Higher Education and Research Act 2017

Commentary on provisions of Act

Part 1: The Office for Students

Establishment of the Office for Students

Section 1: The Office for Students

55. This section provides for the establishment of the Office for Students, referred to in this Act and in these Explanatory Notes as "the OfS". As a body corporate, the OfS has its own legal personality and specific powers and duties. Schedule 1 makes further provision about the OfS.
56. This section forms part of the law of England and Wales.

Section 2: General duties

57. Subsection (1) sets out matters to which the OfS must have regard when performing its functions. These include the need to protect the institutional autonomy of English higher education providers, the need to promote quality, and greater choice and opportunities for students in such providers’ higher education provision, the need to encourage competition between providers while having regard to the benefits of collaboration, the need to promote value for money, the need to promote equality of opportunity in connection with access and participation, the need for efficient, effective and economic use of the OfS’s own resources, and the principles of best regulatory practice where these are relevant.
58. Subsection (2) provides that the reference to "choice" in subsection (1) includes choice amongst a diverse range of types of higher education provider, higher education courses and means by which such courses are delivered.
59. Subsection (3) provides that, in performing its functions, the OfS must have regard to guidance given to it by the Secretary of State. In giving such guidance, subsection (4) provides that the Secretary of State must have regard to the need to protect the institutional autonomy of English higher education providers. Subsections (5) to (7) make further provision as to guidance given by the Secretary of State. Subsection (8) defines institutional autonomy for the purposes of Part 1 of this Act (the term is also used in sections 36, 74 and 77).
60. This section forms part of the law of England and Wales.

The register of English higher education providers

Section 3: The register

61. This section sets out the OfS’s responsibilities with regards to the register of providers of higher education, and includes provisions in respect of applications for registration. The register is a list of all providers of English higher education providers who satisfy the conditions for registration in this section.
62. This section also makes provision for initial and ongoing requirements of registration that providers must meet to be on the register. This section further enables the Secretary of State to make provision by regulations about the information that the register must include for each provider. The OfS must make the information contained in the register, and information previously contained in it, publically available.
63. This section forms part of the law of England and Wales.

Section 4: Registration procedure

64. This section makes provision for the procedure that must be adopted when the OfS registers an institution or refuses an application for registration.
65. This section forms part of the law of England and Wales.

Registration conditions

Section 5: The initial and general ongoing registration conditions

66. This section sets out the OfS’s responsibility to determine and publish the initial and ongoing conditions. Different conditions may be determined for different types of providers and for registration in different parts of the register.
67. If it appears to the OfS appropriate to do so, it must consult concerned bodies representing the interests of English higher education providers before setting or changing the conditions.
68. This section forms part of the law of England and Wales.

Section 6: The specific ongoing registration conditions

69. This section gives the OfS the ability to impose, vary and remove specific ongoing registration conditions on a particular institution.
70. This section also makes provision for the procedure that must be adopted when the OfS imposes, varies or removes a specific ongoing registration condition.
71. This section forms part of the law of England and Wales.

Section 7: Proportionate conditions

72. This section requires the OfS to ensure that the registration conditions are proportionate to the OfS’s assessment of the risk of an institution failing to comply with regulation by the OfS. This section also requires the OfS to keep under review the registration conditions applicable to an institution.
73. This section forms part of the law of England and Wales.

Mandatory registration conditions

Section 8: Mandatory ongoing registration conditions for all providers

74. This section sets out the ongoing conditions of registration that the OfS must include for every registered higher education provider. These include: requiring the provider to notify the OfS of any change that affects the accuracy of its register entry; to provide information required by the OfS; and to provide information required by a body designated under Schedule 6 in order for that body to perform its information functions under sections 64 and 65.
75. This section forms part of the law of England and Wales.

Section 9: Mandatory transparency condition for certain providers

76. This section requires the OfS to ensure that an ongoing registration condition of a registered higher education provider of a description prescribed by regulations made by the Secretary of State must include a transparency condition. Such a condition requires a provider to provide to the OfS, and publish, information relating to applications, offers, acceptances, completion and attainment rates. This section also provides that the OfS may request such information broken down by gender, ethnicity and socio-economic background.
77. This section forms part of the law of England and Wales.

Section 10: Mandatory fee limit condition for certain providers

78. This section requires the OfS to ensure that the ongoing registration conditions of each registered higher education provider of a description prescribed by regulations made by the Secretary of State must include a fee limit condition. Such a condition requires the governing body of a provider to secure that "regulated course fees" do not exceed a fee limit. Schedule 2 sets out how fee limits are determined.
79. The "regulated course fees" to which fee limits apply, are fees which are paid by a "qualifying person" where that person undertakes a "qualifying course". Such a person excludes an international student and is a person who falls within a prescribed description (i.e. persons set out in regulations to be made by the Secretary of State). A "qualifying course" means a higher education course of a description prescribed by regulations made by the Secretary of State. That regulation making power is limited by the restrictions in subsection (7). In addition, subsection (9) provides that a "higher education course" to which a fee limit condition applies does not include any postgraduate course other than a course of initial teacher training.
80. This section forms part of the law of England and Wales.

Section 11: Duty to publish a list regarding the fee limit condition

81. Subsection (1) places a requirement on the OfS to publish a list in each year of registered higher education providers who have a fee limit as a condition of registration, and what fee limit, as determined under Schedule 2, applies to each provider.
82. Subsection (2) defines a relevant academic year for the purposes of subsection (1).
83. Subsection (3) requires the OfS to send a copy of the published list to the Secretary of State who must, in turn, lay it before Parliament; and subsection (4) is a power for the Secretary of State to prescribe by regulations the date by which the list must be published by the OfS.
84. This section forms part of the law of England and Wales.

Section 12: Mandatory access and participation plan condition for certain institutions

85. This section allows a provider to request an access and participation plan as an initial or ongoing requirement of registration, where the provider will also be subject to a fee limit condition and wishes to access the higher fee limits available to those with access and participation plans. Sections 29 to 34 set out the requirements for the approval and content of such plans.
86. The governing body of a provider will not be considered to have failed to deliver a requirement of its access and participation plan if it has taken all reasonable steps to meet that requirement.
87. This section forms part of the law of England and Wales.

Other registration conditions

Section 13: Other initial and ongoing registration conditions

88. This section lists what the conditions of initial and ongoing registration may relate to, however this list is not exhaustive.
89. Some of these conditions may require payment of fees or may relate to public interest governance. Further details are in sections 14, 67, 70 and 71 respectively.
90. One of the conditions may relate to the quality of, or standards applied to, higher education provided by higher education providers. Where there are sector-recognised standards, subsection (2) provides that the OfS may only impose registration conditions relating to standards which relate to matters which are covered by the sector‐recognised standards, and relate to, and require the application of, the sector‐recognised standards in respect of those matters. "Sector-recognised standards" is defined in subsection (3).
91. Under subsection (1)(c) a condition may relate to registered higher education institutions having in place a "student protection plan" which has been approved by the OfS. Subsection (4) defines a student protection plan as a plan designed to protect students if an event specified by the OfS occurs (e.g. a course closure).
92. Under subsection (1)(f) a condition may require registered higher education providers to take such steps that the OfS considers appropriate to facilitate cooperation between providers and one or more electoral registration officers in England for the purpose of further enabling electoral registration of students. As when exercising any of its functions, the OfS must have regard to relevant guidance issued by the Secretary of State in relation to how the OfS applies such a condition.
93. This section forms part of the law of England and Wales.

Section 14: Public interest governance condition

94. This section defines a "public interest governance condition" in relation to a provider as a requirement for the provider’s governing documents to be consistent with the list of principles applicable to that provider. This section makes provision for what the list of principles must include, including the principle of academic freedom as described in subsection (7). This section also requires the OfS to consult certain persons before determining or revising the list. The list, and any revised version, must be published.
95. This section forms part of the law of England and Wales.

Enforcement of ongoing registration conditions

Section 15: Power to impose monetary penalties

96. This section enables the OfS to impose monetary penalties on providers that do not comply with ongoing conditions of registration. Schedule 3 makes further provision about such penalties.
97. This section forms part of the law of England and Wales.

Section 16: Suspension of registration

98. This section enables the OfS to suspend a provider from the register if the provider appears to have breached an ongoing registration condition. The OfS must specify, and the register must reflect, the purpose for which the provider is suspended (this may, for example, limit the provider’s eligibility for funding). Subsection (4) specifies when the suspension ends.
99. This section forms part of the law of England and Wales.

Section 17: Suspension: procedure

100. This section allows the OfS to suspend a provider from the register - without giving the provider prior notice - if the OfS thinks there is an urgent need to protect public funds. In every other case the OfS must, before coming to a decision on whether to suspend a provider, notify the provider of its intention to suspend, and have regard to any representations the provider makes during the specified period. The OfS must notify the provider of its decision.
101. This section forms part of the law of England and Wales.

Section 18: De-registration by the OfS

102. This section requires the OfS to remove a provider from the register if it becomes aware that the provider is not (or no longer intends to become) an English higher education provider.
103. The OfS may also remove a provider from the register if the provider appears to have breached an ongoing registration condition and the OfS has previously imposed a suspension or a monetary penalty, or if the OfS doesn’t consider a monetary penalty or suspension would be sufficient to deal with the breach.
104. Subsections (5) and (6) enable the OfS to put transitional arrangements in place. For example, arrangements could be made so that the provider continues to be treated as registered in order to enable existing students at the institution to continue to access student support.
105. For voluntary de-registrations see section 22.
106. This section forms part of the law of England and Wales.

Section 19: De-registration by the OfS: procedure

107. Before coming to a decision on whether to de-register a provider under section 18 the OfS must, under this section, notify the provider of its intention to do so and have regard to any representations the provider makes during the specified period. The OfS must notify the provider of its decision. The de-registration cannot take effect when an appeal concerning the removal could be brought or is pending, unless the provider notifies the OfS that it does not intend to appeal.
108. This section forms part of the law of England and Wales.

Section 20: De-registration: appeals

109. This section makes provision for appeals to the First-tier Tribunal in the event that the OfS decides to remove a provider from the register under section 18. A provider may appeal against the OfS’s decision to remove it from the register and/or against the date upon which that removal takes effect. Subsection (2) sets out the grounds for appeal. Subsection (3) sets out the remedies available to the Tribunal.
110. This section forms part of the law of England and Wales.

Section 21: Refusal to renew an access and participation plan

111. This section applies in circumstances where a registered higher education provider is required as a condition of registration to have an access and participation plan and fails, in the view of the OfS, to comply with a requirement of that plan or with a fee limit condition imposed under section 10.
112. In those circumstances the OfS is able to refuse to approve a new plan once the current one comes to an end. That refusal may last for a period that the OfS specifies in a notice. The Secretary of State may make regulations about the matters the OfS should take into account in deciding whether or not to refuse, the procedure it should follow when giving notice of refusal and the effect that the notice has.
113. Such regulations must also provide for a review process before any decision to refuse becomes final. Subsection (4) imposes that requirement and specifies further detail about what regulations must contain about the review procedure.
114. This section forms part of the law of England and Wales.

Voluntary de-registration

Section 22: Voluntary de-registration

115. This section requires the OfS to remove a provider from the register if the provider makes an application (in accordance with any requirements devised by the OfS) to be removed. The OfS can put transitional arrangements in place. For example, arrangements could be made so that the provider continues to be treated as registered in order to enable existing students at the institution to continue to access student support.
116. This section forms part of the law of England and Wales.

Quality and standards

Section 23: Assessing the quality of, and the standards applied to, higher education

117. Subsection (1) gives the OfS a power to assess, or make arrangements for the assessment of the quality of, and the standards applied to, higher education by English higher education providers.
118. Subsection (2) places a duty on the OfS to assess, or make arrangements for the assessment of the quality of, and the standards applied to, higher education, provided by:
     1. institutions that have applied to be registered, for the purposes of determining whether such institution meets any initial registration condition relating to quality or standards; and
     2. registered higher education providers, for the purposes of determining whether they continue to meet any ongoing registration condition relating to quality or standards.
119. Where there are sector-recognised standards, any assessment of standards under this section must only relate to matters which are covered by the sector‐recognised standards; and relate to, and assess the standards applied against the sector-recognised standards. "Sector-recognised standards" is defined in section 13.
120. This section forms part of the law of England and Wales.

