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Alan Johnson: I want specifically to explore such examples. That is why I need to take a little time over this important amendment. In the unlikely event that matters such as those that the hon. Gentleman raised came to court under procedures other than those in the Bill, we have every expectation that the court would take account of any enforcement action that the director had already taken and judge accordingly. Let us imagine that an institution does not provide the bursaries that it said it Column Number: 565 would in its plan. That would be a breach of the plan and would be a matter for the director to consider. One sanction open to the director would be to withhold the grant until he was satisfied that the institution had made good, or substantially good, its breach of the plan. Once it had done that, the grant would be restored, so restitution to the student is an important part of the process. Likewise, in deciding about enforcement action, the director would have to take account of any court judgment that may have been made.Let me give the Committee an example of how sanctions could work in practice. I appreciate that it does not relate to the specific point about the tutorial, but it deals with the area in which disputes are likely to arise. If an institution had an access plan that allowed it to charge its students £2,300 and then charged £3,000 without varying its plan, the director of fair access, having advised the institution of his intentions, would have the following sanctions available to him. These are all set out in either the regulations or the draft guidance from the Secretary of State. First, the director could direct the relevant funding council to reduce the institution's grant by 110 per cent. of the total amount by which fees were overcharged. That would be restored to the institution when it had made good the breach. Secondly, the director could direct the funding body to impose a financial sanction by reducing the institution's grant by up to £500,000. Thirdly, the director could refuse to renew the institution's access plan. We appreciate the need for clarity and transparency in describing how plans will be enforced by the director of fair access in England and the designated authority in Wales. Although amendment No. 231 is well intentioned, it would not add to the clarity already provided by the Bill and our draft regulations 10 to 15, which should be read in conjunction with it. Mr. Collins: The Minister set out a particular example, which I want to extend. He described circumstances in which a higher education institution had breached its plan, and he talked about the options that would be available to the director to enforce the plan and bring the institution back into compliance with it. Does he not accept that the director would be subject, as many other organisations and institutions are, to the process of judicial review? If the director chose not to use one or more of the options, it would be open to a student who felt himself to have been disadvantaged to go to court to seek an instruction against the director to act. Is there not such a route for the individual student, irrespective of what the Minister said about the role of the director? Alan Johnson: I do not agree. We have been careful to ensure that the access plan is an agreement between the institution and director. We considered judicial review in deciding whether there should be an appeals process between the institution and director if the access plan was rejected, but we decided that it would build in delay and bureaucracy and that, in any case, Column Number: 566 the institution had access to judicial review if it felt so strongly about the issue. I cannot predict what individuals will try to do through the courts, but we can be assured that the Bill is clear about who has the power of enforcement: the director.If we kept the regulator out of Wales, we could give Offa's dyke a completely new meaning—I have been waiting to use that one, Mr. Stevenson. However, on amendment No. 232, I repeat that the Welsh Assembly has not decided whether it will introduce variable fees after 2007. It is important to say that because we may not have time to discuss related issues. Should variable fees be introduced in Wales, however, the Bill provides a framework for the Assembly to implement variable fees. That includes powers to designate an authority to agree fee plans and undertake a similar role to that of the director in England. The exact mechanisms for agreeing and monitoring the plans have not been determined and will be tailored to meet specifically Welsh circumstances, and the Bill allows the Assembly the flexibility to determine the appropriate authority to approve and monitor plans.
11.15 amIn practice, the relevant authority in Wales could refuse to renew a plan in respect of an institution that had, for example, charged fees that were higher than the permitted amount. Additionally, financial sanctions set out under the enforcement measures in clause 36 could be applied. The same argument applies: we do not believe that in England or Wales there is any chink in the armour as far as this legislation is concerned, and we are clear that enforcement lies with the director. We think that the amendments are unnecessary, and I urge my hon. Friend not to insist on them. Mr. Willis: Will the Minister clarify that the only enforcement that the Government are putting into the Bill is where the fee or bursary structure is not part and parcel of the agreed plan? The other elements of the access plan, which are to ensure not only access to but, we hope, retention within universities, have nothing to do with the enforcement plans, and no student would have redress in that case. Alan Johnson: I want to be helpful. The hon. Gentleman was not here, but we discussed the fact that the regulator has the power to issue sanctions where the access plan is breached. HEFCE has the power to issue sanctions, having worked closely with the regulator, where the fee cap is breached. That is a matter of degree, so I guess that the heinous crime would be the sort of situation to which the hon. Gentleman referred: if a university decided that it would introduce what he, and everybody else, understood in 1998 to be the definition of top-up fees. We are not proposing that here. The Government have set a maximum fee of £3,000, but if the university decides that it will not receive any student support, but will top it up to whatever level that it likes, that will be a serious breach, in which circumstances the regulator and HEFCE will have a serious punishment reserved to them.
Column Number: 567 Circumstances such as the hon. Gentleman described, for instance if an institution said that it would have a summer school in June, but did not do so—possibly for some perfectly valid reason—would not be treated as seriously. That would be a breach of the access plan, but would be in a completely different ballpark to breaching the fee level. I hope that that is helpful; we have certainly discussed the matter at great length in relation to other amendments.Mr. Allen: The Minister is clearly determined to make us an offer that we cannot refuse, so I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 35 ordered to stand part of the Bill.
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| Prepared 9 March 2004 | |
