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The Lord Privy Seal (Lord Richard): My Lords, I thought the noble Lord had given way. I hoped he had subsided finally but he obviously has not. Perhaps the noble Lord can help me with this question. Can he think of any instance in which a government, in advance, have agreed to be totally bound by the decision of an independent committee which has not yet been set up and which has not started considerations? I cannot.

Lord Mackay of Ardbrecknish: My Lords, I see the point that the noble Lord the Leader of the House is making. As the amendment is only an hour and 20 minutes old, I cannot answer that question. He has the power of government behind him. Even in 20 minutes I have no doubt that he will answer it for me.

Lord Richard: My Lords, does the noble Lord agree that the insertion of the word "shall" into the

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amendment as he proposes has that effect? If it does, and if I am right that there is no precedent that I know of for that, he is embarking on constitutionally thin ice.

Noble Lords: Oh!

Lord Mackay of Ardbrecknish: My Lords, many happy hours have been occupied by committees in this place and the other place discussing "may" and "shall"--whether "shall" means "may" or "may" means "shall". I see the point that the noble Lord is making.

Earl Russell: My Lords, the noble Lord the Lord Privy Seal if I heard him right, said that he could not think of any case when government agreed to be bound in advance by the decision of another body. Does that not happen every time a government go to court?

Lord Mackay of Ardbrecknish: My Lords, I must say that I find it more comfortable to have the noble Earl batting on my side than against me. I was about to say that the noble Baroness should take that on board. When she replies perhaps she will give me some comfort that the word "may" is a little bit stronger than "maybe" and that the Government will commit themselves to taking very seriously what the commission says and to enacting its recommendations unless there are compelling reasons for not doing so. I need some words of comfort.

I do not want to go on because we have been over this issue many times. We have made a little progress. It would have been much wiser for the Government to have made the progress some time ago--perhaps when the Bill was in this House or in the other place--instead of digging in their heels. They have discovered today that your Lordships are indeed a revising chamber. We have been at least partially listened to. I thank the Government and the noble Baroness for that. I thank also the noble Lord, Lord Sewel. No doubt he has reported back to his colleagues that he has been drubbed something dreadful on a number of occasions on this issue. I thank the Government as far as it goes. I would like them to go further. I look forward to hearing what the noble Baroness has to say about "may" and "shall". I beg to move.

Lord Thomson of Monifieth: My Lords, the immediate response from these Benches is to express our gratitude to the Government for accepting the amendment that we tabled earlier today and for adapting it, through the technical resources available to them, to improve the terms of it. The Government and the Minister have certainly taken the House by surprise. We have rarely had so much pleasure--we have had it twice this afternoon--as a result of the Government having to act without more notice to the House. It is a welcome surprise.

I agree with the noble Lord, Lord Mackay of Ardbrecknish, that it does not solve the problem of the principle of equal treatment of tuition fees for students who come from other parts of the United Kingdom to Scottish universities. On that point both the Official Opposition and ourselves are in agreement. The

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government action today, coming so swiftly after the events in the other place last night, shows what we can all regard as sensible flexibility over what is a difficult issue for both sides. It shows a willingness to allow the issues to be examined before the final arrangements are formally in place.

Our role is to be a revising Chamber, to give the government of the day the opportunity to think again. That is what we have been seeking to do during the long game of ping-pong over these provisions. The independent review body proposed orally last night in the other place and to be enshrined on the face of the Bill here provides that opportunity for thinking again.

This was never a great constitutional issue, although, on reading some of the speeches, one would have thought that there were some who sought to make it a conflict between Lords and Commons. No-one in your Lordships' House--certainly no-one on the Front Benches--denies the legitimacy of the elected Chamber, especially when it involves raising money through taxes. But the Government have stubbornly refused to recognise adequately over quite a long period--in your Lordships' House and, certainly, in another place--that, particularly on educational issues, your Lordships' House has a special right to be listened to. This House contains within its membership a wide range of people with great experience of education gained during their professional lives. The Government would have been wise to have given much greater weight to the doubts expressed in this House at a very much earlier stage. I beg the Government at this stage not to under-estimate the all-party opinion outside this House that is on our side of the argument rather than theirs over Scottish university tuition fees.

I had to miss the previous game of ping-pong last week because I was in Scotland. I was attending the degree ceremony of the University of Dundee, with which I have had a long association. During that ceremony the principal of the University of Dundee, Professor Ian Graham-Bryce, used these words:

    "Whatever rationalisations are put forward, the practical effect is discriminatory. If this leads to a decrease in the diversity of the student body"--

which has been enjoyed in universities like Dundee where there is a very significant group of students from outside Scotland--

    "it will be Scottish higher education and ultimately Scottish interests which will be the losers".

The principal of the University of Dundee reported that he was already experiencing a fall in applications for places--a 14 per cent. fall this year--and that the outlook was not good at present.

A great many conflicting figures have been given about whether the provisions of the Bill are already having an effect on applications to Scottish universities from other parts of the United Kingdom. One of the useful purposes of the proposed review may be to clarify this situation because the effect of the provisions will become clearer and clearer as the review body sits--and that may greatly help to make the debate as cool and as rational as possible.

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I welcome the Minister's assurances that this is to be a truly independent review. It is not to be a "cosmetic operation", to use her phrase. The implication is that we are entitled to assume that the Government will approach the review in that spirit and will ensure that the members of the review are truly independent people and that the review is able to tackle the problems that lie before it ab initio with an open mind. For that reason, I do not propose to follow the example of the noble Baroness the Minister, who seemed to be rehearsing the evidence that presumably she will in due course give to the review; nor the example of the noble Lord, Lord Mackay, who was either rehearsing the evidence he will give in the future or was going over the evidence he has given frequently in these debates in the past. I do not think much is to be served by doing that at this stage.

The Government have made a very important concession. I recognise that it is not easy for the Government to make such a concession at this stage of a Bill that has aroused passions as deep as this one has aroused. Therefore, I welcome the fact that the Government have done so; I welcome the proposal for the review; and I welcome the way they have taken our amendment and incorporated it onto the face of the Bill. I am a very happy man this afternoon.

Lord Dearing: My Lords, during the passage of the Bill I have become accustomed to accepting chastisement from the noble Earl, Lord Russell; the noble Lord, Lord Beloff; and no less from the noble Lord, Lord Mackay, although I invite the noble Lord to read Clause 81 again and to change his mind. While I have become used to that chastisement, I was perturbed when during our previous debate the right reverend Prelate the Bishop of Ripon described me as a man without principle. Being of a certain age, and thinking that in the fullness of time, like perhaps several other noble Lords, I shall be moved to yet another place, I thought that I would write him an epistle--an epistle of five pages--lest I be condemned to a purgatory of everlasting ping-pong. I am glad to tell your Lordships that the right reverend Prelate was kind enough to ring me this morning, fearing yet another even longer epistle, to authorise me to say that I was forgiven.

I welcome the initiatives that have been taken to relieve us of a difficult problem. We all need time, just as the National Union of Students told me that it needs time when I asked for its position on a certain matter which was very relevant and to which I referred on another occasion. I am delighted to support the government amendment. I agree that "may" is the better word, but with an edge of "shall" about it.

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