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Baroness Blatch had given notice of her intention to move Amendment No. 137:

Page 23, line 17, at end insert--
("sections 14 and 15,").

The noble Baroness said: It is not my intention to move this amendment today because during earlier Committee debates, it became clear that there are practical problems about the introduction of teacher training inspections. I tabled this amendment originally because I believe it is right that teacher training should be inspected and that the sooner we can get on with it, the better.

However, I became aware that two inspection systems have to live alongside each other. There are questions of overlap and duplication. Whatever the practical implications of implementing the measures in the Bill, it is important that they are implemented efficiently and effectively and in such a way as not to cause great tension between the two systems.

My noble friend Lady Carnegy has referred to the effect of these measures on the Scottish system. We need some assurances that the two systems will work effectively in practice in the interests of good teacher training. They must not cause tensions between the two systems. I believe that it is right that the Government

26 Jan 1998 : Column 56

should implement as, and when, all these issues are resolved. That is why I do not propose to move the amendment.

[Amendment No. 137 not moved.]

Clause 29 agreed to.

Schedule 2 [Minor and consequential amendments]:

Baroness Blackstone moved Amendment No. 138:

Page 28, line 38, at end insert--
(" . In section 58 of that Act (right to time off for occupational pension scheme trustees), at the end of subsection (3) add ", and
(c) references to training are to training on the employer's premises or elsewhere."").

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

6 p.m.

Schedule 3 [Repeals]:

Earl Russell moved Amendment No. 139:

Page 29, leave out line 8.

The noble Earl said: I apologise for taking up the time of the Committee, but it appears to be for the convenience of noble Lords that I do so. A moment ago I heard my noble friend Lord Tope say that we are taking part in a legislative, not a consultative, process. I hope that my noble friend was not being optimistic. Parliament began its life as a consultative process and occasionally, late at night, I wonder whether it might end its life as one.

More seriously, I am concerned here with trying to narrow the areas of difference which engaged us last Thursday. Having taken legal advice in considerable quantity over the weekend, I believe it is common ground between us that there is no problem about the repeal of the 1962 Act. I am advised that the saving of the transitional provisions in Clause 17 is entirely sufficient and on that the legal advice received is unanimous.

It is also my understanding that tuition fees are being levied by universities under the authority of private law, not the authority of government. Therefore, we cannot speak about the introduction of a power to levy tuition fees. In spite of the Government's memorandum to the Delegated Powers Scrutiny Committee, it is not justified under any legislation unless one is considering private Acts relating to particular universities, which was probably not the intention in that memorandum. The two new changes introduced by this Bill--one that the local authority no longer reimburses the student for the fee and the other that under Clause 18(4) the Government place a cap on that fee--places the universities in exactly the situation of the privatised railways. One of the pieces of legal advice that I received suggested that that had been used as the draftsman's model for the Bill. It is not something that fills universities with joy.

Now that we have an agreement on what is actually happening, I hope that the noble Baroness will agree that the debate on the previous amendment illustrates that the Committee still has difficulty in understanding on what legal basis tuition fees are being put forward. It is my contention that we did not debate the right

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amendments. I did not table the right amendments because I did not understand the legal basis of what was being done. I believed on the strength of the memorandum submitted to the Delegated Powers Scrutiny Committee that somewhere, once I could find it, there was legislation that gave a public law authority for the levy of tuition fees. If that is not so a whole series of questions arises that we did not address at Committee stage because we did not believe that they were relevant. If the noble Baroness says that that was in part our fault she is entitled to do so. Were she to say that it was wholly our fault that would be a quite different matter.

