Further and Higher Education Bill [H.L.]

HL Deb 03 February 1992 vol 535 cc26-135

4.8 p.m.

Proceedings after Third Reading resumed.

Clause 6 [Administration of funds: supplementary]:

Lord Belstead moved Amendment No. 6: Page 5, line 41, leave out ("a majority") and insert ("at least one quarter").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 7 to 9 and 41 to 44. In responding to amendments to Clauses 6 and 64 moved on Report by the right reverend Prelate the Bishop of Guildford, I suggested that the best way forward would be for the Department of Education and Science, in consultation with the right reverend Prelate's advisers, to seek amendments which would ensure that the definition of institutions of a denominational character given in Clauses 6 and 64 should be properly comprehensive. This is an important matter because we are referring back to the previous subsection (3), where a funding council is under a duty to have regard to the desirability of maintaining an appropriate balance in the support that it gives as between denominational institutions of further and higher education and other institutions of further and higher education.

The amendments before the House are the result of the process of consultation between the right reverend Prelate and the Government. By establishing a more flexible definition—which is contained within them—the amendments will cover all the institutions with significant religious connections which will be part of the new further and higher education sectors. Perhaps your Lordships will forgive me for not going into detail. I should like to commend the amendments to the House. I beg to move.

The Lord Bishop of Guildford

My Lords, I thank the Minister for the courteous way in which he has dealt with our anxieties. I am advised by my lawyers that the amendments are entirely satisfactory. Therefore, I am happy to support the government amendments.

Baroness Phillips

My Lords, I have one simple question for the Minister. As regards religious institutions, are we to assume that that refers to the Christian religious institutions or to some of the others which are now active in the country?

Lord Belstead

My Lords, perhaps the noble Baroness will be kind enough to repeat the last part of her intervention.

Baroness Phillips

Yes, my Lords; I shall put it more simply. When we refer to religious institutions, are we talking about the Church of England, the Catholics, and so on, or are we talking about Islam?

Lord Belstead

My Lords, we are talking about any denominational institutions.

Baroness Phillips

My Lords, did the Minister say, "any denominational institutions?"

Lord Belstead

My Lords, yes, indeed. We are making the tests easier to pass so that any denominational institution shall be looked at in a fair and balanced way by the funding councils when they decide on the allocation of funds between denominational institutions and non-denominational institutions.

On Question, amendment agreed to.

Lord Belstead moved Amendments Nos. 7, 8 and 9: Page 5, line 43, leave out second ("or"). Page 5, line 44, leave out ("all or most") and insert ("any"). Page 5, line 48, at end insert ("or ( ) any of the property held for the purposes of the institution is held upon trust for or in connection with—

1. (i) the provision of education, or
2. (ii) the conduct of an educational institution, in accordance with the tenets of a religion or religious denomination.").

On Question, amendments agreed to.

[Amendment No. 10 not moved.]

Baroness David moved Amendment No. 11: Page 6, line 32, at end insert: ("(7) In any instances where the adequacy of the provision for that population in that year is disputed, the matter shall be referred to the relevant council or, in England, the Regional Advisory Committee, for consideration.").

The noble Baroness said: My Lords, this amendment is also tabled in the name of the noble Viscount, Lord Combermere. It proposes an appeals mechanism for external bids for FEFC funding via a sponsoring body. There is very great concern among present providers of adult education about their perception of the new situation as one in which the FE colleges will be the arbiters of "adequacy" of provision of Schedule 2 courses in an area. They are unlikely to be reassured by the Minister's assertion that colleges must take an objective rather than a college view of such matters.

The question of adequacy will be difficult, for example, when a group of students emerges from a community activity, like a pre-school playgroup, and wishes to follow together a certificated course. Members of such a group may not consider an existing college course as being adequate to their needs; the college may assert that a course specially for them would be duplication. The group will certainly not think it fair that the college alone should decide, and surely an appeal to the Secretary of State in such a case would be using a sledge-hammer to crack a nut.

I did not fully understand the Minister's response to a similar amendment that I moved on Report. In that case I asked that, where there were disputes, the matter should be referred to the relevant council or regional committee for resolution. The Minister said: First, we would be almost certainly bringing into play a body that would have no accountability to the funding councils for the implementation of the duty to provide further education for those who need it and indeed for the resources required for the purpose".—[Official Report, 14/1/92; col. 232.]

However, the funding councils and the regional committees are already there; we are not bringing a new body into play. In fact, a little further in the same speech, the Minister said: We should not forget that the regional committees will give advice to the council for England on any issue of local concern. The councils, and in England the regional committees, will of course be aware of any dispute. It will be open to the participants to bring it to their notice. The advice of the committee would be important for the council in making its decisions on funding".

Therefore, the Government have suggested that local authority and voluntary body providers that are not satisfied with a decision of FE governing bodies will be free to draw it to the attention of the regional advisory committees. All the amendment seeks to achieve is the opportunity for committees to consider those cases—and, it is to be hoped, rare cases—where local co-operation and agreement is not achievable. It does not seek to create a new body; it seeks merely to clarify a mechanism that the new arrangements make possible.

I should like to try to make the Minister understand that there really is great anxiety in the adult education institutions that they will be powerless if they feel they have been treated unjustly. He must realise that the situation that is being created is entirely new. Acceptance of the amendment will do much to reassure them. Surely the Minister would like to give that reassurance. I hope that he will not say that the provision is already in the Bill. The providers of adult education are not satisfied or happy with what is being proposed. I hope that the Minister can accept the strong feeling which exists and that he will give way on the matter. I beg to move.

4.15 p.m.

Viscount Combermere

My Lords, I fully support the amendment. Although, when the issue was raised on Report, the noble Lord, Lord Belstead, said that the Secretary of State could be appealed to if all else fails, that would surely be a procedure that would be used as a last resort. It would be too cumbersome; it could apply only in possible, blatant examples of unfairness and, above all, it would lead to damaging delay. In my experience, delay and uncertainty in the context of planning a programme of adult studies can lead to wasted resources and to possible course failures.

In the absence of direct bidding, the amendment is essential. As the noble Baroness, Lady David, said, there is great concern among major providers of adult education over the role of the FE colleges as arbiters of adequacy in connection with provision of Schedule 2 courses in any given area. Why should one college make a judgment on the performance of another college? In my view, the Government have not satisfactorily answered that point. The amendment does not seek to create a new bureaucratic body, as has been suggested; it merely asks that an appeal should he made direct to the funding council or the regional advisory council. In other words, it seeks to clarify a mechanism that the new arrangements make possible. In the earlier debate on Report the noble Lord, Lord Belstead, said, at col. 232, that the appeals mechanism "looks like natural justice". This is natural justice.

Lord Teviot

My Lords, I agree with the amendment and with anything that can be done to help the adult education centres which feel very tender at this time. My amendment on Report was turned down; but, that is in the past. I believe that with arbitration or something of that nature we can help the situation. However, we may return to the matter on a further amendment at this stage. I hope that my noble friend the Minister will be sympathetic towards the amendment.

Lord Belstead

My Lords, the purpose of the amendment is to provide for disputes over what would be an adequate level of Schedule 2 education in an area to be referred for consideration to the funding councils or, in England, to the regional advisory committee. I understand the concerns expressed by the noble Baroness and the noble Viscount, Lord Combermere and also by my noble friend Lord Teviot. However, I genuinely believe that I can meet them. I shall now try to do so.

The determination of what is an adequate level of provision locally lies, in the first instance, with the further education colleges. Despite the noble Viscount's criticism as to why one college should appear to be sitting in judgment on another, as FE colleges are the bodies through which the funding councils will carry out their duty to secure the provision of adequate facilities for Schedule 2 education at national level, it is right that an adequate level of provision locally should, in the first instance, be determined by a further education college.

In securing the necessary standard of provision for an area, we certainly expect a college to take full account of local circumstances, engaging in a dialogue with local adult colleges and, as necessary, with a local education authority. But the initial responsibility for making a decision ought to rest with the college through which the applicant has gone in order to obtain funding for its Schedule 2 courses.

Under the terms of the Bill the duty to secure adequate provision is not something that is open to the further education college that is being used as the conduit to decide at a whim. It is not open to negotiation. It is a responsibility whose proper discharge is enforceable under the law. The mechanism that I have just described is embodied in Clause 6. In addition, in Clauses 2 and 3 of the Bill there is a duty to see that facilities are provided at such places, are of such character and are so equipped as to meet reasonable needs. Therefore, the duty to provide further education—and what we are talking about here are Schedule 2 courses—is clearly spelt out in the Bill.

The Government would expect the further education college concerned with a particular application to act in good faith in considering whether facilities are available at such a place, are of such a character and are so equipped as to meet the reasonable needs of the people locally in that area. But if by any chance a college misdirects itself it is then already the duty of the funding councils to ensure adequate provision across the whole country. The council for England would be able to draw on advice from regional committees. The councils and the regional committees will need a good grasp of the situation in each locality so that they can judge the bids coming forward from each college. They will therefore be able to see where provision is not adequate and will, if necessary, intervene with an FE college which has wrongly failed to put forward a sound bid from an institution outside the sector.

My noble friend Lord Teviot asked whether there could be some form of arbitration. Indeed, there is. The matter is bound to go to the funding council, advised by the regional committee. The councils will have plenty of power to influence the further education colleges, which are dependent on them for funding. But there is yet another safeguard, which the amendment would, by implication, seem to wish to cut out, in that the Secretary of State may review decisions both of further education colleges and of the funding councils themselves on grounds either of unreasonableness or failure to perform a duty—the familiar Sections 68 and 99 of the Education Act 1944.

There is therefore a long-established route for complaint by an institution outside the sector if it is not satisfied with the way in which its conduit further education college has acted. I am certain that the further education colleges and the funding councils are not going to wish to be called to account by the Secretary of State. But they can be and they will be if the Secretary of State is satisfied that there are reasonable grounds for so doing.

I am sorry that the noble Baroness felt that when we discussed this before my answer did not meet her concerns. But the way that the Bill deals with applications for funding of courses by funding councils if the institution concerned is not already within the new further education sector protects the interests of applicants. I hope that my noble friend Lord Teviot, after I have spoken, will feel that there is not only an arbitration but a two-stage arbitration—first of all there are the funding councils, and then with the Secretary of State—and that what we have in the Bill is not only sensible but also fair.

Baroness David

My Lords, I thank the Minister for giving quite a long reply. We know that there are these so-called safeguards within the Bill. It is just that they are not trusted by a great many people in the adult education world. They will be able to read what the Minister has said. I doubt that they will be satisfied, but time will prove whether the noble Lord is right. We have made the case. I shall not press it now, but we shall see what happens. If things do not go well we shall be back with complaints and questions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Grants to councils]:

Lord Belstead moved Amendment No. 12: Page 6, line 39, leave out ("each institution, or each") and insert ("every institution, or every").

The noble Lord said: My Lords, I beg to move Amendment No. 12, and would like also to speak to Amendment No. 13. Within this group I think there are also amendments in the names of the noble and learned Lord, Lord Simon of Glaisdale—

Lord Simon of Glaisdale

My Lords, I wonder whether the noble Lord would allow me, solely on the question of grouping, to intervene here? If your Lordships look at page 9 of the Marshalled List you will see a number of amendments, certainly Amendments Nos. 47 to 50, which are alternative ways of tinkering with the drafting. In fact they are not suitable for discussion on Third Reading. They are Committee points. But it is not the fault of the critics of this Bill that they now come up on Third Reading.

Lord Belstead

My Lords, will the noble and learned Lord forgive me? I was just about to move the first amendment in this group. I shall be brief, and then may I give way to the noble and learned Lord?

Lord Simon of Glaisdale

My Lords, what I was going to suggest is that it would be extremely inconvenient to discuss the later amendments at this stage, because if Amendments Nos. 45 and 46 are carried those amendments will fall. They cannot be moved. Moreover, they are alternative drafting amendments, and it is most undesirable—and I do not propose to trouble your Lordships with it—to deal with drafting points at this stage. I intervene only to suggest to the noble Lord the Minister that it would be more convenient if he would postpone his observations on the later amendments until we come to Clause 66.

Lord Belstead

My Lords, perhaps I may move Amendment No. 12 and speak to Amendment No. 13, because the noble and learned Lord, Lord Simon, has exercised the right that we all have to degroup. I realise that we have to have the Question put, but, first of all, I believe that I must move Amendment No. 12.

In moving Amendment No. 12 I simply make the point that we are, as the noble and learned Lord, Lord Simon of Glaisdale, rightly said, talking about drafting matters. The reason why we are talking about a drafting matter that I think applies to Clause 66, way on in the Bill, is that that is the equivalent clause in the higher education bit of the Bill, Part II, to Clause 7 in Part I of the Bill, which we have now come to. That is why there was the grouping. But I understand the wish of the noble and learned Lord not to talk about Clause 66 so far as his amendments are concerned. Therefore, I shall move Amendment No. 12 to Clause 7 at the moment and also speak to Amendment No. 13.

In that context I simply say that your Lordships have spent some considerable time on this Bill considering the way in which it provides for the clear intention that the Secretary of State should not have a power to make institution-specific conditions. As your Lordships know, it has been my contention that read as a whole Clause 7 in Part I of the Bill, and indeed Clause 66 in Part II, have made it clear that the Secretary of State cannot make institution-specific conditions.

However, I must pay tribute to the noble and learned Lord, Lord Simon of Glaisdale, for not only protesting as the Bill has proceeded—and indeed other noble Lords have protested—that whatever the Government may intend it is not entirely clear that Clauses 7 and 66 achieve this objective of non-institution-specific conditions, but with characteristic tenacity, for following up his words by putting down amendments to the Bill at this stage to Clause 66.

The noble and learned Lord will forgive me for referring to his amendments by saying that I shall admit openly to the House that when I saw his amendments to Clause 66 on the Marshalled list, supported, may I say, by my noble friend Lord Peyton and the noble Baroness, Lady Seear, I felt that we had reached a moment in the Bill when it would be a tragedy if we disagreed about drafting matters provided that we were agreed, which I thought we were, about what we were trying to achieve in Clause 7 and in Clause 66. Therefore I put down Amendment No. 12 to Clause 7 in Part I of the Bill and the It may be helpful if I read out in full the wording of Clauses 7(2) (a) and 66(2) (a), (because the drafting is the same) with the inclusion of my amendments. If the Government's amendments were to be accepted, they would provide that the terms and conditions subject to which grants are made by the Secretary of State to either of the funding councils, may in particular impose requirements in respect of every institution, or every institution falling within a class or description specified in the terms and conditions, being requirements to be complied with in the case of any institution to which the requirements apply, before financial support of any amount or description so specified is provided by the council in respect of activities carried on by the institution". I believe that the provision makes clear what has always been the intention, that the power attaches general conditions which might have different impacts on institutions according to whether they meet the requirements specified. But it cannot involve making conditions, institution by institution. I believe I am right in saying that that is not only my objective but that of the noble and learned Lord.

Perhaps I may end by making one point on the amendment, with the greatest of respect to the noble and learned Lord. I have given the palm to him in admitting quite openly that it was his pressure that brought me to the Dispatch Box to move the amendments today. However, whereas the Government's amendments achieve the objective of ensuring that there cannot be institution-specific conditions made by the Secretary of State under Clauses 7 or 66, I do not believe that the amendments to Clause 66 proposed by the noble and learned Lord achieve that objective. It astonishes me to hear myself saying so because the noble and learned Lord could forget more about drafting than I shall ever learn. However, when we reach his amendments I do not believe that they will achieve the objective.

Returning to my own amendments, I beg to move Amendment No. 12.

4.30 p.m.

Lord Peston

My Lords, may I ask for a little clarification since I am now lost? First, did I understand the noble Lord to say at the end that the word "every" has a different meaning from "all"? That is the only difference. Will he be arguing that later in the afternoon? My second question is more technical. If we agree to his amendment on Clause 7 that "every" should replace "each", does that leave it logically and semantically possible to insert the word "all" later, or will the amendments of the noble and learned Lord, Lord Simon, be pre-empted? In both these cases, I speak genuinely in search of knowledge.

Lord Renfrew of Kaimsthorn

My Lords, I do not seek specifically to answer questions posed by the noble Lord, Lord Peston, although I may touch on them. I wish to say how welcome is the amendment. As my noble friend indicated, the noble and learned Lord, Lord Simon of Glaisdale, was one of those who emphasised the inadequacy of the original wording of Clauses 7 and 66. In deference to him, I shall focus on Clause 7, as he rightly argued we should. We were concerned about the weakness of the word "each" which in the original wording could have been interpreted to mean "any". In other words, it would have been possible on that interpretation to pick off institutions one by one. By changing "each" to "every", that is no longer possible. I am not sure that "all" would do as well in other ways; clearly "every" means "all" and I have taken advice on the matter.

What is neat about the amendment is that we were earlier told by my noble friend that it would not be possible to insert "every" because that would make it difficult to carry through and apply the provisions. If an individual institution failed to comply with the general condition, it would be difficult to arrange compliance with the legislation. That point led to the ruling in the case of the Association of College and Polytechnic Teachers which has brought about the change in wording. Otherwise, the wording in the Education Reform Act 1988 would have been sufficient.

It is my understanding that the wording before us returns to the wording of the 1988 Act, but with the addition of the phrase, being requirements to be complied with in the case of any institution to which the requirements apply", the difficulty is removed of applying the general condition to the individual institution which may fall out of line.

I wish to add one word of qualification, although it is not sufficient to make me feel that the amendment should not be supported. The wording of the Bill, as amended, will be: every institution, or every institution falling within a class or description specified in the terms and conditions". I try not to have a suspicious mind, but those with suspicious minds fear that it might be possible to pick off an individual university by the ingenious definition of putting it within a class or description.

The words "or description" do not help in any way with the altogether beneficent purposes which my noble friend has put forward. But the words "or description" may be used in such a way as to form a net of sufficiently narrow mesh to fish out the individual institution. So my personal preference would have been for the words "or description" to have been omitted from the Bill by amendment.

In general, I feel that the Minister has gone a long way to meet the points, including those made by the noble and learned Lord, Lord Simon of Glaisdale. I shall say much the same when we reach Clause 66 and will hold my words now in the light of the intervention on Clause 7, but I feel that the amendment substantially meets the case.

Lord Peyton of Yeovil

My Lords, my noble friend was good enough to refer to me in his speech and I hope that I may be forgiven for making a short rejoinder. We are all greatly indebted to the Minister for the tremendous efforts he has made to get the Bill back on an even keel, if that is possible.

I have made the point before, and I hope I may be forgiven for reiterating, that modern legislation comes to us in such volume that quality is injured by quantity. Again and again, there are consequences unforeseen even by those who drafted the Bill. In this case it is a challenge to and an infringement of academic freedom. Too often, the meaning in Bills which come before your Lordships is, at best, opaque. As I see it, if the Government had set out either to assume that the necessary protection against financial mismanagement was available to them already or to provide expressly and implicitly in the Bill for that protection, then there would not have been much argument. But in the event, having espoused the cause of academic freedom, the Government proceeded to set out different circumstances in which that freedom might have to be set aside. From that position—thanks largely to my noble friend—the Government have substantially retreated.

I wish at least to give a qualified welcome to the amendments which my noble friend has moved, and others to which he has referred, as being a welcome substitute to the somewhat anodyne statements of good intentions by the Government which are never acceptable for the good reason that they do not bind successors. I conclude as I started by saying how much I personally feel indebted to my noble friend for the tremendous efforts he has made.

Lord Simon of Glaisdale

My Lords, my only intervention at this point can be to thank the noble Lord the Paymaster General for the way he dealt with the amendment in the light of my request. I am grateful to him.

Lord Belstead

My Lords, I wish to reply to this exchange on what is a crucial drafting issue. As we all know, it is more than a drafting issue but nonetheless it is a drafting issue. I am grateful to my noble friend Lord Peyton for saying he feels this amendment is a welcome substitute for exchanges which have occurred across the Floor of the House but which are not substitutes for what is on the face of the Bill. My noble friend has added his name to the amendments to Clause 66 standing in the name of the noble and learned Lord, Lord Simon. Therefore I am especially grateful to my noble friend Lord Peyton for his remarks, and also to the noble and learned Lord, Lord Simon, for his final remarks.

The noble Lord, Lord Peston, asked me a direct question. He asked me whether "every" equals "each" or "all". My understanding of the dictionary definition is that it does. The obvious subsequent question which the noble Lord was kind enough not to ask concerns why I do not wait until we reach Clause 66 and accept the amendments in the name of the noble and learned Lord, Lord Simon of Glaisdale. The noble and learned Lord has not tabled amendments to Clause 7. My answer to the question is that when we reach the amendments to Clause 66 I shall deploy arguments to show that, whereas the Government and the noble and learned Lord have a shared objective to make clear beyond doubt that while requirements contained in conditions of grant may affect higher education institutions or further education institutions differently, nevertheless conditions of grant cannot be applied institution by institution. That principle cannot be repeated enough times. Nonetheless, as regards the amendments standing in the names of the noble and learned Lord and my noble friend Lord Peyton, I must repeat with the greatest respect that I do not feel they achieve that objective. For the reason given by my noble friend Lord Renfrew, I believe the amendments I am discussing now achieve that objective. I shall not weary your Lordships by going over that ground again.

