lessons to be learned from the past experience in that regard?

Wel, y mwyaf cymhleth yw'r ddeddfwriaeth, y mwyaf o amser sydd ei angen—dyna'r unig beth cyffredinol y gall rhywun ei ddweud, dwi'n meddwl.

Well, the more complex the legislation, the more time is needed—that's the only general thing that you could say, I think.

I think another important point to make is the safeguards we put in place to protect the provision for learners through that period of transition. What we've seen really helpfully at times of transition in the past, in terms of FE colleges amalgamating large-scale changes of that size, which isn't on this national scale, is the fact that we've had that continuous process of inspection carrying on. It has helped to sort of safeguard and make sure that quality is maintained while those systemic changes may be happening around it. So, I think that will be an important part of the implementation process, to make sure we ensure there are arrangements in place to maintain that quality through the process, as well.

I think our experience of the process last time was that we ended up with elements in the 2015 legislation that were a product of the scrutiny but which don't necessarily make sense operationally. So, stuff just came in. So, for example, our financial management code. Because the sector didn't want the Government to be able to determine what that would look like, they argued that it should be subject to scrutiny by the Assembly, which it is, which is fine, but if we want to make minor operational tweaks to that, we would have to go through a process of getting it laid—operational tweaks that we would consult the sector on, and it would be fine in normal terms, but because of that slightly unexpected emergence through the scrutiny process, we've now got, in our regulatory machinery, a requirement on us to put any minor change through to laying it at the Assembly.

Now, I'm not saying that Assembly scrutiny is not good—I'm not saying that—but I'm just saying that there are unintended consequences that arise from a process like that. You'll be fully familiar with that. And, of course, our capacity to influence that is very limited at that point. We can't go around briefing opposition AMs about what's good and what's bad. It's just not appropriate for us. The sector can, of course, so there's an imbalance in all of that as well. And we can sometimes look at that and think, 'Oh, really? You didn't really want to go there.' But you can't manage it from our position, so actually the less detail there is, dealt with at that stage, the more flexibility there is to make the whole operation work properly afterwards.

And just to add that the body has to work transparently, so the code not being laid, possibly, in front of the Assembly doesn't mean that the code isn't consulted on, published, publicly available. Those are absolutely fundamental principles, and that's what we would have, but a process that is difficult and takes a long time to change the documents—it essentially took us nearly a year to get the code to a final approval stage—means that you end up using, unless it's a fundamental change, then you use other parts of the machinery to make incremental changes. So, we're back to running a funding agreement or accounts direction, when, really, you want one piece of governance and regulation machinery that's transparent and covers everything.

10:05

Okay, thank you very much. I'm afraid we're out of time now for this session. So, thank you all for coming in. You will be sent a transcript of today's proceedings for you to check for accuracy, but thank you all again for coming in—much appreciated, thank you.

3. Craffu ar ôl Deddfu ar Ddeddf Addysg Uwch (Cymru) 2015: Sesiwn Dystiolaeth 2
3. Post-legislative Scrutiny of the Higher Education (Wales) Act 2015: Evidence Session 2

Morning, all, and welcome to the Children, Young People and Education Committee. This is the second evidence session that we're taking on the post-legislative scrutiny of the Higher Education (Wales) Act 2015. I welcome all of you from Universities Wales. We've got Professor Julie Lydon, chair of Universities Wales—good morning, Julie—Professor Elizabeth Treasure, deputy chair of Universities Wales—good morning—and Ben Arnold, policy adviser of Universities Wales. So, welcome, all of you.

Can we start this session by asking you about some of the things that we've heard from HEFCW in particular? They were arguing that it's appropriate that the regulatory framework doesn't distinguish between the different types and sizes of providers, but you seem to have a different view in your written evidence. Can I ask for your initial views and thoughts on that, please?

So, perhaps we should start with what we're trying to do with the regulation that's in the Act and then that takes us over to Elizabeth. We were just in our pre-session just articulating this.

