§ 5 Clause 29, page 14, line 4, at end insert "who shall be subject to the principles of the Civil Service Commissioners' Recruitment Code"
§ 5A The Commons disagree to this amendment for the following reason—
§ Because the recruitment code of the Civil Service Commissioners is not appropriate to the appointment of the Director of Fair Access to Higher Education.
§ Baroness Ashton of Upholland
My Lords, I beg to move that the House do not insist on its Amendment No. 5 to which the Commons have disagreed for their reason numbered 5A. In doing so, I shall speak also to Amendments Nos. 15, 16, 17, 19, 20 and 23.
Amendment No. 5, with which the Commons disagreed, would make the Secretary of State subject to the principles of the Civil Service Commissioners' recruitment code in appointing the Director of Fair Access. The Commons disagreed with this because it is not the appropriate code for that appointment. The director will not be a civil servant; he or she will be appointed by the Secretary of State. The appropriate guidance for this appointment is that of the Commissioner for Public Appointments.
The House of Lords Select Committee on the Constitution said in its report, The Regulatory State, that,we recommend that Ministers should remain responsible for appointing regulators, subject to Nolan rules, to ensure proper responsibility and accountability".We agree with that and we intend to follow the appropriate code of practice for this appointment. It is for this very sensible reason that those in another place chose to reject the amendment, and 1 hope that it will not be pressed.
I turn to Amendment No. 15, to which the Commons have disagreed for their reason numbered 15A. As I said when this was last debated in your Lordships' House, the amendment causes considerable difficulties which I shall summarise very briefly. First, it would remove the power of the 382 director to issue guidance to institutions. This would make it very difficult for institutions to work out what to put in their access plans. Secondly, it would remove the regulation-making power in respect of the approval of plans. Noble Lords will be pleased to see that we want to go even further than the recommendations made by the Delegated Powers and Regulatory Reform Committee and make the regulations in respect of the approval of plans subject to affirmative resolution. I shall expand on that later.
The return of the regulation-making power under this clause will also enable us to introduce a review procedure for approval decisions, completing the structure of the amendment agreed by noble Lords in respect of variation of plans and sanctions.
Thirdly, Amendment No. 15 would imply a duty on institutions to provide a strategic plan to the funding councils, which we believe would place a bureaucratic burden on institutions in perpetuity. The amendment also raises the problem of what would happen if the relevant authority wished to approve a plan, but the funding council had not approved the overall strategic plan or vice versa.
In short, the Government believe that it is desirable to require separate plans for the purposes of fees provisions and that those plans should be approved only by the relevant authority. I hope that noble Lords will agree.
I turn to Amendment No. 16, disagreed with by the Commons for their reason numbered 16A. It is inappropriate to confer a regulation-making power on either the Higher Education Funding Council for England or the Higher Education Funding Council for Wales. This amendment is closely tied to Amendment No. 15 and would give regulation-making powers to the funding councils on the duration of plans.
It is not impossible for the funding councils to make regulations but, as I have said previously, it is hardly conventional. The convention is that either the Secretary of State or the National Assembly for Wales would make such regulations. It is not right that institutions should have to provide access plans as part of their strategic plans. Noble Lords will know that we have sought all along to minimise bureaucracy rather than add to it. Therefore it is not right that the funding councils should decide the length of access plans.
Noble Lords will have seen that our draft regulations set the maximum duration of plans at five years. It is only a maximum and a university may propose whatever period it wishes to facilitate coherence with their own plans. I hope that the amendment will not be pressed.
The Commons have disagreed with Amendments Nos. 17 and 19 for their reasons numbered 17A and 19A. The Commons believe that it is desirable that the Director of Fair Access to Higher Education should have the power to enforce the general provisions of an English approved plan, and that the relevant authority should have a corresponding power in respect of a Welsh approved plan. These amendments would mean 383 that the director would not be able to sanction an institution for any breach of the general provisions of its plan—which includes any measure in the plan beyond those relating to fee limits. In England, that would include the measures it will take to encourage more applications from under represented groups, such as the provision of bursaries or outreach activities.
I think I made it clear when we last debated the issues that I was concerned about these amendments. It has always been clear that sanctions would be a rare occurrence, if they are used at all, but it is important that they should be a possibility if plans are to be of real substance.