That leaves one final and important point which the noble Lord, Lord Renfrew, asked me about. The noble Lord asked about the words "a class or description". My noble friend is, not for the first time, on to a good point in this Bill. It is undoubtedly true that a class consisting of a single institution could exist. However I do not think one can consider the concept of a class or a description of an institution separately from that of the requirements which the Secretary of State may impose.

I have no doubt that if the Secretary of State were to impose requirements in respect of a class of one, he would need to show that the class was a genuine class for the purposes of those requirements and not one simply devised to target a particular institution which in reality was no different from a number of others. It would not be sufficient, for example, to identify as a class any university situated in the county of Cambridgeshire if that university was indistinguishable from others in so far as the subject-matter of the requirement was concerned. In those circumstances the Secretary of State would be stepping outside his powers by imposing terms and conditions relating to the provision of financial support for a particular institution.

The whole point of Amendment No. 12 and its associated amendments is to place beyond peradventure the fact that the Secretary of State will not, under the terms of Clause 66, have institution specific condition-making powers.

On Question, amendment agreed to.

4.45 p.m.

Lord Belstead moved Amendment No. 13: Page 6, line 40, after ("conditions") insert ("being requirements to be complied with in the case of any institution to which the requirements apply"). On Question, amendment agreed to.

Clause 9 [Assessment of quality of education provided by institutions]:

Baroness David moved Amendment No. 14: Page 7, line 46, after ("sector") insert: ("( ) keep under review the quality of education provided, the education standards achieved, and where necessary cause inspection to be made with a view to maintaining and improving effectiveness of provision,").

The noble Baroness said: In moving Amendment No. 14, I wish to speak also to Amendment No. 15. On Report the noble Earl, Lord Russell, and I moved Amendments Nos. 57A and 58 which sought to deal with quality, which is the subject of Clause 9. In responding to us both the Minister concentrated on the matter of reporting and did not address the quality aspect of the amendments.

The noble Earl, Lord Russell, caught the connection between quality, funding and impartial reports on provision which was one of the things we wanted to highlight. However, he did not focus on the processes of inspection, quality control and quality assurance. The noble Lord, Lord Belstead, evaded the issue neatly by picking on the word "reporting" and on the provision of information, and by treating the two amendments as faces of the same coin.

From the discussion on Report, it seems that the Government want to leave the matter of quality assessment in both further and higher education to the funding councils, and they want to put as little direction as possible upon those bodies. The major problem is that information about both provision and quality may only be given when the Secretary of State requires it or as the councils think fit. We would like particular types of information to be made available, and some or all of them to be made public.

We are not convinced that the right questions will be asked by the quality assessment committees unless they comprise people experienced in inspection and assessment. The Government's former Amendment No. 62 moved on Report—that is now embodied in Clause 9(3)—does not go far enough. We doubt whether institutions, teachers or the consumers of education will be helped unless comparative surveys are undertaken and best practice is identified and disseminated.

In this amendment we seek to reflect the Government's own ideas expressed on Report in what was Amendment No. 122. That provision is now incorporated in Clause 53. In that new clause local education authorities are obliged to keep under review the quality of education provided, and the chief inspector has a general duty to keep the Secretary of State informed about quality and standards across the LEA sector. If it is the duty of the councils to give the Secretary of State information and advice, should it not be the function, under Clause 9, of the quality assessment committee to, in the words of Amendment No. 14: keep under review the quality of education provided, the educational standards achieved, and where necessary cause inspection to be made with a view to maintaining and improving effectiveness of provision"?

I should point out that the words "keeping and causing" should have been included in the amendment.

We would expect the Government to adopt a consistent and coherent approach to quality assessment across the public education service. There is, however, a fundamental difference between the way in which it is proposed that quality should be assessed in schools under the Education (Schools) Bill, and in further education institutions. On the one hand it is proposed that the reformed, independent HMI will give information and advice to the Secretary of State on such matters as he specifies. On the other hand, the proposals in this Bill confirm the Government's intention to distance the Secretary of State from matters of quality control by placing responsibility for quality assessment and assurance in the remote hands of the funding councils.

As my noble friend Lady Blackstone said on Report, the councils are charged with the duty of securing the assessment of quality, establishing a committee to do just that and with giving advice. However, quality itself is not defined. "Quality" is a word not previously used in education legislation. The councils are not required either to see that any particular level of quality is achieved, merely that quality should be assessed. We are trying in this amendment to spell out the processes more clearly. We would still like members of the quality assessment committee to have experience of inspection. Amendment No. 15 seeks to achieve that.

I thank the noble Lord for his letter of 26th January on the subject of my earlier amendment, Amendment No. 64, dealing with that point. I hope that the use of the word "or" in Amendment No. 15 will remove the objection he raised in respect of the earlier amendment, in which I asked for the majority of members to have experience of inspection. That proposal is now qualified.

I was rather surprised by the Government's amendment, Amendment No. 16, under which Her Majesty's Chief Inspector of Schools in Wales is to be able, if asked, to assess the quality of education provided within the FE sector. That is more or less what I seek with Amendment No. 14. I hope that the Minister now understands more clearly what we are trying to achieve and that the words used in Clause 53 could apply to Clause 9. I beg to move.

Lord Belstead

My Lords, I do not believe that there is very much between the case which the noble Baroness put forward so eloquently and the position in the Bill, although I shall not try to gloss over the issue and say that there is no difference. Regarding the common ground, in carrying out their duty to secure assessment of quality of provision, the funding councils will be expected to keep the quality of provision and educational standards under review. I accept that the noble Baroness would like to see that provision on the face of the Bill. How the funding councils choose to do that, whether through general inspections of institutions or, as is more usual in further education, through subject surveys across the whole sector, will be for the councils to decide. Certainly the Secretary of State would expect follow-up action to be taken in the light of assessments of quality, and the nature of the councils' funding responsibilities means that they will automatically be in the business of follow-up reports.

I should like to draw the attention of the noble Baroness to Clause 8, which lays a duty on the funding councils to provide the Secretary of State with such information on provision as he may from time to time require. It will thus be open, statutorily, to the Secretary of State to call for information about quality and standards. Further, individual colleges will be required under Clause 48 to publish information about the educational provision made or proposed to be made for their students. Once again it will be open to the Secretary of State to specify that such information should include information based on assessment of quality.

The difference between the two sides of the House on this issue is that we do not believe that it is necessary to impose yet another statutory duty on the funding councils in this respect because of the cross-fertilisation between the existing statutory provisions.

The noble Baroness also spoke to Amendment No. 15, which has the effect of requiring a majority of the members of the quality assessment committee to have experience of and to have shown capacity in the provision of further education or inspection and quality assurance of such provision. There is nothing in the clause to prevent the funding councils from doing exactly what the noble Baroness wishes. The clause requires simply that the majority of members should be persons who have experience of or have shown capacity in the provision of further education, including those currently engaged in further education. In practice most people engaged in inspection or quality assurance are bound to have had experience of the provision of further education.

However, there are many areas of further education in which the quality assessment committees will need expertise. That is another reason why the Government do not want to be drawn down the path of including additional statutory provision in the Bill as the noble Baroness wishes. We prefer to retain flexibility. That is a word beloved by governments but I believe that it is used in a good cause in this case.

Baroness David

My Lords, I am disappointed, as I always seem to be when my amendments are not received more warmly. Again, I shall have to hope that the situation works out in practice, as the noble Lord suggested.

I should like to ask the noble Lord why Amendment No. 16 provides for a different situation in Wales from the situation which will exist in England. However, I suppose I shall have to wait for clarification until the Minister moves that amendment. I hope that he will explain why there is to be that difference between the two funding councils. Does he not trust the Welsh council to be as effective as the English council?

Although I am not entirely satisfied with the Minister's response, I shall have to pretend to be so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

Lord Belstead moved Amendment No. 16: Page 8, line 13, at end insert: ("( ) Her Majesty's Chief Inspector of Schools in Wales shall, if asked to do so by the Further Education Funding Council for Wales, assess the quality of education provided in any institutions within the further education sector or any other institutions for which the council give, or are considering giving, financial support under this Part of this Act.").

The noble Lord said: My Lords, the Education (Schools) Bill, which is now before Parliament, will establish an independent office of Her Majesty's Chief Inspector of Schools in Wales to oversee arrangements for a new system of regular school inspections and to provide the Secretary of State for Wales with advice on the quality of education provided by schools in Wales. However, those powers would not extend to the new further education sector, where quality assessment would be the responsibility of the further education funding council.

The noble Baroness, Lady David, asked, perfectly reasonably, why we are doing that in Wales but not in England. The answer is the size of the further education sector in Wales and the much smaller scale of the funding council's operations in Wales compared with those in England. It is important that the administrative arrangements should be as flexible and cost-effective as possible. My right honourable friend the Secretary of State for Wales therefore wishes to give the funding council for Wales the option of obtaining quality assessment information from Her Majesty's Chief Inspector of Schools in Wales as a possible way of minimising operating costs. It will be entirely for the funding council for Wales to decide whether or not to obtain assessments from Her Majesty's chief inspector or to establish its own assessment machinery.

That is simply a logistical point and an option which the Secretary of State for Wales wishes to see on the face of the Bill so that the funding council for Wales can avail itself of the option if it wishes. It will be for the funding council to decide. I beg to move.

Baroness David

My Lords, the Minister has given some response but it seems rather stupid to have two funding councils.

On Question, amendment agreed to.

5 p.m.

Clause 11 [Functions of local education authorities in respect of further education]:

[Amendments No. 17 and 18 not moved.]

Baroness Lockwood moved Amendment No. 19: Page 9, line 14, leave out ("and").

The noble Baroness said: My Lords, in moving Amendment No. 19, I should like to speak to Amendment No. 20. Amendment No. 19 is a paving amendment for Amendment No. 20. The two amendments have the effect of adding a new paragraph (c) to Clause 11(3).

I move the amendments with a sense of disappointment. I had hoped that after the discussion of the matter at Report stage and the Minister's promise that he would look at the matter again there might have been a more positive initiative from the Government. That is not the case; the Government have not put down an amendment. Nor has the noble Lord written to me on the matter as he promised. I have had two conversations with him during the past week. On both occasions he indicated that he had written to me but I have not received such a letter. Nor, I understand, have the other three sponsors of the amendment.

My disappointment is shared by the National Youth Agency and many associated youth organisations. After reading Hansard covering the Report stage they too had the impression that there was willingness on the part of the Government to include in the Bill a statutory reference to the youth service. Their disappointment is heightened by a telephone survey of local authority youth services which they conducted in an attempt to gain an impression of how the service is faring in the current round of budget allocations. The survey confirms their fears about the future of the youth service. They contacted 115 authorities of which 98 responded; that is 85 per cent. Of those responding, 49 per cent. anticipate a standstill budget; 43 per cent. anticipate cuts; and 8 per cent. anticipate growth. Where the implications of the cuts are known, authorities are considering a variety of measures. Those include the ending of the complete service, closure of centres, cutting voluntary sector grants, redundancies and reductions in staffing—in one case 40 per cent. of part-timers will be made redundant—or the freezing of posts. Specialist projects were being cut and there was a reduction in facilities and maintenance, as well as a reduced use of school facilities.

The authorities involved are spread across the political spectrum. For example, it was reported in The Times last Wednesday, 29th January, that the Conservative Warwickshire County Council had agreed to disband the county's youth and community services in their present form to make savings which would help to avoid a second year of Government charge capping. My colleagues who sponsor the amendment have argued all along that our purpose is to strengthen the legislative commitment to the youth service in order to safeguard its future and to give overt legitimacy to the youth organisations and others in promoting the development of the service.

The amendment put forward today has moved from a specific singling out of the youth service, to which the Minister seemed to object previously. Instead, Amendment No. 20 refers to, informal, part-time social and leisure based educational activities and experiences suitable to the requirements of young people".

We are attempting to embody the characteristics of the youth service in the amendment. It is broader than the present clauses in the Bill. It reflects in a more comprehensive way the features of the youth service. The amendment deletes nothing in the present Bill. It merely elaborates on the Bill in a way that the youth service organisations wish.

I am sorry that the noble Baroness, Lady Brigstocke, and the noble Lord, Lord Northbourne, cannot be in the Chamber today to support the amendment. However, they have asked me to indicate their strong support for it. I beg to move.

Lord Rochester

My Lords, I too regret that the noble Lord, Lord Belstead, has not written as he promised to those of us who took part in the debate on Report. As a signatory to the amendment, I need add little more than that I strongly support it as an admirable means of meeting the need identified on Report to provide an adequate definition of the work of the youth service.

At an earlier stage, the noble Lord, Lord Belstead, told us that statutory powers are already available to local authorities to provide a youth service, and that although the service is not specifically mentioned in the Bill those powers are set out in Clause 11. In that case, I must ask what action the Government propose in the face of the budget cuts referred to by the noble Baroness, Lady Lockwood, to enable local authorities to make use of the powers.

The amendment is a last attempt to ensure that the work of the youth service is explicitly included in the Bill. I hope that the Minister will feel able to accept the amendment.

Lord Belstead

My Lords, I owe an abject apology to the noble Baroness, Lady Lockwood, and the noble Lord, Lord Rochester, for not writing to them. The noble Baroness is almost the last person I would wish to let down in that way. I am extremely sorry. I unreservedly apologise. I had sought to chase up correspondence. The noble Baroness and I have had a brief discussion. I was able to indicate my reaction, namely, that the amendment would not change much compared with the previous stage of the Bill, but that I would await the noble Baroness's arguments.

The new words in the amendment amplify and increase the description of the activities of the youth service which historically has always been contained in the 1944 Education Act in descriptive form without, perhaps rather oddly, referring to the youth service itself. However, while the new words, activities and experiences suitable to the requirements of young people", are interesting, they carry with them a problem. For example, the expression "young people" is nowhere defined in the Education Act. But there is a risk of confusion with the term "young person" which is defined under Section 114(1) of the 1944 Act and which refers to a person over compulsory school age who has not reached the age of 18. The amendment could therefore unintentionally restrict the scope of the youth service to young people under the age of 18. The noble Baroness intended no such restriction.

I appreciate that part of the aim of the amendment is to protect the funding of the local youth services. However, nothing in the amendment or in the reference to, activities and experiences suitable to the requirements of young people", helps to secure any particular level of provision for the youth service. The amendment is therefore ineffective in that intention. The noble Baroness and the noble Lord will know as well as I do that one of the reasons that it is not possible to get to grips with funding in such an amendment is that the central principle of our local government finance is that revenue support grant is paid for as a block without reference to specific services. It is for local authorities to make decisions about their priorities in the light of local needs and wishes.

If the noble Baroness will forgive my saying so, there is a paradox in the amendment. On the one hand the noble Baroness complained—I take her complaint seriously—of certain reports from different local authority areas of reductions in funding for the youth service. The main planks of the amendment were put forward with the greatest eloquence by the noble Baroness and the noble Lord, and indeed the noble Baroness, Lady Brigstocke. The noble Lord, Lord Northbourne, gave specific examples of the way in which new initiatives in the youth service need to be covered by fresh and imaginative wording on the statute. The paradox is that if that is so, all is not doom and gloom. It is not commensurate with saying that the youth service is dying on its feet.

For nearly 50 years the way in which the youth service works has been spelt out in wording under the 1944 Education Act. That is wide enough to allow the youth service to implement new ideas, and to bring in new systems and new methods. The difficulty is that if one tinkers with that wording it is possible, as with the amendment, to run into drafting trouble. I am not as complacent as I may sound. I believe that the wording in the 1944 Act is so wide that the youth service is enabled to do what it feels is right. Indeed, in my brief experience I do not think I have heard of somebody coming along and saying it is not possible to try a new initiative in the youth service because it is not covered by the 1944 Act. It is so often the case that that remarkable Act covers all that the youth service needs to cover.

I have to say that I believe the amendment to be defective in the way I explained at the beginning. I say that also on the ground that I do not want to let go of nurse—I do not want to depart from the wording of the 1944 Act because I believe it to be right and as soon as we go down the road in the direction of extra drafting we run into trouble. For those reasons I resist the amendment.

Baroness Lockwood

My Lords, I am sorry about the Minister's response. I do not find it very convincing. He may be confident that the Act on the statute book and the Bill as drafted make it possible to include any new initiative but those working in the field are not confident. It is on their initiative and at their request that we have come forward with the amendment.

At Report stage the noble Lord was especially impressed by the contributions from the noble Lord, Lord Northbourne, who referred among other things to the counselling of young offenders and so on. We deliberately drafted the clause to include "informal" and "social", which are not included in the rest of the Bill, so as to cover that specific example and all the other informal initiatives such as outreach work and so on which the youth service wants to establish or extend.

I am also not convinced by the noble Lord's argument that the amendment could be confusing. We have deliberately phrased the amendment so that it comes within the terms of the Long Title of the Bill which is concerned with further and higher education. I suggest that it follows from that that any activities undertaken under this specific clause will come within the area of further and higher education and could not be extended to those who are younger.

We have debated this matter on three occasions. Although each time the Minister has shown some sympathy with what we have been trying to do, he has not responded adequately. Therefore, I believe I must test the feeling of the House.

5.12 p.m.

On Question, Whether the said amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 99; Not-Contents, 115.

Division No. 1
CONTENTS
Addington, L.	Jenkins of Putney, L.
Annan, L.	Kennet, L.
Ardwick, L.	Kilmarnock, L.
Aylestone, L.	Kinloss, Ly.
Barnett, L.	Kirkwood, L.
Beaumont of Whitley, L.	Listowel, E.
Beloff, L.	Llewelyn-Davies of Hastoe, B.
Blackstone, B.	Lockwood, B.
Bonham-Carter, L.	Longford, E.
Boston of Faversham, L.	Lovell-Davis, L.
Bottomley, L.	McCarthy, L.
Broadbridge, L.	McIntosh of Haringey, L.
Carmichael of Kelvingrove, L.	Mallalieu, B.
Cledwyn of Penrhos, L.	Mason of Barnsley, L.
Cocks of Hartcliffe, L.	Mayhew, L.
Dacre of Glanton, L.	Milner of Leeds, L.
David, B.	Molloy, L.
Dean of Beswick, L.	Mulley, L.
Desai, L.	Nicol, B.
Donaldson of Kingsbridge, L.	Ogmore, L.
Donoughue, L.	Perry of Walton, L.
Dormand of Easington, L.	Peston, L.
Ewart-Biggs, B.	Phillips, B.
Falkender, B.	Pitt of Hampstead, L.
Falkland, V.	Porter of Luddenham, L.
Gallacher, L.	Prys-Davies, L.
Galpern, L.	Richard, L.
Gladwyn, L.	Ritchie of Dundee, L.
Graham of Edmonton, L. [Teller.]	Rochester, L.
	Russell, E.
Grey, E.	Russell of Liverpool, L.
Grimond, L.	Saltoun of Abernethy, Ly.
Guildford, Bp.	Seear, B.
Halsbury, E.	Sefton of Garston, L.
Hampton, L.	Serota, B.
Hanworth, V.	Shaughnessy, L.
Harris of Greenwich, L.	Shepherd, L.
Hatch of Lusby, L.	Simon of Glaisdale, L.
Henderson of Brompton, L.	Stedman, B.
Hilton of Eggardon, B.	Stoddart of Swindon, L.
Hirshfield, L.	Strabolgi, L.
Hollis of Heigham, B.	Taylor of Blackburn, L.
Holme of Cheltenham, L.	Taylor of Gryfe, L.
Houghton of Sowerby, L.	Tordoff, L. [Teller.]
Howie of Troon, L.	Turner of Camden, B.
Hughes, L.	Underhill, L.
Irvine of Lairg, L.	Wedderburn of Charlton, L.
Jay, L.	White, B.
Jeger, B.	Wilberforce, L.
Jenkins of Hillhead, L.	Williams of Elvel, L.

NOT-CONTENTS
Abinger, L.	Cavendish of Furness, L.
Aldington, L.	Cochrane of Cults, L.
Alexander of Tunis, E.	Colwyn, L.
Ampthill, L.	Constantine of Stanmore, L.
Arran, E.	Crickhowell, L.
Astor, V.	Crook, L.
Auckland, L.	Darcy (de Knayth), B.
Balfour, E.	De L'Isle, V.
Belhaven and Stenton, L.	Denton of Wakefield, B.
Belstead, L.	Derwent, L.
Blatch, B.	Elibank, L.
Blyth, L.	Elles, B.
Borthwick, L.	Elliot of Harwood, B.
Boyd-Carpenter, L.	Elton, L.
Brabazon of Tara, L.	Faithfull, B.
Brougham and Vaux, L.	Fanshawe of Richmond, L.
Butterworth, L.	Ferrers, E.
Caithness, E.	Flather, B.
Campbell of Alloway, L.	Fraser of Carmyllie, L.