Professor Elizabeth Treasure 10:07:50

I think we feel very strongly that the legislation sets the framework to ensure the educational and research quality of the providers, which gives confidence to students and Government that we are delivering high-quality and value-for-money provision. And that's what the legislation should do: it should establish that framework. And then our view is that the individual institutions have their strategies that respond to the funding council, which responds to Government policy and also to what students and the public are asking for. And to enable that flexibility in a rapidly changing worldwide international environment, there's a limit to what regulation can or should do, and we need to distinguish between that strategic development and the assurance of quality and value for money.

So, the current Act, which I think we all acknowledge was challenging for everybody, and we appreciate the support we had through the Assembly and committees such as this to think through the implications and to make sure it was doing, as Elizabeth's articulated, being part of regulation. There clearly is a question about how you encapsulate providers within that. So, at the moment, that legislation focuses only on the regulated institutions that are operating in Wales and we would argue that the burden—because there is a burden about what's happened through the Act, particularly articulated through the fee and access plans, that's one example—the burden falls on the sector that, in effect, is the university sector in Wales.

And anticipating the future, so, looking to the formation of PCET and legislation that will go around PCET's formation, I think you would want to ensure that the regulation covered anybody that was providing education within the jurisdiction of Wales in a way that, actually, you continue to be assured of the quality of those experiences for the students and the value-for-money argument of any Welsh funding that was going into that.

Okay. So, are you saying that setting the bar at the same level for all regulated institutions is not the right approach?

10:10

I think it's a starting point, but I think, at the moment, it's only focused on the—. So, for example, for part-time and postgraduate, institutions like Elizabeth's and ours are covered by that, so the funding council actually looks at those sectors. But there are other providers providing part-time that are not covered by the current Act and not included. We need to anticipate a future. We are operating in a dynamic market environment. I fully expect that there will be new providers that come in over time. They won't all be regulated universities. So, there is funding going to those non-regulated bodies where, actually, I think future Acts should consider how and in what way you would want to regulate those, again, to protect the quality and the value-for-money arguments.

Yes. Can I just come in on that one? On that sort of looking forward and the expectation that new private providers will come into the market, when do you see that realistically happening, because we're in a situation at the moment—

It's already happening.

But supply is outstripping demand within the main sector, isn't it, because of the demographic dip?

Well, sorry, you're only focusing on full-time young undergraduate entrants, with the greatest respect, so—

Well, no, it was an encouragement for you to tell me about—

Yes, yes. No, sorry, I agree with you about the demographic downturn, but, actually, there are already private providers supporting higher education provision within Wales at the moment. I haven't got a crystal ball; I can't tell you exactly what the future will hold, but I think we need to anticipate that it's highly likely there will continue to be people other than the regulated universities who have the potential and want to, and students who want to study with institutions that are not part of the current regulated sector. So, it could be work-based learning providers; it could be companies saying, 'Actually, we've already got a "college of—", and we want to operate in Wales.'

So, I think we do need in this consideration of the future, which none of us can completely predict, to actually make sure that the Act, and the development of the Act as we're going to PCET, is driven by that regulatory consideration and is mindful of making sure there are no inhibitions in that Act that mean that you get to a point where you say, 'Oh whoops, we've got 50 per cent of the provision in  part-time or 50 per cent in postgrad that's not covered by the Act.' So, it's that thinking ahead and the drafting being careful to ensure it reflects that complexity.

Thank you. You've talked about the potential for HEFCW to issue directions enforceable by injunction for minor matters. Can you explain to what extent you think that is a risk?

So, I think it would be fair for us to say that it is a risk. We will articulate why we think it's a risk. I think, in reality, because they're working with the institutions that are most familiar with working within a regulated environment, it has not, in reality, proved a challenge for us. So, Ben, did you want to pick up, perhaps, a potential example of where that, if you like, oversight is challenging?

Yes. I think that, in respect of the directions and the comment on our submission, there are five instances where directions can be issued by HEFCW, all subject to a standard procedure. With the committee, we'd made significant changes going through the Bill, which tightened up and improved a lot of these provisions to a point that we were much happier with. But one of the amendments we put through at Stage 3, which I think Suzy may well recall, was to make sure that all of them were subject to a more robust reasonable test and ensured that the requirements weren't made for minor matters, i.e. it had to be sufficiently serious to merit the very prominent actions that would be taken through that mechanism.