Section 24: Quality Assessment Committee

121. This section requires the OfS to establish a committee, called the Quality Assessment Committee. The committee has the function of giving advice to the OfS on the exercise of its functions under section 23 and such other functions as the OfS confers on it.
122. When a body is designated under Schedule 4 to perform functions under section 23, the Quality Assessment Committee also has the function of giving advice to the OfS on the exercise by the designated body of those functions.
123. Subsections (4) to (6) make provision for the composition of the Quality Assessment Committee. Subsection (7) applies Schedule 1 to that committee, as it applies to other committees established by the OfS under paragraph 8 of that Schedule.
124. This section forms part of the law of England and Wales.

Section 25: Rating the quality of, and the standards applied to, higher education

125. This section gives the OfS a power to make arrangements for a scheme to give ratings to English, and where appropriate consent is given, Welsh, Scottish and Northern Irish higher education providers regarding the quality of, and the standards applied to, the higher education provided by them. In practice, this power enables the OfS to run the Teaching Excellence Framework which will assess higher education providers according to the quality of the teaching that they provide.
126. Subsections (2) and (3) make provision about the consent required of the Welsh or Scottish Ministers or the Department for the Economy in Northern Ireland to enable Welsh, Scottish or Northern Irish higher education providers to participate in any scheme established under subsection (1).
127. This section forms part of the law of the United Kingdom.

Section 26: Report on operation of section 25 schemes

128. This section places a duty on the Secretary of State before the end of the initial period to appoint a suitable independent person (defined by subsections (2) and (3)) to prepare a report on the operation during that initial period of any scheme or schemes established under section 25. The initial period, defined in subsection (7), means the period of one year beginning with the date on which section 25 comes into force.
129. Subsection (4) requires that, as soon as possible after the initial period, the appointed person must prepare the report send it to the Secretary of State, who must lay it before Parliament (subsection (6)).
130. Subsection (5) sets out the required scope of the report.
131. This section forms part of the law of England and Wales.

Section 27: Performance of assessment functions by a designated body

132. This section makes provision for a body to be designated in accordance with Schedule 4 to carry out "assessment functions". These functions are the functions of the OfS under section 23 and the functions of the relevant body under section 46. Subsection (3) provides which functions under section 23 cease to be exercisable by the OfS where a body has been designated.
133. Subsections (4) to (7) make provision for the OfS by notice to require a designated body to provide it with information which the body holds for the purpose of the performance of the assessment functions.
134. This section forms part of the law of England and Wales.

Section 28: Power of designated body to charge fees

135. This section enables a body designated under Schedule 4 to charge fees to higher education providers for carrying out the assessment functions under section 23 and section 46. The fees charged may, for example, relate to the costs of the performance of assessment functions under section 23 by the designated body, or activities undertaken or services provided by the designated body pursuant to it giving advice to the OfS in relation to the granting, varying or revoking of degree awarding powers under section 46. The fees charged may also be calculated subject to the provisions and limitations set out in subsections (3) to (8).
136. Subsections (3) to (8) provide that, for each category of fee above, fees may be calculated by reference to costs incurred by the designated body in the performance of its functions under the relevant subsection of section 23 or section 46, whether or not they relate to the provider being charged, or its general functions (defined in subsection 10). They further provide that the overall fees charged in a 12-month period must not exceed the total costs incurred by the designated body in carrying out those functions over that period.
137. The designated body is required to publish a statement of the amount of fees which it charges under this section, and to publish revised statements if the fees change or the way they are calculated changes.
138. This section forms part of the law of England and Wales.

Access and participation

Section 29: Power to approve an access and participation plan

139. This section provides that an English higher education institution may apply to the OfS for its approval of an access and participation plan. The purpose of the plan will be to satisfy an initial or ongoing registration condition relating to access and participation in higher education imposed under section 12.
140. The OfS can approve a proposed plan and issue guidance to institutions about the matters it will take into account in considering whether to approve plans. Subsections (5) to (7) allow the Secretary of State to make regulations which deal with the procedure for approval, including the matters that the OfS can take into account for approval purposes and publication requirements.
141. This section forms part of the law of England and Wales.

Section 30: Duration of a plan

142. This section requires a plan to specify the length of time for which it will last. That period must not exceed any maximum length set out in regulations made by the Secretary of State.
143. This section forms part of the law of England and Wales.

Section 31: Content of a plan: fees

144. This section provides that access and participation plans must specify or describe the maximum amount of fees the provider will charge for each course to which a fee limit applies, during each academic year for which the plan will be in force.
145. Where the institution has been given a high level quality rating the fee limits cannot exceed the applicable higher amount (determined under the arrangements set out in paragraph 2 of Schedule 2). If it does not have that rating then the fees cannot exceed an intermediate (or "sub-level") amount (also set under the same paragraph of Schedule 2).
146. This section forms part of the law of England and Wales.

Section 32: Content of a plan: equality of opportunity

147. This section sets out that access and participation plans must include any provisions relating to the promotion of equality of opportunity in connection with access to and participation in higher education which are required by regulations made by the Secretary of State, and may include additional content. It also provides examples of provisions that may be required by regulations, and sets out matters that may not be required.
148. This section forms part of the law of England and Wales

Section 33: Variation of a plan

149. This section states that regulations made by the Secretary of State can allow for plans approved by the OfS to be varied, provided that the variation is approved by the OfS.
150. This section forms part of the law of England and Wales.

Section 34: Review of decisions on approval or variation

151. This section ensures that any decision to approve a plan or subsequently to vary an approved plan can be reviewed before it becomes final. It does so by ensuring that any regulations made by the Secretary of State under section 29 about the approvals process or under section 33 about varying a plan must create a review procedure. The key features that regulations must include are that:
     1. any approval or variation decision should be provisional;
     2. the institution should be able to apply for review by a person or panel appointed and paid by the Secretary of State;
     3. regulations must state the grounds on which a provisional decision can be reviewed;
     4. the OfS must reconsider the provisional decision in light of the person or panel’s recommendations.
152. This section forms part of the law of England and Wales.

Section 35: Advice on good practice

153. This section allows the OfS to identify good practice about promoting equality of opportunity in connection with access to and participation in higher education, and give related advice to higher education providers.
154. This section forms part of the law of England and Wales.

Section 36: Duty to protect academic freedom

155. This section requires that, in performing its functions of approving, varying or refusing to renew access and participation plans, the OfS must protect academic freedom. This includes, in particular, the freedom of institutions to determine the contents and manner of teaching of their courses, who teaches those courses and their own admissions criteria.
156. The duty to protect academic freedom in this section applies in place of the duty in subsection (1)(a) of section 2 to have regard to the need to protect institutional autonomy in relation to the freedoms of providers relating to course content, appointment of academic staff, and admission of students, and the freedoms of academic staff, mentioned in subsections (8)(b) and (c) of section 2.
157. This section forms part of the law of England and Wales.

Section 37: Power of Secretary of State to require a report

158. This section enables the Secretary of State to direct the OfS to report in its annual report or in a special report to the Secretary of State on specified matters relating to equality of opportunity. A special report must be laid before Parliament by the Secretary of State.
159. This section forms part of the law of England and Wales.

Student transfers

Section 38: Duty to monitor etc the provision of arrangements for student transfers

160. This section imposes duties on the OfS to: monitor the availability of student transfer arrangements provided by registered higher education providers; monitor the take-up by students of the arrangements monitored by the OfS; and include in its annual report a summary of the conclusions drawn from its monitoring.
161. The OfS’s monitoring duty can be met by focussing on all, or particular descriptions of, registered higher education provider or student transfer arrangements.
162. This section also confers a power on the OfS to facilitate, encourage or promote awareness of the provision of student transfer arrangements by registered higher education providers.
163. The student transfers which this section covers are transfers of students from one higher education course to another within a registered higher education provider, between registered higher education providers or between a registered higher education provider and another higher education provider in England, Wales, Scotland or Northern Ireland.
164. This section forms part of the law of England and Wales.

Powers to give financial support

Section 39: Financial support for registered higher education providers

165. This section confers a power on the OfS to provide financial support (through grants, loans and other payments) in relation to the provision of education by registered higher education providers of a description prescribed by regulations under this section.
166. This section forms part of the law of England and Wales.

Section 40: Financial support for certain institutions

167. This section confers a power on the OfS to provide financial support (through grants, loans and other payments) for higher education courses prescribed by regulations under this section where such courses are provided by certain institutions. These institutions are further education providers and those maintained or assisted by local authorities (and they may or may not be registered higher education providers).
168. This section forms part of the law of England and Wales.

Section 41: Financial support: terms and conditions

169. This section makes provision regarding the terms and conditions of financial support provided by the OfS under sections 39 and 40. The OfS’s terms and conditions may, in particular, relate to repayment of sums, payment of interest and the provision of information.
170. This section requires the OfS to consult such persons as it considers appropriate before determining what terms and conditions to impose.
171. This section forms part of the law of England and Wales.

Powers to grant degrees etc

Section 42: Authorisation to grant degrees etc

172. This section enables the OfS to authorise, by order, registered higher education providers to grant taught and research awards (including degrees). Specific requirements are imposed where the authorisation is to grant only foundation degrees, including that the registered higher education provider being authorised must be an English further education provider.
173. Degree awarding powers may be of a specified nature (e.g. single subject degree awarding powers), they may be time-limited and they may restrict the provider’s ability to grant awards to students who are enrolled at the provider when they complete their courses of study.
174. This section forms part of the law of England and Wales.

Section 43: Supplementary powers with authorisation

175. This section sets out supplementary powers that may be given with an authorisation under section 42. Authorisations may include powers which enable providers to authorise other institutions to grant awards on their behalf. This section also makes provision enabling providers to grant joint awards, honorary degrees and degrees to members of staff. All authorisations enable providers to revoke awards.
176. This section forms part of the law of England and Wales.

Sections 44 and 45: Variation or revocation of section 42 authorisation and other authorisations to grant degrees etc

177. These sections set out the OfS’s powers to vary or revoke, by order, authorisations to grant taught awards and research awards. The OfS can vary or revoke the authorisations it has granted under section 42. It can also vary or revoke the degree awarding powers of other English higher education providers, regardless of whether they were obtained on an indefinite or on a renewable basis. The one exception concerns certain degrees granted by virtue of the Ecclesiastical Licences Act 1533: see section 55.
178. The OfS can only revoke authorisations (see sections 44 and 45) if any of the three conditions specified in the respective section is met. The three conditions relate to registration, quality and standards, and quality and standards following a change of circumstances. Any other pre-existing power to vary or revoke degree awarding powers of English higher education providers ceases to exist once section 45 comes into force.
179. This section forms part of the law of England and Wales.

Section 46: Grant, variation or revocation of authorisation: advice on quality etc

180. This section requires the OfS to seek and have regard to advice from the relevant body (being the body designated to perform assessment functions under Schedule 4 or, where there is no such body, a committee established by the OfS) on the quality of and standards applied to higher education provided by a provider before the OfS grants, varies, or on grounds of quality or standards, revokes degree‐awarding powers. The advice must be informed by the views of persons who, amongst them, have a range of specified experience. The advice must include the relevant body’s view on whether the provider has the ability to maintain appropriate quality and appropriate standards. Where the advice concerns the award, variation or revocation of research degree awarding powers, that advice must also be informed by the views of UKRI. The section makes provision for where there are one or more sector-recognised standards.
181. This section forms part of the law of England and Wales.

Section 47: Grant of authorisation: notification of new providers

182. This section requires the OfS to notify the Secretary of State as soon as possible after it makes an order authorising a registered higher education provider to grant taught awards if that provider has not previously operated under a validation arrangement.
183. This section forms part of the law of England and Wales.

Section 48: Variation or revocation of authorisation: procedure

184. Under section 48 the OfS must notify a provider of its intention to vary or revoke degree awarding powers, and have regard to any representations the provider makes during the specified period, before coming to a decision on whether to vary or revoke. The OfS must notify the provider of its decision. The order implementing the decision cannot be made, and the variation or revocation cannot take effect, when an appeal could be brought or is pending - unless the provider notifies the OfS that it does not intend to appeal.
185. This section forms part of the law of England and Wales.