Goschen, V.	Mowbray and Stourton, L.
Gray of Contin, L.	Munster, E.
Hailsham of Saint Marylebone, L.	Napier and Ettrick, L.
	Nelson, E.
Hanson, L.	Norrie, L.
Haslam, L.	Orkney, E.
Henley, L.	Orr-Ewing, L.
Hesketh, L. [Teller.]	Park of Monmouth, B.
Holderness, L.	Pearson of Rannoch, L.
HolmPatrick, L.	Pender, L.
Hood, V.	Perry of Southwark, B.
Hooper, B.	Peyton of Yeovil, L.
Howe, E.	Quinton, L.
Hylton-Foster, B.	Rankeillour, L.
Inglewood, L.	Reay, L.
Jeffreys, L.	Renfrew of Kaimsthorn, L.
Jenkin of Roding, L.	Renwick, L.
Johnston of Rockport, L.	Rippon of Hexham, L.
Joseph, L.	Rodney, L.
Killearn, L.	St. Davids, V.
Kimball, L.	Seccombe, B.
Lane of Horsell, L.	Shrewsbury, E.
Lauderdale, E.	Skelmersdale, L.
Limerick, E.	Strathmore and Kinghorne, E. [Teller.]
Liverpool, E.
Long, V.	Sudeley, L.
Lyell, L.	Swinfen, L.
McColl of Dulwich, L.	Thomas of Gwydir, L.
McFarlane of Llandaff, B.	Trefgarne, L.
Mackay of Clashfern, L.	Trumpington, B.
Macleod of Borve, B.	Tryon, L.
Mancroft, L.	Ullswater, V.
Manton, L.	Waddington, L.
Marlesford, L.	Wade of Chorlton, L.
Merrivale, L.	White of of Hull, L.
Mersey, V.	Whitelaw, V.
Milverton, L.	Wise, L.
Morris, L.	Wyatt of Weeford, L.
Mountevans, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.22 p.m.

[Amendment No. 20 not moved.]

Clause 12 [Provision of further education in maintained schools]:

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I should tell your Lordships that, if Amendment No. 21 is agreed to, I cannot call Amendment No. 22.

The Lord Bishop of Guildford moved Amendment No. 21: Page 11, leave out lines 8 to 17.

The right reverend Prelate said: My Lords, I bring the House back to what is known as family education—at least, that is the aspect that interests me. A number of educational institutions have pioneered ways in which it is of benefit to teach children and parents together. That is especially true where there are ethnic minorities or a low literacy rate of one kind or another. When we discussed this issue on Report, it was recognised on all sides of the House that the Bill should not stay as drafted. We had a wide-ranging debate and there was widespread support for some amendment. It was further recognised that what family education is achieving is of great benefit and value. It is important to recognise that fact. I pay tribute to the work which the City Literary Institute has been doing. The noble Baroness, Lady David, drew attention to its work in our previous debates. I support her in paying tribute to that institution.

The amendment is cleaner and neater than the amendment which the Government propose to move if my amendment fails. The amendment in the name of the noble Lord, Lord Belstead, provides that such education is not to be provided except in such circumstances as may be prescribed. I shall listen carefully to what the Minister says, but I shall want to know who is to prescribe where and when such education may or may not take place. If it is to be the Secretary of State or DES I shall not he reassured because they may make the same kind of mistake—if I may put it in such blunt terms—as they made when they first drafted the Bill. We should not be moving the amendment if the Secretary of State or the department understood the issue and had made careful preparation for it. With due respect, I have to say that, if the answer is that it is the Secretary of State who is to prescribe, I shall need a great deal of assurance that it will be right to accept the Minister's amendment rather than mine.

Perhaps I may raise a further point. Do we need any such provision in the Bill? So far as I am aware—I said this on Report—there is no abuse of the system being pioneered in one or two places. It is developing. When we are so worried about the fact that legislation is so overloaded with provisions, I cannot understand why we have to insert anything along these lines.

Is there some bogey lurking in the background which the Government have in their sights and need to dispose of? If so, I should be glad to hear about it, but I am not aware of anything. In one or two places people are pioneering some valuable work, and I cannot for the life of me see why we should not allow that to continue and why we have to have special provisions to deal with the situation. In returning to the matter I hope that it is recognised on all sides that we need to make some amendment. I hope that your Lordships will feel that the cleanest and neatest way of proceeding is to excise the provision from the Bill. I beg to move.

Baroness David

My Lords, my name was down to a similar amendment moved on Report. It is accidental that it did not get down to this amendment in time for Third Reading. I endorse everything that the right reverend Prelate has said. I hope that the Government are beginning to understand what the amendment is all about. I have the same anxieties as the right reverend Prelate about the Government's amendment. We shall await with interest to hear what is said about it.

Lord Cavendish of Furness

My Lords, I respond to the amendment on behalf of my noble friend. With the leave of the House, I should like to speak also to Amendments Nos. 22 and 23. This group of amendments returns to the issue of the restrictions currently in Clauses 12 and 13 upon where further education may be provided by school governors when pupils of the schools are also present.

I am well aware of the strength of feeling in the House about what is perceived to be an unnecessary restriction on the circumstances in which adults may be educated in schools alongside younger pupils. The Government understand that point. We have made it clear at previous stages of the Bill why we believe that there is a need for a cautious approach in this area. Nevertheless, on Report I undertook further to consider Clause 12 with a view to bringing forward an amendment to enable, among other things, post-16 year-olds to join classes leading to public examinations. I know that that alone will not satisfy supporters of what has been termed family or parent education. We consider that the best way forward is to introduce in Clauses 12 and 13 a power to make regulations governing the circumstances in which adults and part-timers may be educated in the same room as registered pupils.

The government amendments replace the duty currently placed by Clauses 12 and 13 on governors to secure that further education is provided in a room in which pupils are being taught only if a majority of those pupils are over compulsory school age. In its place is substituted the duty to secure that further education is not provided at any time in a room where pupils are being taught except in the circumstances prescribed.

The right reverend Prelate said that he is unable to understand our anxiety. At an earlier stage of the Bill I spoke about the possibility of abuse. There seems to be a certain amount of scepticism about that. However, the Government have a duty to try to protect children. Even if there are not well known instances of abuse, there could always be a first instance. If there were, the Government would rightly he blamed.

As I have said, the amendment would enable the Secretary of State to make regulations. It is the Secretary of State who would make the regulations which give effect to our commitment to allow adults and part-timers to be educated alongside pupils at sixth form level and in classes where courses leading to public examination are taught. We shall also consider the extent to which other provision of that kind mentioned in our debates in Committee and on Report may need to be covered by regulations.

I remain of the view that many of the examples of family education given during our debates on the issue will not fall foul of Clause 12 for reasons which we have covered. However, we shall consult further in order to consider the extent to which, in regulations, such provisions may need to be reflected alongside courses leading to public examination and sixth forms.

I give the right reverend Prelate the assurance that we have looked at this matter. I repeat categorically that there will be consultation. I hope that the right reverend Prelate will take that as a measure of our intention to take this matter seriously. I hope that he will not press the amendment and that he and your Lordships will accept that our amendments achieve what he seeks.

The Lord Bishop of Guildford

My Lords, I am grateful to the Minister for that response. Perhaps I may express some puzzlement. He referred again, as he did on Report, to the possibility of child abuse. I suggest that we should knock that on the head in this context. I do not believe that it is a serious risk that in the context of a school classroom, with a number of adults and parents present, there is likely to be child abuse. If there were to be, I should be the first to deplore and condemn it, but I cannot believe that that is a realistic issue in the context of this discussion.

Furthermore, if it is the reason that lies behind the Government's thinking, they will no more be able to deal with that by the Secretary of State making prescriptions than by any other means. That convinces me that I do not yet believe that the Government have seriously given their mind to what is being done and the issues lying behind this anxiety.

I am grateful to the Minister for his assurance that, if the Secretary of State were to prescribe the circumstances under which such family education will take place, there will be consultations. However, I am sure that the Minister will understand my scepticism when I say that he did not consult before drafting the Bill. Perhaps I may say that it is rather late—and I am sorry to speak in such trenchant terms—to assure us now that there will be consultation when it has been so lacking up to this point.

I have never yet divided the House but I believe that the Government have got into something of a muddle on this issue. It is much better that we should remove this unnecessary restriction from the Bill. I hope that your Lordships will agree with me, and I must divide the House on this issue.

5.34 p.m.

On Question, Whether the said amendment (No. 21) shall be agreed to?

Their Lordships divided: Contents, 109; Not-Contents, 113.

Division No. 2
CONTENTS
Acton, L.	Guildford, Bp. [Teller.]
Addington, L.	Halsbury, E.
Adrian, L.	Hampton, L.
Airedale, L.	Hamwee, B.
Annan, L.	Hanworth, V.
Ardwick, L.	Harris of Greenwich, L.
Aylestone, L.	Hatch of Lusby, L.
Barnett, L.	Hilton of Eggardon, B.
Beaumont of Whitley, L.	Hollick, L.
Beloff, L.	Hollis of Heigham, B.
Blackstone, B.	Holme of Cheltenham, L.
Bonham-Carter, L.	Houghton of Sowerby, L.
Boston of Faversham, L.	Howie of Troon, L.
Bottomley, L.	Hughes, L.
Canterbury, Abp.	Hylton-Foster, B.
Carmichael of Kelvingrove, L.	Irvine of Lairg, L.
Cledwyn of Penrhos, L.	Jay, L.
Cocks of Hartcliffe, L.	Jeger, B.
Combermere, V.	Jenkins of Hillhead, L.
Darcy (de Knayth), B.	Jenkins of Putney, L.
David, B.	Kennet, L.
Dean of Beswick, L.	Kinloss, Ly.
Desai, L.	Kirkwood, L.
Donoughue, L.	Listowel, E.
Dormand of Easington, L.	Llewelyn-Davies of Hastoe, B.
Ewart-Biggs, B.	Lockwood, B.
Falkender, B.	Longford, E.
Falkland, V.	Lovell-Davis, L.
Foot, L.	McCarthy, L.
Gallacher, L.	McFarlane of Llandaff, B.
Galpern, L.	McGregor of Durris, L.
Gladwyn, L.	McIntosh of Haringey, L.
Graham of Edmonton, L. [Teller.]	Mallalieu, B.
	Mason of Barnsley, L.
Grey, E.	Mayhew, L.
Grimond, L.	Milner of Leeds, L.

Molloy, L.	Sefton of Garston, L.
Newcastle, Bp.	Serota, B.
Nicol, B.	Shepherd, L.
Ogmore, L.	Simon of Glaisdale, L.
Palmer, L.	Stedman, B.
Perry of Walton, L.	Stoddart of Swindon, L.
Peston, L.	Strabolgi, L.
Phillips, B.	Taylor of Blackburn, L.
Pitt of Hampstead, L.	Taylor of Gryfe, L.
Porter of Luddenham, L.	Templeman, L.
Prys-Davies, L.	Tordoff, L.
Rea, L.	Turner of Camden, B.
Richard, L.	Underhill, L.
Ritchie of Dundee, L.	Walton of Detchant, L.
Rochester, L.	Warnock, B.
Russell, E.	Wedderburn of Charlton, L.
Russell of Liverpool, L.	Whaddon, L.
Saltoun of Abernethy, Ly.	White, B.
Seear, B.	Williams of Elvel, L.

NOT-CONTENTS
Abinger, L.	Limerick, E.
Aldington, L.	Liverpool, E.
Alexander of Tunis, E.	Long, V.
Ampthill, L.	Lyell, L.
Arran, E.	McColl of Dulwich, L.
Astor, V.	Mackay of Ardbrecknish, L.
Balfour, E.	Mackay of Clashfern, L.
Belhaven and Stenton, L.	Macleod of Borve, B.
Belstead, L.	Mancroft, L.
Blatch, B.	Manton, L.
Blyth, L.	Marlesford, L.
Borthwick, L.	Merrivale, L.
Boyd-Carpenter, L.	Mersey, V.
Brabazon of Tara, L.	Milverton, L.
Brougham and Vaux, L.	Morris, L.
Butterworth, L.	Mottistone, L.
Caithness, E.	Mountevans, L.
Campbell of Alloway, L.	Moyne, L.
Cavendish of Furness, L.	Munster, E.
Charteris of Amisfield, L.	Nelson, E.
Cochrane of Cults, L.	Norrie, L.
Colwyn, L.	Orkney, E.
Constantine of Stanmore, L.	Orr-Ewing, L.
Craigavon, V.	Oxfuird, V.
Crickhowell, L.	Park of Monmouth, B.
Dainton, L.	Pearson of Rannoch, L.
De L'Isle, V.	Pender, L.
Denton of Wakefield, B.	Perry of Southwark, B.
Derwent, L.	Peyton of Yeovil, L.
Elibank, L.	Quinton, L.
Elles, B.	Rankeillour, L.
Elliot of Harwood, B.	Reay, L.
Elton, L.	Renfrew of Kaimsthorn, L.
Fanshawe of Richmond, L.	Renwick, L.
Ferrers, E.	Rippon of Hexham, L.
Flather, B.	Rodney, L.
Fraser of Carmyllie, L.	St. Davids, V.
Glenarthur, L.	Seccombe, B.
Goschen, V.	Shrewsbury, E.
Gray of Contin, L.	Skelmersdale, L.
Hanson, L.	Strathmore and Kinghorne, E. [Teller.]
Haslam, L.
Henley, L.	Sudeley, L.
Hesketh, L. [Teller.]	Swinfen, L.
Holderness, L.	Teynham, L.
HolmPatrick, L.	Thomas of Gwydir, L.
Hood, V.	Trefgarne, L.
Hooper, B.	Trumpington, B.
Howe, E.	Tryon, L.
Inglewood, L.	Ullswater, V.
Jeffreys, L.	Waddington, L.
Jenkin of Roding, L.	Wade of Chorlton, L.
Johnston of Rockport, L.	White of of Hull, L.
Joseph, L.	Whitelaw, V.
Kimball, L.	Wilberforce, L.
Lane of Horsell, L.	Wise, L.
Lauderdale, E.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.42 p.m.

Lord Cavendish of Furness moved Amendment No. 22: Page 11, leave out lines 10 to 17 and insert ("that such education is not provided at any time in a room where pupils are at that time being taught except in such circumstances as may be prescribed." "). Page 12, leave out lines 40 to 46 and insert ("that it is not provided at any time in a room where pupils are at that time being taught except in such circumstances as may be prescribed."").

The noble Lord said: My Lords, I beg to move. Amendments Nos. 22 and 23 were spoken to with Amendment No. 21.

On Question, amendment agreed to.

Clause 13 [Provision of further education in grant-maintained schools]:

Lord Cavendish of Furness moved Amendment No. 23: Page 12, leave out lines 40 to 46 and insert ("that it is not provided at any time in a room where pupils are at that time being taught except in such circumstances as may he prescribed."").

On Question, amendment agreed to.

Clause 17 ["Further education corporation" and "operative date"]:

[Amendment No. 24 not moved.]

Clause 28 [Designation of institutions]:

Baroness David moved Amendment No. 25: Page 23, line 14, at end insert: ("(bb) an institution (other than a school) maintained by a local education authority, which has a substantial and significant programme of courses listed in Schedule 2 to the Act.").

The noble Baroness said: My Lords, in moving Amendment No. 25 I shall speak also to Amendment No. 26, which is consequential. Again, the noble Viscount, Lord Combermere, is supporting me on this matter.

The amendment seeks to extend designation to substantial education providers. I did not move a similar amendment at Report stage because the wording of an earlier amendment to Clause 15 at that time was criticised. I thought it wiser to re-word the amendment to eliminate some of the objections to the words "consortium" and "consortia". This is a simplified version and its purpose is to open up the possibility of direct access to the funding council for adult education providers. Discretion would still remain in the hands of the Secretary of State—as in line 1 of the clause—and most adult education services are not at present so organised that they could meet the requirements of Clause 29. But some are and others may wish to follow.

It must be remembered that some adult colleges and services are larger than the FE colleges they are now asked to progress through. Such services in many places are the only providers for basic education—for example, English as a second language and Welsh—and where there is no history of local co-operation they will bitterly resent the adequacy of their provision being judged by the FE college. For some such services Schedule 2 encompasses the majority of their work and many part-time students are involved. For all those reasons we seek to open up a route for them out of subsidiary status to another institution.

Today I received from the principal of Colchester Adult Education College a special plea that I do my best in regard to this amendment. He said: It may be possible for the FE governors to be objective about a few courses in distant village community education settings, but having the power to make judgment on a sizeable portion of a nearby adult college programme (which could be thought to be a rival institution post-1993) puts them in a very difficult position".

The principal continues: This clause allows voluntary aided schools, LEA assisted institutions and grant-aided institutions access to FEFC funding procedures but makes no mention of the adult education colleges. This is despite the fact that, by virtue of their ethos and orientation, quite apart from their achievements and status in the eyes of the public, they are by far better placed to serve the purposes of the Bill, especially where schedule 2 work is concerned. It is not logical to allow access by institutions which may be inexperienced, and which have in most cases insignificant provision, whilst keeping out adult education colleges. In our case this means the exclusion of an institution with over 10,000 part-time enrolments, 650 courses, 50 per cent. of course hours within schedule 2, over 1,200 examination candidates per annum and a proven record of high quality provision".

I am sure that the feelings of the principal of that college are echoed throughout the country. I hope that the Minister will not refer again to Clause 6(5); that is not an adequate answer. We know all about Clause 6(5) and it does not cope with the situation we are discussing. For once I hope that the Minister can be sympathetic to this cause. I beg to move.

Baroness Seear

My Lords, I rise briefly to support the amendment, to which my name is attached. There is no doubt that to make the adult education colleges go through the further education colleges places them in a subordinate position and one in which they are being judged by people who may be in competition with them. The work of the adult colleges is difficult enough at the present time with the funding problems that they are experiencing. It is vital that that those organisations, which are doing a quite different job from the further education colleges but which have worked out their own often high standards, should be able to appeal for funds in their own right and to be judged on what they do and not by competitors.

Viscount Combermere

My Lords, I fully support the amendment. It is crucial. It is essential for the continued health of adult education in this country which I believe to be the aspiration of noble Lords on all sides of the House.

The issues involved have been debated before. The arrangement in the Bill as it stands is no more than an agency agreement whereby FE colleges sift through bids from AE centres for Schedule 2 work. There is a widespread view throughout the world of adult education that the present arrangement was introduced purely because the DES has not investigated what is going on in the adult education colleges in terms of the key areas of Schedule 2 work such as adult basic education. Furthermore, it is widely held that there was no proper consultation in the first place.

I shall not repeat the arguments previously deployed in your Lordships' House. I merely remind your Lordships that the amendment will allow the current variety of progression routes to higher education to be maintained and that it could be invidious for one adult college to be at the beck and call of another, in spite of the earlier assurances of the noble Lord, Lord Belstead. Further, where there is no history of co-operation the adult education colleges may bitterly resent the adequacy of their provision being judged against a neighbouring FE college. I suspect that the real reason the DES is opposed to the amendment is that the funding councils would be swamped by bids. Far from a multiplicity of bids being involved if the amendment is adopted, through arrangements into consortia it is estimated that AE colleges will be making fewer than 60 bids altogether throughout the country.

At Report stage the noble Lord, Lord Belstead, referred to the fact that there are over 1 million adults in adult education. That may well be so. At the same time, some adult colleges are larger than their neighbouring FE colleges through which the Government expect their bids to be routed. Further, some FE colleges in the country have few adult education students. For example, Surrey has roughly eight times as many students in AE colleges as in FE colleges, West Sussex has roughly five times as many and Cornwall and Buckinghamshire have four times as many. Where FE colleges have adult students in some cases they are not providing basic education, but they may offer such courses as business studies and perhaps even in an area where an AE college is in any case already offering substantial courses under Schedule 2.

This amendment is absolutely vital. I do not know of any college or colleague in adult education who would oppose it. It is the key to the future health of adult education in this country. That is a concern which about half a million people have already expressed in a recent petition organised by the Women's Institute, the National Institute of Adult Continuing Education and other concerned bodies.

Lord Teviot

My Lords, I agree with every word that has been said so far in support of this amendment. I reiterate that the most important factor is to keep open the opportunities for those men and women returning to education later in life. My own experience is one which is not concerned with people in education. I can recall three people. One was a plumber. He left school and did his apprenticeship and his indentures. He then went to the LSE and became a postgraduate. As far as I know he is still in academe. I forget what another did, but he did not return to further education until he was in his early twenties. He did that via night-school. Perhaps we should remind ourselves that such places of education were known as night-schools. He went to various places and he is now a professor of history at an overseas university. The third person I recall only recently, and slightly late in his life, became a postgraduate medic. Those are just three examples. Noble Lords who have been concerned with education must know of plenty of students who have had great successes and who are products of the night-school. The Government say that that is fine and that they will be looked after.

Such students are not concerned with administrative niceties. They want the right course and want it to be available locally. If needs be that course should be available from the adult education centre and not the college. We are told that arbitration is not necessary. I am grateful to my noble friend for his elucidation of that point in relation to an earlier amendment. He told us that arbitration would happen anyway. How is a council to know that arbitration is needed? This amendment will at least allow some adult centres to be designated for direct funding where they can make the case without being ruled out simply because the local education authority maintains them. This amendment must command support in the interests of students who are best served by real competition between institutions.

