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Baroness Blackstone: My Lords, Members of your Lordships' House will see that I am proposing amendments to Clause 25 which have a very similar effect to that which I believe the noble Baroness, Lady Blatch, is seeking here. Clause 25 provides for the making of regulations and orders under this Bill and is, therefore, the more appropriate place to bring forward amendments of this type. Therefore, I very much hope that the noble Baroness will feel able to withdraw the amendment.

I also hope that my amendments need not detain us for very long. They are very similar to those tabled by the noble Baroness, Lady Blatch. They require the use of the affirmative resolution procedure for the first set of regulations made under Clause 16. The last of them makes parallel provision for Scotland by amending the Education (Scotland) Act 1980, under which the

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equivalent Scottish regulations will be made. They also provide for the possibility of a choice in future years between the affirmative and negative procedures. As the noble Baroness is aware, that is the approach favoured by the delegated powers scrutiny committee.

The student loans regulations for the academic year 1998-99 will be made under Clause 16 and under the equivalent Scottish provision; and they will come to your Lordships' House before the Recess. I remind noble Lords of the undertaking that I have already given that the student support regulations for the academic year 1999-2000 will also be subject to the affirmative procedure. These amendments will enable us to honour that important commitment. Furthermore, they will enable regulations to be considered under the affirmative procedure in subsequent years if those regulations introduce substantial changes. For example, such changes may include the extension of eligibility for support to different groups of students or substantial variations to the way in which the level of repayment is calculated. I stress that currently the Government have no such changes in mind. We undertook to reflect on what was said in Committee about the report of the Delegated Powers and Deregulation Committee. We have done so. I hope that these amendments fully meet the concerns, and I commend them to your Lordships.

Baroness Blatch: My Lords, I thank the noble Baroness for her clarification of the amendments that she has tabled. Perhaps it is due to my own inadequacy, but I need to be absolutely certain that they meet in every way both the recommendations of the committee and the concerns that I have expressed. I am relieved by what the noble Baroness has said. However, one of the examples that the noble Baroness gave was the possibility of a change in the level at which students repaid loans. That was precisely what happened in Australia. The level at which students began to repay loans was changed quite dramatically but not in favour of the students.

Baroness Blackstone: My Lords, I should like to reassure the noble Baroness. The Government have absolutely no intention of changing the 25 per cent. level. However, I said that at some future date perhaps there would be another government--maybe a government formed by the party of which the noble Baroness is a member--that wanted to make a change and at that time regulations subject to the affirmative procedure would be in place.

Baroness Blatch: My Lords, I am delighted by the intervention of the noble Baroness. I am reminded that there has been almost a switch in positions. The noble Baroness at one time pressed me and said it was very important that the House should take a view on any changes. I am very happy to be the one who today presses the noble Baroness. But the noble Baroness has made my point. I was delighted that in giving her example she said quite clearly that the Government had no intention and had no plans whatever to make a change. However, for the purposes of Pepper v. Hart

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I believe it is very important to have it on the record. Subject to reading carefully what the noble Baroness has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Imposition of conditions as to fees at further or higher education institutions]:

Baroness Perry of Southwark moved Amendment No. 55:

Page 13, line 45, after ("secure") insert (", to the extent of its powers,").

The noble Baroness said: My Lords, Amendment No. 55 represents my second attempt to try to persuade the Government that the current wording of Clause 18 gives rise to a problem with specific reference to the Universities of Oxford and Cambridge. Clause 18 gives the Secretary of State power to impose conditions on the grants by a funding council relative to the fees that universities and colleges of further education charge their students. Subsection (3) specifically gives the Secretary of State power to impose conditions relative to higher education. In subsection (4) it is provided that the Secretary of State shall require the governing bodies of such institutions to ensure that neither they nor any institution connected with them charges more than the prescribed amount of fees--a sentiment with which I heartily concur.

There is a real constitutional and legal difficulty for the Universities of Oxford and Cambridge. In particular, Clause 18 goes on to provide that the funding council is required to impose a sanction on any university if it or any institution connected with it charges more than the prescribed fee. The difficulty is that in both Oxford and Cambridge the colleges are quite clearly connected with the universities in many ways. I am quite sure that on any reasonable definition of "connected with" the funding council will be convinced that the colleges of the universities are connected with the universities.

