| Previous Section | Index | Home Page |
Orders of the Day
Higher Education Bill
Lords amendments considered.
Mr. Speaker: I inform the House that privileges are involved in Lords amendments Nos. 4 and 20. If the House agrees to those amendments, I will arrange for the necessary entries to be made in the Journal.
There is an error in Government amendment (a) to Lords amendment No. 23. It should read:
"Line 5, after '31(a)' insert '32'."
The House has now been informed.
Clause 29
1.30 pm
The Minister for Lifelong Learning, Further and Higher Education (Alan Johnson): I beg to move, That this House disagrees with the Lords in the said amendment.
Mr. Speaker: With this it will be convenient to discuss Lords amendment No. 15 and Government motion to disagree, Lords amendment No. 16 and Government motion to disagree, Lords amendment No. 17 and Government motion to disagree, Lords amendment No. 18, Lords amendment No. 19 and Government motion to disagree, Lords amendment No. 20 and Government amendments (a) and (b) thereto, Lords amendment No. 22, Lords amendment No. 23 and Government amendment (a) thereto, and Lords amendment No. 24.
Alan Johnson: The group of amendments is a mixed bag. It contains a number of important amendments clarifying how the director of fair access will operate and providing for greater parliamentary scrutiny of regulations relating to their role. It also contains Lords amendments that would do great damage to the cause of fair access.
Lords amendment No. 5 is the first damaging amendment. It would make the Secretary of State subject to the Civil Service Commission's code of practice when appointing the director of fair access. That code of practice is splendid—for civil servants—but we are appointing the head of a public body, and it is therefore the wrong code.
The understandable concern was raised in the other place that the appointment should be fair and should be made on the basis of merit. We agree with that concern and gave firm assurances in the other place, which I am happy to repeat, that the director of fair access will be appointed in accordance with the Nolan principles, which are enshrined in the code of practice of the Commissioner for Public Appointments. The director will be a public appointment made by the Secretary of State, and the code of practice for public appointments is mandatory in those circumstances.
The Lords amendment does not make sense. The Office of the Civil Service Commissioners says that its code is not the right code for that appointment. In its
23 Jun 2004 : Column 1359
report, "The Regulatory State: Ensuring its Accountability", which was published in May, the Lords Constitution Committee stated:
"Ministers should remain responsible for appointing regulators, subject to Nolan rules, to ensure proper responsibility and accountability."
I am sorry that the other place saw fit to ignore its own advice, and I hope that this House can rectify the situation.
Lords amendment No. 15 would create a host of problems. One problem is that it deletes the power of the director of fair access to issue guidance to institutions, and I cannot see the benefit of denying institutions such help and assistance. The amendment gets worse in that it also delegates the regulation-making power on the approval of plans. In the draft regulations, hon. Members will have seen how we intend to use those powers to ensure dialogue between the director and the institution before any decision is made, and we want to reinstate that regulation-making power. The power is important, and it will also enable us to introduce the review procedure, which we agreed in principle in the other place and about which I shall say more.
Those aspects of Lords amendment No. 15 are bad enough, but it is particularly strange in that it implies a duty on institutions to provide a strategic plan to the funding councils. I presume, although it is not defined, that that means the Higher Education Funding Council for England, the Higher Education Funding Council for Wales and the Teacher Training Agency. That implied duty would lie on the face of the Bill in perpetuity.
Lords amendment No. 15 also places a duty on the director to require institutions to supply details of the financial assistance offered to students. That is in addition to the strategic plan, which would mean duplicate reporting. In drawing up our policy for access plans, we have tried hard to make sure that access plans do not create unnecessary burdens for institutions, which is why we have consistently said that access plans will subsume the widening participation strategies that institutions currently provide to HEFC, and we have discussed those strategies with both the sector and HEFC itself. Lords amendment No. 15 is confused and confusing. It would increase bureaucracy, and this House should reject it.
