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Lord Renfrew of Kaimsthorn: I had some very serious problems with this Bill, some of which I sought to indicate earlier. It may be that the noble Baroness, Lady Blackstone, was correct in suggesting that I should defer my observations until this point. My difficulty has been to find out what the Bill is asserting or what the Government are planning to do. We have a whole series
I have found it very difficult to find what the substance might be. I find myself in the awkward position of being very much less well informed on the factual content of the Government's intentions than was the noble Lord, Lord Desai, in his observations earlier. I am happy to defer to the noble Lord, Lord Desai, on many occasions but I was puzzled to understand the source of his information and that of other information being referred to this afternoon and this evening.
I went to the Library some days ago and again at 2.30 this afternoon to ask for draft regulations. We have already had it explained by the noble Baroness that draft regulations are not available now and are not likely to be available until July. The supplementary papers available in the Library, so far as I could understand through a brief inspection, relate to Part I of the Bill. I went to the Printed Paper Office. I had some days ago obtained the Notes on Clauses to the Bill which are perfectly explanatory of what the clauses say, which is evident enough on a close reading, but give no inkling of the actual factual content of the Government's plans. It was not until this evening, when the noble Earl, Lord Russell, brandished a document which had a cover in orange and purple, that I began to realise--I see that the noble Lord, Lord Whitty, opposite has a copy in his hand at the moment--that there was a source of information available to some but not available to me. After dinner, I went back to the Printed Paper Office and said, "There is something more on this Bill. Do you have it, please?" Initially, the Printed Paper Office said, "No, we have nothing supplementary on the Bill".
Lord Renfrew of Kaimsthorn: I am grateful to the noble Lord for drawing my attention to that. I shall centre myself in the middle of the Bench and hope that the noble Lord will not feel threatened by my demeanour or indeed by my remarks.
To resume, I went to the Library, which was able to unearth a copy of the document. I then had a phone call from the Printed Paper Office, which, as ever, is diligent in these matters, pointing out to me that there is nothing on the cover of the document to indicate that it relates to this Bill. I wish to make it clear that I am making no criticism of the Printed Paper Office or of the Library. My criticism relates to the Bill rather than to this information.
I should like to ask noble Lords opposite how one is supposed to know of this. This may seem a trivial procedural point but I shall relate it to the Bill in a moment. The noble Baroness was good enough to say earlier that sometimes she will be in the habit of writing to her colleague on the opposite Bench to indicate the existence of useful information and that that news might then be circulated. I do not know whether she has written to my noble friend Lady Blatch to draw her attention to the document. No doubt my noble friend has it available.
However, turning the pages, I find a lot of information which is useful and relevant. I have one or two questions to ask. The first is one to which I would not expect an immediate oral answer but perhaps a written answer. It relates to page 8 and refugees. There the document deals with eligible students--British nationals, nationals from another European economic area country, and those recognised by the British Government as refugees. I might have written to the noble Baroness about this had I been aware of the document.
I should like to ask this question. Would an applicant for asylum who is not yet accepted and not yet given exceptional permission to remain--an applicant of long standing in this country--be recognised by the British Government as a refugee? Perhaps the noble Baroness or her colleague could write to me about that. There is a series of interesting remarks pertaining to the Bill. The main focus of the report deals with plans for 1998-99, but there is a whole section in it dealing with plans from 1999 to the year 2000.
The main point of my remarks is not really to complain about the lack of availability of this information. The noble Baroness and certainly the noble Lord, Lord Whitty, will recall that at an earlier stage there was difficulty in obtaining information which was supposed to be publicly available. That brings one back to the circumstance that, on the face of the Bill, there is very little information about the Government's intentions. If one asks what Government intentions are publicly available, unless it is press releases which are not available in the Printed Paper Office or in the Library, most of that comes from the noble Baroness's speech at Second Reading. From that one is informed that on the same day in July that the Dearing Report was published, the noble Baroness "announced our intentions"--that is fine because I recall them also. One has to search a long way in the Printed Paper Office and the Library of your Lordships' House to find those intentions.