Lord Belstead

My Lords, I do not believe that there is any misunderstanding on the part of the noble Baroness, Lady David, who moved the amendment or on the part of the noble Viscount, Lord Combermere, and my noble friend Lord Teviot, as regards the importance of adult education institutes or colleges which at the moment are maintained by local education authorities. With respect to the noble Baroness and noble Lords, I believe that there is some misunderstanding about the way in which these institutions can have their courses, or in some cases the institute or college, centrally funded.

This amendment seeks to add to the list in Clause 28(2) adult colleges and centres maintained by local education authorities. If they are so added they will then be designated as eligible to receive funds administered by the new funding councils. The difficulty with the main thrust of the amendment is that I do not believe it is workable. These colleges and adult education centres are absolutely admirable. One has only to listen to the way in which my noble friend Lord Teviot referred to how he feels about them. Nonetheless, they do not have any status in law separate from the local education authority which maintains them. That is why we have provided in the Bill for institutions maintained by local education authorities to enter the new sector through incorporation under Clauses 15 and 16.

Designation is appropriate only for institutions which already have their own status in law, such as the City Lit. The noble Baroness referred to the Colchester Adult Education Centre. I do not know whether that has a governing body. Even if it has, that has no separate legal identity of its own. I was a little surprised to learn that a governing body is a collection of individuals. One advantage of incorporation is that the governors of colleges are not personally liable for debts incurred by the colleges during their term of office. That would otherwise be so even after their governorship ceases. In the case of corporations it is they themselves and not members of the governing bodies of the further education colleges which acquire rights and incur liabilities. That should make clear why designation under Clause 28 is not the right way forward for colleges maintained by local education authorities even if they had governing bodies.

Having said that, which is negative, I now come to the positive. Both noble Lords and the noble Baroness have all spoken as though that were the end of the story and that it means complete exclusion of those not designated under Clause 28. I tried to make clear during Committee stage that it is going to be open to adult institutions—this would apply to all such institutions whether or not they have governing bodies—to explore the funding councils with the possibility of incorporation. Clause 16(3), and not Clause 6, is deliberately drafted in order to allow the funding councils to propose to the Secretary of State that any institution that provides further education should be included in the new sector.

I emphasise that the right way forward is for institutions to make application to the funding councils. I can give the assurance that the Secretaries of State for both Education and for Wales will ask the funding councils for England and Wales to consider any applications under Clause 16 as one of the first tasks that they undertake. At the risk of the noble Baroness, Lady David, slaying me, in addition I must add that there is also the avenue through Clause 6 for colleges or institutes which are providing Schedule 2 courses, to apply to receive funds through the system which we have already discussed this afternoon and which is found in Clause 6(5).

Quite apart from the fact that I like to believe that I have given a constructive answer, the real problem with the amendment is that it is unworkable. It seeks to say that the colleges and institutes referred to in the amendment—in other words, those maintained by local education authorities—should be designated under Clause 28. For the reasons that I gave early on in my remarks, that is not possible. For that reason alone I do not believe that the amendment could or should be made.

Baroness Seear

My Lords, on a point of information and clarification arising from what the noble Lord has said, am I right to assume that colleges which are becoming companies will have direct access to the funding councils because they are no longer maintained by local education authorities?

Lord Belstead

My Lords, I have been asked that question before in the course of the Bill. If I remember rightly, my answer was yes. I repeat that answer, yes, again. If by chance I am wrong I shall immediately notify the noble Baroness, but I do not believe I am.

Baroness David

My Lords, we have debated this matter a great many times now. The Minister has tried to give me some convincing answers, but I am not convinced. The amendment may be technically faulty, but there is always the chance to put that right before the Bill reaches the other place. Because of the strength of feeling that exists in the whole adult education world, I believe that we have now come to the end of the road at Third Reading. In order to show the strength of feeling and the anxiety which is felt in the adult education colleges and institutes, I must test the opinion of the House.

6 p.m.

On Question, Whether the said amendment (No. 25) shall be agreed to?

Their Lordships divided: Contents, 108; Not-Contents, 109.

Division No. 3
CONTENTS
Acton, L.	Jenkins of Putney, L.
Addington, L.	Kennet, L.
Adrian, L.	Kilmarnock, L.
Airedale, L.	Kirkwood, L.
Annan, L.	Lawrence, L.
Ardwick, L.	Listowel, E.
Aylestone, L.	Llewelyn-Davies of Hastoe, B.
Beaumont of Whitley, L.	Lockwood, B.
Blackstone, B.	Longford, E.
Bonham-Carter, L.	Lovell-Davis, L.
Boston of Faversham, L.	McCarthy, L.
Bottomley, L.	McFarlane of Llandaff, B.
Carmichael of Kelvingrove, L.	McGregor of Durris, L.
Cledwyn of Penrhos, L.	McIntosh of Haringey, L.
Cocks of Hartcliffe, L.	Mallalieu, B.
Combermere, V. [Teller.]	Mason of Barnsley, L.
Dainton, L.	Mayhew, L.
Darcy (de Knayth), B.	Milner of Leeds, L.
David, B.	Molloy, L.
Dean of Beswick, L.	Nicol, B.
Desai, L.	Ogmore, L.
Donoughue, L.	Palmer, L.
Dormand of Easington, L.	Perry of Walton, L.
Ewart-Biggs, B.	Peston, L.
Falkender, B.	Phillips, B.
Falkland, V.	Pitt of Hampstead, L.
Fitt, L.	Porter of Luddenham, L.
Flowers, L.	Prys-Davies, L.
Gallacher, L.	Rea, L.
Galpern, L.	Redesdale, L.
Gladwyn, L.	Richard, L.
Graham of Edmonton, L. [Teller.]	Ritchie of Dundee, L.
	Rochester, L.
Gregson, L.	Russell, E.
Grey, E.	Saltoun of Abernethy, Ly.
Grimond, L.	Seear, B.
Guildford, Bp.	Serota, B.
Halsbury, E.	Shackleton, L.
Hampton, L.	Shepherd, L.
Hamwee, B.	Stoddart of Swindon, L.
Hanworth, V.	Strabolgi, L.
Harris of Greenwich, L.	Taylor of Blackburn, L.
Hatch of Lusby, L.	Taylor of Gryfe, L.
Henderson of Brompton, L.	Teviot, L.
Hilton of Eggardon, B.	Tordoff, L.
Hollick, L.	Turner of Camden, B.
Hollis of Heigham, B.	Underhill, L.
Holme of Cheltenham, L.	Walton of Detchant, L.
Hooson, L.	Warnock, B.
Howie of Troon, L.	Wedderburn of Charlton, L.
Hughes, L.	Whaddon, L.
Irvine of Lairg, L.	White, B.
Jay, L.	Williams of Elvel, L.
Jeger, B.	Winchilsea and Nottingham, E.
Jenkins of Hillhead, L.

NOT-CONTENTS
Abinger, L.	Beloff, L.
Aldington, L.	Belstead, L.
Alexander of Tunis, E.	Blatch, B.
Arran, E.	Blyth, L.
Astor, V.	Borthwick, L.
Auckland, L.	Boyd-Carpenter, L.
Balfour, E.	Brabazon of Tara, L.
Belhaven and Stenton, L.	Bridgeman, V.

Brougham and Vaux, L.	Mackay of Ardbrecknish, L.
Butterworth, L.	Mackay of Clashfern, L.
Caithness, E.	Macleod of Borve, B.
Campbell of Alloway, L.	Mancroft, L.
Cavendish of Furness, L.	Manton, L.
Clanwilliam, E.	Marlesford, L.
Cochrane of Cults, L.	Merrivale, L.
Colwyn, L.	Mersey, V.
Constantine of Stanmore, L.	Milverton, L.
Crickhowell, L.	Morris, L.
De L'Isle, V.	Mottistone, L.
Denton of Wakefield, B.	Munster, E.
Derwent, L.	Nelson, E.
Elibank, L.	Norrie, L.
Elles, B.	O'Hagan, L.
Elliot of Harwood, B.	Orkney, E.
Fanshawe of Richmond, L.	Orr-Ewing, L.
Ferrers, E.	Oxfuird, V.
Flather, B.	Park of Monmouth, B.
Fraser of Carmyllie, L.	Pearson of Rannoch, L.
Glenarthur, L.	Pender, L.
Gray of Contin, L.	Pennock, L.
Greenway, L.	Peyton of Yeovil, L.
Hanson, L.	Quinton, L.
Harmar-Nicholls, L.	Rankeillour, L.
Haslam, L.	Reay, L.
Henley, L.	Renfrew of Kaimsthorn, L.
Hesketh, L. [Teller.]	Rippon of Hexham, L.
Holderness, L.	Rodney, L.
HolmPatrick, L.	St. Davids, V.
Hood, V.	Seccombe, B.
Hooper, B.	Skelmersdale, L.
Howe, E.	Stockton, E.
Hylton-Foster, B.	Strathmore and Kinghorne, E. [Teller.]
Inglewood, L.
Jeffreys, L.	Sudeley, L.
Jenkin of Roding, L.	Swinfen, L.
Johnston of Rockport, L.	Thomas of Gwydir, L.
Joseph, L.	Trefgarne, L.
Kimball, L.	Trumpington, B.
Lane of Horsell, L.	Ullswater, V.
Lauderdale, E.	Waddington, L.
Limerick, E.	Wade of Chorlton, L.
Liverpool, E.	White of of Hull, L.
Long, V.	Whitelaw, V.
Lyell, L.	Wise, L.
McColl of Dulwich, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.8 p.m.

Clause 32 [Transfer of property, etc., to designated institutions]:

[Amendment No. 26 not moved.]

Clause 37 [Attribution of surpluses and deficits]:

Lord Cavendish of Furness moved Amendment No. 27: Page 30, line 7, leave out from beginning to ("as") and insert ("and in the financial year ending immediately before that date (referred to in this section as the "relevant financial year"), the institution was covered by a scheme under section 33 or 139 of the Education Reform Act 1988 (schemes for financing schools or institutions of further or higher education); and in this section, in relation to the institution, the scheme is referred to as the "applicable scheme" and the authority concerned").

The noble Lord said: My Lords, on behalf of my noble friend and with the leave of the House, I beg to move Amendment No. 27. In moving this amendment I shall speak also to Amendment No. 28. This clause deals with the attribution of any surpluses or deficits on colleges' budgets at the date of transfer. We have not discussed the matter before in debate but it has been the subject of discussion with the local authority associations and college representatives who are concerned that the arrangements on this issue should be as clear and as simple as possible. In particular there is concern among those who have to operate the arrangements that the existing wording of Clause 37 might not provide a workable definition by which an institution's budget share could be defined for the purposes of determining a surplus or a deficit. To meet that concern the amendment provides that an institution's budget share for this purpose will be determined by reference to its share under a local management scheme under the Education Reform Act 1988. That will greatly simplify the process of determining an institution's surplus or deficit.

The revised text does not alter the substance of what will happen to surpluses or deficits at the point of independence; they will transfer to the colleges. The amendment will, however, ensure that the arrangements are easier to operate.

In the light of the discussions with the interested parties, the amendment also allows for regulation to be made to provide how any sums payable under this clause will be paid over from the colleges to the authority and vice versa, thus providing for orderly arrangements. Regulations will of course be the subject of consultation before they are published.

These amendments have been introduced in response to specific concerns from the local authority associations and from colleges. I hope that the House will welcome them. I beg to move.

Baroness Blackstone

My Lords, I am most grateful for these amendments and I thank the noble Lord the Minister for writing to me in advance to explain what they mean. As I understand it, the amendments have been produced following contact between the local authority associations and Department of Education and Science officials over the drafting of this part of the Bill. A good deal of anxiety was expressed that the original wording could be construed to imply that the FE colleges would be forgiven debts owed to their maintaining authority at the point of incorporation. I know that that was not the Government's intention. Nevertheless, it is helpful that we now have a clause that will make it clear that there should be a proper and equitable settlement between the new corporations and their former maintaining authorities.

The inclusion of references to local authority schemes of delegation is particularly helpful. Therefore, on these Benches we strongly support the amendments. However, it would be most helpful if the Minister could clarify one point. It relates to the definition of "net budget share" as used in the clause. It would appear that any surplus accumulated by the colleges or by a college over a number of years would be taken into account in the overall calculation of the final surplus or deficit to be transferred. However, in calculating any repayment of deficit to the assisting local authority, it is not absolutely clear that accumulated deficits from previous years—perhaps several years—would be taken into account. The present wording uses the phrase, net expenditure of the institution for the relevant financial year is greater than the net budget share of the institution for that year". I am asking whether the accumulated deficits will be taken into account. Perhaps it would be helpful if I mentioned that the DES circular and guidance on the drafting of schemes of delegation, which was sent out in September 1988, states: Colleges should be required to adhere to their budget limits. They should not plan for deficits and any unplanned deficit which arises should he deducted from the following year's budget share as anticipated spending". Can the Minister clarify the issue? I once again welcome the amendments in general.

Lord Cavendish of Furness

My Lords, I am extremely grateful to the noble Baroness for the warm welcome that she gave to the amendments. We have improved the Bill as a result of consultations with the associations. Perhaps I may give a quick answer to her question. Yes, the accumulated deficit would be taken into account.

On Question, amendment agreed to.

Lord Cavendish of Furness moved Amendment No. 28: Page 30, line 9, leave out subsections (2) to (5) and insert: ("( ) If the net expenditure of the institution for the relevant financial year is less than the net budget share of the institution for that year, the assisting authority shall pay to the new governing body of the institution a sum equal to the shortfall. ( ) If the net expenditure of the institution for the relevant financial year is greater than the net budget share of the institution for that year, the new governing body of the institution shall pay to the assisting authority a sum equal to the excess. ( ) In this section, in respect of any financial year of the institution— net budget share" means the budget share—

1. (i) less such amount as may be prescribed in respect of any earned income, and
2. (ii) plus such amount as may be prescribed in respect of any surplus, and

"net expenditure" means any expenditure, less such amount as may be prescribed in respect of earned income. ( ) Any sum payable under this section shall be paid in accordance with regulations, and the regulations may provide for sums to be payable by prescribed instalments and for sums to carry prescribed interest. ( ) Regulations may, in the case of any institution where the operative date falls within a financial year in which the institution was covered by such a scheme as is referred to in subsection (1) above, make provision for applying this section with modifications relating to the amounts that are to be taken for the purposes of this section to be the net budget share and the net expenditure of the institution for that year. ( ) In this section, in respect of any financial year of the institution— budget share" means the amount which is that institution's budget share for the relevant financial year for the purposes of Chapter III of Part I or Chapter III of Part II of the Education Reform Act 1988, earned income" means any sums, other than sums appropriated for the purposes of the institution by the assisting authority, received by the institution in respect of the relevant financial year which the institution is authorised under the applicable scheme to retain, expenditure" means such expenditure for the purposes of the institution incurred in the relevant financial year by the former governing body or the assisting authority as may be prescribed, financial year" has the same meaning as in the Education Reform Act 1988, former governing body" means the governing body of the institution immediately before the operative date and "new governing body" means the governing body of the institution on or after that date, and surplus" means the amount of any surplus which the institution is authorised under the applicable scheme to carry forward to the relevant financial year.").

On Question, amendment agreed to.

6.15 p.m.

The Lord Bishop of Guildford moved Amendment No. 29: Before Clause 44, insert the following new clause: ("Collective Worship .—(1) In this section "institution of voluntary origin" means a further education institution which, when it became a further education institution, was a voluntary school or a grant-maintained school which was a voluntary school before it became grant-maintained. (2) The governing body of every further education institution except an institution which on the appointed day was a college of further education shall ensure that at an appropriate time on at least one day in each week during which the institution is open an act of collective worship is held at the institution which persons receiving education at the institution may attend. (3) In an institution of voluntary origin such act of collective worship shall—

1. (a) be in such forms as to comply with the provisions of any trust deed affecting the institution, and
2. (b) reflect the religious traditions and practices of the institution before it became a further education institution.

(4) In all other further education institutions such act of collective worship shall be wholly or mainly of a broadly Christian character in that it shall reflect the broad traditions of Christian belief but need not be distinctive of any particular Christian denomination. (5) If the governing body of a further education institution considers it appropriate to do so it may in addition to the act of collective worship referred to in subsection (3) or (4) provide for acts of worship which reflect the practices of some or all of the other religious traditions represented in Great Britain. (6) In this section "the appointed day" means the day appointed under section 90 of this Act for the commencement of subsection (4) of section 15 of this Act.").

The right reverend Prelate said: My Lords, in moving this amendment I should like to speak also to Amendment No. 30. The amendments deal with rather distinct matters but they are interrelated. I make no apology for returning once again to the matter of religious education and worship in the context of sixth form colleges. I suggest that this is not just a matter of adjusting the curriculum. It touches the very nature of our education system.

The Education Reform Act 1988 refers to the education of the whole person, including the spiritual and moral dimension. I hope that we shall not lightly set that aside. Your Lordships will remember that sixth form colleges at the moment come within the terms of the schools regulations which require them to have a collective act of worship daily and to include religious education in the curriculum. But by transferring sixth form colleges from the schools sector to the further education sector this administrative or reorganisational step is having the effect of removing those provisions for religious education and worship from these educational institutions.

At previous stages I have moved amendments along these lines. The present amendments have been revised further in order to take account of the criticisms made of earlier drafts. I should like to remind your Lordships that the amendment now before the House requires the provision of worship but does not make attendance at it compulsory. The act of worship is not to be daily, as in the 1988 Act, but is to be provided at least once a week. There is no narrowness here. Specific reference is made to non-Christian religions. Where the governing body of the institution thinks that that kind of worship should be provided, provision for that is included in my amendment.

At Report stage, in referring to religious education, I gave four principal reasons why I thought this matter should be retained within the context of the Bill. I shall give them again. First, young people need the opportunity to reflect on their academic specialisms in a context where the moral and spiritual values of their studies can be explored. Secondly, spiritual experience is widespread and the power of religious conviction formidable. Young people need opportunity to analyse that. They need to understand it and, if necessary, redirect it. Thirdly, Christianity is a core element in our tradition and our culture. Every society needs to understand its own history. Fourthly, religious education as an academic discipline is linked with how we view it in general terms in the context of the curriculum. I summarise those arguments and do not elaborate them because I do not wish to weary your Lordships with merely repeating what I said at Report stage.

In rejecting my amendment the Minister said that it was inappropriate to make this or any other curriculum requirement in the FE sector. He said that, the curriculum is a matter for decision by institutions in the light of local demand".—[Official Report, 16/1/92; col. 428.]

I accept the general thrust of the noble Lord's argument, but I am sure he will recognise that in Schedule 2 to the Bill we give very considerable detailed attention to courses which shall be provided. Those are matters relating to the curriculum. I suggest to the Minister that his argument cannot be sustained. There are curriculum matters referred to in the Bill and I do not think he can say that this is a matter which therefore, on principle, cannot be considered.

Furthermore, we have in the context of the Bill given a great deal of attention to our wish that there should be special provision for people with learning difficulties. When we are dealing with particular people we do not leave this matter to local demand and to the particular views of governing bodies. We require certain things on the face of the Bill. My argument is that where we make the judgment that certain things are of sufficient importance and value, we ensure they are put on the face of the Bill. I wish to argue that these matters are indeed of importance. We hammered out an agreement in 1988 in the context of the Education Reform Act and I hope that we are not now, just four years later, going to start rejigging that agreement.

That brings me to a further point which I address to the Minister. I am sure he will understand if I say that a certain number of his colleagues do from time to time "gun" for the Church because they feel that we fail to give a moral lead. When Ministers gun for the Church the people they actually have in their sights are the Bishops. We are obvious targets because of our quaint and conspicuous attire. When Ministers and others gun for the Bishops they are saying that we ought to give a moral lead. I put it to the House that we are now giving a moral lead. We are giving a moral lead by saying that we ought to retain and secure that element in our education system which enables people to explore the moral and spiritual dimension. Therefore, I hope that the Minister will recognise the seriousness with which we on these Benches view the matter. I also hope that he will look more sympathetically at the amendment before us and at the one which follows. I beg to move.

Earl Russell

My Lords, as an unbeliever I come to the subject from a perspective which is exactly the opposite to that of the right reverend Prelate. I recognise the fact that this is a heart-breakingly difficult subject. But it seems to me that the amendment respects everyone's conscience. I believe that the right reverend Prelate has come as near as is humanly possible to getting it right. I hope that the Government will accept the amendment.

Lord Peyton of Yeovil

My Lords, before my noble friend replies, I should like him to reflect upon one phrase used by the right reverend Prelate; namely, "that certain things are of sufficient importance and value". It is certainly my view that things of sufficient importance and value are all too frequently put on one side today. Of course, it is just possible that my noble friend may have sound reasons for thinking that the amendment should be rejected. However, in inviting support for its rejection, I hope that he will not put those of us who ordinarily would support him in the position of denying a proper place for those things which are of sufficient importance and value.

Lord Boyd-Carpenter

My Lords, the right reverend Prelate has very fairly put to your Lordships an issue of great importance and one of a compelling nature. After all, we are a Christian country that has an established Church, with a monarch who is head of that Church. It would be unfortunate if we were to pass a Bill of this sort which made little or no provision for public worship. I very much commend the remarks made by the right reverend Prelate. I also very much agree with what my noble friend who is sitting behind me said. I sincerely hope that my noble friend the Minister will understand that many of us feel very strongly about the matter and feel more strongly about it than even our loyalty to the Government will enable us to resist.