Section 49: Appeals against variation or revocation of authorisation

186. This section provides for appeals to the First-tier Tribunal against a decision by the OfS to vary or revoke degree awarding powers. Providers may appeal against a decision to vary or revoke degree awarding powers. They may also appeal against the date on which a variation or revocation takes effect. If the appeal includes an appeal about a decision to revoke degree awarding powers, then the Tribunal must consider the decision afresh and the grounds for appeal are not limited. Otherwise, a provider can appeal on the grounds that the decision (i.e. to vary degree awarding powers or to specify a particular date on which the variation or revocation takes effect) was based on an error of fact, was wrong in law, or was unreasonable. The Tribunal has the power to withdraw or confirm the OfS’s decision, vary the date on which the variation or revocation is to take effect and may remit the decision (and matters relating to it) to the OfS. If the appeal includes an appeal about a decision to revoke degree awarding powers, then the Tribunal can also substitute the OfS’s decision with any other decision that the OfS could have made.
187. This section forms part of the law of England and Wales.

Section 50: Validation by authorised providers

188. This section enables the OfS to commission registered higher education providers with degree awarding powers to offer to validate other registered higher education providers’ taught awards. Validation, for the purposes of this section, is where an institution with degree awarding powers grants taught awards to students at another provider, or authorises another provider to grant taught awards on its behalf.
189. This section forms part of the law of England and Wales.

Section 51: Validation by the OfS

190. This section sets out the powers of the Secretary of State to authorise, by regulations, the OfS to enter into validation arrangements with registered higher education providers. The validation arrangements may only concern taught awards and the regulations may: require the validation arrangements to conform to prescribed conditions; enable the OfS to authorise registered higher education providers to provide some or all validation arrangements on behalf of the OfS; enable the OfS to deprive a person of an award. The Secretary of State may only exercise these powers after having regard to advice from the OfS.
191. This section forms part of the law of England and Wales.

Section 52: Sections 42 to 49: consequential amendments

192. This section sets out consequential amendments to section 76 of the Further and Higher Education Act 1992.
193. This section forms part of the law of England and Wales.

Sections 53 and 54: Unrecognised degrees

194. These sections amend the Education Reform Act 1988 to limit the unrecognised degrees offence so that it does not apply to awards granted in the course of business by providers (and the OfS), pursuant to degree awarding powers that have been granted, or varied, under this Act.
195. The amendments also transfer to the OfS the Secretary of State’s powers and duties under the 1988 Act to make recognised award orders, recognised body orders and listed body orders. Providers (and the OfS) whose degree awarding powers are granted or varied under this Act will not, by virtue of being included in a recognised body order, be conclusively presumed as able to grant degrees etc. Instead, reference should be had to the orders and regulations made under sections 42, 45 and 51 of this Act. The Welsh and Scottish Ministers retain the power to make recognised award orders and recognised and listed body orders.
196. These sections form part of the law of England, Wales and Scotland.

Section 55: Saving for right to grant degrees under the Ecclesiastical Licences Act 1533

197. This section provides that nothing in Part 1 of this Act can affect the right of the Archbishop of Canterbury (or any other person) to award degrees under the Ecclesiastical Licences Act 1533 where those degrees do not require students to complete an appropriate course of study, an appropriate programme of supervised research or an appropriate assessment.
198. This section forms part of the law of England and Wales.

Powers in relation to "university" title

Section 56: Use of "university" in title of institution

199. This section amends section 77 of the Further and Higher Education Act 1992 and transfers the responsibility for approving the use of "university" title in a provider’s name under this section from the Privy Council to the OfS. Existing provisions are retained for Wales.
200. The OfS may only consent to an institution’s use of "university" title if that institution is a registered higher education provider. The OfS has to have regard to factors in guidance given by the Secretary of State. Before giving the guidance the Secretary of State must have consulted the relevant bodies and persons listed.
201. Approval given by the Privy Council under this section prior to this section coming into force continues to be valid.
202. This section forms part of the law of England and Wales.

Section 57: Unauthorised use of "university" in title of institution etc

203. For providers in England, section 39 of the Teaching and Higher Education Act 1998 is amended to provide that registered higher education providers in England cannot call themselves a university unless the inclusion of that word is authorised by or by virtue of an Act, a Royal Charter or the OfS. Existing provisions are retained for Wales.
204. This section amends section 39 of the Teaching and Higher Education Act 1998 so that the OfS can approve the use of "university" title by any registered higher education provider if such use cannot be authorised by virtue of any other Act (other than the Companies Act 2006) or Royal Charter. This means that the OfS is able to approve "university" title for all types of providers including those alternative providers which prior to this Act were only able to obtain consent under the Companies Act 2006. The OfS has to have regard to factors in guidance given by the Secretary of State when consenting to an institution’s use of university title. Before giving the guidance the Secretary of State must have consulted the relevant bodies and persons listed.
205. Any consent obtained from the OfS does not affect any requirement to obtain approval for the use of the word "university" in a company, limited liability partnership or business name, under sections 56 or 1194 of the Companies Act 2006.
206. Consents given by the Privy Council under section 39 of the Teaching and Higher Education Act 1998 prior to this section coming into force remain valid.
207. This section forms part of the law of the United Kingdom.

Section 58: Revocation of authorisation to use "university" title

208. This section gives the OfS powers to revoke, by order, an authorisation, consent or other approval for an institution in England to use the title of "university".
209. The OfS may only revoke university title if any of the conditions specified in subsections (4) to (6) are met.
210. The OfS does not, however, have the power to revoke any approval obtained in relation to the use of the word "university" in a company, limited liability partnership or business name, under the Companies Act 2006.
211. Any other power to revoke university title (except any approval required under the Companies Act 2006) ceases to exist on the coming into force of this section.
212. This section forms part of the law of England and Wales.

Section 59: Revocation of authorisation: procedure

213. Under section 59 the OfS must notify a provider of its intention to revoke approval etc to "university" title, and must have regard to any representations the provider makes during the specified period, before coming to a decision on whether to make the revocation. The OfS must notify the provider of its decision. The order implementing the decision cannot be made, and the revocation cannot take effect, when an appeal could be brought or is pending - unless the provider notifies the OfS that it does not intend to appeal.
214. This section forms part of the law of England and Wales.

Section 60: Appeals against revocation of authorisation

215. This section sets out the rights of appeal to the First-tier tribunal against a decision by the OfS to revoke "university" title. The governing body of an institution may appeal against a decision to revoke an approval etc of a "university" title. It may also appeal against the specified date on which a revocation takes effect. If the appeal includes an appeal against a decision to revoke "university" title, then the Tribunal must consider the decision afresh and the grounds for appeal are not limited. If the appeal only concerns the date when a revocation takes effect, then a provider can only appeal on the ground that the decision was based on an error of fact, was wrong in law, or was unreasonable. The Tribunal has the power to withdraw or confirm the decision, vary the date on which the revocation is to take effect and may remit the decision (and matters relating to it) to the OfS. If the appeal includes an appeal about a decision to revoke "university" title, then the Tribunal can also substitute the decision with any other decision that the OfS could have made.
216. This section forms part of the law of England and Wales.

Powers of entry and search

Section 61: Entering and searching premises with a warrant

217. This section and Schedule 5 enable the OfS or the Secretary of State to apply to a justice of the peace for a warrant to allow authorised persons to enter and search certain registered higher education providers’ premises.
218. Premises of institutions which act on behalf of such providers to deliver higher education courses, for example, as part of a sub-contracting arrangement, are within scope of the powers.
219. A warrant can only be granted if a justice of the peace is satisfied that the requirements in paragraph 1(3) of Schedule 5 are met.
220. If a warrant is granted, it may allow an authorised person to enter and search premises and confer on them related powers, such as powers to seize and retain items to determine whether there has been a breach of a relevant condition to which the provider is subject. There is an exception for excluded items such as those subject to legal privilege.
221. The warrant may permit or require a constable to accompany an authorised person and that constable may use reasonable force if necessary.
222. It is an offence to intentionally obstruct a person exercising the powers conferred by warrant, or to fail to comply with a reasonably imposed requirement, without reasonable excuse. Provision is made regarding protection from self-incrimination.
223. This section forms part of the law of England and Wales.

Information powers

Section 62: Power to require information from unregistered providers

224. This section makes provision for the OfS to require, by notice, information from unregistered providers. It also makes provision for the consequences of a failure by an unregistered provider to comply with such a notice.
225. This section forms part of the law of England and Wales.

Section 63: Cooperation and information sharing by OfS

226. This section makes provision for cooperation and information sharing by the OfS. In particular, this section makes provision for the OfS to cooperate and share information with other bodies so that it can carry out its own functions. Provision is also made for the OfS to cooperate and share information with the Privy Council and other bodies prescribed by regulations if it helps the efficient performance of the functions of the Privy Council or such functions of those other bodies as are prescribed by regulations. The Privy Council is specified in this section as this will enable the OfS to work with the Council, who may retain oversight over some providers, such as those incorporated by charter.
227. Any data sharing must be in accordance with the Data Protection Act 1998.
228. This section forms part of the law of England and Wales.

Information duties

Section 64: Duty to compile and make available higher education information

229. This section sets out a requirement for compiling and making available to the OfS, UKRI and Secretary of State appropriate information relating to higher education provision. It specifies that the body responsible for compiling and making available this information is either a designated body or the OfS. It also makes provision for determining the manner in which information is to be made available and what information is appropriate for compiling, including a requirement to consider what would be helpful to the OfS, UKRI and the Secretary of State and a requirement to obtain the views of UKRI, the Secretary of State and any other person considered appropriate. It further makes provision about cooperation and the desirability of reducing burdens on registered higher education providers.
230. This section forms part of the law of England and Wales.

Section 65: Duty to publish English higher education information

231. This section sets out a requirement for the publication of appropriate information relating to higher education provision. It specifies that the body responsible for publishing this information or arranging for it to be published is either a designated body or the OfS. It also makes provision for determining the frequency and manner of publication and what information is appropriate information for these purposes, including a requirement to consider what would be helpful to certain persons and providers and a requirement to consult. It further makes provision about cooperation and the desirability of reducing burdens on registered higher education providers.
232. This section forms part of the law of England and Wales.

Section 66: Designated body

233. This section makes provision for a body to be designated in accordance with Schedule 6 to carry out the compilation and publication functions under sections 64 and 65. It requires that where a body has been designated the OfS must seek the views of that body in relation to those functions. It also makes provision for the OfS, UKRI or the Secretary of State by notice to require a designated body to provide it with information which the body holds for the purpose of the performance of its functions and for the consequences of a failure by that body to comply with such a notice.
234. This section forms part of the law of England and Wales.

Section 67: Power of designated body to charge fees

235. This section enables a body designated under Schedule 6 to charge an annual fee to registered higher education providers for carrying out the compilation and publication functions under sections 64 and 65. It makes provision for the amount of fee payable by a provider. It also makes provision for the publication of statements relating to the fees charged and the basis on which they are calculated.
236. This section forms part of the law of England and Wales.

Financial sustainability

Section 68: Duty to monitor and report on financial sustainability

237. This section gives the OfS a duty to monitor and report on the financial sustainability of registered higher education providers.
238. Subsection (1) sets out the duty to monitor and which providers it applies to. The duty applies to those registered providers who receive any grant, loan or other funding from the OfS under its funding powers in sections 39 and 40, or are eligible to receive such funding, even if they do not receive it. It also applies to registered providers that are designated for student support under section 22 of the Teaching and Higher Education Act 1998 and therefore may receive funding from tuition fee loans.
239. Subsection (2) provides for a duty upon the OfS to include in its annual report to the Secretary of State a financial sustainability summary.
240. Subsections (3) and (4) set out what a financial sustainability summary is. It is a summary of the OfS’s conclusions on relevant patterns, trends and any other matters that the OfS has identified in performing its monitoring duty under subsection (1) and thinks it appropriate to bring to the attention of the Secretary of State. The patterns, trends and other matters can relate to some or all of the providers monitored.
241. Finally, subsection (5) makes clear that the annual report referred to in subsection (2) is the same annual report stipulated in paragraph 13 of Schedule 1, and that the definition of financial year used is the same as is used in that Schedule.
242. This section forms part of the law of England and Wales.