Lords amendment No. 16 is also faintly peculiar, in that it gives a regulation-making power to the funding councils on the duration of plans, presumably to make the access plans coterminous with the strategic plans, which would be bound to lead to the focus of access plans being lost in the swathe of documentation that the funding councils would require. Although it is not unknown, it is hardly conventional for organisations such as funding councils to make regulations, and it does not make sense for them to have the power to decide the length of plans. Our draft regulations provide for a length of up to five years, which seemed acceptable when we scrutinised the Bill in this House, and I therefore believe that Lords amendment No. 16 should be rejected.
Lords amendments Nos. 17 and 19 cover England and Wales respectively, and they strike at the very heart of our proposals for protecting access. In England, we
23 Jun 2004 : Column 1360
have made it clear that in return for the freedom to charge higher variable fees, institutions must plough back some of that extra income into outreach and financial support for students. That will make a difference, because universities will make more contacts with under-represented groups, and more bursaries will be available for poor students.
The Lords amendments remove the power of the relevant authority—in England, the director of fair access—to sanction an institution if it reneges on that commitment. I am sure that most institutions will stick to their plans, but it is essential that the relevant authority has the power to sanction them if they do not do so. I hope that the House will reject those damaging Lords amendments, particularly in view of the safeguards inserted in the other place, which we are prepared to accept and which I shall now outline.
Mr. Graham Allen (Nottingham, North) (Lab): I hope that my right hon. Friend will give those amendments short shrift. Many Labour Members feel that the office for fair access has already had its teeth pulled, not least by some of the amendments in the other place. We are now down to the gums, and to remove further authority from the office for fair access would render it useless, so I ask my right hon. Friend to hold firm in his resistance to the Lords amendments.
Alan Johnson: Ironically, we may discuss dentistry under a later amendment. I remember the points that my hon. Friend the Member for Nottingham, North (Mr. Allen) made in an important contribution in Committee, and I ask the House to stand as firm as the Government for the reasons that he set out eloquently in Committee.
I have reached the amendments that the Government believe will make a contribution and provide the necessary safeguards for those who are concerned about the introduction of the regulator. Government amendment (a) to Lords amendment No. 23 and Lords amendments Nos. 22 and 23 make a number of the Secretary of State's key regulation-making powers subject to the affirmative procedure.
In the House of Lords, we tabled amendments in Committee to make regulations on the contents of plans and on the financial penalties that might be imposed by the director if plans are breached subject to affirmative resolution. That was in response to the House of Lords Delegated Powers and Regulatory Reform Committee report, which recommended the affirmative procedure for those particular regulation-making powers. The affirmative procedure would apply to regulations made by the Secretary of State in respect of England only, because the legislation-making procedures in Wales are different.
The Government have introduced an amendment to ensure that the regulation-making power in respect of clause 32 for the approval of plans is also subject to affirmative resolution, which recognises the importance of regulations made under that clause.
We are also prepared to accept Lords amendments on the duty of the office for fair access to make decisions, especially to apply sanctions in a reasonable manner. Lords amendment No. 18 deals with that. It is a general point of law that the director of fair access is obliged to
23 Jun 2004 : Column 1361
act reasonably. That includes refraining from sanctioning an institution that had done everything that it reasonably could to comply with its plan. If he failed to do that, he would be subject to judicial review, whether the amendment was accepted or not. We have always supported the principle that institutions that take all reasonable steps to comply with their access plans should not be penalised when factors beyond their control prevent them from doing what they said that they would do.
The Secretary of State's draft letter of guidance, which we published, makes it clear that
"an institution's failure to meet milestones should not in itself be grounds for any kind of sanction."
Lords amendment No. 18 enshrines the principle of reasonableness, which, as I have said, reflects a general point of law in primary legislation. I assure hon. Members that the amendment would not transform light touch into soft touch. If an institution has no good reason for not complying with its plan's provisions, two sanctions are available to a director: to direct the Higher Education Funding Council to reduce the institution's grant or to refuse to renew that institution's access plan.
The other place tried to get rid of the director's sanctioning power but we seek the House's assistance to overturn the relevant amendment. We have constantly argued that the Bill constitutes a finely balanced package, of which sanctions are an important part. The amendment does not weaken the sanctions but enshrines a general principle of law—that the director must use his or her powers in a measured and reasonable fashion—in the Bill. I therefore commend Lords amendment No. 18 to hon. Members.
| Next Section | Index | Home Page |