Lord Campbell of Alloway

My Lords, I should like to say a few words on the matter because, as your Lordships may remember, I led the revolt against the Government (whom I support) on the act of collective worship. In the end, the Government conceded. Originally, the Government's attitude was, "Oh, there are many religions and many races; it is too difficult. We can't do it." However, your Lordships thought otherwise. The result was that noble Lords on all sides of the House—which included believers as well as non-believers and those of various religions—came together to establish what in effect we see beautifully set out in subsections (3), (4) and (5) of the amendment before us.

Having declared my position, I should point out that at the outset of the Bill I openly declared my hand to my noble friend Lord Belstead. I told him that there were three things wrong with the Bill. The first concerned disabilities. I said that the position as regards children with learning difficulties had to be changed. The Government have done that. Secondly, I said that Clause 77 (as it was) was a monstrous provision and that it could not stand. It does not stand. Thirdly, I said, "I am no ecclesiastic and I have no right to draft amendments; but if my Bishops draft something that makes sense I must support it." Therefore, as a matter of conscience, I am committed to vote with the right reverend Prelate, irrespective of whether the Government win or lose.

The Archbishop of Canterbury

My Lords, it would be inappropriate for me to speak at length in this debate, as other commitments sadly prevented me from contributing to earlier stages of debate on matters of principle. I very much regret that fact. I simply want to emphasise that the importance of the case advanced by the right reverend Prelate the Bishop of Guildford does not derive solely from his authority as chairman of the Church of England's Board of Education.

The status of religious education in our society is a very widespread concern in the Church of England and in other Christian Churches; and indeed in other faiths. A further loosening of the underpinnings of religious education would surely be seen by many as a step in the wrong direction. However, I was heartened by the readiness of the Government to include positive references to religious education and worship in the Education Reform Act 1988. I welcomed its emphasis that a balanced curriculum would include that which promotes the spiritual and moral development of pupils. Religious education should also be integral to preparing pupils for the opportunities and responsibilities of adult life. The religious and the spiritual factors are all too obviously present in today's world and cannot simply be wished away.

Therefore, I hope that the Government's mind will not be closed to the important arguments put forward by the right reverend Prelate, which have indeed already been backed by other speakers. I understand that the passage of such a complex Bill will involve some degree of compromise—give and take. This particular concern runs so deep that I do not feel that the Church can let it go. I support the claim of the right reverend Prelate that the amendment touches upon the nature of our society by asking how far we wish to give real effect to our concern for the spiritual dimension.

Lord Howie of Troon

My Lords, like the noble Earl, Lord Russell, who spoke earlier, I too am an unbeliever. Moreover, were I to be a believer, it is extremely unlikely that I would be an Anglican.

However, I support the right reverend Prelate in the matter. I do so for one simple reason. Although I am not strong on religious observance or acts of worship, I believe that the right reverend Prelate is right to demand religious education. I believe that for the reason which he himself mentioned during the course of his speech; namely, that Western civilisation as we know it is, for the most part, a Christian civilisation. It is impossible, even for unbelievers, to understand the civilisation in which we live if we do not understand at least something of the ideas of Christianity, whether or not we accept the spiritual values. I support the right reverend Prelate and I hope that the Government will accept his amendment.

6.30 p.m.

Lord Belstead

My Lords, I should like, first, to pay tribute to the right reverend Prelate the Bishop of Guildford for the terms in which the amendment is couched. I believe that it is true to say, as the noble Earl, Lord Russell, said, that the right reverend Prelate has taken the very greatest care to ensure that the amendment is most reasonable in nature. However, as was made clear by the speech of the right reverend Prelate, both amendments spring from a deeply held conviction. That is not to say—and I must warn your Lordships—that there are no problems of a technical nature with the amendment. I shall briefly explain what I mean.

The amendments relate mainly to sixth form colleges. As I explained during an intervention on Report, although sixth form colleges have hitherto been treated as part of the school sector, they are in many ways closer to the college sector where the curriculum is a matter for decision by the institutions in the light of local demand. The Bill will clarify the position of sixth form colleges by bringing them into an integrated new further education sector.

I must point out to your Lordships that the Government believe that curriculum decisions in all colleges in the new further education sector really ought to be a matter for their governing bodies, whenever that is possible, and not dictated by Parliament. The right reverend Prelate the Bishop of Guildford made the point about Schedule 2, and it is indeed a telling point, but I simply say that whenever it is possible we believe that should be the situation so far as the further education sector is concerned.

In saying that, I recognise that there is considerable support in the House for ensuring that a collective act of worship is available for all those students who wish to attend one, and indeed, as I understood your Lordships, for Amendment No. 30, which deals with the question of religious education in the same way. The support for that was led by the speech of the right reverend Prelate the Bishop of Guildford, and by the most effective intervention that came from the most reverend Primate the Archbishop of Canterbury.

May I say to my noble friend Lord Boyd-Carpenter, than whom there is no more stalwart supporter of the party to which I belong, that of course I understand it when he says to me that there are issues here that are matters of conscience, and I respect him for saying that? But before I finish speaking may I cover a point that I think is worth covering, although it is only just germane to the discussion we are having? There should be no continuing concern that the absence of an explicit provision in the Bill for a collective act of worship and for religious education could have any detrimental effect on the former sixth form colleges which are denominational institutions. The most reverend Primate was generous in saying that he recognised the attitude of the Government so far as the Education Reform Act 1988 was concerned.

In the case of this particular Bill, urged on by the right reverend Prelate the Bishop of Guildford, assurances have been given by the Government concerning the safeguarding of the religious education nature of the denominational colleges. In the former voluntary-aided colleges foundation governors will of course continue to be in a majority on the governing bodies. All further education corporations will be able to apply to the Secretary of State to amend their instruments of government; for example, to increase the proportion of their foundation governors. I gave an assurance on Report that any such request from former voluntary-controlled colleges will be sympathetically considered.

Any provisions relating to religious education in the articles of government for voluntary-aided colleges will be retained. Also provision will be built into the articles of government for voluntary-controlled colleges to ensure that religious instruction is given in accordance with the trust deed. In addition to that, where the trust deed is silent on religious education the articles will provide that it must be given in accordance with the practice observed by the college before incorporation.

However, I realise that that is not the issue we are pursuing. Although these amendments are intended to relate mainly to sixth form colleges, I have to say that there is a technical defect to this amendment. If your Lordships will bear with me for a moment you must decide how that affects your Lordships' view on this amendment. I have been advised that the absence of a definition of a "further education institution" in subsection (2) of the proposed new clauses could cause difficulties. In particular those subsections could be held to apply to, for example, Ruskin College and the Workers' Educational Association. I find it difficult to believe that that is the right reverend Prelate's intention, because the amendments are intended to trench upon sixth form colleges which transfer to the further education sector.

I have listened with great care, and indeed sympathy, to the debate. I have had to point out that there is a defect, and a real technical defect, in these amendments. But I would not be doing my duty if I did not also say that I remain of the view that it is right, wherever we possibly can, not to lay upon the colleges in the further education sector statutory requirements in the curriculum relating to worship or religious education, not for dogmatic reasons but because the further education sector has always been a sector that, wherever it has been possible to do so, the curriculum has been for those who govern and run the colleges. It has been the policy of the Government to try to increase that freedom and not to constrict it. I recognise the feeling on this particular subject. I now leave it to the right reverend Prelate to decide what to do with the amendments.

Lord Campbell of Alloway

My Lords, before my noble friend the Minister sits down, and although we are on opposing sides at the moment, may I ask for clarification and help from him on the question of the technical defect? If there be a technical defect is this not the position: one says there is a technical defect, but that does not inhibit this House here and now, on a Division, from accepting the amendment, on the understanding that another place, if so advised, can put it right and deal with the defect? Is my understanding of this position correct?

Lord Belstead

My Lords, that is perfectly right, but my noble friend must not leap to the conclusion that that is what the Government would do in another place if your Lordships were to pass this particular amendment.

The Lord Bishop of Guildford

My Lords, I am grateful to those who have taken part in this debate.I am particularly grateful to those who do not share my particular religious conviction but yet see the appropriateness of this amendment. I am particularly appreciative of that support. If I may say so, it has taken me somewhat by surprise. That makes me all the more grateful. I am grateful to the noble Lord, Lord Campbell of Alloway, for making the point that he made a few moments ago. I do not want to be blown off course by being told that even now, after all my attempts at amendments, there are still technical difficulties. Those can, if it bears goodwill, be dealt with in due time. I think we must hold fast.

That brings me to the main and substantial point that, as I understood it, the noble Lord, Lord Belstead, made in his response. He said that if there is no provision in relation to worship and religious education in this Bill that will in no way detract from the freedom of those institutions to provide RE and worship where local demand so dictates. I appreciate that in one sense, but what I have to say is that I have been in touch with a number of sixth form colleges where they are doing fine work in this direction. The reality is that if we now, as we see them transferred, remove from them—because that is what we are doing—the requirement about religious education and worship, then we shall leave them naked and exposed.

It is not so much a matter of our saying, "Give us the tools, and we will finish the job". What we are saying is, "The job is being done. Do not steal the tools". I want to resist yet one more twist of the secularist screw. For that reason I have no option but to divide the House in order to test the opinion of those present.

6.38 p.m.

On Question, Whether the said amendment (No. 29) shall be agreed to?

Their Lordships divided: Contents, 106; Not-Contents, 89.

Division No. 4

CONTENTS
Airedale, L.	Judd, L.
Ardwick, L.	Kennet, L.
Auckland, L.	Kilbracken, L.
Aylestone, L.	Kinloss, Ly.
Beaumont of Whitley, L.	Kirkwood, L.
Blackstone, B.	Limerick, E.
Bonham-Carter, L.	Listowel, E.
Boston of Faversham, L.	Llewelyn-Davies of Hastoe, B.
Bottomley, L.	Lockwood, B.
Boyd-Carpenter, L.	Longford, E.
Butterworth, L.	McCarthy, L.
Campbell of Alloway, L.	McGregor of Durris, L.
Canterbury, Abp.	Mallalieu, B.
Carmichael of Kelvingrove, L.	Mason of Barnsley, L.
Cledwyn of Penrhos, L.	Mayhew, L.
Cocks of Hartcliffe, L.	Milner of Leeds, L.
Darcy (de Knayth), B.	Molloy, L.
David, B.	Monson, L.
Dean of Beswick, L.	Newcastle, Bp.
Donoughue, L.	Nicol, B.
Dormand of Easington, L.	Ogmore, L.
Elton, L.	Palmer, L.
Ewart-Biggs, B.	Perry of Southwark, B.
Falkender, B.	Peston, L.
Falkland, V.	Peyton of Yeovil, L.
Flowers, L.	Pitt of Hampstead, L.
Gallacher, L.	Prys-Davies, L.
Galpern, L.	Rea, L.
Gladwyn, L.	Redesdale, L.
Graham of Edmonton, L.	Richard, L.
Greenway, L.	Ritchie of Dundee, L.
Gregson, L.	Rochester, L.
Grey, E.	Russell, E. [Teller.]
Guildford, Bp. [Teller.]	Saltoun of Abernethy, Ly.
Hampden, V.	Seear, B.
Hampton, L.	Serota, B.
Hamwee, B.	Shackleton, L.
Harris of Greenwich, L.	Simon of Glaisdale, L.
Hatch of Lusby, L.	Strabolgi, L.
Hilton of Eggardon, B.	Swinfen, L.
Hollick, L.	Taylor of Blackburn, L.
Hollis of Heigham, B.	Taylor of Gryfe, L.
Holme of Cheltenham, L.	Templeman, L.
Hood, V.	Tordoff, L.
Hooson, L.	Turner of Camden, B.
Howie of Troon, L.	Underhill, L.
Hughes, L.	Walton of Detchant, L.
Hylton-Foster, B.	Warnock, B.
Irvine of Lairg, L.	Wedderburn of Charlton, L.
Jay, L.	Whaddon, L.
Jeger, B.	White, B.
Jenkins of Hillhead, L.	Williams of Elvel, L.
Jenkins of Putney, L.	Winchilsea and Nottingham, E.

NOT-CONTENTS
Abinger, L.	Flather, B.
Aldington, L.	Fraser of Carmyllie, L.
Annan, L.	Glenarthur, L.
Arran, E.	Gray of Contin, L.
Ashbourne, L.	Hanson, L.
Astor of Hever, L.	Harmar-Nicholls, L.
Balfour, E.	Haslam, L.
Belstead, L.	Henley, L.
Blatch, B.	Hesketh, L. [Teller.]
Blyth, L.	Holderness, L.
Borthwick, L.	HolmPatrick, L.
Brabazon of Tara, L.	Hooper, B.
Bridgeman, V.	Howe, E.
Brougham and Vaux, L.	Inglewood, L.
Caithness, E.	Jeffreys, L.
Cavendish of Furness, L.	Jenkin of Roding, L.
Clanwilliam, E.	Johnston of Rockport, L.
Cochrane of Cults, L.	Kenilworth, L.
Constantine of Stanmore, L.	Kilmarnock, L.
De L'Isle, V.	Kimball, L.
Denton of Wakefield, B.	Lane of Horsell, L.
Derwent, L.	Lauderdale, E.
Elibank, L.	Liverpool, E.
Elliot of Harwood, B.	Long, V.

Lyell, L.	Reay, L.
McColl of Dulwich, L.	Rennell, L.
Mancroft, L.	Renwick, L.
Manton, L.	Rodney, L.
Marlesford, L.	St. Davids, V.
Merrivale, L.	Seccombe, B.
Mersey, V.	Skelmersdale, L.
Mottistone, L.	Stockton, E.
Munster, E.	Strathmore and Kinghorne, E. [Teller.]
Nelson, E.
Norrie, L.	Sudeley, L.
O'Hagan, L.	Thomas of Gwydir, L.
Orkney, E.	Trefgarne, L.
Orr-Ewing, L.	Trumpington, B.
Oxfuird, V.	Ullswater, V.
Park of Monmouth, B.	Vinson, L.
Pearson of Rannoch, L.	Waddington, L.
Pender, L.	Wade of Chorlton, L.
Porter of Luddenham, L.	White of of Hull, L.
Quinton, L.	Whitelaw, V.
Rankeillour, L.	Wise, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.47 p.m.

The Lord Bishop of Guildford moved Amendment No. 30: Before Clause 44, insert the following new clause: ("Religious Education .—(1) In this section "institution of voluntary origin" means a further education institution which, when it became a further education institution, was a voluntary school or a grant-maintained school which was a voluntary school before it became grant-maintained. (2) The governing body of every further education institution except an institution which on the appointed day was a college of further education shall ensure that religious education is provided at the institution for all persons attending the institution who wish to receive it. (3) The governing body of a further education institution shall be deemed to be fulfilling its duty under this section if religious education is provided at a time or times at which it is convenient for the majority of full time students to attend. (4) For the purpose of this section religious education may take the form of a course of lectures or classes or of single lectures or classes provided on a regular basis and may include a course of study leading to an examination or the award of a qualification. (5) The form and content of religious education provided pursuant to this section shall be determined from time to time by the governing body of each further education institution and—

1. (a) in the case of an institution of voluntary origin—
1. (i) shall be in accordance with the provisions of any trust deed affecting the institution, and
2. (ii) shall not be contrary to the religious traditions of the institution before it became a further education institution;
2. (b) in the case of all further education institutions shall reflect the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain.

(5) In this section "the appointed day" means the day appointed under section 90 of this Act for the commencement of subsection (4) of section 15 of this Act.").

The right reverend Prelate said: My Lords, fortified by the last few minutes, I beg to move this second amendment which deals specifically with religious education. In the earlier debate on Amendment No. 29 I spoke to the reasons why I thought this amendment also was important although I recognise that it raises different issues in some respects.

Lord Cavendish of Furness

My Lords, with the permission of the House, I believe that the amendment has already been spoken to.

The Lord Bishop of Guildford

Yes, my Lords. I commend it to the House.

On Question, amendment agreed to.

Clause 44 [Variation of trust deeds]:

Lord Cavendish of Furness moved Amendments Nos. 31 and 32: Page 36, line 38, leave out ("and"). Page 36, line 42, at end insert ("and ( ) where the instrument to be modified is a trust deed and the trustees are different from the persons mentioned in paragraphs (a) and (b) above, the trustees.").

The noble Lord said: My Lords, on behalf of my noble friend and with the leave of the House, I beg to move Amendments Nos. 31 and 32 and speak to Amendments Nos. 57 and 58.

At Report stage, the right reverend Prelate the Bishop of Guildford moved an amendment to Clause 44 requiring the Secretary of State to consult the trustees before modifying a trust deed relating to an institution in the further education sector. In moving his amendment, the right reverend Prelate pointed out that the trustees may not necessarily be the same group of people referred to in the present descriptions of people whom this clause requires the Secretary of State to consult before modifying a trust deed. I undertook to give further consideration to this point.

I am grateful to the right reverend Prelate for raising this matter. These amendments now amend Clause 44—and its equivalent in Part II of the Bill, Clause 73—to require the Secretary of State to consult the trustees, if they are different from the persons currently mentioned in subsection (2), before he modifies a trust deed relating to an institution in the further or higher education sector. I beg to move.

The Lord Bishop of Guildford

My Lords, I wish to place on record my gratitude to the Minister. He has met exactly the point I raised at an earlier stage. I am grateful that the matter has been so satisfactorily attended to. I fully support my noble friend.

On Question, amendments agreed to.

Clause 48 [Information with respect to institutions within the further education sector]:

Lord Cavendish of Furness moved Amendments Nos. 33 and 34: Page 38, line 13, leave out ("qualifying their students for") and insert ("of their students on"). Page 38, line 30, leave out ("disclose the name of") and insert ("name").

The noble Lord said: My Lords, on behalf of my noble friend I wish to move Amendments Nos. 33 and 34. During the debate on Report on Amendment No. 114 I indicated that the Government wished to consider whether the power proposed in our amendment to Clause 48 was sufficiently wide in scope for the purpose intended. I said then that if we believed we could improve on the drafting a further amendment would be introduced at Third Reading.

We have come to the conclusion that the present wording defines too narrowly the information required on the educational achievements of students starting at FE institutions. The purpose behind the particular provision in the clause is to get as accurate and complete a picture as possible of students' educational attainments before and during their courses so that meaningful information is available on the value added by institutions. This latest amendment would further that purpose.

Clause 48, as currently drafted, requires information only on educational achievements qualifying students for entry to institutions to be published and not a wider record of all educational achievements held by students on entry. Some students may hold relevant qualifications in addition to the ones needed to qualify for entry to an institution. It may even be that an institution has no entrance requirements and does not look at a person's educational achievements at all. We believe that it could be necessary for information on such achievements to be available in order to construct the base-line against which the value of the input made by the institution could properly be measured. The amendment which I now put forward would enable this more meaningful comparison to be made and the noble Lord, Lord Peston, will doubtless recognise it as being along similar lines to the one he proposed in Committee.

Finally, I should like to remind your Lordships that, as I said on Report, we are not giving a commitment now to require the publication of the information in question. The Government agree that it could be useful to young people, parents and employers, but more thought is needed as to how it can be presented in as useful and straightforward a way as possible.

I now turn to Amendment No. 34. This amendment would provide that any information which the Secretary of State required the governing body of an institution to publish under Clause 48 should not name any student to whom it relates. The Bill, as drafted, would prevent the publication of any information that has the effect of disclosing the name of a student. We now realise that this wording could unduly restrict the range of information which an institution in the further education sector might publish. For example, it might prevent a college from publishing results where only one student has taken a particular qualification because it could be argued that to do so could lead to disclosure of the identity of the student. It is not uncommon for colleges to have single student entries; for instance, the occasional Greek A-level or one of the more specialist national vocational qualifications. I commend the amendments to the House.

I beg to move Amendments Nos. 33 and 34 en bloc.

On Question, amendments agreed to.

Clause 52 [Duty to give information to the funding councils]:

Lord Cavendish of Furness moved Amendment No. 35: Page 40, line 13, at end insert: ("( ) Such information relating to the provision which has been made by a local education authority in respect of any pupil at an institution as the authority may require for the purposes of claiming any amount in respect of the pupil from another authority under section 51 of the Education (No. 2) Act 1986 or by virtue of regulations under section 52 of that Act shall, where the institution becomes an institution within the further education sector, be provided to the authority by the governing body of the institution.").

The noble Lord said: My Lords, on behalf of my noble friend Lord Belstead I wish to move this amendment. As with the amendment to Clause 37, this amendment has arisen as a result of discussion with the local authority associations. Under existing legislation local education authorities can make recoupment claims in respect of tuition provided in colleges in their area for pupils from outside their area. In most cases they can only do so on the basis of information provided by the colleges.

