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So far, I am not convinced that we have anything to hold on to in ensuring that this power will not become exercisable by all, or nearly all, FE colleges. We need some minimum threshold for the number of students pursuing HE courses in further education colleges before they move to validating their own higher education programmes in the shape of foundation degrees. There needs to be a significant number of such students to provide an appropriate environment for them and the economies of scale necessary to provide the appropriate library, laboratory and IT facilities cost-effectively. However, I strongly welcome the Government’s proposal for what is, basically, a six-year probationary period. It is a step in the right direction.

I am also glad to hear that further education colleges will not get the powers established by Clause 19 without having some articulation arrangements. However, there is no requirement in the Bill; as speakers from all sides of the House have made clear, that is what we need. Reiterating what others have said, I hope that the Government will come forward at Third Reading with an amendment that puts it in the Bill.

Having worked closely with the Association of Colleges for some years, I hate to say this, but I find some of its briefing a little worrying. Of course, as the noble Baroness, Lady Morris of Bolton, has said, many students who do foundation degrees do not want to progress to honours degrees, but many want to. The AoC also claims that, although some students may want to progress in another direction, they do not want to do honours degrees. Again, this is true; they may want to acquire professional qualifications instead. However, many universities are providing just such programmes to achieve professional qualifications, especially the post-1992 ones. There should be an articulation between foundation degrees and these sorts of qualifications, as well as appropriate honours degrees. I strongly support what others have said about the need for further thinking about this.

Given the Government’s commitment to rigorous quality controls, it seems odd that further education colleges will not only be able to validate their own degrees but will eventually be able to validate the degrees of other institutions and form consortia of FE colleges to do that for them. That takes FE colleges away from their main mission of delivering level 2 and 3 qualifications to the many hundreds of thousands of young people and adults who need them to gain satisfactory jobs and to have worthwhile careers in our economy, where these skills are in all-too-short supply. I have to confess that I found it a little hard to follow everything that the Minister was saying about what is being put into the guidance. I feel that all the concerns that my noble friend Lady Warwick expressed are valid. Frankly, I do not think that we should ever give FE colleges the role of franchising. I do not think it is part of their mission to undertake such work.

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I strongly support proposed new subsection (6D) of the amendment tabled by the noble Lord, Lord Dearing, and Amendment No. 44, which the Government brought forward, for which I am grateful to them. However, such a review should be independent, and that should be provided in the Bill. It should not be done by civil servants in the Department for Education and Skills, however much I respect those officials. Will the Minister confirm that it is the intention that this review should be independent?

Such a review should look at the impact of Clause 19 on FE colleges in a very general way. It should not simply be about the quality of foundation degrees. The review should look at the clause’s effect on the mainstream work of further education, on the vocational programmes that they provide for adults and young people below level 4 and on important areas such as basic skills courses for adults. As the noble Lord, Lord Dearing, said, there is a long and rather sad history of post-school education institutions neglecting their lower-level work or even dropping it as soon as they are encouraged to start focusing on higher-level qualifications. Were that to happen, it would be a disaster for our FE college system and indeed for the nation.

6.45 pm

Any review should also look at the clause’s effect on universities. The Minister said that he did not think that existing partnerships would be endangered. I am puzzled as to why he thinks that they will not be, because—this certainly would apply in my own institution—were some of the FE colleges with whom we are in partnership to decide to validate their own foundation degrees, it would damage our partnership. They would float off to do it on their own. I am not sure what the basis of my noble friend’s claim was. A review needs to look at the wider questions of the clause’s effect on post-1992 universities. We must remember that those universities have invested a great deal of time, effort and resources into foundation degrees and in collaborating with the FE system. By encouraging further education colleges to become direct HE providers, rather than continuing with the well established system that we have—which I think is working well, contrary to what some further education college principals have claimed—we could well undermine those very universities in a quite deep and unfortunate way.

We have to be aware that the number of qualified students coming forward to fill places for foundation degrees and even for honours degrees is growing pretty slowly. There are now as many places to fill as there are qualified students to fill them. What do the Government believe will happen when the anticipated demographic downturn takes place? I have enormous sympathy with the vice-chancellor of Bolton University, who has argued that widening participation in higher education through FE may destroy the capacity base of widening participation universities such as Bolton to deliver the Government’s agenda. Universities rightly have to compete to recruit students. I have nothing against that; it is absolutely fine. However, I question whether we should be introducing, developing or creating

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a divided market between FE and universities when demographic decline is predicted. FE colleges validating their own foundation degrees will understandably want to build their HE capacity. Who can blame them? This could lead to some new universities undershooting on their HEFCE contracts and having to be shored up by HEFCE, at considerable cost to the taxpayer. It could also, of course, lead to them being forced to make substantial redundancies, which will also add to the taxpayer’s costs.