I think it's fair to say that we still have some concerns over the potential for various areas to be used in that direction. So, for instance, the fee and access plans. A failure to comply with the requirement of the fee and access plan could be, still, for a relatively small and modest, minor matter—it's not something that you would wish to wheel out the full cavalry to address and that's not protected in the legislation and it was a shame that that didn't go through. I think in practice, as we say, this hasn't been a real issue for us at this stage; that is usually down to how these matters are handled in practice—we appreciate that. But nevertheless, I think, perhaps, the bigger point to raise is that had we had the time to address these issues and get the drafting right in the first place, we could have come forward with a really satisfactory clause that everyone would have been happy with. So, I think the big message for us is perhaps not so much that this has been an issue in practice, but that there is an opportunity to improve.

10:15

The scrutiny point is really important; it's one we're going to keep coming back to. And I think we need to imagine a future where it isn't necessarily the same people sitting around the table, and in practice, it's been okay, but then we must remember, the regulated sector that is currently covered by the HE Act are very experienced colleagues. I don't just mean us as individuals, but institutions, lots of colleagues in our institutions, a funding council that is used to being arm's length and working with institutions that are independent, looking at our own arrangements to manage and govern what we do. So, if we didn't have that, and if we had a mad Government, which we haven't got, of course, then I think we are looking at ways where there is that sort of level of sensible test applied. That's what we're really looking for.

And, as PCET comes in, we must recognise that the PCET development must be strategically driven. So, there's a need, I think, for more thinking about what PCET is trying to do before you start trying to draft legislation, which is, of course, about regulation, not about strategy. And the scrutiny around that, I think, will be absolutely critical.

Okay. Hefin, you've got a supplementary on this point.

Yes. You've mentioned that the directions can be issued when institutions fail to comply with their own fee and access plan and you referred to that as a minor matter. Why is that a minor matter? Isn't that a significant issue?

Well, it's significant—. I don't know about Elizabeth—. We can both—. The fee and access plans at the moment are incredibly drawn out, long documents. They're almost indecipherable to anybody, even to some colleagues in the institutions. They're not things that get pinned up on the wall, because in the case of mine, it's 67 pages long and there are lots of targets. So, I think at the moment, we've managed to get that to work because we've been able to work sensibly with the funding council about that. But, actually, there are elements of that, tiny parts of what's expected in that fee and access plan that, technically, the funding council, if we don't meet those, could then suspend us being able to operate, because it could say, 'You can't operate at the regulated fee.' And I think that's why we are—. We're comfortable at the moment because we've been able to get it to work in practice. We would have liked, with hindsight, for there to be more scrutiny to get that amendment considered and integrated, but I admit, looking ahead, we would certainly want that sort of—

But isn't that an issue with the information that you're expected to provide, rather than the sanctions if you don't—

It depends how you—. No, I think it's both. Sorry, do you want to come in?

Professor Elizabeth Treasure 10:18:45

I just wanted to say, I think what we're trying to say is that the sanctions that are available are disproportionate to the likely size of the offence within that fee and access plan. There's a mismatch. That's what we're trying to say.

Okay, but they've never been used. I think Ben Arnold said 'in practice'.

Professor Elizabeth Treasure 10:19:04

In practice.

In practice, it hasn't. It hasn't.

Professor Elizabeth Treasure 10:19:06

But that doesn't make sense. You need a system that works.

And actually, you know, it could happen, so I think what we're saying, in a very strong message to you, is that there is some learning out of the experience to date. It has not, in practice, been a problem, but it could be. We could have an instance as we're going through the fee and access plans now, which we're just waiting to hear whether they've been approved. There could be something that comes out of this round where, actually, quite a minor matter could have a very, very severe penalty applied to it, because they're all treated equally. In the case of mine, with 37 targets, a very minor one could end up meaning that we can't operate. So, that's where I think we're trying to get a better proportionality through a reasonableness test.

Can I say, we've got an awful lot of questions that Members want to ask? So, I think we will get to some of the points that you want to raise. Sorry, you—

10:20
Professor Elizabeth Treasure 10:20:06

No, I was just going to say we'll abbreviate our answers.