When the new sector is established those arrangements will come to an end as funding will relate to the number of students in a college rather than, under the local authority funding arrangements, to their place of residence. Claims for the period up to 31st March 1993 will remain to be settled between local education authorities. The amendment therefore adds a further duty to those placed upon college governing bodies; that is, to provide a local education authority with such information as it may require in connection with such claims. This amendment has also been introduced in response to a specific concern. I hope the House will welcome it. I beg to move.

On Question, amendment agreed to.

[Amendment No. 36 not moved.]

Clause 54 [Directions]:

Lord Kilmarnock moved Amendment No. 37: Page 41, line 16, leave out subsection (2) and insert: ("(2) If the Secretary of State has reasonable cause to believe that there has been a want of due care in the conduct of the financial affairs of any institution to which this Part of this Act applies, being an institution substantially funded by one of the further education funding councils, he may, having undertaken consultations with the relevant funding council and having afforded an opportunity to the institution to make representations, give such directions as may appear to him to be expedient to rectify such financial situation.").

The noble Lord said: My Lords, as the noble Lord, Lord Annan, is not apparently in the Chamber I hope I may be permitted to move this amendment as it also bears my name. In moving this amendment I wish to return to what the noble Lord, Lord Belstead, said in his reply to me on 16th January at col. 449 of the Official Report when I moved an amendment to what was then Clause 53. Noble Lords will recall the Government had tabled amendments on Report to the higher education end of the Bill which eventually did not find favour with your Lordships. My aim at the time was to extend a similar provision to what was then Clause 53 at the further education end of the Bill.

The noble Lord, Lord Belstead, would then give no such commitment. After paying lip service to the achievements of the colleges, he expressed strong reservations. He said: However, it is quite a big step from there for the Government to say that we have the confidence to limit our long stop powers to intervene in the event of something going very wrong with one of the colleges and the funding council accounting officer failing to fulfil his responsibilities. For that would be the effect of these amendments. They would impose very important constraints. They provide that the Secretary of State may not frame directions by reference to particular courses of study. That includes an institution's ability to offer particular courses or programmes. It applies to their content and it covers the way in which they are taught, supervised and assessed … In further education, however, it is a fact that, successful as they have been, many of the colleges are not long-standing and do not have a track record which can compare with that of our historic universities".—[Official Report, 16/1/92; col. 449.]

Whatever the Government's protests that they would be most unlikely to invoke such powers, a careful reading of that passage would seem to me to indicate that the Government want the power to frame directions by reference to particular courses of study, including an institution's ability to offer particular courses or programmes. The Government want to have the ultimate power over what is taught, supervised and assessed.

Apart from the fact that many further education institutions resent the rather disparaging reference to their track record, I suggest it would be a great mistake to go down that route. It does not accord with what the noble Lord, Lord Belstead, said on Amendment No. 29 moved by the right reverend Prelate when he said that curriculum decisions are for governing bodies. I particularly noted his remarks on that amendment.

Most principals—this applies both to further education and to sixth form colleges—welcome incorporation and the greater flexibility and freedom this will bring. They are not against local education authorities. They believe this move is in the national interest and in the interest of the individual. They therefore support the structural changes in the Bill. At the same time they are increasingly concerned by the powers the Government are taking to interfere with their curricular freedom. Academic freedom may sound more highflown and have a more emotional appeal but the essential freedom for colleges is to put on courses which they know students want and in the shape and form students want.

As one principal put it to me, young people have a sixth sense about what will be of interest or importance, for example media studies or leisure activities which are coming fast up the track. That is emphatically not something the man in Whitehall knows best about. The signals to the colleges should come from the students themselves in possession of the latest labour market information and good careers advice.

In a fast-changing scene old-fashioned manpower planning is totally discredited. For example, government pressure to increase courses in science and engineering has been counter-productive in terms of student response, while employers do not necessarily want candidates who have studied engineering when some higher education institutions offer engineering places in return for two A-levels at grade E. Not unnaturally employers prefer students with high grades who have demonstrated success in some other field.

A strong, self-confident further education sector, working with the grain of well-informed demand, can and will deliver the goods, provided only that the Secretary of State and his civil servants keep out of curricular matters. There is already a track record of notable successes. For example, sixth form colleges have dramatically increased the staying-on rate in many areas. That has not been at the expense of other further education establishments. That success has to a great extent been due to the varied mix of courses which they offer. For example, I understand that 40 per cent. of A-level candidates in sixth form colleges straddle the science/arts divide. The colleges are becoming so popular in many areas that they are turning students away. In the further education sector colleges are working more closely with the TECs and industry. Both links demand a free hand in devising tailor-made courses to meet particular needs.

Against that background, though they believe the potential of the sector to be enormous, college principals are understandably anxious about a number of issues on which I hope the noble Lord can give us some assurances. Those are: first, that funding will be on a per capita basis and the funding councils will not be required to fund on a quota basis certain courses selected by the Government; secondly, that offers by colleges will not be restricted to accommodate the sixth forms of grant-maintained schools; and, thirdly, that the freedom enjoyed to offer BTEC, City and Guilds and other similar courses will not be narrowed under the new NCVQ arrangements. What can the Government tell us about their intentions in those areas? We need to know.

There is a final question, which I am sure the noble Lord, Lord Annan, when he speaks, will put to your Lordships. I am speaking in his place only because he was a minute or two late in arriving in the Chamber. Sauce for the goose ought to be sauce for the gander. The goose of higher education will not be fattened and will not expand as we all desire if the gander of further education does not have the same free-range facilities which produce the best eggs. A major increase in participation in higher education will not be possible unless it is nourished by the further education sector. Nor is the distinction between the two sectors rigid.

There is already a growing further education-higher education interface. For example, joint arrangements exist between Solihull further education college of technology and Warwick University whereby the college prepares students to enter the second year of a degree course at Warwick. Such arrangements between colleges and polytechnics across the country are growing. That is a route which brings more people without traditional A-level qualifications into higher education, which is surely one of the Government's objectives.

In the light of those developments, to treat the two sectors in different ways is a form of discrimination which will not be fruitful. Any curtailment of control of the curriculum in a sector serving such an extraordinary diversity of students must be misguided. That is why the amendment would make a major improvement to the Bill. I beg to move.

Lord Campbell of Alloway

My Lords, originally this was my amendment but I have changed my mind. On balance I oppose the amendment. Perhaps it would interest your Lordships to know why I have changed my mind.

The form of drafting of Clauses 53 and 77—now Clauses 54 and 79—as originally proposed obscured for me the substance of the disparity as between further education under Part I and higher education under Part II. Such was the case when I tabled the amendment, and the noble Lord, Lord Annan, was good enough to support me. I was grateful to him.

The amendment is now supported by the noble Lord, Lord Kilmarnock. With the greatest respect to him, I do not think that the analogy of the goose and gander is apt as between the position in relation to Part I and the position in relation to Part II. The amendment is also now supported by the noble Baroness, Lady Blackstone.

I have been put under no pressure. My change of mind is not part of any deal. The position is simply that having considered the matter with some care and taken the advice of certain academics, all of whom I see present, I concluded that I am no longer able to accept the proposition of the noble Baroness, Lady Blackstone, that in a free society the principle of academic freedom is indivisible as between colleges and universities, as the noble Baroness said at col. 453 of Hansard of 16th January 1992. At that time I nodded my assent.

Secondly, I accept the need for disparity of treatment referred to by my noble friend Lord Belstead at col. 449, not only on the track record argument but for many other reasons given in the advice that I have received. Thirdly, according to the advice which I have received, in this arena the Secretary of State must have power to protect the £2 billion a year which is at stake if he is to act responsibly as Secretary of State and any limitations by specific designation would not be appropriate as establishing a list as it would exclude other situations in which those powers ought not to be exercised and would therefore provide a possible loophole. This is not a situation in which any responsible Secretary of State ought to be confronted with possible loopholes.

It is with considerable hesitation and reluctance that, on balance, for those reasons I have changed my mind and accept that Clause 54(2) of the Bill is the only responsible way in which the scheme for further education under the Bill can operate. There is, after all, a residual safeguard; namely, a direction embodied in orders made under statutory instrument under Clause 87 subject to negative resolution.

Having said on the second day of the Report stage that I took the view that unless Clause 53 was amended substantially to avoid directions to any specific institution I would support the noble Baroness, Lady Blackstone, on her amendment that Clause 53, as it then was, do not stand part of the Bill, I felt that I owed the House an explanation of my change of mind.

Some additional factors have been brought to my attention. First, the new further education sector will comprise some 500 colleges of many types and sizes. Secondly, the powers being sought under Clause 54 will bear on the funding council and not directly on the colleges. They are considerably less interventionist than the existing powers of LEAs over a wide range of institutions. Lastly, indirectly many colleges, particularly small and fragile ones with only a few hundred students, are likely, I am advised, to be reassured by the fact that the Secretary of State has chosen not to limit his institution-specific direction-making power. I say that I am advised because I lack the first-hand knowledge requisite to form a useful judgment. I hope that your Lordships will accept my explanation.

Lord Annan

My Lords, the reasons which the noble Lord, Lord Campbell of Alloway, has given are those which the noble Lord, Lord Belstead, himself gave: namely, that there is great disparity among the colleges; that some are very fragile; and that some do not have sufficient experience. However, the Government took cognisance of those points when they set up a funding council. The only reason I put down the amendment was the old principle of "Why keep a dog and bark yourself?". The council has been set up with Mr. Stubbs, an excellent choice, as its chairman. It is certainly a name which gives great confidence to those who have read constitutional history. I can see no reason why one cannot leave the matter to the council. The council is the body which ought to solve those problems. That is why I put my name to the amendment.

Baroness Young

My Lords, I well understand why the noble Lords, Lord Annan and Lord Kilmarnock, and the noble Baroness, Lady Blackstone, have tabled the amendment. As the noble Lord, Lord Annan, said, it runs in parallel to the many discussions that we have had, and no doubt will have, on Clauses 66 and 79.

The noble Lord, Lord Annan, dismisses rather too easily the argument that further education is in a different position from higher education. At a future date it may well be that further education under the funding councils ought to have all the freedom that we wish higher education to have and, I am glad to say, will have with the amendments before us today. However, the truth of the matter is that one must look at history. My noble friend Lord Campbell of Alloway made many of these points. There is an enormous variety of further education institutions, ranging from quite large further education colleges, to small sixth form colleges, some of which do not have more than 500 pupils. They have been under local authority control. That is a far greater control than will be the case under the new funding councils. The Government believe that it would not be wise to move from the present position to the arrangements which now apply to higher education. Universities have had years of experience of receiving government money. Polytechnics too have considerable experience. With £2 billion of funds going into further education, the Secretary of State will quite properly ask for further powers. I cannot support the amendment because I believe that further education represents a different situation from higher education.

Baroness Blackstone

My Lords, at every stage of the Bill I have registered my anxiety about the power of the Secretary of State to interfere in the work of individual institutions in the further education sector.

I do not wish to go over the ground again. I wish to reiterate that the power is just as unnecessary with respect to further education as it is to higher education for exactly the reasons that the noble Lord, Lord Annan, has given.

What is a funding council for if it is not to ensure that institutions shall be financially responsible? I must disagree with the noble Lord, Lord Campbell of Alloway. I am not sure from whom he obtained his advice. He states that he spoke to academics. I regret to say that most academics with whom I am acquainted know absolutely damn all about what goes on in further education. Most of them have never been into a further education college and are therefore not qualified to make judgments on the matter.

A considerable amount of advanced work goes on in further education colleges. It is true that it is diverse, and will be more so after the Bill, with small sixth form colleges coming from the local authority sector into the new sector. We have always said that they should have stayed in the local authority sector. However, even with the addition of those colleges it will be for the funding council to ensure that they are financially responsible. I am sure that most principals of sixth form colleges would find some of the remarks made by the noble Baroness, Lady Young, a little insulting. Although not large, it does not mean that they will not be and are not financially responsible.

As well as undertaking a considerable amount of advanced work in the FE colleges, it is sometimes forgotten—I wish to remind noble Lords—that a high proportion of students in further education are over 18. They are adults. We are not talking about the teaching of 16 to 19 year-olds. Despite what the noble Lord, Lord Campbell of Alloway, said, I repeat that academic freedom is indivisible. We cannot say that it applies to some post-school education institutions and not to others. Everything that the noble Lord, Lord Kilmarnock, said on the matter is absolutely right.

It is interesting that the Government have deemed it fit to treat the two sectors in the same way with respect to Amendments Nos. 12 and 13. I am glad that the Minister introduced the amendments earlier and applied them to FE. I do not know how the Government will respond to Amendment No. 45 in the name of the noble and learned Lord, Lord Simon of Glaisdale. But Amendment No. 37 is similar to Amendment No. 45, the effect of which allows the Secretary of State powers of last resort—which he says that he wants—to intervene where he has reasonable cause to believe that there has been irresponsibility in the running of an institution's financial affairs. Perhaps the noble Baroness, Lady Young, ignored that when she spoke.

It also requires the Secretary of State to consult the relevant funding council. That must surely be right. Indeed I cannot believe that any Secretary of State would want to intervene without doing that first. It also requires the Secretary of State to allow the institution to make representations before he makes directions. Again the Secretary of State would surely wish to do so in those circumstances.

Taking all those arguments into account, I do not understand why the Government have difficulty in accepting the amendment. The provision would reassure principals of further education colleges. They have recently issued a statement in which they say, In particular we are concerned at the wide extent of the Secretary of State's powers contained in clauses 7 and 54 and strongly support their limitation to financial matters". That is what the amendment seeks to do.

The Government have listened to the vice-chancellors and principals in higher education on Clause 79. I hope that they will listen to the FE college principals. To do otherwise would be to misunderstand the importance of academic freedom across our system of post-school education.

7.15 p.m.

Baroness Perry of Southwark

My Lords, the House is in danger of being misled into the belief that the power is somehow strange and new and has never existed before. It is important to remind the House that until 1987 the Secretary of State approved every individual advanced course, whether it was in a further education college or in a polytechnic. Every single new course had to be approved first by the local education authority and then by the Secretary of State himself or herself. It is not a new power. It was a longstanding tradition that courses in further education had to be individually approved. I welcome, as I am sure do the principals and staff of the colleges, the removal of the detailed power on the part of the Secretary of State. Nevertheless it is a relatively new experience for colleges to have been able to consult only their local education authorities and not the Secretary of State on every new course that they ran.

I remind the House that the local education authorities have been running those colleges and indeed still do so as we sit here today. They have had day-to-day control over everything that they did, including the teaching and the courses that they ran. It is not a sudden imposition and a taking away of freedom. It is a gradual moving of those powers away from the local education authorities to the funding council, giving the Secretary of State power to intervene if and when desirable and necessary. Because of all the reasons that my noble friends have stated, because they are moving into an era of greater freedom and self-management, I believe that the colleges will need much help in this transitional phase. I look forward to the day when such powers will not be needed. It is important that in the interim transitional period it will still be possible not only for the funding council but also the Secretary of State at times to be able to intervene.

Lord Peston

My Lords, perhaps I may rebut what the noble Baroness said. I am sure that she believes strongly in what she said. However, it is incompatible with the Bill that the Government have put forward. The rationale of this part of the Bill is to free the further education sector from any kind of detailed interference. It looks as though the Government have lost their nerve at some critical point. Having seen the logic of what they are doing, they have tried to back away. The central point has nothing to do with interference in the sense in which the noble Baroness was speaking. The central point is precisely that which the noble Lord, Lord Annan, made: that we have set up a funding council to do all the things that the noble Baroness, Lady Perry, has said may need to be done in the interim.

The Government ought to have a bit of courage in promoting their own legislation and carry through the logic, and not keep a power which says that they actually do not believe that the reforms to be introduced will work. That is why I am deeply sorry that the noble Lord, Lord Campbell of Alloway, has been persuaded to change his view on this matter. His original view was correct; namely, that the Government had a logical position, about which at the very last minute they became slightly frightened. The amendment is trying to say to the Government, "Why not have some confidence in your own legislation?"

Lord Addington

My Lords, I have never been sure where further and higher education stop. I think that they overlap. Surely we should be applying the same principles to the institutions which deal with these two powers, which are emerging along a very jagged line.

Lord Belstead

My Lords, the clause is founded on the proposition that the Secretary of State needs a longstop power of intervention in order to protect taxpayers' interests in the considerable sums of public money that do flow and will flow into further education in the form of grant to the funding councils. My noble friend Lady Young is quite right in saying that we are talking of a figure of about £2 billion a year.

However, the amendment provides for any directions in respect of an individual institution in all cases to be confined to supervising finances. While I accept that any direction would be most likely to be in response to an institution's financial situation, it is in the nature of this power that it would come into use only in very exceptional circumstances. Those circumstances would not necessarily always be financial ones.

As I have already said in debate on this matter, the colleges that will form the new further education sector will be many and various. As my noble friend Lord Campbell said, there will be about 500 such colleges, some with only a few hundred students and many of relatively recent origin. It is no discourtesy to that sector, but simply a recognition of the comparatively short length of time some of the colleges have been in existence, to say that their track record simply is not the same as that of the higher education sector and the polytechnics and universities. Nor will that sector have had the benefit of any prior experience of centralised funding arrangements when they come into the new sector, unlike the polytechnics and colleges of higher education in the period before they became independent of local authorities.

It is against that background that I hope your Lordships will understand why the Government do not feel able to accept that the power of making institution-specific directions should be limited to a situation in which there is financial mismanagement. It is for this reason that the Government have not brought forward an amendment to this clause analogous to Clause 66, which we still have to come to, which is the amendment the Government have tabled to Clause 79.

I owe the House a very brief additional word to flesh out why I said earlier that the Government did not like the amendment because it dealt only with finances. The colleges provide an enormous number of courses ranging from sixth form colleges offering mainly A-levels to those offering the whole range of further and higher education. In some parts of the country sixth form colleges are the main local providers of A-level courses. An example of why we believe the Secretary of State needs an institution-specific direction-making power not confined to cases of financial management in this sector (not higher education) is the need to deal with a situation, however unlikely it might seem, in which a college in a particular area were to refuse to offer crucial A-levels and the funding council were to decline for whatever reason to take any action. We would be dealing with a situation where that would be absolutely essential for the school career of pupils between the ages of 16 and 18.

The noble Lord, Lord Peston, will say to me it is all very well to say that but it is absolutely inconsistent with the rest of the Bill. I remind the noble Lord of the point put so pertinently by my noble friend Lady Perry. Until 1988 (only three years ago) advanced courses were subject to central approval. By contrast, we are indeed setting colleges free. Under the new funding regime they will be free to offer whatever courses they choose subject to any guidance from the funding council. The thrust of what we are doing is, as the noble Lord says, a logical one. But I believe that what my noble friend Lady Perry said has validity. College principals may well welcome the provisions of Clause 54 as a safeguard as they move into new territory. I remind your Lordships that as far as being funded by a central funding council is concerned it is for them uncharted territory. It is for those reasons that I resist this particular amendment.

Lord Kilmarnock

My Lords, I am grateful to all noble Lords who have spoken in this short debate. I am surprised that the noble Lord, Lord Campbell of Alloway, did a complete U-turn. I thought that he might have reached a position of abstention without going the whole way.

On the question of academic freedom, although I accept it as a principle I draw some distinction when I talk about curricula freedom. What is really important in the further education sector is that they should be able to make the academic, educational and business-type mix which is suitable for their area. I profoundly hope that the Government will not interfere unnecessarily in that area.

We all agree that £2 billion a year it is an enormous sum of money, but I would have thought that Clause 55, unless amended by my Amendment No. 38, would give the Government absolutely swingeing powers in the case of mismanagement, whether or not of a financial nature. That does not exist in the second half of the Bill but it exists here. It is a very powerful instrument in the Secretary of State's hands. I believe this is a situation of overkill. I am absolutely on all fours with the noble Lord, Lord Annan, when he says in reference to the funding councils, why keep a dog and bark yourself?

There was one point from which I derived a glimmer of hope. I refer to the speech of the noble Baroness, Lady Perry. She talked about a transitional phase. I believe it would be of great help to the further education sector if the Government viewed it in that light and reconsidered these powers in the light of the development of the sector once the Bill was passed. The noble Lord, Lord Belstead, said that college principals might welcome the powers in Clause 54. That is not the impression I have gained from them.

I know that all of us are anxious to move on to other matters which some noble Lords consider to be of more importance. I will not divide the House on the issue this evening but I say to the Government that I think this is a very important sector. There is a dual track for the expansion of further and higher education and the two must go hand in hand.

I hope that in future we revert to these matters, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 [Intervention in the event of mismanagement or breach of duty]:

[Amendment No. 38 not moved.]

Clause 62 [Transitional arrangements]:

Lord Belstead moved Amendment No. 39: Page 46, line 31, leave out ("section 33") and insert ("the corresponding provisions").

The noble Lord said: My Lords, I beg to move Amendment No. 39. The amendment will ensure that the reference to the Further and Higher Education (Scotland) Bill remains correct if the clause numbers of that Bill change as it is amended during its passage through Parliament.

On Question, amendment agreed to.

7.30 p.m.

Clause 63 [Administration of funds by councils.]

Lord Renfrew of Kaimsthorn moved Amendment No. 40: Page 47, line 38, leave out ("subject to that").

