Lords Sitting of 12 December 1991

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Worcester.): The LORD CHANCELLOR on the Woolsack.

Juveniles: Prison Remands
Lord Molloy Lord Molloy asked Her Majesty's Government:
When they intend to legislate to end the imprisonment of juveniles.
The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran): My Lords, the Criminal Justice Act 1991 abolishes detention in a young offender institution for 14 year-old boys and provides for the ending of prison remands for juveniles under 17. The Act also tightens the restrictions on the use of custodial sentences for young offenders.
Lord Molloy: My Lords, I am grateful to the Minister for that reply. However, I asked whether the Government intended to abolish legislation whereby juveniles up to the age of 17 and young people between 17 and 21, when on remand, can be kept in prisons. Some of them commit suicide and some are appallingly handled. Governors and indeed the Inspector General of Prisons condemned the system and described it as abhorrent. Voluntary organisations agree and feel frustrated that nothing is being done.
The Earl of Arran: My Lords, it is a sad fact that some juveniles commit serious or dangerous offences for which custody must remain an option. The Government believe that custodial sentences should be used as a last resort. Most juvenile offenders can be dealt with under constructive and demanding sentences that lie in the community.
The Lord Bishop of Worcester: My Lords, is the noble Earl aware that the Bottomley Report of 1988, sponsored by the Children's Society, showed a high proportion of reoffenders among the juveniles in prison? Has the noble Earl any recent figures for re-offending since the change in the law? Furthermore, has he any figures of the number of juveniles who, in the past 12 months, committed suicide while in custody?
The Earl of Arran: My Lords, in answer to the first question of the right reverend Prelate, around 80 per cent. of juveniles are reconvicted of a further offence within two years of release from a custodial sentence. Reconviction rates following community sentences tend to be better. That is one of the reasons the emphasis is on using community sentences for juveniles wherever possible. I can say also that until the end of November this year there were four suicides by prisoners under 21. That is comparable to 10 last year.
Lord Hunt: My Lords, is the noble Earl aware of the considerable success rates recorded by various juvenile justice systems in many parts of the country? Young people are successfully diverted from criminal activities in which they had become involved and engage in legitimate activities which attract their attention and challenge their initiative.
The Earl of Arran: My Lords, anything that can be done to alleviate juvenile crime is worthy. It is a matter of education by schools and also by parents.
Lord Elton: My Lords, does my noble friend accept that the methods referred to by the noble Lord, Lord Hunt, led to a dramatic reduction in the use of custody for young offenders? Those methods should now be increasingly applied to young adults in order to achieve the same result.
The Earl of Arran: My Lords, the Question refers to juvenile crimes, but I shall carefully note my noble friend's comments.
Baroness Masham of Ilton: My Lords, is the Minister aware of the recent tragic case in which a nurse was killed in a crash caused by an under-age driver who had absconded from a social service home in the community which was unable to hold him? Is he aware that there is a shortage of secure places in the community for some young people who are dangerous?
The Earl of Arran: My Lords, I am not aware of the specific instance to which the noble Baroness refers. However, we estimate that at least 30 to 35 new secure places will be required by 1995.
The Earl of Longford: My Lords, can the Minister say whether there has been any change in the law since the youngest member of the Maguire family, aged 13 on arrest, spent three years in prison? Everyone knows that that was a scandalous miscarriage of justice. Has the law been changed since then?
The Earl of Arran: My Lords, I am not aware of the specific instance to which the noble Earl refers. The only juveniles who may be remanded in prison are 15 and 16 year-old boys. Prison remands are not available for girls under 16 or boys under 15. Under the Criminal Justice Act 1991 prison remands will remain available for 15 and 16 year-old boys until sufficient local authority secure accommodation is available. They will then be abolished.
Lord Hutchinson of Lullington: My Lords, is the Minister aware that it is the conditions in which these boys are kept that is the scandal? Is he aware also that it was 10 years ago that the all-party Penal Affairs Group recommended to the Government that the scandal should be brought to an end forthwith? Is it not an indictment of the inhumanity and snail-pace procedures of the Government that the scandal still obtains? Will he now have the courage to fix a date on which the practice is brought to an end once and for all?
The Earl of Arran: My Lords, I do not accept that the conditions are as scandalous and irresponsible as

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the noble Lord makes out. Once again, I say that there must be adequate protection for the public. We can only end prison remand for juveniles when adequate alternative arrangements are available. The Criminal Justice Act, most of which comes into operation in October of next year, gives courts the power to remand 15 and 16 year-olds to local authority secure accommodation instead of to prisons. The noble Lord asks whether we cannot speed up the procedure. I remind him that the timescale is realistic bearing in mind the need to plan, design and tender for building what is a specialist resource. At the same time, careful planning is essential to ensure that local needs are met and that the right number of places are provided where they are needed.
Lord Richard: My Lords, is the noble Earl aware that the problem relates not only to young boys but also to young girls? They are being kept in prison with adult offenders. One junior Minister recently said:
"In England and Wales experience has shown that the mixing of adult and juvenile girls in custody can be mutually beneficial".
Will the Minister reject that statement and do something so that at least girls are treated equally with boys?
The Earl of Arran: My Lords, that question is in a somewhat different context to the one which lies on the Order Paper.
Lord Molloy: My Lords, is the noble Earl aware that it is almost 10 months to the day since the Home Secretary made the encouraging speech acknowledging that many juveniles being placed in prisons were almost apprenticed to crime and criminology? He felt that that should stop, and any sane person would agree. Can the Minister say whether there is a chance of the whole matter being investigated and procedures speeded up? If those who enter penal establishments—perhaps due to having committed a civil crime, not necessarily a bad crime—are there for a number of years, they meet with hardened criminals and become as hardened as those they meet. Most of the voluntary organisations believe that should be stopped.
The Earl of Arran: My Lords, of course we are aware of the urgency of the situation. We are trying to do everything to remedy it as quickly as possible.

Defence Policy
3.10 p.m.
Lord Chalfont Lord Chalfont: asked Her Majesty's Government:
Whether they have any plans for a further review of defence policy.
The Earl of Arran: My Lords, the Government have undertaken a detailed analysis of the implications for British defence policy as a result of recent changes in the international security environment, in full consultation with our NATO allies. The reduced threat allows us to meet the United Kingdom's defence commitments with lower levels of forces. We keep our plans under continual review.
Lord Chalfont: My Lords, I am grateful to the Minister for that Answer. The discussions at Maastricht seem to indicate that European and Western defence issues are not yet fully resolved either as to their logistics or strategy. Does the Minister agree that, when those matters are resolved and we know what role NATO and the Western European Union will play in these affairs, it would be a good idea to review our own defence policy to see whether it fits into that scenario and therefore give our defence policy the strategic coherence which it seems to lack at the moment?
The Earl of Arran: My Lords, I have to say to the noble Lord, Lord Chalfont, as I said in my Answer to the original Question, that we keep our plans under continual review. The agreement at Maastricht is a good outcome for the alliance and for us. The Maastricht agreement will provide the right framework for European security in the 1990s. Indeed that framework reflects the approach that we set out with our Italian colleagues in our joint paper in October. We made it clear throughout the negotiations that any new arrangements had to be compatible with NATO.
Lord Mayhew: My Lords, is one to understand from the reply of the noble Earl that in the Government's view the defence agreement at Maastricht need lead to no change in the size, structure or deployment of British forces?
The Earl of Arran: My Lords, what happened at Maastricht is being considered very carefully at the moment. As I have already said, the agreement at Maastricht is regarded as a good outcome for this country and the alliance, with NATO still in supremacy.
Lord Jenkins of Putney: My Lords, is the noble Earl aware that there is a widespread feeling that what was appropriate when there were two superpowers can hardly be appropriate now that there is only one? Does the noble Earl agree that the Government's current practice of reviewing defence policy is taking place in insufficient depth or over a large enough area in view of the profound changes which have taken place in the international situation?
The Earl of Arran: My Lords, it is because of the very profound changes that have taken place in the past few years that we have taken an extremely profound and intense look at our defence requirements across the world, in Northern Ireland and in this country.
Lord Williams of Elvel: My Lords, it is not a question of the past few years, weeks or days. Is the noble Earl aware that the Soviet Union has apparently broken up and that we now have several separate republics, all with their own separate armed forces? Is it the case that NATO defence Ministers are meeting in Brussels today to determine the validity of the Soviet Union's acceptance of the CFE and START treaties? If that acceptance is invalid, can the Minister say what the Government will do?
The Earl of Arran: My Lords, it is correct that the Ministers are meeting today. The break-up of the Soviet Union creates an extremely serious position. As I have made clear in your Lordships' House before, my right honourable friend the Prime Minister raised this matter on his visit to Moscow immediately after the failed coup. We have repeatedly emphasised to Soviet authorities that they must ensure nuclear security by making whatever arrangements are necessary with the republics where the weapons are based. The Minsk declaration of 8th December gave an assurance of maintained unified control. We have no evidence of any lapse of that control. There is no evidence that any of the republics would be able to make use of any nuclear weapon in defiance of the central authorities.
Lord Williams of Elvel: My Lords, I am sorry to press the noble Earl, but will he answer my question about the CFE treaty? We are dealing not only with nuclear forces but also with conventional forces of the republics.
The Earl of Arran: My Lords, everything, including the CFE treaty, is constantly under review.
Lord Cheshire: My Lords, in all these reviews, are the Government taking into account the new threat that I mentioned in my first two speeches? I refer not to the military threat but to the fact that the breakdown of the Soviet Union is making available to third party nations the possibility of nuclear devices and military expertise. Is the noble Earl aware that, although they need not be used for a military attack, they could be brought in by some other means? For instance, they may be used by a suicide group on a civilian airliner. It seems that an entirely new type of threat faces us. Can the noble Earl tell the House whether that is being taken into account?
The Earl of Arran: My Lords, it would be an irresponsible government that did not take every such consideration into very careful account indeed.
Lord Bruce of Donington: My Lords, will the noble Earl assure the House that he will keep under continuous review the number of times that the Government are forced to use the anodyne term "continuous review"?
The Earl of Arran: My Lords, I should have thought that it was a rather sensible phrase to use at all times.
Lord Chalfont: My Lords, at the risk of unduly prolonging this exchange, can the noble Earl say whether he really means that the Government are convinced of the ability at the centre of the Soviet Union to control all nuclear weapons or is he merely talking about strategic systems? Does the noble Earl agree that it surely must be clear that sub-strategic and tactical nuclear systems can very easily be handled, transferred and indeed fired by almost any military commander?
The Earl of Arran: My Lord, I take very serious note of what the noble Lord, Lord Chalfont, has said on the matter. We have left the relevant republics in no
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doubt that if they wish to secede they must accede to the non-proliferation treaty as non-nuclear weapon states as soon as possible.
Lord Annan: My Lords, does the noble Earl agree that in our defence policy it is our intelligence services which need reinforcement rather than conventional or nuclear weapons?
The Earl of Arran: My Lords, the intelligence service is an extremely important part of the whole makeup of successful security.
Lord Mackie of Benshie: My Lords, does the Minister agree that, while the fabric of the alliance is of supreme importance, the restructuring of the WEU entails a restructuring of the Atlantic alliance in order to allow the WEU to operate efficiently and not, for example, a doubling up of the staff, in NATO and the WEU?
The Earl of Arran: My Lords, it is important that the WEU should deal with defence issues and that it should be independent. The separate WEU declaration agreed at Maastricht underlines that very independence.

Kurds: Western Assistance
3.18 p.m.
Lord Renton Lord Renton: asked Her Majesty's Government:
Whether they will urge the Security Council of the United Nations to ensure that the Kurdish people of Iraq are enabled peacefully to rebuild and reoccupy their homes in that country without being further molested or prevented by the Iraqi Government or armed forces.
The Minister of State, Foreign and Commonwealth Office (The Earl of Caithness): My Lords, Security Council Resolution 688, adopted on 5th April, demanded an immediate end to Iraq's repression of its civilian population and called for respect of the human and political rights of all Iraqi citizens. We shall continue to do all that we can to ensure that Iraq complies with it.
Lord Renton: My Lords, I thank my noble friend for that interesting reply. Is he aware that that Security Council resolution is not being observed by the Iraqi Government? Does my noble friend recollect that a week ago we were told by my noble friend Lord Cavendish of Furness that the Security Council would be meeting this month to consider the matter? Can the Minister say when that will be? Can the Security Council be told that although the United Nations High Commissioner for Refugees has been sending building materials for the rehousing of 350,000 people in northern Iraq, those materials are not being used because the Iraqi Government are preventing the houses from being built?
The Earl of Caithness: My Lords, with regard to the last point, the information we have is that the United Nations High Commission for Refugees winterisation programme, which meets the needs of some 500,000

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people during the winter months, including shelter, repair and upgrading of hospitals and water supplies, is on schedule and being met.
Lord Cledwyn of Penrhos: My Lords, is the noble Earl aware that the UNHCR has reported over the past few days that 200,000 Kurds have had to flee from their homes because of Iraqi shelling? Furthermore, can he confirm whether the air cover currently provided from Turkey by the United Kingdom and the United States is to continue or is it to finish on the 28th December? Is he aware that to terminate that cover at this time would be quite wrong? Can he give an assurance that Her Majesty's Government are giving very careful thought to that in consultation with the United States Government?
The Earl of Caithness: My Lords, with regard to the noble Lord's first question yes, we are aware of the additional problem of the 200,000 Kurds. In answer to the second question, I am sure the whole House would like to express its gratitude to the Turkish Government for hosting the coalition forces. Without the coalition forces, the Kurds could not live in the security that they do at present. The agreement comes to an end at the end of this month, and we are working with the Americans as to the future.
Lord Mellish: My Lords, what it all adds up to, and cutting out all the jargon, is that it is a fact that all the time Saddam Hussein is there, nothing will change. The Kurds will still be in trouble, and the people living in Kuwait will be in trouble. How long is this wretched man going to stay in office?
The Earl of Caithness: My Lords, I can assure the noble Lord that the Kurds are in considerably less trouble as a result of the action taken by my right honourable friend the Prime Minister in the safe haven operation. Without that, there would have been a very much worse situation.
Lord Cledwyn of Penrhos: My Lords, can the noble Earl give an assurance that Her Majesty's Government are in favour of continuing the air cover after 28th December?
The Earl of Caithness: Of course I can, my Lords.
Lord Beloff: My Lords, can the Minister confirm the press report that Prince Sadruddin Aga Khan resigned his office as the representative of the High Commissioner for refugees in Iraq on account of the political interference with his humanitarian activities? If that report is correct, has the Prince be replaced? Who now is responsible for the United Nations humanitarian activities in Iraq?
The Earl of Caithness: My Lords, I am able to confirm that Prince Sadruddin Aga Khan announced his resignation on 3rd December, but I cannot confirm what my noble friend has said about the reasons for that. The question of what happens to the office of the executive delegate is now a matter for the United Nations Secretary-General. Perhaps this is a good opportunity to pay tribute to the work of Prince Sadruddin Aga Khan. He has done a very good job.
Lord Tordoff: My Lord, I thoroughly endorse what the noble Earl has just said. I should like to return to a reply he gave earlier this afternoon about the people who are not yet housed. He said that the relief programme is on course. But how many people are exposed to the elements in the Kurdish mountains at the moment? When will they be given warmth, shelter and fresh water?
The Earl of Caithness: My Lords, the UNHCR is doing all it can in order to meet the difficult situation. As I said, the programme in hand is on course to cover 500,000 people.
Lord Renton: My Lords, will my noble friend please answer the question I put to him? When the Security Council meets this month—as we have been told it will—in order to consider this matter, will Her Majesty's Government make representations to it conveying the thoughts that have been expressed by your Lordships this afternoon?
The Earl of Caithness: My Lords, we always take into account what your Lordships say. Points were most forcefully put forward in the meeting of the UN which was in the recent past. The meeting decided that the sanctions should not be lifted.

Youth Training: Placements
3.26 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
What are their reasons for believing that a youth training place is guaranteed to every 16 and 17 year-old who registers for one.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, the Government are fully committed to the YT guarantee. It is top priority for the Training and Enterprise Councils. It is the job of the TECs, supported by local careers service, to find the placements needed among the business community. TECs will have the resources they need, and all the help which Government can provide in other ways will be at their disposal.
Earl Russell: My Lords, with respect, my Question was what are the Government's reasons for believing that their guarantee is effective? The Minister has not given me any reasons. May I take it that he does not have any?
Viscount Ullswater: No, my Lords. That would be an entirely wrong assumption. If anyone thinks that a programme which is delivering more than 270,000 training places in England and Wales at the moment is not the delivery of a guarantee, I should like to know what is.
Baroness Turner of Camden: My Lords, is the Minister aware that according to recent figures, the number of young people claiming and receiving bridging allowances has gone up considerably in the past year? For example, in the South-East the increase has been of the order of 129 per cent., and in the Midlands 50 per cent. over the same period for the

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previous year. That is an indication that these young people are not getting places because that is what the bridging allowance is for. The allowance is only payable for eight weeks. What happens to those young people after eight weeks?
Viscount Ullswater: My Lords, of course we accept that it is clear that there are certain times—and this is one of them—when it may be difficult to accommodate everybody who wants a YT place. However, in recent months we have been in close touch with each TEC about the position in its area, and we have always said that no TEC would be prevented by lack of resources from meeting the guarantee. The noble Baroness draws attention to the bridging allowance. She says, quite rightly, it is only for a limited space of time. Any individual who experiences undue difficulty in securing a YT place, should immediately contact their local TEC. That is required by contract to investigate the circumstances as a matter of top priority.
Baroness Faithfull: My Lords, does my noble friend the Minister agree that the places are there? The trouble is that a number of young people drop out because the training offered is not the training they want. A boy who wants to be a bricklayer came to see me the other day. He had been told that he could only be a plasterer. I think the reason why a number of young people drop out is because there is no course that they particularly want.
Viscount Ullswater: My Lords, there is a certain amount of mis-match. That is inevitable in such a huge programme. Whereas all efforts are made to provide the programmes that young people want, it is inevitable that on occasions there will not be the opportunities for them to take on the courses that they want. That accentuates the fact that there may be a waiting list for those who decide to wait for a place to become bricklayer if they are only offered a place as a plasterer at the moment.
Lord Gisborough: My Lords, is my noble friend aware that in my own county there are plenty of opportunities and places for 16 and 17 year-olds who want placement? Can the Minister say what pressure is being brought to bear on the 5 per cent. of youngsters who are reluctant to apply for a place?
Viscount Ullswater: My Lords, it is a voluntary programme. We very much encourage young people to take on YT training because that will give them a qualification which they may well need before entering into a job. Entry into jobs through YT is one of its great successes.
Lord Parry: My Lords, does the Minister accept this? It would balance the books a little if we were also to inquire about all those young people who would dearly like to take up TEC place and who find themselves under such pressure because of the huge unemployment in areas such as my own in West Wales that they have to leave their home district and cannot take advantage of programmes anywhere?
Viscount Ullswater: My Lords, the noble Lord would appear to indicate that there are no options available to young people.
Lord Parry: Exactly, my Lords.
Viscount Ullswater: My Lords, the option he does not include is they could remain at school and learn further from school before they try to enter the world of work.
Lord Parry: My Lords, I will not enter into debate with the noble Viscount except to say that if a young person's family does not support him, then the pressures on him are absolute and he has no option but to leave school and go elsewhere to try and find support.
Viscount Ullswater: My Lords, the family is supported by child benefit and therefore there is no requirement for him to leave home.
The Countess of Mar: My Lords, does the noble Viscount agree that TECs are increasingly reporting difficulty in finding placements for young people because employers are not taking them on? Several large companies have withdrawn from the TEC schemes. Can the Minister say what is going to happen to young people who cannot, however willing, find a placement and find themselves with no money?
Viscount Ullswater: My Lords, the Government stand behind their guarantee that they will make certain that all young people who register and wish to take up a place will be offered a place. Certainly we understand that there are problems in finding a number of places in each TEC area or in a number of TEC areas. My noble friend has indicated that there is no problem in Cleveland. We look at each TEC area very carefully with the department to make certain that all the options are canvassed in order to secure the places for these young people.

Business
3.30 p.m.
Lord Hesketh: My Lords, it may be for the convenience of the House to know that the Committee stage of the Further and Higher Education Bill will be adjourned at about 7 p.m. for about one hour and that during this adjournment the Report and Third Reading of the Offshore Safety Bill will be taken. It is a matter of regret that today, again, the digital clocks are not working, but I can assure your Lordships that as I speak heroic efforts are taking place to attempt to get them operational as soon as possible.

City of Edinburgh District Council Order Confirmation Bill
Considered on Report.
Strathclyde Regional Council Order Confirmation Bill
Considered on Report.

Further and Higher Education Bill [H.L.]
3.31 p.m.
The Paymaster General (Lord Belstead): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Belstead.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 20 [Constitution of corporation and conduct of the institution]:
Lord Addington Lord Addington moved Amendment No. 173:
Page 16, line 25, after ("Act") insert ("subject to the inclusion of student representatives on the corporation").
The noble Lord said: This amendment deals with student representation on the new corporations for further education colleges. Primarily what we are talking about here is having some form of representation for those who are consumers of education courses. It is ridiculous that those who are actually experiencing the courses should be denied representation among those who are organising the courses and the types of education available to them.
The Government have in the past stated that they are not opposed to any form of student representation. Indeed, the Under-Secretary of State for Education and Science said in another place on 17th November 1987:
"The Government have no wish to diminish the role that student governors can play … We recognise … the value of student participation in governing bodies … we believe that it is of benefit both to the institution, by directly involving the students, and to the students themselves, for whom it is good training".—(Official Report, Commons, 17/11/87; cols. 1028–29.)
Has this attitude changed? Perhaps we may at least be able to glean that from the Government. What on earth can the Government gain by not having this representation? Students know what is going on from their point of view as consumers of courses. In few other areas of society is the customer ignored. We must make sure that these young adults are not ignored—they are young adults in many cases. A high percentage even in further education colleges are over 18. If they are ignored the colleges will be denied an important source of information which could improve the quality of the courses and enable the colleges to deliver what is required. Bearing those points in mind, I believe that the Government would improve the Bill if they accepted the amendment. I beg to move.
Lord Morris of Castle Morris: In supporting the noble Lord, Lord Addington, I should like to speak to Amendments Nos. 174 to 176A. This is an important and indeed potentially explosive group of amendments. Rightly or wrongly, a wide range of people and organisations—local authorities, universities and students throughout the country—are concerned about this question. It is widely believed, rightly or wrongly, that the clause is designed to make it as difficult as possible for students to get proper representation on these governing bodies. The National Union of Students has just held its winter annual conference in Blackpool. Delegates from colleges all over the United Kingdom have expressed the deepest concern at the lack of any form of guarantee in the Bill as regards student representation.
In the past the Government have committed themselves wholeheartedly, openly, publicly and repeatedly to the principle of student representation on and participation in governing bodies. I refer to the words of Mr. Chris Patten when Minister of State for Education. He said:
"We recognise that student participation on governing bodies is a recognised and valued feature of college life".
Similarly, Mr. Robert Jackson, when Under-Secretary of State with responsibility for higher education, said in November 1987:
"We recognise … the value of student participation in governing bodies … we believe that it is of benefit both to the institution, by directly involving the students, and to the students themselves, for whom it is good training". —[Official Report, Commons, 17/11/87; cols. 1028–29.]
Fine words, but in practice the commitment has not been so conspicuously generous.
The issue of student representation on governing bodies came to the fore once again at the time of the passage of the Education Reform Act 1988. The Government then pushed through changes to the make-up of polytechnics and college governing bodies to allow for only one full-time student representative. Other changes were made at the same time to ensure that business people had a built-in majority on governing bodies.
I remind the Committee that the matter was debated during the Committee stage of the Education Reform Bill on 16th May 1988. Concern was expressed from all sides of the Chamber that student representation should normally be by two students, and not one. The point was made and made repeatedly. It was said that students remain in college for a period of three years or so; that they were not likely to be appointed to such a body during their first year which meant that even if they came in during their second year they would have only two years in which they could represent the students in that institution, which would not give them much opportunity to gain confidence. If one looks at most of the student representation in universities and similar places one finds that normally one student is senior to another. To put it another way, one student comes on board and serves for perhaps two years. There is then an overlap which allows accumulated experience to give the student that continuity of representation and of viewpoint.

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Universities have quite long experience of students on governing bodies and they sing with one voice. One noble Lord said in the debate on 16th May 1988:
"If one looks at the charter and statutes of almost every university in the country, one will find that there are at least two student representatives, never just one".—[Official Report, 16/5/88; col. 109]
Experience has shown that it is much the best and most efficient way of having student representation.
Most student representatives do not lack a certain confidence when they attend council or court meetings. How deep that confidence goes will vary from case to case. But they may lack confidence when facing their own constituency—that is, the student members—in what may be difficult and trying circumstances. I invite Members of the Committee to consider the fact that it is comparatively rare to find a student or a vice-chancellor who is equally at ease and an expert at each end of the spectrum: at one end the university council and at the other end a general meeting of a student union.
Surely the general case is unanswerable. Students are intelligent adults who develop their own systems of democracy and representation. As an interest group students gain a collective view which ought to be represented to college decision-making authorities. After all, they are the contributors and the consumers of the educational process and, although they may have very broad interests, they are generally concerned, for the most part, with the nature of their course, its usefulness for their career prospects, the quality and the quantity of the delivery, teacher and student ratios and the quality of teaching. Surely that must be represented on these governing bodies. It is a matter of fundamental concern.
On the whole question of the constitution of these bodies, whether it concerns students or adults, I must repeat that there is a ferment of concern. I recently heard from one old dinosaur of the university system, now poking his nose into situations among these colleges, the comment, "Thank God! We shall soon be able to keep students off these particular bodies." He said that with some relish.
I have worked with students on governing bodies in universities for more than 25 years. I remember what it was like without them. In the early years of student representation there was indeed suspicion, excessive reaction and disharmony. But those days are long gone; indeed, 20 years gone. In my experience, one of the most notable characteristics of students on governing bodies is that when they have nothing to say, they say nothing. Many professors, and some of us, could profit by that example.
I trust that the Minister will give us an unambiguous assurance today that the Government's policy on student representation remains and will continue to remain unchanged.
3.45 p.m
Lord Callaghan of Cardiff: I should like to support the plea put forward by my noble friend Lord Morris of Castle Morris. He has so much more experience than I in this world that I hardly dare to speak in his presence. But, as someone who has to preside at courts of governors and the council, I find the presence of
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student representatives exceedingly helpful. It serves a number of positive functions. One that I would not exclude is that it demonstrates to the students how such a body works. Without being patronising, it helps to educate them in matters of administration. They can begin to see some of the difficulties with which university councils are faced. They can also see some of the problems with which they are confronted and why they cannot solve all of them.
I very much agree with my noble friend that students speak only when they know what they are talking about. That is more than some of us can say on some occasions. I say that because they speak from their own experience. I remember one of the student representatives who appeared on our council. He had long hair, half of which was coloured green and the other half pineapple. I must say that I viewed him with a certain amount of distaste. However, after the meeting I thought that I would go and speak to this strange creature to see what he was like. I found him to be a most eminently sensible young man. He had said nothing during the course of the meeting, which of course commended him to the chairman. I sat down to talk to him. At the end of the conversation we had got on so well that I asked him, "For heaven's sake, why on earth have you dyed your hair in those colours?" He said, "Frankly, it was the best way to call attention to myself and get myself elected." Having got himself elected, I found out later that his hair reverted to its natural colour and that he had become a most useful member of our council.
As I said, I very much support the remarks made by my noble friend. But basically I rise to call attention to the group of amendments relating to the position of local authorities. I believe that the Government are cutting themselves off from a very useful source of information which is especially relevant to the institutes and colleges of higher education.
Perhaps I ought to tell Members of the Committee that last Friday I had the honour of being awarded an honorary fellowship. I am now an honorary fellow —I hope that that fact will be appreciated—of the Cardiff Institute of Higher Education. I have accumulated a number of these fellowships and also some degrees, none of which, I am bound to admit, have I earned. But, never mind, I am there and so I see something of what is going on.
The chairman at the function last week was on the education committee of the South Glamorgan local authority. Councillor Peter Perkins is an excellent chairman, one who has himself benefited from a college of higher education of a further education authority and did not have any of the natural advantages of those who went to university. I have a great deal of empathy with him. There were other people present on that occasion—for example, local businessmen, members of trade unions and people working in all sorts of capacities—but they had made him chairman. He is chairman because of his ability.
I must tell the Government that they will really be doing a great disservice if they do not have a representative of a local authority on these bodies. For one thing, taking the Cardiff Institute as an example, most of the students are part-time students. They are

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resident and work in the area covered by the local authority. They far outnumber the number of full-time students. Therefore, the local authority councillors, with their local knowledge, have a particular connection with these part-time students who are resident in their area.
I hope it is not the irrational dislike of local authorities which has characterised the prejudices of the administration over the past 10 years that has resulted in local authorities being omitted as a statutory body from the corporations which are to be set up. I am sure that it is in the best interests of those corporations that local authorities should be represented on them as a matter of right. I am certain that nothing but good could come from it. As I said, I strongly support my noble friend's plea and urge that local authorities should be included in these bodies.
Baroness Blackstone: I should like to express my support for the remarks made by my noble friends Lord Callaghan and Lord Morris of Castle Morris with respect to both students and local authorities. I should also like to say a few words about two other groups which we on this side of the Committee think should be included in the governing bodies of these new corporations. From my own experience—admittedly, running a higher education institution rather than a further education institution; although from that point of view I really do not think that there is a great difference between them—it seems to me to be absolutely inconceivable that students should be left off governing bodies. It is enormously valuable and helpful to involve students in the decision-making processes of educational institutions for people who are no longer children but young adults. I very much hope that the Government will think again on the matter.
I turn now to the subject of local education authorities. I should like to reinforce the remarks made by my noble friend Lord Callaghan. We shall see a split between the further education funding councils and the local authorities in terms of responsibilities for the education of 16 to 19 year-olds. It is vitally important that we should avoid duplication and that we should have sensible co-operation between the local authorities on the one hand and the new corporations (the further education colleges) on the other.
There will be many areas where co-operation will be required. For example, we may want to make it possible for students who are actually attending full time in sixth forms to go to the further education college for a particular course, so as to benefit from facilities that the FE colleges have but which the smaller school sixth forms cannot possibly provide. I could give countless other examples; for example, there is careers advice. It may be that there can be more specialist advice in the FE colleges which have larger numbers of young people in that age group than in a small sixth form. Surely it would be sensible for a member of the local education authority who has responsibility for the running of good sixth forms to be on the governing body of the local further
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education college. Indeed, there should be an elected member from the authority on each college board in that authority's area.
I can see no reason why the Government should oppose that and why they do not accept that there should be statutory rather than co-opted representation. Moreover, I add that there are people with many years' experience on local education authorities who have a great deal of knowledge and expertise and a lot to offer the new corporations. From that point of view also, it is important.
Those are not the only two groups. Amendments Nos. 175 and 176 refer also to the representation of staff on governing bodies, the representation of TECs and someone with knowledge of the needs of persons with learning difficulties. I cannot conceive of being able to run a higher education institution sensibly and properly without having some staff representation on the governing body. Again, that is extremely important from the point of view of involving staff in decision making and from the point of view of communicating effectively with them. Their exclusion could only lead to greater problems and difficulties in the governance—I use that rather ugly word —of an institution.
Earlier in this Committee stage we heard a great deal about the importance of not excluding those students who have special needs and learning difficulties. That area can be rather esoteric. Many people who teach in further education and who have positions of special responsibility in further education are rather unfamiliar with the needs of that particular category of disadvantaged student. For that reason alone it would be extremely desirable if just one member of the governing body of the new corporations could have that particular and special knowledge.
Finally, Amendment No. 176 suggests that there should also be somebody from the local training and enterprise council on an FE college governing body. Again, that seems to me to be only sensible in terms of developing and maintaining the vitally important links with the work of the TECs in work based training as well as in college-based training.
I hope that when the Minister replies he will be able to give an explanation for that change. It is not comprehensible to the people whom it most affects in the educational world.
Baroness Seear: I support the amendment and speak also to Amendment No. 176 with particular reference to TECs. The importance of TECs is that the value of the exchange works both ways. When I was chairman of an area manpower board, we found that some colleges had a good understanding of what modern industry really needed, but some had no understanding at all. The representation of TECs on these bodies could have a very educative effect on colleges as well as the other way round. Therefore, that representation is extremely important.
Although the amendment refers to one representative of students and one representative of the various categories—and at this point I cannot suggest an amendment—I do not believe that one representative is a good idea. It puts a tremendously heavy burden

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particularly on a student representative who may have to agree to matters which are sensible but not popular. If a student has to be the sole representative, he can be absolutely pilloried by other students. He needs the support of one of his own kind. I see the other academics nodding. We have all observed that situation happen. That may not apply to the other categories but I am certain that it applies to students, and I ask that the limitation should not be to one representative.
Baroness Young: This is clearly a very important group of amendments. All Members of the Committee who have taken part in discussions on the Bill recognise the importance of the composition of the new institutions' governing bodies. I have listened carefully to the preceding speeches supporting these amendments. As I understand it, it is proposed that there should be at least one, if not two, student representatives, staff and academic representatives, representatives of the local authorities from the TECs and someone to represent those students who have learning difficulties.
I shall not discuss the whole list in detail, but my difficulty on this is that the Bill proposes something quite unlike that which was formerly something like a much larger governing court or governing body which included, as of right, representatives of different groups. One can see the reasons for that. Many people who have had experience in these matters will recognise that what is wanted in this new organisation is something rather unlike a representative body where those who are representatives come to it plead their own particular causes. What is being looked for is a group of people who will work together for the good of the organisation.
Many of the problems which have been identified —I am sure that the Minister will tell us whether this is what the Government have in mind—could have been overcome because those who are nominated to the boards could include among them those who have the particular qualifications. It is not exclusive. However, it is not necessary to write that on the face of the Bill.
I have some sympathy as regards the question of local authority representation because it will be very important that the links between the local authority and the colleges of further education are maintained. I shall be interested to hear what my noble friend says about that. However, I cannot support this series of amendments because it seems to me that it is a kind of carry over from what has happened before. In fact in this Bill we are seeking the establishment of new bodies.
Lord Campbell of Alloway: Perhaps the key amendment is Amendment No. 175. With the greatest respect, is that not an attempt to reinstate the old governing bodies which gave a kind of majority representation to the local authorities? That inevitably involved certain trade unions who represented varieties of staff.
4 p.m.
Baroness Blackstone: I wonder whether I can help the noble Lord. Amendment No. 175 suggests that there should be two local education authority representatives. They could not possibly constitute a majority.
Lord Campbell of Alloway: With respect, I do not believe that the noble Baroness quite understands what I am putting forward. I suggest that this is an attempt to reinstate the old structure and, by so doing, to carry with it the trade union representation of three types of interest that did not always work for harmony. One was the manual interest, another was the staff interest and another administration.
I hope that my noble friend the Minister will not accept Amendment No. 175. Equally, I hope that he will not accept Amendment No. 173 where again the conduct and activities of students of all ages over the past few years have not given rise to tremendous confidence. Under a new structure it is far better, using the words of my noble friend Lady Young, to have a group of people who would apparently work well together. Again, I mentioned certain trade union activities on the extreme left that have affected the conduct of students.
I think that Amendment No. 174 is about right, but that is only a personal view. I hope that the Minister will consider it with an open mind but there may be some reason that I do not understand which would render it objectionable to the Government. I can see none.
Baroness Lockwood: I support this series of amendments, in particular those which refer to local authority representation. During the course of the Committee proceedings I have mentioned the Bradford and Ilkley Community College, one of the largest colleges in the country. My association with the college is not directly as a member of it but through my membership of the council of Bradford University which is next door and which has a close working relationship with the college.
The college has 26,000 full-time equivalent students. It also has 10,000 adult education students. That means that most of the 26,000 full-time equivalent students will come under the umbrella of the new funding council, but the 10,000 adult education students are likely to come under the control of the local authority.
The governing body of the college will have a dual responsibility to both the local authority and the funding council. Therefore, I believe it is essential that there should be representation from the local authorities on colleges such as this.
I agree entirely with the noble Baroness, Lady Young, who said that what is wanted is people working together for the good of the organisation. Perhaps I may quote from a communication that I received from the Bradford and Ilkley Community College:
"Its success has been built on systematic response to local needs, an effective and supportive relationship with its Local Authority and a close academic association with its Local University.
Lord Henderson of Brompton: I wish to make a brief intervention with reference to Amendment No. 176 in the names of the noble Baronesses, Lady Seear and Lady Blackstone. The final provision is that there shall be included,
"a person with knowledge of the needs of persons having learning difficulties".
There should be included someone with knowledge of their difficulties although it does not mean at all that he or she has to be disabled. It is immensely helpful to have a person with that qualification on the board although the provision could he incidental to other reasons for someone coming on the board. I sincerely hope that that will not be forgotten.
Lord Boyd-Carpenter: I have a great deal of sympathy with what has just been said, although I do not see why the person appointed should be a representative. He should surely be someone who has knowledge of the subject. The only point on which I desire to trouble the Committee is the use practically throughout these amendments of the word "representative". I am all in favour of the appointment of students. Apart from anything else, it is extremely good for them. But why should they be appointed as representatives of students? Why indeed should the other people mentioned in Amendment No. 175 have to be representative of these various bodies?
If a person is appointed to a body to represent some other body or outside organisation, he naturally feels it his duty to press that body's views and interests. However, what we want on these bodies is a number of people with wide experience who use that experience to carry out sensible policies for the education of the young people concerned.
If we line up on such a body people who are inclined to think that their first duty is to represent the interests of some other body, I suggest that we will not get a smoothly working organisation. Therefore, while there is an enormous amount to be said for the appointment of various people with the qualifications mentioned in the amendments, I suggest that it would be a mistake for them to be appointed as representatives of the outside bodies.
I hope that my noble friend will say that the Government will be likely to appoint people with these kinds of qualifications—most of them fairly obvious —and that they will make it clear that they will be appointed as the persons most suitable to do the job and not as representatives of some other organisations.
Lord Peston: Perhaps I may say something in reply to the noble Lord, Lord Boyd-Carpenter, because I do not believe that he heard—or perhaps he did not understand—the words of the noble Baroness, Lady Seear. I restrict myself solely to students. The essence of the position with respect to students is as follows. One possibility is that there would he no students on the body. I cannot believe that anyone would rationally argue that at all. Secondly, the council itself or governing body would choose the students. Nothing could be more damaging. Anyone with any experience of higher education institutions will know that nothing could be more damaging than that
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students should somehow be chosen by this other body of people, the grown up people. As the noble Baroness said, the main problem is to sell hard decisions to the student body.
I might add that the student representing the student body —to which I shall come later—does not represent another group of people. These institutions exist for the student body; there is no separation. But it is because, especially in these harsh times, many of the decisions are harsh that we need on these bodies students in whom the students themselves have faith. There can be no doubt whatever about that. That was the point made by the noble Baroness.
I speak from a great many years' experience, but there are other academics present. The only people in whom the student body will have faith are its own people. It will not accept people appointed by me as a head of department or by vice-chancellors. It will accept people whom it has chosen as its representatives.
My noble friend Lord Callaghan makes the point that such students are immensely helpful. They do not act to split the group; they act to co-operate and they are sensible. I do not believe that the noble Lord, Lord Boyd-Carpenter, has any experience in the matter. I shall not discuss the other representation questions because I know that there are two sides, but on that subject students not only ought to be but must be representative if they are to have any use whatever.
Lord Boyd-Carpenter: I must reply as the noble Lord has attacked me. He has not answered or even attempted to answer the point that I made. When we appoint students to this body, the question is whether we want them to come on as representing the other body of students in this case and with the prime obligation to support its interests and views, rather than to contribute to a useful discussion of the whole conduct of the organisation. That is the point. If the noble Lord suggests that I have little experience of this, I can tell him that I am a former president of the Oxford Union.
Lord Peston: I think that confirms exactly what I said. My point is precisely that there is no division here. I do not believe that the noble Lord has understood the logical point. It is not like the local authority case about which one could argue, although I support my noble friend's view. In the case of the students it is vital that they should be represented. They are not representing something outside the institution. The institution is the students, plus, I hope, the academic staff—the teachers. The students are not an alien body. The students are the reason for the institution. I cannot see the point of the institution without them.
Lord Renfrew of Kaimsthorn: I hope I may clarify the matter. The noble Lord, Lord Peston, may be missing a distinction here. It may be appropriate for the students who would sit on such a body to be elected by the students. However, that does not necessarily make them representatives in the sense in which the noble Lord, Lord Boyd-Carpenter, was speaking. Students themselves would certainly