No, no, that's okay. It's just I want you to have the opportunity to say what you want to say and make sure the Members also cover all the answers. And I think, Julie, just on that final point you were making about the potential—can you just explain your position around the provisions of the financial management code? You were talking about that having the significant potential to be used for matters that were not originally intended. Is that all the kind of stuff you were just talking about, or have you got wider concerns than that?

I don't think it's the financial code per se; I'm just going to check with—I'm just looking at Ben—because, actually, the fee and access plan, of course, covers much more than the financial code. We've always had a code of operating, as you would expect. This is accountability for public money we're operating. But is there anything specific on the financial code you wanted to raise?

I think the points we made at the time this legislation was going through was that the exact extent of our coverage of that financial management code was not really determined on the face of the legislation. So, it had a number of examples of where it could be used, but didn't delimit the boundaries very clearly. So, of course, that left an awful lot for regulations and for future determination in the code. I think, again, that's something that, ideally, if we'd had more time, working through in advance, we would've liked to have got straight on the face of the legislation. That would have ironed out some of the later difficulties, I think, in actually implementing that correctly.

Okay. Thank you for that. Okay, if we can move on to a set of questions now from Suzy Davies on the objectives of the Act.

Yes. Thank you, Chair. You mentioned in your evidence that the HE Act hasn't met its overarching objectives, and we discussed a little bit about them—the unmanageability of some of the processes in this. Two of those objectives were to safeguard the contribution made to the public good arising from the Welsh Government’s financial subsidy of higher education and a strong focus on fair access to higher education'. Are you going as far as saying that the fee and access plans can't be shown to be the cause of improved access by individuals who may not have come to university before?

We'll both probably want to jump in on this one.

[Inaudible.] So, the fee and access plans are not strategy. We're back to—. They are part of holding us to account for the quality of what we do, the quality of the experience the students have, the quality of our research and, actually, the value for money for Government money that we get in. So, I think our objection is, actually, the points we've already made about—. At the moment, the current Act and the way it's working means there are providers that are not covered by the Act. So, actually, part-time and postgraduate providers, as I've already mentioned, are not included. So, it needs, I think, a fresh look and, again, we're back to the point we've already made, and perhaps with a bit more time for scrutiny, those points would have been brought up. So, I think that's the fundamental message we wanted to get across about our objection, or to where we were with the objectives of the Act.

And we'd want it to be more inclusive. So, you do not want, actually, the part of the sector that is probably the most highly regulated, the most highly accountable—and, actually, according to the Wales Audit Office, is highly capable of managing its own affairs—to be the only bit any future Act covers when, actually, there are providers who are perhaps more questionable in their ability to operate. I'm not suggesting the current ones are questionable, but the English experience is that there are people who are perhaps putting up a cardboard front to what they're actually doing, and you need to be able to intervene with those sorts of providers.

Okay. So, would you say that this is the primary lesson that must be learnt as we're looking at post-compulsory education and training?

I think, for PCET, we need to make sure we're clear on the strategy that's driving PCET. The regulatory environment needs to be set in the context of that strategy, and I think it needs to be one that's futureproofed. Those are the three points I would make.

Yes, the strategy: could I just ask you on that, then? Of course, the strategy—as you say, it may not be you sitting here in 20 years' time or whatever, so strategy will invariably change over time. If you think of whatever the PCET Act is going to look like—just a tool in the bag of achieving that strategy—you mentioned the word 'futureproofing', so how flexible should this Act be?

The Act cannot futureproof against all the strategic developments that will happen, because it can't. So, actually, if you bring it down to what the Act is trying to do, it's a protection; it is that regulation protection. So, if you like, the rules by which you are able to access Welsh Government funding for certain things—those are the sorts of things you'd expect, and, actually, how on an ongoing basis the arm's-length, independent body is discharging those responsibilities in a fair, reasonable and cost-effective way—

10:25

The accountability is important. So, we're all part of this accountability and governance, but that's where I think, with the future Act, we need to make sure that we, again, learn the lessons from this one, which, in many ways, are not huge, but there are things that we've already highlighted to you that we think we need to look at, and that we take our time to make sure that we get the consultation, the committee work on this right—that we don't end up in a situation where, actually, it's been done on the hoof or through negative legislation, which is probably where we'll end up with some unintended consequences.