The noble Lord said: My Lords, the amendment has already been spoken to. I understand that it is accepted by the Government, so I beg to move.

On Question, amendment agreed to.

Clause 64 [Administration of funds: supplementary]:

Lord Belstead moved Amendment No. 41: Page 48, line 22, leave out ("a majority") and insert ("at least one quarter").

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 42: Page 48, line 24, leave out second ("or").

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 43: Page 48, line 25, leave out ("all or most") and insert ("any").

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 44: Page 48, line 29, at end insert ("or ( ) any of the property held for the purposes of the institution is held on trust for or in connection with—

1. (i) the provision of education, or
2. (ii) the conduct of an educational institution, in accordance with the tenets of a religion or religious denomination.").

On Question, amendment agreed to.

Clause 66 [Grants to councils]:

Lord Simon of Glaisdale moved Amendment No. 45: Page 49, line 19, at beginning insert ("Subject to subsection (2) below").

The noble and learned Lord said: My Lords, this is a paving amendment for the substantive amendment, Amendment No. 46. I shall speak briefly also to Amendments Nos. 47 to 51. This is an amendment to the first of two clauses that have been widely seen as threatening academic independence, the other being Clause 79. They give alternative approaches to the Secretary of State's power to intervene in the affairs of universities. The intervention might vary from the merest bureaucratic interference to gross political interference, the one shading off to the other. In the 1988 Bill such provisions were amended to safeguard against Executive intrusion. They were the counter-parts of Clauses 66 and 79, the reason being that they are two barrels of the same weapon.

Clause 79 gives the Secretary of State power to intervene by direction. Clause 66 gives him the power to intervene with the same object, but this time by annexing conditions to grants. It is universally accepted in your Lordships' House that academic independence should be respected. That has been so from when government first funded higher education. Even in the last century, the Minister was responsible to Parliament for the payments. He paid the piper, but, in wisdom, did not insist upon calling the tune; no more, for all its interest in the taxpayers' money, did Parliament so insist.

What has happened to change that position? My noble friend Lord Dainton explained on Second Reading that from the beginning the arm's length approach was accepted; in other words, although the Minister was responsible to Parliament for the payment, and responsible in that sense for the taxpayers' money, nevertheless he did not intervene, he did not exercise the power of the purse; he did not call the tune. That situation went on until 1988. In 1988, both those powers were taken in the Bill as presented to Parliament: the power to give directions or the alternative approach, the power to annex conditions to grants. There was universal protest from the academic world. I have only an honorary connection with that world, but I share fully the apprehension expressed then and now at what the Government propose.

Finally, in 1988 the Government yielded to the arguments and the pressure and brought forward amendments on Report in another place, having promised them in Committee. This is the crucial point: the Government amended not merely the counterpart of Clause 79 but the counterpart of Clause 66. That was necessary because, being a double barrelled gun, the safety catch had to be fitted to each barrel, and that was done.

The next event, when all seemed safely tied up, was the action before Mr. Justice Simon Brown, to which the noble Lord, Lord McCarthy, referred in Committee and on Report. The Secretary of State then sought to obtain three things by annexing conditions to a grant. He withheld £13 million of the sums he was prepared to grant, on condition that the institution satisfied, broadly speaking, three things: first, greater accountability by teachers for their time spent in teaching; secondly, a more flexible deployment of teaching staff; and, thirdly, an appraisal of their situation. That was the case as it came before Mr. Justice Simon Brown, because the teachers' association did not found its case on the unreasonableness of the condition, merely upon the fact that it infringed the provision that had been inserted by the Government on Report in another place.

The learned judge upheld that contention. There are several disturbing things about that action. The first is that the intervention by the Minister was by no means a matter of last resort. On the contrary, it was a mere piece of bureaucratic intrusion into matters that would normally be considered to be the affair of the institution in question. Secondly, counsel for the Secretary of State advanced an argument justifying what had been done. That argument did not succeed, as your Lordships are aware, but if it had it would have driven an articulated lorry through the 1988 Act provisions. It would certainly have entirely nullified the concessions which had been made. In that connection, I call to mind that spokesmen for the department have on several occasions said that this Bill as it now stands, which reproduces the 1988 Act as unamended, does no more than carry out the intentions at the time.

When the noble Lord, Lord Belstead, repeated that he was asked whose intention that was and he replied that it was the Government's intention. Of course, the Government were only one party to what took place in Committee, on Report and during the negotiations in 1988. There were at least two other parties: one was Parliament, the other was the Committee of Vice-Chancellors and Principals with which the concessions were negotiated. Therefore, it is neither here nor there that the Government hoped that the words would have a different meaning.

Under the rule of law, our rule of statutory construction is that it matters not at all what the promulgator of the document—in this case, the statute—means. What matters is the meaning of the words that have been given. That is the only approach which is compatible with the rule of law.

The rule of totalitarian societies is quite different. The German one has been studied in a book entitled In the Name of the Reich. However, we do not interpret statutes in the name of the government. That the Government hope that a concession they have made was really valueless is neither here nor there except in casting doubt as to how one should approach concessions belatedly offered on behalf of the Government.

That was the position in 1988. It is conceded that the Bill was presented in its present form because of the decision of Mr. Justice Simon Brown and to give back the powers that he held were improperly exercised in the action to which I have referred.

It is astonishing that any attempt to alter what the Government have done has been fought successfully inch by inch and foot by foot. Extraordinarily, one now has a Bill exactly as it was introduced on Second Reading.

I turn now to the amendments. The main amendment is Amendment No. 46. That is an amendment under which the Committee of Vice-Chancellors and Principals, speaking for the academic community, would feel safe. It would not feel safe under the amendments which have been grudgingly extracted.

Those other amendments fall into two groups. They both merely tinker with the wording of the provision under the statute which is quite unsuitable for discussion on Third Reading. I prefer the amendments tabled in the name of the noble Lord, Lord Peyton, the noble Baroness, Lady Seear, and myself. However, the Government have tabled an amendment in effect to change the very dangerous word "each" to "every".

The word "each" was recognised from the beginning as a dangerous word, allowing the Government to single out particular institutions. "Each", "every" and "all" are ordinary English words and should be construed as such. "Each" is defined in the Shorter Oxford Dictionary as: Every (one of two or more) regarded separately".

One asks how it is really possible, in view of that definition, that the Government have contested until today every suggestion that the word "each" should be changed to "every". That could have and should have been done in Committee but it is only now that it is being advanced. The Committee of Vice-Chancellors and Principals does not believe that the word "every" is entirely safe and it prefers Amendment No. 46.

In view of the matter which I have recited to your Lordships, is it any wonder that the academic community is somewhat suspicious and regards a late amendment like this one as a Greek gift?

Earlier I undertook that I would not endeavour to spell out the drafting niceties implicit in the different amendments tabled by the noble Lord, Lord Peyton, the noble Baroness, Lady Seear, and myself on the one hand and the Government on the other. The Government have moved on this matter and, although I prefer the use of the word "all", I am not prepared to say that that is a matter on which I should divide the House at this stage of the Bill.

However, Amendment No. 46, being concerned intimately and ultimately with academic freedom, should be the stopping point. If necessary, I shall ask your Lordships in due course, if the noble Lord will not accept the amendment, to pronounce without hesitation that enough is enough and that the Government should now do what the academic community wants them to do.

The amendment is drafted in order to allow the Secretary of State to intervene in matters on which it is claimed on his behalf that it is necessary that he should have the power; in other words, conditions of gross financial mismanagement, where the funding council and institution have both gone off the rails—a matter of last resort. That is conceded. Beyond that the matter should not go. The amendment carefully concedes what the noble Lord has required as regards Amendment No. 37. The noble Lord said that further education institutions differ from higher education institutions. In the former more is required than intervention on financial grounds. In effect he said that higher education differed in that respect. There all that is needed is an ultimate power to intervene on financial grounds. Without hesitation, I beg to move.

The Deputy Speaker (Lord Skelmersdale)

My Lords, as the amendment has been proposed as a paving amendment to Amendment No. 46, I should inform the House that if Amendment No. 46 is agreed to I cannot call Amendments Nos. 47 to 51 inclusive.

Baroness Blackstone

My Lords, in speaking to the amendments I shall be brief. I have little to add to what was said by the noble and learned Lord, Lord Simon of Glaisdale.

After all the anxiety expressed at Report stage from all sides of the House that the government amendment did not adequately meet the concerns in regard to this clause, and then the Government withdrawing the amendment, I am surprised that they can do no better than return with the same amendment. That is extremely surprising and a let-down for us all. I am surprised also that the Government did not think it fit, indeed necessary, to consult with the Committee of Vice-Chancellors and Principals on the matter, despite a number of requests that they should do so.

The problem with the clause at present is that it is open to a number of interpretations and there seems to be no agreement about what is the right one. I am not a lawyer and do not claim to understand all the legal niceties of the many variations discussed with regard to some of the phrases in the clause. In those circumstances I must accept the advice of the Committee of Vice-Chancellors and Principals' lawyers, who share the view of the noble and learned Lord, Lord Simon, that the clause would allow the Secretary of State to use the funding councils as a conduit pipe to a specific institution. I shall not go into the arguments regarding the use of the phrase, or each institution falling within a class or description". That was done on a number of previous occasions, in particular by the noble and learned Lord, Lord Simon of Glaisdale, and others who are much better qualified than I.

I support the amendments, which seem to get us out of our difficulties and provide the safeguards that we require. In supporting the amendments and speaking personally I know that I reflect the views of my colleagues who are vice-chancellors and principals of other institutions, all of whom entirely understand the need for financial accountability and indeed for responsibility in financial management. At the same time they are frightened that the clause unamended would give rise to undesirable and unnecessary political interference. As the Opposition Front Bench spokesman, let me also make clear that the Labour Party believes that such interference would be highly undesirable as well as unnecessary. We therefore strongly support the amendments.

Lord Jenkins of Hillhead

My Lords, in some ways I should have preferred the main debate on academic freedom to have taken place in the debate on Amendment No. 53 tabled by the noble Lord, Lord Beloff. However, as the debate seems to be developing perhaps I should intervene now and support the amendment tabled by the noble and learned Lord, Lord Simon of Glaisdale.

The history of the issue over the past 11 weeks has been a striking illustration both of the instinctive wisdom of this House and of the danger of weakness in implementing it. At Second Reading, on 16th November—that now seems a long time ago—there were 36 non-government speeches. Of those 36, 28 expressed anxiety in regard to Clauses 64 and 77, as they were then. The noble Lord, Lord Pearson of Rannoch, was the only noble Lord to support the Government. Eight noble Lords did not mention the issue. I guess that a good half of them, including the noble Baroness, Lady David, would have been on the side of the critics had she mentioned it, but was no doubt eager, as were others, to save time. It was an overwhelming deployment of the case. The noble Lord, Lord Belstead, said that he would take the matter away and reflect on it. He could hardly do less in the circumstances.

We came to the Committee stage on 16th December and the Chamber was even more unitedly hostile to the threat contained in Clause 64, as it still was, and indeed Clause 77. The hostility came from every quarter of the Chamber on that occasion in a way one rarely sees. The Minister at that stage said that he may produce some government amendments, whereas previously he had merely said that he would consider some Back-Bench amendments.

We waited until 20th January, when we came to the third stage, and the Minister brought forward what was generally agreed to be disappointing to the point of unacceptability. I well remember the debate in which the noble Lords, Lord Campbell of Alloway and Lord Peyton of Yeovil, and the noble and learned Lord, Lord Simon, who moved this amendment, made speeches of memorable force, as indeed did many others. Nevertheless, at the last moment we did not vote. I thought it was a mistake not to vote when we had reached that stage.

My experience with the 1988 Act was that when the right reverend Prelate the Bishop of London, as he then was—alas, he is no longer with us in this House—and I moved an amendment on academic freedom, we hesitated for a moment as to whether or not to vote. We voted and carried the amendment. The then Secretary of State fulminated against it and said that he would put the issue back as it was before. In fact he did not do so. The lesson I draw from that is that when your Lordships, by a substantial consensus, feel strongly about an issue, there is a great deal to be said for voting for changing the Bill and seizing the interior lines of communication rather than constantly pleading with the Government from outside the citadel.

The Paymaster General is particularly good at avoiding matters ever being brought to a head and making us feel ungrateful if we even suggest that they should be. Today he has brought forward something substantially better in Clause 79 as it is to become, but Clause 66 remains as objectionable as ever. If we allow it to stand we shall be showing how easy it is, through a mixture of courtesy, patience and salami tactics, for a skilled government spokesman to disperse even the more formidable array of informed opinion in this House, which could hardly have been greater than it was on Second Reading, at Committee and on Report.

Academic freedom is surely an issue on which your Lordships' House is entitled to express an effective view. When the volume of university experience contained here, fortified by the legal acumen of the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Simon, and fortified also by the libertarian common sense of the noble Lord, Lord Peyton of Yeovil, with his great experience of government, are unanimously united, surely the House of Lords should express a firm and effective opinion. I hope tonight that the House will vote, and vote successfully, for the amendment tabled by the noble and learned Lord, Lord Simon of Glaisdale, and then for that of the noble Lord, Lord Beloff.

Lord Renfrew of Kaimsthorn

My Lords, there is much in what was said by the noble Lord, Lord Jenkins of Hillhead. However, he overlooked one crucial point; that is, that since many of us spoke to point out to the Government the deficiencies of Clause 66 at Second Reading, at Committee and Report stage, the Government have tabled amendments which have widely been found to be satisfactory. The noble Baroness, Lady Blackstone, also omitted to make reference to that circumstance in her speech. The noble and learned Lord, Lord Simon of Glaisdale, did so, but the issue before the House is not whether we need an amendment but whether we have got the amendment we need.

I believe I am not mistaken in feeling that Amendments Nos. 45 to 51 are grouped. I hope therefore that it is not inappropriate for me to refer to my noble friend the Minister's Amendment No 47 together with Amendment No. 50 before he himself speaks to it. I hope that it is not inappropriate to do so as these amendments are grouped.

Baroness Blackstone

My Lords, perhaps I may clarify the situation. My understanding is that Amendments Nos. 45 and 46 are grouped, but Amendment No. 47 and the other amendments will come later and that we shall have a separate debate on them. Can that be clarified?

Lord Belstead

My Lords, it may be that they do, but the noble and learned Lord, Lord Simon, spoke to Amendments Nos. 47 to 50 as well.

Lord Renfrew of Kaimsthorn

My Lords, the noble and learned Lord, Lord Simon, said that he was also speaking to Amendments Nos. 47 to 51. The noble and learned Lord will correct me if I am mistaken. In addition, as Amendments Nos. 45 and 47 are clearly alternate, it is scarcely possible to speak to the one effectively without addressing the other.

Lord Peston

My Lords, I cannot see that Amendments Nos. 45 and 47 are alternate. Technically, if Amendment No. 46 were carried, the subsection would disappear and the other amendments would not be debatable. But that is a different matter. They are not alternate in the sense of dealing with the same problem. It just happens that technically, if Amendments Nos. 45 and 46 are carried, the Government would have to return with another form of words. Although I believe we can speak on anything we like, the grouped amendments are as my noble friend said.

Lord Renfrew of Kaimsthorn

My Lords, they were originally grouped on the list of groupings. The noble and learned Lord, Lord Simon of Glaisdale, who requested an uncoupling as regards Clause 7, has addressed himself to the complete suite of amendments. More substantively, the point that we are discussing is how Clause 66 should read. That is the issue to which I am addressing myself.

The point is that we have before us a very satisfactory reading for Clause 66. Many of us spoke with considerable concern and anxiety in relation to the existing Clause 66, focusing on the word "each". It is that word to which the noble and learned Lord has substantially addressed himself. It was agreed on many sides, and it is fair to say, that the Government were slow in bringing forward an amendment dealing with this issue. They have now brought forward an amendment which deals with the matter effectively.

It is necessary to deal with the matter in context as indeed the noble and learned Lord, Lord Simon, did, which is to go back to the 1988 Act. That Act says at Section 134(7): The conditions subject to which grants are made by the Secretary of State to either of the Funding Councils shall not relate to the making of grants or other payments by the Council to any specified institution". That was the position reached then. Many members of the academic community have wished to return, as far as possible, to that position.

It turned out that, as a result of the ruling by Mr. Justice Simon Brown in the ACPT case, it was difficult for the Government to make a general condition of that kind and then to apply it to a specific institution which fell out of line. I, and I believe many of us, fully accept that the Government framed Clause 66 as it stands in the Bill unamended in order to deal with that matter. That is what so much concerned many of us at subsequent stages of the Bill. I am happy to say that the Government amendment very satisfactorily deals with the matter by leaving out the word "each" and, as was discussed by the noble and learned Lord, Lord Simon of Glaisdale, inserting the word "every". The provision is continued under Amendment No. 50 so that the matter is not caught in the twist which proved so difficult in the ruling by Mr. Justice Simon Brown—that is to say, being requirements to be complied with in the case of any institution to which the requirements apply". From the discussions that I have had with academics—I cannot speak for the Committee of Vice-Chancellors and Principals—and with many noble Lords who are here today and who are in contact with that committee, it appears that they are broadly satisfied with this amendment. There will still remain the issue of the further amendment proposed by my noble friend Lord Beloff. I shall not speak on that matter now. By their amendment the Government have met the concerns of noble Lords on both sides of the House.

It is perfectly reasonable for the noble and learned Lord, Lord Simon of Glaisdale, to argue that his amendment is preferable. However, I must point out one difficulty. I am sure that my noble friend the Minister will be able to deal with the matter more adequately than I. The difficulty is that the amendment (I do not speak as a specialist) proposed by the noble and learned Lord carries with it pretty much the same problems as turned out to pertain to the original wording of the 1988 Act. That is not surprising since it begins with precisely the same wording. There may be other problems concerning the amendment tabled by the noble and learned Lord, Lord Simon of Glaisdale.

It is for these reasons that in the end I believe that the House will have to chose which it prefers—that is to say, whether it prefers the amendment of the noble and learned Lord, Lord Simon of Glaisdale, or that of the Government. I am grateful that the Government have at last, albeit belatedly—here I accept the point made so eloquently by the noble Lord, Lord Jenkins of Hillhead—tabled an amendment which satisfies the position concerning the issue. It is certainly a much simpler and more concise amendment than the other on offer.

I am not speaking to Amendments Nos. 48, 49 or 51 which take another line altogether and which I believe implicitly have fallen by the wayside in these discussions. Ultimately the House will have to decide whether it prefers Amendment No 45, which we are primarily discussing, or Amendment No. 47. I feel that the Government have done very well in offering Amendment No. 47 and I propose to support it.

The Deputy Speaker

My Lords, before the debate proceeds, it is as well to repeat to the House what I said when Amendment No. 45 was proposed by the noble and learned Lord, Lord Simon of Glaisdale; namely, that as it is a paving amendment to Amendment No. 46, should Amendment No. 45 or Amendment No. 46 be agreed to, I cannot call Amendments Nos. 47 to 51 inclusive.

Lord Campbell of Alloway

My Lords, perhaps I may put forward very briefly a slightly different presentation from that of my noble friend who has just spoken, largely in deference to the contribution of the noble Lord, Lord Jenkins of Hillhead. It is a matter of extreme concern to the whole House. Put quite simply, we seem to have gone ahead a little to Clause 77. But we always do because that is the phantom that worries us. Suppose that we more or less dealt with the phantom under Clause 77, subject to a point of clarification as regards which I have tabled an amendment, can the Government, through Clause 66, in effect do what they might have done under Clause 77? I am putting the matter in child's language because it is a very simple problem.

I am not quite sure, and that is the problem. I am not saying that the Government will effect the change or that the party Opposite, if returned to power will, but that is not the point. The point is whether it can be done. We are a revising Chamber of the Houses of Parliament. I hope for correction if I am wrong. I have read Mr. Justice Simon Brown's judgment, but not for about three weeks. I seem to remember that it was what I call a "condition of grant situation" and not a "direction situation".

If my memory is right, it is strictly relevant and in point on Clause 66 before we reach Clause 79. Can we grasp the nettle now. If the case dealt with by Mr. Justice Simon Brown was a "condition of grant situation", then we know that the reason for Clause 66 was to override the reasoning of Mr. Justice Simon Brown. I am putting it quite simply. Why be complicated? This, as the noble and learned Lord, Lord Simon of Glaisdale, has said, drives the proverbial articulated lorry through the very concept of the safeguard of academic freedom that we are seeking to establish. That is the view of the noble and learned Lord. The noble and learned Lord's opinion on this is something to which I pay the very gravest respect.

Also, there is the CVCP. I do not know why it sends me briefs, but I received one this morning dated 31st January 1992. The CVCP should know, up to a point, what it is up to. It supports the amendment of the noble and learned Lord. What the situation is from here I do not know. I am extremely worried about it. If my simple analysis is right, I can only say that I am worried about it.

I do not take on board at all the technical considerations to which my noble friend the Minister has referred. First, I do not think that they arise; and if they do, as no manuscript amendments can be put down here, clearly one can invite the House at Third Reading to vote on the principle, leaving it to be corrected by another place later on. So I am putting aside all that I call "the clever stuff"—all the technical argument. But on the broad merits, where are we? Am I right to be worried about this?