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understand the distinction between mandated persons who have to represent a policy of an organisation and, on the other hand, students who are freely chosen. The latter students will then speak, as the noble Lord, Lord Boyd-Carpenter, suggested, as members of the body and will not feel obliged—mandated delegates would have an obligation—to carry out some line. There is a distinction there that ought to be observed.
Lord McCarthy: There might be a distinction here if the amendment contained a reference to a mandate. However, we are not talking about a mandate. We have gone so far in terms of individualising almost everything that we cannot recognise representation as a function. Each Member down the other end of the Corridor is a representative. Each Member represents his constituents. Scottish Members represent Scotland. No one suggests that those representatives are mandated to do precisely and absolutely what their constituents say. Nevertheless the Members are representatives. What we want on the bodies we are discussing are, certainly, people who have personal capabilities, but we also want people who are considered by the other members on the body to be representative in the sense that they know how the students feel and what the students want. When they report back to the students on what has happened at meetings, they will be listened to, in exactly the same way as Members of Parliament are supposed to be listened to.
Lord Beloff: Listening to this debate, I once again realise how unsuited this assembly is to discuss matter; of this kind. We are, after all, a body of the elderly unemployed. I doubt whether there are many Members of the Committee who are in full-time employment, although there may be a few more who are in part-time employment. Generally, however, we are unemployed. That means we consider that our time is disposable. If one of us were asked to sit on a governing body of an institution, we would not find it difficult to attend. But the real difficulty in creating bodies for the governance of institutions at any level —this applies to schools, institutions of further education and universities —is to find people who are competent in these matters and have time and energy to devote to them. That is one of the great problems with the Government's belief that businessmen are very suited to such duties. Anyone who has had experience of a body such as a charitable trust or a university council knows that until the last moment one cannot tell whether a businessman will turn up because he is bound to give priority to other matters. I shall not discuss in detail what such a businessman is bound to give priority to at the moment. However, such a businessman has other priorities.
Therefore we need the Government to reassure us that the kind of people on the governing body of an institution will be able to attend meetings. One of the arguments used in favour of student representation is that, on the whole, students are likely to attend meetings If the students have been elected to their positions, they are even more likely to attend, as otherwisc their conduct would be called into question. That argument could probably be used as regards the
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staff representation because they have a direct interest in this matter. It may well be that those who have served on local authority education committees have also arranged their time and interests in such a way as to give full service to a body. It is much more important to rely on regular attendance, including the reading of agendas, than on any other aspect as regards the government of a body.
4.15 p.m.
Lord Redesdale: I wish to speak on this matter as I am probably the most recent student in this Chamber, having left higher education three years ago. I am surprised at the use of the word "representation" in this debate. We are talking about institutions that students attend. We are not discussing boards that governors attend. Students have a direct interest in student representation because it involves issues that affect them such as housing; benefits; where they will have their meals; and how their courses will be run. Those are the important issues for students.
There must be student representation in further or in higher education because it is the students who attend those institutions who are aware of the institutions' problems. People from outside will not be aware of the problems in an institution. I realise the Bill is concerned with further education. Newcastle University plans to increase its number of students. That is a good idea; but the housing stock is finite. Where will the new students be housed? Those are the kind of issues that concern students. Those are the issues students know about. If students do not become representatives on these bodies, one will have a system that alienates the consumers as it were. I use the word "consumer" as that is part of the Government's language.
In listening to this debate, one has the impression that students are a by-product of further education, whereas they are the product. They attend institutions to receive education. If they are alienated from the institutions they attend, they may take extreme action. There are destructive aspects of such action, for example, sit-ins and student marches. Such behaviour may return if students do not consider their views are listened to.
The Lord Bishop of Guildford: I wish to say a few words, in part to assure the noble Lord, Lord Beloff, that not everyone in this Chamber is semi-retired. Those of us who are in full-time, paid employment have some difficulty in attending this Chamber because of our other duties. However, that is not the main point of my contribution. I am grateful to the noble Lord, Lord Renfrew, for making an important distinction in his speech. I for one am not unhappy with the word "representative". These people—I think particularly of students and of the local education authorities—need representatives, but not delegates. I hope we are clear about that. They are chosen by the bodies they represent and they are a vital link in the management of an institution.
The noble Lord, Lord Campbell of Alloway, said the governing bodies should not follow the same old traditions in terms of representation. However, the

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clause states the bodies are to have responsibility for the conduct of the institution concerned. One cannot give responsibility to a body for the conduct of an institution and exclude the students who have the main personal interest in the institution as a whole. My own limited experience of student representatives on governing bodies has been that they are an enormous asset. Having experienced their presence on such bodies, I could not adopt a system where they were not present. They make vital contributions to discussions. Taking part in such discussions is an educational experience for them and for the older members of the body, too—even those who are retired.
My only difficulty with these amendments is that by the time representatives have been secured from all the interested bodies, there is not much room left for anyone else unless one is to turn the corporation into a public meeting. I appreciate there is a difficulty here, but I hope we shall not do anything which would make it difficult for students to be represented on these bodies.
Lord Pearson of Rannoch: My Lords, I have no direct experience of this matter. However, speaking as one of the businessmen who is still in full-time employ, perhaps I may remind my noble friend Lord Beloff that one of the reasons why businessmen find it so difficult to attend the meetings to which he referred is that they are making the profits which pay the taxes to pay for the whole system.
My experience at second hand comes from a number of polytechnic directors. At the time of the passing of the 1988 Act they were somewhat nervous at the prospect of the inclusion of union representatives on governing bodies—which is what Amendment No. 175 would provide. I understand from talking to a number of polytechnic directors that that nervousness has been confirmed in practice. Although in running an institution of that kind one must refer to the students and talk to them and understand their needs, the best way to do that is not to have union representatives on the governing body or council. I suggest that the experience of the polytechnic sector, which is perhaps more senior than the sector we are discussing, indicates that we should not accept the amendment.
Baroness Perry of Southwark: My Lords, I have listened very carefully to all the arguments that we have heard from both sides of the Chamber. I have a great deal of sympathy with many of the arguments which have been put forward. However, surely the important point is not whether or not individual representation is useful to a governing body but that we do not seek to place any restrictions on the membership of the governing body on the face of the Bill.
Members of the Committee will remember that a great deal of detail concerning the constitution of polytechnic governing bodies was included on the face of the 1988 Act. This Bill loosens that very restrictive nature of the polytechnic governing bodies. I should be very reluctant to see a further restriction put on to
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the face of this Bill so that there was no freedom for individual institutions to choose for themselves the exact nature of their governing bodies. Some will need more than one local authority representative because of their geographical location. Some may wish to have larger and different representation from staff and students. The point is not whether it is a good thing or a bad thing to have such representation on governing bodies but whether it is a good or bad thing to have it on the face of the Bill. I would urge very strongly that it is not put on to the face of the Bill.
Baroness David: There is one amendment in the group of amendments which has not yet been spoken to—my own amendment, Amendment No. 176A. Before I speak to that amendment, I should like to comment on some aspects of the debate. Having listened to the debate, I have the feeling that perhaps the noble Lords, Lord Campbell of Alloway and Lord Boyd-Carpenter, have never served on governing bodies of further education colleges. I can claim to have had that experience. It was invaluable to have a student representative, a teacher representative and a representative from the academic board. The rest of the governors want to be well informed about what is happening in the college they govern. The only way to achieve that is to include somebody from the teaching body and from the academic board to inform them, otherwise the governors will be extremely ill-informed. There will be no local authority officers to help them understand the position. Local authority representatives who have such knowledge and who have perhaps served on the governing body previously, would be extremely helpful to the governors.
Lord Campbell of Alloway: Will the noble Baroness accept that, speaking for myself and for my noble friend Lord Boyd-Carpenter, we do not object to students? In fact, I regard myself as still a student. That is not the issue. The issue is the quality of their relationship and whether they are delegates and act in that way and also whether, as seems so often to be the case, they are mandated by union representation. That is what one objects to. We do not object to students being present. We must not be misunderstood on that point, we do not object to students at all.
Baroness David: That is a great relief. We agree on something. Those are not trades union representatives. The students would be elected by the student body of the institution. The teacher representative would be elected by the teachers, and the academic representative would be elected by the academic board. That is my experience of what happens. They are certainly not trades union representatives, and they are not mandated. As the right reverend Prelate said, they are not delegates.
Having put a few misapprehensions out of the way, I should now like to speak to my own amendment, Amendment No. 176A, which tackles a slightly different aspect. The amendment would ensure that college governing bodies have in their membership at least one person representing the funding council or regional committee, as the case may be, who may be

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examined about the policies and practices of the council committee and who may act as a conduit for representation in either direction.
Some 550 colleges in England and Wales are to be grant-aided by two councils, advised by a number of regional committees in England—and we do not know how many. There is therefore considerable risk of a bureaucratic distance developing between colleges and councils and regional committees. The amendment would put councils or regional committees under a greater obligation to explain their policies and practices directly to governing bodies, thus improving colleges' understanding of the grant processes. I consider that regional committees would be much more sensible. The limited membership of the funding councils could hardly attend meetings of the huge number of further education colleges. However, it should easily be possible to have representation from the regional committee. That would achieve cross fertilisation and provide direct feedback in both directions. That must be extremely helpful.
Lord Hunt: Perhaps I may say a few brief words based on personal experience in this field. That relates to higher education but it must apply equally to the further education institutions.
I was elected to serve for three years as Rector of Aberdeen University. I believe that my noble friend Lord Grimond would echo the sentiments which I am about to express. As everyone knows, the purpose of the rector in Scottish universities is to represent the interests of the students. It was obvious to me when I took up the post, coming from the opposite end of the United Kingdom, that I was inadequately qualified for that task. It was during my time as rector that the university court decided to invite two student representatives on to the court of Aberdeen University. It was a measure of my inadequacy that that was done, but I was convinced that that necessary and it proved a complete success.
Lord Annan: It seems to me that in this debate, as the noble Baroness, Lady Perry said, what we are really arguing about is whether or not the proposal appears on the face of the Bill. I agree with everything that has. been said about student representation by the noble Lord, Lord Peston. Of course, he is right. One is bound to have students on governing bodies these days and almost certainly they will be elected by the student union. How they behave is another matter. If they are good representatives they go along with a reasonably open mind and listen to the arguments. No doubt they put the case from their constituents, but if they are good they understand that those views may not always be acceptable to the council as a whole. If they are bad representatives, they may say, characteristically, that they are mandated and can agree to nothing but what they have been mandated to accept.
Nor is there any doubt that the other groups which it has been suggested should be represented on the council are admirable people. The question is whether councils will be forced to include those people. Once one begins to multiply the numbers of people who represent this interest or that interest the council
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grows and grows in size. What happens next? The only way that you can govern the institution is then to appoint a general purposes committee or an executive committee, or whatever you like to call it. That is the body which will have the power.
However, in one way, the larger the council becomes, the easier it is for the executive committee because, if you have a large council, it can do very little. If you want an efficient council, you must restrict the numbers. That is why I am a little alarmed at the multiplication of places for specific interests earmarked on those bodies. I should much prefer the matter to be left to the good sense of those who run the institutions. They are not cretins. Of course, the bodies will have students and members of staff on them. I should not like to restrict them in numbers, but let us leave things to the people who are running the show.
4.30 p.m.
Baroness Seear: I cannot resist pointing out to the noble Lord, who believes that all those people should be on the body, that only in the case of the local authority is there more than one representative. We must at least have the same number, minus one, that is down here if we are to comply with what he wants. You cannot have a number smaller than one.
Lord Callaghan of Cardiff: I do not know how we shall vote on these issues, but I hope that we can vote separately on some of the amendments. There is an overwhelming case for the local authorities, which have hitherto been responsible for those bodies and which have a deep personal interest in them, to be represented on the board as of right. I notice that the noble Lord did not refer to Amendment No. 174 which provides for that. I therefore hope that we can take decisions on these matters separately.
Baroness Blackstone: I should like to make a couple of points in response to the remarks of the noble Lord, Lord Annan. Even if every one of those groups that we have discussed this afternoon were to be represented on FE college governing bodies, that would give a total of nine people. Assuming that those governing bodies will have between 18 and 20 representatives on them, that gives plenty of scope for the new instruments. That does not seem a particularly large size to me; again, from my experience, you can manage a governing body rather larger than that perfectly well as there will always be a few people who cannot attend. The Government have provided for a wide range of other people, including a number of businessmen, so I cannot accept that what the noble Lord, Lord Annan, said, is logical from that point of view. But if, in any case, as the noble Baroness, Lady Seear, said, he thinks it is desirable for those people to be included, there will be about nine such people. There is a lack of logic in what he said.
The other point that I should like to make is that, although the noble Lord is right to say that most of those organisations and those who head them will not be cretinous, it is important that we should ensure that the bad college which is not well run and which

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decides to exclude members of its staff or its students should not be able to do so. If we think that that is a good thing and highly desirable, we should make sure that the provision is enforced. It should therefore be in the Bill.
Lord Cavendish of Furness: I have listened with care to the distinguished contributions from many noble Lords who have spoken in this interesting debate.
Clause 20 requires each further education corporation to have an instrument of government and articles of government. Schedule 4 provides that the instrument of government shall provide for the number of members of the corporation, the eligibility of persons for membership and the appointment of members.
The amendments require the Bill to specify that the instrument of government for each further education corporation shall provide for the membership of the corporations to include specific categories of people. At present, the instruments of government for further education colleges generally provide for the governing body membership to include representatives of the local authority and of staff and students. Some of them provide for representatives of the local training and enterprise council.
Under the Bill, further education colleges, county and voluntary controlled sixth form colleges, will transfer to the new further education sector and will become further education corporations. LEAs will no longer be responsible for those institutions and will no longer provide financial support to them. There will therefore be no need for formal LEA representation on governing bodies of further education corporations. That is not to say that local education authorities will lack any opportunity to make their views known.
In practice, we envisage that the regional committees will liaise closely with the local education authorities and with the TECs about educational provision and the needs of students and employers in their region. There is no question of cutting off local authorities, as was suggested by the noble Lord, Lord Callaghan. We expect there to be sensible cooperation, as the noble Baroness said.
The majority of members of the governing body of further education will be appointed in a personal and not in a representative capacity. To that extent, I share the views of my noble friend Lord Boyd-Carpenter. Perhaps I may correct him. As I understood it, he suggested that the Government would make those appointments. But the corporations will in fact make them.
Lord Boyd-Carpenter: Yes, indeed.
Lord Cavendish of Furness: I apologise to my noble friend. I thought that he said that the Government would make the appointments.
Governing bodies will be able to co-opt local authority employees or members in a personal capacity. Co-opted members have votes. We are sure that governing bodies will take the opportunity to retain those individuals whose presence they value.
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But the decision must be one for the governing body. It would be wrong to insist that the membership must include representatives of the local education authority.
There are no proposals to change—
Lord Callaghan of Cardiff: Will the noble Lord please tell us why he thinks that it would be wrong to include representatives of local education authorities?
Lord Cavendish of Furness: I have touched on that point. The position has changed in that local education authorities no longer have responsibility for running and financing those bodies. The noble Lord, Lord Callaghan, put the point forcefully. I am giving the reason why the Government take that view; namely, the shift in responsibility for managing and financing.
Lord Callaghan of Cardiff: I am much obliged to the noble Lord. He is no doubt following the instructions of his Minister. Has he any discretion to take the matter back in view of the arguments that have been advanced and to ask for it to be reconsidered?
Lord Cavendish of Furness: The noble Lord will have an opportunity to intervene if he thinks that I have not taken the matter further in the course of the debate.
There are no proposals to change the present position in relation to staff and student representatives. There is certainly no intention to make it difficult for students to contribute, as was suggested by the noble Lord, Lord Morris of Castle Morris. Further education corporations will be free to include staff and student representatives in their membership; and, like other noble Lords, I would be amazed if they did not.
To respond to the point made by the noble Baroness, Lady Blackstone, we intend that the membership of each further education corporation will include a person nominated by the local training and enterprise council. That is in recognition of the special relationship between the education service and the TECs by virtue of the core funding that they provide to colleges in the form of money for work-related further education.
As to representatives appointed by the relevant council or regional committee, there will be over 500 further education corporations. It would not be practical to insist that the membership of each corporation should include at least one representative appointed by the funding council or by the regional committee. It would not be reasonable to expect either the funding councils or the regional committees to put in place procedures for selecting representatives for the membership of every further education corporation.
The noble Baroness, Lady Blackstone, spoke of students with special needs. It is still open to colleges to have persons with a knowledge of students with learning difficulties on governing bodies, and many already do. No changes are expected in that area.
My noble friend Lady Young was quite right in her description of the kind of body that we require—she

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described it very well—and was right in saying that the bodies should not be representative. I thought that the contribution from my noble friend Lady Perry was very important. Part of the reason that we do not want to specify these bodies is that we want to retain that very flexibility, and in some areas a different mix will be needed.
Lord Peston: Perhaps I may interrupt the noble Lord. It is a point which I would like him to clarify. Flexibility means the ability not to include the kinds of people about whom we are talking. That can be the only meaning of flexibility can it not? Is the answer yes or no? Are the Government saying that they would be happy if that flexibility were exercised in that way? That is the essence of the debate that we have just had. We d 3 not believe that there should be such flexibility; the Minister says that, yes, there should be. Let me ask him indirectly. The Government would be happy if students, local authorities and all kinds of people were not included. The Government have no view on the matter, as it were. Is that right?
Lord Cavendish of Furness: My noble friend Lady Perry was right when she said that in certain areas there could be a greater need for local authority representatives, perhaps to take over from somebody else. However, the point has been made by a number of noble Lords that there are limits on how big that body can he. Does the noble Baroness wish to speak? I should like to finish my sentences occasionally.
Baroness Blackstone: I am sorry to interrupt the Minister again but the fact is that we propose a basic number of two local education authority representatives. Any corporation which wishes to have more may do so. The flexibility is still there. Can the Minister at least agree with that?
Lord Cavendish of Furness: I believe that the institutions, through the good sense that was talked about, are better placed than the noble Baroness to make that decision. It is a difference of view. The noble Lord, Lord Peston, may shake his head, but that is the view that we hold; namely, that it should be at their discretion.
Lord Beloff: Perhaps the noble Lord will give way. I should like to ask a question for information. Both he and my noble friend Lady Perry said that the institution would make those decisions. Who is the institution before the governing body has been created'?
Lord Cavendish of Furness: My noble friend raises rather a good point. Perhaps I may, first, comment on some of the contributions that he made earlier. He put a slight slur on people in business whom he claimed to be unreliable. I have spoken about people with personal qualities. I do not believe that businessmen with high personal qualities are people who will skip important meetings. That is the essence. It must be well known to my noble friend, as to other noble Lords, that there are people from the business communities who give enormous service, as do people from other areas, whether or not they are employed.
Lord Annan: Perhaps I may help the Minister in answer to the question of the noble Lord, Lord Beloff. Is it not a fact that when the new universities were set up, it was the Privy Council which appointed the first council of the university, and hence in this case it would be the department.
4.45 p.m.
Lord Cavendish of Furness: I am grateful to the noble Lord. The answer to the noble Lord is that the corporation is the existing body less the LEA representatives. So there is a corporation.
The noble Baroness, Lady Seear, raised a point with which I have some sympathy, about the number of students being limited to one. We always come up against the problem of overall size, despite what the noble Baroness said, because we shall have more people of different qualities contributing. The other categories are also limited. There is one teaching and one non-teaching member of staff plus the principal plus one other.
I must tell the noble Baroness that we believe that the bodies must be kept small. That point was made by a number of Members of the Committee. For that reason we do not favour allowing more than one student representative although, as I said, I understand her point. I agree entirely with the noble Lord, Lord Annan, that smallness and manageability will be an important feature of the process.
There were a number of exchanges about the nature of the representation. If the right reverend Prelate had not mentioned it, I should have said that what we are getting away from is the word "delegate". That is the key word. It is bound to have a slightly different flavour. However, I do not believe that one can escape from the fact that, where there are students on the body, they will be elected by the student bodies, as the noble Lord, Lord Peston, said.
Baroness Seear: If we are to get away from the word "delegate", we are in agreement, are we not? It does not say "delegate" on the paper; it mentions "representative". We all seem to be agreed, do we not? The Minister said that he wanted to get away from "delegate". It is not "delegate"; it is "representative".
Lord Cavendish of Furness: There is a difference of interpretation. The noble Lord, Lord Peston, put it better than I could. As part of the organisation the student is in a slightly different position from an LEA representative. Even the noble Lord would admit that the LEA representative has nothing to do with the institution. These are rather abstruse points but the right reverend Prelate picked up the flavour of the matter when he talked about "representative" and not "delegation".
The Bill provides for instruments of government to be prescribed in regulations. Those regulations will set out the composition of the membership of further education corporations. The draft regulations will be the subject of consultation in the New Year. Further education corporations will be able to propose changes to the composition of their membership to

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suit their individual needs. I do not feel that it would be appropriate for membership of the corporations to be prescribed on the face of the Bill.
After such a long debate and in the light of what I have said, I ask the noble Lord not to press the amendment.
Lord Callaghan of Cardiff: I regret having to hold up the Committee but I want to return to this point. The noble Lord was kind enough to tell us that the composition of the new bodies will emerge from the existing bodies less the local authority representatives. He gave the Committee that fact. Can he please tell us why existing members of local authorities serving on those committees should be excluded from helping to decide who will be their successors? I am sure he must realise, when he pauses to think, that the local authority representatives are the people who are most closely associated with those who will be attending the institutions. They are local students drawn from the community.
It is a slur upon people—a number of whom he must know and certainly I know some of them—who are devoted to those institutions. Some of them regret that they are being removed, but that is another matter. That is a point of principle which I shall not take up. But those people care about these matters and surely they ought to be allowed the dignity of having a hand in deciding their successors. Again, this is one of those irrational prejudices which excludes any local authority representative from a committee of that kind. It is saying: "You are second class. You may not, in company with your business associates and the rest of the people sitting here, decide who is going to set up this new institution". I beg the Minister to think again about this matter.
Lord Cavendish of Furness: I believe that no slur is intended upon the LEA representatives. The difference is that they are on the eve of that association becoming radically different from what it has been hitherto. That is the argument. I accept that I shall not persuade the noble Lord, Lord Callaghan, of the rightness of that approach, but that is the answer.
The Lord Bishop of Guildford: Perhaps the noble Lord would explain one matter to me. If I heard him aright, he said that the local education authority would have nothing to do with the further education colleges. In any funding and ownership in the sense of control, that is undoubtedly true. However, as I understand the matter, the further education colleges and the local authorities will each have responsibility for adult education. It is vitally important that that responsibility should be properly interlinked in order that the whole provision is managed and that there is strategic planning. Is it not on those grounds, among others, that the local education authority has a vital part to play in the management of the further education colleges?
Lord Cavendish of Furness: I hope I did not mislead by any of my subsequent answers, but in the body of my speech I said that under this Bill further education colleges, county and voluntary controlled sixth form
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colleges will transfer to the new further education sector and will become further education corporations. LEAs will no longer be responsible for those institutions and will no longer provide financial support. The right reverend Prelate will say that, everything else being equal, we should expect not only that LEA people through their own personal qualities will join those corporations but that the two bodies will be in constant touch, the LEAs giving their views on local needs.
Lord Campbell of Alloway: Will the regulations be subject to affirmative resolution? That might go some way to meet the anxieties expressed by the noble Lord, Lord Callaghan.
Lord Cavendish of Furness: No, that is not the case.
Baroness Blackstone: I regret to say that the Minister missed the right reverend Prelate's point. Adult education is now to be a divided responsibility. The local education authorities are to provide adult education with respect to so called leisure classes; and the new corporations are to provide adult education with respect to vocational courses, academic courses, basic skills courses and so on. However, as has been said on a number of occasions in the Chamber, there will be difficult distinctions to be made. Again there must be much involvement between the new corporations and the local authorities in making sure that the important provision for adults in our community is in no way diminished by those administrative changes. Surely having a local education authority representative on the new corporations' governing bodies will help to ensure that that does not occur. Will the Minister please answer the right reverend Prelate in that respect? He did not do so in his previous response.
Lord Cavendish of Furness: I acknowledged the link. However, I stated also that the arrangements that we anticipate will he adequate for the purposes. I do not believe that I can go further.
Lord Addington: The Government have rejected each amendment saying, "Of course such representatives will be included. It is inconceivable that they will not. Of course they should be included". The roads to hell are generally regarded as being paved with good intentions. If we do not put the requirement on the face of the Bill, such representation will not occur.
Amendment No. 173 stands in my name and that of the noble Lord, Lord Morris of Castle Morris. Students are a college. Without students a college means nothing; it is a collection of desks in empty classrooms. Students are consumers; they are not the product of a college. If we regard people as the product of any institution, we go down a very slippery slope. We have to consider their input in the colleges. It is inconceivable that they should not have a voice in running the colleges. It is also inconceivable that such a requirement should not be written in the Bill. If the Government are not prepared to do that, I have no option but to test the opinion of the Committee.
4.53
On question, whether the said amendment (No 173) shall be agreed to?
Their Lordships divided: Contents, 93;Not-contents,120

Division No.1

CONTENTS

Addington, L.

Hunt, L.

Adrian, L.

Irvine of Lairg, L.

Airedale, L.

Jeger, B.

Ardwick, L.

Jenkins of Hillhead, L.

Beaumont of Whitley, L.

Kagan, L.

Beloff. L.

Kilbracken, L.

Birk, B.

Kilmarnock, L.

Blackstone, B.

Kirkwood, L.

Bottomley, L.

Lawrence, L.

Braye, B.

Lloyd of Hampstead, L.

Broadbridge, L.

Lockwood, B.

Bruce of Donington, L.

Longford, E.

Callaghan of Cardiff, L.

Macaulay of Bragar, L.

Carmichael of Kelvingrove, L.

McCarthy, L.

Cledwyn of Penrhos, L.

McFarlane of Llandaff, B.

Clinton -Davis, L.

McIntosh of Haringey, L.

Dacre of Glanton, L.

Mallalieu, B.

Dainton, L.

Mason of Barnsley, L.

Darcy (de Knayth), B.

Molloy, L.

David, B.

Morris of Castle Morris, L.

Dean of Beswick, L.

Northbourne, L.

Desai, L.

Parry, L.

Donaldson of Kingsbridge, L.

Peston, L.

Donoughue, L.

Redesdale, L.

Dunrossil, V.

Richard, L.

Ennals, L.

Ritchie of Dundee, L.

Ewart-Biggs, B.

Robson of Kiddington, B.

Ezra, L.

Rochester, L.

Falkland, V.

Russell, E.

Flowers. L.

Russell of Liverpool, L.

Gallacher, L.

Seear, B.

Gladwyn, L.

Serota, B.

Glasgow, E.

Shackleton, L.

Graham of Edmonton, L. [Teller.]

Stallard, L.

Strabolgi, L.

Gregson. L.

Thomson of Monifieth, L.

Grimond, L.

Thurlow, L.

Guildford, Bp.

Tordoff, L. [Teller.]

Hanworth, V.

Turner of Camden, B.

Harris of Greenwich, L.

Underhill, L.

Hatch of Lusby, L.

Wallace of Coslany, L.

Henderson of Brompton, L.

Whaddon, L.

Hilton of Eggardon, B.

Wharton, B.

Hooson, L.

White, B.

Houghton of Sowerby, L.

Wigoder, L.

Howie of Troon, L.

Williams of Elvel, L.

Hughes, L.

Young of Dartington, L.

NOT-CONTENTS

Abinger, L.

Cavendish of Furness, L.

Aldington, L.

Clanwilliam, E.

Ampthill, L.

Clitheroe, L.

Annan, L.

Cockfield, L.

Arran, E.

Constantine of Stanmore, L.

Astor, V.

Cottesloe, L.

Belhoven and Stanton, L.

Cox, B.

Belstead, L.

Cross, V.

Bessborough, E.

Davidson, V.[Teller.]

Boardman, L.

Denton of Wakefield, B.

Boyd-Carpenter, L.

Eden of Winton, L.

Brabazon of Tara, L.

Elles, B.

Brigstocke, B.

Ferrers, E.

Brookes, L.

Flather, B.

Brougham and Vaux, L.

Fraser of Carmyllie, L.

Butterworth, L.

Fraser of Kilmorack, L.

Caithness, E.

Geddes, L.

Caldecote, V.

Gisborough, L.

Campbell of Alloway, L.

Goold, L.

Campbell of Croy, L.

Grimthorpe, L.

Carnegy of Lour, B.

Hailsham of Saint Marylebone, L.

Carnock, L.

898

Harmsworth, L.

Pender, L.

Harvington, L.

Perry of Southwark, B.

Hemphill, L.

Peyton of Yeovil, L.

Henley, L.

Platt of Writtle, B.

Hesketh, L. [Teller.]

Plummer of St. Marylebone, L.

Hives, L.

Porritt, L.

Hood, V.

Quinton, L.

Hooper, B.

Rankeillour, L.

Howe, E.

Reay, L.

Kimball, L.

Renton, L.

Lauderdale, E.

Renwick, L.

Lindsey and Abingdon, E.

Saltoun of Abernethy, Ly.

Long, V.

Sanderson of Bowden, L.

Lucas of Chilworth, L.

Sandford, L.

Lyell, L.

Seccombe, B.

Lytton, E.

Selsdon, L.

Mackay of Ardbrecknish, L.

Shannon, E.

Mackay of Clashfern, L.

Shaughnessy, L.

Malmesbury, E.

Shrewsbury, E.

Mancroft, L.

Simon of Glaisdale, L.

Marlesford, L.

Skelmersdale, L.

Marsh, L.

Stockton, E.

Massereene and Ferrard, V.

Stodart of Leaston, L.

Merrivale, L.

Strathclyde, L.

Mersey, V.

Strathcona and Mount Royal, L.

Meston, L.

Monckton of Brenchley, V.

Strathmore and Kinghorne, E.

Monk Bretton, L.

Sudeley, L.

Monson, L.

Terrington, L.

Morris, L.

Teviot, L.

Mottistone, L.

Thomas of Gwydir, L.

Mountevans, L.

Trumpington, B.

Munster, E.

Ullswater, V.

Murton of Lindisfarne, L.

Vaux of Harrowden, L.

Nelson, E.

Vivian, L.

Newall, L.

Waddington, L.

Orkney, E.

Wade of Chorlton, L.

Orr-Ewing, L.

Wise, L.

Oxfuird, V.

Young, B.

Pearson of Rannoch. L.

Resolved in the negative, and amendment disagreed to accordingly.
5.1 p.m.
Clause 20 agreed to.
Schedule 4 [Instruments and articles of government for further education corporations]:
[Amendments Nos. 174 to 176A not moved.]
Lord Peston Lord Peston moved Amendment No. 176AA:
Page 69, line 14, at end insert:
("8A. The accounts shall be audited by persons appointed in respect of each financial year by the Corporation.
8B. The Corporation shall consult and take into account any advice given by the Audit Commission for Local Authorities in England and Wales before appointing any auditor under paragraph 8A above in respect of their first financial year.
8C. No person shall be qualified to be appointed auditor under that sub-section except—

(a) an individual, or firm, eligible for appointment as a company auditor under section 25 of the Companies Act 1989;

(b) a member of the Chartered Institute of Public Finance and Accountancy; or

(c) a firm each of the members of which is a member of that Institute.