Efficiency studies etc

Section 69: Studies for improving economy, efficiency and effectiveness

243. This section confers on the OfS a power to arrange for studies to improve economy, efficiency and effectiveness in the management or operations of a registered higher education provider. It includes provision to ensure that those promoting or carrying out efficiency studies have access to the information they reasonably need.
244. This section forms part of the law of England and Wales.

Funding of the OfS

Section 70: Registration fees

245. This section enables the OfS to charge an institution fees for initial and ongoing registration. Any fee charged must be in accordance with regulations made by the Secretary of State, subject to the consent of HM Treasury. This section also specifies what matters may be included in the regulations.
246. This section forms part of the law of England and Wales.

Section 71: Other fees

247. This section provides a power for the OfS to charge a specific fee, distinct from the registration fee, for any activity or service arising in the performance of any of its functions. Any fee charged must be in accordance with regulations made by the Secretary of State, subject to the consent of HM Treasury. This section also specifies matters that may be included in the regulations. It also provides that costs incurred by the OfS under section 70 may not be charged for under this section.
248. This section forms part of the law of England and Wales.

Section 72: Retention of fee related income

249. This section provides that the OfS can retain its income from registration fees, other fees, and recovery of costs, only if the Secretary of State directs that it can, and with the consent of HM Treasury. Income from imposing penalties and interest cannot be retained by the OfS and must be paid to the Secretary of State.
250. This section forms part of the law of England and Wales.

Section 73: Costs recovery

251. This section provides for the OfS, by notice, to recover certain costs from a provider where these costs have been incurred by the OfS through imposing a monetary penalty or suspension on that provider or through removing the provider from the register.
252. Schedule 7 contains further provisions on the imposition of a requirement to pay these costs and their recovery and the provider’s rights of appeal.
253. This section forms part of the law of England and Wales.

Section 74: Grants from the Secretary of State

254. This section confers a power on the Secretary of State to make grants to the OfS and allows the Secretary of State to attach terms and conditions to such grants (including in relation to repayment of sums and payment of interest). Terms and conditions may be framed by reference to particular courses of study.
255. This section also includes a number of requirements and restrictions in relation to the terms and conditions that may be imposed to protect the institutional autonomy of providers. In particular, the Secretary of State must have regard to the need to protect the institutional autonomy of English Higher education providers (as defined in section 2(8) of this Act) when determining what terms and conditions to impose.
256. In addition, there are specific restrictions where terms and conditions relate to the provision of financial support by the OfS under section 39 or 40 of this Act.
257. This section forms part of the law of England and Wales.

Regulatory framework

Section 75: Regulatory framework

258. This section imposes a duty on the OfS to publish a regulatory framework, from time to time, which the OfS must have regard to when carrying out its functions.
259. The regulatory framework covers:

• a statement of how the OfS intends to carry out its functions under this Act (for example, those relating to the register, setting and enforcing compliance with registration conditions, quality and standards, and access and participation); and
• guidance for registered higher education providers on the general ongoing registration conditions (see sections 5 to 14 of this Act). This guidance must include guidance to help providers understand how to comply with the general ongoing registration conditions.

260. The regulatory framework is required to set out how the OfS will operate a risk-based approach to carrying out its functions (see also section 7 of this Act for provision on this risk-based approach).
261. This section also imposes a requirement on the OfS to consult, in particular, bodies representing the interests of higher education providers and students before it publishes its regulatory framework and, where the regulatory framework is published, it requires the Secretary of State to lay a copy before Parliament.
262. This section forms part of the law of England and Wales.

Supplementary functions

Section 76: Secretary of State’s power to confer supplementary functions

263. This section enables the Secretary of State to make regulations conferring supplementary functions on the OfS. These are functions that may be exercised for the purposes of the performance of the Secretary of State’s statutory functions, or the doing of anything else that the Secretary of State has power to do. The functions must relate to an institution in England which provides higher education, or may do so, or to the activities of such an institution.
264. This section also enables the Secretary of State to direct that the Secretary of State’s functions in relation to an institution’s property may be exercised by the OfS, where the Secretary of State is entitled to a right or interest in respect of that property.
265. This section forms part of the law of England and Wales.

Directions

Section 77: Secretary of State’s power to give directions

266. Subsection (1) gives the Secretary of State the power to give general directions to the OfS about the performance of any of its functions. The power is exercised by regulations and is subject to the limitations in subsection (3). When giving directions the Secretary of State must have regard to the need to protect the institutional autonomy of English higher education providers.
267. The Secretary of State may only exercise the powers in this section in relation to a particular higher education provider when giving directions which are financial support directions, as defined in subsection (5).
268. The OfS is under a statutory obligation to comply with any directions given under this section.
269. This section forms part of the law of England and Wales.

Powers of Secretary of State to obtain information or advice

Section 78: Power to require information and advice from the OfS

270. This section places a duty on the OfS to provide information or advice in relation to its functions to the Secretary of State on request. The information and advice must be provided in the form requested by the Secretary of State.
271. This section forms part of the law of England and Wales.

Section 79: Power to require application-to-acceptance data

272. This section makes provision for the Secretary of State to require, by notice, application-to-acceptance information from bodies providing admissions services to English higher education providers for use for qualifying research. This section also defines what is meant by ‘application-to-acceptance’ information and ‘qualifying research’.
273. This section makes provision for the Secretary of State to enforce a request for such information.
274. This section forms part of the law of the United Kingdom.

Section 80: Use of application-to-acceptance data for research purposes

275. This section makes provision for how the Secretary of State may use the information obtained under section 79 and with whom the information may be shared. This section also makes provision for the circumstances in which a product of research using information obtained under section 79 may be published. The Secretary of State must publish guidance setting out the factors that will be taken into account when approving a body or individual with whom the information may be shared.
276. Any individual or body found to have misused the information they have received under this section is liable for prosecution under the Data Protection Act 1998.
277. This section forms part of the law of the United Kingdom.

HEFCE and the DFA

Section 81: Higher Education Funding Council for England

278. This section dissolves the Higher Education Funding Council for England (HEFCE) to allow for the creation, by this Act, of the OfS and UKRI.
279. This section forms part of the law of England and Wales.

Section 82: The Director of Fair Access to Higher Education

280. This section provides that the office of Director of Fair Access to Higher Education ceases to exist.
281. This section forms part of the law of England and Wales.

Interpretation

Section 83: Meaning of "English higher education provider" etc

282. This section sets out definitions of the main terms used in Part 1 of this Act.
283. The definitions in this section have the effect that an "English higher education provider" is any provider of one or more higher education courses as defined by the Education Reform Act 1988, whose activities are carried on, or principally carried on, in England. Any provider, including a university, a further education college or a provider who prior to this Act was regarded as an ‘alternative provider’ (not regulated by HEFCE) who meets this test will qualify as an English higher education provider. A provider must be, or intend to become, an English higher education provider before it can register with the OfS.
284. This section forms part of the law of the United Kingdom.

Section 84: Designation of other providers of higher education

285. This section provides for the Secretary of State to designate a provider of higher education as an institution for the purposes of Part 1 of this Act if certain conditions are met. The Secretary of State may make regulations in relation to the procedure for obtaining, making and withdrawing such designations and the effect of a withdrawal.
286. This section forms part of the law of England and Wales.

Section 85: Other definitions

287. This section sets out the definition of certain terms which are used in Part 1 of this Act.
288. This section forms part of the law of England and Wales.

Part 2: Other Education Measures

Financial support for students

Section 86: Power to make alternative payments

289. In England and Wales, student loans for higher and further education are provided pursuant to regulations made under section 22 of the Teaching and Higher Education Act 1998. This section amends section 22 of the 1998 Act to enable regulations to make provision for alternative student finance, alongside grants or loans. This additional type of student finance is called an "alternative payment".
290. Section 22 of the 1998 Act sets out what regulations may include, for instance, eligibility criteria for student support, maximum amounts of support, the categories of attendance eligible for support, and the terms and conditions for repayment. The amendments to this section ensure that regulations dealing with alternative payments can make the same provision.
291. The Government intends that regulations made under an amended section 22 of the 1998 Act support the provision of alternative student finance with a view to helping those who, for religious reasons, might feel they do not wish to access interest-bearing loans to support their education. The Government intends that alternative student finance are available to those of all faiths and none.
292. Alternative student finance offers no financial advantage or disadvantage relative to equivalent student loans. This section also ensures that regulations can provide that bankruptcy will not cancel out any liability to make contributions, in the same way that a student loan liability is not cancelled by bankruptcy. This section ensures that alternative payment contributions can be dealt with outside of the consolidated fund: this requires the consent of HM Treasury in relation to England.
293. This section also amends section 46 of the 1998 Act to reflect the extent of the amended section 22 of that Act.
294. This section forms part of the law of the United Kingdom.

Section 87: Consequential amendments

295. This section makes consequential amendments to existing legislation to take account of the new category of student support.
296. Paragraph 15 of Schedule 2 to the Commissioners for Revenue and Customs Act 2005, section 73E of the Education (Scotland) Act 1980, section 24 of the Teaching and Higher Education Act 1998 and article 5 of the Education (Student Support) (Northern Ireland) Order 1998 are amended to allow for HM Revenue and Customs to disclose information to ministers and delegated bodies in relation to alternative payments (as well as student loans as present).
297. Section 23(7)(a)(i) of the Teaching and Higher Education Act 1998 is amended to allow for the Secretary of State’s functions in relation to alternative payments to be delegated, for example, to the Student Loans Company.
298. This section forms part of the law of the United Kingdom.

Section 88: Other amendments relating to financial support

299. This section amends section 22 of the Teaching and Higher Education Act 1998.
300. Section 22 of the 1998 Act, as amended by this Act, enables the Secretary of State and Welsh Ministers to offer students grants, loans and alternative payments in connection with higher education courses which are designated by or under regulations. This section amends section 22(2) by adding a new subsection (aa) to enable such regulations to make provision designating higher education courses by reference to matters determined or published by OfS or other persons. The purpose of this provision is to enable regulations under section 22(1) to refer to, for example, different categories of the OfS register, and the list published by the OfS under section 18.
301. Section 22(2)(b) of the 1998 Act permits regulations to be made prescribing, in relation to any grant, loan and, as amended by this Act, alternative payment, the maximum amount available to any person for any particular purpose. The new section 22(2A) of the 1998 Act enables higher education regulations to make provision prescribing the maximum amount by reference to matters determined or published by the Secretary of State or other persons. This, for example, permits regulations to refer to the list published by the OfS under section 11 and the sub-level amounts determined by the Secretary of State under Schedule 2.
302. This section further amends section 22 of the 1998 Act to give the Secretary of State and Welsh Ministers a power to cancel entitlement to suspended student loans and grants. On occasion it may be necessary to suspend payments of student support in connection with higher education, if there are doubts as to whether the payments are properly due under the regulations. This provision clarifies the powers of the Secretary of State and Welsh Ministers to cancel entitlement for the period of suspension for example, if an investigation found that payments are not due.
303. This section forms part of the law of England and Wales.

Student complaints scheme

Section 89: Qualifying institutions for purposes of student complaints scheme

304. This section makes changes to the higher education complaints handling scheme ("the scheme") that was set up under the Higher Education Act 2004 and is operated by the Office of the Independent Adjudicator for Higher Education.
305. Subsections (1) to (3) expand the list of institutions, which are required to join the scheme to include: (a) all registered providers: (b) all institutions in England that provide courses on behalf of another institution that is a qualifying member of the scheme; and (c) all institutions that provide courses under validation arrangements with the OfS authorised by regulations made under section 51 of this Act.
306. Subsection (3) inserts section 20A (Institutions that cease to be qualifying institutions) of the 2004 Act. This provides that an institution that ceases to meet the definition of a qualifying institution is treated as if it did meet that definition for an additional period of up to 12 months. This additional period is referred to as the transitional period. Complaints only qualify for consideration under the scheme in relation to acts or omissions that occurred before the transitional period began.
307. Subsection (4) amends the definition of "institution" in section 21 of the 2004 Act so that it includes a training provider; it inserts a definition of "training provider" and it makes consequential amendments to the definition of "governing body".
308. Subsection (5) makes consequential amendments to the definition of "qualifying institution" in section 118(1) the Equality Act 2010 so that the time limits in that provision do not run in the period in which an institution is treated as a qualifying institution by section 20A of the 2004 Act.
309. Subsection (6) makes consequential amendments to the definition of "qualifying institution" in section 32(1) of the Counter-Terrorism Act 2015.
310. This section forms part of the law of England and Wales.

