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Lord Forsyth of Drumlean: My Lords, I thank the Minister for tabling the amendment. I agree that the wording is better than that of the amendment considered at an earlier stage. It will go a long way to meeting the concerns that were expressed. I know that it was an issue of concern not just on these Benches but on the Liberal Democrat Benches and on the Cross Benches. My noble friend Lady Perry of Southwark was particularly concerned about it. I have two short words for the Minister: "Thank you".
Baroness Sharp of Guildford: My Lords, I add my thanks to those of the noble Lord, Lord Forsyth of Drumlean. We were anxious about the issue, but we are much reassured by the amendment that the Minister has tabled.
Baroness Warwick of Undercliffe: My Lords, I support the amendments. I congratulate the noble Lord, Lord Forsyth of Drumlean, on his persistence and am grateful to the Government for tabling the amendments.
Amendment No. 5 builds helpfully on the amendment that I tabled in Committee. It gives an even more powerful assurance that institutions are to retain their autonomy over admissions, course content and delivery.
Amendment No. 13 goes further and makes it clear that OFFA cannot require institutions to refer to individual courses in their plans, except as provided for in Clause 32(1). That is very welcome. Universities UK, in which I declare an interest as chief executive, has pressed for it since the Bill was first published, and I must say that I had all but given up on it. Universities UK felt, as I do, that it was rather important that OFFA should look at widening participation strategies as a whole. OFFA should not have the power to require institutions to focus on individual courses. One can imagine how, if OFFA had that power, it might be abused or used innocently in such a way as to distort the priorities of institutions in widening participation. It would also, inevitably, lead to a degree of micro-management, which would, in my view, be unacceptable. The amendment is very welcome, and I thank the Minister for it.
I wonder, though, whether the Minister might clarify the meaning of the phrase "general provisions" in the amendment. I hope that she means "except as provided for in Clause 32(1)". If that is what she means, I am entirely happy with the amendment.
Baroness Ashton of Upholland: My Lords, it is indeed my understanding that that is what I mean. I hope that that clarifies things for the noble Baroness.
On Question, amendment agreed to.
Clause 32 [Contents of plans]:
Lord Roberts of Conwy moved Amendment No. 6:
The noble Lord said: My Lords, in moving Amendment No. 6, I shall speak also to the other amendments in the group, with the exception of Amendment No. 8, which will be spoken to by the noble Baroness, Lady Sharp of Guildford.
The amendments would extend to higher education institutions in Wales the freedom from potentially gross interference that has already been granted to similar institutions in England by a government amendment tabled on Report. The freedom was conferred in England by confining the power of OFFA to insisting that plans for access should include provisions to ensure equality of opportunity only. It should not seek to promote higher education generally, which your Lordships strongly argued is best left to the institutions. Perhaps this is the point at which to note that the welcome government amendments that have just been agreed refer to what the institutions can do rather than to the institutions themselves.
The Government accepted the arguments that were put forward in your Lordships' House, but only as regards England. The power to insist that access plans promote higher education was retained for Wales. OFFA does not cross the dyke in this Bill to operate in Wales. But there will be a similar authority, which will probably be the Higher Education Funding Council, sponsored by the Labour Government of the National Assembly. Our amendments seek to ensure that the remit of the Welsh authority will be identical to OFFA and similarly restricted, and that higher education institutions in Wales will be as free as similar institutions in England. Your Lordships may well ask, "Why not"?
The main objection is that we are dealing here with a devolved matter. There is a presumption that amounts to a principle among ardent devolutionists that whatever the National Assembly wants in primary legislation, it should get. It was well expressed—albeit with a hint of mild embarrassment—by the noble Baroness, Lady Sharp, at Report. She said:
"My party, in particular, is concerned that Wales should be able to do its own thing and should not be dictated to by this Parliament".—[Official Report, 14/6/04; col. 572.]
I do not know how far that Liberal latitude extends. Would it extend, for example, to the total abolition of higher education or some other extreme? That remains to be seen. I shall be very interested to hear how members of the Liberal Democrat Party reconcile taking one view in England—after all, on a matter of principle—and another view in Wales on the same principle.
