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The Earl of Limerick: Before the noble Earl decides what to do about his amendment, perhaps I may make just one simple point. Does the Minister accept that it is not merely vice-chancellors but the many people concerned in a lay capacity with universities who are worried about this point? I am not clear whether she is saying that the amendment is wrong or merely unnecessary. If she is arguing that it is unnecessary, I urge her to think carefully about the effect of resisting an amendment the acceptance of which, or something similar, would give enormous reassurance to the whole sector.

Earl Russell: I listened carefully and with great interest to the Minister. I shall have to read what she said. Perhaps I could ask for a few points of clarification. First, she said that most of the amendment was unnecessary. Before we go further, could she tell me which parts of it are not?

11.30 p.m.

Baroness Blackstone: I made it clear that with respect to matters such as programmes of research or the selection of academic staff, the Secretary of State would not intervene. The amendment is unnecessary in that respect. However, I have said that I understand the fear that a future Secretary of State might seek to apply conditions controlling top-up fees to some courses but not others. It may well be that a university decides to charge a top-up fee in relation to students on a particular course. A university can hardly introduce a top-up fee in relation to research, or in relation to the selection of academic staff. Therefore, that aspect of the amendment is not necessary.

We are having further discussions with the CVCP and it would be helpful if, in the light of that, the noble Earl withdrew his amendment. As regards the comments of the noble Earl, Lord Limerick, I am aware that there are others in universities besides vice-chancellors who have concerns, including the lay members of governing

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bodies. We would be happy to hear more from the CUC or its members about what might allay their fears. I hope that that is helpful, too.

Earl Russell: I am sorry to ask for further clarification. The Minister said that the Secretary of State would not intervene in these matters. If she could change one letter and say that the Secretary of State "could" not intervene in these matters that would make a great deal of difference. I am not clear whether she is denying that Section 68(1), including its condition, is hereby repealed. If she is denying that, and will do so with the case of Pepper v. Hart in mind, that would influence me considerably. Or is she saying that it is repealed but the repeal is not significant? The difference matters a great deal.

Baroness Blatch: Perhaps I may make a brief point which is a variation on the same theme. The issue is not so much the intentions of the present Secretary of State, nor what he might do in future. It is whether the clause allows the scope for some of these things. That is important. No one is doubting the intention, but we are interested in the scope of the clause.

Baroness Blackstone: Clause 18 does not repeal any section of the 1992 Act. I hope that that clarification is helpful. Subsection (8) adds no powers which are not already in the previous subsections. It certainly does not give the Secretary of State the power to intervene. I give the same examples of programmes of research and the selection of academic staff. I hope that that is helpful.

Earl Russell: That is very helpful. I must still go away and think very hard indeed. I appreciate that the provision does not give the Secretary of State power, but before 1992 the Secretary of State claimed an inherent power by his power to make grants and impose terms and conditions. The question is whether the bar that was put on that power by the 1992 Act still stands.

At this time of night, we cannot usefully pursue the matter further. I shall read the Minister's comments with a great deal of interest and so, I am sure, will a number of others. I look forward to hearing their opinions. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Renfrew of Kaimsthorn moved Amendment No. 113:

Page 14, line 29, at end insert--
("( ) Before exercising his powers under subsections (3) and (4) the Secretary of State shall consult the governing body of any institution which proposes to charge a fee greater than the prescribed amount, and shall have regard to any representations made by such governing body.").

The noble Lord said: Due to the lateness of the hour, I shall be brief. This is a mild amendment relating to some of the issues discussed by my noble friend Lady Perry in relation to Amendment No. 111. They were also addressed by the noble Earl, Lord Limerick. A whole range of fees, including college fees, are involved. In addition, there are potential fees for course work and charges for enrolment and graduation. There

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are a plethora of factors which we have been told are under discussion or review. I suspect that that will still be the case when the Bill is enacted and when the regulations are discussed and approved.

The amendment is very mild. It simply requires, before exercising powers, that the Secretary of State shall consult in order to have the opportunity of being fully aware of the circumstances and the facts. In view of the mildness of the amendment, I hope that it will prove acceptable to the Government. I beg to move.