Deregulation of higher education corporations

Section 90: Higher education corporations in England

311. This section introduces Schedule 8, which amends provisions in the Education Reform Act 1988 and the Further and Higher Education Act 1992 relating to higher education corporations.
312. This section forms part of the law of England and Wales.

Part 3: Research

Establishment of United Kingdom Research and Innovation

Section 91: United Kingdom Research and Innovation

313. This section establishes a body corporate, "United Kingdom Research and Innovation" which is referenced as "UKRI". It also gives the Welsh language name for UKRI, "Ymchwil ac Arloesedd y Deyrnas Unedig".
314. Section 92 and Schedule 9 cover in more detail how UKRI is structured and how it will operate.
315. This section forms part of the law of the United Kingdom.

Section 92: The Councils of UKRI

316. This section establishes nine UKRI committees, which are referred to as "Councils". These committees consist of seven research councils (subsection (1)(a) to (g)), Innovate UK (subsection (1)(h)) and the research funding functions currently exercised by HEFCE (subsection (1)(i)).
317. The Secretary of State has the power by regulation to add, omit or change the names of a Council. This power does not extend to either Innovate UK or Research England. These Regulations are subject to the affirmative resolution procedure which means that they must be passed by a vote of each House of Parliament (see section 119(2)(f)).
318. Before making these regulations, the Secretary of State must consult such persons as they consider appropriate. If requested to do so by the Secretary of State, UKRI must carry out this consultation as directed by the Secretary of State.
319. This section forms part of the law of the United Kingdom.

Research and innovation functions and role of the Councils

Section 93: UK research and innovation functions

320. This section outlines UKRI’s functions in relation to science, technology, arts, humanities and new ideas. "Science" includes the social sciences and "humanities" includes the arts (see section 111(1)).
321. The exercise of UKRI’s functions is not limited to the United Kingdom. UKRI may, when exercising its functions in subsection (1)(a) to (f), encourage and support postgraduate training in sciences, technology, humanities and new ideas.
322. Subsection (4) contains a definition of ‘knowledge exchange’, which applies to the whole of Part 3.
323. This section forms part of the law of the United Kingdom.

Section 94: Financial support: supplementary provision

324. This section provides detail about UKRI’s power to provide financial support under section 93, which includes the power to make grants, loans or other payments.
325. UKRI may set terms and conditions as it considers appropriate when providing financial support including repaying finance, charging interest, and placing information obligations.
326. UKRI has a duty to take into account the need not to discourage funding recipients from securing alternative sources of income.
327. This section forms part of the law of the United Kingdom.

Section 95: Exercise of functions by science and humanities Councils

328. This section provides a duty for UKRI to arrange for its functions to be exercisable by the Councils listed in the table with respect to the corresponding fields of activity in the table.
329. In particular, UKRI may enable these Councils to exercise UKRI’s power to appoint specialist employees. "Specialist employees" are researchers, scientists, and persons with knowledge, experience or specialist skills relevant to the Council’s field of activity and employed by UKRI to work in this field.
330. In exercising functions under this section, each Council has a duty to have regard to the desirability of contributing to economic growth or economic benefit in the United Kingdom (directly or indirectly); advancing knowledge (directly or indirectly) whether in the United Kingdom or elsewhere in science, technology, humanities new ideas; and improving quality of life in the United Kingdom or elsewhere.
331. The Secretary of State has the power by regulations to amend the list of Councils in the table in tandem with exercising the power (under section 92) to add, omit or change the name of a Council. The Secretary of State also has the power by regulations to amend the Councils’ fields of activity outlined in the second column of the table. These Regulations are subject to the affirmative resolution procedure which means that they must be passed by a vote of each House of Parliament (see section 119(2)(g)).
332. Before making these regulations the Secretary of State must consult such persons as considered appropriate. UKRI may carry out this consultation as directed by the Secretary of State.
333. This section forms part of the law of the United Kingdom.

Section 96: Exercise of functions by Innovate UK

334. This section places a duty on UKRI to arrange for any of its functions as it may determine to be exercisable by Innovate UK for the purpose of increasing economic growth in the United Kingdom. UKRI may not, however, arrange for Innovate UK to exercise the function under section 93(1)(a) in relation to carrying out research.
335. In exercising its functions, Innovate UK has a duty to have regard to the need to support (directly or indirectly) persons engaged in business activities in the United Kingdom and the need to promote innovation by such persons. Regard must also be had to the desirability of improving quality of life in the United Kingdom.
336. This section forms part of the law of the United Kingdom.

Section 97: Exercise of functions by Research England

337. This section places a duty on UKRI to arrange for its functions to be exercisable by Research England for the purpose of providing financial support as outlined in subsections (2) and (3).
338. Subsection (2) refers to financial support provided for the undertaking of research or knowledge exchange in relation to science, technology, humanities or new ideas, by eligible higher education providers. Financial support can also be provided for facilities and other activities associated with the research or knowledge exchange. Eligible higher education providers are defined in section 39(3). Financial support is to be provided by Research England to the governing body of the eligible education provider, and can be in respect of spending already incurred or that will be incurred in the future.
339. Subsection (3) allows Research England to provide financial support to a person or organisation for purposes associated with the undertaking of research or knowledge exchange by eligible higher education providers receiving support under subsection (2).
340. Research England may determine terms and conditions for the provision of financial support under this section. Before doing so, it has a duty to consult with persons it considers appropriate.
341. This section forms part of the law of England and Wales.

Section 98: Exercise of functions by the Councils: supplementary

342. This section provides supplementary provisions relating to the exercise of UKRI’s functions.
343. Subsection (1) provides that UKRI may arrange for a council to exercise any other function in addition to those it may exercise under sections 95, 96 or 97. This allows UKRI to enable a Council to exercise a function outside of its field of activity, for example in respect of cross-disciplinary research.
344. Subsection (2) states that a particular function of UKRI may be exercised by more than one Council.
345. Subsection (3) ensures that UKRI retains the ability to exercise any function it makes exercisable by a Council.
346. Under subsection (4), each Council (including Innovate UK and Research England) must provide UKRI with advice or information about its exercise of UKRI functions, on request from UKRI.
347. This section forms part of the law of the United Kingdom.

Strategies and strategic delivery plans

Section 99: UKRI’s research and innovation strategy

348. The Secretary of State may request UKRI to prepare and submit a research and innovation strategy relating to the exercise of its functions over a given time period. This strategy must require each Council to submit a strategic delivery plan to UKRI, covering a defined period, to a deadline. The Secretary of State may approve the research and innovation strategy with or without changes.
349. UKRI is under a duty to publish an approved research and innovation strategy in such a manner as determined by the Secretary of State.
350. This section forms part of the law of the United Kingdom

Section 100: Councils’ strategic delivery plans

351. When UKRI publishes a strategy under section 99, it must arrange for each Council to prepare a strategic delivery plan to a deadline. These plans will be submitted to UKRI, who may approve each plan with or without changes.
352. The strategic delivery plan sets out how the Council will exercise its functions under sections 95 to 98.
353. Each Council has a duty to exercise its functions under sections 95 to 98 in accordance with its strategic delivery plan.
354. UKRI is under a duty to publish Councils’ approved strategic delivery plans in such a manner as determined by the Secretary of State.
355. This section forms part of the law of the United Kingdom.

Funding and directions

Section 101: Grants to UKRI from the Secretary of State

356. This section provides the Secretary of State with a grant funding power in relation to UKRI. The Secretary of State can make grants with terms and conditions as the Secretary of State considers appropriate.
357. Subsections (2) and (3) place restrictions upon the terms and conditions that the Secretary of State can impose with respect to functions exercisable by Research England under section 97. Terms and conditions on grants may only be made if they constitute requirements to be met before the award of financial support and are applied to all other similar institutions. Further, grants cannot be framed by references to particular courses of study or programmes of research, or the criteria for the selection and appointment of academic staff or the admission of students. These restrictions reflect the restrictions placed upon the Secretary of State’s power to set terms and conditions when providing grants to HEFCE under section 68 of the Further and Higher Education Act 1992.
358. Subsection (4) provides specific terms and conditions that, in particular, can be applied:
     1. to provide for the allocation of a grant (in whole or in part) to a Council and for changes in that allocation;
     2. to require repayment of financial support provided where terms and conditions are not followed by UKRI; and
     3. to allow interest to be charged where UKRI owes money to the Secretary of State.
359. When a grant is made to UKRI, the Secretary of State must publish the amount of the grant, any terms and conditions attached to it, and, if allocated to a specific Council, the name of the Council, and the amount that Council is to receive.
360. This section forms part of the law of the United Kingdom.

Section 102: Secretary of State’s power to give directions to UKRI

361. This section provides the Secretary of State with the power to direct UKRI in relation to the use and expenditure of money provided by the Secretary of State under section 101; UKRI must comply with such a direction. This reflects the duty on research councils to follow directions given by the Secretary of State under the Science and Technology Act 1965 and the Arts and Humanities Act 2004.
362. The section places restrictions on the Secretary of State’s power to give directions with respect to Research England functions under section 97, which mirror the restrictions under section 101(2) and (3).
363. This section forms part of the law of the United Kingdom.

Section 103: Haldane principle, balanced funding and advice from UKRI

364. This section outlines matters that the Secretary of State has a duty to consider before:
     1. making a grant under section 101; and
     2. determining terms and conditions for such a grant; and
     3. giving a direction under section 102.
365. When such a grant or direction is in respect of functions exercisable by one or more of the science and humanities Councils (see section 95), the Secretary of State must have regard to the Haldane principle. The Haldane Principle is defined as the principle that decisions on individual research proposals are best taken following an evaluation of the quality and likely impact of the proposals (such as a peer review process). The text of this definition has been adapted from the Rt Hon David Willetts’ 2010 Written Ministerial Statement on the Haldane Principle, which provides further information.1
366. In any case, the Secretary of State must have regard to the balanced funding principle, and any advice provided by UKRI about the allocation of funding in relation to its functions. The balanced funding principle is defined as the principle that it is necessary to ensure that a reasonable balance is achieved in the allocation of funding between functions exercisable by the science and humanities Councils (see section 95) and functions exercisable by Research England (see section 97).
367. This section forms part of the law of the United Kingdom.

General functions

Section 104: General duties

368. Subsection (1) of this section states that UKRI must have regard to the need to use its resources in the most efficient, effective and economic way.
369. Subsection (2) of this section places a duty on UKRI to have regard to any guidance issued by the Secretary of State.
370. This section forms part of the law of the United Kingdom.

Section 105: Power to require information and advice from UKRI

371. This section places a duty on UKRI to provide information or advice in relation to its functions to the Secretary of State on request. The information and advice must be provided in the form requested by the Secretary of State.
372. This section forms part of the law of the United Kingdom.

Section 106: Studies for improving economy, efficiency and effectiveness

373. UKRI may arrange for studies designed to improve the economy, efficiency and effectiveness of activities which UKRI funds. Recipients of funding are required to make available information, accounts and other documentation as may reasonably be required for the study. This section is similar to a power held by HEFCE.
374. This section forms part of the law of the United Kingdom.

Section 107: Provision of research services

375. This section provides UKRI with the power to provide research services to anyone inside or outside the United Kingdom. UKRI may charge for these services and set terms and conditions as it determines.
376. Research services are defined in subsection (2).
377. This section forms part of the law of the United Kingdom.

Section 108: Representing the United Kingdom

378. This section places a duty on UKRI to represent the United Kingdom in matters relating to international relations in any field related to its functions, if requested to do so by the Secretary of State.
379. This section forms part of the law of the United Kingdom.

