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Earl Russell: My Lords, the central point of the amendment is simply that politics is the art of the possible. It is, I think, possible for governments to govern successfully in practically any philosophy--good, bad or indifferent. What is not possible is to govern successfully while unable to recognise that the world is as it is. The central point of this amendment is the legal relationship between the university and its constituent colleges, because the Bill as it stands, as I understand it, requires the universities to do what they cannot do.

As the noble Baroness, Lady Perry, said, it is clearly a fact that the Oxford and Cambridge colleges, perhaps unlike colleges in some other places, are autonomous institutions. In saying that, I speak as one whose wife is a specialist university historian. The point is uncontested among those who know anything about it. The colleges are protected by charters and in many cases by private Acts of Parliament. At a previous stage, the noble Lord, Lord Baker of Dorking, warned the House just how complicated a procedure it might be for the Government to untangle that. However, if the Government wish to take action against the colleges, it must be done by action directed against the colleges. It cannot be done by action directed against the university. In both our ancient universities, it was the colleges that had the money, the control of the teaching and the power. It was the meetings of the heads of houses that were important. The university was, in effect, a poor relation with very little power indeed.

The world has changed, but, as so often, the legal position has not changed with it. There are many reasons--good, bad or indifferent, although I believe many of them are good--why that is so. However, until the Government accept that the legal position is what it actually is, they cannot carry out any policy, whether soundly judged or not. I ask the Government to live in the real world.

Lord Desai: My Lords, whenever an Oxbridge question arises, it is fascinating to note how all the old arguments are trotted out. This has nothing to do with how old the institutions are or how good they are.

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Indeed, they have not always been very good. If your Lordships read Adam Smith on Oxford, it is clear that it was a horrible place. I think that noble Lords are saying, "Top-up fees have been there for so long, please don't change them". Let us not be misled; that is what the college fees are.

Those who have opposed the Government's legislation on many other matters are once again speaking in defence of privilege. I am impressed by the whole Bill because the Government are trying to bring a little equality and redistribution into what is, unfortunately, a very bad world. I agree with what the noble Earl has just said and that the Government must accept the world as it is, but the Government were elected to try to make the world a little bit better. Obviously, it will be a very difficult task.

Baroness Park of Monmouth: My Lords, in supporting the amendment strongly, perhaps I may say that it is not surprising that we are discussing the problems of Oxford and Cambridge colleges, because they are the ones with the problem. We are very happy to recognise all the other major problems with education and to fight for education as best we may, but it would surely be unreasonable to expect us not to point out the consequences of this particular, from the Government's point of view, quite small part of the Bill, which is a very large part of the Bill from the colleges' point of view.

It has to be remembered that colleges are families. That is one of the reasons why undergraduates love colleges. They feel that they are part of a small family. They look after each other. We all look after each other. That is something worth retaining, quite apart from all the other academic arguments. I return to the point that it is not reasonable to treat us as elitist and as thinking only of our own interests when, practically, we point out what the effects would be on those colleges and those universities alone.

Lord Wallace of Saltaire: My Lords, I shall abstain on this for a number of reasons. First, it seems to me that arguing that two universities should be allowed to opt out of what is otherwise to be imposed uniformly on all universities is rather odd. Secondly, it seems to me that we have been involved in an exercise in which the Government have been buying off Oxford and Cambridge. I speak as a former student of both universities, as a member of staff at Oxford for five years, and as the father of a student currently at Cambridge. I was one of those who--

Baroness Perry of Southwark: My Lords, I thank the noble Lord for giving way, but I wonder whether he will accept that we are not asking to opt out of any system. We are making a simple technical point that the university--Oxford or Cambridge--would be sanctioned for something over which it has no control.

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That is simply not justice. We are not asking not to be sanctioned; we are simply asking that the sanction should be directed in the proper place.

Lord Wallace of Saltaire: My Lords, I shall complete my remarks briefly. I was one of those who argued for reform at Oxford.

In the current debate I have been disappointed by what seems to me to be the failure of the two leading British universities to talk about the interests of higher education as a whole. I have made my views on that known to a number of people in both of those universities. I regret that failure and, for that reason, much as I sympathise with part of the argument being made, I must point out that Britain has other leading universities and that much stricter rules are being imposed upon them. I find the imposition of such tight controls on British universities one of the most deeply offensive aspects of the Bill. We should not allow only Oxford and Cambridge to argue their own corner; others also matter.

Lord Whitty: My Lords, I am sure that the House can, and no doubt will, have an interesting debate on the future of Oxford and Cambridge in relation to the higher education system as a whole. However, that is not what this clause is about. Therefore, I hope that noble Lords will forgive me if I do not reply in detail to the noble Lord, Lord Butterfield, or to some of the remarks made by the noble Lord, Lord Renfrew, who was kind enough to say that I had seen the light during Report stage. I must point out that shedding light does not always clarify an issue. This is a complicated matter. The noble Baroness in her intervention during the speech of the noble Lord, Lord Wallace, clearly encapsulated the administrative problem. I understand that. I respect the view that the colleges which charge top-up fees should be penalised rather than the university, or at least that the relationship should be clarified in whatever legislation we end up with.

I do not entirely accept that in these circumstances the university has no power in the Oxbridge situation. I find it hard to understand that there are no other bargaining elements in its relationship with colleges. I do not see why universities should continue to claim grants from the higher education funding council for students who attend connected colleges if they are not prepared to use whatever powers they have to ensure that those students are not charged top-up fees.

Having said that, as was made clear at Report stage this is a complex administrative and legal matter. We accept that we may not have got the reference to connected institutions in Clause 18(9) quite right. On Report I said that the Government were prepared to look again at that part of subsection (9) which referred to fees payable to connected institutions. We are still considering an amendment to make clear that institutions can be penalised for top-up fees charged to students only if they are claiming funding council grants for those students. I made it clear--noble Lords have made complaints about this--that we would table an amendment in another place.

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We saw perhaps only a little bit of light at Report stage. The period between Report Stage and Third Reading made it unlikely that we would be able to formulate an appropriate amendment in time to table it. That is the case. I understand why the noble Baroness, Lady Perry, and others are concerned that we are not tabling an amendment before the Bill is considered in another place and that noble Lords will not therefore have a chance to comment upon it. For that reason, after consultation with my noble friend the Minister, I am happy to offer the noble Baroness a meeting with the appropriate officials in the Department for Education and Employment to discuss the format of that amendment in order that it can be tabled before Committee stage in another place. I hope that in the light of that commitment the noble Baroness will be prepared to withdraw her amendment.

8.15 p.m.

Baroness Perry of Southwark: My Lords, I thank the Minister for a very full and careful reply. I understand that he fully appreciates the problem. I remain disappointed that we were not given sight of what the Government intended. I believe that this amendment would at least address the problem very simply. Nevertheless, I take note of the Minister's offer of further discussion with myself and perhaps others in this House who are connected with the universities of Oxford and Cambridge and who may want an opportunity to talk through the difficulty. I repeat that we do not seek to opt out of any system. Top-up fees are not on our agenda. We simply want to have the relationship and structure of the collegiate university preserved. We are anxious that any amendment tabled in another place is not of such a nature that it destroys the independent and autonomous relationship of the colleges vis a vis their universities. We would appreciate the opportunity to see any amendments before they were tabled. In the light of that promise, and with some reluctance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 49 not moved.]

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