I am not sure that that itself is available in the Bill. There are enabling powers to make that clear, but is that in the Bill? There are no draft regulations. Further on in the speech the noble Baroness said,
I recall that that was in Government announcements. But if one does not have access to the progress report--I have already indicated how difficult it is to find information about it because one could not find it by asking in the Printed Paper Office or the Library--one has no knowledge of these circumstances at all.
Those are perhaps rather trivial circumstances. The important circumstance is that none of this is in the Bill. It is entirely an enabling Bill and a Henry VIII clause. None of this information is officially available as far as I can ascertain.
Reference has been made to the 9th Report of the Select Committee on Delegated Powers and Deregulation. No one has yet been unkind enough to make the observation here in Committee, although I have heard it made quite often outside it, that that report is a rather feeble document in view of the nature of the Bill. The noble Baroness reminded us of one paragraph, which began,
I do not propose to discuss Clause 18 in detail. As the Committee is aware, this clause is controversial and considers the possibility that the imposition of conditions might be regarded as the exercise of secondary power. Too true it might! I believe that the committee has been feeble. I wish its members no disrespect, but I hope they will accept that there are Members of it and of your Lordships' House, who believe that it has not been over-emphatic in its expression of opinion.
The noble Baroness, Lady Blatch, has said all that needs to be said in moving this amendment. I emphasise that it is an absolutely essential amendment, otherwise if we do not see the regulations so that we can discuss their content in a debate on an affirmative resolution, we have no clear knowledge of the Government's intentions and, moreover, no way of finding out what they are through official channels. I am happy to support the amendment.
Earl Russell: The noble Lord, Lord Renfrew of Kaimsthorn, has made a very powerful and important speech. But I hope that he will forgive me if I qualify it with one point, which is about the recommendation of the Delegated Powers and Deregulation Committee which we invite the House to consider. That committee was set up on the initiative of Lord Rippon. The decision must always be finally that of the House and not the committee. Therefore, it is established convention that, however critical the committee feels, those are the words in which its recommendation is cast.
Having said that, I add that the terms of reference of that committee are twofold; namely, to consider whether any delegated powers are subject to a sufficient degree of parliamentary control and whether any Bill improperly delegates legislative power.
Increasingly, the committee has tended to concentrate on the first of those terms of reference rather than the second. I believe that the question as to when and in what circumstances it is proper to delegate a legislative power is a live one which I hope the committee will in future help us to consider. We would value its advice a great deal.
The noble Baroness, Lady Blatch, opened a substantial can of worms. I also thank her for telling me the contents of my Written Answer. It had not reached me at lunchtime, which was the last time that I had my post. In fact, I am glad to be relieved of the labour of opening post. It takes an awful lot of time every day. I thank the Minister for the Written Answer. Having said that, I believe that it raises many more problems than it answers.
The reference is to Section 1(5) of the Education Act 1962. We are dealing with the skin of an onion. Section 5 deals with conditions and exceptions to the provisions of subsection (3). Subsection (3) is the next inner skin of the onion:
Subsection (1) simply places a duty on the local authority to pay grant. What one has here is a condition and exception to the payment of grant. I am not a lawyer--above all, I am not trained as parliamentary counsel--but I am not sure how far it is an accurate use of language to describe a tuition fee as a condition and exception to the payment of grant. Moreover, since grants are no longer to be paid I am not sure whether a condition or exception to the payment of a grant which is not being paid can govern the levying of money which is no longer in any way related to a grant and therefore cannot be a term or condition of it. The Joint Committee on Statutory Instruments regularly describes this kind of issue as an unexpected use of powers. It is the kind of provision that invites the attention of the noble and learned Lord, Lord Simon of Glaisdale. I hope that he will turn his mind to this question. I shall listen to the answers with very great interest.
I do not want to speculate, but were I in the Government's shoes I would not be 100 per cent. confident that this clause and its meaning would survive the scrutiny of the courts. A tuition fee levied under the powers set out here may turn out to be ultra vires. Undoubtedly the question will come before the courts. I would not bet either way on what might happen.
There is the further question of the timing problem between the repeal of the Act and the laying of the regulations, to which the noble Baroness, Lady Blatch, drew attention. Even assuming that the Government lays the first regulations before the repeal of the Act, one supposes that there will be further regulations and uprating; otherwise, the whole matter will wither on the vine, just as we thought back in the 1980s that child
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