Surely what we want to see in our post-school educational system is a coherent system with clarity about the role of different institutions. Clause 19 reduces that clarity by muddling the roles of further education colleges and higher education institutes. At a time when we want to see the ambitious targets set by the Leitch report on intermediate-level qualifications being met by further education colleges, it encourages them to expand in a quite different direction. Moreover, it could leave some widening participation universities seriously exposed. I hope, therefore, that the Minister will agree that any future review, interim or final, will reach beyond the very important questions of quality, progression and franchising to these wider issues.

Baroness O'Neill of Bengarve: My Lords, do the Government object to putting in the Bill a provision stating that those FE colleges that have the power to award foundation degrees should have an articulation agreement with one or more HEI, to ensure that students who successfully complete the foundation degree are entitled to progress to an honours degree? That question goes to the heart of many of the worries. Although the Minister gave considerable assurances, I do not see that in his amendments and I wonder whether the Government object to putting that into the Bill.

Lord Adonis: My Lords, when I presented the government amendments, I spoke for 22 minutes, which had my noble friend the Chief Whip scurrying into the Chamber, wondering whether I was launching a filibuster against my own Bill. I dealt with virtually all the points raised—I did not necessarily persuade noble Lords—but I did present the Government’s case, so I hope that the House will forgive me if I do not reply again to them. I want to go to the heart of the issues in the amendment tabled by the noble Lord, Lord Dearing, around which the debate has focused, and summarise where I think we are.

I took the noble Lord to say that he believed that we were broadly there on student voice, on a probationary period for further education colleges in being awarded degree-awarding powers in the first instance, and on franchising, subject to him studying carefully the long explanation that I gave on how the arrangements will work and the controls that will be in place. The fourth issue was articulation agreements, in respect of which I believe that we have in place the most robust requirements in what we will say in the QAA’s draft criteria document, which I shall make available to noble Lords shortly. However, I hear all

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the points made by the noble Lord, Lord Dearing, and others, and undertake that my honourable friend the Minister for Further and Higher Education and I will consider them further to see whether it might be advantageous to have something in the Bill when we come back on Third Reading.

The review after four years was warmly welcomed on all sides. My noble friend Lady Blackstone asked whether it would be independent and whether the scope could be broadened. I undertake that we will consider both those issues, and I will return to the House on them later.

The only other point on which I think I should respond now is that of Wales; having not been able to give an answer in respect of Wales earlier, I certainly do not feel that I can let it pass a second time. The noble Baroness, Lady Morris, asked whether Clause 26 would be wide enough to allow the National Assembly for Wales to pass measures similar to Clause 19. The answer is no. She is correct that Westminster would need to legislate for that to be possible, unless an Order in Council were made to give the National Assembly the measure-making power. However, it is not the policy of the National Assembly to take that power at present, so the issue does not arise.

On that basis, I hope that the noble Lord, Lord Dearing, will feel able not to press his amendment.

Lord Dearing: My Lords, I am grateful to the Minister for what he has said. He understands fully the arguments that have been made for getting the articulation agreement, especially, into the Bill. It is not something that has validity for only six years, but is a perpetual requirement. On the basis that he shows that there is to be thought, I will gladly not press Amendment No. 43.

On Question, amendment agreed to.

Lord Adonis moved Amendment No. 42:

Clause 19 , page 14, line 18, at end insert—

“( ) In subsection (6) (power of institution to determine appropriate course of study etc) for “It” substitute “Subject to subsection (6A) below, it”.

( ) After subsection (6) insert—

“(6A) An order under subsection (1) above specifying an institution as competent to grant in pursuance of this section only the kind of award mentioned in subsection (2A) above may provide that the institution is not to grant such an award to a person unless he was enrolled at the institution at the time he completed the course of study for which the award is granted.””

On Question, amendment agreed to.

[Amendment No. 43 not moved.]

Lord Adonis moved Amendment No. 44:

After Clause 19 , insert the following new Clause—

“Report

Within the period of four years beginning with the commencement of section 19, the Secretary of State must lay before Parliament a report about the effect of that section.”

On Question, amendment agreed to.

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Clause 20 [Powers of a further education corporation to form or be involved in certain bodies corporate]:

Lord Adonis moved Amendments Nos. 45 and 46:

Clause 20 , page 15, line 13, leave out from “ending” to “the” in line 14 and insert “immediately before the coming into force of this section,”

Clause 20 , page 15, line 15, leave out “include” and insert “have included”

On Question, amendments agreed to.

Clause 21 [Consultation by governing bodies of further education institutions]:

Lord Adonis moved Amendments Nos. 47 and 48:

Clause 21 , page 15, line 25, leave out “and” and insert “or”

Clause 21 , page 15, line 28, leave out from “section” to “to” in line 29 and insert “about consultation with persons falling within paragraph (a) of subsection (1) must provide for the views of such a person”

On Question, amendments agreed to.

