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Mr. Collins: The hon. Member for Cambridge has made an interesting contribution and she raises a significant point. As she rightly said, there is a need for clarification, and I want to press the Minister on one issue. Is he confident that any advice that he may give the hon. Lady and the Association of Colleges will stand up to scrutiny in the UK and European courts? It has been a common theme of our deliberations that higher education institutions are independent, and although their public role is hugely significant, they are not formal parts of the public sector. The hon. Lady correctly identified some of the association's concerns, which are perhaps understandable, and I am sure that the Minister will be mindful of the fact that, sadly, this is not a matter on which any Minister can issue a firm guarantee that no action will be taken, because autonomous or, indeed, independent institutions are subject to UK and EU competition regulation. I would be grateful if he could deal with that point. Alan Johnson: First, let me put on record what clause 32 is about. It covers the approval of plans, specifying that an institution will need to apply to the relevant authority to have its plan approved and giving that authority the power to approve it. The clause also empowers the relevant authority to issue guidance to institutions and puts a duty on the authority to carry out its functions in accordance with regulations. It allows for regulations to set out any matter to which the authority may or may not have regard in deciding to approve a plan. Under the clause, regulations may also place a duty on institutions to publish any approved plans.
Column Number: 551 We have made the draft regulations for England available in draft form to the Committee. They allow for discussion, if necessary between the director and institutions, before a final decision is made. It is under this clause that we could introduce a minimum percentage of additional fee income that institutions should spend on outreach and bursaries through their access plans. We are not planning to use that at present, but it is a reserve power.
10.15 amI have to tread cautiously on the question raised by my hon. Friend the Member for Cambridge (Mrs. Campbell) about guidance on the Competition Act 1998. The hon. Member for Westmorland and Lonsdale touched on the point as well. The advice to universities should come from the Office of Fair Trading. It publishes a booklet, and the universities should be au fait with it. I do not know for how long they have been, but they are governed by the Competition Act. A point that I made as a back-handed compliment to the sector is that I do not think that the institutions are capable of forming a cartel, but if they formed one, that would breach the Competition Act. I will not offer any guidance other than to look at that from the OFT. We have always envisaged higher education institutions—my hon. Friend the Member for Cambridge referred to university colleges—being able to reach joint plans, and in particular joint access plans, when they cover a specific region. It would make sense for institutions in Leeds, Harlow or Nottinghamshire to reach a joint access plan for getting youngsters from poorer backgrounds throughout the region into higher education. That may include charging a similar fee, as long as it does not breach the OFT rules. The answer is no to the question whether we are ruling out joint access plans. We have made it clear in everything that we have published that universities could collaborate on that, but they will have to be careful that collaboration does not stray into a cartel or price fixing, because the Competition Act would then take effect. I am willing to write to hon. Members about that, although I do not think that there will be much more than that statement in the letter. It might be a bit longer once it has filtered through 17 solicitors, but it will contain essentially the same message. Mr. Willis: I welcome you to the Chair, Mr. Stevenson. The hon. Member for Cambridge has raised an important point. In addition to the letter, will the Minister get an official ruling from the OFT before Report? If not, will he consider including provisions in the Bill in the same way as has been done in clause 39, which is designed to overcome the Enterprise Act 2002 provisions on bankruptcy? I do not want to go into it too much, but the Government are clearly trying to overturn a previous piece of legislation with clause 39. Considering other legislation, in particular the Competition Act 1998, it is possible to include in the Bill provisions to give universities the safeguards that Column Number: 552 they need to go about the legitimate business of co-operating to attract students, especially from lower socio-economic groups.Mrs. Campbell: I want to add to what the hon. Gentleman has just said. It would make the situation clear once and for all if the Government included in the Bill a provision that specifically excluded groups of institutions operating legitimately and with the Government's best wishes to achieve the effect that my right hon. Friend has mentioned. It will be difficult for colleges to achieve that effect unless they can be sure that they will not fall foul of the Office of Fair Trading. I hope that he will discuss the matter with his advisers and consider carefully whether a specific provision could be included in the Bill to exclude colleges that are co-operating legitimately from the Competition Act. Mr. Willis: The essential element is that the institutions would be working together at the Government's behest. It is an instruction from the Government, through OFFA, that they should co-operate to provide a product. That is significantly different from organisations themselves deciding, as the private schools have allegedly done, to fix prices within their market. Alan Johnson: I will consider the point that my hon. Friend and the hon. Member for Harrogate and Knaresborough make. I do not see this as being in the legislation, but I will reflect on it further. We have thought about this a lot. I do not think that the Office of Fair Trading would be willing to write a letter unless it had details about a specific case. I will write to the Committee next week. Once the Bill receives Royal Assent we plan to issue substantial advice in conjunction with HEFCE and the Office of Fair Trading so that colleges, universities and higher education institutes understand the issues here. I will reflect on what hon. Members said, but we are keen to ensure that we overcome the difficulties. Question put and agreed to. Clause 32, as amended, ordered to stand part of the Bill.
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| ©Parliamentary copyright 2004 | Prepared 9 March 2004 |