Okay, thank you. Just very briefly on this, have you any sense of concern on the transitional arrangements for the—they've been a bit long-winded, I understand, but have you a major concern?

There obviously have been challenges in implementing, very considerable time and resources, I think we've highlighted, both for HEFCW and ourselves, and some particular issues that we anticipated around sorting out how the legislation works with franchise providers. Although it was anticipated, perhaps the major point to point out is that if we're looking for a piece of legislation coming up that is potentially exponentially larger, we really need to bear in mind the practicalities involved with that, and it's not just the lessons of the Higher Education (Wales) Act, it's also Education and Learning Wales that we need to look at very carefully, try not to attempt too much—

—too fast. So, I think—

And England was later than us. Obviously, their higher education Bill was after us. It was nice to be able to again say Wales is ahead of England in considering—. But there will be lessons to be learnt from other jurisdictions. So, I think that that's fair.

The other thing that—again, just staying on the nature of—. Ben's picked up particularly franchise. There are different forms of how people work with others to enable access, to enable—

You're going to get questions on this from somebody else.

Actually, that brings us very nicely on to Janet Finch-Saunders's questions on access. Janet.

Good morning. Thank you, Chair. HEFCW told us that they can't require providers to focus on national outcomes in their fee and access plans. Does the Act provide for a level of autonomy that hinders a Wales-wide approach to widening access?

Professor Elizabeth Treasure 10:27:53

We're autonomous institutions, and I mean Julie's and my institution are very, very different in what we do in our local communities, what we do in the terms of educational provision we offer, in terms of part-time, full-time, returners to education, 18-year-olds, et cetera. It's a very diverse sector, and it seems to us that the sum of the parts needs to deliver the strategy for Wales, but it's not going to be practical or desirable for every institution to work in exactly the same way. So, yes, as a group and as a collective, we need to deliver widening access across the whole of the country, but that will be done in different ways by different institutions, and I think that is to our strength, actually. Do you want to follow up on that?

Yes, a fee and access plan only covers part of what we do, so, obviously, all institutions have a whole variety of strategies and plans—how they bring to life their intentions, as articulated by their missions and visions of what they're going to do. So, I think that's the first point I want to make.

I'm really struggling with this point from the funding council, because I can't see any evidence that, actually, we are going backwards in terms of widening access as a country. We know we've still got challenges that we want to reach, I think everybody would agree with that. We've got significant collaborative working on a regional basis across Wales. I can't think of an aspect of university work where there isn't a group of professionals who are working in that field that don't either formally get together or informally get together to share practice, to learn from each other.

Again, I'm back to—what do you want the regulator to do here? So, I think there are other levers that they can use and other ways that, actually, they can incentivise and motivate institutions and providers, because, at the moment, we're quite clear that the current Act only covers the higher education institutions that are regulated providers in Wales, but the wider providers, to address Government policy. So, I am struggling a little bit with the point the funding council made, actually. Obviously, the latest published data is 2017-18. There's no evidence that widening access is going backwards. In fact, I know from 2018-19—I'm sure we'll see further inroads into what we do as a collective, accepting Elizabeth's fundamental point about we're not all doing exactly the same thing. But, actually, if you look at the collective, there will be further encroachment and we're all still looking to do further in terms of different ways that people can access higher education.

10:30

Just on the autonomy front, that has not been a barrier in the past for working strategically with institutions. I really don't see it as an autonomy issue. It is about the ability of HEFCW to work with the regulatory requirements rather than the autonomy, and after all, the autonomy's only really reflecting the charitable status, the competition law rules, and wider legislation that applies to higher education already.

Okay, thank you. Is both the concept and operation of fee and access plans fit for the purpose of maintaining focus on widening access? You may have said this, or it could have been people from—. But would you want to see fee and access plans in the PCET Bill?