8D. In this Schedule in relation to a corporation—
"the first financial year" means the period commencing with the date on which the Corporation is established and ending with the second 31st March following that date; and
"financial year" means that period and each successive period of 12 months.").
The noble Lord said: Members of the Committee will not be surprised to learn that I did not invent the

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amendment. It was given to me by an admirable institution; that is, the Chartered Institute of Public Finance and Accountancy. It has written to other Members of the Committee about the matter. This is a technical amendment of some importance. Although it was tabled only a short time ago I hope that the Government have reflected on it and will respond positively to it.
There appears to be an absence in the Bill of provisions for qualified auditors to audit the accounts of the further education corporations. The Bill provides for the establishment of the corporations, for the instruments and articles of government and for the initial and subsequent instruments and articles. However, no explicit mention is made of audit of the accounts. That is in contrast to the higher education corporations because provision is made in Clause 67 by an addition to Section 124 of the Education Reform Act 1988 for the accounts of higher education corporations to be appropriately audited.
It is the view of CIPFA that it would be advantageous to all concerned if a similar provision to that relating to higher education were made for further education in respect of audits. Clause 20 requires compliance with Schedule 4. Amendment No. 176AA suggests that a requirement to the like effect relating to audit is placed on the face of the Bill.
I wish to draw the attention of the Committee to one further matter and I hope that it will meet with approval. The list of persons who would be regarded as eligible to be appointed auditors should include members of CIPFA. I appreciate that that is a slightly biased view but CIPFA is an admirable body. It is worth mentioning its members as being specifically valuable in addition to the other persons who would be valuable in the audit field. I know that in the present circumstances I do not need to emphasise to anyone the enormous importance of audit more generally. This matter is rather more technical compared with the long debate that we have just had. However, I hope that the Government are persuaded of the usefulness of the amendment in this form or, if not, will bring forward their own amendment in another form.
Lord Cavendish of Furness: I am grateful to the noble Lord for bringing forward this amendment which is intended to improve the Bill. It would place on the face of the Bill specific provisions in respect of the audit of colleges. I do not believe that there is any argument between us about the principle of audit of colleges. Clear requirements must be set out about the arrangements for the audit of colleges when they become independent bodies. The Government attach much importance to that.
Clause 20 makes clear that the further education corporations will be conducted in accordance with instruments and articles. The initial instrument and articles will be such as are prescribed by regulation or order under Clause 21. Schedule 4 sets out the broad framework for instruments and articles and the broader areas that must be covered in those important documents. In accordance with paragraph 8 of Schedule 4 the instruments prescribed in the
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regulations will require the further education corporations to keep proper accounts and records. They will also set out the detailed requirements in respect of the annual audit of the accounts.
My right honourable friend the Secretary of State is to consult on these regulations when in draft. Members of the Committee and associations with a professional interest in audit requirements will have an opportunity to comment on them at that stage. I assure the noble Lord that colleges will be subject to the requirements in respect of audit. I hope that in the light of my comments and the fact that the amendment was tabled only recently the noble Lord will withdraw it.
Lord Peston: I thank the Minister. I have no intention of dividing the Committee on a matter of this kind. The moment I started on the debate I knew that I should be out of my depth within 10 seconds. Does the Minister's briefing contain an explanation of why it appears that the further education corporations are not being treated on all fours with the higher education corporations? I considered it important to table the amendment because I was troubled by the fact that the audit requirement was not the same for each. I do not need to pursue the matter further because the Minister gave a helpful reply. Does he have an answer to that question?
Lord Cavendish of Furness: The arrangements for the constitution and conduct of the higher education institutions was set out in the Education Reform Act 1988. We shall soon debate the relevant provision in Part II relating to the higher education corporations becoming part of the new higher education funding sector. The arrangements for the constitution and conduct of the further education corporations are not set out in detail in the Bill. The proposal before the Committee is that they should be covered in the instruments and articles made under Clause 21 and Schedule 4. I hope that answers the noble Lord's question.
Lord Peston: It takes me a little further along the road and of course I shall read the Minister's reply. The essential point of his reply is that his right honourable friend the Secretary of State will consult the relevant bodies. That is most important and it is not necessary for me, let alone the rest of the Committee, to become involved. With that assurance, I am delighted to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 176B:
Page 69, line 26, at end insert:
(". An instrument shall provide for the corporation to draw up and publish its arrangements for monitoring and reporting on the quality of provision made by the corporation. The arrangements shall be substantially independent of the corporation itself and shall provide assessment by persons having substantial experience of post-16 education and training and in employment fields relevant to the activities of the corporation. The findings of assessment exercises shall be passed to the relevant Funding Council and made public.").
The noble Baroness said: This is a probing amendment and I hope that we shall obtain information as a result of tabling it. Its purpose is to

901
require individual colleges to establish and declare publicly their arrangements for quality assurance. They are to include assessment by people with relevant experience in education, training and employment, and to provide that the conclusions of assessment exercises shall be relayed to the funding councils and made public. The Education (Schools) Bill is very strong on the principle of independent inspection of schools and there is absolutely no comparable provision in this Bill. We therefore want to know what is intended. The vague provisions under Clause 9 for quality assessment committees within the funding councils are not an adequate substitute. Effective quality assurance at institutional level requires the involvement of people with the appropriate experience in education and training and of employment fields relating to a college's activities. All that should be in the public domain. As I say, we are making comparisons with the Education (Schools) Bill. I beg to move.
Lord Cavendish of Furness: The amendment would require the instrument or articles of government for further education corporations to provide for the corporation to draw up and publish its arrangements for monitoring and reporting on the quality of provision made by the corporation. The instrument or articles would also have to provide that the arrangements be substantially independent of the corporation itself and provide assessment by persons having substantial experience of post-16 education, training and employment fields relevant to the activities of the corporation.
The findings of assessment exercises would need to be passed to the relevant funding council and be made public. The present colleges of further education have primary responsibility for quality control. Most already have mechanisms for assessing the quality of the education and training they provide.
Performance indicators relating to quality are being developed as part of college management information systems. I am sure that we all agree that colleges need effective systems to improve their quality and contribute to their own efficiency and effectiveness. A number of systems are being explored by colleges.
I do not believe that there is disagreement between us on the matter. The Government attach great importance to systems which will ensure the quality of education and training by the further education corporations. The corporations must have effective monitoring systems. However, neither the instrument nor the articles of government need contain specific provisions relating to quality assurance arrangements. That will happen anyway.
Clause 5 provides for the funding councils to determine the terms and conditions on which they provide financial support to institutions. The Secretary of State will require the councils to draw up financial memoranda with the corporations, outlining the conditions under which funding would be provided to them. The Secretary of State will expect the financial memoranda to contain provisions relating to quality assurance, but did not think it
902
appropriate for the Bill to specify what provisions should be included in the financial memoranda. I hope that gives some answer to the noble Baroness.
Lord McCarthy: The point being made by my noble friend relates to independent surveillance. It is not a question of quality assurance. We are all in favour of quality assurance. Is the noble Lord saying that subsequently in the Bill it says that there will be independent surveillance, or merely that the councils will be associated with the process of quality assurance? It is independent surveillance that we want; somebody independent of the colleges to survey and look at this new and, some would say, extremely dangerous but valuable practice. It is independent surveillance that we require.
Lord Cavendish of Furness: The noble Lord has more experience than myself in the matter. I was looking to see what advice I had. Perhaps we can leave the point. I shall look further into it and come back to Members who are interested before the next stage of the Bill.
Baroness David: I am grateful for that offer, which I accept. I agree with my noble friend; it is the independent quality of the surveillance that is important. That is where I drew the comparison with schools which have independent inquiries.
I am grateful for the noble Lord's comments. If he wishes to discuss the matter with me before the next stage, I shall be grateful. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 agreed to.
Clause 21 agreed to.
5.15 p.m.
Clause 22 [Subsequent instruments and articles]:
Lord Cavendish of Furness Lord Cavendish of Furness moved Amendment No. 177:
Page 17, line 13, after second ("the") insert ("appropriate").
The noble Lord said: On behalf of my noble friend, when moving Amendment No. 177 I shall speak also to Amendment No. 179. Clause 22 allows further education corporations to replace or modify their instruments and articles of government with the consent of the Secretary of State. It also allows the Secretary of State to make changes to instruments and articles following consultation with the council and the corporations concerned, as appropriate.
As the Bill is drafted, the Secretary of State is required to consult the council before making an order under subsections (1) and (2), which would make a new instrument for government for a further education corporation or modify an existing one. The amendments provide that references to the, "council" in Clause 22 were to the, "appropriate council", within the meaning of Clause 1(6). That would ensure that where an educational institution received financial support from both the English and Welsh funding councils the Secretary of State would be required to consult both those councils before making an order under Clauses 22(1) and 22(2). I hope the Committee will feel able to accept the amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 178 not moved.]
Lord Cavendish of Furness Lord Cavendish of Furness moved Amendment No. 179:
Page 17, line 30, at end insert ("appropriate").
On Question, amendment agreed to.
[Amendment No. 180 not moved.]
Clause 22, as amended, agreed to.
Clause 23 [Transfer of property, etc.: institutions maintained by local education authorities]:
Lord Peston Lord Peston moved Amendment No. 180A:
Page 18, line 10, after ("conduct" insert ("together with all outstanding debt relating to those assets").
The noble Lord said: I am going to trouble the Committee with another technical amendment which I did not invent. It was also given to me by CIPFA and again I find it rather interesting.
Clause 23 relates to a subject which we could have debated. It provides for the transfer of local authority assets to the new further education corporations. Clause 38 deals with the transfer of certain loan liabilities. Neither clause provides for the transfer of outstanding debt relating to the assets to be transferred. A careful reading of the Bill suggests that the debt relating to current schemes on which the relevant bodies are engaged will be transferred. At least that is one way of reading the Bill. However, I am advised that there is no way of reading the Bill which indicates that the debt corresponding to completed schemes will he transferred.
It is the view of the Chartered Institute of Public Finance and Accountancy that good practice suggests that all the outstanding debt relating to the assets should be transferred. The reason for tabling the amendment is precisely to air that point before the Committee. I would not dream of calling a Division on a matter of this kind and do not expect the Minister replying necessarily to give more than the beginnings of an answer. However, I plead with him that whatever his answer, can he make it one that I can understand. More to the point, if his answer can include consulting with relevant bodies, as did his previous answer, that will keep me happy.
Lord Cavendish of Furness: I am grateful to the noble Lord for again introducing something which he feels will improve the Bill. I have had to rely more than usually heavily on advice received, but the answer will at least be a matter to be read and considered.
As is known, Clause 23 is concerned with former local education authority-maintained institutions which are to transfer to the new sector, and provides that any land or other property held on their behalf by local authorities will transfer on 1st April 1993 to the ownership of the further education corporations established to conduct those institutions.
The amendment tabled by the noble Lord would dictate that all debts relating to these assets should also transfer. I am advised that that is all very well in theory, but in practice it would not be possible to administer. I am advised that the amendment could not be made to work. Clause 23 follows the precedent set by Section 126 of the Education Reform Act 1988
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which dealt with property transfers to institutions within the polytechnics and the colleges' funding sector. It breaks no new ground.
Under Section 126 of the 1988 Act, land and other property formerly owned by local authorities transferred to the ownership of the relevant higher education corporation, but debts relating to those assets did not transfer. Debt charges arising from capital projects relating to local authority maintained further education institutions are currently the responsibility of local authorities, who receive support through the capital financing block of the local authority finance settlement.
In the further education White Paper the Government made clear their intention that the liability for charges relating to college property incurred until 1st April 1991 would remain with local authorities and not transfer with the colleges to the new funding councils. The reasoning behind that is that local authorities' debts relate to projects going back many years and it would be an exceedingly complex and tedious process to separate those debts relating to the college property from the rest of the local authorities' historic debt.
Furthermore, any debt transfer could not be properly based on total college debt liabilities, since that would in effect reward those local authorities which have in the past overspent—that is to say, those whose expenditure exceeded the level that the Government considered was appropriate at the time. That would not be fair. Local authorities will continue to receive support via the revenue support grant to meet liabilities arising from approved levels of historic debt.
For new capital projects starting in the financial years 1991–92 and 1992–93, it is intended that local authorities will start off bearing the cost of charges in the normal way. Consequent on the provisions of Clause 38, from 1st April 1993, the councils will take responsibility for reimbursing local authorities for the cost of servicing debts arising from certain contracts entered into between 1st April 1991 and 31st March 1993 which are approved by the Secretary of State. The proviso is that the debts do not exceed the level of capital allocations for 1991–92 and 1992–93 for further education and sixth form colleges in each authority.
Any borrowing in excess of these allocations will be the sole responsibility of the local authority; but where such borrowing is within the limits of the authority's overall all-service credit approval, support will be provided by means of the normal local authority financial settlement. The debt charges repayments provisions of Clause 38 are designed to encourage local authorities to continue to invest in capital expenditure for colleges in the run-up to independence. These provisions will give local authorities reassurance that they will receive identifiable support for the liabilities arising from such borrowing. It has been a long and rather technical reply, but I hope that it has been able to assist the noble Lord, Lord Peston.
Baroness Carnegy of Lour: I remember moving a very similar amendment to that moved by the noble Lord on this occasion. It related to the last piece of legislation to which my noble friend referred. It struck

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me as quite extraordinary that the local authorities should continue to bear the debt until I discovered that they would be totally reimbursed. That was merely a convenient mechanism for carrying through the change. I found that the local authorities were quits satisfied by that so I did not press the matter. I understand that the provision appears to have been working. I listened with great care to my noble friend's reply. Provided the local authorities do not spend above their capital allocation it seems they will have the total sums reimbursed each year; so it is simply a book matter.
Earl Russell: I was relieved to hear what the noble Baroness, Lady Carnegy of Lour, had to say because I also felt a certain amount of concern about the Minister's reply. I appreciate that the matter is deeply technical. I am very much reassured by what the noble Baroness said about reimbursement. However, I shall be extremely relieved to hear the Minister say that in relation to this amendment. It does not seem equitable to take away the assets and leave behind the debts. That might begin to look, to put it no higher, a little unfriendly.
Lord Cavendish of Furness: When the noble Earl asked me to speak in connection with the amendment, I believe that I covered the point fairly fully concerning reimbursement. I hope that the noble Lord is satisfied.
Lord Peston: I thought I heard the noble Lord the Minister make that point. Obviously, it was a technical answer and I cannot claim that I fully understood what the Minister was reading out. I shall read what the Minister said. CIPFA is a body of very great significance. It is considerably concerned with good practice, notably good accounting practice. I do not believe that that organisation would have written to me and other noble Lords if it did not feel that there was a point to be made here. Having pointed out that his right honourable friend the Secretary of State would be consulting on the other matter that I raised, I asked the noble Lord the Minister whether, in order to be on the safe side, in case it has a better point than the one I have been able to make, the Minister would at least ask his right honourable friend to meet CIPFA or accept representation from that body, as regards this matter as well. I was reassured, but I do not feel I am expert enough to let the issue rest at that point.
Lord Cavendish of Furness: We want to get this matter right. I was minded to go back because, when I said rather fiercely that the matter was unworkable, I did not mean to cast aspersions on a suggestion that was intended to be extremely helpful. If the noble Lord can leave the matter with me I would like to explore it a little further.
Lord Peston: I gladly leave the matter with the Minister I apologise to the noble Baroness, Lady Carnegy. because I should have mentioned her in my remarks. She put the point very clearly. In a technical area like this, particularly where the LEAs themselves are involved, they may well wish to make representation. It is safer to consult even if one is fairly
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confident that one has got the matter right. With that assurance from the Minister, I am glad to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Lockwood Baroness Lockwood moved Amendment No. 181:
Page 18, line 23, leave out ("given his written approval") and insert ("been provided by the parties concerned with a copy").
The noble Baroness said: I believe that this amendment is fairly straightforward. It is to delete the words "given his written approval" which is that of the Secretary of State, and to insert instead,
"been provided by the parties concerned with a copy"
so that the Secretary of State would know what was happening. It should be possible for a governing body and a LEA to enter into a legally binding agreement without requiring the ratification of the Secretary of State in every case. That is particularly so when there are safeguards. Subsections (5) and (6) have adequate safeguards if there is any default at all under subsection (4).
During the course of the debate on various amendments there has been a great deal of criticism about the Bill giving additional powers to the Secretary of State. It seems unnecessary that we should give him additional powers when no powers are really needed. I believe that to be so in this case. If a governing body and a local education authority are able to reach a voluntary agreement it seems entirely unnecessary for the Secretary of State to have to give his blessing. I beg to move.
Earl Russell: My name is attached to this amendment and I am happy to support it. It seems to be unnecessary to involve the Secretary of State in a business of this kind. It is perfectly possible for two parties to reach an agreement without needing to call in the Secretary of State on every occasion. If the Secretary of State and his immediate advisers are continually involved with business on this level, it may tend to diminish the time they have available for the formation of policy. The Bill seems to be taking a Secretary of State to crack a nut. I support the amendment.
5.30 p.m.
Lord Cavendish of Furness: The amendment would allow for land to be excluded from transfer under this clause by agreement between the local authority and the institution concerned, but without the added safeguard of the Secretary of State's consent. I do not think that that is desirable.
The Government have made clear that those colleges which are to transfer to the new sector shall have responsibility for the management and maintenance of the land, buildings and other property that they use. This reflects our policy of conferring upon colleges the maximum flexibility to conduct their own affairs. The main objective of Clause 23 is to provide for all land and property held by local education authorities on behalf of an institution currently maintained by that authority to transfer to the ownership of the further education corporation established to conduct the institution. However, we

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recognise that there are occasions where the transfer of assets could seriously undermine a local authority's ability to discharge its duties, and accordingly have made provision under subsection (4) for certain land to be exempt from transfer, provided that both parties agree and the Secretary of State consents.
The Secretary of State will take a dispassionate interest in such matters; his role will be to ensure fair play. I am wondering whether the noble Baroness and the noble Earl have misunderstood the thrust of this provision. I consider this an important safeguard to the interests of both parties to a transfer and one which, I might add, has been warmly welcomed by all concerned. The local authorities in particular have voiced their approval to what they see as the "increased validity" of agreements which have received the Secretary of State's blessing. Furthermore, without the reassurance of the Secretary of State's approval, it is likely that many of the agreements facilitated by Clause 23 would not occur. That would be a great pity both for the local taxpayer and for colleges alike. I shall be interested to hear whether the amendment has been tabled against a background of misunderstanding. I hope the noble Baroness will feel able to withdraw the amendment.
Earl Russell: That reply caused me a certain amount of surprise—in particular, the Minister's invocation of flexibility. On occasion flexibility is clearly a good thing. The question is whose flexibility? It seems to me that according to the amendment, we would have been providing for the flexibility of the contracting parties. I think the Minister is anxious about the flexibility of the Secretary of State. We need to think about who is doing the flexing and who is being flexed.
I am beginning to wonder whether flexibility is simply a euphemism for what is always described on this side of the Committee as the proposition that the Secretary of State may do whatever he likes. I take the point about fair play. However, there is always room for dispute about what form of play is fair. Is the Secretary of State's verdict on what is fair play always, in all circumstances, final? Is he always the appropriate umpire?
Baroness Lockwood: I was interested to hear the Minister's response. He wanted to give as much scope as possible to the further education institutions. Yet he goes on to say that they must have the authority of the Secretary of State. Perhaps we can get round this clause by leaving the Secretary of State some powers, where it is necessary in the transfer of property, but at the same time giving the parties where there is agreement the right to proceed with that agreement and keeping the Secretary of State informed. It seems unnecessary that his approval should be sought every time. I shall look carefully at what the Minister has said and see if we can reword the amendment for a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clauses 24 and 25 agreed to.
Clause 26 [Transfer of staff to further education corporations]:
Lord McCarthy Lord McCarthy moved Amendment No. 182:
Page 20, line 18, at end insert:
("( ) Following a transfer under sections 26 or 27 of this Act, a further education corporation, coming within section 26(1) of this Act, or a recipient of a transfer, under section 27 of this Act. shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination of expiry of the collection agreement or the entry into force or application of another collective agreement.").
The noble Lord said: Clause 26 deals with the transfer of staff into the new institutions. The Notes on Clauses relating to the Bill say that the aim of this clause is to ensure that the staff employed are able to continue their work. That gives one a fine sense of priorities. To be fair, it goes on to say that they should suffer no material disadvantage in regard to their contracts of employment or transfer.
It is true that on the face of the Bill there are at least four different ways in which the rights of the staff employed are underwritten as individuals. Subsection (1) defines who are the staff as individuals; who is to be covered. Subsection (2) provides that the individual contract dates of individuals shall continue. Subsection (3) ensures that the new employers shall inherit the obligations of the old employers; and subsection (5) safeguards individuals against constructive dismissal.
But all that refers to individuals. It is true that in subsection (5) we get as near as we can get on the face of the Bill to the formulation of something collective because subsection (5) refers to classes. It provides that the Secretary of State may make orders which refer to classes of employment. What he will make orders about, what those classes are, and what it will all mean is not on the face of the Bill.
That is where this amendment comes in. It provides that:
"Following a transfer under sections 26 or 27 of this Act, a further education corporation, coming within section 26(1) of this Act, or a recipient of a transfer, under section 27 of this Act",
—and here it is—
"shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination of expiry of the collection agreement or the entry into force or application of another collective agreement".
In other words, we are moving into specified groups —groups covered by collective agreements. What is being said in this amendment is that the results of collective agreements should be underwritten until they are renegotiated or changed in the course of time. In other words the workers will be guaranteed their existing pay. They will be guaranteed their existing pay as individuals; but they will also be guaranteed, as parties to the collective agreement, anything which has been negotiated about pay structures; about their grading, about their right of progress through a grade; and about their promotion prospects—all the things that tend to get embodied in collective agreements rather than individual contracts.
They would also be guaranteed the right to raise grievances and to take those grievances to the

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respective representatives of their trade unions. They would have the right, in other words, to participate in the grievance procedures. They would even have the right to negotiate collective improvements to those agreements.
I wish that I could say that the amendment is unnecessary because it is unthinkable—as it would have been 10 years ago—for a public sector employer to undermine collective agreements as a systematic act of policy. But that is no longer possible to say. There are many public employers—British Rail, British Gas, British Telecom and others—who have quite intentionally—as they are entitled so to do—sought to gain advantages by giving employees concessions which they only get outside the collective agreement. We are saying that for this period, under this Bill, it should not be the case that those collective rights—all the ones that I have specified—should be guaranteed to the people who are being transferred from one institution to another. I beg to move.
Earl Russell: On behalf of my noble friend Lady Seear, who has her name to this amendment and may add a word of her own in a moment, I wish to support the amendment. It is a sensible, practical provision that agreements entered into should be continued until they reach their appointed time of termination. It will be a great deal easier for everyone that way at a time when enough upheaval will be going on anyway.
In common with most other noble Lords, I listened yesterday to the noble Lord the Lord Privy Seal make a Statement on the Maastricht Summit. He referred—I quote from memory—to the obscene doctrine that people are not bound by agreements they enter into. I may not have expressed myself quite so colourfully as the noble Lord, but the basic point commands general sympathy on these Benches and in most other quarters of the Committee. What is sound in one quarter is sound in another. That is an excellent reason for supporting the amendment.
Lord Cavendish of Furness: The purpose of Clause 26 is to transfer contracts of employment. It is right that staff transferring to the new corporations should have such contracts safeguarded, as is set out in the clause. It is entirely another matter to extend such a principle to any collective agreement which may have been entered into by a previous employer. That might significantly constrain the new corporations' freedoms to manage their own affairs in an efficient and cost effective manner.
It will of course be the case that elements of collective agreements between institutions' management and their staff representatives will have been incorporated into contracts of employment. That being so, the elements concerned will be protected through the transfer of those contracts intact. But the new managements must be free to re-examine if appropriate other non-contractual parts of such collective agreements and not be hampered or bound by any provisions which would jeopardise these management aims. In other words, these institutions must be allowed to start with a clean sheet with respect
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to collective agreements and not be hide bound or constrained by the policy or practice of their predecessors.
The Committee will be aware that in practice the contracts of employment of individual members of staff which are safeguarded by the clause will indeed incorporate many important features which have arisen as a result of collective agreements made over the years. In this sector there is what is known as the Silver Book, the document recording the outcome of national bargaining between the local authority employers and the lecturers' unions. That document and other agreements which have been made will have influenced what contracts have to say about such important matters as lecturers' duties, arrangements for remuneration and procedures to be followed on such matters as grievances. Where rights and obligations of that kind have been secured as a matter of contract, the clause as put before the Committee secures them. We see no further need to enshrine collective agreements as such by statute. That would be wrong in principle. The new sector, both employers and staff, must be able to negotiate freely on the future handling of these matters.
The approach in the clause is essentially the same as that of Section 127 of the Education Reform Act 1988, which provided for the transfer of staff to the higher education corporations—the newly autonomous polytechnics and colleges. That clause similarly transfers only matters enshrined in contracts and not collective agreements generally. I believe that it has worked satisfactorily for both management and staff. With that response I hope that the noble Lord will not press his amendment.
Lord McCarthy: One is surprised to receive an answer of that kind. The noble Lord is quite right. The clause constrains the employer. It is supposed to constrain the employer. That is why it is there. But it constrains the employer in relation to individuals, not in relation to collectivities. The Government's objection is to the constraint of the employer from the point of view of a collectivity—a collective agreement signed by a trade union. Nor does it follow that it would not be capable of termination. That is what we are suggesting in the amendment. We are saying that the existing agreement would continue until notice was given of termination. That would be open to the employer as it would be open to the trade union. The constraint would not be unlimited; it would be the normal constraint, the to and fro of collective bargaining.
Finally, the Minister said that the corporations must start with a clean sheet—but of course only from the collectivity. From the point of view of the collectivity, the Minister is implying that there may not be any negotiation at all; no guarantee is being given as we transfer from one employer to another that the new employer will respect the procedures and the substantive results of collective agreements. We are not surprised but we will not press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 183:
Page 20, line 30, leave out ("for the time being").
The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 184 to 187. I hope that the Committee agrees that they all go together.
Clause 26, and specifically Clause 26(7), defines who gets transfer rights. Subsection (7) contains three ambiguities —three limitations—with which we deal in the course of our five amendments. All these ambiguities make one wonder whether the framers of the Bill intend to protect full-time employees and part-time employees or only full-time employees. They make one doubt how far they have thought through what a full-time employee is, because on some possible definitions of what a full-time academic is I have to say that I know no full-time academics. That surely cannot be what the Minister intends. The fact is that academia is a pluralist game. All academics are endemic pluralists. If one interprets "full-time" in certain ways and if one interprets some of the words on the face of the Bill, all academics that I know would fall out of the protection of the clause.
In our amendments we are trying to deal with the matter in three respects. First, we want to take out "for the time being". That phrase has to be taken out. It is taken out by our Amendment No. 183 and by our Amendment No. 187. In the context of the Bill as we read it, "for the time being" suggests that the Bill may not cover those who when the transfer takes place are on sick leave, on maternity leave, on sabbatical leave, on secondment, or some other possibility. That cannot be the Government's intention and therefore we feel that the phrase "for the time being" is redundant and ambiguous and is best taken away.
We are also concerned about the presence of the word "only". That is taken out by Amendment No. 185. We submit that not to do so would be dangerous. It would mean that those extracurricular activities which are endemic to academia might be regarded as suggesting that one was employed not only by the college. Most further education lecturers from time to time live on marking A-level papers at weekends. How would we get A-levels marked if full-time lecturers did not mark them at weekends? They serve as external examiners. Sometimes some of them take on part-time private tuition. Some of them who cannot get part-time academic work perform in the evening at gigs. Some of them clean windows; some of them write books. Some of them talk on the local radio—some of them happen to make quite a lot of money talking on local radio. It cannot be the Government's intention to take all those people out and to say that only an academic who does nothing more than lecture and attend five days a week at his academic post is to be covered by the Bill.
We are saying that there is in the Bill no definition of categories that we recognise. Therefore we want to rewrite this part of the Bill. If all our amendments are accepted the clause would read that transference is covered if his,
"employment with the transferor involves work at that institution on a full or part-time basis, and
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(b) subject to subsection (8) below, a person employed by the transferor is … solely at an institution if his employment with the transferor (disregarding any employment under a separate contract with the transferor) is on a full or part-time basis".
We think that makes it clear. We think that that is probably what the Government intend. I beg to move.
Earl Russell: I should like to speak briefly in support of this amendment. The growing tribe of part-time workers in academic life is an unfortunate feature of the present scene. Such workers are often extremely poorly paid and on extremely weak contracts, with a great lack of security. There is much hardship in the field.
I should like to support the remarks made by the noble Lord, Lord McCarthy, about the use of the word "only". If that were applied equally in the higher education sector, we would, for example—just to add one more to the noble Lord's list—have very few books reviewed in the Sunday newspapers. I am happy to support the amendment.
Lord Cavendish of Furness: The amendments all relate to the transfer of contracts of employment of staff employed in institutions which are conducted by further education corporations. The deletion of the expression "for the time being", proposed in Amendments Nos. 183 and 187, would not allow the transfer of contracts of staff who might be employed by an LEA under a contract simply to work at such a place or places as might be specified from time to time; that is to say, without an explicit reference to a particular college.
Such contracts are quite common. The words "for the time being", which would be removed by two of the amendments, provide that the contracts of such staff, who are in fact employed by a college at the time of transfer, would be transferred. I hope that the noble Lord will agree that that is the right approach.
Amendments Nos. 184 and 186 are intended to ensure that staff employed solely at transferring institutions on both full-time and part-time contracts are covered by the terms of Clause 26. Perhaps I may assure the noble Lord that the clause as drafted already has that effect as it does not differentiate between full-time and part-time staff.
Amendment No. 185 proposes the deletion of the word "only". The inclusion of the word is essential to provide for the circumstances where a person has a general contract of employment with a local education authority but in practice may work at several institutions. A groundsman might be a typical example. It seems right that such a person should not automatically transfer from the LEA's employ. But that is a matter which should be looked at on its merits. Where appropriate, such a person could be transferred under the order-making power in Clause 26(1) (b). However, we expect that most cases will be settled by local agreement without an order being necessary. I believe that the staff will be better protected without these amendments to the clause. I hope that the noble Lord will not press his amendment.
Lord McCarthy: I thank the Minister for that response. He has made some reassuring remarks, but they were not entirely reassuring. I wonder whether I could induce him to give a little more reassurance. He said that the phrase "for the time being" would work in the interests of the staff because it allows contracts to be transferred. If that is the case, it is an advantage. However, I still maintain that it has a disadvantage. I suggest that some people may say that because someone was sick or on secondment he or she is not covered by the clause. As I said, the Minister's remarks were reassuring but not entirely so.
The Minister then said that it is a general clause and that the word "only' is essential because it covers people who might work at several institutions. But he continued to say that it may not cover people who work at several institutions. I find the latter worrying. It may be said that a person who spent a number of hours working for an external studies department while working for a university down the road was working at several institutions. That seems to me to be unfair.
Therefore, we come to the central point of whether this clause covers part-time working. If I understood the Minister correctly, he said that it did cover part-time working. In that case I do not see why the word "part-time" cannot be put on the face of the Bill. Can the Minister tell me unequivocally that the Government's intention is that this clause should cover part-time as well as full-time workers? If that is the case, can he say how the word "part-time" is defined?
Lord Cavendish of Furness: I think that part-time is not full-time. However, I can give the noble Lord the assurance that I said—and this will appear in the Official Report—that the effect of the clause does not differentiate between full-time and part-time staff.
Lord McCarthy: In the light of those reassurances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 184 to 187 not moved.]
Clause 26 agreed to.
Clause 27 [Dissolution of further education corporations]:
[Amendments Nos. 188 and 189 not moved.]
Lord Belstead Lord Belstead moved Amendment No. 190:
Page 21, line 9, leave out ("the") and insert ("a").
The noble Lord said: The amendment is a technical one. The Bill does not define "the council" only "a council" in Clause 1. The amendment changes the reference in Clause 27 to "the council" to "a council". It will allow the transfer of the property rights and liabilities of a dissolved further education corporation to the funding council for England or to the funding council for Wales, or both, but only by using the expression "a council". I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 191 and 192 not moved.]
Lord McCarthy Lord McCarthy moved Amendment No. 193:
Page 21, line 25, at end insert ("and
(c) Such persons appearing to him to be representative of employees employed at the institution.").
The noble Lord said: I thought that if Amendment No. 192 was not moved then we would not move Amendment No. 193. However, I am quite happy to move the latter. The amendment suggests that, in the process of consultation, one should consult the persons who are representative of the workers. It is an attempt to change the face of the Bill. On looking at the Bill, we take the view that it is allowing the Minister to decide whether or not he wants to recognise a particular group of workers or a particular representative of the workers; for example, a particular trade union.
We are saying that there should be something on the face of the Bill to ensure that the Secretary of State is not free to decide who he recognises. Therefore, we propose the insertion of a paragraph which would ensure that the Secretary of State consults:
"Such persons appearing to him to be representatives of employees employed at the institution".
I beg to move.
Lord Belstead: As they stand, the provisions of Clause 27 precisely mirror those of Section 158 of the Education Reform Act 1988 which deals with the dissolution of higher education corporations. I must say that I do not think there is a reason for applying different provisions in respect of further education corporations. The amendment proposed would require the Secretary of State to consult representatives of employees employed at a further education corporation before making an order to dissolve the corporation.
I remind the Committee that this clause introduces statutory requirements in respect of the closure of further education colleges where none has ever existed before. At present there are no statutory requirements on local education authorities to inform or consult about proposals to close FE colleges. In this Bill we have ensured that such proposals in respect of FE colleges are the subject of publication and consultation. In practice that gives an opportunity to all concerned, not least staff and students, to submit their views to the Secretary of State if that is what they wish to do.
6 p.m.
Lord McCarthy: The noble Lord seems to have two answers. He said that they have done some good where there was no good previously. He said that nobody had to consult anybody, but now we have permitted somebody to consult somebody. He says that it is a small baby, but a good baby. Our answer to that is to ask why it cannot be the right and proper baby.
The noble Lord's answer to the amendment is that it was wrong before, so it must remain wrong. He says that it was not done before, so it cannot be done now. That is also not convincing, but I shall not press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27, as amended, agreed to.
Clause 28 [Designation of institutions]:
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): The next amendment is Amendment

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No. 194. I should point out that if this amendment is agreed to, I shall not be able to call Amendments Nos. 194A and 195 owing to pre-emption.
Baroness David Baroness David moved Amendment No. 194:
Page 21, line 36, leave out subsection (2) and insert:
("(2) The institution must be one of the following—

(a) an institution maintained or assisted by a local education authority, or which is grant-aided or eligible to receive aid by way of grant, which

(i) has a total enrolment number calculated in accordance with paragraph 1(2) of Schedule 3 of this Act of not less than 200 FTEs, and

(ii) satisfied the requirements of subsections (2A) and (2B) below;

(b) a consortium of educational providers which

(i) has a total enrolment number calculated in accordance with paragraph 1 (2) of Schedule 3 of this Act of not less than 400 FTEs, and

(ii) satisfies the requirements of subsections (2A) and (2B) below;

(c) a voluntary body with a national programme of further education work which satisfies the requirements of subsections (2A) and (2B) below, and

(d) a consortium of voluntary bodies operating across more than one local education authority, which

(i) offers a programme of further education including some which is of the types outlined in Schedule 1 to this Act, and

(ii) satisfies the requirements of subsection (2B) below.

(2A) Subject to subsection (2) above, to be eligible for designation under subsection (1) above any institution, consortium or organisation must have not less that 20 per cent. of its students enrolled on the types of provision outlined in Schedule 2 to this Act.
(2B) Subject to subsection (2) above, to be eligible for designation under subsection (1) above any institution, consortium or organisation must have satisfactory management, monitoring and quality assurance arrangements in place.").
The noble Baroness said: I am supported in this amendment by the noble Viscount, Lord Combermere, who unfortunately is not able to be here this evening. The aim is to extend the criteria for designation. The purpose is to enable a range of bodies with experience in the education of adults to become designated institutions provided they satisfy criteria relating to size and satisfactory internal arrangements. Since the Government acknowledge the size and seriousness of many adult education services, it seems inappropriate that they should—and these are the adult education colleges and other institutions—need to route their applications for funding for Schedule 2 work through a neighbouring institution.
Like previous amendments—for example, amendments to Clause 15 which were moved on Tuesday—this amendment is designed to extend the new FE sector to include major providers of part-time Schedule 2 education. It allows those large institutions, whether or not maintained by an LEA, provided they satisfy management, monitoring and quality assurance criteria, to apply direct to the funding councils for funding. They should not have to route their requests for funding through the further education colleges.
Institutions and services fulfilling those criteria could choose to seek designation (and thus apply
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direct to funding councils) or to route their requests through an FE college as seems most appropriate to local circumstances. The amendment also opens up a direct route to funding councils' funding for major voluntary bodies like the National Federation of Women's Institutes or the Pre-School Playgroups Association, should they prove to qualify and if they wish to avail themselves of that.
Some adult education colleges and voluntary bodies have very good relationships with their local FE colleges, but some do not. We believe that they should have a right to direct access for funding if they qualify under the conditions laid down in the amendment. Therefore, I hope that the Government will look sympathetically at this matter. We have a great respect for all those colleges and voluntary bodies which I mentioned. They would be reassured about the Bill, which is causing great anxiety, if the amendment were agreed to. I beg to move.
Lord Belstead: I certainly agree with the noble Baroness, Lady David, about the importance of the colleges to which she has referred. However, I am worried about several aspects of the amendment. I recognise that the amendment sets very careful conditions as regards size and the proportion of the student body enrolled in Schedule 2 education which would govern the eligibility of institutions and bodies. However, despite that, there are problems with the amendment.
The White Paper Education and Training for the 21st Century announced the intention to designate the Workers' Educational Association and the long-term residential colleges. But the conditions set by the amendment appear to rule out the WEA on the grounds of the proportion of its student enrolment in Schedule 2 education. The amendment insists that it should have no less than 20 per cent. Similarly, it appears that the amendment does not catch all of the long-term residential colleges which, to fulfil the conditions set by the amendment would have to have at least 200 full-time equivalent students (FTEs). I do not believe that one of them is as large as that. The amendment helpfully allows the WEA and residential colleges to enter consortia in order to be eligible for designation, which was referred to specifically by the noble Baroness, Lady David. But this does not square with the undertaking given in the White Paper and is most unlikely to be attractive to the WEA and many of the colleges themselves.
I do not believe that the amendment is workable in relation to its inclusion of maintained schools other than voluntary-aided schools. Those are now governed by schools legislation. Yet under Clause 29 schools, as designated institutions, would be subject to a quite separate set of provisions for their government and conduct. There is a conflict of legislation between that and the provision in this amendment.
I shall now turn to the voluntary bodies. We know that they have a very important role in the provision of further education. Most of their provision falls within the scope of the LEAs' duty to secure the provision of adequate facilities for FE. A small amount of provision made by voluntary bodies falls within Schedule 2 and therefore within the remit of the

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funding councils. At present, it is funded in different ways—by LEAs, perhaps, by central government departments, by TECs and through students' fees. It is that type of provision which the amendment seeks to address.
There appear to be two main anxieties. One is that voluntary bodies can no longer expect to look to LEAs for the funding of provision which will in future fall to the councils' duty. Of course, the LEA continues to have power to fund provision outside its duty, but I nonetheless understand this worry. The second anxiety is logistical. Those bodies making national or regional provision might find it more straightforward to relate to the funding council than to local FE colleges.
I believe these worries can be met. First, voluntary bodies will be able to consider whether Clause 6(5) is useful to them. Under that clause they can ask FE colleges to forward to the funding councils on their behalf an application for support. Secondly, it is open to voluntary bodies to approach the funding councils direct to explore the possibility of designation, where Clause 6(5) is not an appropriate channel of funding for them.
I am aware that three major voluntary bodies—the National Federation of Women's Institutes, the Pre-School Playgroups Association and the National Association for the Care and Resettlement of Offenders—have been named by the National Institute for Adult Continuing Education as proper candidates for designation. It is interesting that two of those bodies were not consulted on the intentions which others had for them. I am confirmed in my view that those bodies, and any other voluntary bodies, should themselves explore the question of designation carefully with the funding councils, if they have worries about the future of the Schedule 2 provision which they make. This is particularly the case where bodies have close funding relationships with government departments or with TECs. Designation may well not be right in all cases.
I am sorry to resist the amendment because I realise that we are dealing with important colleges. However, perhaps I may say that it is wrong to run away with the idea that that means that by being part of the continuing local education authority system, they will in some way be at a disadvantage.
I remind the Committee that my right honourable friend the Secretary of State made it absolutely clear before the Bill commenced its passage that the Government intend to maintain funding for the local education authority adult education sector in the future.
Baroness Seear: I ask this through my ignorance and it is a. request for information. The colleges will go to local education authorities for "leisure work" but they will also be doing Schedule 2 work and therefore will be able to claim moneys from the councils. Is it intended that they should have to go for the Schedule 2 work to be funded from the councils, but through another institution, or can they go direct? I can well believe that there would be many cases when going through another institution would, to put it mildly, be unacceptable. What is the point of making them go
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through another institution? Does the other institution act as a post office or does it have the right to say, "This is a respectable body that can be financed", or not? That would cause an enormous amount of trouble.
Perhaps it is clear to everyone, but it is not clear to me where there are the two sources of funding. There are two questions: where colleges have two sources of funding, can one go direct? If the colleges with two sources of funding cannot go direct but have to go through a further education college, does the further education council have a right of veto on the application from the college?
Lord Belstead: The point which the noble Baroness raises is in Clause 6(5). It is for Schedule 2 work. What happens is that the college would be mainly an adult education college receiving its funding from the local education authority. When the Bill comes into effect it can, as the noble Baroness said, reach in and make an application through a further education college which is doing entirely Schedule 2 work. What the noble Baroness did not say is that there are criteria which the reaching in college must address. The main criterion is that the work being applied for under direct funding from the further education funding council is work which is not being properly addressed in that locality at that time.
If there is any nonsense about the "post office" college, as the noble Baroness puts it, which has looked at the claim, if there is any nonsense about holding up an application unreasonably, then the applying college can complain. As the noble Baroness may recall, there are two powers in the Education Act 1944 under which the Secretary of State can open an inquiry and proceedings against the post office college. It could be found that they have acted either unfairly or unreasonably.
Baroness Seear: That is very important and I am grateful for that reply. It takes us a long way but there is still one point I wish to get quite clear. Does the further education college simply look at the adult college and say, "The work it is doing is already being done elsewhere". Or does it say, "The work it is doing is not good enough". Will it stand as judge on the matter, or is it merely making an administrative decision that the work is already being carried out in another college, therefore it duplicates the work and is unnecessary? Or is it in judgment on the application, saying that the work is not good enough? That is where the rows could arise.
6.15 p.m.
Baroness David: The noble Baroness has covered many of the points I wished to make, but it could be that the further education college to which the application goes is already doing the work. It may wish to keep it for itself and not fund the other college. However, it may well be that the students who are doing the Schedule 2 work in the adult education college have gained the confidence to do the work through doing earlier so-called leisure courses. They wish to continue the work at the same institution.