What we have asked is that in return for charging higher variable fees, institutions must reinvest some of the extra income in outreach and financial support. As a result of the very helpful discussions in this House, safeguards for institutions regarding sanctions have been added to the Bill, which I believe create a sensible framework for access plans. I want to express my thanks in particular to the noble Lord, Lord Butler, for the amendment he tabled which we were able to accept in principle before returning with our own amendment.
Equally, I am grateful to the noble Lords, Lord Sutherland of Houndwood, Lord MacGregor of Pulham Market and Lord Norton of Louth, who enabled us to consider a review by a third party. The thoughtfulness and wisdom of noble Lords in these areas have been extremely helpful. I am pleased that the Commons have accepted these safeguards, which are important elements of the Bill. Moreover, I hope that noble Lords will share in my delight that the Commons have accepted a number of other amendments made by noble Lords during the course of our detailed consideration.
However, the noble Baroness, Lady Howe, may be disappointed that another place did not accept the amendments tabled in her name. I can assure her of my sincere gratitude for her contribution to this Bill, not least in her suggestion, which we accepted, to give the director a role in promoting and identifying good practice. As I have said, that was accepted in another place, along with its extension following the amendment moved by the noble Baroness, Lady Sharp, relating to part-time students.
I am also grateful for the contribution made by the noble Lord, Lord Forsyth, and other noble Lords, who argued powerfully in favour of the provisions for academic freedom, which the Bill now contains. Many noble Lords feel passionate about this issue. Lastly, I offer particular thanks to my noble friend Lady Warwick of Undercliffe. The Bill now specifically excludes admissions from the director's remit and from regulations on the content of plans.
Briefly, I turn to Amendment No. 20. Changes were proposed in another place to clarify and strengthen the safeguards introduced by noble Lords. This amendment came about as a result of debate in this House and I am grateful to noble Lords. Although I 384 needed some persuading, I was won over by the arguments of noble Lords who made a powerful case for a review mechanism. The Commons were also persuaded, I am glad to say, and have sought to increase the scope of the amendment that I originally tabled to cover decisions in respect of the approval of plans. That is one of the reasons it is important not to insist on Amendment No. 15, which would make these important Commons amendments impossible. I am sure noble Lords agree that, if the principle of a review is right, then it must surely apply to decisions not to approve plans, the financial implications of which would be substantial. I hope noble Lords will join me in welcoming Amendment No. 20.
As to Amendment No. 23, I recognise the concerns that the House has had about regulation-making powers. I agree that they should be granted with care. As I said earlier, we accepted the recommendation of the Delegated Powers and Regulatory Reform Committee, and amended the Bill accordingly, when your Lordships were considering the Bill in Committee.
But we have recognised that some noble Lords—in particular the noble Baroness, Lady Warwick—were concerned about regulations relating to the approval of plans, and we now wish to go further than the Delegated Powers and Regulatory Reform Committee. We therefore tabled an amendment during debate in another place to bring the regulation-making power in respect of the approval of plans under the affirmative procedure. We recognise that this is an important regulation-making power, as did the Commons, and I hope that noble Lords will welcome the assurance that any regulations made under this clause will now be debated.
I should add that this procedure applies to England. The procedures in regard to regulations are different in Wales.
I hope that I have covered all of the amendments successfully.
Moved, That the House do not insist on its Amendment No. 5 to which the Commons have disagreed for their reason numbered 5A.—(Baroness Ashton of Upholland.)
§ Baroness Perry of Southwark
My Lords, I thank the Minister for the way in which the role of OFFA was greatly changed and improved in this House thanks to her listening to and considering, with her usual courtesy and commitment, the suggestions that were made. We now have an OFFA in the Bill which is very much closer to the one originally recommended by the Schwartz review—one which has promotional powers, a right of appeal against its decisions and so on. This makes it much more acceptable to academics in the system.
As the Minister anticipated, I am of course disappointed that neither she nor the Government in another place were able to accept all the amendments that this House approved. 385 I still find it puzzling that the recruitment code of the Civil Service Commissioners is thought not to be appropriate as it has been applied in other public appointments. However, we are not inclined to do more than note that—and warn, perhaps, that we shall watch very closely who is appointed. My motivation in moving the amendment was to ensure that we did not get a crony or a creature of the Secretary of State, and we shall watch very carefully to ensure that that does not happen.
As the Minister said, Amendments Nos. 15 and 16 together would have required a different kind of procedure, and I am sorry that universities will now be subjected to the double bureaucratic requirement of having to submit two sets of plans. Amendments Nos. 15 and 16, as passed in this House, would have ensured that access plans were submitted as part of the already required strategic plans of universities, where I believe they belong. I think it will be very difficult to plan access arrangements without putting them into the context of all the other plans for student numbers, finance and so on.