I think the current fee and access plans, we'd probably be saying, 'Let's move on and let's find a better way of doing it.' Fee and access plans are not strategy. So, fee and access plans are actually part of how we're held to account for the quality. So, my view would be is I think there's a good opportunity for us collectively. I think there will be a form of—whatever you call it; we'll keep calling it a fee and access plan for a second—which will—. Certainly, there needs to be something that holds us to account around those aspects that are to do with why we've had funding from the Government, and, actually, where we're in line with, of course, the remit letter that comes from the Minister to the funding council, which is moved on in terms of the expectations of what the sector will deliver. But the sector is more than just the regulated bodies.

Professor Elizabeth Treasure 10:32:12

Can we give you a flavour of how fee and access plans work? I'm going to get the years wrong, and that's not because I'm being stupid, it's because this is how it works. We're currently having the 2020-1 fee and access plan approved at the same time as being assessed on the success of the 2016-17 fee and access plan, as well as delivering the 2018-19 and the 2019-20. So, that's what I'm talking about: four documents, each of 63 pages, that we're currently working on. That's how complicated it is, and that's how regulatory it is, and how unstrategic it is. So, I am having to crystal ball-gaze what's going to happen, and we can't mention the B-word, but obviously that's probably going to have a fair impact on 2020-1 for the whole of the environment we're working in—not for Welsh public funding, necessarily, but in terms of how student flows work and things like that that will influence it. We're having to crystal ball-gaze that whilst justifying what happened two years ago, and I want to be able to be more flexible, still held to account, but to be far more flexible and be able to move more quickly, and I don't want to have to go back in six or nine months' time and say, 'The world has changed dramatically. Please would you approve a variation to my fee and access plan that I wrote nine months ago?'

There is undoubtedly a considerable cost and the estimate is—

It's about £4 million, we think, across the sector, at a time when—and, again, this is not a criticism—we are working with the transition arrangements that see us seeing the Diamond Bill being implemented, so, actually, there are £100 million less in the sector now than there would be if we were the same sector in England. So, we haven't got those resources, and, actually, again, if we were able to get this more proportionate and sensible, whilst still, of course, ensuring that there is that regulatory oversight, then we believe that could be better. So, in my case, I've got two people who are basically just doing fee plans all the time. These are significant documents, and we talk about trying to—I've talked about how difficult they are to communicate. I think, to be fair to our student bodies, they are really helpful, but can you imagine a 67-page, quite technical document. How do you—? So, we use our strategy, to be honest with you. Our strategy is a single page: 'This is what we're about, this is what we do. Here are the targets.'

Just to follow up on something you said there, is there any value to them?

10:35

We're a bit tired and jaundiced, as you can see, about it. I think there is a serious question about the value. In their current form, there is a serious question about the value.

I think that is the key—'in their current form'. Because they're quite a central part of the Act, aren't they—

Yes, they are.

—in terms of driving the policy. So, you're talking about—we're not going to do away with this, or we don't want to, but we need to have a completely different way of approaching what it's intended to do.

Absolutely. Absolutely.

Professor Elizabeth Treasure 10:35:29

I have severe questions as to what they're achieving, and I use other documents and other benchmarking to monitor my own performance to see how I am working in comparison to other institutions across the United Kingdom—in terms of widening access as well. And those are the things that I'm using on a daily basis to push the institution forward.

Yes, final one. The NUS has submitted evidence to us arguing that the annual fee and access plans are driving some short-term approaches to widening access. Is that your impression?

Professor Elizabeth Treasure 10:36:09

I can't evidence it.

No, I can't either. So, I don't—. I think one of the challenges about the fee and access plans is that you really have to keep bringing it back to, 'What's the strategy? How does this help us take forward the strategy?' rather than we're doing a knee jerk to be able to tick the box, because that's not in anybody's interest. So, I don't have any evidence of it leading to short-term actions, no.

I think in some ways it confirms impressions that the fee and access plans certainly don't help in communicating a long-term approach.

Okay. That's fine. Thank you. Can I move on now to a set of questions from Siân Gwenllian on the gaps in the regulatory framework?

Dwi'n mynd i drafod rhywbeth rydych chi wedi cyffwrdd arno fo ychydig bach—y ddarpariaeth rhan amser ac ôl-raddedig. Fel rydym ni'n gwybod, dydy hwnnw ddim yn cael ei rheoleiddio. Pa effaith mae hyn wedi'i gael ar amcanion y Ddeddf Addysg Uwch ac ar brofiad myfyrwyr?