[Amendment No. 49 not moved.]

Clause 24 [Duration of levy orders]:

Lord Adonis moved Amendment No. 50:

Clause 24 , page 17, line 25, leave out from “specify,” to “period”)” in line 26 and insert “for each levy period, a period (in this Act referred to as a “base”

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 51 to 55 and 58 to 66. Current practice is for industrial training boards to submit proposals for levy orders annually—indeed, we debated two orders only last week—but levy rates have remained unchanged for a number of years. Consequently, Clause 24 amends Section 11 of the Industrial Training Act 1982 so that, where an industrial training board wishes to raise a levy, it must, subject to some exceptions, submit levy proposals covering a three-year period.

Schedule 1 makes amendments to other provisions in the 1982 Act in consequence of the changes to a three-year levy order model. Schedule 2 repeals certain provisions of the 1982 Act in consequence of the changes to be made by Clauses 23 and 24. Those proposed changes were welcomed in Grand Committee. The proposals are of a purely technical and drafting nature. They make some minor adjustments to the drafting of Clause 24 and the consequential amendments to the 1982 Act, to ensure that the drafting is consistent overall and that all the necessary consequential changes have been made. I stress that the changes do not alter the intended effect of Clauses 23 or 24 or the consequential amendments made to the 1982 Act. I beg to move.

On Question, amendment agreed to.

Lord Adonis moved Amendments Nos. 51 to 55:

Clause 24 , page 18, line 2, at end insert “for securing”

Clause 24 , page 18, line 9, after “proposals” insert “for securing”

Clause 24 , page 18, line 10, after first “levy” insert “payable”

Clause 24 , page 18, line 16, leave out “a person was not exempted” and insert “that person was not exempted under that order”

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Clause 24 , page 18, line 18, leave out third “the” and insert “a”

On Question, amendments agreed to.

Clause 25 [Powers of a higher education corporation to form or be involved in certain bodies corporate]:

Lord Adonis moved Amendments Nos. 56 and 57:

Clause 25 , page 19, line 5, leave out from “ending” to “the” in line 6 and insert “immediately before the coming into force of this section,”

Clause 25 , page 19, line 7, leave out “include” and insert “have included”

On Question, amendments agreed to.

Schedule 1 [Amendments]:

Lord Adonis moved Amendments Nos. 58 to 65:

Schedule 1 , page 23, line 16, after “(3)” insert “—

( ) after “must include” insert “, in relation to each levy period,”;”

Schedule 1 , page 23, line 16, leave out “a” and insert “that”

Schedule 1 , page 23, line 16, at end insert—

“( ) after “they provide” insert “, in relation to each levy period,”.”

Schedule 1 , page 23, line 17, at end insert—

“( ) after “may include” insert “, in relation to any levy period,”;”

Schedule 1 , page 23, line 19, leave out “a” and insert “that”

Schedule 1 , page 23, line 33, leave out “a” and insert “each”

Schedule 1 , page 24, line 6, leave out “a” and insert “each”

Schedule 1 , page 24, line 9, leave out “in respect of a levy period”” and insert “by virtue of the resulting levy order””

On Question, amendments agreed to.

Schedule 2 [Repeals]:

Lord Adonis moved Amendment No. 66:

Schedule 2 , page 25, line 26, after “organisations”” insert “and the “and” preceding that definition”

On Question, amendment agreed to.

Mental Health Bill [HL]

6.57 pm

The Minister of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.

Clause 39 [Mental Capacity Act 2005: deprivation of liberty]:

Baroness Barker moved Amendment No. 73:

Clause 39 , page 35, line 25, at end insert—

“(6) P may not be deprived of liberty unless P has been examined and assessed by a registered medical practitioner who is responsible for his care and is satisfied that the following requirements are met—

27 Feb 2007 : Column 1562

(a) P has been found to lack mental capacity; (b) the deprivation of liberty is necessary for P’s health or safety; (c) P’s condition is of a nature and degree that requires deprivation of P’s liberty and that the restriction of P’s freedom is proportionate to the expected benefit to P; (d) there is appropriate care or treatment available that will benefit P.

(7) Where P has been deprived of his liberty, such deprivation shall not continue unless P’s underlying condition remains of a nature and degree that requires such confinement.”

The noble Baroness said: My Lords, in the absence of my noble friend Lord Carlile, who is away due to commitments to do with his role in relation to terrorism, it is my privilege to move Amendment No. 73 on his behalf. The Minister will probably have guessed that this is a probing amendment. It relates to concerns that have been voiced at earlier stages in our debates by, among others, the noble Baroness, Lady Knight of Collingtree, and my noble friend Lord Carlile. It reflects a concern about people who may lack capacity and be discharged from hospital, perhaps into a residential or nursing home, and who may at that point be incapacitated, temporarily or for a longer duration.

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