Baroness Blackstone: I understand the wish for an institution's views to be taken into account before any condition is placed on its grant. In practice, I believe that that would happen in any event. No Minister would embark on the process of setting conditions lightly. I cannot envisage that any Government would seek to the take the ultimate step of imposing a condition on the grant to the HEFC requiring it in turn to impose a condition on funding for an institution without having in practice discussions with that institution. Indeed, I should expect Ministers to have regard to representations from all parties affected and the institution must count as a principal party.

I really do not believe that this amendment is necessary and I do not feel able to accept it. I hope that the noble Lord will withdraw the amendment.

Earl Russell: It is rather difficult to ask universities to trust the Secretary of State and assume that there are certain things he cannot do. The vast majority of what he has done since I entered this House are things which, 30 years ago, we should all have assumed he could not do.

In general, it is not the purpose of Parliament to trust Ministers with powers. It is the purpose of Parliament to hold Ministers to account and to ask questions about them.

The relationship between the universities and the state is far too battered and bruised for it to be useful to subject us to this sort of request. It may be that he will not do these things but asking people to trust him not to is asking for rather a lot.

Lord Renfrew of Kaimsthorn: I find the remarks of the noble Earl, Lord Russell, helpful. As I said earlier in relation to the 1992 Bill, ultimately I did not feel able to trust my own right honourable friend the Secretary of State at that time. Although I have no reason at all to doubt the word of the noble Baroness, or, indeed, that of her right honourable friend the Secretary of State, I do not see why I should trust him further than I would trust my right honourable friend Mr. Clarke.

Therefore, although at this late hour I shall not press the amendment, it is a matter to which we may need to return later. I beg leave to withdraw the amendment at this stage.

Amendment, by leave, withdrawn.

On Question, Whether Clause 18, as amended, shall stand part of the Bill?

Earl Russell: I very nearly decided not to raise this issue at this time of night and I shall not take very long

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with it. I probably should not have raised the matter had the noble Baroness not said what she did in reply to my previous amendment. She said that Clause 18 constituted no threat to academic freedom because the universities retain complete academic control. I do not have an exact recollection of her words, but I believe she said that universities could continue to put on whichever courses they liked and to teach whichever subjects they liked.

However, that cannot be done unless you have ultimate control over your own costs. The decision whether to put on a particular course is a decision which inevitably, and always, must have cost implications. It has cost implications in terms of staffing. If you decide to put on a particular course, you may either need a new member of staff or you may need to be able to make a commitment to replace an existing member of staff when he is due to retire. It has library implications, which may often be considerable. It has space implications within the college. You cannot put on a course if you cannot find any room in which it can be taught. That is becoming an increasingly common problem.

Therefore, if you do not have residual control over the cost, you cannot have academic freedom to decide what you teach. I am afraid that that is inescapable and in any context internal to government, I believe that the Treasury would recognise it quite quickly. I wish it would show the same sensitivity outside government.

I believe it is understood that no one wants to charge top-up fees. The arguments put against them by the noble Baroness, Lady Kennedy of the Shaws, on Second Reading were powerful and I listened to them with sympathy. Indeed, no one wants to do it. However, in the end, there comes a point where, simply in terms of academic safety, either one has to have a particular amount of money or one has to decide not to do it. There comes a point ultimately where one has to decide that either the college can raise a certain level of support, or it would be better not to operate; it is like going out on the road in a car with no brakes.

In the struggle between the Treasury and anything dependent on public funds, there has to be an element of negotiation. Obviously it is for any government to determine the total level of public expenditure and, therefore, the amount that they can spend on any particular entity. What government cannot do is go on from there and say how much that money will buy. The Government cannot tell an aircraft factory what it costs to build a jet fighter; it cannot tell a surgeon what equipment he needs to conduct an operation. Indeed, government cannot make clinical judgments. That parallel is one which I believe academics should regard as being applicable to themselves.

Therefore, if government do not recognise that whoever they are bargaining with can have the ultimate say in how much the money that government are prepared to spend will buy, there is no negotiation. It means the absolute power of the Treasury. If we get to that situation, I believe that the relationship between

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universities and the state, however slow and painful its death, will have received a blow from which it will not recover. I beg to move.

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