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Baroness Carnegy of Lour: Before the noble Baroness sits down, there is one point which I do not believe she quite picked up as regards what I said about the Open University. The level of fees there is directly related to the grant from the Higher Education Funding Council. I believe that is pretty obvious. So I was suggesting that the Government should make sure that the funding council keeps an eye on the level of grant. I have not discussed this with the Open University, but it is an obvious point that they keep an eye on the funding so that the market response of people to the level of fees, which they have to pay in their entirety, as the noble Baroness said, does not damage the number of people taking courses. It is very important in the context of this discussion.

Baroness Blackstone: Of course the Government will always keep their eye on the level of grant provided by the Higher Education Funding Council for all universities, including the Open University.

Baroness Maddock: I thank the Minister for her long and helpful reply. As she said, under this legislation it is possible to provide funds for students who are in higher education studying part-time. However, the fact is that, as the legislation stands, it is not going to happen yet. That is something the Minister has clarified today. I thank Members of the Committee for their support for the proposition that part-time students have equality of funding with full-time students. I hope that the Minister can, at some stage in the proceedings, give some idea as to when the Government might activate Clause 16(2)(d) to mean that money will be forthcoming to part-time students. But for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Earl Russell moved Amendment No. 82:

Page 11, leave out lines 13 and 14.

The noble Earl said: In moving this amendment I shall speak also to Amendments Nos. 83, 85, 87, 88, 92 and 94. Amendment No. 86, in the names of my noble friends on the Front Bench, has a substantive policy point to make and I shall leave that to them.

I believe that the noble Lord, Lord Peston, was slightly cutting a corner in trying to draw a distinction between substantive policy issues and technical issues of regulation. The point about a regulation-making power is that one needs to discover two things about it. First, what the Government at present intend to do with it and, secondly, what they are taking the power to do, and could do in future without further legislation, were they to change the policy intention.

In putting down these amendments it was my object to find out what substantive points I might need to raise at Report stage and without probing them I do not

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believe I can know that. So the antithesis between the drafting matters and matters of policy is a lot less complete than it might appear.

As always, I want to ask three questions about regulation-making powers. What is the extent of these powers? Perhaps I may clarify a little. I am not asking the Minister to imagine six impossible things before or after breakfast. I am asking her a technical, drafting question. When these powers were drawn up, what barriers were put regarding the form of the drafting? Very often there are barriers to the scope of a clause, as drafted, in another clause on which it depends or in terms within it, which a layman--and I count myself among them--does not spot. It is important to know that. Very often one may be reassured by it. Secondly, I want to know the present policy intention. Thirdly, I want to know why the Government are setting out to do it in this particular way.

These are questions of some substance. I raised on Tuesday the question--I admit that I had not given notice of the matter because I only decided to do it that way at that particular moment--what are the powers under which tuition fees are being introduced? I was asked that question by noble Lords all round the Library this morning. I could not answer them.

To get through Clause 16 we need to know an answer to that. It illustrates the point that one needs to know what could, hypothetically, be done under the powers. We need to know the intention. As a legislative Chamber of Parliament, and as a revising Chamber, we need to address the question as to how we might change the Government's intention because, after all, when we are acting as a revising Chamber, that is what we are here for.

I am reminded of the phrase that the noble Lord, Lord Kilmarnock, used about the Education (Student Loans) Bill in 1990 as regards the difficulty of making amendments purchase on the slippery surfaces of this Bill. Frameworks are all very well when they are seen internally from within the great sanctuary; but in the world outside the great sanctuary what is flexibility to the Minister may be restrictions to others.

With those preparatory remarks, in these particular amendments I hope that I may address what powers the Government are taking and why. Amendment No. 82 deals with the power to make regulations,

    "for determining whether a person is an eligible student in relation to any grant or loan available under this section".

I believe that I can understand why the Minister wants to do that by regulation. But I want to check the extent of the power. Are there any other powers in any other Act which limit how those powers are exercised or could it be used for absolutely anybody without restriction?

Amendment No. 83 refers to prescribing the maximum amount of any such grant or loan available to any person. Here again, it is a fairly far-reaching power. I can understand why a regulation-making power is needed. Where one needs an annual uprating I concede, and I have always conceded, that one needs a regulation-making power. But am I right in construing this clause as meaning that the Government could raise

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or lower the prescribed amount as much as they like? Obviously, the Treasury would create a limit on raising it, but I do not see any limit to lowering it.

I need to probe the powers, as regards Amendment No. 85, with some care. That deals with terms and conditions which may be prescribed by the Secretary of State for any grant to be made available under the section. Do the terms and conditions relate exclusively to repayment or would it be possible, under terms and conditions, to impose other conditions relating to other things; to categories of student or to place any specific requirement in academic terms on the student? Are these powers simply related to repayment? I hope to hear that they are simply related to repayment. The same point about terms and conditions applies to Amendment No. 88.

Amendment No. 87 creates a power to require the,

    "grant to be suspended or terminated in any such circumstances".

If I have correctly understood the word "such"--and this is one of the things I ask--it appears to refer to terms and conditions not yet made. So it is, as they would say in the Latin grammar, in the future perfect. That means that there is a double uncertainty about what is meant here. Again, I would like some explanation of the real meaning.

Amendment No. 92 deals with the ability to prescribe a rate of interest. There is another amendment dealing with that so we do not need to spend long on it. But as I understand the wording, it allows the prescribing of a rate absolutely without ceiling and without a floor. I should like to know whether that understanding is correct.

Amendment No. 94 deals with a power in regulation to make certain provision as the Secretary of State considers necessary or expedient in connection with the recovery of amounts due from borrowers. I should like to know the extent of that. It is my understanding that regulations cannot create a power to imprison and that that can be done only by primary legislation. But there are other methods of debt collection such as the calling in of bailiffs. To what extent can that be done?

For the moment those are sufficient specific questions. I believe they illustrate the point that the framework method of legislation makes parliamentary control rather difficult. There is a real risk that if it went too far it might make Parliament redundant and I for one would regret that. I beg to move.

4.30 p.m.

Lord Renfrew of Kaimsthorn: This is an opportunity to take further a point discussed earlier which the noble Earl, Lord Russell, dealt with so systematically. It would be a matter for regret if my words moved the noble Lord, Lord Peston, further towards the condition of ad nauseam to which he referred earlier. However, having taken the opportunity to re-read the remarks on this subject two days ago, I note that the noble Lord himself contributed no less than four times to one amendment and may have made a contribution to his own indisposition in that respect.

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I seek the reaction of the Minister and the Committee to a statement relating to Clause 16--not in relation to some earlier clause that other noble Lords may have discussed two days ago--in the 9th Report of the Select Committee on Delegated Powers and Deregulation:

    "We invite the House to consider whether the subject matter of the regulations under Section 16 is so important that the Bill should be amended to require affirmative procedure for the first regulations, but to allow Ministers the option of using either the affirmative or the negative resolution procedure for subsequent regulations, thereby enabling the negative procedure to be used for amending regulations unless they included new matter of significance".

That seems to me exceedingly good sense. It relates to this clause. I ask the Minister to comment on the proposal. I shall listen carefully to what she says but unless by her eloquence she persuades me that the proposal in the report is superfluous I shall table such an amendment at Report stage, assuming the noble Earl, Lord Russell, has not already done so.

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