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I have been told this by a number of people involved in the colleges. They are worried that if they get an unsympathetic further education college which wants to keep the work for itself because it will receive more funding if it attracts more students, it may treat the college unsympathetically. That is why they wish to apply direct in certain cases. Is it clear that if they receive an answer they do not like they can go straight to the funding council?
Lord Belstead: No, my Lords, this type of application comes under Clause 6(5). On my reading of the Bill I can give an assurance in answer to the noble Baroness, Lady Seear. It is not a question of judgment. Clause 6(5) (b) states that where:
"there are no arrangements for the provision in that year of any facilities of the kind specified in the application for the population of the sponsoring body's locality by any other institutions or the arrangements for such provision for that population in that year by other institutions are inadequate"—
there is an element of judgment here—
"the sponsoring body shall apply to the council specified in the request".
That is a duty, and it is where the Secretary of State would come in if the duty were not complied with.
Baroness Seear: I thank the noble Lord for that reply.
Baroness David: I thank the Minister very much for that. He has cleared up a number of points. It is obvious that the amendment which I moved did a number of things which I did not fully intend it to do. It clearly needs reconsideration and we shall probably need to come back to the point, with perhaps a better drafted amendment, when advice has been taken.
I should also like to consult those people who made representations to me from the adult education colleges and who are worried about this aspect. I wish to obtain their advice. I thank the Minister for the clarification. I was certainly not trying to upset the WEA, or the residential colleges. I did not realise that my amendment had any effect on them.
Baroness Carnegy of Lour: Before the noble Baroness sits down, it seems to me in relation to the voluntary organisations that it is important that from this moment voluntary organisations begin to understand how the provision will work. They are rightly worried, they do not understand where to find the two sources of funding and how they are to know to which organisation to go. That is important.
The prevention of duplication which the arrangements involve must be understood by the colleges to which the noble Baroness, Lady David, referred. There is no question that if a course is running in one college, it will not receive funds for the course in the other one if it is not needed. We must realise that. These are two tricky points which people need to understand. I think I can see it working, but it is important that everyone should know exactly what the arrangements are or they will become more and more worried. That would be a pity.
Baroness David: I agree with the noble Baroness that it is important that people should understand
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how it works. We must get it clear. There has been some clarification but we may well need a little more. For the moment, I beg leave to withdraw the amendment, but we shall come back again.
Amendment, by leave, withdrawn.
The Lord Bishop of Guildford The Lord Bishop of Guildford moved Amendment No. 194A:
Page 21, line 37, leave out ("aided school") and insert ("school or a grant-maintained school which was a voluntary school before becoming grant-maintained").
The right reverend Prelate said: In moving Amendment No. 194A I should like to take also Amendments Nos. 197A and 197B. I fear this is a little complicated. It refers back to the exchange I had with the noble Lord, Lord Belstead, late on Tuesday night, when I contended that in our view the voluntary colleges—whether controlled or aided or formerly controlled or aided—should not be declared bodies corporate under Clause 15 but should become designated institutions under Clause 28.
The first of these amendments is part of that package. The noble Lord was kind enough to say that he would have some further discussion with me on the point. It inter-relates to the matters in Clause 30 which deal with the special provision for foundation governors being in a majority in those schools where there is a trust deed. Unless I secure the position in relation to this amendment on Clause 28, I shall be in difficulty with Clause 30, hence my attempt to deal with it now.
Clause 30 as drafted makes provision for those voluntary aided colleges with a trust deed to have a majority of foundation governors. It is our contention that that should be the case for voluntary controlled colleges and for those colleges which are now, or will become, grant maintained, but which were formerly voluntary colleges. The reason for that in the first instance is that they all have trust deeds and those trust deeds must be honoured. Therefore, in our view, all those schools should be treated alike in this respect.
Furthermore, the Education Reform Act 1988 provided that where a voluntary school became grant maintained, there should nevertheless be a majority of foundation governors. The 1988 Act secures that provision for voluntary controlled schools as well as aided schools, and my amendments seek to secure that for sixth form colleges too. Amendment No. 197B seeks to cover those schools or colleges, which we believe should become designated institutions if the necessary provisions are agreed to, even if they do not have a trust deed.
Some voluntary schools do not have trust deeds, either because they never had them or because—this is the case with one or two schools—they have been lost. The 1944 Act provided that where there is no trust deed, the school should continue to operate in the same way as it did before that Act was introduced; that is, as though it had a trust deed.
The amendments seek to secure that there should be a majority of foundation governors for all schools which are or were voluntary schools. I apologise for the complexity of my speech. I hope I have satisfactorily explained my concern. I beg to move.
The Duke of Norfolk: I support the right reverend Prelate on these amendments. I wish to speak also to Amendment No. 197C which seeks to insert a new clause into the Bill. That is the meat of the whole matter.
Noble Lords: Not yet!
The Duke of Norfolk: I hope that I may still continue. The right reverend Prelate seeks to maintain the status quo as regards religious education.
The Lord Bishop of Guildford: That is a different issue.
The Duke of Norfolk: Plainly I had better sit down.
Lord Belstead: We shall reach the amendment which the noble Duke addressed in just a moment. I preface my remarks by reiterating what the right reverend Prelate has said. I offered to discuss this matter with the right reverend Prelate and the right reverend Prelate has accepted my offer. We have covered some of this ground before. The overall objective of these amendments is to place all voluntary sixth form colleges, and any future grant maintained sixth form colleges which were formerly voluntary schools, on the same institutional footing in the further education sector; that is, as institutions designated under Clause 28 to receive funds from the further education funding council rather than as institutions conducted by further education corporations. These amendments would also require the governing bodies of all institutions in the new sector which were formerly voluntary schools, including any which have passed through the grant maintained schools sector, to have a majority of foundation governors.
Under the Bill as it is currently drafted, designation of voluntary schools under Clause 28 would not extend beyond the small number of existing voluntary aided sixth form colleges, with their particular status involving shared financial responsibilities, which will enter the further education sector automatically in April 1993. I listened carefully to the right reverend Prelate but I still believe there is a sound framework in place which will ensure that the position of the trustees and the foundation governors, and the charitable status of the institutions which are voluntary aided, will be preserved. Having listened to the right reverend Prelate, I do not think that we disagree about that. In other words, the path through Clause 28 for the voluntary aided institutions is, in all respects, preserved I understand that the right reverend Prelate finds that satisfactory.
I now turn to the voluntary controlled sixth form colleges which will enter the new sector in 1993, and any voluntary schools, or former voluntary schools, in the grant maintained sector which transfer to the further education sector subsequently. The right reverend Prelate is concerned that they should continue to make their contribution in line with their former voluntary status. However, I believe I am right in saying that no one can envisage a grant maintained college starting up in the near future because there would not be sufficient 16 to 18 year-olds to qualify.
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The Government believe that it is right to make provision for the preservation of the majority for foundation governors of former voluntary aided sixth form colleges which are designated to receive funds under Clause 28 from the further education funding council. However, we do not believe there is a case for extending that privilege to all former voluntary schools. The right reverend Prelate appeared to suggest that there should be a majority of foundation governors in voluntary controlled colleges. Foundation governors commonly hold 25 per cent. of the membership of voluntary controlled school governing bodies and this has been accepted by the interested parties as being sufficient to enable them to fulfil their role with respect to the character of a voluntary controlled school.
The position of foundation governors of former voluntary schools in the new sector which did not have aided status would not therefore deteriorate. Moreover, the institution will continue to be conducted in accordance with its trust deed. The right reverend Prelate explained that for some unfortunate reason a school may no longer have its trust deed. In that case its character will be reflected in the articles of government.
The Government do not believe at the moment that there are grounds for extending the influence of foundation governors in the way proposed for the reasons I have just given. Nor do we believe there is a need for any additional provision in the articles of government. I hope that my comments do not sound negative. My words derive from my conviction that we are being fair and are doing our best to lay the groundwork for what is referred to in another clause of the Bill as keeping a good balance between denominational and voluntary colleges and colleges which have come from the maintained sector. However, I finish as I began. I believe that the right reverend Prelate wishes to discuss this matter outside the Chamber in addition to our discussions in the Chamber.
The Lord Bishop of Guildford: I am grateful to the Minister for giving an undertaking to discuss this matter further. I remind the Committee that Section 53 of the Education Reform Act 1988 specifically provides that in the case of any school that was a voluntary school immediately before it became a grant maintained school, the foundation governors would be in a majority.
All that my amendments seek to do is to continue the arrangements that were secured under the 1988 Act. It is not as if I wish a further extension to that or anything new. I am merely trying to secure what has already been agreed in the discussions relating to the 1988 Act. However, I suspect that it would not be helpful to take up any more of the Committee's time at this stage as the Minister has kindly agreed to hold further discussions on the matter. I shall therefore be happy to withdraw the amendment and continue the discussions elsewhere. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 195 not moved.]
Clause 28 agreed to.
Clause 29 [Government and conduct of designated institutions]:
[Amendments Nos. 196 and 197 not moved.]
Clause 29 agreed to.
Clause 30 [Special provision for voluntary aided sixth form colleges]:
[Amendments Nos. 197A and 197B not moved.]
Clause 30 agreed to.
6.30 p.m.
The Lord Bishop of Guildford The Lord Bishop of Guildford moved Amendment No. 197C:
After Clause 30, insert the following new clause:
("Religious education
.—The provisions relating to religious education and religious worship contained in the Education Reform Act 1988 shall apply to all further education institutions which were formerly maintained or grant-maintained schools.").
The right reverend Prelate said: The amendment brings us to the discussion which we nearly started by accident a moment or two ago. The question at issue—to which I referred in the Second Reading debate—is whether, if the sixth form colleges are to be transferred to the further education sector, the provisions of the Education Reform Act in relation to religious education and religious worship should still apply, as they do at present. The amendment seeks to provide that that should be the case.
I have no desire to re-open the fairly lengthy discussions which we had in the course of the debates on the Education Reform Act. It seems simplest merely to say that, notwithstanding that the funding arrangements have changed, the religious education and religious worship provisions should continue to apply. I hope that that will be acceptable to the Government. 1 beg to move.
The Duke of Norfolk: The new clause which the right reverend Prelate has moved seeks to maintain the status quo over religious education in institutions of further education covered by the Bill. Legislation on schools provides for religious education to be given and religious worship to take place in all schools. Those provisions were re-approved by Parliament as recently as 1988 in the Education Reform Act. Members of the Committee will no doubt recall the lengthy debates which took place in this Chamber and the strong support which was expressed for the religious provisions of the Act. The Bill would quietly drop them in the case of sixth form colleges, leaving the decision to individual governing bodies. That would mean the disappearance of religious education and worship in many of those colleges, particularly in non-church colleges. The position in sixth form schools would remain unaltered but in sixth form colleges it would be changed.
The justification for that change is alleged to be that the tradition in further education is different and does not include religious education at that age. I do not find that an adequate reason, particularly as the Bill itself does not adopt what is described as the further education tradition since it apparently leaves the decision to local choice by the governing body.
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I cannot think that we live in a time when the 16 to 18 age group does not need the help of religious education. I hope that we can maintain the status quo and not embark on changes so soon after Parliament reviewed the matter in the Education Reform Act.
Lord Renfrew of Kaimsthorn: It is with considerable diffidence that I rise to speak on this matter, on which I am much less qualified to speak than the right reverend Prelate the Bishop of Guildford who moved the amendment. I do so as the head of an institution which has a chapel in which, by the statutes of the college, divine service is celebrated every day of the term and has been for more than seven centuries. It is the case, however, that in the higher education sector attendance at an act of collective worship is on a voluntary and not a compulsory basis, and that has been the case for many years.
The right reverend Prelate is correct in asserting that in sixth form colleges at present such participation is on a compulsory basis because under Section 9 of the 1988 Act the parent—and I find it somewhat curious that it refers to "the parent" rather than "a parent" but that is not an important point—has to request that the pupil be excused from the act of collective worship.
It is the case that the present Bill makes a number of significant changes, which have been very fully discussed already in this Committee. Sixth form colleges now move to the further education sector and will be subject to the provisions applying to that sector. That distinction, arising mainly out of Clause 3 of the Bill, was very fully discussed. The matter was questioned in the amendment proposed by the noble Lord, Lord Beloff, and dealt with fully.
There is here an important element of choice for the schoolboy or schoolgirl who has passed the age of compulsory education and may choose whether to remain within his or her school at sixth form level, if there is such provision within the school, or to go to another sphere of education, namely further education. Some may prefer the more structured and closely disciplined environment of school. Others may prefer the new world of a college in the further education sector which much more closely resembles the institutions which they may enter some years later at the age of 18 if they proceed to the higher education sector. These are now young adults—students not pupils. It is within the logic of the Bill that that is where the division comes between pupils and students, between the secondary and the further education sectors.
The time comes when children become adults, albeit young adults, with new responsibilities and freedoms, among which is the discretion to take their own view concerning collective worship. Were the right reverend Prelate's amendment simply to assure the provision of a single act of collective worship, as in Section 6 of the 1988 Act, that would be an entirely appropriate provision and one which I should be very happy to support. However, I am afraid that it goes further. It entails also the provisions of Section 9 of the 1988 Act. It would make attendance compulsory at the sixth form college unless the parent of the pupil were to request otherwise. I feel that in the further

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education sector we should be encouraging students to thin1 for themselves and to take responsibility for themselves.
Therefore, although I should be happy if the amendment were to make the provision of a single collective act of worship compulsory, I cannot support the notion that attendance should also be compulsory.
Lord Peston: Perhaps I may say a word in support of the noble Duke, the Duke of Norfolk, on this matter. 1 do not want to go into the substantive matter of religion, on which my views may well differ significantly from those of the noble Duke and of the right reverend Prelate. However, as a matter of principle it seems to me to be wrong that, purely as an incidental consequence of a Bill dealing with further education, we should amend some very detailed provisions which, as the right reverend Prelate said, we debated at great length in connection with the 1988 Act.
If the Government wish to reconsider the question of religious education and religious worship they ought to place the matters before us so that we can have a long-winded row on the matter if need be. However, merely for that to happen as a consequence of legislation dealing with further education would be wrong. We should not be involved in matters of this kind as a consequence of a desire to reform further education. That should be dealt with on another occasion. I consider that a good point arises as a result of the amendment.
The Duke of Norfolk: At present religious education is compulsory up to the age of 18. Parents can opt out if they want to do so. In direct grant schools, grant-maintained schools and voluntary aided schools religion is part of the curriculum in the school. However, I agree that there is an opportunity to opt out. If such schools are transferred to the further education sector we believe that the religious elements should remain compulsory or available up to the age of 18.
Lord Belstead: This is quite a difficult matter. The intervention of the noble Lord, Lord Peston, was perfectly reasonable. I was in no way surprised to see the amendment on the Marshalled List in the name of the right reverend Prelate.
The Committee will be aware from the discussion that religious education and collective worship have been compulsory in schools since the Education Act 1944. The Education Reform Act 1988 emphasises that it is the duty of all schools to provide a curriculum which promotes the spiritual, moral, cultural, mental and physical development of pupils. I believe that that provision was inserted by your Lordships' House. Religious education and collective worship play an essential part in that process. Parliament was clear in its view that they should continue to be provided in the schools, but, partly for the reasons given by my noble friend Lord Renfrew, such provisions have never extended to further education or other post-16 institutions outside the schools sector. The details of
926
the curriculum have traditionally been left to the governing bodies of those institutions to determine for themselves.
I take the issue head on. It is this point that will affect the sixth-form colleges which go into the new, centrally funded further education sector; but, in saying that, perhaps I may make two points. First, individual institutions are to make such arrangements as their governing bodies see fit or—this is an I important point to bear in mind—as their trust deeds may dictate. In making such arrangements as the governing bodies see fit, it is fair to say that some of the considerations to which my noble friend Lord Renfrew gave voice would be in the minds of the governors.
Secondly, we should not forget that the voluntary-aided colleges which are to go into the new further education sector will enter that sector through designation. The foundation governors will be in a majority and will be able to preserve the provision of religious education. The voluntary-controlled colleges, over which the right reverend Prelate and I still have outstanding points to resolve, would be able to apply for foundation governors to be in a majority and would therefore be able to preserve the provision of religious education. It would be open to them to do that.
As the right reverend Prelate reminded us, grant-maintained schools were given a majority of foundation governors when voluntary-aided and voluntary-controlled schools became grant-maintained. I realise that that does not answer the main point in the amendment, but we should not forget that quite a large swathe of colleges which go into the new sector will undoubtedly wish to address in a positive manner the question of religious education, and possibly religious worship.
We do not intend by this amendment to fetter unnecessarily the freedom of anyone. It is rather the other way round. The sixth-form colleges that go into the further education sector should then be free to make the provision that they think right in this matter.
Lord Hailsham of Saint Marylebone: There is one point with which my noble friend has not dealt, or at least I did not hear him deal with it; namely, the distinction between compulsory and available facilities for religious worship in those colleges. I take the point that he has just made that, once they move into further education, it may be right for governors to have the say as to the degree to which religious education and worship is allowed or provided. However, one cannot altogether forget that the origin of the schools which are dealt with in the amendment is one in which they were originally governed by a trust deed for the purpose of the religious ethos of the school.
I take the point that, at age 16 plus, it may well be that attendance at a religious ceremony might be left to the voluntary decision of the pupil. However, the availability of religious facilities in an institution that was once founded by charitable endowments for the purpose of providing available religious worship as a collective act is rather a different matter. I wonder whether my noble friend has thought of that point.
6.45 p.m.
Lord Belstead: I must be truthful, because it is not much good being untruthful with regard to my noble and learned friend, and say that I do not think that the matter has been addressed, certainly not by myself. In referring to the availability of religious facilities in institutions that were founded by religious denominations, he is talking about the maintained sector which sprang originally from the churches. Perhaps I may take that point away because I have no better answer to give my noble and learned friend this evening. It is a telling point. Perhaps I may put it in rather homely language for my own personal consumption. The question arises: what about the facilities that exist? To what use will they be put in the future? My noble friend Lord Renfrew may have provided some of the answers, but perhaps I may take the question away to see whether I can find an answer.
The Lord Bishop of Guildford: I am grateful for this brief debate and wish to say at once that I am sensitive to the arguments put forward by the noble Lord, Lord Renfrew. I do not for one moment wish to dismiss the importance and seriousness of what he said.
My anxiety is that if, as the Government appear to indicate, it is their intention that those who attend sixth forms in sixth-form colleges are no longer required to have religious education and to attend a collective act of worship on the grounds that have been put forward—namely, that young people of that age are free to choose—it automatically applies that, similarly, 16 year-olds in schools should be allowed to choose. I therefore contend—I almost gave a warning—that, if we open all that up again, we are bound to enter into all the discussions that we had prior to the 1988 Act. I would rather not do that because that was a long and difficult process and I was only on the touchline. Heaven forfend that we should have to go through it all again with me in the front line!
However, I am grateful to the Minister for saying that further discussions are to take place. I may have misunderstood the noble and learned Lord, Lord Hailsham, but the amendment applies to all sixth-form colleges, whether they have trust deeds or not, because that is the current position.
Lord Hailsham of Saint Marylebone: Perhaps I was foolish not to make the point that I had just been listening to my noble friend on the Front Bench. He made what appeared to me to be a valid point; namely, that in the case of the voluntary-aided group, the majority of governors would probably be foundation governors. They could therefore have the say. That was the point I should have made, and the right reverend Prelate is perfectly right to take me up for not making it.
The Lord Bishop of Guildford: I do not wish to detain the Committee further on this point. I hope that it is recognised that it is a point of some sensitivity and importance. I therefore hope that it will be possible for us to discuss the matter further. It may be necessary for me to come back with further
928
amendments if we cannot achieve a successful outcome to the discussions that must take place. On that basis, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 31 to 33 agreed to.
Clause 34 [Making additional property available for use]:
Baroness David Baroness David moved Amendment No. 198:
Page 26, line 14, at end insert (", and
(c) he has received assurances from the governing body of the new sector institution that the use to which the property which is the subject of this order will for a period of not less than three years after the order shall take effect he the same as that for which the property was used prior to the local education authority discontinuing, or planning to discontinue its use.").
The noble Baroness said: The purpose of the amendment is to ensure that former LEA premises used for further education provision remain in use for that purpose. Unfortunately, there has been a long history of premises provided or secured for the education of adults being taken over for what have been considered higher priority uses by the controlling institution, be it a school or college.
The more central or mainstream role being afforded to Schedule 2 adult education in the new sector will probably have the effect of making that situation less likely in the longer term. However, there is a need to safeguard premises from the loss of their adult role. That will be of particular importance for premises which are at a distance from the parent college.
We should like to know the Government's attitude to this matter and to hear that there will be some safeguards. I hope that the Minister will accept the amendment. I beg to move.
Lord Cavendish of Furness: The purpose of the clause is to ensure that facilities continue to be available for the provision of further education courses in instances where a local education authority decides to take them out of use but the governing body of a local further education institution believes that they are still needed by local people.
Under the Bill, the Secretary of State will have a power to make available by order a local authority's land or property for use by an institution in the further education sector where it has been used for the provision of further education and where the local education authority has ceased or intends to cease to use it for that purpose.
Clause 34 is intended to make plain that this is a device of last resort. There are a number of safeguards that make clear that it is not possible for a further education college arbitrarily to secure the property of a local authority. I believe that that is what the noble Baroness seeks.
First, the property in question must cease to be used for further education. Thus, if an LEA goes on providing further education in the property, the question of transfer cannot arise at all.
Secondly, the further education sector institution must be unable to secure access to the property by agreement with the LEA. Thus if the LEA concedes a

929
lease of the property on reasonable terms, or guarantees access under a contract, there is again no question of transfer.
Thirdly, it must be necessary or desirable for the further education sector institution to have the use of the property. Thus it must contain facilities needed for further education sector purposes (for example, dedicated facilities for a course listed in Schedule 2), and the further education sector institution must itself lack adequate facilities, or not be able to provide them for the area in which the property is located.
Fourthly, applications must be made within three years of 1st April 1993. Fifthly, the Secretary of State must consult the further education funding council, the local authority and the Education Assets Board before making an order transferring the property, or giving the further education sector institution rights to use it.
This clause is necessary because local education authorities will no longer have a statutory duty to secure the provision of further education of the sort listed in Schedule 2 to the Bill. We want to guard against the situation where a local authority decides to take out of use a facility dedicated to that sort of further education—for example, a centre for basic skills funded through education support grant. If the facility is still needed for the people of the area, the local further education college should be able to secure its continued use. We hope that such matters will be settled by agreement locally. But in cases where no agreement can be reached, it will be necessary for the Secretary of State to retain the powers of last resort set out in this clause.
The amendment suggests that property should only be transferred where the Secretary of State has received assurances from the college that it will be used for the same purpose as before for at least three years. As I said, there are substantial safeguards to secure that property is transferred only where it is really needed. But I do not think that it would be helpful to eliminate altogether the possibility that a college might want to use the property for slightly different purposes—for example, to transfer some of the courses put on in the property to its main site and to use the new property for some of its other courses. That is useful managerial flexibility. In the light of that explanation, I hope that the noble Baroness will not press the amendment.
Baroness David: So far as I could follow, perhaps there was some reassurance there. I should like to examine what the Minister said and, if I am not totally satisfied, come back at the next stage. I understand that this point will be followed up by the noble Baroness who intends to move a Motion that the clause should not stand part of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 34 shall stand part of the Bill?
Baroness Seear: I had no idea that this noble Baroness was making such a proposal. If she did ever say so, she made a mistake because she is not so proposing.
Clause 34 agreed to.
Clauses 35 and 36 agreed to.
Schedule 5 agreed to.
Clauses 37 and 38 agreed to.
Clause 39 [Control of disposals of land]:
[Amendments Nos. 199 and 200 not moved.]
7 p.m.
On Question, Whether Clause 39 shall stand part of the Bill?
Earl Russell: I intend to raise this matter. It may be for the convenience of the Committee to consider together the Motions that Clauses 39 to 42 should not stand part of the Bill. This is an interrelated body of clauses. I believe I am correct in saying that the deletion of the one clause would have the consequential effect of the deletion of the others.
These are clauses which caused a good deal of debate when they were first foreshadowed in the Statement which announced that the Bill was coming. They deal with the wrongful disposal of assets. They make provision for repudiating contracts if necessary in the case of all contracts entered into after 21st March 1991, which is quite some time ago. I appreciate that it is the view of the Chamber that retroactive legislation is not always impermissible. Nevertheless, I believe that it ought to be looked on with a certain amount of suspicion and given a good deal of scrutiny before this Chamber permits it.
An interesting question arises: why the choice of 21st March 1991? I am grateful to the noble Lord, Lord Belstead, for confirming that that was the day of the Statement which foreshadowed the introduction of the Bill. So control on the disposal of property is becoming law from the day of the ministerial announcement. That has a certain vague resemblance—I admit it is only vague—to legislation by decree: a measure acquires the force of law from the day on which the Minister announces it.
That is something about which I feel a good deal of misgiving. It is always a good test for this kind of situation to ask what one would feel if the power were used the other way round. Let us therefore imagine a government not drawn from the Benches opposite. They come into office and introduce a law requiring that all disposals of assets after 1st December 1991 shall be held to be void. One might then hear a certain amount of protest. I think that we should treat the cases as parallel.
There is a good deal of difficulty in controlling the executive. Therefore it needs to be wary in the use of its powers. The use of such powers which give the executive more opportunity to exercise flexibility is addictive. It will be argued that it is a case of making too much fuss about a little thing. However, if one accepts the principle of addiction, then it is not necessarily an answer to say that the first shot is really a very little one.
I listened carefully last Tuesday to the arguments of the noble and learned Lord, Lord Hailsham of Saint Marylebone. He again argued that I was making too much fuss about a little thing. I found afterwards—I wish that I had found it while I spoke—the note that I had made while he was on his feet which referred to

931
"a little cloud no bigger than a man's hand". As the Committee knows, that led to a good deal of disturbance.
Other points need to be taken into consideration. We have another example of government suspicion of local authorities. We have had one already today with regard to Amendment No. 181 about agreements on property requiring the consent of the Secretary of State. We have had another example on contracts. The matter comes up so frequently that it is beginning to sound a little like paranoia. While everyone, in particular Members of the Committee on these Benches, admits that there are local authorities which are rightly viewed with suspicion—I am sure that my noble friend Lady Seear will give examples willingly —not all of them ex officio are necessarily viewed with suspicion.
Much was said when the Statement was made on the Bill about the danger of planning blight as a result of such a long control on disposal of assets. There is also a real problem with contracts which were in the process of being negotiated at the time that the Statement was made which were caught halfway through the process. We are all familiar with the problem of the housing chain. That can also arise in relation to public buildings. When we consider areas where retroactive legislation is to be viewed with suspicion, I should have thought that those persons involved in the disposal of properties ought to be regarded as fairly high up the list. I beg to move that the clause shall not stand part.
Lord Hailsham of Saint Marylebone: Perhaps I may make a short point in answer to the witty observation that the noble Earl made about our previous exchange last week. He seemed to think that he had support for his argument either last week with l'esprit de l'escalier or, for the Motion that he has opposed today, by the reference to the cloud the size of a man's hand which he said had caused a good deal of upset. On the contrary, it proved the fruitful end of a large drought.
Lord Cavendish of Furness: Clause 39 provides that during the "controlled period", which for the majority of institutions will be from 22nd March 1991 to 31st March 1993, local authorities must obtain the consent of the Secretary of State before disposing of any land held or used for the purposes of an institution which is transferring to the new sector. This includes the disposal of and the option to acquire freehold or leasehold interests as well as outright sale.
This clause follows the precedent set by Section 137 of the Education Reform Act which dealt with disposals involving institutions funded by the Polytechnics and Colleges Funding Council. It is nothing new. It is essentially a measure which is designed to prevent local authorities from disposing unreasonably of assets held for the purposes of an institution transferring to the new sector. The aim is to ensure that on independence colleges are not placed in a position where their ability to fulfil their functions is compromised. I am sure that none of us would want to see that happen.
932
I know that this measure is not likely to find favour with local authorities, but our prime concern must be for the colleges themselves. It is vital that their interests are safeguarded.
It was considered necessary to make a Statement on 21st March to seek Parliament's approval of retrospective legislation in order to protect institutions which will fall within the new sector from local authority depredations in the intervening period. The noble Earl may remember that it was in response to an announcement made on 21st March in another place that two boroughs, Haringey and Rochdale, passed resolutions at emergency meetings to appropriate for other purposes significant parts of their respective college properties. The stated purpose behind the move was to safeguard the authorities' interests. I do not believe that it is too speculative to suppose that the ultimate intention was to dispose of those properties. Indeed, in the case of Haringey the local press reported that a national supermarket chain was the potential buyer for the appropriate site. I held that without the 21st March Statement, and my honourable friend's intention, and the subsequent provision of Clauses 39 and 40, many authorities would seize the opportunity to sell off their colleges' assets in the lead-up to independence.
Furthermore, the Department of Education and Science has intervened on a number of occasions to protect colleges from unwelcome disposals. However, intervention is not all one-sided. For example, in one instance, despite a college's objections, my right honourable friends agreed to the authority's proposal to dispose of a college site.
There will of course be occasions when a local authority might have a just reason for wanting to dispose of property. The Bill recognises this and Clause 39 allows for the Secretary of State to give consent to such disposals. It also allows for such consent to cover groups of disposals and empowers the Secretary of State to give his consent prior to Royal Assent.
The noble Earl spoke to the question whether Clause 42 shall stand part of the Bill. Clause 42 empowers the Education Assets Board to repudiate contracts made by local authorities which are in contravention of the preceding clause: that is to say where the local authority has not obtained the consent of the governing body of the institution and, where appropriate, the consent of the Secretary of State. The clause provides that such repudiation shall take effect as a repudiation by a local authority and any liabilities arising out of the cancellation shall be the responsibility of the local authority; and that is quite right.
I have no doubt that local authorities will resent the power of the Education Assets Board to repudiate contracts made by them. However, this power can only be invoked when a local authority has acted unreasonably, that is, in contravention of Clause 41. The most important consideration is the colleges themselves. Their interests must be protected. Both clauses are essential. I ask the Committee to agree that they stand part of the Bill.
Lord Renton: Before the noble Earl replies, perhaps I may say, first, that the noble Earl in his genial way created quite an interesting precedent when he invited us to consider the question whether four clauses taken together shall stand part. It is something upon which my simple mind is normally incapable of concentrating. However, I believe that he was justified in letting us save time in this way on this occasion.
However, I feel bound to point out that many of the institutions referred to in Clause 39 and in later clauses arc charities. This morning we concluded the Public Bill Committee on the Charities Bill. That is a detailed Bill which to a great extent by reference to previous legislation has amended the law, including the law relating to disposals of land. I merely express the hope —it may be difficult for my noble friends on the Front Bench to reply to it—that those exceedingly able people who are responsible for giving instructions to parliamentary counsel for the drafting of the Charities Bill and this Bill have made sure that in this part of the Bill there has been a proper dovetailing with the detailed provisions of the Charities Bill.
The Lord Bishop of Guildford: I hope that it is not out of order for me to ask for clarification. I have received no brief and may have misunderstood the matter. I understand that Clause 39(2) (c) brings into the controlled period those educational institutions mentioned in Clause 28 of the Bill which are voluntary-aided colleges. Is it the intention of the clause to impose a limitation on schools or colleges which are held under trust deeds?
Lord Cavendish of Furness: I am under the impression that the answer is, no. However, if I am wrong I shall write to the right reverend Prelate forthwith
Earl Russell: I thank the noble and learned Lord, Lord Hailsham of Saint Marylebone, for his observations. I take the point about the end of a large drought, but a certain amount of upheaval is involved. I also take the point about precedent but not everything that has been done before is necessarily correct.
I take the Minister's point about our prime concern being for the colleges. Of course, in this day and age even more than usual many colleges are vitally dependent for their survival on the sale of land. Many are in the London area. Those colleges may find that their future financial plans are completely brought to a halt. They may find that interest on a debt continues to accumulate and their plans for dealing with it are brought to a halt. While I agree with the Minister about the interests of the colleges being put first, I am by no means clear that that necessarily points in favour of the present clause.
I take the Minister's point about Haringey. Such cases exist from time to time but here the Minister is making a judgment about intention. That is always tricky. No doubt the Minister will be familiar with judgments that are made from other Benches about the Government's intention. No doubt from time to
934
time he considers that such judgments are unfair. Indeed, some have been made in connection with this clause.
I listened to the Minister's point about the Secretary of State giving consent to disposals where they are, in the eyes of the Secretary of State, necessary. That is yet another example of an issue about which we on these Benches have complained throughout the progress of what is now the Bill and throughout the progress of what is now the Education Reform Act 1988. We have complained about the continual extension of the power of the Secretary of State into areas where it did not before operate on that level; the continual elevation of the Secretary of State's individual judgment to the point where it is approaching something which is very close to the rule of law.
I appreciate that this is a complicated issue and that there is a case to be made on the other side. I listened with a great deal of care to the noble Lord, Lord Renton, who obviously has a point to make. When I listened to the Minister, however, I heard no perception that there is a point of difficulty. If I had heard that—a recognition that there is a constitutional problem but that maybe I am taking it too seriously —I should not have pressed the matter further. However, I am deeply worried about the extent to which the Executive is unaware that there is a problem about elevating its power in this way. I can think of only one way to bring to the attention of the Executive that there is a problem. I oppose the Question that Clause 39 stand part of the Bill.
7.14 p.m.
On Question, Whether Clause 39 shall stand part of the Bill?
Their Lordships divided: Contents, 66; Not-Contents, 31.

Division No. 2

CONTENTS

Abinger, L.

Jenkin of Roding, L.

Arran, E.

Kitchener, E.

Astor, V.

Lane of Horsell, L.

Auckland, L.

Lauderdale, E.

Beloff, L.

Lindsey and Abingdon, E.

Belstead, L.

Long, V.

Blyth, L.

Mackay of Ardbrecknish, L.

Brougham and Vaux, L.

Mackay of Clashfern, L.

Carnegy of Lour, B.

Marlesford, L.

Carnock, L.

Merrivale, L.

Cavendish of Furness, L.

Mersey, V.

Coleraine, L.

Monk Bretton, L.

Cox, B.

Morris, L.

Crickhowell, L.

Mottistone, L.

Cross, V.

Mountevans, L.

Dacre of Glanton, L.

Murton of Lindisfarne, L.

Davidson, V. [Teller.]

Orkney, E.

Denton of Wakefield, B.

Park of Monmouth, B.

Ferrers, E.

Pearson of Rannoch, L.

Fraser of Carmyllie, L.

Peel, E.

Goold, L.

Perry of Southwark, B.

Guildford, Bp.

Rankeillour, L.

Hailsham of Saint Marylebone,

Reay, L.

L.

Renfrew of Kaimsthorn, L.

Hemphill, L.

Renton, L.

Henley, L.

Seccombe, B.

Hesketh, L. [Teller.]

Shrewsbury, E.

Hives, L.

Skelmersdale, L.

Hooper, B.

Strathclyde, L.

Howe, E.

Strathmore and Kinghorne, E.

935

Swansea, L.

Vaux of Harrowden, L.

Thomas of Gwydir, L.

Waddington, L.

Trumpington, B.

Wise, L.

Ullswater, V.

NOT-CONTENTS

Addington, L.

Lockwood, B.

Airedale, L.

Macaulay of Bragar, L.

Annan, L.

McCarthy, L.

Avebury, L.

McNair, L.

Beaumont of Whitley, L.

Morris of Castle Morris, L.

Blackstone, B.

Pitt of Hampstead, L.

Carmichael of Kelvingrove, L.

Rochester, L.

David, B.

Russell, E. [Teller.]

Dean of Beswick, L.

Seear, B.

Desai, L. [Teller.]

Stoddart of Swindon, L.

Ennals, L.

Strabolgi, L.

Graham of Edmonton, L.

Tordoff, L.

Hatch of Lusby, L.

Turner of Camden, B.

Hughes, L.

Warnock, B.

Kilbracken, L.

Williams of Elvel, L.

Kirkwood, L.

