---

Lord Forsyth of Drumlean: My Lords, perhaps the Minister can clarify a possibly "daft laddie" question. On the face of it the provision seems welcome. However, would the appeal procedure include the right to appeal any financial penalty? I understand the Minister's point about particular decisions, but will that encompass the right to question particular fines or sanctions?

Baroness Ashton of Upholland: My Lords, yes, indeed, it would. That would be a matter of proportionality. The issue that is not covered in this amendment is appeal against approval. On accepting the amendment of the noble Baroness, Lady Perry, we deleted the regulation-making powers in this clause for the approval of plans. I am not able to bring forward an amendment to appeal a measure that we no longer have in the Bill as that would be against the rules.

The amendment also gives the Secretary of State the power to pay the panel. We think that that payment should be assessed according to the time spent carrying out a review as we expect reviews to be very infrequent. Noble Lords will have noticed that the amendment covers decisions made by the relevant authority in Wales.

I hope that the amendment addresses the concerns raised by noble Lords. I am very grateful to those noble Lords who have worked with me on this matter, if I can put it like that. I hope the House agrees that the measure provides greater security for institutions. I believe that the principles of reasonableness and fairness, which we have always maintained were our intentions, are now very clear on the face of the Bill. I beg to move.

Lord Sutherland of Houndwood: My Lords, I warmly welcome what the Minister said on the matter. In the
 
22 Jun 2004 : Column 1174
 
light of what she had to say, I welcome the acceptance of the principle of a review or appeal procedure being inserted into the Bill. I, too, hope that the mechanism will be used rarely and that discretion will be used by universities and that the director will act in a way that will not provoke the need for appeals. None the less, it seems to us—I am glad that this has been accepted—that in the interests of justice being done and being seen to be done one can reasonably look for an appeal and review procedure.

The matter was debated in a civilised fashion in Committee and informally. I appreciate the exchanges that have taken place and the support of colleagues, particularly that of the noble Lord, Lord MacGregor, in framing the measure. I particularly welcome the mention by the noble Baroness of appointment according to Nolan rules and the itemisation of the grounds on which an appeal might be heard—that new facts are available that were not reasonably available previously; that facts may have been ignored or perhaps overlooked; and particularly the point about disproportion. I was pleased that the noble Lord, Lord Forsyth, clarified the fact that that might apply also to the level of penalty that is imposed.

The new clause makes provision for such a review. Clearly, the devil will be in some of the detail. We shall listen with great interest to what is said in due course if the new clause is accepted. The detail of the regulations will be critical but the noble Baroness has put matters on the record which are of great importance. I thank the noble Baroness and the Government for moving on this matter.

Lord MacGregor of Pulham Market: My Lords, I, too, thank the Minister not only for the way in which she has responded so positively to the debate but also for the way in which she engaged us fully in the discussions prior to the new clause being tabled. If I may say so, that is an example of this House at its best. I hope that the outcome is satisfactory to everyone.

I had intended to raise two points but I need to raise only one because the Minister has already dealt with one of my concerns, which was to ensure that the Nolan rules applied to the selection of whoever deals with the appeal. The Minister gave a clear guarantee that that will be the case.

The only other point I wanted to raise was in relation to the grounds on which an application can be made. I listened carefully to what the Minister had to say but obviously the regulations will contain more detail on the matter. I hope that they will not be too narrowly drawn so that they replicate almost what could happen with a judicial appeal, except that, of course, the process will be faster and less costly. I hope that the matter will go wider than that. We shall certainly want to consider the regulations when they are drawn up. I thank the Minister again for the way in which she responded to the debate.

Baroness Warwick of Undercliffe: My Lords, I am delighted that the Government have brought forward this amendment. I congratulate the noble Lord, Lord Sutherland, who has pursued the matter with such
 
22 Jun 2004 : Column 1175
 
determination. I also congratulate the noble Lord, Lord MacGregor, who spoke to it so cogently on Report. Given the powers that OFFA will have to fine institutions and prevent them charging fees, an appeals mechanism is vital. It was difficult to come up with a solution that was not just as expensive and potentially as time consuming as the original proposal of judicial review. I believe that the measure before us will be satisfactory in that regard. It explains why the decision of the appeals panel will not be binding. If it were legally binding, it is likely that the scheme would have offered no advantages over judicial review. I look forward to hearing how the Minister proposes to take the measure forward in regulations. I hope that the Minister will confirm that she will consult sector bodies before bringing forward the necessary regulations.

Lord Norton of Louth: My Lords, I, too, welcome the amendment. Like my noble friend Lord MacGregor, I appreciate the work that the Minister has done in order to bring the amendment forward and also what she said for the record in moving it.

As I said on Report, I believe that it is one of the most important changes needed to the Bill. It addresses some of the concerns that universities have about OFFA. It will ensure that, if universities believe that the Director of Fair Access has not met the criteria to be stipulated in regulations, there is a body to which they can have recourse. Judicial review, as I argued on Report, is not sufficient: it is too narrow in scope, time consuming and expensive.

The mechanism that is created by the new clause is not a full-blown independent appeals process. The appeals body will not be able to overturn the decision of the director. What is created is essentially an independent review procedure—a fact recognised in the wording of the clause. The decision can be referred back to the director. The Minister and I have had interesting discussions on the legal effect of the provision "to have regard to". The director may be required to think again—to reconsider, as the Minister said—but the appeal body cannot overturn the decision. The provision may not go so far as I would wish but I acknowledge that it represents a significant step forward.

My noble friend Lord MacGregor and I have a particular interest in the subject of an appeals process deriving from our membership of the Constitution Committee. The committee issued its report on the regulatory state in May and included a chapter on the means of appeals from the decisions of regulators. For the reasons given in the report, which I summarised on Report, there is pressure for the decisions of regulators to be subject to an appeals process on the merits of the case, not least because of Article 6 of the European Convention. This amendment is therefore an important move in that direction. As we recommend in our report, there is a need for the Government to take what we describe as a "whole of government" view of regulation. I hope that there will be a generic template for new regulatory regimes, which will include an
 
22 Jun 2004 : Column 1176
 
appeals process on the merits. Though I would prefer a full-blown independent appeals process, I none the less very much welcome the new clause that the Minister has brought forward.

Baroness Ashton of Upholland: My Lords, I am very grateful for the welcome given to the amendment, and shall briefly respond to a couple of the points raised. I can tell the noble Lord, Lord MacGregor, that the regulations will be subject to affirmative procedure, so we will have the opportunity beforehand to make sure that we continue to fulfil the obligations that we have set out. I am sure that he will have a contribution to make, to which I shall look forward. I say to my noble friend Lady Warwick that we will, of course, talk to sector bodies, as she indicated would be important.

I confirm to the noble Lord, Lord Norton, that I have checked again with the lawyers to make absolutely certain what the process would be. It is clear that the obligation set out means that the director has no choice but to look at the original decision again and examine very carefully the issues that the panel has raised. In the light of that consideration, he would have to make the final decision. If he did not take account of the views of the panel, the institution could apply for a judicial review of the director's decision. If the panel had identified procedural failure by the director, that would in itself furnish a reason for judicial review. I hope that we have covered the point as carefully as we can. I am happy to continue the dialogue, because the issue is important.

It is extremely nice to see the noble Lord, Lord Sutherland, in his place and to see that he looks to be fully recovered. Once again, I say how grateful I am for the work of the noble Lords to whom I have referred in helping us to get to this position.

On Question, amendment agreed to.

---