Supplementary

Section 109: Predecessor bodies and preservation of symbolic property

380. This section revokes the Royal Charters of all current research councils established under the Science and Technology Act 1965 and the Higher Education Act 2004. This includes the seven research councils and Innovate UK. Innovate UK is a research council with the legal name "Technology Strategy Board". These eight bodies corporate cease to exist.
381. The section preserves the symbolic property of the research councils by providing that it must be transferred to UKRI as part of any property transfer scheme under Schedule 10. Symbolic property refers to the name, goodwill in the name, logo, insignia and seal of a council.
382. This section forms part of the law of the United Kingdom.

Section 110: Amendments to powers to support research

383. This section makes amendments to the Science and Technology Act 1965 and the Higher Education Act 2004 to clarify that the powers of the Secretary of State and Ministers of the Devolved Administrations, in regard to their respective jurisdictions, have the power to fund research through grants, loans or other payments. These persons can specify terms and conditions in respect of funding, including the repayment of money, the charging of interest and a requirement on recipients of assistance to provide information that the funder requires for the exercise of its functions.
384. This section forms part of the law of the United Kingdom.

Interpretation

Section 111: Definitions

385. This section provides the definitions of certain terms, which apply to Part 3 of this Act.
386. This section also states that a reference to the United Kingdom in Part 3 includes a reference to any part of the United Kingdom.
387. This section forms part of the law of the United Kingdom.

Part 4: General

Section 112: Cooperation and information sharing between OfS and UKRI

388. This section sets out the circumstances in which the OfS and UKRI have the power to cooperate and share information.
389. The OfS and UKRI have a duty to cooperate where instructed to do so by the Secretary of State.
390. This section forms part of the law of the United Kingdom.

Section 113: Joint working

391. This section gives a number of authorities the power to exercise their functions jointly where doing so would enable them to discharge their functions more efficiently or effectively. These authorities are the OfS, UKRI (but only in relation to functions exercisable by Research England), the Higher Education Funding Council for Wales, The Scottish Further and Higher Education Funding Council, the Secretary of State (to the extent that the Secretary of State is exercising functions under section 14 of the Education Act 2002), the Welsh Ministers (to the extent that they are exercising their functions under Part 2 of the Learning and Skills Act 2000), and the Department for the Economy in Northern Ireland, or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland (in relation to funding higher education, or research, in Northern Ireland but only to the extent that the Department is exercising functions in connection with such funding).
392. This section forms part of the law of the United Kingdom.

Section 114: Advice to Northern Ireland departments

393. This section gives UKRI and the OfS powers to provide advice to the Northern Ireland Executive and replicates powers set out in section 69(3) of the Further and Higher Education Act 1992.
394. This section forms part of the law of the United Kingdom.

Section 115: Transfer schemes

395. This section introduces Schedule 10, which makes provision about schemes for the transfer of staff and property, rights and liabilities as a result of a body established by or ceasing to exist by virtue of this Act.
396. This section forms part of the law of the United Kingdom.

Section 116: Power to make consequential provision etc

397. This section enables the Secretary of State, by regulations, to make provision which is consequential on any provision made by or under this Act. This includes power to amend, repeal, revoke or modify primary legislation, secondary legislation or, for specific purposes only, Royal Charters.
398. Subsection (3) allows the Secretary of State to make provision in relation to Royal Charters for the purposes of degree awarding powers and "university" title only. Subsection (4) provides that the Secretary of State cannot, under section 116, revoke a Royal Charter in its entirety.
399. This section forms part of the law of the United Kingdom.

Section 117: Transitional, transitory or saving provision

400. This section enables transitional, transitory or saving provisions in connection with the coming into force of any provision of this Act to be made by regulations.
401. This section forms part of the law of the United Kingdom.

Section 118: Pre-commencement consultation

402. This section provides for the OfS or UKRI to rely on a consultation carried out by others before the coming into force of the relevant power or duty under this Act to carry out that consultation.
403. Where the OfS would have a power or duty to carry out such consultation, provision is made for it to be carried out by the Secretary of State, the DFA or HEFCE, or any of them acting jointly. When doing so, provision is also made for the Secretary of State, the DFA or HEFCE to consult English higher education providers before any such providers have been registered.
404. Where UKRI would have a power or duty to carry out such consultation, provision is made for it to be carried out by either the Secretary of State or HEFCE or both of them jointly.
405. This section forms part of the law of the United Kingdom.

Section 119: Regulations

406. This section sets out the parliamentary procedures to which the various delegated legislative powers under this Act are subject. It also sets out the different types of provision that regulations may make, including different provision for different purposes, cases or areas, and incidental, consequential, supplementary, transitional, transitory or saving provision.
407. This section forms part of the law of the United Kingdom.

Section 120: Directions

408. This section provides that any power to give directions under this Act includes a power to vary or revoke such directions.
409. This section forms part of the law of the United Kingdom.

Section 121: General interpretation

410. This section defines certain terms used in this Act.
411. This section forms part of the law of the United Kingdom.

Section 122: Minor and consequential amendments

412. This section introduces Schedules 11 and 12, which make minor and consequential changes relating to Parts 1 and 3 respectively.
413. This section forms part of the law of the United Kingdom.

Section 123: Extent

414. See commentary on sections and Annex A below.
415. This section forms part of the law of the United Kingdom.

Section 124: Commencement

416. This section makes provision about the coming into force of the provisions of this Act.
417. This section forms part of the law of the United Kingdom.

Section 125: Short title

418. This section sets out the short title of this Act and that this Act is to be included in the list of Education Acts set out in section 578 of the Education Act 1996.
419. This section forms part of the law of the United Kingdom.

Schedules

Schedule 1: The Office for Students

420. Paragraph 1 states that the OfS is separate and distinct from, and is not working on behalf of, the Crown. It also provides that property of the OfS does not belong to, nor is being held by the OfS on behalf of, the Crown.
421. Paragraph 2(1) states that the members of the OfS are a chair, the Chief Executive Officer, the Director for Fair Access and Participation, and between seven and 12 other members, referred to as ordinary members. These members are appointed by the Secretary of State.
422. Paragraph 2(2) sets out the Secretary of State’s duty, in appointing the chair and ordinary members of the OfS, to have regard to the desirability of their having a range of experience. At least one member of the OfS must have experience of representing or promoting the interests of individual students or students generally. Civil servants may not be appointed as members of the OfS.
423. Paragraph 3 provides that the Director for Fair Access and Participation is responsible for overseeing the performances of the OfSʹs access and participation functions, performing any such functions (or any other functions) which are delegated to that Director, and reporting to the other members of the OfS on the performance of those functions. The Director may also report to the other members on measures taken to comply with the OfS’s duty under section 2(1)(d) to have regard to the need to promote equality of opportunity etc.
424. Paragraphs 4 and 5 explain how terms and conditions of appointment for members are set and enables the Secretary of State to remove a member on specified grounds.
425. Paragraph 6 places a duty on the OfS to pay salaries, pensions, allowances, expenses or gratuities to OfS members as determined by the Secretary of State. It also provides that if someone ceases to be a member of the OfS, the OfS must pay any compensation determined by the Secretary of State.
426. Paragraph 7 empowers the OfS to appoint and pay staff, determining their pay, terms and conditions, allowances, expenses, pensions and gratuities, subject to the approval of the Secretary of State. Provision is also made for payments to former employees by the OfS with the approval of the Secretary of State. The OfS is a body in Schedule 1 to the Superannuation Act 1972 and must pay the Minister for the Civil Service for any increase in sums provided by Parliament which are attributable to its inclusion in that Act.
427. Paragraph 8 gives the OfS powers to establish committees and subcommittees and sets conditions for appointing committee members, paying allowances and reviewing the structure and activities of the committees and subcommittees.
428. Paragraph 9 states that the OfS may determine its own procedures and the procedures of any of its committees. The quorum for a meeting of the OfS is half the number of its members. The Secretary of State (or a representative) is entitled to attend any meeting of the OfS or its committees. The Secretary of State or representative must, on request, be provided with papers and be able to participate in those meetings. However, the Secretary of State (or representative) may not be involved in decision-making at those meetings.
429. Paragraph 10 states that the proceedings of the OfS or any of its committees are not rendered invalid by a vacancy or defective appointment.
430. Paragraph 11 enables the OfS to delegate functions, as it determines, to individual members of the OfS, OfS employees or committees. But access and participation functions may be delegated only to the Director for Fair Access and Participation.
431. Paragraph 12(1) requires the OfS to maintain a record of its financial accounts and clear records of the information that underpins them. It also requires that the OfS sets out an annual statement of its accounts for each financial year.
432. Paragraph 12(2) requires that the OfS’s annual statement of accounts should adhere to instructions provided to it by the Secretary of State and HM Treasury. Instructions may relate to the content and form of the annual statement, the methodology, and any extra information that it has been deemed necessary to provide to Parliament.
433. Paragraph 12(3) requires the OfS to send a copy of the annual financial statement to the Secretary of State and the Comptroller and Auditor General – the head of the National Audit Office, which is the organisation that scrutinises the spending of public bodies – before the end of August that follows the financial year to which the financial statement relates.
434. Paragraph 12(4) requires the Comptroller and Auditor General to scrutinise the OfS’s statement of accounts, to certify it and report on it. This report and a certified statement must be sent to the Secretary of State.
435. Paragraph 12(5) requires the Secretary of State to provide a copy of the Comptroller and Auditor’s report on the OfS’s statement of accounts and certified statement to Parliament.
436. Paragraph 12(6) defines the first financial year as the period of time from the date that the OfS is set up to the second 31 March following that date. Each subsequent period of 12 months from that point on constitutes a new financial year.
437. Paragraph 13 deals with the annual report. The OfS must produce a report that covers the period of a financial year and which provides a commentary on its functions during that period. The report must include a statement on how the OfS has cooperated with UKRI during that financial year. The report must include the annual statement of accounts referred to in paragraph 12(1). If, for any reason, the OfS does not delegate all of the access and participation functions to the Director for Fair Access and Participation during a financial year, then the OfS must report this and set out the period or periods of time during which the access and participation functions were not delegated to the Director and the reasons why these functions were not delegated. The OfS must produce the annual report as soon as possible after the end of the financial year to which it relates. The OfS must send the report to the Secretary of State who must lay it before Parliament.
438. Paragraph 14 sets out that on those occasions where the OfS’s seal is being applied, this needs to have been authorised by the signature of the chair of the OfS or of another authorised person and one other member. A document executed in this manner is to be received as evidence and taken as executed unless the contrary is shown.
439. Paragraph 15 relates to the supplementary powers of the OfS. The OfS may do anything necessary or expedient in relation to its functions. The OfS may, in particular, acquire and dispose of land and property, enter into contracts and accept gifts or money, land and other property. This list is non exhaustive.
440. Paragraph 16 inserts ‘Office for Students’ into Part 2 of the Table in paragraph 3 of Schedule 1 to the Public Records Act 1958. Any records produced by the OfS are treated as public records and are subject to the restrictions and principles governing public records.
441. Paragraph 17 inserts ‘Office for Students’ into Schedule 2 to the Parliamentary Commissioner Act 1967. This means that the OfS is a body subject to investigation by the Parliamentary Commissioner for Administration (Parliamentary Ombudsman). This body is responsible for investigating the administrative actions of central government departments and public authorities.
442. Paragraph 18 inserts ‘The Office for Students’ into Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975. That Act prohibits certain categories of people from becoming members of the House of Commons. The effect is that members of the OfS are prohibited from becoming members of the House of Commons and vice versa.
443. Paragraph 19 inserts ‘The Office for Students’ into Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975. That Act prohibits certain categories of people from becoming members of the Northern Ireland Assembly. The effect is that members of the OfS are prohibited from becoming members of the Northern Ireland Assembly and vice versa.
444. Paragraph 20 inserts ‘The Office for Students’ into Part 6 of Schedule 1 to the Freedom of Information Act 2000. This means that the OfS is a public body subject to the provisions of that Act, which sets out a framework for the public to have a right of access to information that is held by public authorities, subject to certain restrictions.
445. Paragraph 21 inserts ‘The Office for Students’ under the heading ‘Other educational bodies’ in Part 1 of Schedule 19 to the Equality Act 2010, thus making the OfS a body subject to the provisions of that Act.