Resolved in the affirmative, and Clause 39 agreed to accordingly.
Earl Howe: I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Offshore Safety Bill [H.L.]
7.22 p.m.
Report received.
Clause 4 [Increased penalties under Part I]:
Lord McCarthy Lord McCarthy moved Amendment No. 1:
Page 4, line 31, at end insert:
("and the court, in deciding upon the penalty for an employer guilty of any such offence, shall take into account the extent to which he has consulted with safety representatives or safety committees within the meaning of section 2 of this Act").
The noble Lord said: My Lords, in moving Amendment No. 1 I shall speak also to Amendment No. 4 since both amendments seek to do much the same. Essentially they seek to do something about penalties; they seek to link penalties to the extent to which an employer has consulted existing safety committees or safety representatives within the meaning of the Act.
Amendment No. 1 deals with the proposed amendment to the Health and Safety at Work etc. Act 1974 on the face of the Bill which provides additional penalties for health and safety offshore; that is to say, imprisonment on conviction for up to two years, a fine or both. To that increase in penalty we add the amendment, which states that the court,
"in deciding upon the penalty for an employer guilty of any such offence, shall take into account the extent to which he has consulted with safety representatives or safety committees within the meaning of section 2 of this Act".
We would argue that an amendment of this kind, which we were pleased to discover was within the compass of the Long Title, is in line with what Lord Cullen said about safety committees, and in line with and pursuit of the objective of the Government when they said that they accepted every recommendation in the Cullen Report.
That amendment was tabled in order to deal with the problem of safety legislation offshore. But in case it is said by the Government or any Member of the House that that would place a special tariff on punishment for offshore employers, we added Amendment No. 4, which makes a similar provision for industry generally. Therefore the same conditions apply to all employers. If the Government wish to accept Amendment No. 1 but not Amendment No. 4, that is something we can consider.
The House will remember that in his report Lord Cullen was concerned to strengthen the role of safety representatives. Three specific recommendations were made in the report—27, 30 and 31—which asked for various points to be laid down in order to strengthen the role of workers in relation to workplace safety on oil rigs. They asked the regulatory body—the Health and Safety Executive, the operators or the contractors—to support and encourage the involvement of the workforce in safety. The recommendations proposed that safety representatives should be protected against victimisation by Section 58 of the Employment Protection Act applying to them. Recommendation 31 said that the 1989 regulations should be modified to the effect that the training of safety representatives was paid for.
At Committee stage we said that we found none of those proposals in the Bill. At that time we sought to introduce an amendment to include some of them. This time we managed to put the amendments before the House. We are trying to meet the implementation of the Cullen Report in full. I beg to move.
Lord Rochester: My Lords, I added my name to the amendments and am glad to support them. I congratulate the noble Lord, Lord McCarthy, for the ingenious way in which he managed to bring to our attention the desirability of involving employees in the promotion of safety under a clause in the Bill which deals with penalties for contravening safety requirements.
At Second Reading, and again in Committee, I made plain my anxiety that, despite the recommendations of Lord Cullen, the Bill contains no reference to the value of safety committees and safety representatives as a means of helping to enforce the principle that each employee is responsible for his own and his fellow workers' safety. On each occasion the noble Viscount, Lord Ullswater, told us why changes could not be made to the 1989 safety representatives and safety committee regulations under the 1974 Act until the Bill had been enacted, thus making the regulations statutory provisions, and until the regulations had been reviewed. The amendment provides another way to induce employers in the meantime to consult with representatives or a safety committee as a means of improving provision for the safety of employees.
The amendments do not seek to prescribe specific penalties for offences. Their effect is simply to oblige the courts, before reaching their conclusions, to take account of the extent to which employers have consulted safety representatives or a safety committee. They are therefore modest proposals. I regard the need for employee involvement in safety matters as important. I am happy to support the amendments as

937
one way of advancing the practice without further delay. I hope that the Minister will respond sympathetically.
Lord Auckland: My Lords, I declare an interest as a vice-president of the Royal Society for the Prevention of Accidents although I am not sure that offshore installations come strictly within the ambit of that organisation. However, I hope my noble friend the Minister will seriously consider the amendment. I confess that I have never been on an oil rig but I have flown over one. Following the Piper Alpha disaster and some subsequent near misses, the reasoning behind the amendment is sound.
I believe that safety committees do a very important job. Accidents on offshore installations are often very much more serious than accidents in the factory or even on the roads because of the obvious combustible implications. The House should give serious thought to this matter. I hope that my noble friend the Minister will give consideration to the amendment.
7.30 p.m.
Viscount Ullswater: My Lords, I start by congratulating the noble Lord, Lord McCarthy, on his ingenuity in introducing this subject into the part of the Be11 dealing with offences. I must oppose it and shall tell the noble Lord why in a minute.
Amendment No. 1 deals exclusively with offences concerning certain offshore health and safety regulations. It complements the similar Amendment No. 4, which the noble Lord has put forward in relation to onshore offences, and which we are taking with it.
Before replying to the amendment, it might help if I were to remind noble Lords of the legal requirements upon employers to consult their employees. Offshore, these are different from the requirements onshore under the Health and Safety at Work etc. Act 1974. The requirement to consult offshore is set out in the Offshore Installations (Safety Representatives and Safety Committees) Regulations 1989 made under the Mineral Workings (Offshore Installations) Act 1971.
Onshore, the requirement to consult is set out in Section 2 of the Health and Safety at Work etc. Act 1974. Section 2(4) gives recognised trade unions the right to appoint safety representatives to represent employees in consultations with their employer, about health and safety matters. The Safety Representatives and Safety Committees Regulations 1977 state that if requested by two or more safety representatives, the employer must set up a safety committee. Section 2(6) of the Health and Safety at Work etc. Act requires employers,
"to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures".
Failure to comply with Section 2(6) is an offence and leaves the employer open to prosecution.
I should explain that Amendment No. 1, dealing with the offshore regulations, could not as drafted achieve its objective because of technical defects. That is because it refers to safety representatives and safety
938
committees within the meaning of the Health and I Safety at Work etc. Act. As I have explained, that would not cover offshore representatives and committees, who are elected or established under separate legislation. I appreciate that that is a technical matter which I am sure could be resolved, but there are good reasons why the Government do not consider that the amendment is worthwhile even if corrected. They are essentially the same as those which apply to the onshore amendment. I will therefore deal with the arguments together.
The Government recognise and welcome the valuable role played by safety representatives and safety committees, both on and offshore, in ensuring a healthy and safe workplace. My noble friend Lord Auckland should be in no doubt as to the Government's intention in this matter. Both these amendments appear to seek to enhance that role by proposing that courts impose an additional penalty upon employers who fail to consult representatives or committees properly. The Government do not believe that this amendment would have the desired effect and we oppose it for a number of reasons.
First, it applies only to those employers who have safety representatives and safety committees. Those who do not would escape its provision. It would be unjust if a court were to inflict an additional penalty upon an employer who had consultation arrangements which may have failed in a particular instance, but could not apply an equivalent test to an employer who did not have any consultation arrangements. Where representatives exist, the law already provides penalties for failure to consult them.
Secondly, there would be nothing to prevent a court from reducing a penalty, because the employer had properly consulted. In effect, the employer could argue that because they were consulted, the safety representative or committee had shared the responsibility for the action which led to the offence. In other words, the employer could argue for a reduction of his liability for the offence on the grounds that the representative or committee had contributed to the act or omission which led to the offence. I am sure that no one in this House would wish to see the onus of responsibility shifted in that way.
Finally, by asking the court to take into account whether or not an employer consults his workforce, the court's attention could be drawn away from other equally important areas of health and safety management. For example, has the employer produced an effective health and safety policy? Have hazards been identified and risks adequately assessed? Have employees received the information and training necessary for their health and safety? In any health and safety case, the prosecution has the opportunity to draw to the court's attention any matter which may be relevant to the proceedings. The danger of this amendment is that in time it could cause courts to give disproportionate attention to consultation. I do not say that this will necessarily happen, but it could. I hope that in the light of my explanation the noble Lord will feel able to withdraw his amendment.
Lord McCarthy: My Lords, I cannot take credit for the ingenuity which enabled this matter to get as far as

939
the Marshalled List. The ingenuity bears the mark of my noble friend Lord Wedderburn. However, I do not believe that that ingenuity has got very far. The Minister tells us several things. He tells us that although our amendment is not perfect he could improve it if he wanted to. That is not really a point of substance because he clearly does not want to improve it. He also tells us that one of the reasons he does not want to is that it would be unfair to the employers who would not escape the consequences of the measure because there would be other employers who would escape as they do not have safety committees. If that were the problem the Government could remedy it by enacting legislation to extend safety committees across the board. There is no reason why the Government should not do that.
If the Government do not like a situation in which there is one set of employers with safety committees who have a set of duties in regard to safety which another set of employers do not have, they could have done something about that. But they have done nothing about it for 12 years. If they have allowed that situation for 12 years, then I do not see why they cannot allow it in relation to this amendment.
The Minister then said that, although the amendment might be a good thing because he is in favour of safety, he is not in favour of giving more power to the representatives who want to ensure safety. He is against that because it might draw interest away from other things. We say that if that interest was directed towards safety there would be few issues which could draw it away from something as important as safety.
The final point made by the Minister is a contradiction. He said that there is a deep danger that in time so much concern will be given to consultation that it will be disproportionate. The fact is that the Minister has simply asked the office to list as many objections as it can, whether they hang together or whether they are logical or not, and he refuses our amendment. I see no point in dividing the House at this stage and I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 3:
Page 5, line 10, leave out ("and (5)").
The noble Baroness said: My Lords, this is a fairly simple amendment and it might have been better if we had tabled it at Committee stage, but it has only recently come to my notice.
The Bill as it presently stands proposes that a paragraph of Section 33 of the Health and Safety at Work etc. Act shall cease to have effect. Paragraph 5 of Section 33 to which it refers reads as follows:
"Where a person is convicted of an offence under subsection (1) (g) or (o) above, then, if the contravention in respect of which he was convicted is continued after the conviction he shall (subject to Section 42(3)) he guilty of a further offence and liable in respect thereof to a fine not exceeding £50 for each day on which the contravention is so continued".
I do not see why this section should be repealed simply because the Bill proposes to increase penalties. The
940
point about this particular section is that it contains provisions for a daily fine until a contravention has been put right. It may be argued that £50 a day is not very much. The important point about it is that it is a daily penalty until there has been a correction. That is an important proviso. I do not see why it has to be repealed on the basis of this Bill. There might of course have been a reason to increase the amount of the daily fine. But the Government have not done that —the Bill seeks to wipe it out altogether. It is a fairly small point, and I shall be glad to hear the Government's explanation. I beg to move.
Viscount Ullswater: My Lords, perhaps it would be helpful if I explained the Government's reason for seeking to repeal the provision in Section 33(5) of the Health and Safety at Work etc. Act. I hope your Lordships will forgive me if I emphasise once again the Government's determination to get the level and structure of these penalties right. In pursuit of this, we looked very carefully at the provision in question.
The key reasons for repealing that provision are as follows. First, the reason why it was decided to repeal this provision at this time is because this Bill would give magistrates access to much higher penalties for the offences of flouting notices or remedy orders. This provision will give magistrates much greater latitude when imposing penalties. They will therefore have the powers they need to take into account the continuation of the offence, even where this factor is insignificant in itself. In addition, magistrates will still be able to refer cases up to Crown Courts where fines are unlimited.
Secondly, in recent years sentencing policy has moved away from the use of daily fines. This is because daily fines have the effect of drawing the courts' attention to one particular aspect of an offence; its longevity. This could be to the detriment of other (perhaps equally important) factors which the court might wish to take into account. Thirdly, we no longer think it necessary to have a provision for a daily fine in the Health and Safety at Work etc. Act. Indeed, we are not aware that the daily fine is used in this context. If a company is prosecuted a second time for failing to obey the same notice, the prosecution would bring this to the court's attention. The court would then be free to take this into account in determining the penalty.
I hope that in the light of my explanation of Government policy the noble Baroness will feel able to withdraw the amendment.
Baroness Turner of Camden: My Lords, I thank the Minister for that explanation, and for the detail which he has given. I was anxious as to why this particular section was to be repealed because it seemed to me that a daily fine would be some sort of further penalty. However, in view of what he has said tonight, I do not think that there is any point in pursuing this amendment and I am grateful to him. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
Then Standing order No. 44 having been suspended (pursuant to Resolution of 10th December):
7.45 p.m.
Viscount Ullswater: My Lords, I beg to move that the Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Vicount Ullswater.)
On Question, Motion agreed to.
An amendment (privilege) made.
Viscount Ullswater: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass. —(Viscount Ullswater.)
Baroness Turner of Camden: My Lords, the problem with this Bill is not what is in it but what is not in it. I should like to take this opportunity of making a few comments before the Bill leaves your Lordships' House.
At Second Reading we were told by the noble Viscount that the Government had accepted all the recommendations of Lord Cullen which were made following the inquiry into the Piper Alpha disaster. It is a great disappointment to us on this side of the House, to learn that as far as this Bill is concerned the Government have not yet seen fit to do so. The Bill is a purely technical exercise transferring responsibilities to the Health and Safety Executive. We have been advised that under new regulations resources are being provided to enable the HSE to undertake these duties and to appoint specialist staff, including more inspectors. Penalties are being increased also.
We do not object to any of this. But one of the most important recommendations of the Cullen Report concerned the establishment of what Lord Cullen called). "safety culture". He rightly said that in order to establish this it would be necessary to involve the workforce. He emphasised that management at the very highest level had to be committed to the idea of safety as an absolute priority, so much so that cutting corners, as he put it, would simply become inadmissible.
On our side, we do not believe that it is possible adequately to involve the workforce without some protection against victimisation. There is no obligation upon employers to recognise trade unions—it was clear from the Cullen Report that many simply will not do so, despite the very good record unions have in training members and encouraging safe practices. Strong union organisation gives some protection against victimisation. Lord Cullen made no specific recommendations in that area, since industrial relations were outside his remit. But there surely is a need for some legislative protection.
It is not going to be easy to involve the workforce if employees fear they may be victimised if they complain or point out breaches of regulations. Many employees working on installations in the North Sea are on short-term contracts: the worry that these contract; may not be renewed if they complain can be a very real one. And of course we are in a recession with high levels of unemployment so that the pressure
942
to say nothing could be very great potentially disastrous. It is not enough to claim—as the Government do—that there us already proection against unfair dismissal. Some employees may not have been in that particular employment long enough to be entitled to take a case to an industrial tribunal. There are in any event long waiting lists, particularly if a case goes to appeal. And it could get around that such an employee is a troublemaker—thus making it much more difficult for him or her to get another contract.
Protection against victimisation is particularly important in the case of safety representatives. It is clear that Lord Cullen felt that there should be elected safety representatives—those on Piper Alpha appear not to have been elected at all, but simply to have been the supervisors themselves. However, individuals are not likely to come forward to be elected unless they can be sure of some protection if they seek to do their jobs well and conscientiously.
Lord Cullen specifically recommended the protection of safety representatives. On page 392 of Volume Two of his report at paragraph 30 he says:
"Safety representatives should be protected against victimisation by a provision similar to Sec 58(i) (b) of the Employment Protection (Consolidation) Act 1978."
We sought at Committee stage to introduce amendments for discussion in this Chamber to try to give effect to this particular recommendation by Lord Cullen. They were ruled out of order because they were outside the scope of the Bill.
I do not quarrel with this ruling. Given the Bill is as it is, the ruling is clearly right. But it is the fault of the Government that they have limited the Bill in this way, while telling everyone concerned that they accept Lord Cullen's recommendations in full.
It is quite true that the noble Viscount has said that European directives will control whatever government is in power to introduce comprehensive legislation before the end of 1992. This may of course be quite a large task. But why is it necessary to wait until then? It would have been possible to do it immediately, simply by introducing a different kind of Bill. Why could not immediate protection against victimisation be given to the employees concerned? Surely that is due to people who are willing to come forward for election as safety representatives to protect the interests of themselves and fellow employees in what is acknowledged to be a very dangerous environment. Why should they have to wait?
I have not heard a convincing explanation from the Government. But I do not think that we have heard the last of this argument. While we do not oppose the Bill—since it gives effect to some of the recommendations of Lord Cullen—we cannot commend what the Government have done, or rather have failed to do. It is a missed opportunity—but it is worse than that: it leaves employees who deserve our support without the protection that they ought to have. The Government have not heard the last of that, and we shall seek an opportunity to return to this matter after the Christmas Recess.
Lord Rochester: My Lords, I shall be brief because there is not much left for me to say. At Second

943
Reading I said that on these Benches our general attitude to the Bill was one of support in so far as the Bill followed the recommendations of the Cullen Report. That remains our position. However, at that time, like the noble Baroness, Lady Turner, I expressed concern that the recommendations of Lord Cullen relating to the need for the workforce to be involved in safety, particularly through their representatives on safety committees, were not included in the Bill. On account of that omission and of the lack of provision in the Bill for other recommendations of Lord Cullen involving employment matters, such as the protection of employees from victimisation if they made adverse comments on safety, I joined in Committee with other noble Lords in criticising Clause 1 of the Bill, that being the only way in which such issues could be raised. We have reverted to the subject of safety committees and safety representatives on Report this evening—again without success.
The noble Viscount, Lord Ullswater, has reminded us that matters of that kind are to be dealt with by amending employment protection legislation as soon as a suitable legislative vehicle presents itself. I cannot see that opportunity arising before the next general election and I continue, like the noble Baroness, to regret the delay that will result.
Notwithstanding those criticisms, I should like, in conclusion, to thank the noble Viscount for the courteous and good humoured way in which he has piloted the Bill through the House and at the same time, if I may, compliment the noble Baroness, Lady Turner, and the noble Lord, Lord McCarthy, on the constructive part they have sought to play in our discussions.
Viscount Ullswater: My Lords, I should like to thank all noble Lords and noble Baronesses who have taken part in our deliberations for their interest in the Bill and for the way in which they have addressed the issues which obviously are of importance to them.
I have stated more than once that the Government have accepted all of Lord Cullen's recommendations in his report on the Piper Alpha disaster. I was reminded of that point by the noble Baroness, Lady Turner. The Government have no intention of shirking their responsibilities in this area. I have outlined various measures which have already been taken in carrying out this commitment, including a substantial transfer of resources to the HSC and sought to indicate what further action will be taken. I have made clear on several occasions that the Government fully accept the recommendation on victimisation of safety representatives. I have explained, as the noble Lord, Lord Rochester, indicated, that we intend to amend employment protection legislation to deal with this matter as soon as there is a suitable legislative vehicle. That will take place within the foreseeable future. This Bill cannot be that vehicle. It is an enabling Bill concerned with safety matters, and employment protection issues are outside its scope.
The noble Baroness, Lady Turner, is right. The Bill cannot and should not implement all of Lord Cullen's
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recommendations. It is an essential enabling measure, which will allow the reform of the existing offshore safety legislation. This legislation will be replaced by the "goal setting" regulations recommended by Lord Cullen. The regulations will underpin the new safety case regime by defining the necessary standards to apply to every installation. This Bill therefore represents an important step forward in putting in place the regime envisaged by Lord Cullen.
On Question, Bill passed, and sent to the Commons.
Earl Howe: My Lords, I beg to move that the House do now adjourn during pleasure until 8.20 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.55 to 8.20 p.m.]

Further and Higher Education Bill [H.L.]
House again in Committee.
Clauses 40 to 42 agreed to.
Clause 43 [Remuneration of employees]:
Baroness Seear Baroness Seear moved Amendment No. 201:
Page 33, line 33, leave out ("September 1992") and insert ("April 1993").
The noble Baroness said The amendment proposes that the "proposed date of increase" should be deferred from September 1992 to April 1993, so as to give adequate time to make the adjustments and also —this is most important—to avoid retrospection. Once again, there is an element of retrospection in the matter which would he avoided if the date was deferred until April 1993. I beg to move.
Lord Cavendish of Furness: The amendment proposed would render the clause ineffective. If the Government's timetable goes to plan, the clause will have no effect from 1st April 1993. Its purpose is to guard against the possibility of present employers awarding their staff an irresponsible pay increase which would have undesirable and costly knock-on effects for the new corporations at little or zero cost to themselves. That purpose would be thwarted by the proposed amendment. The new corporations cannot reasonably be expected to foot the bill for end-loaded settlements negotiated by their predecessors in circumstances where any significant proportion of those costs would not fall on the local education authorities, either individually or collectively.
I must emphasise the fact that the Government are not interfering with any pay increases due from the normal settlement date of 1st September 1992. Therefore, they are not seeking to interfere in matters which are currently within the purview of the National Joint Council for Further Education. From 1st April 1993, when the new sector will be up and running, the Government intend that pay should be settled through negotiation between employer and employee. We do not intend to be a party to those negotiations. We believe that there should be maximum freedom for institutions to set pay in response to their needs and circumstances. Taxpayers' interests will be protected

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through the level of funding made available to the councils. In the light of that explanation, I hope that the noble Baroness will not press her amendment.
Baroness Seear: In the interests of speed, I shall withdraw the amendment on this occasion. However, I may return to the matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blackstone Baroness Blackstone moved Amendment No. 202:
Page 34, line 6, leave out ("appearing to him to be") and insert ("who are").
The noble Baroness said: The purpose of this amendment is to give all trade unions a right to make representations to the Secretary of State. As such, it removes the discretion as to whether the Secretary of State considers a trade union to be an appropriate body. If unamended, the clause would allow the Secretary of State to select those from whom he wishes to the representations on the fundamental question of the remuneration of employees. It reserves considerable discretionary powers for the Secretary of State as to his choice of persons from whom representations are to be heard.
They ability to pick and mix from those who are to put forward views on the key issue of pay is unnecessarily restrictive. Identifying those bodies who represent relevant employees is a fairly straightforward task. Such bodies, often trade unions and professional associations representing the interests of their members, are in the best position to make a valid and usually constructive contribution to the determination of matters that relate to pay. They are in the best position because their constituent elements—that is, the employees—are out in the field doing the work. On that basis alone, they ought to be entitled as of right to make a contribution to the remuneration debate without having to pass the Secretary of State's test as to whether or not they are "appropriate". They are already appropriate persons and the Secretary of State should not need to make a decision on that point.
It seems to us that allowing representative organisations to put forward a case on behalf of their members is a positive step in opening up a constructive and well-informed debate. The right to take part in such a debate should be a right for the organisations and a duty imposed upon the Secretary of State. Reservation of such a discretion in the hands of the Secretary of State means that, potentially, the voice of those who are most affected by his decisions will not be heard. I beg to move.
Lord Cavendish of Furness: It is possible that I was not paying attention to what the noble Baroness said, but I am not sure whether she said that she was speaking to Amendments Nos. 202 and 203. However, I shall be replying in respect of both of them.
Baroness Blackstone: I apologise. I should have said so. I was speaking to both amendments.
Lord Cavendish of Furness: The amendments would remove the Secretary of State's power to exercise discretion as to who should be afforded the opportunity to make representation on the part of the
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employees concerned. That might result in administrative difficulties as, without the exercise of such discretion, representations concerning proposed pay increases might he received from anyone purporting to be a representative of the employees concerned, whether or not on reasonable grounds.
Pay settlements are traditionally and sensibly settled through negotiations between employers and their staff unions or associations. They bargain on behalf of the staff concerned. Management normally enters into appropriate union recognition agreements. The arrangement has, in practice, proved acceptable to all concerned. We expect the principles underlying those arrangements to continue in so far as representations to the Secretary of State may be appropriate under the clause. However, that is not to say that any individual employee or representative, or any small trade union or association, would automatically be denied the opportunity to make representations to the Secretary of State.
The clause rightly and properly confers upon the Secretary of State the power to make an appropriate decision in matters concerning such representation. His decision would, of course, have to be reasonable or it would be open to challenge in the courts. With that assurance, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Seear: It would be a little more reassuring if we had an indication as to the criteria by which the Secretary of State will decide who are "appropriate" persons. As the matter stands, they could be any bunch of people of whom he happened to approve. That, in any true sense, would not be representative; nor, I suggest, would it have very satisfactory consequences. I can quite see that there may be a case for ruling out certain people. However, it would be very much better if we were told that there were some limitations on the Secretary of State's total freedom of choice as to whom he will deal with.
8.30 p.m.
Lord Cavendish of Furness: Perhaps there is a precedent for that but I do not have it to hand. If it helps the noble Baroness, I should be happy to try to find that and let her and the noble Baroness, Lady Blackstone, know.
Baroness Seear: I am grateful for that. As the noble Lord is aware, we are deeply suspicious of the enhanced powers of the Secretary of State. If we could be reassured that this is not another excess of power for the Secretary of State, that would ease matters considerably.
Baroness Blackstone: In the light of the Minister's response, I am happy to wait to hear from him. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 203 not moved.]
Clause 43 agreed to.
Clauses 44 and 45 agreed to.
Clause 46 [Statutory conditions of employment]:
[Amendment No. 204 not moved.]
Clause 46 agreed to.
Clause 47 agreed to.
Clause 48 [Information with respect to institutions within the further education sector]:
[Amendment No. 205 not moved.]
Lord Peston Lord Peston moved Amendment No. 206:
Page 36, line 12, at end insert:
("( ) the educational achievements of their students prior to their enrolment at the institution,").
The noble Lord said: Amendment No. 206 is grouped with Amendments Nos. 207 and 208. However, I shall concentrate largely upon Amendment No. 206, and I believe that the noble Earl will deal with Amendments Nos. 207 and 208.
In moving this amendment I do not suggest that Clause 48 is unacceptable; quite the contrary. To provide such an enormous database will be a social scientist's and planner's heaven. It is somewhat bizarre that that will emanate from the present Government. They must know what they are doing. I look forward to that database being available. I am not sure that I shall last long enough to use it but I am sure that my successors will find it a source of extremely useful material.
For those of us who are interested in considering the performance of institutions, it lacks a baseline. To use the parlance which has been taken over from economics, one is not just interested in what an institution achieves but what it achieves relative to the material with which it has started. My normal rather tart view of these matters is to say that if one looks at the average polytechnic, its achievement is astonishing. If one looks at the whole of Oxford and Cambridge, its achievements are disastrous considering the quality of material with which it starts. One is staggered at the relatively poor performance of what they end up with. In other words, what we are discussing here is value added.
There is nothing in the data suggested which requires that particular piece of information to be published. The purpose of Amendment No. 206 is to provide the line according to which we can measure achievement. If one has students who have three superb A-levels and they end up with a lower second, that does not impress me, that is usually what happens to a large number of students at Oxford and Cambridge. If one has students who begin with four Ds at A-level and they end up with first-class honours degrees, which happens at many polytechnics and other universities, that seems to indicate that the teachers involved are rather good at their jobs.
That is the purpose of this amendment. It is not very good to say, "A lot of our students achieve a great deal." One must know what was the original raw material. That is the point of Amendment No. 206. It seems to me that the Government would wish to include that kind of information in the appropriate database because they would not wish any researcher to be misled by the available data so that he is unable to do a proper job. A similar remark applies to the other two amendments in this group but I shall leave those to the noble Earl. I beg to move.
Earl Russell: In supporting the amendment moved by the noble Lord, Lord Peston, I shall speak also to Amendments Nos. 207 and 208. Those make specific points about the statistics which we should like to see collected in order to measure performance. In the first instance the amendment refers to staff-student ratios. During the progress of the Bill we have heard a good deal of debate about how far a worsening staff-student ratio amounts to a worsening of quality. There are points involved in that; in some cases, room capacity. In others there is the point which a number of noble and learned Lords will have experienced when acting as judges in court; namely, that beyond a certain number of hours listening in a concentrated way, concentration may begin to waver. The Minister believes that we are exaggerating about that. It may be in his interests to try to collect statistics because, if he is right, he may be able to prove it.
The same point applies to funding per student, which is the next information which we ask to have collected. There has been much debate during the progress of this Bill about how far reducing unit costs is a threat to quality. For me that is arguably the most important single issue behind the Bill. Again, the Minister believes that we are making a fuss, in which case he might agree that it is important to collect statistics to see whether we can find some evidence to show which of us is right. However, I should say that when one is judging the quality of education, that cannot be done simply and solely in terms of the quality of the degree. The degree of understanding, insight, interest and the extent to which information is remembered a year later are all variables which do not always show in the quality of a degree. Nevertheless, any correlation between the quality of the degree and the funding per student would be worth having.
We ask also in Amendment No. 207 for a collection of evidence on the student-book ratio. Again, for many of us that is an absolutely vital issue. It relates fairly closely to the question of the staff-student ratio. If one is teaching and one sets students a list of books to read, if there are two or three of them then, with a little efficiency, they can share the books around. However, if one sets a large book for six people in one week, a great many of them will not get to read it at all. In that case, they simply cannot do what is required of them. Therefore, the student-book ratio is quite an important matter to take into account when deciding on the quality of an education available. In fact if I were, as I have recently been, advising my children on the choice of a place to go, that is a piece of information which I should be particularly eager to know.
Amendment No. 207 also asks for a record of the drop-out rate. When we are talking about efficiency—and we on this side of the Committee, on these Benches, believe in efficiency as we understand it, even if not as the Government understand it—how many students drop out must, to some extent, be a measure of how efficiently the job is being done. That should be recorded.
The question of how unit costs are measured is also raised. That is something about which a number of us are not entirely satisfied. At the end of the day, the

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correct way to measure unit costs is unit costs per graduate. That means that those who drop out do not count in the list of units.
That would also deal with the fact—which is distorted by the present method of gathering statistics —that if one takes student costs per annum, as we do at present, one entirely distorts the basis of comparison between this country and the Continent. In this context, by "this country" I mean England and not Britain since the Scottish system is different.
The amendment also demands collecting information on student support. If your Lordships have paid attention to some of the protests which have been going on recently, the refectory capacity and issues like that are of considerable importance in the points which have been raised.
The point of Amendment No. 208 is that it asks for collection not of raw data but of weighted data taking account of background. The correct way of collecting statistics must depend on what one wants to know. There is more than one thing we could want to know here. If we want to know simply how good it is at the end, then perhaps raw data might be the right thing to collect. But if we want to know how well the place is doing with what it gets, then the weighted data would be the correct data to collect.
It is just like the argument about the retail price index or the underlying measure of inflation. Which of those is the right one to use depends on what we want to know. So we should not leave out the weighted data, and therefore I am happy to support the amendments and look forward to the Minister's reply.
Baroness Perry of Southwark: The noble Earl has vividly made the point about why it would be quite inappropriate to try to collect this kind of performance data for further education. All the examples which he gave were highly appropriate to the higher education sphere. He talked about performance per graduate, the cost per graduate and the ratio of library books, for example. I remind the Committee that in further education colleges people are studying courses in hairdressing, plumbing, bricklaying and various aspects of trades for which there is no appropriate book provision. Practical skills are being taught as well as A-levels, GCSE repeats and so on.
The vast range of courses which are on offer would make the complexity of the kind of performance data which the noble Earl describes almost impossible to proscribe in regulations made by the councils, never mind on the face of legislation —on the face of the Bill.
I hope that the noble Earl will agree to withdraw the amendment because performance indicators of this kind would be highly destructive to the system that I am sure all of us in the Committee support.
8.45 p.m.
Lord Renfrew of Kaimsthorn: I wish to draw attention to a tendency which I experience in the higher education sector and which I am sure must be present in the further education sector. It is the bureaucratisation of academic life. We seem to spend
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an increasing amount of time compiling all manner of statistics which are not always informative. I have some sympathy with the general points made by the noble Earl, but the task of compiling these statistics would be formidable. It would undoubtedly devolve ultimately upon academics and teachers as much as upon administrators.
I already have some difficulty with the clause which asks that statistics be kept and information published on the careers of students after they have completed a course or have left the institution. That places on the institution a considerable burden of compiling and maintaining records. Although I am fully in sympathy with the value of information, I ask myself who will compile it? The noble Earl's suggestion would be admirable if it did not have the pre-condition that further statistics be compiled, which is much less admirable.
I was a little confused by the observations of the noble Lord, Lord Peston, about Oxford and Cambridge. He seemed to address himself to what I have always believed in the higher education sector, although we are still focusing on the further education sector at the moment. Since he had the kindness to refer to those institutions, I agree with him that it would be helpful if entry requirements were better understood. One problem which the universities of Oxford and Cambridge face is that they have insufficient applicants for places from pupils in the maintained sector. There is a widespread illusion that there is something special or difficult about entry into Oxford and Cambridge. I was therefore dismayed to find the noble Lord, Lord Peston. as I understood it, contributing to that myth and illusion.
Lord Cavendish of Furness: This has been an interesting short debate and I have listened carefully to opinions from all sides. The amendments seek to add to the types of information that the Secretary of State may by regulation require institutions in the further education sector to publish. They propose to include information about the education of students prior to enrolment, resourcing and certain performance indicators by which to gauge efficiency and effectiveness. The third amendment refers to the publication of information about the socio-economic make-up of the area in which the college is situated.
The Government are prepared to consider the principle raised in the first two of these amendments. Our objective is to require the publication of information which will be useful to young people, parents and employers. We are also concerned that colleges should be able to evaluate their own performance in relation to similar institutions. There is a great deal to be said for keeping that information as simple as possible, to allow the users to form their own judgments.
In the case of information about the education of students prior to enrolment, I understand that the purpose of the noble Baroness in proposing this amendment is to leave open the possibility that the Secretary of State might, at some future point, require the publication of information in a form which allows comparison between the qualifications achieved by

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students at the institution and their level of achievement when they entered—in other words, the "value added".
The intention behind the amendment is laudable. The difficulty lies in constructing a sensible basis for establishing the "value added", which can be readily understood. The students entering colleges have a great variety of backgrounds and educational achievements. It is by no means self-evident that one could construct sensible indicators of "value added" on the basis of previous educational qualifications alone. That has been pointed out. My right honourable friend the Secretary of State sees no prospect of requiring publication on a "value added" basis at present, because it has not been demonstrated how this could he done simply and in a way which helps those who have an interest in these matters. I hope therefore that the noble Lord will withdraw the amendment moved by the noble Baroness, Lady Blackstone, on the understanding that the Government will give the matter further consideration.
Lord Peston: My noble friend Lady Blackstone was not involved.
Lord Cavendish of Furness: I apologise to the noble Baroness. I believe that the noble Lord, Lord Peston, moved the amendment on his own behalf. We shall move on. I turn now to the amendment proposing that certain information on college resources and the efficiency and effectiveness of college provision should be published. The Government already call upon colleges to produce some of the information proposed by the amendment for colleges' own management purposes. Although, except for funding per student, colleges are not required to publish the information, that said, I am sure that many colleges would want such information to be published to enable them to evaluate their own performance in relation to that of similar institutions.
I have, however, some serious reservations about the consequences of accepting this amendment as it stands. First, I am not convinced that all the information listed would be particularly useful either for internal management and inter-institutional comparisons, or as an aid to student or employer choice. Secondly, many sixth form colleges might find it both onerous, as my noble friend said, in resource terms, and difficult in systems terms to produce such a range of information in the early years of independence. Indeed, there are some FE colleges that might face similar problems. I therefore ask again that noble Lords withdraw the amendment on the understanding that the Government will give it further consideration.
On the third amendment in this group the noble Earl said that it was not raw data that was needed. I believe I have made the comment before that there is much to be said for raw data as opposed to cooked data. The Government see no need to make provision for data about the socio-economic area of colleges to be published. We are sure that young people, parents, employers and the institutions are quite capable of
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drawing sound conclusions from the information already provided for in this clause. They would, for example, have a pretty shrewd idea of the implications of institutions in the same area achieving different results.
The publication of socio-economic information, alongside the information covered by this clause, might be used to justify poor performance, which in turn—I attach importance to this—could create and result in low expectations. That is a real argument. In the light of the fact that I have agreed to reconsider the first two of the amendments we are discussing, I urge the noble Lord to withdraw his amendment.
Earl Russell: Before the noble Lord, Lord Peston, decides what to do with his amendment, I wish to discuss one of the points the Minister made. I did not say absolutely that it is not raw data that are needed. I said the kind of data needed depends on what one wants to know. With the leave of the Committee, I also wish to respond briefly to the noble Baroness, Lady Perry, and to the noble Lord, Lord Renfrew. They are quite right. I think what I was proposing might be applicable in some parts of the further education sector, but working out which is a task above my abilities. During a very long week one is tempted to slip into talking of what one knows. I should have resisted that temptation but I did not. I am sorry.
Lord Peston: I thank the Minister for his reply. Although the case is widely believed to be to the contrary, I occasionally speak for myself and not merely under the instructions of the noble Baronesses on my left. The Minister's reply was both interesting and helpful. He made one point better than I did, which is that the institutions themselves would wish to be judged with a proper baseline rather than just on the data referred to here. I take the point about cost, but, equally, one would apply the question to all the data rather than to any particular part of it.
The great achievements of the FE colleges frequently consist of educational achievements with pupils who have failed in other institutions. Many of our children attended an FE college because their previous school did not work out for them, even though that school may have been satisfactory for other pupils. I understood the Minister to say that the Government took a view that FE colleges and sixth form colleges will succeed even though they may not have the best material. I was quite pleased to hear that the Minister will reconsider this matter.
I was partly pulling the leg of the noble Lord, Lord Renfrew, but only partly. In due course he will hear my views on Oxford and Cambridge. I was merely using those two universities as an example of the point I was making. I believe in that point very strongly. I was not under the impression that Oxford and Cambridge accepted students who had three grade D A-levels. I should be delighted to hear that the lecturers at those universities wish to devote their great teaching skills to teaching such students. We shall discuss that in due course.
Baroness Seear: Is the noble Lord confident that A-levels are the best way of detecting future able students?
Lord Peston: The noble Baroness knows that I appreciate what a poor indicator of ability A-levels are. Unfortunately, we live in a world where A-levels appear to be the beginning and the end of all higher education.
Baroness Seear: Given that A-levels are a poor indicator, they become a poor base for the noble Lord's subsequent calculations.
Lard Peston: Let us defer discussion on that matter —the noble Lord, Lord Renfrew, advised this—until we reach that part of the Bill that is concerned with higher education. I do not go quite so far as the noble Baroness, but my point is that we need a baseline if we are to measure efficiency. I have spoken for too long. I thank the Minister for his most constructive reply. I shall look forward to hearing whether the Government have any more proposals in this field. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 207 and 208 not moved.]
Clause 48 agreed to.
Clause 49 [Publication of proposals]:
Baroness David Baroness David moved Amendment No. 208A:
Page 36, line 43, leave out ("and").
The noble Baroness said: Clause 49 deals with what should happen when a council makes a proposal either to establish or to dissolve a further education college, and the conditions that will appertain. This amendment requires the funding councils to consult LEAs before proceeding with a proposal to open or close a college.
The proposals to open or close, or to expand or contract colleges will directly affect the demand for school sixth form places in an area. They should therefore not be allowed to proceed without prior consultation with the local education authority on the implications for school sixth form provision.
Changes in college patterns will impact more widely, for example, on LEAs' continuing responsibilities for adult and continuing education. Such considerations also need to be taken into account before the councils proceed with proposals to change college patterns in any area. We must remember that LEAs are the providers of the students for the further education colleges, and, as it were, of the sixth form colleges. Therefore they must be fully informed of plans, and they should be among the first people to be consulted on them. This seems to me an eminently reasonable amendment. I hope the Minister can accept it. I beg to move.
Lord Belstead: The Government fully accept the need for local consultation on proposals to open or close local colleges. However, I do not think the amendment is necessary. As drafted, this clause places a duty on the further education funding councils to consult widely prior to making proposals to establish
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or dissolve further education corporations. They must publish a draft of any such proposals and they must consider any representations made about them.
Many institutions and organisations will have an interest in the effects of such proposals. These include higher education institutions, voluntary organisations and grant-maintained schools as well as local authorities. Therefore it surely must be right that a broad duty to consider local representations should he placed on the funding councils, with no special statutory prestige accorded to local education authorities. As I have said, the views of LEAs will he considered alongside the views of other local interests. It will be open to LEAs—as it is to other local interests—to make their views known.
The clause improves the statutory provision for local consultation on further education. I have referred to that before. At the moment there is no duty to inform or consult on proposals to open or close colleges in the further education sector. The councils and the Secretary of State will in future be in a position analogous to that of local education authorities in making proposals for the establishment or closure of schools. On those grounds I resist the amendment.
Baroness David: I thank the Minister for his reply. I believe the LEAs would have been happier if they were named among those to be consulted. I wish to consult local authority associations to find out whether they are satisfied with the Minister's reply. If they are not, I reserve the right to return with this matter at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 208B not moved.]
Clause 49 agreed to.
Clause 50 [Duty to provide for named individuals]:
Baroness Lockwood Baroness Lockwood moved Amendment No. 209:
Page 37, line 16, after ("education") insert ("or training").
The noble Baroness said: Amendment No. 209 is purely a probing amendment to try to discover the purpose behind this clause. Clause 50 seems to be a rather strange clause in the context of the Bill. It provides a power for the funding council to direct individual institutions to provide for particular students. The power applies only to the 16 to 19 year-old age group, as does the duty of funding councils to secure the needs of those with learning difficulties. Therefore this clause could be intended to be used as a reserve power for the funding councils to insist that particular students with special educational needs are provided with appropriate education and training.
In Committee we have noted that the broad brush funding methodology that the funding councils will be likely to set up, taken together with various output measures of efficiency, would tend to make special need students unattractive to colleges. They will be less likely to attract special funding, as they do now under the local authority formula funding schemes. They tend to be difficult and expensive to teach and very often are not high achievers. As such they tend to
raise costs and depress the raw score examination results which are increasingly likely to be used as performance indicators.
If funding councils are to achieve their duty of securing the education and training of those with learning difficulties, some form of power or influence will be needed. However, the clause as drafted appears something of a blunt instrument and it is difficult to see how a national body could efficiently or effectively make specific directions with respect to all students who might need them.
There may be other reasons why the clause has been drafted as it has and I should be very glad if the Minister could throw some light on the purpose of the clause. I beg to move.
9 p.m.
Lord Cavendish of Furness: The clause deals with the funding councils' reserve power to require places to be provided for named individuals at particular institutions. The effect of the proposed amendment to subsection (2) (a) would be to place a requirement on the governing body of the institution concerned to provide education or training appropriate to the abilities and aptitudes of such individuals rather than, as now, education appropriate to their abilities and aptitudes.
The amendment is seriously flawed technically but I shall not make much of that in the light of the fact that the noble Baroness said that it was merely a probing amendment. However, I should warn her that if she intends to bring it back, it would need considerable redrafting.
The duty of the council is not intended to extend to the provision of a particular place on demand irrespective of cost. However, in some areas a college may be the sole supplier of a post-16 education or training. As a result there may be instances in which the council expects the college to meet the needs of a particular student. That may apply in the case of a young person with special educational needs.
Guidance from the Secretary of State will make clear that that power is for use in exceptional circumstances only. Admissions to courses will normally be a matter for colleges. Funding from the councils will not relate directly to individual students, and denominational colleges in particular may be reassured that the Secretary of State does not intend to interfere in their admissions policies other than in exceptional circumstances: for example, in the case of a young person with a special educational need for whom provision could not otherwise be made.
I do not believe that the amendment is necessary. Any full-time training which might be required for individuals involved in placements of that type would in practice be covered by the reference to full-time education appropriate to their abilities and aptitudes in the clause as it stands.
I hope that I have been able to throw some light on the clause and that the noble Baroness will feel able to withdraw her amendment.
Baroness Lockwood: I thank the Minister for that reply. I take it from his response that the clause applies to young people other than those with special needs in exceptional circumstances. The word "training" in my amendment was introduced merely because it had been introduced in relation to those with special educational needs. I thank the Minister for his explanation. I still think that this is rather a blunt instrument for that particular purpose, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 50 agreed to.
Clause 51 agreed to.
Clause 52 [Duty to give information to the funding councils.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 210:
Page 37, line 42, at beginning insert ("(1) As specified in subsections (2) and (3) below").
The noble Baroness said: In moving Amendment No. 210 I should like to speak also to Amendments Nos. 210A, 211, 213 and, although it is not grouped with those amendments, with the Committee's permission I should also like to speak to Amendment No. 214 since it deals with a similar issue and to do so might save some time.
The Bill creates duties for a number of bodies to provide information to the funding councils. However, local authorities also have powers and duties under the Bill. If they are to be allowed to fulfil their statutory duties they will also need access to full information on the provision which has been made within their areas. The amendments to Clause 52 therefore create parallel duties and powers to make sure that that necessary information can be collected from the funding councils and their institutions by local education authorities. It is particularly important with respect to the duties and obligations to provide adult education under the Bill. I beg to move.
Lord Cavendish of Furness: Clause 52 lists the bodies required to give the further education funding councils such information as the councils may need for the purposes of the exercise of their functions under Part I of the Bill. The effect of the amendment is to require the bodies listed to provide similar information for local education authorities.
I do not believe that the amendment is necessary. The further education funding councils are new organisations. They will not have had time to build up close working relationships with the other bodies on which they will have to rely for information. The legislation we propose will ensure that they are able to obtain such information quickly. On the other hand, local education authorities already have well-established working networks and legislation will not be necessary.
The funding councils, local education authorities, governing bodies of institutions and other organisations involved in the provision of further education will all have differing responsibilities and differing requirements for information. They will clearly need to co-operate and to work very closely together.

