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The Earl of Limerick: I have a simpler and far less erudite view of the amendment. I listened to the case made by my noble friend Lady Blatch. Earlier my noble friend Lord Renfew and I were probably rightly rebuked for coming in prematurely on this point. When looking at what is intended under the Bill, and how it will affect us all in the future, the Committee does not have the advantage of knowledge of the regulations which will put the framework provisions into effect. The concept contained in the amendment is modest, proper and irresistible. As Members will not have had the advantage of that knowledge when considering the Bill, they should be given the opportunity to comment under the affirmative procedure when the regulations are produced. That is the simple and unanswerable argument.
Lord Whitty: Despite the temptation offered by the noble Earl, I shall not re-rehearse the arguments about the regulations. I shall try to address his latter remarks. First I shall try to dispose of three other issues that have been raised. I am as happy as anyone to take a side-swipe at lawyers from time to time, but the noble Earl must recognise that departments take competent legal advice.
With regard to the power to introduce tuition fees, the 1962 Act clearly allows local authorities and others to pay awards for students' fees. Section 1(5) enables students' resources to be taken into account and so enables the award and the means testing of that award to be introduced. There is no dubiety about that. We are confident about our legal advice on that. I fail to see the hilarity.
Baroness Blatch: Will the Minister point us to the precise place in the 1962 Act which provides not just that LEAs can pay fees on behalf of a student, but that the student is expected to pay tuition fees?
The noble Baroness, Lady Blatch, asked about the repeal of the 1962 Act. As she will be aware, that Act has been amended several times. We had the same argument about the repeal of the student loans Act. When the Act is repealed in total, as the schedule provides, that will make it no longer possible for the Secretary of State to make loans to new students, but there will be reserve powers to deal with students in the existing system until those students pass through the system. The principle that applies to the student loans Act 1990 will apply to the 1962 Act, as several times amended. I hope that that partially clarifies the legal position.
Lord Whitty: I thought that we had explained the matter. We dealt with it in the student loans debate. When the Act is repealed, the powers which apply to students remaining within the system will continue to apply until those students who started the process have finished. Thereafter, the Act will be repealed in total. I am advised that that is the normal practice. I am surprised that the noble Baroness, and the noble Earl even more so, are not familiar with the practice. It has been the practice and will be so, in the area of education as elsewhere.
Baroness Blatch: Is the noble Lord saying in lay language that the 1962 Act will not be repealed in its entirety? Is he saying that it will be repealed, first, partially and eventually in its entirety? If that is the case, I understand him. However, I understand that it will be repealed in its entirety and that there will be some reserve powers somewhere to continue the old system and to underpin the new system. Where will those reserve powers lie?
This is not a debating society and, quite honestly, this situation is ridiculous! The Minister has civil servants and a whole department behind him. We are puzzled because we are asking a question about an Act. The Bill before us does not appear to have the necessary powers. All the Minister can offer is a vague explanation saying, "I know this happens". I am not a lawyer, but I am responsible for this matter and I believe that we deserve a better answer.
Lord Whitty: We have explained the principle in three or four letters between my noble friend Lady Blackstone and the noble Baroness, Lady Blatch. The requirement will be met when we reach Clause 17(1) on page 13. It deals with transitional arrangements, which are the reserve powers. It does not explicitly relate to the section of the Act to which reference has been made, but it is there in the Bill which is what the noble Lord was pressing me to say--
Baroness Blatch: I read out the whole of Clause 17 when I made my first presentation and I referred to the clause in my letter. I say simply that when the Bill is passed we shall repeal the whole of the 1962 Act. Regulations under Clause 17 provide that the Secretary of State can re-enact any part of the 1962 Act. Why repeal that Act if in Clause 17 we are giving the Secretary of State the power to re-enact it? Clause 17(2) states:
Earl Russell: Perhaps I may take this matter a little further. I wish to follow up a point made by the noble Baroness Blatch, a few moments ago. She asked where, in the 1962 Act, there are any powers to impose a fee or a payment from a student. I have been looking at the Long Title of that Act which is a fair guide to what the Act is intended to cover. It states:
But the courts clearly construe legislation according to the intention of Parliament at the time the Act was made. It passes my imagination to understand how any raising of a fee of any sort from a student can be brought within the intention of Parliament in this 1962 Act as governed by the Long Title. Therefore, I shall be very interested to hear expert opinion on the vires which the Government are claiming.
I do not believe that we shall solve this question tonight, however hard we try, but I hope that we can all agree that we need to take expert advice and return to this subject on another occasion and at rather greater leisure. Meanwhile, we should all agree not to be more certain than the nature of the matter and our own knowledge permits. I have merely asked questions to which I do not know the answers. I should like answers to those questions. I believe that we should adjourn this matter and discuss it on another occasion.
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