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Baroness Warwick of Undercliffe: My Lords, I rise to support fully the amendments tabled by the noble Lord, Lord Roberts, to which I have added my name. Noble Lords may know that this was the subject of amendments which I tabled on Report and I am delighted to be able to return to the matter. I know that for many noble Lords, the amendments before us pose a problem. Those who support devolution, as I do, instinctively feel that the Welsh Assembly must be free to determine its own path and that it should not be for Westminster to dictate what can and cannot be done.

However, we retain responsibility for making primary legislation for Wales. I do not believe that that primary legislation should be subject to a lower standard of scrutiny than that for England. It is not good enough to say, "That's what Wales wants, so we should not interfere". Given the extensive and anguished communications I and others in this House have received from the Welsh universities which are the most closely involved, this is not what Wales wants. It may be what the Minister in Wales wants, but I do not think that we would be so trusting as to give Ministers in England everything they desire without stern challenge, and I do not see why we should adopt a different attitude to Wales.

With this Bill we are creating a regulator. We have tested the limits of that regulator through rigorous debate, and it is right that we should have done so because the regulator will have power to fine institutions up to half a million pounds and withhold their grants. It is clear that, with respect to England, the regulator is to regulate access to higher education.
 
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The Government brought forward an amendment on Report to make it clear that that is all this regulator can do.

But that will not be the case in Wales. The RNIB and SKILL, to which the noble Baroness, Lady Sharp, also referred, are concerned that in Wales the powers created by this Bill will not be used to promote access. I think they are right to be worried. Wales has a very good record on access to higher education, as have many institutions in England. That should not mean that it is neglected as a priority in the future. As the RNIB and SKILL note, there is always more that we can do.

Even if it were true that there was not a problem in relation to access in Wales, surely the response should be to remove the regulator with respect to Wales rather than to keep the regulator to do other, unspecified, things. I do not know what the regulator will regulate in Wales; nor do the vice-chancellors of Welsh institutions and nor, I suspect, does the Minister. It is not right that a regulator should be created without clarity as to what he or she will regulate—and with the power to fine, but no clarity about what the criteria will be.

I will certainly support this amendment should the noble Lord, Lord Roberts, decide to test the opinion of the House. I shall do so knowing that I have the strong support of higher education institutions in Wales.

Lord Thomas of Gresford: My Lords, it is with some regret that Members on these Benches are unable to support the noble Lord, Lord Roberts of Conwy, on this amendment, in particular having regard to his many years of outstanding leadership in the education field as a Minister of State in the Welsh Office. But he has urged us to stand by our principles, and there are principles other than academic freedom at stake. He reminded us that the Minister assured the House that the Welsh Assembly had asked specifically for the differentiation contained in this Bill to exist between the English provisions and those for Wales. I have said from this Bench on many occasions that we believe that, if devolution is to work, the National Assembly for Wales should have its way and that primary legislation, subject to a reserve only in the most exceptional circumstances, should mirror the requirements of the National Assembly.

I said that over the four years when we were in a partnership government in Wales with the Labour Party. Am I to move away from that principle because at the moment the Labour Party is exercising power in the National Assembly on its own? We believe not. We believe that the purpose of primary legislation in Westminster is to enable the National Assembly to do its job and not to limit or curb it.

If this is all about money and the way that money should be used in Wales to fund higher education, I should make it quite clear that the Welsh Liberal Democrats in the National Assembly have called for the release of £50 million from the reserves of £726 million in order to support and enhance higher education in the Principality.
 
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We do not necessarily believe that the policies being followed by the present National Assembly government are right or even sensible. The noble Lord, Lord Roberts of Conwy, referred to what was said by Jane Davidson on 9 June in plenary session. She has stated that she intends to change the landscape of higher education in Wales and sharply strengthen the financial incentives for reconfiguration. That may not be sensible where the institutions of higher education in Wales do not agree and where they have not been consulted. But that is what devolution is about. It is a power given to the National Assembly government to make mistakes and it will be punished for those, we hope, at the ballot box.

If the Assembly wants, for example, to introduce variable fees for higher education in Wales, I am sure that the Labour Party will not have missed the fact that in the recent elections, the Liberal Democrats scored enormous successes in the university towns, taking every ward in Cardiff Central where there is a higher proportion of students to the population than anywhere else in the United Kingdom. Students and young people across the whole of the United Kingdom are responding to the policies of the Liberal Democrats on education. If the Labour Party wants to pursue other policies, whether elsewhere in the United Kingdom or in Wales, let it be punished for them. That is what the democratic process is all about and that is what devolution is all about.

So it is in support of that principle—that it is for the National Assembly for Wales to make up its own mind, right or wrong—that we are not in a position to support the amendment of the noble Lord, Lord Roberts. This House is a not a Court of Appeal. This is not the place for Universities UK to make representations about the future of education. It should concentrate its efforts in Wales by bringing students out into the streets in peaceful demonstration if that it what it wants, but it should not come here for us to second-guess what the National Assembly has done.

Baroness Carnegy of Lour: My Lords, the noble Lord has enunciated the theory that devolution means that Westminster should simply rubber stamp that which the Welsh Assembly wants, that we should be agents for the Assembly in making primary legislation because it does not have the power to do so. I find that very difficult to accept. This is an interesting devolution issue and I think it is one that worries us; it certainly worries me that it has arisen at all. It is something that we shall have to look at when we consider the Richard report.

As the noble Lord knows, although I am no expert on Welsh matters, I know how Scotland has dealt with the problem of getting universities to consider co-operating more and perhaps merging in the future. That has been achieved by asking the Scottish Higher Education Funding Council to make it a condition of funding that they do consider this. That has worked well and there is no question about the fact that it is open to Wales to do so as well.
 
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The point here is that we have a Bill which is the job of the Westminster Government; we have to legislate. This Bill creates the possibility of a regulator in Wales which could be extremely threatening to universities if it is not limited. But we have created the Bill and we are approving it. If we leave the Bill as it is, as the noble Baroness, Lady Warwick, has said, universities in Wales will have no protection from the threat that the regulator, which would be the creature of the government of Wales, will do what it will with them. We have a responsibility to ensure that the Bill does not create a situation where the universities in Wales could suffer in a way in which the universities in England will not suffer. We owe it to the people of Wales to do so.

Had the Assembly consulted properly with the universities in Wales and obtained their agreement that they did not want limitations on the regulator, the situation would be quite different. But it apparently has not done so. I believe that the noble Lord is getting slightly carried away with his enthusiasm for devolution and the Assembly in thinking that the Government are right to accept this simply because the Welsh Assembly says so.

I think that the Government are deeply wrong. If, with the help of the Liberal Democrats—who are also enthusiastic in this way—they do not accept the amendment, they will show that they have not done their thinking about the lop-sided kind of devolution that we now have in this country. We owe it to the people of Wales that the Bill should give the same kind of protection to universities in Wales as it gives to universities in England.

I hope that the Government will listen to the universities in this respect. Noble Lords sitting behind the Government Front Bench may or may not have gone into this issue in great detail, but I hope they realise that, having created devolution, we have to be extremely careful how we operate it. Some matters may have to be changed as a result of the Richard report but I hope that the House will accept my noble friend's amendment and that the Government will see the danger of the course they indicated they were on at the previous stage.

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