However, the legal position begins to fall apart when one considers that the governing bodies of neither Oxford nor Cambridge has any power whatsoever over the fees charged by the individual colleges of those universities. We may deplore this; it may be inconvenient, or it may cause all kinds of difficulties because of the wording of the Bill, but it is a fact. The colleges are chartered, independent institutions. Many of them under their statutes have not only a right but a duty to charge fees which cover their own tuition costs. The university cannot tell them not to do it or stop them from doing it if it tries. I have every expectation that the colleges at present have no intention of doing this but, as the Minister has just reminded us, time moves on and the current heads of Oxford and Cambridge colleges and their governing bodies will change.

It may be that if a college found itself in financial difficulties it would have a duty to charge its students additional fees, at which point the mechanism set out in the Bill would be triggered. The funding council would be obliged to sanction the university by taking away some of its grant. The college would not itself be subject to sanction but would have caused this very tough sanction to be imposed on the university; in other words, the university would be punished for something over

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which it had no control. That is not natural justice. I am assured by both universities that their advice is that should this happen and the matter came before the courts the Government would not have a leg to stand on in arguing that they had a right to sanction the university itself. I hope that the Minister can be persuaded that the right course is for the Government to encourage civil servants to come up with a different form of words applicable to those two universities. If not, although I have no intention of dividing the House tonight, I shall return with the same amendment on Third Reading. I beg to move.

Lord Renfrew of Kaimsthorn: My Lords, in rising to support my noble friend Lady Perry I should like to remind the Minister that I indicated at Committee stage how with a skeleton Bill of this kind it was sometimes difficult to understand the substance. In the debate a week ago on the Motion that the Report be now received I asked the noble Baroness a question. I declared an interest at that time because of my association with a college at Cambridge. I asked how the Bill bore upon the fees of colleges at Oxford, Cambridge and elsewhere, particularly Durham. The answer of the noble Baroness, which I do not believe to be correct, was:

    "The noble Lord, Lord Renfrew, will forgive me if I do not become involved in the issue of college fees at Oxbridge. That is quite a different matter. It is not an issue for this Bill".--[Official Report, 23/2/98; col. 420].

But the question of how the Bill bears upon college fees and to what extent is indeed an issue. My noble friend Lady Perry said at Committee stage:

    "we would hope that the Government would address the question of how to penalise the colleges should they charge top-up fees and not try to penalise the university which has no control over what the colleges do [in financial terms]".--[Official Report, 22/1/98; col. 1734.]

The noble Lord, Lord Whitty, replied:

    "we are looking at mechanisms for dealing with the colleges in Oxford and Cambridge. We may well need to look further at the wording".

That was a very wise remark. However, we have absolutely no evidence that the Government have yet looked further at the wording. Certainly, they have tabled no amendments at Report stage. The observation of the noble Lord, Lord Whitty, scarcely tallies with the reply subsequently given to me by the noble Baroness, Lady Blackstone. I submit that it illustrates the confusion which surrounds Clause 18. We are receiving different responses from government spokesmen on different days in respect of a matter which is of serious importance to the universities of Oxford and Cambridge. At present, the Bill provides no explicit mechanism for dealing with college fees. I reiterate, as did my noble friend Lady Perry, that top-up fees are not the agenda of the colleges. It is not clear how top-up fees would be dealt with.

As I mentioned during the debate on the Motion that the Report be now received, I have had sight of a draft amendment to Clause 20 in the name of the noble Baroness, Lady Blackstone, making explicit reference to

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college fees but not in a way which would recognise their particular features. Fortunately, the amendment, Amendment No. 67, no longer contains that element.

The Bill appears to treat college fees precisely as though they were top-up fees. I say "appears" because I do not understand it too well. We have received no explanation from Ministers other than the general statement that they might look at the wording. If they have done so they have not yet communicated the results of their ratiocination. The Bill makes no explicit distinction between the fees. That is why its structure is so deeply unsatisfactory and difficult to argue with, as some of us said at an earlier stage.

I make it clear that at this stage I am not arguing against the Government's policy on college fees, particularly as I do not have the slightest idea what it is. The noble Baroness says that it is not an issue for this Bill. But what is an issue, or should be, is the mechanism which the Bill affords for dealing with the matter. The Government may or may not have a policy on college fees, they may or may not tell us what the policy is, but we are debating the legal mechanisms. The noble Lord, Lord Whitty, conspicuously failed to answer the questions put by my noble friend Lady Parry on the second day in Committee and the Minister brushed the point away last Monday.

That is not good enough. If the Government do not yet have a policy or are making a policy on the wing--as on matters such as the gap year, the four years for Scottish students and the means testing of students from the European Community--that is up to them, but we are debating legislation. The Government must have a mechanism or the Bill is defective. The noble Lord, Lord Whitty, says laconically that we need to look at the wording. It is now the Report stage and we are still mired in confusion on this and a number of other issues. I support the amendment.

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