Schedule 2: The fee limit

446. Section 10 (Mandatory fee limit condition for certain providers) provides that the OfS must ensure that the ongoing registration conditions of each registered provider of a prescribed description include a fee limit condition. Schedule 2 contains provision for determining the fee limit.
447. Paragraph 2 makes provision for determining the fee limit where the provider has an access and participation plan approved under section 29:
     1. if the provider has a "high level quality rating" at the time when the plan is approved, the fee limit is such limit, not exceeding the higher amount, as is provided by the plan for the relevant course and the relevant academic year;
     2. in any other case, the fee limit is such limit, not exceeding the sub-level amount, as is provided by the plan for the relevant course and for the relevant academic year.
448. A "high level quality rating" is a rating or ratings given in accordance with arrangements made under section 25, as the Secretary of State determines to be a high level quality rating for the purposes of paragraph 2.
449. The "higher amount" is an amount prescribed by regulations.
450. The "sub-level amount" is determined administratively by the Secretary of State. The sub-level amount must not exceed the higher amount and must be equal to or greater than a "floor amount" prescribed by regulations.
451. Different sub-level amounts may be determined for different descriptions of provider by reference to whether or not a provider has a rating in accordance with arrangements under section 25 and the level, type or description of that rating. However, where the sub-level amount is being set in respect of an academic year beginning before 1 August 2020, it must be equal to the higher amount for providers who have such a rating.
452. Different higher amounts may be prescribed for different cases or purposes, for example, for different types of teaching provision (such as accelerated courses, ʺsandwichʺ courses or part‐time courses) by virtue of section 119(5). Where different higher amounts are so prescribed, there can be different sub-level and floor amounts in respect of each higher amount, and the references to the higher amount and the floor amount in paragraph 2(9) should be construed accordingly.
453. Paragraph 3 makes provision for determining the fee limit where the provider does not have an access and participation plan approved under section 29:
     1. if the provider has a "high level quality rating" on 1 January in the calendar year before the calendar year in which the relevant academic year begins, the fee limit is the basic amount;
     2. in any other case, the fee limit is the sub-level amount.
454. The "basic amount" is an amount prescribed by regulations.
455. The "sub-level amount" is determined administratively by the Secretary of State. The sub-level amount must not exceed the basic amount and must be equal to or greater than a "floor amount" prescribed by regulations.
456. Different sub-level amounts may be determined for different descriptions of provider by reference to whether or not a provider has a rating in accordance with arrangements under section 25 and the level, type or description of that rating. However, where the sub-level amount is being set in respect of an academic year beginning before 1 August 2020, it must be equal to the basic amount for providers who have such a rating.
457. Different basic amounts may be prescribed for different cases or purposes, for example, for different types of teaching provision (such as accelerated courses, ʺsandwichʺ courses or part‐time courses) by virtue of section 119(5). Where different basic amounts are so prescribed, there can be different sub-level and floor amounts in respect of each basic amount, and the references to the basic amount and floor amount in paragraph 3(8) should be construed accordingly.
458. Paragraph 4 relates to accelerated courses. For these purposes, an "accelerated course" is defined as a higher education course where the number of academic years applicable to the course is at least one fewer than would normally be the case for that course or a course of equivalent content leading to the grant of the same or an equivalent academic award. Paragraph 4(1) confirms that regulations under paragraph 2 or 3 may prescribe different higher, basic and floor amounts for accelerated courses.
459. Paragraph 5 sets out the procedures which apply in respect of fee limits. Paragraph 5(1) deals with the requirement for the Secretary of State to notify the OfS of initial and subsequent determinations of the high level quality rating and sub-level amounts, and to publish them. Paragraph 5(2) provides that regulations which increase the higher amount by an amount greater than that required to maintain its value in real terms require a resolution of each House of Parliament. The resolution must provide that, with effect from a date specified in the resolution, the higher amount should be increased to an amount specified in the resolution, and the increase is an increase to the specified amount with effect from the specified date. This is consistent with the parliamentary procedure required in relation to above inflation increases to the higher amount under the Higher Education Act 2004.
460. Paragraph 5(3) provides that, for the purposes of paragraph 5(2)(a), the Secretary of State is to have regard to such index of prices as may be specified in regulations.
461. Any other regulations which prescribe the higher amount, the basic amount or the floor amount will be subject to the affirmative procedure (see section 119(2)).

Schedule 3: Monetary penalties: procedure, appeals and recovery

462. This Schedule sets out the process that must be followed by the OfS in the event that it imposes a monetary penalty on a registered higher education provider.
463. The OfS must notify the provider before imposing the penalty of the amount of the penalty, why it is being imposed and of a timescale (not less than 28 days) in which the provider may make representations to the OfS.
464. The OfS is obliged to consider any such representations before making a final decision to impose any monetary penalty.
465. The OfS must inform the provider of its decision. In the event that a monetary penalty is imposed, the OfS must inform the provider of the amount of the penalty, the grounds for its imposition and how to pay or appeal against it.
466. A provider may appeal to the First-tier Tribunal against a penalty on the grounds set out in paragraph 3(2) of this Schedule. The remedies available if the appeal is successful are set out in paragraph 3(3).
467. This Schedule also sets out the consequences of late payment of a penalty and the circumstances in which the requirement to pay the penalty is suspended. Penalties recovered by the OfS and any interest must be paid to the Secretary of State.

Schedule 4: Assessing higher education: designated body

468. Part 1 of this Schedule provides for the designation of a body suitable to perform the assessment functions defined in section 27(2). Paragraph 1 provides that the OfS may consult about whether there is a body that is suitable to perform the assessment functions and that the Secretary of State may direct the OfS to undertake such a consultation. It sets out the stakeholders who must be consulted in either instance.
469. Paragraph 2 concerns the making of a recommendation by the OfS and only applies if the OfS has consulted in line with paragraph 1. The OfS must consider whether there is a body suitable to perform the assessment functions, and if only one body is identified that body must be recommended to the Secretary of State. If more than one body is identified as suitable, the OfS will recommend whichever body it considers would be most appropriate to perform the assessment functions. If no suitable body is identified, the OfS cannot make a recommendation. The OfS must notify the Secretary of State of its decision and publish the decision.
470. Paragraph 3 provides that, where a body is recommended, the Secretary of State can only designate that body if the Secretary of State considers that the body is suitable to perform the assessment functions and that designating the body would be appropriate for securing the effective assessment of the quality of, and the standards applied to, higher education provided by English higher education providers. The Secretary of State is required to notify the body, and publish notice of the designation, before the designation takes effect. If the Secretary of State decides not to designate the recommended body, the Secretary of State must publish the reasons for not doing so.
471. Paragraph 4 sets out the criteria that a body must meet in order to be suitable to perform the assessment functions.
472. Paragraph 5 enables the Secretary of State, by notice, to remove a designation if the Secretary of State is satisfied of certain matters or the designated body consents to the removal. The Secretary of State is required to consult specified stakeholders before removing the designation and to consider any relevant information provided by the OfS. The notice must include specified information and be published.
473. Part 2 of this Schedule provides for the oversight of the designated body by the OfS. Paragraph 8 requires the body to prepare and send to the OfS an annual report on its performance. Paragraph 9 requires the OfS to prepare and send to the Secretary of State a triennial report; it specifies the matters that the report must consider and the persons whose views must be had regard to in preparing the triennial report.
474. Paragraph 10 makes provision for the OfS to give general directions to the designated body about the performance of any of the assessment functions and the matters that the OfS must have regard to in giving such directions.
475. Paragraph 11 requires the OfS to inform the Secretary of State if it has significant concerns about how the designated body is performing its duty or the continued suitability of the body to carry out that duty.

Schedule 5: Powers of entry and search etc

476. This Schedule is explained in the commentary on section 56.

Schedule 6: English higher education information: designated body

477. Part 1 of this Schedule provides for the designation of a body suitable to perform the information functions set out in sections 64 and 65. Paragraph 1 provides that the OfS may consult about whether there is a body that is suitable to perform these functions and that the Secretary of State may direct the OfS to undertake such a consultation. It sets out the stakeholders who must be consulted in either instance.
478. Paragraph 2 concerns the making of a recommendation by the OfS and only applies if the OfS has consulted in line with paragraph 1. The OfS must consider whether there is a body suitable to perform these information functions, and if only one body is identified that body must be recommended to the Secretary of State. If more than one body is identified as suitable, the OfS will recommend whichever body it considers would be appropriate to perform these functions. If no suitable body is identified, the OfS cannot make a recommendation. The OfS must notify the Secretary of State of its decision and publish the decision.
479. Paragraph 3 provides that where a body is recommended, the Secretary of State can only designate that body if the Secretary of State considers that the body is suitable to perform these information functions. The Secretary of State is required to notify the body, and publish notice of the designation, before the designation takes effect. If the Secretary of State decides not to designate the recommended body, the Secretary of State must publish the reasons for not doing so.
480. Paragraph 4 sets out the criteria that a body must meet in order to be suitable to perform these information functions.
481. Paragraph 5 enables the Secretary of State, by notice, to remove a designation if the Secretary of State is satisfied that removal would be appropriate or the designated body consents to the removal. The Secretary of State is required to consult specified stakeholders before removing the designation and to consider any relevant information provided by the OfS. The notice must include specified information and be published.
482. Part 2 of this Schedule provides for the oversight of the designated body by the OfS. Paragraph 8 requires the body to prepare and send to the OfS an annual report on its performance. Paragraph 9 requires the OfS to prepare and send to the Secretary of State a triennial report; it specifies the matters that the report must consider and the persons whose views must be had regard to in preparing the triennial report.
483. Paragraph 10 requires the OfS to inform the Secretary of State if it has significant concerns about how the designated body is performing its duty or the continued suitability of the body to carry out that duty.

Schedule 7: Costs recovery: procedure, appeals and recovery

484. This schedule sets out the procedure for the OfS to require a provider to pay costs relating to a sanction in accordance with section 73, the right of appeal against such a requirement, provisions relating to recovery of these costs and retention of the sums received by the OfS.
485. The OfS must notify the provider of the amount to be paid, how and when the payment must be made and rights of appeal.
486. A provider may appeal to the First-tier Tribunal against the decision that costs are payable or the amount of those costs on any of the grounds set out in paragraph 3(2) of this Schedule. The remedies available if the appeal is successful are set out in paragraph 3(3).
487. This Schedule also sets out the consequences of late payment of a penalty and the circumstances in which the requirement to pay the penalty is suspended. Costs recovered by the OfS must be paid to the Secretary of State, except to the extent that the Secretary of State, with the consent of HM Treasury, directs otherwise. The OfS must pay interest on such costs to the Secretary of State.