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Plainly we cannot legislate to ensure that productive relationships develop between all the potential partners.
The effect of Amendment No. 214 would be to impose a duty on the further education funding councils and other organisations involved in the provision of further education to provide local education authorities with such information as they might need for the exercise of their functions under this part of the Bill. Again, I do not feel that the amendment is entirely necessary. As I said, funding councils, local education authorities and other organisations involved in the provision of further education will have differing responsibilities. Even in this case—it is a similar amendment—it is not necessary to resort to legislation to ensure that co-operation takes place. In those circumstances I hope that the noble Baroness will withdraw her amendment.
Baroness Blackstone: I am grateful to the Minister for his reply, although I am a little surprised by it. I agree that we cannot legislate in order to create or produce productive relationships between different agencies involved in further education or any other public service. However, I should have thought that, as the local authorities are required to provide a considerable amount of information for the funding councils, that should be a two-way requirement. We should also be sure that the funding councils provide the local authorities with information of the kind that they are likely to need, particularly with respect to adult education. I am therefore a little surprised by the Minister's reply and his suggestion that that information is not necessary because the networks already exist as regards local authorities. They do not exist because the funding councils do not exist, so the argument is somewhat illogical.
However, I shall look again at what the Minister said and in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 210A and 211 not moved.]
Baroness David Baroness David moved Amendment No. 212:
Page 38, line 8, at end insert:
("(e) a District Health Authority, and
(f) in respect of its Social Services provision, a local authority").
The noble Baroness said: The amendment aims to include district health authorities' and local authority social services' provision for adults with learning difficulties in the FEFC considerations.
The Government's care in the community policy requires joint care planning for adults re-entering education. I am sure that the Committee will agree that education has a significant role to play in the process of resettling into the community adults with learning difficulties, including those previously in long-stay hospitals.
The amendment will reinforce for the further education funding councils the fact that some responsibilities in that regard now fall to them, as well as giving a necessary power to secure information. Many colleges already have long and successful
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experience with adults and young people with learning difficulties and they must be supported and encouraged to extend or to take up that role.
This is a straightforward but important amendment and I hope that the Government will be flexible and willing to accept it. I beg to move.
Lord Cavendish of Furness: As the noble Baroness said, the amendment extends the requirement that certain bodies should supply the councils with the information that they need to exercise their function to district health authorities and, in respect of their social services provision, to local authorities. We have restricted the bodies named in the clause to those without whose compliance the councils would not be able to exercise their functions. I hope that a number of bodies not named in the clause will provide the councils with information when required, but it is not practical to extend a legal requirement to all of them. District health authorities and local authorities fall into that category.
The noble Baroness said that she thought I would give the matter careful consideration. Naturally, as always, I shall read carefully what she has said, but I do not think that she has given compelling reasons for me to accept the amendment.
Baroness David: I am disappointed with that reply. The Government laid great emphasis on care in the community. People are coming out of long-stay hospitals and a great deal of help is needed. The provision would give a great deal of reassurance. I should like the Minister to say that he will look again at the matter. It is an important matter and, if he will look at it again, I shall not press the amendment. I feel strongly about it and hope that he will oblige me to that extent.
Lord Cavendish of Furness: I say again that I shall look at the issue carefully, but I cannot go beyond that. I do not wish to be disobliging, but I do not accept the case made by the noble Baroness. I understand that she is serious about the amendment and I shall consider it.
Baroness David: The Minister has said that he will look again at the matter. I am grateful for that and shall await the result of his consideration with some interest. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 213 not moved.]
Clause 52 agreed to.
[Amendments Nos. 214 and 215 not moved.]
Clause 53 [Directions]:
[Amendment No. 216 not moved.]
The Deputy Chairman of Committees (Lord Skelmersdale): I have to advise the Committee in calling Amendment No. 217 that if that amendment is agreed to I cannot call Amendment No. 218.
[Amendment No. 217 not moved.]
9.15 p.m.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 218:
Page 38, line 15, at end insert:
("( ) Directions under subsection (2) above shall be given by statutory instrument, which shall be subject to affirmative resolution of both Houses of Parliament.").
The noble Lord said: Clauses 7 and 53 in this part of the Bill are the analogues of Clauses 64 and 77 in Part II, which have attracted all the attention. The fact that the clauses concern further rather than higher education does not make them any the less important.
With Clause 53 we come to similar amendments to those that were debated under Clause 7. I am grateful to the noble Earl, Lord Russell, for not moving the amendments in his name which again would have invoked the relevant funding council—the Quality Assessment Committee—as the proper body to sound the alarm if it was thought that this clause would tend to operate to diminish the quality of education.
I have argued before (and do so again) that it would not be very effective to put the onus on councils appointed by the Secretary of State to engage on a collision course with him, and there was no indication as to how Parliament was to be informed. I therefore believe that my proposal offers a better safeguard, and I am glad to say that the noble Earl has come to the same conclusion.
On the previous occasion that we discussed the clause empowering the Secretary of State to impose the terms and conditions for funding, I was criticised by the noble Lord, Lord Renton (who I see is in his place) and indeed by the noble Lord, Lord Belstead, when he replied, on the grounds that the amendment would mean holding up necessary funding for the colleges. I endeavoured to allay that anxiety. I shall not go into that matter again at this moment; but in any case it does not apply in this case because we are not discussing overall funding but directions which the Secretary of State may give relating to:
"the provision of financial support by the council in respect of activities carried on by any particular institution or institutions".
Whereas on Clause 7 there was some uncertainty about whether particular institutions could be affected, there is no doubt at all in this case. That is confirmed in the Notes on Clauses in their handsome blue folder which the Government presented to us. I have left them outside the Chamber but I consulted them before coming into the Committee.
This is therefore a more pernicious and intrusive clause than Clause 7. It would permit the Secretary of State to withhold or withdraw funding from any course of study put on by a particular institution that the Secretary of State does not like. Immediately it suggests Big Brother in a big way. It would not only necessarily bear on peace studies or whatever might happen to be unpopular with the Government at the time; it could bear on all kinds of other courses as well.
Moreover, it does not make sense in the area that we are discussing. We are talking about freely elective, post-compulsory education. We are not talking about the national curriculum but what is on offer after the national curriculum. As I said yesterday, young people are not stupid. They are the best judges of the
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courses which they should be following and the skills which they should be acquiring. The whole point of having devolved, free-standing colleges—I thought that that was what the Government were saying—is that the system should be demand-led and not second-guessed by a supposedly omniscient Secretary of State.
Therefore, at the very least if the Secretary of State wants to use the powers under this clause, he should come to Parliament and give his reasons. That is what my amendment seeks to provide. If, during the course of the Bill, the Committee cannot approve an amendment on those lines, and should the noble Baroness, Lady Blackstone, divide the Committee this evening, I should certainly be prepared to vote with her against a Motion that the clause shall stand part of the Bill. However, I very much hope that the Government will see some force in my comments and perhaps come some little way towards me. I beg to move.
Earl Russell: I support the amendment. It seems to me to have taken a practical route, if a rather less fundamental one than I was contemplating, to deal with the problem before us. The Minister must have realised by this time that the power to give special directions to a particular academic institution is one which gives rise to quite profound misgivings, in particular when one considers leaving it on the statute book without knowing into whose hands it might come in the future.
I see no reason why a concern for autonomy in higher education institutions should exempt one from being concerned for autonomy in further education institutions. The principle seems to me to include a substantial common area. I am prepared to listen to the Minister to hear whether he can make out a case for arguing that there is some special need arising from some peculiarity of the further education sector to have such a clause in the Bill. I shall keep an open mind with regard to that justification until such time as I hear it, which I hope will be in a few moments.
It is curious that in the economic field the case for centralised planning seems to be going out of fashion. Yet at the same moment it seems to be coming into fashion in the education field. I should have thought that the cases against it are similar in the two fields.
I have said that we have misgivings, and that we are prepared to listen. However, many of us are worried about what might be done with those powers. We wish to know to what use they will be put. The noble Lord's amendment directs the use of the affirmative resolution. That means that any use of those powers would be brought before us and we would have the opportunity to judge that use on its merits. If there were merits in the use of power I am sure that someone in the Chamber is capable of persuading us of the truth of the facts.
Lord Renton: The noble Earl and the noble Lord, Lord Kilmarnock, pointed out quite properly that we shall find similar provisions relating to higher education in Clauses 64 and 77 whereby the Secretary of State is to be given power to give directions affecting specific places of learning—I use that broad

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expression—in relation to both further and higher education. I cannot see the need for that either in relation to higher or further education.
I believe that in the public interest it may be necessary for the Secretary of State to be allowed to give general directions to the funding councils. However, the idea that the Secretary of State should concern himself with particular institutions, of which there will be several thousand altogether, seems very strange. I would have hoped that Clause 53(2) might be reconsidered.
I turn now to the amendment. It is very unusual for directions to a quango, a funding body or any such body, given by a Minister of the Crown, to be subject to affirmative resolution in either House. With deep respect to the noble Lord, Lord Kilmarnock, although I have great sympathy with him in his objections to the directing of particular institutions to directions of the funding council, I doubt whether his method of correcting the matter is the best one. I prefer to see the words,
"carried on by any particular institution or institutions"
omitted altogether from the clause.
Lord Flowers: I support the noble Lord's amendment although I would rather oppose the standing of the clause. If it comes to that situation, I shall do so.
There are certain aspects for which this clause is not wholly unreasonable. The Secretary of State may wish to lay down matters of a financial nature, or something of that kind. If the funding council is not able to deal with that matter, the amendment might conceivably have some force. But under this clause the Secretary of State can tell the councils how to teach Greek, or, even worse, politics. That is something up with which I shall not put! Therefore, I shall support any provision that does it down. I support the noble Lord, Lord Kilmarnock, because his suggestion helps to put it down. I also give notice that if the noble Baroness cares to oppose the Question that the clause shall stand part of the Bill I shall support her.
Lord Belstead: Even though Members of the Committee from the Front Bench opposite have not spoken, perhaps it would be for the convenience of the Committee if I spoke in a little detail and only to the amendment. Clause 53 requires each further education funding council in carrying out its functions to comply with directions contained in an order made by the Secretary of State. Indeed, the focus of attention in particular of the speech of the noble Lord, Lord Flowers, was that the direction may be general or special. Special directions may relate to financial support provided by the council for activities at particular institutions.
The Secretary of State is ultimately responsible to Parliament for the Government's further education funding policy. Therefore, he feels that he requires a reserved power to issue directions to the councils if need be. We are talking about a great deal of money. Taking the higher and further education sectors together, the sum is more than £5 billion. Therefore, the clause is included in the Bill in order to provide the power of last resort for use in an emergency should
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relations with the funding councils break down. It is also provides a long-stop protection of the taxpayer's interests as regards considerable sums of public funding.
The further education sector is a great success story. The importance of the sector is the reason why the Government are bringing forward the Bill. Although I know that there is political difference about the issue in the House, we believe that under the Bill we shall do more good for the further education sector. At the same time, it is not discourteous or inaccurate of me to say that some of the colleges in the further education field are not long-standing and their track records do not compare with those of some of the historic universities. Furthermore, under the Bill we are introducing some entirely new institutions into the new further education sector.
Therefore, the Government believe that it is essential that Clause 53 should provide not only for general but also for institutions' specific directions. The noble Lord, Lord Flowers, said that that might be so, but he could not think why. Perhaps I may give an example. If relations between the Secretary of State and the funding councils should deteriorate and become poor, there could be a future need for a Secretary of State to protect the taxpayers' interests in respect of the funding going to a particular institution. In those circumstances, an institution's specific power would be needed. Let us suppose that on advice a Secretary of State believed that money was being poured into a particular institution which was no longer a going concern. However, if for reasons which were much to be deplored the funding councils did not see it that way, the Secretary of State might feel it necessary to resort to an institution's specific direction. Conversely, the same could be true—
Lord Dainton: I apologise for interrupting, but it has occurred to me to ask a question. How will the Secretary of State know, if not through the funding council, that there was a state of affairs of the kind that has been hinted at? In my experience it could never go by any other route. Perhaps the Minister will be kind enough to explain the matter so that we may give careful consideration to the example which he has put in front of the Committee.
9.30 p.m.
Lord Flowers: Before the noble Lord continues, perhaps I may ask this. If the Secretary of State is dissatisfied with the advice he receives from the funding council in a matter so important that he would wish to interfere with an individual institution, why does he not fire the council? That is perfectly within his rights.
Lord Belstead: Perhaps I may take the point of the noble Lord, Lord Dainton, first. I hesitate to cross swords with the noble Lord, Lord Dainton, who can forget more about higher and further education than I shall ever learn.
However, it is taking a simplistic view to suggest that it would not be possible for anybody, if they made it their business to do so, to learn about the affairs of a specific further education college. That is

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particularly so if the affairs of that college were clearly running into considerable trouble or, as indicated by the end of my example, if the college was clearly flourishing but for some reason the further education funding council—perhaps due to bad lines of communication between itself and the Secretary of State—was starving that body of funds. We may not agree but I give that as an example. It is not fanciful to say that it would be possible to find out about the affairs of a further education college in all kinds of obvious ways. Any public organisation can be checked up on.
Lord Dainton: Perhaps I can ask the Minister how, the case being that it was public knowledge, the funding council would not be aware of it. That seems to be a contradiction in terms.
Lord Belstead: I am not suggesting that it would not be known to the funding council. It would be deplorable, but I give it as an ultimate reserve situation that should the funding council take a view that on advice the Secretary of State thought was perverse, then there is an argument for wanting to institute specific powers.
Before I leave the point—and I feel that I have not carried both noble Lords on the Cross-Benches with me—perhaps I may refer to the remark of the noble Lord, Lord Flowers. The noble Lord said that whatever there might be in examples—I have given mine—nonetheless in his view this clause allows any Secretary of State to interfere in the teaching of specific subjects. I shall listen and have listened carefully to what has been said. I realise that the Committee holds strong views on the amendment.
Lord Flowers: Can the noble Lord at least confirm that if the Secretary of State was so dissatisfied with the funding council, he could fire it?
Lord Belstead: I believe that is so. I do not have my finger on the schedule; but nonetheless I stick to my point.
I now move to the amendment of the noble Lord, Lord Kilmarnock. There is a simple difficulty with Amendment No. 218. I may be wrong about it, but the advice I received is that if we went to the affirmative resolution procedure it would lead to a lengthy hybrid instrument procedure in Parliament. That is my advice. If it is right, then it makes for an impossible situation. It would mean that whenever a Secretary of State needed to come to Parliament with the affirmative resolution procedure the delay would not be merely considerable, it would be enormously lengthy. I simply lay that before the Committee. I am not trying to buy the Committee off by saying that; clause stand part is to follow. But I do not believe that affirmative resolution procedure is the road down which we should travel.
In discussion on the Secretary of State's direction-making powers in higher education in the Education Reform Act, which we will have to come to at a later date, the Committee will remember that the negative resolution procedure provided for in that Act was thought by Parliament to strike the right balance
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between the needs to allow for urgent action and necessary control over what is in essence a reserve power. Therefore I rest my case as regards the noble Lord's amendment which is before us. At the same time I say that the negative resolution procedure was thought to be right concerning the Education Reform Act.
Before I sit down perhaps I may say that advice has reached me that the Secretary of State could sack council members only for non-attendance or for being unable or unfit to discharge their functions. Thought would then have to be given as to whether the second leg of that consideration applied.
Baroness Seear: The noble Lord will remember that I was about to intervene, but I did not do so to allow him to continue. Then with unusual politeness I gave way to the noble Lord, Lord Flowers. Perhaps the noble Lord will now allow me to make my point. One cannot let pass the noble Lord's statement that the Secretary of State could find out what was going on in any organisation. I find that an extremely sinister remark. Can the noble Lord tell us how that is to be done? Does he go around asking people and hearing from them? He may hear from people whom he likes or others whom he does not like. The noble Lord shakes his head. If that is not the way in which he gets his information, then how is it done?
If the Secretary of State had gone to certain departments of the institution at which I worked for a long time and had asked about others, he would have received an extremely lurid account of what was going on. However, I would not say that that lurid account would necessarily be accurate. The collecting of information about which the noble Lord is so confident is an extremely dubious procedure. I would like to know how it is done and what the safeguards are for the people about whom the information is being collected.
Lord Belstead: Perhaps I may just answer the noble Baroness. For goodness sake, we have quality assessment written into the Bill. In addition to that the Secretary of State has an assessor for the council. There will be feedback from those sources. I do not believe it is sinister to say that a public body cannot impart a view to the general public, and even more so to the relevant Minister, as to how the body is doing. After all, there have to be audited accounts and things of that kind. What is much more important is the question of quality assessment and feedback through the council.
Baroness Blackstone: The Minister gave an example of why the Secretary of State might need this power. His illustration was that the funding council might pour money into an institution in an undesirable way. As the head of a higher education institution, the idea of the funding council pouring money into any institution seems a little far fetched. However, even if the eminent industrialists, businessmen and others that the Secretary of State is going to appoint were to take these steps (it is a little unlikely that they will do

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this) they would be unfit to hold office and therefore they could be sacked. In those circumstances the power is not needed.
Lord Pearson of Rannoch: Does the noble Baroness agree that not all courses in higher education or in the sector we are examining at the moment, justify the public funds that are put behind them? Can the noble Baroness tell me whether all the courses in her institution and those of other noble Lords who have spoken with such force on this matter, are of a quality—even with all the quality assessment that we have at the moment —which justify the public funds that go into them? I shall be very interested to have that assurance.
Lord Peston: I would like to know whether the Minister agrees. The noble Lord, Lord Pearson, has put his finger on exactly what this issue is about. This is the danger which the noble Lord, Lord Belstead, told us that we did not have to fear. If the Secretary of State is starting to play that game, then we are in a most dangerous state as far as concerns the future of further and higher education. I understood the Minister to say that precisely what the noble Lord, Lord Pearson, said could not possibly happen, and that that is not what the Secretary of State had in mind. If the noble Lord, Lord Pearson, is correct in what he is saying, we are on most dangerous ground and we could not let this matter go. I was hoping that the reply of the noble Lord, Lord Belstead, was the correct one. The Secretary of State must not be in a position to say, "I, the Secretary of State, specifically am not going to finance this course in this institution". The moment he does that, it will be the end of further and higher education in this country. That is what we are arguing about.
Lord Pearson of Rannoch: The noble Lord seems to say that the cloak of academic freedom can hide the cloak of academic self-indulgence.
Lord Peston: No!
Lord Pearson of Rannoch: This is what happens at the moment, and it will go on happening. The Secretary of State must have the final say in matters where all the other instruments of self-regulation have failed.
Baroness Seear: I have seen the kind of situation that we are talking about. Putting up with a certain amount of inefficiency, and even self-indulgence, is a small price to pay for keeping academic freedom.
Lord Renfrew of Kaimsthorn: I am not sure if the noble Lord, Lord Pearson of Rannoch, put his finger on it or put his foot in it. But certainly he is developing a line which many of us on this side of the Chamber would find very difficult to follow. I hope that my noble friend the Minister will express comment, because I think that the view which the noble Lord, Lord Pearson, has of academic freedom is not one which many of us here would share.
Baroness Carnegy of Lour: I should like to make one small point. I think that much of the agenda of this discussion was not an FE agenda; it was a higher
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education agenda and the very strong feelings have to do with amendments which are coming later. I wonder whether the situation in further education colleges is quite the same.
Certainly the argument about how the Secretary of State might know what the trouble was, does not apply in FE because in these colleges, as I envisage them, there will be local people sitting on the governing body. The TECs people will be there; and other people have been saying that they would like a statutory place for local authorities; and the Minister has told us that they may be there. They will certainly be working hand in glove with the college because of the planning they have to do. Their officials will be in and out all the time.
It will be very easy to know, in the case of an FE college, what is going on. It is a different agenda. I do not know whether that justifies the kind of role suggested by my noble friend Lord Pearson—and I know how he feels—but perhaps he did a not make a very good move when he said that because I do not particularly want the Secretary of State to be saying, "You will do that bit of further education and not that one". It is not the same agenda.
I would say to noble Lords that it is a very different world. I have moved about in both of them as I know some noble Lords have. It is very different, and the kind of academic freedom needed in an FE college is of a somewhat different quality. I think FE principals and the governing bodies would agree with that. Therefore I do not think that the arguments are quite the same about how the Secretary of State knows. However, I go along with the principle.
Earl Russell: The Minister has made one point which was new to me: the point about hybridity, on which I am very much afraid that the Minister may be right. Nevertheless, we are discussing issues which will help us at a later stage of the Bill, and I hope we may persist.
Essentially here, we are back on ground we covered in 1988. The Minister is relying on the accountability of the Secretary of State for public money. It must go on the record that I think all of us concede that without a moment's dispute. It was, after all, the noble Lord, Lord Peston, who tabled an amendment, and moved it earlier today, for compulsory auditing of accounts. We on these Benches did not rise to speak to the amendment, but that was only because we believed that it was not controversial. Had it for a moment been disputed, we would have supported it.
The Secretary of State is entitled to know that the money is spent for academic purposes. The question is not about the Secretary of State's right to accountability; it is about his competence. The noble Lord, Lord Pearson of Rannoch, is doubtless right that in any profession—in mine, or in his, or in any other of which I can think—there is sometimes self-indulgence or incompetence. It is perfectly correct that, where possible, and as convenient, and by those who are able to do it, something should be done to control that situation.
The Secretary of State has a legitimate interest in that point. The question is, by what means the Secretary of State may pursue it. The Secretary of

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State, after all, is not an academic. Even if he were, no academic claims competence in every field of every other academic. If I were set to judge the competence of a mathematics department, I simply could not do it. So the Secretary of State has to rely on the judgment of those who are capable of reaching a competent judgment, just as in matters of law the Secretary of State has to rely on the advice of the Law Officers and the judges; just as in military matters it is a clear convention that operational decisions in the field are not made by the Secretary of State for Defence because, unquestionable though his authority is, he is not competent to do it.
I was somewhat perturbed by the Minister envisaging a situation in which the Secretary of State and the funding council disagreed and the Secretary of State would propose to enforce his judgment at the expense of the funding council's judgment. Were I to find such a disagreement between the Secretary of State and the funding council I would not a priori know who was right, but I would, I confess, have a slight predisposition to suppose that the funding council, because it knew slightly more about it, was slightly more likely to be right than the Secretary of State. It is this sublime assumption of the Secretary of State that what he thinks absolutely must be right and absolutely must be enforced which gives us such profound misgivings about allowing him these powers. Powers should be in the hands of those who are competent to exercise them. In this case I have not yet been convinced that the Secretary of State is such a person.
9.45 p.m.
Lord Pearson of Rannoch: Perhaps I may defend myself on the matter of academic freedom. I said at Second Reading that I would be among those who would die to preserve academic freedom. I completely accept the point made by the noble Baroness, Lady Seear, that a certain amount of academic self-indulgence is worth paying as a price for academic freedom. But we are looking at a situation here where the mechanisms of ensuring academic quality, which is part of the price of academic freedom, have failed. I could give the Committee examples of which I am aware at the moment where the present mechanisms have badly failed. However, I am sure that noble vice-chancellors and others are aware of those as well. It is not perhaps appropriate to name some of the institutions, although I shall if necessary, that have been subject to considerable scrutiny by, shall we say, HMI, the Council for the Accreditation of Teacher Education, the Council for National Academic Awards, local inspectorates and so on where still that quality is sub-standard and is short-changing quite a large number of students. I can see a way in which the Secretary of State might become aware, possibly through a "Panorama" television programme—
Noble Lords: Oh!
Lord Pearson of Rannoch: He might; and he might want to interfere. I do not think he can just fire the funding councils overnight. I should have thought
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that this reserve power, which will obviously be used only when all these other steps have failed, is not as unreasonable as some noble and academic Lords wish to pretend.
Lord Renton: Can my noble friend say whether the examples he has given refer to higher education or further education, or both?
Lord Pearson of Rannoch: I thank my noble friend for that intervention. My experience of this is in higher education, but I am aware of it in the school sector as well. I must confess that I have no specific examples in the sector that we are looking at at the moment. I speak more from general principle.
Lord Belstead: I should stress that the clause is in the Bill to provide a necessary power of last resort—hence the example I gave—for use should relations with the funding council break down, and for the purposes of providing a long-stop protection of the taxpayers' interest in very considerable sums of public money. In saying that, I should like to repeat what I said when I spoke previously. As regards the point made by the the noble Lord, Lord Flowers, that this power gives the Secretary of State the opportunity to intervene in what is taught in institutions, I should certainly be ready to take that point away and draw it to the attention of my right honourable friend. I cannot give a commitment on it but, as I said, I will take it away for further consideration.
Lord Kilmarnock: We have had an interesting and what I would describe as a two-layer debate. We considered the big question, the answer to which is that this clause has, virtually speaking, no friends in the Committee—other, perhaps, than the noble Lord, Lord Pearson of Rannoch. I shall not presume to say whether he has put his finger or his foot into the debate. Then there was the technical point raised by the noble Lord, Lord Renton, on the question of hybridity which might introduce long delays into the system if the proposal were adopted. However, some of us may think that this was an advantage in this particular case.
I was glad to hear the noble Lord, Lord Renton, say that Clause 53(2) ought to be reconsidered, regardless of the technical issue. That was a valuable point. I believe that he said he was in sympathy with the thrust of the amendment, if not with its mechanics. The noble Lord, Lord Flowers, said that it might not be unreasonable for the Secretary of State to have some powers of a financial nature with which he could direct the councils and, possibly, the colleges. In fact, he already has that power under Clause 7, which provides that he can impose terms and conditions which, as I understand it, are directed at financial and managerial matters.
In his first reply, the noble Lord, Lord Belstead, prayed in aid the Secretary of State's duty in relation to this clause to protect the very large sum of public money—I believe he mentioned £5 billion. The noble Lord used various phrases. He referred to, and I believe that I am quoting him correctly, a "power of last resort", a "long- stop protection of the taxpayers' interest", and I believe he also mentioned a "reserve

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power". But none of those phrases is statutory language; it is the language of debate and the language which we read in Hansard. We do not read it on the face of the Bill. In fact, when I consulted the Clerks in regard to tabling an amendment for a reserve power, they told me that it was quite meaningless. Therefore, although we always respect and pay attention to what the Minister says, it only appears in Hansard and is not on the face of the Bill.
I was also surprised by one or two other aspects of the Minister's reply. For example, if one or two or a few colleges teach something that the Secretary of State does not like, that will hardly affect the overall budget of £5 billion which he seeks to protect. If any institution became so poor—I believe that the noble Lord used the word "poor"—and had deteriorated so far that it became desirable for it to cease operation but the council for some curious reason did not see it that way (I believe we have elucidated the fact that it cannot be sacked) we have to remember that the council is appointed by the Secretary of State and, supposedly, consists of good men and women whom he presumes will give him good advice. That seems to me to be quite an extraordinary reason for a clause of such draconian dimensions.
If the Secretary of State wishes to protect the taxpayer, that can surely be achieved by drafting a much more appropriate and limited clause. In fact, I believe that the Bill already provides for the winding up and establishment of institutions. If that is the Secretary of State's worry, he does not need this paraphernalia to protect himself on that count.
In his first reply the noble Lord, Lord Belstead, said that he would give serious consideration to the amendment. I was glad to hear him say when he rose to his feet again that he would give serious consideration to the effect or impact of the clause on what is taught. I hope that he is telling me that before the next stage of the Bill he will bring forward a version of this clause or another clause in which it is specifically stated that what is taught does not come within the purlieus of this clause.
If the Minister does not do that, the Government will be in very serious trouble. This is a dry run for all kinds of things to come. I shall not divide the Committee at this hour. As I say, this has been a useful dry run. However, before I withdraw the amendment, I invite the noble Lord to confirm to me that the Government will take it away and will come back with something which may be more acceptable at a later stage.
Lord Belstead: With very great respect, I did not say that I would look again at this amendment because I believe it to be hybrid. However, I said that I would draw to the attention of my right honourable friend the Secretary of State the point raised by the noble Lord, Lord Flowers.
Lord Kilmarnock: I am grateful to the noble Lord. I am glad to hear those words fall from the noble Lord's lips. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 agreed to.
Clause 54 [Intervention in the event of mismanagement of breach of duty]:
[Amendment No. 219 not moved.]
Clause 54 agreed to.
Clauses 55 to 57 agreed to.
Clause 58 [The Higher Education Funding Councils]:
Lord Dainton Lord Dainton moved Amendment No. 220:
Page 41, line 18, at beginning insert ("Subject to subsection (4) (a) below").
The noble Lord said: With this amendment we move to higher education and as the hour is late I shall be as brief as possible. However, first, I must make the point that, given the new structure of the funding councils for both further and higher education, the working of the whole system, at whatever level, will be crucially dependent upon the quality of the membership of those councils.
That is the point which I address in Amendments Nos. 220 and 221. The whole purpose of the amendments is to ensure that in appointing council members, the Secretary of State should recognise that a substantial fraction of the membership of the council shall be actually engaged now in teaching, research or both and thus bring the necessary and contemporary knowledge to the deliberations of the council.
That the council cannot command the respect of the institutions with which it has dealings, nor function satisfactorily without having that kind of experience at its disposal, seems to me to be quite obvious and axiomatic, not least in the matter of quality assessment which has already been the subject of debate this evening. That experience is absolutely vital. Therefore my amendment ensures that current knowledge is available to the council and should cover all the subject areas so that there is no part which does not have the best information contemporarily available.
This is not a revolutionary proposal, but merely goes some way towards restoring what is in Section 131(3) of the Education Reform Act 1988 which provides explicitly that not less than two-fifths nor more than three-fifths of the members of the funding council should be:
"currently engaged in the provision of higher education".
Therefore the amendment is not only in line with the forebear and guiding star of that Act which was the Croham Report as it concerned higher education, but it is also consonant with the Government's White Paper issued earlier this year which I believe is called Higher Education: A New Framework. There it is stated absolutely categorically that a funding council will have a strong industrial and commercial element as well as members from higher education. It is cast in terms of the assumption that members will be drawn from higher education. That is axiomatic in the sense that I stated.
I therefore very much hope that the Minister will agree to this amendment which, it seems to me, may have arisen by an oversight since the matter is explicitly referred to in the White Paper as it was a part of the Act under which we now operate. If it is not agreed to, we shall need some explanation as to the reasons for the change from the provisions in the

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existing Act to the proposals in the Bill. I therefore beg to move Amendment No. 220 and commend Amendment No. 221 to the Committee.
10 p.m.
Lord Flowers: My noble friend Lord Dainton—the other half of the Tweedledum and Tweedledee team—has proposed our amendments in his usual clear and precise way. Rather than repeat what he said, I shall content myself with saying that I fully support him and accordingly commend the amendments to the Committee.
Perhaps I may be allowed to emphasise one point. No one quarrels with the idea that the funding councils should contain among their membership persons who have demonstrated their competence in industry, commerce, finance or the practice of an honourable profession.
Incidentally, perhaps "any profession" would be going a mite too far, but I shall not elaborate. Such people have been of inestimable value to the universities in recent years. I have every expectation that that will continue to be the case. I remind the Government that such persons and persons of very senior status already give their services freely to almost every university and polytechnic in the land. The funding councils may find that they have met their match in terms of this category of membership. No matter, the competition will be good for all concerned.
Nor is it disputed that the funding councils should contain persons with experience and demonstrated capacity in the provision of higher education. It would seem amazing were this not to be the case. But the Committee will not be surprised that I take exception to the omission of the phrase, we now seek to reinstate which is to be found in the Education Reform Act which was recently passed, as the noble Lord said, and which was clearly called for in the report of the noble Lord, Lord Croham, on which I understood all these proposals were to be based. The phrase allows persons,
"currently engaged in the provision of higher education"
to be appointed to the councils. These are the people who know what it is all about today. We have a long tradition of including current practitioners on committees and councils of this kind. It is perfectly understood how they must behave. They must declare their interest, just as we do in this Chamber, and refrain from taking part in decisions in which they have an interest. My sole point is to urge that a few such people should always be included. In certain fields I find it impossible to imagine how the councils could otherwise fulfil their responsibilities.
In medicine, for example, it is essential to have current experience of the complexities of funding arrangements and organisation and the effects of these upon the work of the medical schools. It is simply not enough to have a retired dean of medicine or professor of surgery. Things change too rapidly for that. One must have someone who is at present in the swim of things.
I would argue too, that it is essential to have persons who are currently teaching, and can reflect
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upon the effects of council policies on such matters as quality assessment and upon the teaching of the institutions to which the policies are directed. Retired persons get rapidly out of touch, as I know to my cost. I support my noble friend's amendments.
Lord Renfrew of Kaimsthorn: From this side of the Chamber I support this amendment. This is not a matter of representatives of the kind we discussed earlier today—of various groups of varying degrees of relevance. We are dealing here with, at any rate some of the people, who are most centrally involved in the organisation and working of any single university and who are among those who are best qualified to know about the subjects under discussion. However, that point has already been effectively made by noble Lords opposite.
The point that concerns me—it has been touched on already—is the extent to which, in this respect, the present Bill so conspicuously falls short of the 1988 Act. As we have been reminded, under the 1988 Act there were to be 15 persons on the relevant council—the UFC, as it was then. Of those, between six and nine persons either had to have experience of or show capacity in the provision of higher education—that same clause, roughly speaking, stands in the present Bill—or, had to be currently engaged in the provision of higher education. That latter phrase does not stand in the present Bill, but is contained in an amendment under discussion.
In the present Bill there is a council of 12 to 15 persons. Under the Bill the Secretary of State is to have regard to "the desirability of including"—that is already a much weaker phrase—various categories, rather than being bound by the phrase "shall include". Under the present Bill those appointed to a council must have experience or capacity in the provision of higher education, and experience or capacity in,
"industrial, commercial or financial matters or the practice of any profession".
As the noble Lord, Lord Flowers, has said, that is a most welcome addition as such experience has always been of great value in those fields. However, the omission of the phrase which forms the subject of one of the amendments under discussion is so conspicuous that it takes one's breath away. I wonder what those who are responsible for the detailed drafting of the Bill were thinking of when they omitted that phrase. It would be interesting to hear why that phrase was omitted from this Bill when it formed the basis of the Education Reform Act 1988.
Generally in the academic world I try—I hope I succeed sometimes—to explain and justify the thinking of the Government. In general I am most happy with the present Bill which represents a great advance in many areas. However, I cannot understand why the phrase I mentioned was omitted from the Bill when it already stands in the 1988 Act. I should be most interested to receive an explanation of that curious circumstance.
Earl Russell: In speaking to Part II of this Bill I must, as a serving university teacher, declare my interest. I wish to support the amendments moved by the noble Lords, Lord Dainton and Lord Flowers. I