I'm just going to discuss—you've touched a little bit on this—the part-time and postgraduate provision. As we know, it's not regulated. What impact has this had on the objectives of the HE Act and the experience of students?

So—. Sorry, I'm hearing my own voice with that, coming back. Sorry. So, as I've said, actually, the regulated institutions, of course we are covered for part-time and postgraduate, so I can't give you a direct answer from an institutional perspective, and at the moment there is a modest amount of other provision, so it's back to your point—at the moment, you can't really see a significant impact on this, because actually it's such a modest part of the sector. But we'll need to anticipate that, actually, in the future, there will be other people providing this.

So, coming back to—. I think it's a more general point that Elizabeth's already made—the fee and access plans in many ways are not a fit-for-purpose vehicle, whatever aspect of our work, and let's particularly focus on part-time and postgraduate; they don't impact strategically on what we're trying to do, because actually that's strategy rather than regulation.

Professor Elizabeth Treasure 10:38:29

I'm trying to decide whether to say it or not. I think I'm not going to say it.

Professor Elizabeth Treasure 10:38:35

There's a degree of retrofitting, okay.

Well, I think, you know—

Professor Elizabeth Treasure 10:38:46

[Laughter.] That's why I wasn't going to say it.

—it's inevitable. We are ahead of the Act, because actually our job is to think about the five and 10-year horizon. That's the job of vice-chancellors, and actually, we're in a business where we're not turning out Mars bars; so, actually, for most of the work that we do, with individuals, with organisations, you don't see a daily return. Actually, it's a longer period of time before you see the benefit of it. So, that's what we mean about the retrofit. So, actually, our strategies are already set, and, actually, you don't suddenly go out of here today and say, 'I'm going to suddenly turn on lots more people coming from Torfaen to come to my institution', and you see it tomorrow. It takes time. It takes that building of trust and confidence, understanding what's possible.

What I was going to say about postgraduate and part-time is they are very different markets that you're working with, other than the—. The full-time undergraduate market is a well-understood route into higher education. We have a lot of agencies that help us—so, UCAS for example, handling all the applications. We've got lots of things to help us predict what that future would look like. When you talk about part-time and postgraduate, it's much more unpredictable. We know that there is a question about part-time mature students' appetite for taking out loans, so we’ve really welcomed the work that the Welsh Government have done, the progressive policy that’s been implemented through Diamond.

You won’t have seen it yet, but we are seeing significant increases in applications for part-time, which we believe is attributable to the work that’s already ongoing. With a fee and access plan that you’re writing two years before the year in which it's going to be measuring—you can see what we mean about that judgment all the time that you’re making.

10:40
Professor Elizabeth Treasure 10:40:39

And you're looking at other things as well. You’re looking at regional skills partnership boards, which are telling you what skills you need in your area, and that fits so well for widening access and for part-time students.

I’ve only been in my institution for two years and I’m immediately having to reassess what Ceredigion needs and start to say, ‘Is the university fit for purpose?’ And that, as Julie says, is a five-to-10 year strategy to actually push those changes through and identify where the widening access is absolutely critical: what skills are needed, what people are there and what qualifications do they need to fit? So, it’s very much more dynamic than something like the fee and access plan indicates.

Wrth symud ymlaen, felly, ar gyfer deddfwriaeth newydd, a oes yna fwy o anfanteision nag sydd yna o fanteision o gynnwys y sector rhan amser a'r sector ôl-raddedig yn y rheoleiddio?

Moving forward, then, for new legislation, are there more disbenefits than benefits from including the part-time sector and the postgraduate sector within the regulation?

Professor Elizabeth Treasure 10:41:43

So, let's go back to the principle that it's regulation for quality and value for money, and I think the real danger is the legislation trying to think that it can foresee any set of circumstances. So, what we're saying is we need proportionate penalty for appropriate breaches and we need to be assured so that you need—. We would argue that you need a risk level. There are providers that may be higher risk—they need higher levels of scrutiny—and then providers with a track record in participating in national quality schemes can have a slightly lighter touch. And it seems to be slightly reversed at the moment.