Amendment No. 15 clearly left the power for approval of the plans with OFFA. It would have ensured that the plans would be submitted to the funding council and passed on to OFFA. The universities will have to live with the double bureaucracy, and I regret that. Again, the system will have to be monitored as the procedures are put into train.
I am most of all sorry that Amendments Nos. 17 and 19 were rejected. I am particularly sorry that the Minister in the other place argued that the Lords amendments would remove from OFFA the power of sanction if an institution reneged on the commitment in its plans in respect of the fees that it would charge and the bursaries that it would give. Our amendments most clearly did not remove that power. We were most careful to ensure that OFFA, through HEFCE, was left with the power to sanction universities which reneged on their financial commitments, as it is proper it should do. Our amendments would simply have removed OFFA's powers to recommend to HEFCE unlimited fines on universities for very ill-defined offences.
I have asked before—and I repeat it because it bears consideration and thought on the part of the Minister and her department—that if a university, for example, puts in its plans that it will visit 100 inner-city schools and then discovers that 20-odd of those schools are not willing to accept visits and it can therefore visit only 70-odd schools, will the university then be liable to sanction? Will OFFA recommend to the funding council that it should have part or all of its grant removed?
I ask the question because, as was made clear by the chief executive of HEFCE when giving evidence to the House of Commons Education and Skills Committee last March, HEFCE already has powers to regulate and to punish universities which do not have adequate access plans. He said that HEFCE has powers to 386 withhold funds from them and powers to punish them by putting in new regulations about what they must do the following year.
Given that there will be two authorities with the power to punish universities, can the Minister confirm that, if we accept the other place's rejection of these amendments, the power to punish on access will be removed from the funding council and kept solely within OFFA? It would be absolutely monstrous for universities to remain subject to this kind of punitive action from two different directions.
I am very disappointed that these powers remain in the Bill. I look forward to the Minister's response to my questions.
§ Baroness Warwick of Undercliffe
My Lords, I agree with the first point made by the noble Baroness, Lady Perry, and I thank the Government for the many significant concessions they have made on the working of OFFA. Universities UK also identified a number of concerns about the original proposals. I am satisfied that all of them have been addressed, with the exception of the provision relating to the promotion of higher education in Wales.
I very much welcome Amendments Nos. 20, 20A and 20B, which have been accepted in another place. They create an appeals mechanism for OFFA and subject the regulations in Clause 32 to affirmative procedures. As other noble Lords have said in this and previous debates, I very much appreciate the way in which my noble friend the Minister has listened to my concerns and those of other noble Lords during the passage of the Bill. I thank her most warmly.
§ Lord Forsyth of Drumlean
My Lords, I share the disappointment of my noble friend Lady Perry that the Government have not been able to make the extra leap which would have completed the task she set herself. Her mission was to change the character of OFFA from one of an organisation with a big stick to one which worked positively with the grain, which I believe is there in the universities, to widen access.
In fairness to the noble Baroness, Lady Ashton, the Minister, and to the noble Lord, Lord Triesman, the Government have come quite a long way down the route in their consideration of her amendments and her arguments. Perhaps modesty forbade my noble friend from drawing too much attention to that. I am certainly grateful to her and to my noble friend Lord MacGregor, who worked so hard on the appeals mechanism that has now become an independent review mechanism. I recall raising this—if I am allowed to mention private meetings with the Minister—and being told to think of some scheme that will work. I was extremely grateful to my noble friends Lord Norton and Lord MacGregor for having the aptitude to come up with a scheme which not only worked but satisfied the civil servants within the Minister's department, because I know that her heart was in the right place on this. 387 12.30 p.m.
I should like to say to the noble Baroness, Lady Warwick, that it is interesting, is it not, that these amendments on academic freedom, appeal mechanisms and the structure and functions of OFFA have been accepted in this place and not in the other place? Credit must be given to the Members of this House on the Cross Benches and the Liberal Democrat Benches as well as our Benches who worked together to draw attention to the deficiencies in the Bill and had the Gatling gun with which to bring down the Government's position if required.