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also wish to speak to my own amendment, Amendment No. 222, which is grouped with the other amendments. I am amused by the way the Committee keeps referring to the 1988 Act as the standard to hark back to, because after all we were not particularly happy with the Act at that time.
Conservative Secretaries of State for Education remind me rather of the American folk song which has a chorus which goes, verse after verse after verse:
"And I married another far worse than the other and I longed for the old one again".
I shall be a little more ambitious. I shall go back to move the same point which I moved in 1988 and ask for an academic majority on the higher education funding council. I moved a parallel amendment to Part I. It was resisted on the ground that I spoke for the providers, who are a selfish interest, and we ought to be listening to the consumer. Our consumers are our students. Perhaps I may speak for a moment on behalf of the petitioners, the students of King's College. They are not particularly happy with what the Secretary of State is doing.
A genuinely consumer-led model is possible. The University of Bologna, which was one of Europe's great universities, was for a long time run on such a model and it worked. There is not the conflict of interest which this model presupposes. It is one of many cases of free market thinking suffering from an excessive debt to Marx. It is a false model. It is even more false in that the Secretary of State does not speak for the consumers. To say that power should be given to the consumers and on that ground to give it to the Secretary of State is an abuse of language.
We are dealing here with an argument about competence. I shall not dwell on that point because I have touched on it already. However, we should consider the question of the boot being put on the other foot. There are not many professions which would resist an input from people outside the profession. That can be refreshing because disciplines, like toenails, are capable of ingrowing. It is quite different, though, to be presented with a demand for a profession to be governed by an outside majority because it is in some way deemed to be incapable of running its own affairs. Is there any profession in the country with any sense of self respect which would see that restriction placed upon it and not jib at it?
Baroness Blackstone: I should like to support the amendment moved by the noble Lords, Lord Dainton and Lord Flowers, and also speak to Amendment No. 222A to which I have put my name. That amendment has almost the same effect as Amendment No. 221 in the names of the noble Lords, Lord Dainton and Lord Flowers. I do not wish to delay the Committee by repeating what has already been said. I should like merely to support everything that has been said by the noble Lords in moving the amendment and by the noble Lord, Lord Renfrew.
When the Minister replies no doubt he will say that of course there will be on the funding council academics who are currently engaged in the provision of higher education. If he says that, then presumably he can accept the amendment. There should be no difficulty.
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Many people who work in higher education fear that, if the amendments are not accepted, at some future date a future Secretary of State who may be less reasonable than the present one would pack the council with people who have no experience of higher education or, if they have such experience it is outdated experience because it is many years since they have been serving academics. I support the amendments.
Baroness Park of Monmouth: I too should like very much to support the noble Lords, Lord Dainton and Lord Flowers, and the noble Earl. Those members of the present council who bring industrial and commercial experience to the work of that body and who are also users of the finished product—to use the noble Earl's phrase—have undoubtedly made a distinctive and valuable contribution. However, I believe that they would be the first to wish clear provision to be made in the Bill, as it was in the previous Act, to ensure the presence of a substantial proportion of academics or, to use the phrase of the amendment,
"Persons currently engaged in the provision of higher education".
After all, no successful industry could function were it to be run by a board of the great and the good, however distinguished, where there was not a substantial body and indeed a majority of professionals in that particular discipline or industry, if we are to use the industrial approach. The Government have clearly recognised that in their present practice, and I hope that the Minister will work to restore that provision with particular regard to the need for current academic advice to be available.
Things move very fast in the education world, and universities have shown a refreshing ability to move with, and sometimes ahead of, the times. The funding councils should have the benefit of the up-to-date experience of a steady supply of academics who are conversant with new attitudes, new needs and new responses to the educational challenge.
10.15 p.m.
Baroness Perry of Southwark: I do not wish to delay the Committee any longer. I want only to offer my support for the amendment of the noble Lords, Lord Dainton and Lord Flowers. I hope that the Minister will be able to accept the amendment because, if he does, a great many of the anxieties about the working of the council which are expressed in later amendments might well be allayed.
Lord Pearson of Rannoch: Perhaps I may put my foot in it again as probably the only person in the Committee this evening who, as a representative of commerce, has spent some eight years on academic bodies, in the Council for National Academic Awards and the polytechnic sector of higher education.
The amendment of the noble Lords, Lord Dainton and Lord Flowers, is grouped with Amendments Nos. 221, 222 and 222A, so I shall speak to them together.
I have no difficulty with the concept of those who are currently engaged in higher education being on those funding councils. I should have thought that

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that was extremely helpful. Perhaps the most useful person to have is the person who has just given up active duty because he has the time to give to those councils that they so urgently require. My noble friend Lord Beloff said this evening that businessmen—
Lord Dainton: Perhaps I may tell the noble Lord, Lord Pearson that at least in the University Grants Committee—and I have no reason to believe that the practice has been discontinued—a payment is made to the academics. They are supposed to give a proportion of their time, so, on the question of devoting their time to their own subject, they must make that sacrifice while members.
Lord Pearson of Rannoch: Of course, not being an academic, I would not know what influence that has on academics' teaching duties.
I accept the point about people who are currently engaged in higher education being on those bodies. When it comes to whether there should be a majority of them with experience of working in higher education, I am not so sure. Perhaps I might dwell here for a moment on the difference between those who lead the world of work and the academic world. Presumably, those who wish to be academics do so because they wish to study their books, to write books and to have as many publications as possible, to do research, to carry out scholarly activities and so on, dare I say even to apply their energies to improving their units of resource. By that I do not mean by magnifying their cash flow. I refer to improving what are sometimes referred to as their students. If, on the other hand, we turn to those who lead the world of work, they are presumably trained and successful in management. We are talking here more about the management of the academic system under consideration than we are about academic pursuit in itself.
Personally, I am sure that it is right for the Secretary of State to have complete discretion in those appointments. I would settle for at least 25 per cent. of the membership of those councils to be comprised of people who have shown capacity in industry and finance. The Committee will notice that I am nervous of commerce in that regard. As a representative of commerce, it is fair for me to say that, but I am sure that the successful representatives of industry and finance would be preferable to those from commerce. Representatives of professional practitioners might be helpful—doctors, lawyers, engineers, chemists and physicists. Recently retired senior serving officers in our Armed Forces would be helpful to the councils' deliberations. There may be quite a few of them after the Options for Change programme is completed. They are often extremely wise men and women who would certainly have been helpful in a number of the debates in which I have been involved over the past 10 years.
Finally, I turn to the serious matter of the appointment of the chairmen of those bodies. I believe that it is very important that the chairmen of the funding councils should come from the categories that I mentioned. I believe that Sir Ron Dearing, for whom I have the highest regard and who has been absolutely
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excellent as chairman of the CNAA, has been successful as regards the funding council. He is to be the first chairman of the new funding council for England. I should have thought that when it comes to the appointment of a chairman that is an important distinction to make.
I am not academic-bashing. I am absolutely clear in my mind that a number of successful academics would be very helpful to some of us in, for instance, the City of London or industry, were they also to be chairmen or certainly have powerful voices on our boards. The cross-pollination and cross-fertilisation of ideas is most important in debate. In my view, the councils as well as many commercial and industrial boards would benefit from that kind of arrangement.
Earl Russell: The noble Lord is quite right about the cross-pollination of ideas. I thank him for a great many of his remarks. I wonder if that approach offers a way forward.
Lord Belstead: All these amendments aim to include on the higher education funding councils people who have experience of higher education. With regard to Amendments Nos. 220, 221 and 222A—the noble Baroness, Lady Blackstone, spoke to the last mentioned one—Clause 58 already requires the Secretary of State to have regard to the desirability of appointing members to the new councils who have experience in the provision of higher education or who are in positions carrying responsibility for such provision. I have no doubt that both Secretaries of State will want to ensure that there is a sensible mixture and balance of experience within the membership of the new councils. That must mean that not only a substantial number of members from higher education backgrounds will be included but also that many of the members are likely to be engaged in the provision of higher education at the time of their appointment.
However, I think it is right that the Secretary of State should be able to appoint members for their personal qualities. It would therefore be undesirable to inhibit the Secretary of State in any way from appointing a particularly well qualified individual with significantly higher education experience simply because he or she did not happen to be employed at an institution at the time.
Lord Tordoff: I wonder how the noble Lord defines "personal qualities". It seems to me to be a very wide phrase. It may, for instance, mean members of a certain political party or it may encompass the shape of their face or the colour of their hair. I wonder how that phrase is defined.
Lord Belstead: I believe that if the question were asked, "Shall we have this man or shall we have that man upon the committee" and the answer is, "Well, what are we looking for", to which came the reply, "We are looking for high quality in their particular fields", both of the people in that dialogue would know exactly what they were talking about.
Clause 58 also requires the Secretary of State to have regard to the desirability of appointing members to the new councils from both higher education and

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business backgrounds. My noble friend Lord Pearson spoke interestingly about that from his experience. There is no question about it; that is something that has become more the practice in recent years and I believe that it is right for councils to try to do that.
As I emphasised, members will be appointed for their personal qualities and not as representatives of particular interest groups. While in practice the two categories are unlikely to be mutually exclusive, it would be undesirable to inhibit the Secretary of State from appointing a particularly qualified person because that person fell on the wrong side of the distinction.
My noble friend Lord Renfrew asked why the wording of the clause referred to "having regard to the desirability". My answer is that the Bill in that respect is different from the 1988 Act. Even with the flexibility given by the phrase:
"shall have regard to the desirability"
the definition in the Act of the higher education members related solely to members currently engaged in higher education. In replying to the amendments this evening, I make no secret of the fact that we want the greater flexibility that is in the Bill.
What is my conclusion, having listened to the comments on the four amendments? First, with respect to the noble Baroness, I must resist Amendment No. 222A because it would restrict the members of the higher education funding council to those currently engaged in higher education. That would rule out, for instance, the advantage of being able to appoint the noble Lord, Lord Flowers, although we should have the solace of being able to appoint my noble friend, Lady Perry. Quite seriously, I believe that the amendment is over-restrictive.
I have listened carefully to what the noble Earl, Lord Russell, said on Amendment No. 222, which provides that the majority of members on the higher education council shall be from the sphere of higher education. Again, I resist the amendment. To move in this Bill to a specific majority would be a departure even from the Education Reform Act. The Committee will remember—my noble friend Lord Renfrew placed it on the record—that the numbers in the 1988 Act total 15 persons on the UFC and the PCFC, of whom between six and nine were to come from higher education. Although it is absolutely true that the possibility of a majority was written into the 1988 Education Reform Act, it was not a certainty.
Amendments Nos. 220 and 221 were moved by the noble Lord, Lord Dainton, and spoken to by the noble Lord, Lord Flowers. I would be deaf if I did not say that noble Lords have a point. Without more ado, I shall consult on them with my right honourable friend the Secretary of State. I cannot give a commitment. However, I should like to take the two amendments away with the intention of reporting to the Chamber at the next stage of the Bill. I believe that there is some cogency in the arguments put forward.
Lord Dainton: I warmly thank the Minister for those concluding remarks. Perhaps I may take a moment to explain what I meant by a substantial number. In referring to a substantial number I was being careful. I believe that the bedrock of the
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functioning of the funding council must be intimate knowledge of the institutions with which the councils are dealing if they are to have any credibility with those institutions. More importantly—it has been much stressed by the Government side—members of the council must show a skill in being accountable for the public money that is being entrusted to them. Therefore, one must have a range of membership which covers the major fields of activity of the institutions for which the councils are responsible.
It is not for me to spell it out now, but I leave this as a thought for the Minister to take away. We cannot possibly afford not to have a distinguished scientist or a distinguished engineer/technologist—he might come from manufacturing industry and serve both purposes—but we would also need someone who is au fait with what is going on at universities. Those two spheres have to be brought together. I know from my experience in recruiting industrial members to the University Grants Committee that often one is grateful to have the balancing of the industrial and academic in those more applied spheres. That goes without saying with regard to the social sciences, arts and humanities; and there are others that one could specify.
In a council of the size that is projected, I believe that it is perfectly feasible to meet the criterion to which I refer which sets a lower limit on the size. I should have endorsed what the noble Lord, Lord Flowers, said. There is a special problem with regard to medicine and dentistry. They interact with public services—with hospitals and so on. The matter will arise later in relation to quality assessment. All sides of the Chamber are deeply concerned with that aspect. Therefore, the question of the composition of the committee will once again come before us. I am most indebted to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 220A:
Page 41, line 27, after ("State") insert ("in consultation with those with a legitimate interest in higher education").
The noble Lord said: In moving this amendment I shall speak also to Amendment No. 220B. It offers to do for Wales what Amendment No. 220A does for England. My intention is, as always, to be helpful. In this case I hope to be helpful to the Government. The purpose of the amendment is to enable the Secretary of State to make the best possible appointments, to win credibility for the Secretary of State's decisions and to gain wider acceptance of the members chosen for the English and Welsh funding councils.
I am greatly concerned that the powers given to the Secretary of State in Clause 58(2), (3) and (4) regarding the appointment of members of the English higher education funding councils are insufficient. They do not specifically empower and encourage him to seek and profit from the best available advice. My amendment would permit the Secretary of State to profit by requiring him to consult with legitimate interests in higher education—such as practising

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academics, employers, administrators, staff, students and even learned Members of the Committee—before appointing members of the English higher education funding councils.
Membership of the funding council as detailed in Clause 58(4) is narrowly defined, as we heard earlier this evening. It may limit the flexibility of the Secretary of State, in particular if he lacks the widest possible spectrum of opinion to advise him. The Secretary of State shall choose only those who have either:
"shown capacity in, the provision of higher education",
whatever that means,
"or have experience … in, industrial, commercial or financial matters".
That almost amounts to an exclusion of students and staff, scientists, prelates, professors and so forth. It severely limits the Secretary of State's choice.
Clause 58(4) (a) and (b) puts something of a straitjacket on the Secretary of State. He is "cabin'd, cribb'd, confin'd" and he needs all the help that he can get. Surely the funding councils need to maximise the potential information available to them. I suggest only that the process of consultation would benefit the funding councils and would not cause any vast inconvenience to the Secretary of State. Certainly, it does not imply any kind of improper influence, control or veto.
The amendment, if properly implemented in the spirit in which it is proposed, would assist in maximising support for members chosen for the funding councils. Legitimate interests would feel part of the decision-making process if they were given a chance to give advice and to make recommendations. Funding council members, when appointed, would know that their appointment had been discussed and broadly accepted by those with whom they had to deal on a regular day-to-day basis—the employers, the staff, the students of the institutions committed to their care—and surely they would find such assurance fortifying. I beg to move.
Lord Addington: I support the amendments which are also tabled in my name. Amendment No. 220A is probably one of the most reasonable and moderate amendments that we have moved in a long time. It would insert the words:
"in consultation with those with a legitimate interest in higher education".
I suggest that there is flexibility enough there to allow even the most cautious Secretary of State, or anyone else for that matter, not to feel threatened by it.
Lord Belstead: Like equivalent provisions in the 1988 Act, the clause provides that members of the higher education funding council shall be appointed by the appropriate Secretary of State. I have no doubt that each Secretary of State will wish to ensure a sensible balance of experience within the council's membership and will listen carefully to any advice which may be offered on appointments. The noble Lord, Lord Morris, said that Secretaries of State are "cabin'd, cribb'd, confin'd". That is perhaps going a little far. The present Secretary of State is a man who gets out and about.
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However, it is true that senior Ministers, whatever the government, depend considerably on advice when making appointments. It is only right; they must. Therefore there is nothing between what the noble Lord, Lord Morris, is saying and what the Government believe; that is, that the Secretary of State needs to be advised when making appointments to the funding councils. But—and the noble Lord probably assumed that the word "but" would follow—appointments are intended to be made on the basis of personal qualities rather than as representatives of specific interest groups. There is therefore a danger of a Secretary of State making appointments statutorily in consultation with groups, if that is what the amendment intends. If the noble Lord intends more than that, then I feel bound to observe that the amendments would be almost impossible to operate, given the breadth and diversity of persons having a legitimate interest in higher education.
The noble Lord is both a wise and generous man, and I note that he said "if this was operated in the right spirit". However, when one is talking about legislation one must weigh every word one writes on the face of the Bill. This second limb of my argument, that it could become almost impossible to operate, is a serious point.
Given his overall responsibility for higher education funding policy, it must be clear that decisions on appointments to a higher education funding council will be made by the Secretary of State. The amendments would represent a departure from the tried and tested equivalent provisions of the Education Reform Act. We have just debated an amendment where I was adjured—not once but several times—not to depart from the Education Reform Act provision with regard to the composition of the funding councils. I must say here that if we accept Amendment No. 220 we will be departing from equivalent provisions of the Education Reform Act 1988. For those reasons, although the noble Lord moved the amendment most attractively, I fear I must resist it.
Lord Morris of Castle Morris: I am disappointed. For one heady moment I thought I had pierced the stony bosom of the noble Lord the Minister, but it was not to be. I heard what the Minister said. Nothing that I heard causes me in any way to change my opinion one iota; clearly nothing that I said causes him to change his opinion one iota either. Reserving my rights to return to the matter at a later stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 220B to 222A not moved.]
Lord Addington Lord Addington moved Amendment No. 223:
Page 41, line 39, at end insert:
("(c) persons who have experience of, or knowledge of the requirements of students with learning difficulties.").
The noble Lord said: Amendment No. 223 goes back over—
Lord Belstead: I do not have the right to interrupt the noble Lord, Lord Addington, but this amendment

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was spoken to with Amendment No. 15 on the first day. Perhaps the noble Lord will bear that in mind in speaking to it.
Lord Renton: With regard to the point raised by my noble friend, this amendment was mentioned on the first day in respect of funding councils for further education. Here we are dealing with funding councils for higher education and it may be thought the circumstances are slightly different. I must say that, having taken part in the discussion on the first day, it did not occur to me that we would be precluded from considering the matter in relation to funding councils for higher education.
Lord Belstead: I am extending the time that we are taking The considerations that my noble friend Lord Renton has mentioned occurred to me. The fact is that this amendment was grouped on the first day. It is a matter for the Committee. I simply ask the noble Lord, Lord Addington, to take that into account.
Lord Addington: I was going to take that into account anyway. I was not altogether sure that it was exactly the same amendment because my memory is not that good. The amendment covers many of the same issues. I was hoping to draw from the Government the same kind of consideration of the issues involved as we had concerning further education. One must take into account that in higher education there is bound to be a slightly different perspective on the problems and that there will probably be a smaller number of students involved.
Unfortunately, the higher education part of the Bill is to some extent selective. Those with learning difficulties will find greater barriers. It is almost certain that a smaller proportion of students will get through. With that in mind, I would like to draw from the Government the same kind of assurances that we received from them concerning further education. I beg to move.
Lord Renton: This matter is relevant to the question of higher education. Perhaps I might mention a personal experience. During my third year at Oxford, which was my final year for a degree in jurisprudence, I was tutored by T.H. Tylor of Balliol, who was blind. He had a First in law. He had tremendous difficulties. He was entirely dependent on his sister. She was older than him. She helped him with his academic studies and enabled him to get a First in law. One must not assume that even in higher education people with learning difficulties have needs which can possibly be ignored. In order to ensure that they are not ignored, I hope that my noble friend will agree that this amendment, or one very much like it, is written into the Bill.
I stress that there is no question of this being a representative appointment. It is simply that the person to be appointed shall be known to have,
"experience of, or knowledge of the requirements of students with learning difficulties".
In those circumstances I should have thought that this amendment is a very wise precaution.
Baroness Park of Monmouth: Perhaps I may briefly add to what has been said. I have known of two cases
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of severely deaf students who had very special problems. I have known of a blind student from Zimbabwe who did extremely well by gaining a First at Cambridge and following post-graduate work at Oxford. He needed special people to read to him. He really had special problems. Nevertheless, he was academically absolutely in need of that support.
Lord Belstead: I have very little doubt that no Secretary of State will want to ensure that there is other than a sensible mixture and balance of experience within the membership of the new councils. It seems likely that at least one of the members with a higher education background will have some experience or knowledge of the needs of students with learning difficulties.
Perhaps I may put the problem simply. If this amendment were accepted just like that, it would be difficult to stop there. Why not have similar provisions in respect of particular learning circumstances of students from the ethnic minorities with traditional qualifications for higher education entry, or mature students? There is a problem.
I do not believe that an amendment of this kind is the only means whereby the needs of a particular group of students will be taken into account. The Polytechnics and Colleges Funding Council has already adopted targets for increasing participation for students with special educational needs. I imagine that for their part the Secretaries of State will want to consider whether their launch letters of guidance to the new councils should make it clear that promoting access for students should be one of their aims. Indeed my understanding is that that is very much in the minds of those in the Department of Education and Science.
Having said that, I should like in answer to the noble Lord, Lord Addington, to repeat the undertaking which was given by my noble friend Lord Cavendish on a similar amendment to Clause 1 of the Bill. On the strict understanding that we are not talking about representatives, and with no commitment—I have to say that—I shall be happy to take this away and to look at it.
Lord Addington: I thank the noble Lord, Lord Belstead, for that commitment. I appreciate that it is a very generous one working within tight boundaries. Before I withdraw this amendment, I should also like to say that the area of special educational needs is very important. The example given by the noble Lord, Lord Renton, is one to which we might give one second's thought. He said that somebody had to help somebody else with their academic work. That other person presumably was severely curtailed. We are also talking about making everything available for all those taking part with all disabilities. A little bit of knowledge and assistance—for instance, in a Braille translator enactor —would have helped enormously. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Russell Earl Russell moved Amendment No. 224:
Page 42, line 10, leave out ("the Secretary of State") and insert ("the Courts").
The noble Earl said: This amendment takes up the provision that disputes about the functions of the funding councils shall be settled by the Secretary of State. The amendment proposes to remove "the Secretary of State" and insert "the Courts". If the Secretary of State can settle any dispute about the functions of funding councils, this amounts to yet another further power to confer supplementary functions. The courts are a good deal more appropriate because the Secretary of State in any dispute about the functions of the council is at risk of being ex-parte.
The councils have been described—I think by the noble Lord, Lord Morris of Castle Morris—as the Secretary of State's creatures. This gives him a large amount of power. His will is not law. Somebody ought to be able to control it. I shall not, at the moment, go into the question of how far the courts can do so; but I hope that they can. I beg to move.
Lord Belstead: The noble Earl is unduly suspicious on this occasion. Perhaps I may give an example which comes from the same clause. Suppose there was an uncertainty (to put it at its lowest) or a dispute (to put it at its highest) as to whether an institution's activities are wholly or mainly carried on in England, or wholly or mainly carried on in Wales, as referred to in the clause. In the unlikely event of this being the case, someone has to make a determination because of the need to ensure that resources go to the appropriate funding council for the purpose of funding the institution - and subsection (8) provides for this to be resolved by the Secretary of State. I should have thought that that was the right way of doing that, for instance, rather than going off to the courts with all the expense and the delay which that involves.
I shall certainly have a look at this again to see whether my answer has ranged wide enough. But on the exchange that we have had, that is the feeling I do have.
Earl Russell: I thank the Minister for that reply. The example he has chosen is indeed an innocuous one. I agree; I do not see the point in arguing that cases like that should necessarily be taken off to the courts. I am very grateful, on the other hand, for the Minister's undertaking to look at this again and see whether it might confer unwittingly further powers going a bit beyond that. With thanks for that assurance I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 agreed to.
Schedule 1 [The Further and Higher Education Funding Councils]:
[Amendments Nos. 225 to 228 not moved.]
Earl Russell Earl Russell moved Amendment No. 229:
Page 65, line 8, at end insert ("and shall establish a committee for London").
The noble Earl said: As a teacher in the University of London I must declare an interest in this amendment. The amendment provides that the new funding council shall have a sub-committee for London. The Universities Funding Council is at present supposed to have a sub-committee for
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London. Some of my colleagues have recently expressed doubt about how often that funding council has met. I therefore put down a Question for Written Answer asking when it last met. The Answer of the noble Baroness, Lady Blatch, appears in today's Official Report. She replies that it meets from time to time. That I found not exactly a forthcoming answer and for that reason I thought it was worth going ahead with this amendment.
There are quite special questions that arise in the organisation of education in London which need a certain amount of knowledge to address. I should like to think that the new higher education funding council would have briefing on it. In its annual report the University of London states that in the four years to 1990–91 it has faced a 10 per cent. decline in its income in real terms.
Sir Peter Swinnerton-Dyer, testifying before the Public Accounts Committee in January 1990, had quite a tough examination on why he had not drawn its attention to the particularly severe deficits of a number of London academic institutions. The noble Lord, Lord Allen of Abbeydale, has called the attention of the House before to difficulties at Royal Holloway and Bedford New College. There have been troubles at University College, London, which have also been drawn to the attention of the Committee as have, yesterday, those at King's College, London. Yesterday, Queen Mary and Westfield College also had a march and petition. Goldsmith's College at present has an occupation because of the cancelling of a large number of courses and the dismissal of lecturers who should have been teaching them—dismissal, I understand, for reasons of financial stringency and not for dissatisfaction with their performance. London polytechnics have rather similar difficulties. I am sure that Members of the Committee have read about Middlesex Polytechnic. I have already mentioned the sit-in at Thames Polytechnic which was to do with the library budget. That is a high proportion of the vocal discontent at present going on in the country.
It raises the question: is there some special London factor that has not been taken into account? I believe there is. It is the question of London unit costs. In September 1988 the University of London, largely as a result of the work done by the noble Lord, Lord Flowers, to whom I am grateful for discussion of this subject—I am sorry that he is not in his place at the moment—calculated the extra costs of being in London at £10 million a year. The University of London argued for a level playing field. That is a fair request. I know that some adjustment has been made since but it has not been sufficient to make up the difference.
The hardships of which we hear in London seem to be more severe than a great deal of what I hear from my colleagues in the provinces; and that despite the fact that the university is one of considerable quality. Indeed, it has been argued that in my own subject it is capable of matching and even exceeding the quality of Oxford and Cambridge. While I am sure that the noble Lord, Lord Renfrew, will not agree, I hope that we may agree to differ on the matter.
The university also has a particular structure which appears from inside to be a source of great strength. But it takes an effort to understand it. Every now and then people from other places are capable of becoming irritated simply because it takes work to understand it. We are all human; we all become tired; and in those circumstances we can all become irritated with special difficulties.
In today's Evening Standard I see that the Secretary of State for the Environment is concerned with offering proposals to restore London pride. I was glad to read that. I believe that every country in the world has a university in its capital city. We have a particularly good one. If the Secretary of State for the Environment is concerned with London's pride, I hope that the Secretary of State for Education and Science will also be so concerned. I beg to move.
Lord Renton: There are times when the noble Earl comes very close to persuading me. But I am afraid that he has not succeeded in drawing me into an alliance with him on this amendment. I cannot support it.
Lord Peston: I am somewhat puzzled by the argument of the noble Earl, Lord Russell. I did favour the amendment, but I should remind the Committee that there are three universities of London and there will be nine or more in the next year; in other words, we shall have at least 12 universities of London before very long. I thought that the amendment was about trying to rationalise that situation which, speaking as a member of staff of one of the universities of London, seems to me to be quite absurd. I certainly did not think that it was about what is narrowly called London University. I thought that it was designed to ask whether we need a dozen or more universities of London.
If it were to mean the latter, I believe that, first, the council should establish a committee to try to solve what I think is the rather serious problem of excess supply of separate units, if I may put it that way. Secondly, I agree with the noble Earl, Lord Russell, that if a committee is set up it should meet on occasions There is no point in having a committee which does not meet.
There is also a very serious economics question about unit costs. If London is disproportionately expensive, then I would worry that we ought to reconsider whether we need quite the university that we have, let alone 12 of them. If my meaning could be attached to the amendment, I would feel happier supporting it than I do at present with just the noble Earl's meaning. I place that proposition before the Minister for him to consider.
Baroness Perry of Southwark: I thank the noble Lord for having set the record straight as regards the number of universities that there will be in London if the Bill is enacted. I do not support the amendment because I think that there are special regional cases around the country, and London is a region in its own right. Therefore, it does not have a stronger case for its own committee than any other region.
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I challenge the noble Lord, Lord Peston, on one particular point. I strongly resist the idea that 12, 15 or 20 is too many universities. Indeed, most other major capital cities of the world have at least twice that number.
Lord Peston: I should like to ask the noble Baroness a question purely for my own enlightenment. Was she serious when she said that most capital cities have about 24 universities? I thought that I knew about the subject, but I was not aware of that fact.
Baroness Perry of Southwark: I invite the noble Lord to visit New York and Tokyo and to start doing his homework from there.
Earl Russell: I was perfectly aware of the existence of other universities in London. I believe that what I say is true of them also; namely, that they too have the same problems with unit costs. I was relying upon others with more knowledge to say so.
Lord Belstead: If I may say so, I believe that there is an almost unlimited range of special interests for which committees could be established. It would be wrong to prescribe them in legislation. But, in case that sounds utterly negative, perhaps I may make a more constructive remark and say that the Bill enables the councils to set up committees for any purpose. Therefore, the mechanism already exists in the Bill for the councils to be able to do exactly what the noble Earl recommends. Even if they do not read Hansard in order to digest the proceedings as the Bill passes through this place, I have no doubt that the noble Earl's words will impinge themselves upon the councils when they are appointed.
Earl Russell: I thank the Minister for that reply. I have two further questions for him to answer. First, can he draw the attention of the relevant authorities to the fact that this is one university which feels that it has been treated rather worse over the past few years than some other universities? Secondly, can he find out if the London sub-committee is going to meet? With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11 p.m.
[Amendment No. 230 not moved.]
Lord Addington Lord Addington moved Amendment No. 230ZA:
Page 65, line 15, at end insert:
("(5) The Funding Council shall establish a Student Consultative Committee to monitor relevant information deemed suitable by the Council.").
The noble Lord said: This amendment brings us back to the subject of students and the idea that they should have some voice and influence over the process of their own education. That is particularly appropriate in higher education as there is a great tradition of student involvement. Indeed, the growth of the National Union of Students in many colleges and, indeed, the growth of many smaller groups representing individual universities, is a good example of how students take their own role seriously.
In this case, unlike the debates at the beginning of the day, we are merely talking about consulting students. There is no problem of representation; we

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are merely talking about consulting student bodies, which are numerous; for example, the British polytechnics sports association or the universities athletics union. When I was a student I had more to do with the athletics union than I did with the students' union. All those bodies should be consulted because they can provide, if nothing else, an area of expertise.
I suggest that this is a moderate and sensible amendment. I beg to move.
Lord Belstead: There is a great deal in the idea put forward by the noble Lord, Lord Addington, but I am not so sure that I am enthusiastic about the amendment. The reason for that is that at various points throughout our discussions today we have considered how far it is appropriate for the councils to be left alone to govern their own affairs.
This is another case where an amendment seeks to impose yet another committee and a procedure upon the council which may not suit the council's methods of working or for which the council would find a better alternative. While in no way wishing to depart from much of what the noble Lord said—he has taken a great interest in the Bill and has put forward many useful ideas—on those grounds the Government would not support the setting up of yet another statutory committee.
Lord Addington: Although I like the sentiment, I should have preferred to have something written on the face of the Bill because, once again, we are talking about those people who are concerned with the sharp end of the process. However, I thank the noble Lord for his sentiment. I shall take away the amendment and consider what should be done with it. I reserve the right to return to this matter at a later stage, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Seear Baroness Seear moved Amendment No. 230A:
Page 65, line 16, at end insert:
(". The Council shall establish an adult education sub-committee to represent the interests of the long-term residential colleges, the WEA, the four London colleges and the other major institutions and organisations.").
The noble Baroness said: This amendment asks for another special committee. I should not be moving it at this hour but the noble Duke, the Duke of Norfolk, who is unable to be here, asked me to move this amendment to which his name is attached.
It is well known that there is considerable anxiety throughout the country about what will happen in regard to adult education. This amendment is about a particular section of adult education—some aspects of this have been referred to in the past—and in particular, the long-term residential colleges; namely, Coleg Harlech, Co-operative Fircroft, Hillcroft, Northern, Plater, and Ruskin. In addition, there are the well known national organisations such as the WEA and the four London colleges. The needs of those colleges and their standing in the nation, because they are national colleges, put them in a rather different position. Their long tradition and recognised quality means that they are in a category by
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themselves and they justify a committee to see that their maintenance and development is adequately handled. I beg to move.
Lord Belstead: Paragraph (8) of the schedule is designed to allow the councils to establish committees and sub-committees for any appropriate purpose, a point which the noble Baroness will forgive me for repeating. They may well want a committee on the education of adults, but I think that it would be wrong to decide for the councils, through legislation, which committees need to be set up now. I think that is something that councils themselves are best placed to judge.
While we are talking about the amendment, may I say a brief word about the colleges? The noble Baroness mentioned the six long-term residential colleges. They were reviewed earlier this year by the Department of Education and Science, and, in the light of that review, the Ministers at the department recognised the unique place that those colleges hold in providing residential education for adults who have missed out during their school years. They decided that it would be appropriate for the colleges to enter automatically the further education sector through the mechanism of Clause 28. This would enable their needs for capital funding, for example, to be considered alongside those of other colleges. Similar decisions were reached in respect of Coleg Harlech in Wales.
The Government firmly believe that the long-term residential colleges have an important role to play in the new sector. As I said on Second Reading, we shall be making clear in guidance to the funding councils that the distinctive characteristics of those institutions must be taken fully into account.
The noble Duke is not here this evening, the noble Baroness moved the amendment; but it is of interest that Plater College in Oxford, which I believe used to be called the Catholic Workers' college, is one of the long-term residential colleges which would transfer automatically to the new further education sector under Clause 28.
If I may give a further reassurance, Clause 6(3) of the Bill requires the councils to have regard to the desirability of maintaining what appears to them to be an appropriate balance in the support given by them as between institutions with a denominational character and other institutions. So the Bill honestly offers no threat to the traditional character of Plater College or other similar colleges.
I just wanted to add those words because it is important to show that the importance of the long-term colleges has very much been addressed in the Bill. Therefore, in resisting the amendment, as I am doing, I am not resisting the words and feelings of the noble Baroness about the importance of the long-term residential colleges.
Baroness Seear: I thank the noble Lord very much indeed for that reply; I am not surprised to have received it. I noticed that he talked exclusively about the long-term residential colleges. The amendment also mentions,

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"the WEA, the four London colleges and the other major institutions and organisations",
which are regarded as in a somewhat special category in the field of adult education.
However, even though the Minister is not prepared to accept the amendment, it is valuable that we have had this exchange and it will be in Hansard. It will give at any rate some reassurance to the colleges as to the support that they are likely to receive in the future. With that observation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 231 to 238 not moved.]
Earl Russell Earl Russell moved Amendment No. 239:
Page. 65, line 34, at end insert ("Any exercise of functions so delegated shall be reported to the next meeting of the Council.").
The noble Earl said: This amendment seeks to amend paragraph 10 of Schedule 1. That paragraph provides that "the council"—that is either of the funding councils—
"may authorise the chairman, the chief officer or any committee established … to exercise such of their functions as they may determine".
In fact, it authorises the delegation of functions. I do not argue with that. The amendment simply asks that any functions,
"so delegated shall be reported to the next meeting of the Council"
I have no doubt that the Minister will tell me that this is an unnecessary amendment. I am quite prepared to admit that the horse has not been stolen. That is why I am trying to build a lock on the stable door. It seems to me that this is a sensible piece of procedure. If that gets spelt out early on, it is a sensible precaution. If one has to wait until it is shown to be necessary to take precautions, then one gets into an area where it is quite difficult to suggest it. The whole reason why I am moving the amendment is that as yet no reasons can be shown for it. That is the time to do it. I beg to move.
Lord Renton: I respect the noble Earl and I admire his zeal, but quite frankly our statute book is getting cluttered up with small instructions to various bodies that we appoint by statute. Can we not leave some good sense and discretion to them? I hope that my noble friend will resist this amendment.
Lord Tordoff: There have recently been instances outside the field of academia—for example, in the field of commerce and particularly of newspapers—where if the chairman had had to report his actions to the board as regards the movement of money from pension funds into other areas, it might have been useful. If such a provision had been on the statute book rather than just left to people's good graces, some people might have been a lot better off than they are today. I welcome the amendment.
Lord Renton: We are not dealing with business in this Bill: we are dealing with sedate matters of education.
Lord Tordoff: We are dealing with people in this Bill.
Lord Belstead: While it is perfectly true that anyone can err, I believe that the councils themselves should decide these matters. We should occasionally place our confidence in the people we are appointing. We hope to appoint high quality councils and they should decide how to fulfil this function without having to refer to the statute book.
Earl Russell: It had never been my intention to press this amendment. I heard the point that the noble Lord, Lord Renton, made. Had I intended to press the amendment, I would then have refrained from doing so. However, I think the point was worth raising. It is worth repeating, often out of season as well as in season, that these routine precautions ought to be observed. The Minister has stressed tonight that we seek accountability for public money. I do not wish to say anything to suggest that we on these Benches care any less about that than anyone else. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 240 not moved.]
Earl Russell Earl Russell moved Amendment No. 241:
Page 65, line 36, leave out paragraph11.
The noble Earl said: This amendment seeks to delete the provision which allows the Secretary of State or his representative to attend meetings of the council. It was once my pleasure and my privilege to read a memorandum written by my ancestor, the fourth Earl of Bedford. The memorandum was written about 1628. It explained why he thought the King should not attend meetings of the Privy Council.
That memorandum precisely expresses the case that I want to make in favour of this amendment. He said that when the King attended meetings of the Privy Council, members of the Privy Council went to great trouble to find out what the King wanted, as he had, after all, the power to promote them. They went out of their way to offer the advice that the King wanted, whereas what the King really needed was to hear the advice he did not want. Indeed, if he is a good King, what he actually wants is to hear the advice he does not want. My ancestor thought that the King's attendance at the Privy Council meetings gravely reduced the quality of its deliberations. That is exactly my case for this amendment. I beg to move.
Lord Peston: With great regret I must oppose this amendment which I regard as quite ridiculous. Anyone who has had any experience of government would not only believe in this amendment, but would support a stronger amendment to state that the Secretary of State must send an assessor to all these meetings. If the noble Earl believes that in this kind of matter there would not be officials present, that only indicates he has no experience whatever of how the machinery of government works, and ought to work. If the noble Earl presses his amendment, I shall certainly vote against it. It simply bears no relation to the reality of government.
Lord Belstead: That is fair. There are numerous precedents for these arrangements. Paragraph 11 is virtually identical to paragraph 12 of Schedule 8 to the Education Reform Act which relates to the

