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Lord Triesman: My Lords, this is a Third Reading debate and we should try to stick to the conventions of Third Reading.
Baroness O'Neill of Bengarve: My Lords, I do not think that this amendment bears on devolution at all. It is open to the Welsh Assembly to promote higher education. The clause that we are discussing is about the requirement to include the promotion of higher education in an access plan. This is something very specific. I support the amendment.
Lord Prys-Davies: My Lords, when my noble friend replies to this debate, it would be helpful if she would
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confirm two matters: first, that Clause 32(3) has been brought forward at the request of the Welsh Assembly Government and, secondly, that the UK Government themselves are satisfied that the new power is justified given the circumstances prevailing in Wales. If my noble friend can give us that assurance, there is a presumption that the clause as it stands should be acceptable to the House. I remind the House that between 31 July 1999 and 31 December last, Parliament passed 42 Acts of Parliament containing distinctive Wales-only clauses or Wales-only Bills. To the best of my recollection and belief, on no occasion did your Lordships' House reject a Wales-only clause or a Wales-only Bill. If that is correct, there is no need for me to emphasise the obvious. If the series of amendments is agreed, an important precedent would be established.
If the Welsh Assembly, which has a democratic mandate, is to be denied the primary legislation to enable it to pursue policies that it considers to be in the interests of the Welsh people and if that legislation is agreed by the UK Government—the two conditions that I mentioned at the beginning of my speech—we are bound to ask how the devolution settlement will work. That was the question put by the noble Lord, Lord Thomas of Gresford. It greatly saddens me that so much criticism has been levelled at this clause by the Higher Education Funding Council for Wales. The Welsh higher education sector is small, but it has made a substantial contribution to Welsh life during the past 120 years, and continues to make a contribution. I should declare an interest: I am hugely indebted to the University of Wales, Aberystwyth, and the University of Wales, Swansea.
When I read the evidence of the Welsh Assembly Education Minister to the Richard Commission on the powers of the Welsh Assembly, it seemed to me that she was seeking the legislative powers to promote higher education in Wales. That is what emerged from her evidence to the commission. When did Higher Education Wales first make representations to the Welsh Assembly about this power? That is a very difficult question to put to my noble friend the Minister; indeed, the noble Lord, Lord Livsey, has asked a series of questions.
I see that the noble Lord, Lord Norton of Louth, is in his place. I am wondering whether we are faced with a basic weakness in the devolution model. The clause emanates from the Welsh Assembly but is being scrutinised by this forum. The Welsh Assembly Minister is not present to explain or defend the clause or to answer the questions that have been put to our Minister. That "split responsibility", as the Richard Commission called it, is partly the cause of the difficulties that we are in tonight. Of course, if a Welsh Minister were present in the House or in a Special Standing Committee to consider the Welsh clauses of an England and Wales Bill, she might be able to give assurances to noble Lords who are concerned about the Bill.
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I hope that the House is not asked to vote on the amendment. However, if the amendment were passed, I believe that the Ministers of the Welsh Assembly Government and many people in Wales would think that the time had come for the conferment of primary legislative powers on the Assembly. That has never been more necessary nor more timely than tonight.
Lord Brooke of Sutton Mandeville: My Lords, I declared my Welsh pedigree in support of my noble friend Lord Roberts of Conwy at an earlier stage. I shall not dwell on the niceties of the devolution issue. However, in comparison with the knowledge that some of us could once have had about the entire UK higher education sector—even though the department's writ did not run throughout the land—we are in these matters severely constrained by devolution. We are also constrained by the purity under which, as Westminster parliamentarians, we cannot be given information by Ministers relating to devolved institutions on the one hand and, on the other, we have no right as Westminster parliamentarians to receive information from those in devolved institutions who could tell us. All I can say is, "more's the pity".
I rise to support my noble friend Lord Roberts of Conwy. In relation to his anxieties about what may happen in Wales, I can cite analogously an ILEA episode from long ago. I was resident in Highgate and was, or had been, a governor of the Camden School for Girls, to which the episode relates. The Hampstead and Highgate Express reported that a senior elected member of ILEA had addressed the parents of Camden School for Girls and had said that in her view it was absolutely wrong for girls—or, indeed, women—to go into higher education. The paper reported that officials from ILEA sitting on the platform with her put their heads in their hands and presumably hoped that the roof would fall in. Like the thunderbolt that fell on York Minster shortly after the Bishop of Durham expressed his famous views, as the paper also reported, the roof obligingly did fall in that very night, though after the meeting when everyone had left. In that time-honoured phrase of the Metropolitan Press, "Provincial papers, please copy"—and, if I may say so, Liberal Democrat Benches, please note.
Baroness Perry of Southwark: My Lords, I briefly offer my support to this amendment. To me the issue is very simple. Whatever the rights or wrongs of devolution, we in this Parliament currently have the responsibility for primary legislation in respect of universities in Wales. We have already achieved a great deal in the passage of the Bill though this House, and with the concessions made by the Government on the issue of academic freedom for English universities. It seems to me totally wrong that we should not just as stoutly defend the academic freedom of Welsh universities. That is why I give my support.