Although I commend the Government for accepting the amendments, it is a little depressing that in the other place so few amendments were made in the initial consideration of the Bill. As my noble friend has pointed out, I had the impression from reading the speech of the Minister for higher education that he may have been looking at the wrong speaking note when he responded to some of these amendments. I could not quite reconcile what the amendment said with what the Minister was saying. I know that his officials would not have left him completely unbriefed, so I can only imagine that he was dealing with an old copy of some papers, or whatever. Or perhaps he did not show the dedication and commitment to detail that the noble Baroness, Lady Ashton, has shown throughout the Bill's stages. I hope that that remark is not too damaging to her. My impression is that some of the Ministers in another place do not read the proceedings in this place, so she may be protected from any action in that respect.
I share my noble friend's disappointment that the Government have not been prepared to accept, in particular, the amendments to which she drew attention. However, the Minister has done very well in persuading her colleagues to make very substantial improvements to the regime. I think that we would be better off without it altogether, but we are content to leave that to the electorate to decide.
§ Baroness Sharp of Guildford
My Lords, I, too, welcome Amendments Nos. 20, 20A, 23 and 23A, which carry through the appeals mechanism and the affirmative resolution issue that we debated at some length. I am delighted to see both those provisions incorporated into the Bill.
I share a lot of the disappointment expressed by the noble Baroness, Lady Perry, at the fact that the Government have not seen fit to accept at least the spirit of her Amendments Nos. 15 and 16. It seems to me very sensible that OFFA should have been aligned with HEFCE and that the procedures requiring plans should have been aligned with the overall strategic plans required by universities. These two aspects should work together. I have argued right from the beginning that it is all very well saying that HEFCE is a funding organisation and OFFA is regulatory, but in many of the ways in which the system works, HEFCE is, and remains, a regulatory organisation. As the noble Baroness, Lady Perry, pointed out, it already imposes considerable sanctions if universities do not act in accordance with its guidance. 388 Nevertheless, we are where we are. As a result of the debates and the amendments which were accepted in this House, the face of OFFA has been changed considerably. It moves from being a vindictive and punitive organisation to one that has the makings of helping universities to develop plans to widen participation and open up access to students who may not traditionally have attended university. I look forward to seeing how this organisation works out over the longer term. Like the noble Lord, Lord Forsyth, and the noble Baroness, Lady Perry, I assure the Government that we shall be watching very closely to make sure that it functions benignly rather than malignly.
§ Baroness Ashton of Upholland
My Lords, I echo the sentiments expressed by the noble Lord, Lord Forsyth, and the noble Baroness, Lady Sharp, about the work that the noble Baroness, Lady Perry, has done. I do not wish to embarrass her or make her blush, but much of the way in which we have moved on the issues surrounding access bears witness to the noble Baroness's commitment and that of other noble Lords as well.
I believe that we have a better OFFA. I believe that we have made sure that admissions and academic freedom in particular, about which your Lordships feel very passionately, are well protected. In a sense, it is the role of the House to do that, given the expertise that exists within it on higher education. I am not at all surprised that this House has done so. The Government are pleased to have been able to move on those amendments, having listened carefully to the arguments.
As to my career, the noble Lord, Lord Forsyth, has already toasted me. He said that in a private meeting I asked him to come up with a scheme that would work. It is good that I am putting the Opposition to work in this respect, but that may be it as far as I am concerned.
The Butler amendment deals with the noble Baroness's point about how OFFA and the director will work. We have been very clear about making sure that where an institution has done what it has said it would, we are input-measuring and not outcome-measuring. In that sense, I do not think that the noble Baroness need worry. I know that she will keep a watchful eye on this, as ever, and I shall be at the Dispatch Box—if I am still here—to discuss it.
Of course, HEFCE does not have the sanctioning powers of OFFA, and we will make sure that they work well together. We have debated the differences between the two at many stages of the Bill, and I do not propose to go over it now. But it is important that they work well. We will seek to ensure that they do, and noble Lords will make sure that we do.
Of course, as the noble Baroness, Lady Perry, said, my right honourable friend should have said that Amendment No. 17 would prevent any sanctions applying as a result of a breach of the general provisions of the plan, which includes everything expert the fee limits He has written to opposition 389 spokesmen. That letter has been copied, I believe, to the noble Baroness, Lady Perry, to clarify the position, and there is also a copy in the Library.
On that basis, I hope that noble Lords will feel able to agree with what the Commons have done, particularly on regulation-making powers. Although I know that some noble Lords feel some regret, I hope that they will not press the amendments.
On Question, Motion agreed to.