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universities', polytechnics' and colleges' funding councils. Those arrangements have worked well. I realise that it is an occupational hazard, and that when I say that it has worked well, perhaps the representatives will be hearing what people wish them to hear. However, in these modern times I do not believe that it works like that, particularly if the representative is always present at every meeting.
Lord Dainton: Perhaps I may reassure the noble Earl that in my own fairly long experience in this sphere I have known of assessors being present and there being no assessors. I have always found that assessors are willing to withdraw when it is necessary for them to do so to meet the condition which the noble Earl wishes to be satisfied. With skilful leadership there is never any problem in that regard.
Earl Russell: I hear the noble Lord, Lord Dainton, and am reassured. I hear the words of caution from the Minister and am reassured by them also. I congratulate the noble Lord, Lord Peston, on his promotion to the Government Front Bench! I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.15 p.m.
Schedule 1 agreed to.
Clause 59 agreed to.
Clause 60 [Transitional arrangements]:
Lord Addington Lord Addington moved Amendment No. 242:
Page 43, line 34, at end insert:
("(5) and the Secretary of State shall ensure that sufficient transitional arrangements will be made to fund the extra capital expenditure required to bring polytechnics and their student unions and their support services up to the same level of funding as that of universities.").
The noble Lord said: The amendment deals with a very important part and one of the primary aims of the Bill—removing the binary divide. From the point of view of many students it is a key issue.
The academic reputation of the polytechnics is beyond question. They would not have this promotion had they not proved they were ready for it. However, unfortunately many polytechnics do not meet the same standards in terms of student facilities as universities. When choosing a university one first chooses the course and then compares facilities such as student accommodation, sports facilities, drama facilities and so on. In that area polytechnics invariably come off second best. That happens to be an accident of history. Unless the facilities of the colleges and polytechnics can be brought up to the same standard as those in universities they will be at a disadvantage in an area which forms an important part of student life.
In case someone should be tempted to say that people do not go to university to have a good time I suggest that if one tells someone that they can go to one university and have a good time or to another where they will have a bad time they will choose the one which is more pleasant. Indeed one of the attractions of higher education is that it is supposed to be fun.
At present students are being squeezed hard. No one would dispute that. Therefore, facilities such as student accommodation - which is much grizzled about by those students who have it and prayed for by those who do not because it is cheap - is one of the important factors when deciding on a university or polytechnic. There are also aspects such as the social benefits from meeting other people taking the course. One of the great plus points in favour of Oxford and Cambridge has always been that they are well provided for in terms of accommodation and the other factors which make student life pleasant.
If that very important aspect of the institutions can be raised to the standard in the majority of universities, one will really have removed the binary divide. There may be one or two polytechnics which already match those standards, but at present the universities hold an advantage. It is late, but this is a very important issue and I await the Minister's answer with interest. I beg to move.
Lord Peston: I wish very strongly to support the amendment. It is a tremendously important topic and it is sad that we are debating it at this late hour. It is one which has concerned me for a great many years since I began to undertake research on the economics of education and became involved with the CNAA in endeavouring to enhance the polytechnics in their early days. I do not see this as a party political matter. It is a problem which will have to be faced by any government.
I have always asked myself on what rational grounds I could argue that, because students go to a polytechnic rather than what is currently called a university, they ought to have poorer library facilities, to study in overcrowded conditions, to have inferior eating facilities, to have poorer playing fields and so on. I have never been able to think of any argument to convince myself, other than the obvious one: where will the money come from? We have simply let this matter drift on year in, year out by saying that there is no money, but eventually we must ask of the available funds what priorities we wish to establish. The noble Lord referred in the amendment to transitional arrangements, but I fear that transitional arrangements, even if we set about dealing with them, will take some time.
Those of us interested in higher education must face the fact that the criteria for the expenditure of funds must be at least partly to redress a serious imbalance. I am willing to be convinced by the Government if they could tell me why a polytechnic student should have inferior conditions. I have never had the imagination to produce the argument for myself.
When I saw that the amendment had been tabled, I hoped that many noble Lords would be present and that we could go into the matter in some detail. Obviously, no one wishes to do so at this time, but I hope that in replying the Minister will at least show some sympathy for and understanding of the principles here; namely, that the polytechnics, by which I mean the students, deserve a better deal, given

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the effort that is being put in by their teachers and others in that area. I therefore strongly support the amendment.
Lord Belstead: The amendment would place a duty upon the Secretary of State to provide a predetermined level of funding to the new universities. Both noble Lords who spoke to the amendment explained why they are anxious to see the amendment succeed. Mechanically, the amendment is misconceived. The Secretary of State has already determined his allocation of capital funds to the UFC and PCFC after careful consideration of the needs of each group of institutions. My right honourable friend's next grant, for 1993–94, will be to the new Higher Education Funding Council. As far as I know, there is no additional money in between.
The noble Lords, not least the noble Lord, Lord Peston, made a brief but strong case for the amendment. The Government have not been slow to meet capital needs of the polytechnics and colleges. Since 1989–90, grant to them has increased by over 50 per cent., greater than that for universities, recognising the relative lack of attention to this area of expenditure when polytechnics and colleges were under the control of local education authorities. I say that in no vindictive way, but, if you look at the figures, there is truth in that assertion.
It must be a matter for the Secretary of State to determine the appropriate level of capital funding for buildings and equipment for the UFC and the PCFC. Each funding council must be free to determine individual allocations according to the needs of individual institutions. For the reasons that I have given, I do not think that the amendment would work and, on hat ground alone, I must resist it.
Lord Peston: Before the noble Lord sits down, I was not merely trying to establish a mechanical procedure. I am sure that that is true of the noble Lord, Lord Addington, too. One is simply trying to air the principle. That is what concerns me. I regret to tell the noble Lord that I have not looked at the latest figures and I accept his word that there may have been some small shift of funding in the direction of the new universities. I am delighted to hear the Minister use that expression. I too shall try to use that term rather than refer to polytechnics. Even though I, as a university teacher, may complain endlessly about my lack of resources, I always know when I go into one of the new universities, that I am quite well off in many of the most important areas.
All that I seek to do—the noble Lord, Lord Addington, will then speak for himself—is to air the important principle of finance. I do not air it as a party political matter. I see it as at least as difficult for a different Government to solve as it is for this Government. I should simply like to establish the fact that the problem needs solving.
Baroness Perry of Southwark: Clearly, I must declare an interest here as I try to run one of those institutions—the former polytechnics, new universities or whatever one wishes to call them. It goes against my professional grain to count the teeth of any
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gift horse. I thank the noble Lord who proposed the amendment. I appreciate the spirit that lies behind it, but I must resist the idea that, inevitably and always, the facilities for students in polytechnics are inferior to those in universities.
Lord Addington: The noble Baroness will forgive me, but I did not say "always"; I said in the majority of cases. The amendment does not mention all of them - a blanket ban; it is intended to bring them all up to a general standard. I quite accept that the amendment is technically not correct, but the idea behind it is to bring polytechnics up to a recognised standard. There are certain new universities which have also been caught by this provision.
Baroness Perry of Southwark: I thank the noble Lord for that comment. I think that he demonstrates the complexity of this amendment. Not all the polytechnics and their facilities would therefore be in line to qualify for any such additional or transitional funding. Where I think that the gross difference between the present polytechnics and the existing universities can be found is in the facilities for research equipment. I do not believe that it would be in the interests of the higher education sector to plead for a sudden shift of research funds on the scale that would be needed in the direction of the polytechnics.
However, I repeat that in terms of student facilities, student residences, student union and indeed some of the teaching accommodation, I do not believe that there is by any means an uneven distribution of good and poor quality accommodation.
Earl Russell: The Minister will be in some difficulty if he resists the principle of this amendment. One would like to think that, if the former polytechnics are to have the title of university, they are to be given something of value. That means that they should be given all the powers, dignities and equipment and so forth that go with that title. If that were not done, there would be a risk of a new binary line being created, which I believe we would very much deplore. I hope that the Minister will indicate at least a little more sympathy towards the principle that is behind the amendment.
Baroness Perry of Southwark: I apologise for speaking twice, but I believe that I am right in saying that the current amount of research funding which the Universities Funding Council distributes is somewhere in the region of between £700 million and £800 million. If that were divided evenly, it would take £350 million or thereabouts out of the budget of the existing universities, which would be disastrous. None of us would wish to see that happen. I believe that that is the major area in which inequity currently exists. It can only be righted over a very long period of time when each and every one of us earns the right to have that kind of even distribution.
Earl Russell: But what happens when people do? If the Government want something, they must be prepared to pay for it. If they are not prepared to pay for it, it cannot be done properly. So I ask the Government to pay for it.
Lord Addington: I accept that the amendment is technically faulty and I shall therefore not take it any further. Before withdrawing the amendment, I should like to say that I shall almost certainly come back to this issue at a later stage. I should like the Government to remember that we are talking about student unions and support services. As I said before, unless those come up to scratch or produce something close to it across the board, I agree that there will be some type of variation. Unless the new universities roughly, as a group, are comparable with the older universities, we shall not have a true one-university system; we shall still have a great legacy left over from the binary divide. That is what this amendment is aimed at. It is an issue that we should address later on. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 agreed to.
Clause 61 [Administration of funds by councils]:
[Amendment No. 243 not moved.]
Earl Russell Earl Russell moved Amendment No. 244:
Page 44, line 9, at end insert:
("(e) The Council shall continue the practice of Special Factor Funding as hitherto used by the Universities Funding Council").
The noble Earl said: This amendment asks for the new higher education funding councils to continue the practice of special factor funding, as previously conducted by the Universities Funding Council. It is a matter which I understand is under review.
I must declare an interest in that this issue has a particular effect on the University of London, from which I come. It also has a particular effect on the Institute of Historical Research, of which I am a member of the board of management. More generally, the point of special factor funding is to protect the existence of institutions of national importance, whose importance may be greater to the academic world in the country as a whole, or even in some cases in the world as a whole, than it is to their own particular college.
To illustrate the principle, perhaps I may take one institution which does not enjoy special factor funding but may do so in future. The Department of Dutch in University College is the only department of Dutch in the country. There is a national interest in there being one department of Dutch somewhere. After all, at a recent meeting there has been a considerable need for interpreters capable of speaking Dutch. In fact it has been used hitherto largely for university museums in Oxford and Cambridge and for the senate institutes in the University of London.
The University of London at present receives £11.38 million in special factor funding. Were that funding to the University of London to cease, a good many institutions of genuine world class stature would be at risk of survival. Some institutions at present enjoy such funding; some do not.
The Institute of Commonwealth Studies at present does not enjoy such funding because of a chapter of accidents almost on the level of the situation described by the noble Lord, Lord Annan, last night in relation to the Property Services Agency. A report which would have ensured such funding simply failed to
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reach the Universities Funding Council before its deliberations were complete. The institution is in considerable doubt about its survival.
The Institute of Historical Research, with which I am most concerned, is in my opinion more important to the study of history in the country and the world than the remainder of the University of London put together. In saying that, I include King's College to which I am profoundly loyal; it is the body which pays my salary. It is a place where scholars from around the world meet, exchange ideas, read books and check footnotes. It costs very little indeed. Forty per cent. of its readers come from outside the University of London. A large proportion of its readers come from overseas. One of the most passionate defenders of the institution whom I heard recently was a visiting professor from the University of Moscow who, hearing that its survival was in doubt, expressed astonishment that anything so insane could be contemplated.
It does not cost much to keep the institute going. A sum of about £1 million is involved. The special factor funding is supposed to guarantee its level funding. That means that funding declines by 2 or 3 per cent. a year which demands adjustments but is not disastrous. Without the special factor funding it has no future.
The Institute of United States Studies is in a similar position. It has not had the funding. It is in difficulties. It has caused considerable anxiety to the Foreign Office and to our embassy in Washington. There is a diplomatic implication. There is a feeling in the United States that it contributes a good deal of money to help interest in British studies in the States and that there is no reciprocal generosity in this country towards studies of the United States.
It is an effect of the squeeze that everyone tries to cut back and retreat into their central core. Any specialised area is constantly threatened with extinction. That applies to many valuable institutions. Therefore long term planning and economy is not easy.
I fully admit that this is a piece of special pleading, but I believe it is a case worth pleading. I beg to move.
Lord Belstead: I must admit to the noble Earl that in practice I believe that the new funding councils will have to include some allowances for special factors which cannot be dealt with through the operation of the main funding methodology. Indeed, my understanding is that the PCFC as well as the Universities Funding Council take account of London factors in their methodologies now. However, the way in which special factors are taken into account must be for councils to decide. It would be a mistake for the Government to impose specific solutions on the Bill before the council is even appointed. Although the noble Lord says that it was special pleading, to be fair to him the points are generalised and are of importance. However, I still do not believe that they should be put on to the face of the Bill.
Earl Russell: I thank the Minister deeply for that reply. He said everything I hoped for. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 245 not moved.]
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 246:
Pap 44, line 20, at end insert:
("(c) make grants to students with learning difficulties in respect of any additional disability-related expenditure, other than travel costs, incurred or to be incurred by them because of attendance on the course.").
The noble Lord said: I am sorry to rise at this hour to make yet another plea to the Government to help those who are disabled in one way or another and who need special support in higher education. I shall speak also to Amendments Nos. 247 and 249. The purpose of Amendment No. 246 is to make it possible for higher education funding councils to give financial assistance to individual students. Some of them need help with expenses incurred as a result of their learning difficulties.
Amendment No. 247 will give the councils a duty to make particular grants to institutions as opposed to individual students in order to help disabled people to attend their courses.
Amendment No. 249 will allow funding councils to fund directly any support services which are working within the higher education system.
The provision in Amendment No. 247 has been expressed as a duty by using the word "shall". I know that would be preferable from our point of view, but I should be happy to swap the word "shall" for the words "the council shall have power to". I can well understand the reasons why the Government prefer that, and if that is what they wish I shall be happy.
In speaking to the amendments, the examples that I shall gave are of people who are deaf or have been deafened. For the purpose of the debate I ask all the highly-intelligent Members of the Committee to imagine that they are deaf students or have recently been deafened. They will then see why the amendments are necessary.
I turn to Amendment No. 249. Most disabled students in higher education receive a disabled student's allowance. One might believe that is enough for them to be able to equip themselves to follow courses of higher education intelligently. However, the aids which they need are very expensive. For instance, they may need an interpreter or notetaker equipped with special electronic aids. Without such human and electronic aids to their studies they cannot begin to compete with people who are not so disabled. They may be extremely bright people but their disablement is an impairment. Everything should be done to give them equality with their peers who are not disabled.
However, the problem does not relate to the ordinary student who is deaf. One may say that because he receives a disabled person's allowance he is reasonably well catered for. Part-time and graduate students do not receive the disabled person's allowance. What are they to do without support? The support is high cost and prohibitive for the ordinary person. However, it should be made available from central government funds.
Few deaf people are able to choose the increasingly
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flexible part-time courses: because there is no disabled students' allowance. Nor can they afford to go on to post-graduate degree courses: again because there is no disabled students' allowance. All that goes against government policy. The Government are doing their best to promote those very courses, especially the part-time courses. It is clearly not right that bright and willing deaf people who are capable of benefiting from them, should be debarred from post-graduate courses because there is no disabled persons' allowance.
It is an important amendment. I shall not dilate upon it because the point has been made. However, I should add that the Government spokesman on the Front Bench was extremely kind and agreed to talk about the raft of amendments I am concerned to move, and I should like him also to consider these three amendments. It may save a great deal of time this evening when we all want to go home.
The second amendment relates to the disabled students' allowance. If that were paid to part-time and post-graduate students it would be helpful. But it would not be everything. What is often needed is help which is provided by adapted buildings. Certain higher education centres are well adapted; particularly Reading University and Sheffield Polytechnic. They make facilities available such as the induction loop system, which is necessary in lecture halls, and indeed such small items as flashing fire alarms—deaf students cannot hear bells—and flashing door bells to enable them to enter their student lodgings at night. They may not be expensive, but they are important items.
The problem is that the deaf learn about such well adapted centres as Reading University and Sheffield Polytechnic, and apply in large numbers to attend those institutions. That is unfair on the institutions. If they spend a lot of money on those items—more than most other institutions—they cannot spend it on other equipment which other competitive universities or polytechnics can provide. That is not fair. If two or three outstanding centres are chosen because of their help to, for example, deaf people, then they must be provided with sufficient funds. The alternative is to provide sufficient funds to all universities and polytechnics. It is an administrative matter which I need not go into in detail, but something must be done to help those people.
I can illustrate my third amendment using Sheffield Polytechnic as an example. It relates to providing funds for support services for disabled people. The hearing impaired support service at Sheffield employs interpreters, lip speakers and note-takers who will accompany deaf students at the polytechnic and university into their lectures. Without that support they cannot begin to compete or catch up.
I ask that the amendments be considered sympathetically by the Government. I do not expect them to reply with an immediate yes; but I hope that they will not reply with an immediate no. I ask them kindly to consider them in the package they have already agreed to consider. I beg to move.
Lord Renton: I should like to support the amendment of the noble Lord, Lord Henderson, for the reasons he gave. I briefly wish to add this. In

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relation to Amendment No. 246 it cannot be said that the social security provisions will necessarily cover the disability-related expenditure at a university.
My second point concerns access. It may surprise some Members of the Committee to know that the question of access arises at all in relation to learning difficulties. It does. One of the most famous scientists in the world is a research Fellow at a Cambridge college who cannot walk. He has to live in a wheelchair; he finds speaking and writing very difficult. But he is a genius. If he had not been helped along somehow, he would have been unable to produce the remarkable work that he has done.
11.45 p.m.
Lord Cavendish of Furness: There is a great deal of substance to the noble Lord's amendments. I am glad that he mentioned the meeting that we are going to have. I am sure that these matters will arise. These amendments seek to enhance the ability of the higher education funding councils to provide funding in support of students with learning difficulties. However, I believe that they are unnecessary. I would like to go through them with as much economy of words as is possible.
Amendment No. 246 would allow the higher education funding councils to pay grants to students with disabilities relating to the additional costs that they may incur in attending a course. The Government recognise the need for such grants, and provide for them. We do not think it right to involve the funding councils in duplicating the existing system. The Committee will know that in general, and subject to certain conditions, students attending higher education courses are eligible for help with their living costs through mandatory awards and student loans.
The allowances relate, as is proposed by the amendment, to the additional costs arising from the disability which are incurred as a result of attending the course. Where any student does not qualify for a mandatory award, the local education authorities have discretion to offer discretionary awards. These can, if the authority sees fit, include the same range of allowances.
We are proud of that system of allowances which has been widely acknowledged as generous. They are almost exactly the same as the possibilities proposed by this amendment. Clearly the noble Lord, in promoting the amendment, agrees that we have got the range of allowances about right. As those allowances already exist, we do not believe that it makes sense to duplicate them. Local education authorities can already pay them. Giving the higher education funding councils a power to do the same thing in parallel makes no sense to us and it could lead to confusion as to which body is responsible for assisting students with disabilities.
The amendment would also result in the higher education funding councils dealing with individual students in respect of their grants. But that is not the role of the funding councils: they are to fund higher education provision, not students. The local education authorities are set up to deal with individual cases. It
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would be a diversion from the funding councils' main task to require them to set up administrative structures for this purpose as well.
Perhaps I may now turn to Amendment No. 247. That amendment would introduce a new duty into the arrangements for funding of higher education provision. It would require the higher education funding councils to make grants to the governing bodies of higher education institutions in respect of expenditure incurred or to be incurred by them for the purposes of allowing access to their provision for students with learning difficulties.
The Government's policy is to increase access to higher education, and that includes students with disabilities. But I have to say that we do not regard this amendment as appropriate. Clause 61 of the Bill gives the higher education funding councils wide powers in relation to the funding of higher education provision. That includes the power to fund the provision of specialist facilities for students with disabilities and projects to tackle the problems of physical accessibility that some of them face.
Thus the Bill already provides for funding to be allocated by the new higher education funding councils to improve the accessibility of higher education institutions for students with disabilities. That continues the discretion that is currently available to the existing funding councils. The Government therefore see no reason for the proposed new duty; such duty would not be consistent with the Minister's traditional relationship with the higher education funding bodies. The Government do not prescribe how funding should be allocated to individual institutions by these bodies.
We intend that Minister's' existing arm's length relationship with the existing funding councils will continue with the new higher education funding councils. Nevertheless, the Government take very seriously the anxieties expressed that disability should be no bar to education. Indeed, we share those anxieties. We shall consider carefully what should be said in the launch guidance to the funding councils about provision for students with learning difficulties. We intend to make clear the considerable importance which the Government attach to adequate provision being available for these students.
Finally, Amendment No. 249 in this group of amendments seeks to add to the powers of the higher education funding councils to make payment under regulations made by the Secretary of State under Section 133 of the Education Reform Act 1988. I appreciate that the promoters of the amendment are anxious to ensure that funding can be made available to bodies which provide support for students with learning difficulties. However, Clause 63 is concerned with payments by the funding councils only in respect of particular types of costs; payments to local education authorities and the governing bodies of designated institutions in the polytechnic and colleges funding council sector for premature retirement costs; compensation payments to former staff at teacher training colleges which have been closed; and increased pension payments to retired non-teaching staff.

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The purpose of Clause 63, like Section 133 of the Education Reform Act 1988, is to compensate local education authorities and institutions for the compensation payments which still need to be paid to former and existing staff of polytechnics and colleges. None of these costs falls to be met by agencies which provide support to students with learning difficulties.
However, I am not just arguing that the amendment is in the wrong place. I must also say that the powers which the noble Lord seeks are already in the Bill. The general powers of the higher education funding council to fund higher education provision are in Clause 61 of the Bill. Subsection (61) (2) (d) specifically provides for the councils to fund for any person the provision of services related to the provision of education. This of course includes services provided for students with learning difficulties. Thus the Bill already makes adequate provision for bodies which provide support for these students to be funded
In summary, my answer to all three amendments is in essence the same. We believe that the funding powers that they seek are already adequately provided either in other legislation, in the case of student support, or elsewhere in the Bill. As I said to the noble Lord at the outset, I look forward to fruitful discussions with him and others who support these amendments. In the meantime, I hope that he will feel able to withdraw this amendment.
Earl Russell: Before the noble Lord, Lord Henderson of Brompton, decides what to do with this amendment perhaps I may say that I did not find the reply very sympathetic. I should like to ask the Minister to consider one possibility, which it seems to me could very easily be made available and could be of a great deal of use and that is the provision of a centrally compiled list of information about what facilities are open to people with disabilities in different universities.
A couple of memories, in particular, move me to suggest that. One is having the privilege and the pleasure of teaching a pupil with spina bifida. But I had to teach her on the third floor, which naturally caused her a certain amount of difficulty. We were teaching in a Nash villa in the middle of Regent's Park. If we had put in a lift, English Heritage would have had a fit - and it would have been quite right. It might have been a good idea for her—though I may say, not for us, since she was the life and soul of the department—to have steered her to a place where movement might have been rather easier.
I also remember a colleague who was teaching on the third floor of a listed building in Gordon Square. He was dying from motor neurone disease. He experienced acute difficulties. Again, because it was a listed building we were unable to put in a lift. There are other cases where universities could put in a lift. And here, in times of financial stringency, earmarked money could be very valuable indeed for the process. I hope the Minister will think a little more sympathetically about this.
Lord Cavendish of Furness: I gave reasons. If I did not sound sympathetic it may have been because I was
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trying not to detain the Committee. I thank the noble Earl, Lord Russell, for his suggestions which of course I shall look at.
On the matter of sympathy, my noble friend Lord Belstead and I have tried to look at all the amendments with as much sympathy as we can. The noble Earl may have missed what I said, but we have gone to some trouble to arrange a meeting at which we hope a good many of these problems can be talked over. It will not be lack of sympathy that impedes progress.
Lord Henderson of Brompton: I am extremely grateful to the noble Earl, Lord Russell, for his constructive suggestion. I would only differ from him in that my impression of the Minister's reply was that it was distinctly sympathetic.
It is a valuable suggestion that this information should be made available and that the money should be earmarked; otherwise the money will not come forth. I should like to thank the noble Lord, Lord Renton. He was right that, however good the social services provision, it will very often not be enough. That is one fault with the present system. I should like to have heard from the Minister about the flexible part-time courses and postgraduate courses for which no disabled student's allowance is available. It seems quite wrong that there should be no allowance for such courses.
Having said that, I welcome the talks to which the noble Lord has agreed. I am not at all sorry that my amendments were in the wrong place. I am not sure that all the powers we seek are already in the Bill. That is the kind of thing we can talk about. I am much obliged to the noble Lord for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 247 and 248 not moved.]
Lord Renfrew of Kaimsthorn Lord Renfrew of Kaimsthorn moved Amendment No.248ZA:
Page 44, line 30, leave out ("subject to that").
The noble Lord said: In view of the lateness of the hour I shall try to be concise. Ministers have shown great sympathy, the patience of Job and in some areas the wisdom of Nestor.
This small phrase "subject to that" may seem a trivial matter and Members of the Committee may ask themselves why we are wasting our time with just three words at this hour of the night. It may seem like a drafting amendment but I do not think it is. There is an important principle here. Perhaps we should regard it as a probing amendment to see whether that is so.
The words "subject to that" ought to be quite unnecessary, in which case they could clearly be deleted. They appear to constrain or compromise the important qualification set out in the last part of subsection (4) of the clause. Those words embody a general principle of great importance. The principle is that the funding council shall not interfere with money which a university obtains from some source other than the funding council—from an endowment perhaps, or from a benefactor or from whatever other source.
Now of course the council may fix terms and conditions for the manner in which a university may spend money derived from the council. That is accepted, and naturally therefore it will fix relevant terms and conditions for repayments, which is what the clause focuses on, in relation to money derived from the council. But the principle also stands in the Bill that the funding council does not meddle in financial matters beyond that. That is to say, the funding council does not meddle in financial matters other than those matters where the finance derives from the council.
The phrase "subject to that" appears to qualify that important principle. It appears to imply that the council is seeking repayment by the university of moneys owing, and it speaks of sums derived otherwise than from the council. There is something here that cannot be right. The principle should stand clear and untrammelled. I should be grateful for an assurance from my noble friend the Minister that the general principle is accepted and therefore for an explanation of the function of the words "subject to that". It may well be that those words are otiose and should therefore be deleted. I beg to move.
12 Midnight
Lord Belstead: Clause 61(4) is almost identical to Section 134(3) of the Education Reform Act 1988 which qualifies the powers of the UFC and the PCFC to attach conditions to grants made to institutions. The only significant difference is the addition of the words which this amendment seeks to remove; namely, "subject to that". Let me assure Members of the Committee that these words do not represent any change of policy. Their purpose is simply to achieve greater clarity in the effect of the subsection.
Subsection (3) enables a higher education council to make grants to institutions, subject to conditions. Like equivalent provision in the Education Reform Act, subsection (4) specifies that those conditions may enable a council to require repayment of grant in whole or in part, or payment of interest relating to such repayments by an institution which fails to comply with such conditions. I suggest that that is clearly sensible. If money is given for a particular purpose and is not used for it, it should be repaid.
Subsection (4) also specifies that, subject to those provisions for repayment in the case of noncompliance, a council may not attach conditions relating to the use made by an institution of funds derived from sources other than the council.
The purpose of exempting arrangements for repayment from the general rule—that conditions of grant shall not relate to institutions' other income—is simply to provide for circumstances in which an institution repays grant or interest upon it from funds not received from the council. It does no more than provide for necessary flexibility in such repayments. In view of that reassurance, I hope that my noble friend will feel able to withdraw the amendment.
Lord Renfrew of Kaimsthorn: I thank my noble friend the Minister for that explanation. I think that I
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shall have to read it in Hansard because I do not entirely understand why the words "subject to that" are needed. I do not understand why it would not be simpler to delete the words. However, I certainly do not wish to divide the Committee at this hour of night. I see that the noble Lord, Lord Peston, wishes to intervene. I give way.
Lord Peston: I listened very carefully to the Minister's answer. I found it to be wholly convincing, except for exactly the point that the noble Lord, Lord Renfrew, is making. In other words, it seems to me that the words "subject to that" do not add anything to the Bill. In fact, the Minister totally convinced me in the sense that he persuaded me to go in the opposite direction to the one which he wished us to follow. What he said made good sense. I understood what he was saying. We do not require the words, "subject to that". Perhaps he could, at least, reflect upon the matter.
Lord Renton: In my opinion such words are unnecessary in any statute at any time.
Lord Renfrew of Kaimsthorn: I thank both noble Lords for their interventions. As I said, I shall read my noble friend's response very carefully. Perhaps he will also be so kind as to read very carefully the arguments which have just been put forward. If necessary, we can return to the matter at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 61 agreed to.
Clause 62 [Administration of funds: supplementary]:
The Lord Bishop of Guildford The Lord Bishop of Guildford moved Amendment No. 248A:
Page 45, line 4, leave out paragraph (a).
The right reverend Prelate said: In moving this amendment I shall, with the leave of the Committee, speak also to Amendments Nos. 248D, 248E, 248F and 248G. We are grateful for the inclusion in Clause 62 of the reference to denominational institutions. There was no reference to them in the White Paper and, as I said on Second Reading, it is a great encouragement to us to see the reference in the Bill.
The group of amendments has three purposes; first, to strengthen the reference to the denominational institutions by the removal of some rather otiose and woolly phrases. Of course, they may serve some purpose, but the amendments strengthen the reference to denominational institutions. The second purpose is to include reference to those institutions which are administered by more than one denomination, because some colleges are run jointly. The third purpose is to include reference to those institutions which are run on trusts which relate not just to what will happen to the property if the institution is closed but also to the current use of the property. Those are the three simple objectives of the amendments. I hope that the Minister will be able to accept them. I beg to move.
Lord Belstead: Amendments Nos. 248A and 248D add a requirement to have regard to the desirability of maintaining a significant number of institutions of a

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denominational character. They contain a serious practical flaw but even if that could be overcome, I do not think that we could go along with the principle of the amendments. The practical flaw in Amendment No. 248D is that, unlike Clause 62 as presently drafted, it does not specify who should judge whether a significant number of institutions is significant or whether a particular balance of support is appropriate. There can be no objective definition. The only bodies suitably placed to make such judgment would be the higher education funding councils.
In principle, the objection to the nature of the relationship between the councils and the institutions is that I do not believe that it would be appropriate to require the funding councils to fix particular numbers of institutions. Higher education institutions are independent bodies responsible for their own destinies. A higher education council's job is to fund provision and not to maintain institutions. The new higher education sector is bound to develop over time and it is right that it should be free to do so. Development may mean that the number of institutions within it will change.
The Polytechnics and Colleges Funding Council has a Church and Associated College Advisory Committee which advises it on the particular interests of the church colleges which the council recognises form a distinctive part of the sector. I think we can expect the new funding councils also to establish a means of hearing that distinctive voice.
I understand that some colleges of higher education are nervous about their future under the new arrangements. But they do have a valued contribution to make, and it is not the Government's intention that this should be diminished. Indeed, if one looks at the 1991–92 enrolment figures published last month, they show continuing demand for places in the colleges of 14 per cent. over 1990–91, exceeding that of polytechnics at 12.9 per cent. The colleges will clearly need to participate in whatever funding methodology is developed by the new councils. But provided that they continue to do so successfully—and I see no reason why this should not be the case—their continuing contribution will be secure.
I turn now to Amendments Nos. 248E and 248F. I am grateful to the right reverend Prelate for drawing my attention to this unintended limitation in the definition of institutions of a denominational character. The Government do not wish to exclude ecumenical institutions from the definition.
If the right reverend Prelate feels able to withdraw Amendments Nos. 248E and 248F, I will undertake to introduce a government amendment at Report stage to meet the point made by the right reverend Prelate.
Finally, I turn to Amendment No. 248G. I fully understand the right reverend Prelate's anxiety that the Bill's definitions of institutions of a denominational character should be suitably comprehensive. In relation to Amendments Nos. 248E and 248F, I intended to give an undertaking that a government amendment will be introduced on Report to remedy a defect in those definitions. However, Amendment No. 248G seems to me, with great respect, to be an unnecessary addition.
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Clause 62(4) defines institutions of a denominational character in terms of two tests. They can either be an institution where a majority of the governing body represents the interests of a particular religious denomination; or one where most or all of its property is held under trusts provided that, if it closes, that property or its sale proceeds shall benefit a particular religious denomination.
Accepting the need for an amendment to cover ecumenical institutions, which I have offered to the right reverend Prelate, the Department of Education and Science advises me that it is not aware of any institution recognised as being of a denominational character and likely to be part of the new higher education sector which would fail both of these tests.
The right reverend Prelate may of course be aware of such institutions. If he is, it would be helpful if he could draw them to my attention. I invite him to withdraw the amendment with my assurances that the department will consider further the need for an amendment. However, if there are no such institutions, the amendment would be unnecessary.
The Lord Bishop of Guildford: I am most grateful to the Minister for that reply and for the encouragement and assurances he has given. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Peston Lord Peston moved Amendment No. 248C:
Page 45, line 7, leave out ("distinctive").
The noble Lord said: I am in my usual difficulty in speaking to this amendment which stands in the names of my noble friend Lady David and the noble Earl, Lord Russell. It is late at night and I think it is a tremendously important amendment. Nonetheless, although I seem to get stronger as the night gets longer, I shall not delay the Committee long.
I understand the general meaning of Clause 62 and the part we have just discussed to do with the denominational aspects of institutions. This is a probing amendment, but my noble friends and I are having difficulty as to what Clause 62(3) (b) means. It mentions the desirability of maintaining:
"any distinctive characteristics of any institution".
If I may put my problem to the Minister, it is this. What does the word "distinctive" mean in this clause? To put it differently, why would the funding council not want to do this? It is the reverse of my usual stance. What is there in this that requires it to be on the face of the Bill? It seems to me obvious that the funding council, in determining its allocation of funds, would look at the distinctive characteristics of any institution. I would argue that that is precisely why we set up the funding councils.
I do not wish to appear too suspicious, but one of the glories of our higher education system, which will be enhanced in due course with the new universities, is its diverse character. Our institutions have distinctive characteristics. I do not merely quote the Open University or the special case of Birkbeck College or all the others. We can always tell when we are in one university or another because they have different qualities and atmospheres. They have different ways of doing things. I admit that I like the distinctive

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characteristics, but I take them so much for granted that my fear is that this is trying to say, "We shall mention 'distinctive' because we mean 'not distinctive'". In other words, why fuss about this in any way?
I put it to the noble Lord that it may well be that my noble friends and I and the noble Earl, Lord Russell, are a trifle too suspicious about what the Government may have in mind here.
In this case, to my understanding the subsection would not be necessary. It seems to me that if the funding council remotely did its job properly, it would take account of the characteristics of the institutions with which it deals. I ask the question bluntly: what am I supposed to learn from the use of the word "distinctive"? I can wait for an answer, if one is not available. I beg to move.
Lord Belstead: When the noble Lord asks exactly what is meant by the distinctive characteristics, I believe that the answer is this. The White Paper made it clear that a unitary framework for higher education was not intended to make all institutions the same. It emphasised the importance of safeguarding the best of the distinctive characteristics of individual institutions, such as the vocational emphasis of present polytechnics and colleges. It did not rule out the possibility of institutional characteristics changing over time.
This is an important issue and one to which, in reply to the debate on Second Reading, I made a brief reference. A noble Lord asked whether there was a danger of losing the distinctive characteristics of the polytechnics as they became universities. The answer is contained in the short paragraph that I have just delivered: namely, that the vocational emphasis of the present polytechnics and colleges is such that, if it exists in a polytechnic, the polytechnic itself would be loath to lose it. So would we all.
I do not wish to go further than that except to say that I hope the noble Lord will not wish to take the word "distinctive" out of the text.
12.15 a.m.
Lord Peston: I thank the Minister for that reply. I do not wish to prolong this discussion, but I think that there is more to the matter than he has said. I did not fear there would be some danger in removing the word "distinctive". It was only when I read the clause that the potential danger occurred to me. One starts to worry when someone fusses about something when that should not be necessary. It is at such times that I normally become suspicious.
I believe we are all agreed on the need to maintain diversity and distinctiveness. That is not the argument. We shall, however, consider this matter and read carefully what the Minister has said. If we are still unhappy with the matter, we shall return to it at a later stage. Having listened to the Minister's remarks, I do not think there is any difference between us on what we want to see in our higher education system. I am still not too happy with the wording of the provision. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 248D to 248G not moved.]
Clause 62 agreed to.
Clause 63 [Payments in respect of persons employed in provision of higher or further education]:
Lord Belstead Lord Belstead moved Amendment No. 248GA:
Page 45, line 27, after ("area") insert:
("( ) the London Residuary Body;
( ) the London Pensions Fund Authority").
The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 249A to 249E. These technical amendments empower a higher education funding council to make payments to the London Residuary Body and the London Pensions Fund Authority in respect of compensation payments made by these bodies to former staff of the Inner London Education Authority. They also empower the Polytechnics and Colleges Funding Council to make payments to these bodies until it is dissolved, and regularise past payments to them by the Polytechnics and Colleges Funding Council.
The background to these amendments was explained in an answer to a Parliamentary Question in another place by my honourable friend the Parliamentary Under-Secretary of State at the Department of Education and Science on 6th December.
Clause 63 empowers a higher education funding council to continue to make the payments which are currently made by the Polytechnics and Colleges Funding Council under Section 133 of the Education Reform Act for local education authorities and governing bodies of designated institutions in respect of compensation payments made by them to former employees. The liabilities of the ILEA were transferred to the London Residuary Body when the ILEA was abolished, and due to an oversight Section 133 of the Education Reform Act did not cover payments to the London Residuary Body. That is why we are in the position we are and that is why we have tabled these amendments. I beg to move.
On Question, amendment agreed to.
[Amendment No. 249 not moved.]
Lord Belstead Lord Belstead moved Amendments Nos. 249A to 249E:
Page 45, line 32, at end insert:
("( ) In subsection (2) (a) of that section (meaning of relevant expenditure) after "education authority" there is inserted "the London Residuary Body or the London Pensions Fund Authority".").
Page 45, line 37, at end insert:
("( ) In subsection (4) of that section (duty to give information) after paragraph (a) there is inserted—
( ) the London Residuary Body;
( ) the London Pensions Fund Authority".").
Page 45, line 38, leave out ("Subsection (1) of").
Page 45, line 39, after ("if") insert:
("( ) in subsection (1)").
Page 45, line 42, at end insert ("and
( ) in subsections (1) and (2) the references to a local education authority included the London Residuary Body and the London Pensions Fund Authority.").
On Question, amendments agreed to.
Clause 63, as amended, agreed to.
Lord Cavendish of Furness: I beg to move that the House do now resume.
Moved accordingly, and, on Question, agreed to.
House resumed.

Consolidated Fund Bill
Brought from the Commons endorsed with the certificate of the Speaker that the Bill is a Money Bill within the meaning of the Parliament Act 1911; read a first time, and ordered to be printed.
Charities Bill [H.L.]
Reported from the public Bill Committee with amendments.

London Docklands Railway Bill
Returned from the Commons with the amendments agreed to.
House adjourned at nineteen minutes past midnight.