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Lord Callaghan of Cardiff: My Lords, I believe this is the fourth time that we have discussed this matter. I apologise for the fact that I have not been present on earlier occasions. However, I have followed all the arguments and on the whole have agreed with most of them. So I came here this afternoon, assuming this was the fourth time and that we were thinking of sending the Bill back, to make a great constitutional speech, but somehow the air seems to have gone out of the balloon.

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I had intended to say that this unelected and unaccountable Chamber was unrepresentative and, therefore, with a clear conscience, I could vote with the Government. Now that I am reduced to voting apparently between "may" and "shall", I feel rather as though I have been let down by the Government's concession. However, I think they have done the right thing. I think your Lordships can retire with honour from the major constitutional battle. The Government have listened. They have gone the extra mile.

From my close experience over a period of 10 years with the Committee of Vice-Chancellors and Principals, I have no doubt that it will approach this from the point of view not only of the interests of the universities and the higher education institutions, but also from that of the students. It is a great pity that we did not have a solution to this problem when the noble Lord, Lord Dearing, considered it. But we did not. So I think now that we can safely leave it to the review to make recommendations that will certainly be realistic and practical and will get rid of as many difficulties as possible.

With regard to "may" and "shall", I can see the hands of the parliamentary draftsman in this. As anyone who has been a Minister knows, no parliamentary draftsman would ever agree to "shall" if he could get away with "may". I do not blame him either. As noble Lords on both sides of the House know--a number of former Ministers are present--although one may be in full agreement with whatever a committee of outsiders--and they are outsiders--proposes, it is for Parliament to take the final decision on what form legislation should take. That is how it should be. I do not think that Parliament can hand over the final responsibility for this matter, even to a committee as eminent as my friends, the Committee of Vice-Chancellors and Principals and all those associated with it. Now that the Government have gone the extra mile, on which I congratulate them, it would be a great pity if we were to send the Bill back to the Commons again and say, "We insist on 'shall'", when it is well known that this is not the way in which legislation is normally drafted.

I would also say to my noble friends on the Front Bench that if the committee came back with a recommendation which was seriously interfered with, which was weakened by the Government or which was not accepted by them, a number of us would find it difficult to support them. It should weigh with all Members of your Lordships' House that in this place we think as independently as we can even though we try to follow the Government Whip and to do what we can. Nevertheless, having committed themselves to this course of action, the Government are morally bound to accept all the major conclusions that follow from it. If they could not, it would put some of us in a great deal of difficulty.

On that basis I hope the House will agree that we have achieved something on the Bill. It has now been considered so many times by this House and it has gone through the Commons. It contains a number of measures on which many hours have been spent by the noble Baroness, Lady Blatch, the noble Lord, Lord Mackay of

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Ardbrecknish, and my noble friends, who have worked very hard this Session. I feel sorry for them, having seen them come here day after day to consider all the amendments. I hope the House will agree that we need not send the Bill back to another place and can accept that what has happened reflects well on the persistence of this House.

The Earl of Perth: My Lords, I am sorry I could not be present when we discussed the Bill on 7th July, but I had an accident and I needed five stitches in my head. Noble Lords now see me standing here and I am all right.

Shakespeare said,

    "A plague o' both your houses!".

If I were an outsider and had seen the debate I would think that a very apposite comment. But we are not outsiders but insiders. We cannot take comfort in what happened in Shakespeare's day.

There is one point which has hardly been mentioned by anybody; namely, what would have been the effect if the Government had succeeded in getting their Bill through and what would have been the effect on Scotland in particular? I am quite clear that the only people who could have benefited were the Scottish Nationalist Party, because they seek independence. What would have happened? When the first election came up we would have heard the cry, "Remember the poll tax and the Scottish Education Bill!" Luckily, that second part need not arise now in the light of the amendment of the noble Baroness, Lady Blackstone, which we are considering today. Without it, we would have suffered the very real danger that both students and principals, and indeed the whole of Scotland and the other parts of the country, would have good cause for resentment. I cannot stress enough how much I believe that that could have affected the whole issue of the Union with Scotland.

I had prepared a good, long speech but it is not going to be spoken. I say, "thank you" to the Government for having met our points. As I see it, as regards the question of "may" or "shall", I hope that the Government will remember the point made by the noble Earl, Lord Russell, because it is a very real one. It would be very helpful if the noble Baroness, Lady Blackstone, can help us in the way the noble Lord, Lord Mackay, suggested and give us some extra comfort on that particular issue.

4.30 p.m.

Lord Beloff: My Lords, my difficulty is not with the words "shall" or "may". My difficulty is much more fundamental and with the word "independent" as describing the composition of the body which is to make recommendations. After all, we have listened to debates on this Bill on several occasions, as we have been reminded. I have found no one in this House who can be called "independent". They take one view of the issue or the other. If one went outside this House into the country at large, I believe that it would be almost equally difficult to find people who genuinely began with an open mind on an issue of principle of this

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importance. I believe that the only conceivable independent body would be one nominated by, let us say, the president of Harvard or the College de France. The nomination would have to be from outside this country; outside Scotland, Northern Ireland and Wales. Therefore, I cannot regard the offer of a commission--which would be selected by the Government which must have some bias in the people they look to--as a concession on the main issue of principle.

Lord Peston: My Lords, perhaps I may say a word in support of my noble friend's statement. She and the Government have behaved in a most conciliatory fashion. They have done all they can to move us forward on this matter. I say en passant that until the noble Lord, Lord Beloff, spoke, it had never occurred to me that anyone would query the question of independence. I have not the slightest doubt that this Government are as capable in this field, as in others, of appointing a body which is able to come to a reasonable conclusion on the facts.

We do not want to debate the matter this afternoon because we have other business before us, but the four-year degree question in England and Wales is the same as the four-year degree question in Scotland. I believe that my noble friend said that and on straight education grounds I believe that she is completely right. It does not mean that there is not an interesting question there, but it is not the same question.

I enter a plea. There is no one more obsessed in your Lordships' House with the "may-shall" question than I. However, when I sat on the Front Bench where the noble Lord, Lord Mackay of Ardbrecknish, now sits, I constantly raised the question, as regards the legislation of the then government, as to why "may" instead of "shall". Very frequently the only word that would make any sense was "shall". It was often said that, "The Secretary of State may lay regulations". The point is that if he did not lay them the whole Bill failed. But I often asked why "may" and not "shall". The noble Lord, Lord Mackay, and his friends had no difficulty in telling me that "may" was the right word and that it sort of meant "shall", as my noble friend Lord Callaghan said.

Beyond that, I find inconceivable--should this independent body query the arrangements and say that something different must be done--the notion that the Secretary of State would not then do it. That is preposterous. Of course he or she would do it. I do not say that I shall abandon my own "may-shall" interventions in future because when I am short of an argument those two words tend to pass the time away when I cannot think of anything substantial to say. The noble Lord, Lord Mackay of Ardbrecknish, has handled this matter extremely well. He has been helpful to your Lordships in moving the matter forward. However, I hope he decides that we do not need to spend any more time on this issue by dividing the House, although it is his decision and not ours. I believe that we have taken the "may-shall" matter as far as it can go, at least for today.

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