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Lord Roberts of Conwy: My Lords, we have had a very interesting debate. There has been a fairly clear clash between those who stand by the principle of academic autonomy and freedom and those who give priority to devolution. It was very interesting that, right from the beginning, the voice of higher education in Wales was very clearly heard, starting with the noble Baroness, Lady Warwick, who was followed by the noble Lord, Lord Morgan, a former principal. Then we heard the voices of my noble friend Lady Perry and the noble Baroness, Lady Finlay of Llandaff, an employee of the University of Wales College of Medicine. She is very much in touch with academic feeling in Wales.
There is no doubt about it: academic institutions feel threatened and rightly so, from what I have read of the intentions of the Assembly's education executive. It is no wonder since, as the noble Lord, Lord Dearing, implied, there has been no consultation. This is what has really caused anxiety in institutions of higher education in Wales.
The noble Lord, Lord Thomas of Gresford, was very firm in his belief in devolution and also in his belief that devolution means the freedom to make mistakes. I am not sure that that freedom extends to this Parliament while it has responsibility for providing Wales with primary legislation. We cannot contemplate the road to ruin as far as institutions of higher education in Wales are concerned with any degree of equanimity. I agree with the noble Lord that devolution may well mean freedom to make mistakes. However, while we have responsibility for primary legislation there is no doubt that we should do our best to ensure that no major errors occur.
I am very grateful to all noble Lords who have spoken in this debate, but the fact is that the clause as it stands is rightly seen by academics and students in Wales as a Trojan horse. There is no doubt that the Assembly government would like to use their financial muscle to shape higher education in Wales as they think fit. We have ample words from the Minister herself. The question is, is that the right way to go about achieving these ends? I doubt it very much. The impression that has been given is that the Minister is riding roughshod over the institutions of higher education. They do not like it and I do not like it either. I have a feeling that the House will not like it. I wish to test the opinion of the House.
"(a) to include among the general provisions of the plan any provision referring to particular courses or to the manner in which courses are taught, supervised or assessed, or (b) to include any provision"
"REVIEW OF DECISIONS MADE BY RELEVANT AUTHORITY Regulations made by virtue of section 35, 36(3)(b) or 37(3)(b) must include provision (a) requiring any decision of the relevant authority under section 35, 36 or 37 affecting the governing body of an institution to have effect in the first instance as a provisional decision, (b) enabling the governing body of the institution to apply for a review of the provisional decision to a person, or panel of persons, appointed in accordance with the regulations (i) in relation to England, by the Secretary of State, or (ii) in relation to Wales, by the Assembly, (c) enabling the Secretary of State or the Assembly to pay remuneration and allowances to any person so appointed, (d) prescribing the grounds on which an application for the review of a provisional decision may be made, and (e) requiring the relevant authority to reconsider its provisional decision having regard to any recommendation of the person or panel."
The noble Baroness said: My Lords, I am very grateful to the noble Lords, Lord Sutherland, Lord MacGregor and Lord Norton, for tabling an amendment at Report which sought to give institutions a right of appeal against a decision by the director. Having discussed the issue with the noble LordsI am most grateful for the time they have given meand having read the report of the Select Committee on the Constitution, which we hold in high regard, I said at Report that I accepted the principle that it should be possible for an independent panel to make the director think again about his decisions and promised to come back at Third Reading with a government amendment.
I should say at the outset that I do not expect any review procedure to be much in demand. I hope that the need for such a mechanism will arise very rarely, if at all. I have every confidence that the director will make careful and well considered judgments, and I am also sure that institutions will not appeal to the review body lightly. However, there was consensus in your Lordships' House that there should be some form of extra safety net, which this amendment provides.
The amendment allows for a review of the director's decisions. It specifies that regulations must provide that the director's decision is, in the first place, provisional. If an institution wishes to contest that provisional decision, it may appeal to a panel to review it. That panel would be appointed by the Secretary of State. Any appointment to the panel would be made under the Nolan rules and would therefore be subject to scrutiny by the Commissioner for Public Appointments.
We will put in regulations the grounds on which a review could be demanded, and will need to secure detailed advice on this from legal advisers. However, I can say that we would expect the grounds for review to include: new facts that had come to light since the
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director took a decision; the director's having ignored any relevant fact; and the director's decision being manifestly disproportionate or unreasonable.
I shall give an illustration of that last point. If the director were able to impose a sanction on an institution for non-compliance with its plan, and the institution felt that it had taken all reasonable steps to comply, I believe that that would constitute potential grounds for review. There is a clear correlation here with the amendment we have already accepted from the noble Lord, Lord Butler, who is not in his place, and now at Clause 36(2), providing that an institution should not be liable to sanction if it has taken all reasonable steps to comply with the provisions of its plan.
The panel would look at the director's decision and, if it felt it appropriate, ask the director to reconsider his decision. This regulation must require the director to reconsider his decision, having regard to the panel's recommendation. I assure noble Lords that that gives the panel teeth. The director cannot ignore what the panel says. It is quite clear in law that he actively has to reconsider the original decision, giving due weight to the panel's recommendation. Were he not to do so, any future judicial review would take that into account.
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