Schedule 8: Higher Education Corporations in England

488. Paragraphs 1 to 22 amend the Education Reform Act 1988 in relation to the regulation of higher education corporations.
489. Paragraphs 2 to 5 relate to the incorporation of higher education corporations. Sections 122 to 123 of the 1988 Act are amended so that they only apply in relation to higher education institutions maintained by local authorities in Wales and further education corporations in Wales. Paragraph 3 inserts new section 122ZA of the 1988 Act in relation to further education corporations in England so that these institutions can reincorporate as higher education corporations through an order made by the Secretary of State.
490. Paragraph 5 makes consequential amendments to section 123 of the 1988 Act to reflect the insertion of new section 122ZA and the amendments to sections 122 and 123.
491. Paragraph 6 inserts new provisions into the 1988 Act relating to the principal and supplementary powers of higher education corporations in England.
492. Paragraph 7 amends section 124 of the 1988 Act so that this provision only applies to higher education corporations in Wales.
493. Paragraph 8 inserts new section 124Z of the 1988 Act, which requires higher education corporations in England to have instruments of government in place. Their content is not prescribed. Higher education corporations in England may amend, replace or revoke their instrument of government provided that in doing so they do not cease to be a charity. Paragraph 8 also inserts new section 124ZB of the 1988 Act, which makes provision about the validity of proceedings of higher education corporations in England, the application of their seal and execution of instruments by them, and requires their members to be known as the "board of governors" of the institution they conduct.
494. Paragraphs 9 to 11 amend sections 124A, 124B(2)(b) and 124C of the 1988 Act, so that they only to apply to higher education corporations in Wales. These provisions do not apply to higher education corporations in England, except for section 124B (other than section 124B(2)(b)) in respect of the need to keep accounts.
495. Paragraph 12 inserts new section 124E of the 1988 Act, which makes provision requiring higher education corporations in England to have articles of government in place. The content of articles of government is not prescribed. Higher education corporations in England may amend, replace or revoke their articles of government provided that in doing so they do not cease to be a charity.
496. Paragraph 13 amends section 125 of the 1988 Act so that this provision only applies to higher education corporations in Wales.
497. Paragraph 14 amends section 125A of the 1988 Act to ensure that the references to higher education corporations in England and Wales in that section are consistent with those used elsewhere.
498. Paragraph 15 amends section 127 of the 1988 Act so that it only applies in relation to higher education corporations incorporated under section 121 or 122.
499. Paragraph 16 inserts new section 127A of the 1988 Act, which makes provision about the dissolution of higher education corporations in England.
500. Paragraph 17 amends section 128 of the 1988 Act so that it only applies to higher education corporations in Wales.
501. Paragraph 18 amends the definition of what is deemed a ‘successor company’ to a higher education corporation for the purposes of section 129(5)(e) of the 1988 Act so that this includes any higher education corporations in England dissolved pursuant to new section 127A.
502. Paragraph 19 amends section 157(2)(a) of the 1988 Act so that it only applies to higher education corporations in Wales.
503. Paragraph 20 amends section 161(1) of the 1988 Act by inserting new definitions of higher education corporations in England and higher education corporations in Wales.
504. Paragraph 21 amends Schedule 7 of the 1988 Act so that it only applies to higher education corporations in Wales.
505. Paragraph 22 amends Schedule 7A of the 1988 Act so that it only applies to higher education corporations in Wales.
506. Paragraphs 23 to 26 make consequential amendments to the Further and Higher Education Act 1992.

Schedule 9: United Kingdom Research and Innovation

507. Paragraph 1(1) states that UKRI is separate and distinct from, and is not working on behalf of, the Crown. Paragraph 1(2) sets out that property of UKRI does not belong to, nor is being held by UKRI on behalf of, the Crown.
508. Paragraphs 2(1) and (2) state that the members of UKRI are a chair, the UKRI Chief Executive Officer ("CEO"), the UKRI Chief Finance Officer ("CFO") and between nine and 12 other members. These members are appointed by the Secretary of State.
509. Paragraphs 2(3) to 2(7) deal with other aspects of the membership of UKRI. The chair cannot be either the CEO or CFO. When making these appointments, with the exception of the appointment of the UKRI chair, the Secretary of State has a duty to consult the UKRI chair.
510. Paragraph 2(5) sets out the Secretary of State’s duty, in appointing members of UKRI, to have regard to the desirability of there being experience of research into, or the development or exploitation of, science, technology, humanities or new ideas. The Secretary of State should also have regard to the desirability of members having experience of industrial, commercial or financial matters, the charitable sector, or the practice of any profession.
511. Paragraph 2(6) sets out the Secretary of State’s duty, when appointing members of UKRI, to have regard to the desirability of those members including at least one person with relevant experience in relation to at least one of Wales, Scotland and Northern Ireland.
512. Paragraph 2(7) defines "relevant experience" in relation to paragraph 2(6). This means experience of research into, or the development or exploitation of, science, technology, humanities or new ideas. It also includes experience of industrial, commercial or financial matters, the charitable sector, or the practice of any profession.
513. Paragraph 3 describes the composition of UKRI’s nine Councils and how individuals are appointed to them. Each Council is comprised of one executive chair and between five and twelve ordinary Council members. Each executive chair is appointed by the Secretary of State. The Secretary of State may also choose to appoint one ordinary Council member to each Council after consulting the UKRI chair. All other ordinary Council members are appointed by UKRI after consulting that Council’s executive chair. A majority of each Council’s ordinary members must be persons who are neither members, nor employees, of UKRI.
514. Paragraphs 4 and 5 relate to the terms and conditions of appointment for Ministerial appointees (UKRI members, executive chairs, and those ordinary council members appointed by the Secretary of State). The Secretary of State determines the terms and conditions of the appointment and may remove an appointee on the grounds of absence, inability, unfitness or on other grounds that the Secretary of State considers appropriate. A Ministerial appointee can resign by giving written notice to the Secretary of State.
515. Paragraph 6 relates to terms and conditions for ordinary council members appointed by UKRI. UKRI determines the terms and conditions of the appointment and may remove an appointee on the grounds of absence, inability, unfitness or on other grounds that it considers appropriate. A UKRI appointee can resign by giving written notice to UKRI.
516. Paragraph 7 places a duty on UKRI to pay salaries, pensions, allowances, compensation, expenses or gratuities to UKRI and Council members as determined by the Secretary of State. It also provides that if someone ceases to be a member of UKRI or a Council, UKRI must pay any compensation determined by the Secretary of State.
517. Paragraph 8 empowers UKRI to appoint and pay staff, determining their pay, terms and conditions, allowances, expenses, pensions and gratuities, subject to the approval of the Secretary of State. Provision is also made for payments to former employees by UKRI with the approval of the Secretary of State. UKRI is a body in Schedule 1 to the Superannuation Act 1972 and must pay the Minister for the Civil Service for any increase in sums provided by Parliament which are attributable to its inclusion in that Act.
518. Paragraph 9 requires UKRI to establish an Executive Committee, to be chaired by the CEO and consisting of the CFO, executive chairs of each Council and any other employees of UKRI that the CEO may wish to appoint. The Executive Committee may establish sub-committees. UKRI is obliged to pay an allowance, as determined by the Secretary of State, to any member of an Executive sub-committee who is not a member of UKRI or its Councils or a UKRI employee.
519. Paragraph 10(1) gives UKRI power to establish committees in addition to the Councils and the Executive Committee. Paragraph 10(2) states that a committee under sub-paragraph (1) may establish sub-committees. A general committee (i.e. a committee or sub-committee established under sub-paragraph (1) or (2)) or Council sub-committee may include persons who are not members of UKRI, Council members or UKRI employees. UKRI must pay allowances, as determined by the Secretary of State, to a member of a general committee or a Council sub-committee who is not a member of UKRI, a Council member or an employee of UKRI.
520. Paragraph 10(7) places a duty on UKRI to keep under review the structure and scope of activity of the general committees. Paragraph 10(8) places a duty on the Councils to keep under review the structure and scope of activity of its Council sub-committees.
521. Paragraphs 11 and 12 state that that UKRI, the Councils and the Executive Committee may determine their own procedures and the procedures of their relevant sub-committees. The quorum for UKRI and Council meetings is half of its members. The Secretary of State (or a representative) is entitled to attend any meeting of UKRI, its Councils, general committee or sub-committee or Councils Sub-committee. The Secretary of State or representative must, on request, be provided with papers and be able to participate in those meetings. However, the Secretary of State (or representative) may not be involved in decision-making at those meetings.
522. The proceedings of UKRI, a Council, a Council sub-committee, a general committee or an Executive Committee are not rendered invalid by a vacancy or defective appointment.
523. Paragraph 13 enables UKRI to delegate functions, as it determines, to individual members of UKRI, UKRI employees, Councils, general committees or Council sub-committees.
524. Paragraph 14(1) requires UKRI to maintain a record of its financial accounts and clear records of the information that underpins them. It also requires that UKRI sets out an annual statement of its accounts for each financial year.
525. Paragraph 14(2) requires that UKRI’s annual statement of accounts should adhere to instructions provided to it by the Secretary of State and HM Treasury. Instructions may relate to the content and form of the annual statement, the methodology, and any extra information that it has been deemed necessary to provide to Parliament.
526. Paragraph 14(3) requires UKRI to send a copy of the annual financial statement to the Secretary of State and the Comptroller and Auditor General – the head of the National Audit Office, which is the organisation that scrutinises the spending of public bodies – before the end of August that follows the financial year to which the financial statement relates.
527. Paragraph 14(4) requires the Comptroller and Auditor General to scrutinise UKRI’s statement of accounts, to certify it and report on it. This report and a certified statement must be sent to the Secretary of State.
528. Paragraph 14(5) requires the Secretary of State to provide a copy of the Comptroller and Auditor’s report on UKRI’s statement of accounts and certified statement to Parliament.
529. Paragraph 14(6) defines the first financial year as the period of time from the date that the UKRI is set up to the second 31 March following that date. Each subsequent period of 12 months from that point on constitutes a new financial year.
530. Paragraph 15 deals with the annual report. UKRI must produce a report that covers the period of a financial year and which provides a commentary on its functions during that period. The report must include a statement on how UKRI has cooperated with the Office for Students during that financial year. The report must include the annual statement of accounts referred to in paragraph 14(1). UKRI must produce the annual report as soon as possible after the end of the financial year to which it relates. UKRI must send the report to the Secretary of State who must lay it before Parliament.
531. Paragraph 16 sets out that on those occasions where UKRI’s seal is being applied, this needs to have been authorised by the signature of a member of UKRI or of another person authorised by UKRI. A document executed in this manner is to be received as evidence and taken as executed unless the contrary is shown. But this provision does not apply if the document being executed is being signed under Scottish law.
532. Paragraph 17 relates to the supplementary powers of UKRI. UKRI may do anything necessary or expedient in relation to its functions. UKRI may, in particular, acquire and dispose of land and property, enter into contracts and accept gifts or money, land and other property. This list is non exhaustive. Paragraph 17(3) requires UKRI to seek permission from the Secretary of State to undertake specified activities in accordance with terms and conditions periodically specified by the Secretary of State.
533. Paragraph 18 inserts UKRI into Part 2 of the Table in paragraph 3 of Schedule 1 to the Public Records Act 1958. Any records produced by UKRI are treated as public records and are subject to the restrictions and principles governing public records.
534. Paragraph 19 inserts UKRI into Schedule 2 to the Parliamentary Commissioner Act 1967. This means that UKRI is a body subject to investigation by the Parliamentary Commissioner for Administration (Parliamentary Ombudsman). This body is responsible for investigating the administrative actions of central government departments and public authorities.
535. Paragraph 20 inserts UKRI into Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975. That Act prohibits certain categories of people from becoming members of the House of Commons. The effect is that members of UKRI, members of Councils, and members of committees and sub-committees are prohibited from becoming members of the House of Commons and vice versa.
536. Paragraph 21 inserts UKRI into Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975. That Act prohibits certain categories of people from becoming members of the Northern Ireland Assembly. The effect is that members of UKRI, members of Councils, and members of committees and sub-committees are prohibited from becoming members of the Northern Ireland Assembly and vice versa.
537. Paragraph 22 inserts UKRI into Part 6 of Schedule 1 to the Freedom of Information Act 2000. This means that UKRI is a public body subject to the provisions of that Act. That Act sets out a framework for the public to have a right of access to information that is held by public authorities, subject to certain restrictions.
538. Paragraph 23 inserts UKRI under the heading ‘Other educational bodies’ in Part 1 of Schedule 19 to the Equality Act 2010, thus making UKRI a body subject to the provisions of that Act.

Schedule 10: Transfer schemes

539. This Schedule gives the Secretary of State powers to make property transfer schemes and staff transfer schemes in connection with the establishment of the OfS or UKRI, or HEFCE, the office of Director of Fair Access to Higher Education and the research councils ceasing to exist by virtue of this Act. Permitted transferees under transfer schemes would be the OfS, UKRI, the Secretary of State or another person specified in the scheme. Permitted transferors would be the Secretary of State, HEFCE, the Director of Fair Access to Higher Education or the research councils.
540. Staff transfer schemes may make provision which is the same as or similar to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations).

Schedule 11: Minor and consequential amendments relating to Part 1

541. This Schedule sets out changes to other legislation in consequence of Part 1 of this Act.
542. These include amendments in consequence of the HEFCE and the office of Director of Fair Access to Higher Education ceasing to exist. They also include amendments to the Education (No. 2) Act 1986 relating to freedom of speech, and amendments to the Freedom of Information Act 2000 regarding public authorities to which that Act applies.

Schedule 12: Minor and consequential amendments relating to Part 3

543. This Schedule sets out the changes to other legislation in consequence of Part 3 of this Act.