So, we would say that it needs to be inclusive. I don't think we'd argue for a two-tier system, which is what we've got at the moment. And that's where we're back to the thinking about how you develop a regulatory articulation through the Bill that is recognising that it's a dynamic world and it could be, in 10 years' time, that there are lots of people who don't exist at the moment providing support for higher education. And you would want, I think, to hold them to account for the quality of what they're delivering and the value for money.

Ac, o ran profiad y myfyrwyr rheini, mi fyddai'r rheoleiddio yma'n gwella profiad y myfyrwyr neu—?

And in terms of student experience, that regulation would improve their experience or—?

Professor Elizabeth Treasure 10:43:18

Let's just—. We have to say that Wales has the best student experience, as measured by the national student survey, in the country, and I'm referring to the west of the country now as the 'gold coast', given that three of us have got teaching excellence and student outcomes framework gold awards—

Professor Elizabeth Treasure 10:43:38

Yes.

Professor Elizabeth Treasure 10:43:39

Yes, which is excellent. So—

I don't think the purpose of the fee and access plan is to—. I think it's to hold those providers to account for the quality. I think it is our job to look at how we continue to improve that quality. And you get to a point where—to be fair to Elizabeth, where you are with the NSS, which is 91 per cent—

Professor Elizabeth Treasure 10:44:01

Top in Wales and England.

Absolutely.

We're going to come on to questions about quality now. Are you okay with that, Siân?

Well, how is it going to improve the quality for part-timers and postgraduates, if the regulation is included? You're talking about the providers being included, so therefore, more control over the providers will lead to a better quality of education for—?

But then you would expect the fee and access plan, or whatever vehicle you use, to set that regulatory expectation. So, for example, we are subject to external quality audit, which includes all our provision—

Anyway. So, you would expect that to be part of it. You would expect that we set out our expectations as to some of the hard metrics, as I call them. So, NSS is one of those, but obviously student retention, student achievement—so, how many students who start get their degrees—as a measure that we would be setting for ourselves. Therefore, I think the regulatory environment would expect everybody to be setting those sort of measures—not actually what the measure is in absolute terms, but that they are setting those measures and actually they are expecting to see improvement in those measures.

Now, as I say, I think where Elizabeth's team are, with 91 per cent NSS, you're getting to the point where you're saying, 'Well, how much more can you squeeze out of this?' You look at the percentage of widening access my institution does—it's huge. So, how much more can you expect from one institution? So, I think it isn't the relative value, it's actually saying, 'We would expect any provider to have those sorts of measures in their own strategy', and that would be part of what you'd expect the regulation to be embodying. 

10:45
Professor Elizabeth Treasure 10:45:56

So, as we said, we are covered for part-time and postgraduate, and so we can be assured that we are delivering quality there as well. But, someone who's only doing part-time and is new to the sector, we can't have that assurance. 

Thank you, Siân. Okay, final set of questions now on collaboration and quality, from Hefin David.

Okay. In your evidence to the committee—and for committee members it's on pack page 41, section 2.9—you said the Act

'left challenging overlaps in responsibilities. HEFCW, for instance, is responsible for the quality of all provision of the regulated institution not just HE provision—this includes e.g. FE and lower level provision with clear statutory overlap in responsibilities with other existing bodies.'

So, wouldn't, in the next Act, a simple approach of having one quality assurance body solve that?

You knew we were going to say this, sorry. I think—. Two things we want to raise. We operate in a global market. Actually, we've got a UK-wide quality body. I think, if we moved away from that, it would be detrimental in terms of our brand and profile. We're absolutely clear that Estyn is not fit for purpose to be the inspection body for higher education. So, I think it's not beyond the wit of a new PCET body to say there is an expectation of how quality is measured. You don't have to have exactly the same body doing it for all those providers.

How do we solve the problem that currently exists, though, at regulated FE institutions that deliver higher education courses?

So, they are still covered by QAA.

They are, yes. But then that's just—. For example, I've got loads of people who hold me to account for quality, as Elizabeth has. We've got professional bodies, we're working with NHS—so, we've got actually a whole body of entities there, both the trusts and actually the professional bodies associated with it. So, we're already working with more than one person that looks at the quality of what we're doing.