The Minister confirmed that the Assembly had asked specifically for this differential between England and Wales. But, with respect, the request came from the Assembly Government within the National Assembly. As far as I am aware, there is no record of any such request being made by the National Assembly as a whole. I am not sure that it has scrutinised the Welsh clauses of this Bill in what your Lordships would call "any detail". It has certainly not discussed the issue that we are considering today. So I counsel caution.
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This Parliament is still responsible for providing primary legislation for Wales. We should be careful when we issue blank cheques to the Assembly Government for the exercise of powers, which we deny to central government in the United Kingdom. We should be especially careful when central government concur that we are right to do so.
So why should we insist on these amendments? I respect those who believe in the prime importance—indeed, the sanctity—of the devolution process. But I must remind them of their current responsibility to provide sound primary legislation and, where important principles such as academic freedom are threatened, to lay down parameters for the exercise of powers that may undermine such principles.
We have reason to believe that higher education institutions in Wales feel threatened. They have told us so through Higher Education Wales, which comprises 14 vice-chancellors and principals. I quoted a letter from its secretary, Mr D G Lewis, at length at Report. I shall remind your Lordships of his view that the power to require an institution's plan to "promote higher education" may be used,
"in ways not directly connected with fair access to higher education . . . [but] to direct their business plans and even to force merges. . . . Some members of HEW fear that the power is there to ensure that institutions comply with the Minister's wishes and to fine them if they do not".
I have checked on Mr Lewis and his position. I have to say that the fear is not groundless. The chairman of Higher Education Wales, Professor Anthony Chapman, said recently:
"The Vice Chancellors and principals in Wales are concerned at the coincidence of several recent statements by the Welsh Assembly Government which taken together suggest an undermining of university autonomy, notwithstanding protestations to the contrary".
I am afraid that that is the true position.
On 9 June, the Minister, Miss Jane Davidson, said:
"I will ask the HEFCW to use the core grant to the sector more strategically, along with elements set aside for the same purpose. I will expect the Council to consider how those monies should be distributed to provide concrete benefits to those institutions which have embraced reconfiguration"—
which, I think, means mergers and collaboration—
If that is not an enforcement of policy on institutions, I do not know what is. Such actions would be clean contrary to the wishes of this House and this Government as regards England. I urge the House and the Government to stand by their principles and extend the protection of academic freedom, which, as the noble Baroness, Lady Blackstone, memorably said, is indivisible to Welsh institutions too. Our duty is clear and we must not shirk it. I beg to move.
Baroness Sharp of Guildford: My Lords, I perhaps should have asked for Amendment No. 8 to be degrouped. If Amendment No. 7 is agreed, Amendment No. 8 will fall. Therefore, it depends on whether the noble Lord, Lord Roberts, wishes to test the opinion of the House on his amendment. Amendment No. 8 is tabled on behalf of RNIB and
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SKILL, which were very concerned about the changing of the wording of the Bill in relation to England. I remind your Lordships that the original wording of the Bill was that the responsibility of the director should be the promotion of equality of opportunity or the promotion of higher education. We picked that up at a fairly early point and changed the wording. Indeed, this came forward at Report to cope with that. Nevertheless, as the noble Lord, Lord Roberts, explained, we left that wording in in relation to Wales.
The two organisations are very concerned because it would suggest that one is counterpoising the promotion of higher education against the promotion of equal opportunities. The suggestion therefore is that in order that those two sub-paragraphs should not seem to be alternatives, the word "or" should be substituted with the word "and". This is a minor amendment that would just clarify the wording.
The noble Lord, Lord Roberts, referred to the position of the Liberal Democrats on the devolution issue. Our spokesman on Welsh affairs, the noble Lord, Lord Thomas of Gresford, will speak on that for us. I do not want to speak on that issue. I just wanted to explain my amendment and also make clear that basically it stands only should the other amendments fall.
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