Lord Dearing: My Lords, I speak briefly in support of the amendments. It seems rather extraordinary that
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we have been invited to endorse Clause 32(3) when, seemingly, no decision has been taken in Wales as to whether they want to promote higher education or about access. I cannot see how there are alternatives. That seems to make no sense whatever, and I find it difficult to endorse a proposal that does not seem to make sense.
There is another reason, however, why I very reluctantly speak on a matter that one would regard as properly the business of Wales. It is not a concern for me that the universities in Wales feel threatened and do not like what the Government have in mind. However, I do care that they have not been consulted on a matter, on which, if they are found wanting, they face a serious financial penalty. That cannot be good for the process of government in Wales. Therefore, I support the amendments.
Baroness Finlay of Llandaff: My Lords, I apologise for not having been involved before in this debate. I must declare an interest as an employee of one of the universities that has benefited from the merger process and which is now in the process of merging.
I have listened very carefully to the debate, and fear that we are muddling up two different things. There is devolution and whether Wales should have more powers; that, in a way, is a separate debate. The amendment tabled by the noble Lord, Lord Roberts, relates to the situation as it stands today. It is with great regret that I feel inclined to support the amendment.
My gut feeling is that I want to support Wales and the Assembly Government in Wales, but things work in Wales when everyone works together, when consultation is wide and there is a consensus view. If the universities in Wales are giving a message that they are anxious, forcing things on them will only create unhappiness. Sadly, there is an exit across Offa's Dyke for the brightest and best among our academics. I fear that if we allow those universities to become unhappy, the fantastic tradition of academic excellence of which we in Wales are so proud will be under threat.
Baroness Ashton of Upholland: My Lords, I am very grateful to noble Lords. The debate has been long and interesting, as befits what is an important part of the Third Reading of the Bill. I shall try to keep my remarks as brief as possible, as I am mindful that many comments have been made that cover the points well.
I should tell my noble friend Lord Prys-Davies that the provision is the desire of the Welsh Assembly, as he knows. Jane Davidson, to whom noble Lords have referred, has made clear to me her commitment to the autonomy of higher education institutions. The provisions in Clause 32 will in no way undermine that principle. The Assembly has requested the inclusion of the phrase,
to enable institutions to propose plans drawn more widely than simply in terms of access. The intention is to free the hands of institutions, not bind them further.
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Noble Lords referred to the differences within the sectors. The sector in Wales is much smaller than that in England, and its concerns are also different. Access is an area of success in Wales, where higher education institutions have a very good track record. Jane Davidson has made it clear, too, that if variable fees were introduced in Wales, there would be no question of the Assembly imposing requirements on individual institutions. The Assembly would not envisage defining the content of fee plans in such tight terms as to infringe the autonomy of Welsh institutions. Rather, fee plans would be an integral part of the sector's strategic engagement with the Funding Council and the Assembly Government.
During Report, the noble Baroness, Lady Sharp, raised concerns that the inclusion of promotion of higher education or equality of opportunity could lead to disregard for equality of opportunity in Wales. I assure the noble Baroness and other noble Lords that the National Assembly for Wales is committed to equality of opportunity in all its functions. Indeed, Section 120 of the Government of Wales Act 1998 makes this a statutory duty on the Assembly, which applies to all its functions. This Bill sets out the framework under which a system of variable fees would operate in Wales, but we contend that it is essential that the Assembly has sufficient flexibility to determine and deliver a policy suited to Wales.
The noble Lord, Lord Roberts, was concerned about granting power to the Assembly without rigorous scrutiny of how it will be used. The Assembly regulation-making procedures involve at least as much scrutiny as the affirmative procedure in Parliament. The relevant subject committee and the legislation committee will consider the Assembly regulations. There will be a full public consultation, which is also a requirement. I hope that covers, at least in part, the point made by the noble Baroness, Lady Finlay. It will be important. Of course, higher education institutions will be part of the full public consultation. In view of the number of comments that have been made about the need to consider scrutiny, that is an important point. There is no negative procedure in the Assembly, other than in cases of urgency, so draft regulations are open to scrutiny and debate.
The noble Lord, Lord Roberts of Conwy, asked whether the Assembly has already debated these provisions. The National Assembly has debated the Higher Education Bill in plenary on more than one occasion since it was introduced. On each occasion, the Assembly voted to welcome the devolution of the powers in the Bill. That addresses the second point made by the noble Lord, Lord Prys-Davies.
We are satisfied that the Assembly is best placed to make the judgment about how it wishes to take this forward. It has a statutory obligation to consult, it has debated these issues at length and it will make any regulations within the affirmative procedure, as I have made clear. We believe that we should offer the flexibility for the National Assembly to make its own
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decisions. I believe that the assurances about scrutiny and consultation, which would precede any Assembly regulations under this clause, and the assurances from the Assembly Minister on the policy context should be enough to satisfy noble Lords. I hope that the noble Lord will agree to withdraw his amendment.
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