The question is whether the legal authority of the universities as private corporations for the levying and collection of tuition fees is sufficient: for example, whether universities have the right to withhold degrees from those who do not pay the tuition fees. These points require clarification which at Committee stage they did not get. We require clarification quite urgently as to whether the Government see it as being within the power of universities not to levy tuition fees. My understanding of the Government's position is that a university may refrain from levying a tuition fee if it is prepared to forgo the income. It is that which creates the possibility of cut-price, downward spiral market pressure--clearance sales and so forth. That would possibly represent a fulfilment of the ambition expressed by Mr. Robert Jackson as Minister for higher education when he referred to "breaking the cartel". If that is so, it indicates either that the Government are even more conservative than I had ever supposed or that the late Dick Crossman was right in saying that there were not more than half a dozen Ministers who controlled their departments.

There are a good many difficulties and questions to probe: for example, whether it would be allowable for universities to charge differential fees between subjects, as my noble friend Lord Wallace of Saltaire has from time to time suggested. I do not want to argue on any side of these questions, but we must probe the Government's intentions in these matters before we can decide exactly what to do with the Bill. Because the Committee stage procedure is so different from Report stage procedure and allows speaking twice and after the Minister it is particularly suitable for probing, for which it was designed. It is for that motive and in order to understand precisely where we find ourselves legally that we on these Benches ask for a recommitment of the Bill. We hope that it is to shed light rather than heat. I beg to move.

Baroness Blatch: I apologise both to the Minister and the noble Lord, Lord Tope, for jumping the gun, if I may put it colloquially. When the noble Baroness suggested that this should be discussed later, she did not mention the particular amendment to which she was referring. I thought that the amendment moved by the noble Lord, Lord Tope, had relevance to the affirmative resolution procedure, which I wholeheartedly support. I hope that the noble Lord will return to it. Whatever the outcome of this debate, the case for these regulations coming before the House under the affirmative

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resolution procedure, whether for 1998/99 or beyond, is even greater if there is no movement on the second debate as to whether or not there is another opportunity to discuss not simply the changes themselves but the policy changes. It is that frustration which has led to a prolonged Committee stage. Sadly, we are beginning to realise that it is a Committee stage that in large part has proceeded on a mistaken understanding of what the Government claim to be the legitimate basis for the policy changes.

For the purposes of the record, I hope that noble Lords will refer to the words that I used on the previous amendment. I should like to complete what I said when I was quite rightly interrupted by the noble Baroness. I believe that the reason why the Government referred to Section 1(5) of the 1962 Act was simply to use it as a mechanism rather than an opportunity to discuss the policy. The next question for the Government is whether Section 1(5) can be used to pay fees under Clause 18. Section 1 of the 1962 Act refers to awards. Local authorities have the duty to pay in respect of attendance on certain courses. Can such awards cover Clause 18 fees?

It appears that when passing the 1962 Act Parliament had in mind that any tuition fees payable by students to higher education institutions in 1962, or in 1980, could be the subject of awards. Nevertheless higher education institutions have the power to charge fees. Even if they use the power at present only for overseas students, Clause 18 fees are wholly new. That is a very important point. In requiring institutions to make their fees conform to the prescribed amount Clause 18(4) may be taken as forcing the abolition of the old fees to which the 1962 Act applies.

It is likely that a court would agree with the Government's position that Section 1(5) is apt to cover awards for any kind of charge to students in respect of their attendance at higher education courses. Section 1(1) and 1(5) would authorise the payment of grants to cover the fees of the exempted students. On that view, Clause 18(4) does not create a new form of fee but instead institutes a particularly severe form of price control amounting almost to nationalisation.

There is such disquiet and frustration about the way in which the law operates in this respect and the fact that this House--it will be the same in another place--has not had an opportunity to discuss the policy of completely abolishing maintenance grants and introducing for the first time tuition fees, together with a very real misunderstanding of the premise on which we have discussed these matters at Committee stage, that I believe the argument for recommittal is justified. This is not unprecedented. The previous government conceded recommittal in a similar situation in relation to the jobseekers Bill when the House took the view that there had been a mistaken premise and there should be a recommittal to allow the subject to be fully discussed. I believe that the arguments in this instance are overwhelming.

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