Baroness Young

My Lords, those of us who are not lawyers have found ourselves in an extremely difficult position throughout the long discussions on both Clauses 66 and 79. I should like to start by saying that I believe that the Government have given us virtually everything that we have asked for, certainly on Clause 79 and personally I am satisfied on Clause 66. It is a matter of regret that this should have been described by the noble Lord, Lord Jenkins of Hillhead, in these rather grudging terms.

The House of Lords is a revising Chamber. It is quite right that we should have debated at considerable length the matter of academic freedom, about which we all feel so strongly; there is no monopoly on this anywhere. It is quite right that it should have been debated at the various stages. After all, in the whole process of the passage of a Bill this Bill still has to go to another place; it is only half way through its parliamentary process. The Government brought forward an amendment at Report stage which I think everybody agreed was unsatisfactory. So they went back and have now produced a series of amendments. I quite agree with my noble friend Lord Renfrew that, because of the way the amendments have been grouped, we can get ourselves into a lot of difficulties over this. The two government Amendments Nos. 47 and 50, amending Clause 66, are the alternative to what the noble and learned Lord, Lord Simon of Glaisdale has proposed.

I do not wish to speak at length on this issue because the points have already been made very well by my noble friend Lord Renfrew. To a large extent it is a matter of dispute between lawyers. In the considerable discussions that I have had, I believe—and I recall my noble friend Lord Belstead saying this at an earlier stage in the debate this afternoon on Clause 7—that the Government's interest in academic freedom and that of the universities is the same. There is no dispute about the objective; it is whether or not we have a form of words that meets the case. As a non-lawyer I found the long debate on what "each" means very interesting. It is rather comforting to know that it is better to say that it means "every", although it is not at first blush what most people would have thought, but at least it is now quite clear. That removes this great anxiety that conditions could apply to individual institutions.

I recognise that the Committee of Vice-Chancellors and Principals is worried about each institution falling within a class or description. My understanding is—as the noble Lord, Lord Renfrew, said—that it is to meet the result of the ruling on the case by Mr. Justice Simon Brown. I quite appreciate that it moves slightly beyond what was said in the Education Reform Act 1988. But, considering the responsibilities of the Secretary of State, this is something that I can accept. I have argued at each stage that I could not understand why the Government required greater powers than they already had in 1988. Now, with the amendments that have been brought forward, we have effectively put the position back to where it was, except in this particular point. For my part I am prepared to accept the Government amendments. I hope that the House will as well. We should be very grateful for the immense amount of work that I know my noble friend Lord Belstead has put into this, with such success. I have seen many things in political life but there is not always the most successful of outcomes at the end of it all. The House should be grateful. The Government have listened to the experience of the House of Lords and we now have a much better Bill as a result.

8.15 p.m.

Earl Russell

My Lords, I am sure that no one wished in any way to give the impression of sounding churlish towards the noble Baroness, Lady Young. This is not the first time that I have had to acknowledge the debt of the universities to the efforts of the noble Baroness. They have been considerable and they have been rewarded and I am sure that the House is very grateful. But when we began we had two causes of concern; the power to issue directives and the power to make terms and conditions. The noble Baroness has produced a completely satisfactory answer on one of them. But misgivings on the other remain. The third issue of the duration of courses is yet to come and I shall say no more about it.

It is a rule in politics, and has been for centuries, that when one tries to achieve reassurance by concessions the longer one defers the concessions, the bigger they need to be before reassurance is achieved. I hope the noble Baroness will take that into account. We are very grateful for what she has done, but misgivings still remain.

Lord Peyton of Yeovil

My Lords, I would not have ventured to weary your Lordships with any further observations had it not been for the kindly and extremely well meant remarks of the noble Lord, Lord Jenkins, about a previous utterance of mine. However, I have my name down to one of the amendments which we are now discussing and I would therefore trespass upon your Lordships' indulgence for a few moments.

There is no need for me to repeat now, at length, the reasons which I gave earlier as to why and how governments get themselves into these statutory messes from time to time. But I contributed—and I put this very briefly—to the procedures which permit an intolerable volume of legislation, a volume so great as to inhibit careful enough scrutiny at an early stage when the dangers might as a result become apparent; they do not.

As the noble Lord, Lord Jenkins, made very clear, at successive stages the Government's plight has been made very clear to them from both sides of your Lordships' House. For my part I would not wish to see amendments which my noble friend has now brought forward, submerged under the earlier one. I shall therefore not vote for the first amendment. It would be wrong to set aside as merely low cunning the efforts of my noble friend to meet the very proper demands of this House. I believe that he has had a considerable victory over what I earlier described as the forces of darkness, who had been so blind as not to see the obvious objection to the Bill as it originally stood. For my part, even though I do not feel that we are in an ideal situation, I believe that to dismiss my noble friend's efforts as mere cunning would be a cruel reward. I shall therefore not do so.

The Earl of Limerick

My Lords, I assume that we shall shortly be coming to a choice between the amendment in the name of the noble and learned Lord, Lord Simon of Glaisdale, and the amendment in the name of my noble friend Lord Belstead. That is likely to be the outcome in a few minutes' time. There are, I believe, two or three things which have not yet been said which are worthy of mention. First, it is absolutely true, as the noble Lord, Lord Jenkins of Hillhead, reminded us, that in Committee concern was expressed by the great majority of speakers on this issue. However, the noble Lord expressed his remarks as if nothing had changed since then. A great deal has changed. We have had a succession of amendments and debates as a result of which the Government have come forward with proposals which now stand on the Marshalled List. Indeed, the thanks of the House are due, as my noble friend Lady Young remarked, to the Minister for the success he has had in his arguments with the Department of Education and Science and for his willingness to engage in innumerable consultations to arrive at the situation expressed in his amendment. I therefore believe that he deserves support on the line that I assume he will take. It is right to say that my noble friend is not isolated in that line by any manner or means.

Secondly, the Committee of Directors of Polytechnics has issued a statement to the effect that the Government's position is now acceptable to it. The directors collectively have an interest in this issue just as does the CVCP. There was a leading article last week in the magazine now called The Higher—probably better remembered by noble Lords as The Times Higher Education Supplement—which came to the same conclusion. Thirdly, there is a mechanism of delivery whereby, through the Department of Education and Science and the funding councils, around £5 billion a year of public money is made available to institutions. We are in danger of overlooking this point. It would be naive to believe that any government could go farther than they regarded as wholly prudent in excluding areas from which they might be able to intervene if they really thought it was necessary.

I believe that this matter has been pursued as far as it can be in that regard. I speak as a chairman of a polytechnic. I speak for myself and I have to say that I find the Government's position on this matter to be now quite acceptable.

Lord Hatch of Lusby

My Lords, the noble Earl is quite wrong. The Committee of Vice-Chancellors and Principals has issued a statement, which I have in my hand, in which it supports the amendment of the noble and learned Lord, Lord Simon. The committee states quite specifically that it would like to see Clause 66 amended so that there is no doubt about the interpretation.

The Earl of Limerick

My Lords, the noble Lord is misquoting me. I referred not to the CVCP but to the Committee of Directors of Polytechnics as having issued this supportive statement. He will find that to be correct.

Lord Hatch of Lusby

My Lords, in that case I apologise to the noble Earl. I heard it as the Committee of Vice-Chancellors and Principals. That does not take me away from the point. The noble Baroness, Lady Young, is also wrong in considering that this a debate within the field of the law. It is not. It is a debate between the academic community and the politicians. It is within the academic community surely that one finds the safeguards for academic freedom. Surely it is one of the proudest possessions of this country that we have built up trust and confidence in our academic community to preserve academic freedom. That has to be preserved against the potential incursions of politicians. Those of us who have taught at universities abroad know from personal experience the danger to academic freedom in teaching, in appointing staff, in recruiting students and in the form of courses that comes from political interference. Surely the debate is about whether the Government can trust, will trust and do trust the academic community to lay down the bounds of academic freedom, to keep those bounds and to preserve that academic freedom against at least the potential interference of politicians.

I say both to the noble Baroness, Lady Young, and to the noble Lord, Lord Campbell of Alloway, that this is the issue that was debated at Second Reading, in Committee and on Report. It is still the same issue. In fact the Government have brought forward the same amendment that they had at Report stage. We have not reached it yet but that is the next amendment to be addressed. I have the full backing of my own university, the University of East Anglia, which supports what the Committee of Vice-Chancellors and Principals has laid down. It believes that the amendment of the noble and learned Lord, Lord Simon, is an amendment to protect academic freedom. The issue we are now debating is the issue between academic freedom as defined within the academic community and the dangers of the incursion of politicians.

I have one last word. Surely it is a test as to whether academic freedom is in danger if one compares two Acts of Parliament. The clause as it now reads will give the Government greater powers than they had in the 1988 Act. I am supported in that analysis by Sir Peter Swinnerton-Dyer, the former chairman of the University Grants Committee. If the clause gives the political world greater power, surely that in itself shows that this is an incursion into and a diminution of academic freedom. Those within the academic world have spoken out quite openly in support of the noble and learned Lord's amendment.

8.30 p.m.

Lord Dainton

My Lords, I have refrained from intervening in the debate until now simply because I think your Lordships know very well my own record on the matter of academic freedom from my speeches in the debates from Second Reading onwards and in the debates in 1988. Noble Lords may have known me in my capacity as an academic, and later as someone having to administer—if one can use that phrase: I use it well because it means ministering to the needs of the university system for five years.

I have in a sense been increasingly dismayed by what appears to be a sharp division developing in the House today. My own stance is as follows. I ask myself the question—as no doubt everyone, including the Government, will—as to whether we all adhere very firmly to the principle of academic freedom. Assuming that we do, we shall from that point of view judge whether the amendment proposed by the noble and learned Lord, Lord Simon of Glaisdale, gives more benefit than it does harm. Again on that matter, I have to tell myself that the benefit must be set against whatever benefit will be produced by the government amendments which are before the House and which we have yet to discuss.

My own point of view—and it is a matter of personal judgment; and I accept that others may take a different view—is that, as the noble Lords, Lord Campbell of Alloway and Lord Renfrew of Kaimsthorn, said, the government amendments go very nearly all the way, if not all the way, towards achieving what is required. We heard the noble Lord, Lord Peyton, say that the Committee of Directors of Polytechnics was content.

I have read all the materials that have been sent out by the Committee of Vice-Chancellors and Principals and other organisations. However, I should like to draw your Lordships' attention to one practical matter. At the end of the day what happens in the system depends upon how it works. I have thought back through my own experience to ascertain what powers the Secretary of State actually needs. I have concluded that he needs powers to give some direction to the funding councils—for example, some terms and conditions—with respect to groups of universities. I could give your Lordships endless examples, but I shall focus for the present on a very real one which took place in my time.

I refer to the question of medical students. As I think some noble Lords will know from the Royal Commission on Medical Education, the Government deliberated on the matter and set a target raising the intake to medical schools from 2,400 a year to 4,200. It fell to me to implement that policy as best I could. But, of course, constraints had to be applied immediately as regards both what one could and what one should do. The constraints with regard to what it was possible to do were the limitations imposed by the fact that medicine involves clinical teaching and therefore that the health service was depended on to provide some of those services. Thus, discussions had to take place between the Secretary of State for Education and Science and the Secretary of State for Health.

At the other end, there had to be agreement on whether raising numbers to a target level was practical and feasible. Ultimately, figures were set which were agreed for those universities which had medical and dental schools. It was agreed that the number should rise progressively from the lower figure that I gave to the upper figure. It seems to me that there are similar issues here in respect of which, as in the case that I have cited regarding the provision of doctors to man the health service in the future, the Secretary of State may find it necessary from time to time to say to a funding council, "This is a matter of government policy which goes outside the purely university domain and which sets a parameter for the universities which fall into a particular group".

Amendment No. 46, tabled in the name of the noble and learned Lord, Lord Simon of Glaisdale, calls for the deletion of subsection (2) of Clause 66. However, subsection (2) would allow the Secretary of State to do good things of the kind that I have described. I know where I stand, but I believe that it is for your Lordships to balance on the one hand whether there is a real, finite danger to academic freedom in the Bill as it now stands and as it will be as modified by the government amendments, and, on the other, the detriment which may arise from putting a handicap on the powers of the Secretary of State in areas where I think that he should have such powers. I hope that I have managed to convince your Lordships that there are areas in which the Secretary of State needs to have such powers.

Baroness Seear

My Lords, as my name is attached to the amendment moved by the noble and learned Lord, Lord Simon of Glaisdale, I should like to say briefly that it seems to me that the crux of the matter is that the amendment limits the powers of the Secretary of State to interfering where there is a financial issue involved. We agree that that is proper. If there is financial mismanagement of a gross nature, it is obviously right and proper that the Secretary of State should intervene. However, the amendment is limited to that; it does not allow intervention in other matters. That limitation on the Secretary of State's interference in financial matters is, to my mind, a great safeguard of academic freedom. Other abuses may arise, but that is a price one has to pay occasionally in order to obtain the much greater good of academic freedom outside this area.

Lord Belstead

My Lords, during the debate on Amendments Nos. 45 and 46, tabled in the name of the noble and learned Lord, Lord Simon of Glaisdale, my noble friend Lord Renfrew of Kaimsthorn said that in his view the noble Lord, Lord Jenkins of Hillhead, had overlooked a crucial point in his remarks—namely, that the Government have put down amendments since the previous stages of the Bill to meet the anxieties expressed on both Clauses 66 and 79. If I may say so, I believe that my noble friend was justified in that view. It is ahead of us and I refer to it only briefly, but I must stress that the Government have put down an amendment which essentially meets all the issues put forward in what was Amendment No. 169C on the much debated former Clause 77.

Lord Jenkins of Hillhead

My Lords, I should like to point out that I said in my speech that I thought that the Paymaster General had removed our doubts about the former Clause 77, which is now Clause 79; but not as regards the former Clause 64, which is now Clause 66. I fully recognise that Clause 79 is now broadly satisfactory.

Lord Belstead

My Lords, I am grateful to the noble Lord, Lord Jenkins of Hillhead. I apologise if I misrepresented him. It seems we are agreed that the points raised in regard to Clause 79 have been met.

In addition, the Government have endeavoured to meet the worries which were expressed and which finally came to a head when the noble and learned Lord, Lord Simon of Glaisdale, tabled Amendments Nos. 48 and 49 in order to ensure that Clause 66 cannot have institution-specific conditions. Perhaps I may briefly say on that point—I said this earlier today but much time has passed since then, so I must repeat it—that I recognise that the noble and learned Lord's persistence and shrewd argument of his case both inside and outside your Lordships' House (both he and I have had consultations on the matter) have moved the Government to try to meet the aims of the amendments which he has tabled.

I must say to the noble and learned Lord with the greatest respect, that although he has been absolutely instrumental in achieving movement in the area, there is one fundamental flaw in the amendments to which I have referred. They appear to require all institutions to satisfy requirements and conditions before funds can be provided to "any non-compliant" institution. Again, with the greatest respect to the noble and learned Lord, I think that that, inadvertently, is almost exactly the opposite of the objective which both he and the Government wish to achieve. Therefore, the Government have tabled Amendments Nos. 47 and 50. In essence I spoke to those amendments about five or six hours ago when we discussed Clause 7. The effect is exactly the same.

I believe that those amendments make crystal clear the fact that the power for attaching conditions to grant in Clause 66 is about attaching general conditions which, although they may have different impacts on institutions according to whether those institutions meet the requirements specified, cannot be about making conditions institution by institution. When I said that earlier, I believe that I struck a chord with your Lordships that that was a good and sensible thing to do. I believe that the House accepted it. In addition, the Government have tabled Amendment No. 52. It is the old academic freedom amendment, which makes it quite clear that particular courses of study or research cannot be affected by the making of conditions.

Therefore, on behalf of the Government, I have tried quite genuinely to meet the concerns expressed by your Lordships on Clause 79 as regards the way in which conditions are made under Clause 66 so that they cannot be institution specific. In addition, we have tried to ensure that such conditions cannot possibly be directed against particular courses of study or research. It is what I think in shorthand I call the academic freedom amendment. Although nobody is perfect in this life, and I am the last one who is, I am grateful to those of your Lordships who have said that perhaps we have at least gone quite a long way in the right direction.

I was grateful to my noble friends behind me—and in particular my noble friend Lord Peyton, who had amendments down which were hostile to the Government—for what they said, and indeed to the noble Lord, Lord Dainton. I shall not repeat what the noble Lord said in case I misrepresent him, but the noble Lord was, broadly speaking, approving.

So where are we on these amendments? As your Lordships have just heard me say, the amendments we have already discussed today put entirely beyond doubt that the Secretary of State may not make conditions institution by institution. He may impose only general conditions, which may impact differently on individual institutions, in pursuit of his policy, for example, on pay and conditions settlements in higher education. It is—I say this quite openly—this aspect of the condition-making power in Clause 66 which these amendments appear to want to rule out and which I think are important.

It is my contention that it is firmly part of the Secretary of State's legitimate policy in higher education to have an interest in, for example, securing satisfactory pay and conditions settlements, and that it is right that he should have such an interest given the level of public funding made available to higher education. The way in which my right honourable friend the Secretary of State has sought to exercise influence in this has been through holding back grant to be released to the funding councils only when a satisfactory settlement has been reached. This has operated for three years in relation to the polytechnics, colleges and universities, and so far the Secretary of State has always been able to release all the withheld funds to the councils each year for distribution to the institutions because satisfactory settlements have been reached at the national level.

However, it cannot be ruled out that national negotiations do break down, and then local settlements are made. In those circumstances the Secretary of State would need to be able to say to the funding councils that they may release funds to those institutions which reach satisfactory settlements but not to those which do not. As your Lordships will know from our earlier discussions, it is to allow this kind of influence to be exercised that Clause 66(2) (a) is drafted as it is, and it is exactly that that this amendment would remove.

Just quickly, another example of the possible use of this kind of condition might be for the Secretary of State to say to the funding councils that they should not release a particular proportion of funding to institutions which do not over time receive satisfactory reports back from the unit which the Committee of Vice-Chancellors and Principals and the Committee of Directors of Polytechnics are going to establish to look at institutions' internal quality control systems. In case that sounds draconian, let me record that both the CVCP and the Committee of Directors of Polytechnics have accepted that this kind of financial penalty must be available as a last resort in their published submission to the Secretary of State on the work of the quality assessment unit. Let me quote what they said. The CVCP and the CDP have said: It is recognised that an institution's public funding could ultimately be affected by an unsatisfactory audit report, and that an institution in such circumstances would be given a defined period in which to correct adverse aspects". There are legitimate and perfectly reputable reasons—in fact important reasons—as to why there should be the power to attach conditions of grant in Clause 66 and in the part of Clause 66 that this amendment would sweep away. Do not let us forget that we had the example put by the noble Lord, Lord Dainton, in his intervention, which was that, in his view, it would he the case that the amendment under discussion would prevent the legitimate interest of the Secretary of State of the day in, for instance, the number of medical students who should be in higher education.

Finally, let me say, because this expression I think has been used by the noble Baroness, Lady Blackstone, that the funding councils will not be conduits doing the Secretary of State's bidding and no more. They will develop policies of their own, particularly in relation to the general methodology for funding institutions but on specific issues as well. The Universities Funding Council and the Polytechnics and Colleges Funding Council have both done so. But in establishing a balance between the interests of the Secretary of State, the funding councils and the institutions of higher education, I believe that it is essential to give the Secretary of State the power to make conditions of the kind which I have identified and which the second part of this amendment would seek to remove.

All this of course is on the strict understanding that conditions under Clause 66 cannot be institution-specific and cannot be directed at issues concerning academic freedom, on both points of which I have amendments down that I hope your Lordships will allow me to move and to which we can agree. In saying that I am grateful to my noble friends who have supported me on this amendment as having moved as far as possible towards the views expressed by your Lordships on this clause and also on Clause 79 when we come to it, let me say that this amendment would remove the condition-making power that I have been outlining even with its safeguards, and that I must resist.

Lord Simon of Glaisdale

My Lords, I am most grateful to those of your Lordships who have contributed to this debate, which I think has covered all the ground. In the end it comes down to a simple point. The overwhelming mass of the academic community only feels safe with Amendment No. 46. The Government tell them that they ought to be satisfied with something else. In view of the history as I laid it before your Lordships, is it any wonder that they want instead Amendment No. 46?

Those who are content with something less lose nothing by having something more. This is a matter for academic freedom, and I beg to test the feelings of the House in the Division Lobbies.

8.47 p.m.

On Question, Whether the said amendment (No. 45) shall be agreed to?

Their Lordships divided: Contents, 82; Not-Contents, 84.

Division No. 5
CONTENTS
Ackner, L.	Kilmarnock, L.
Acton, L.	Kirkwood, L.
Addington, L.	Llewelyn-Davies of Hastoe, B.
Adrian, L.	Lockwood, B.
Airedale, L.	Macaulay of Bragar, L.
Annan, L.	McCarthy, L.
Avebury, L.	McGregor of Durris, L.
Barnett, L.	McIntosh of Haringey, L.
Beaumont of Whitley, L.	McNair, L.
Beloff, L.	Mallalieu, B.
Blackstone, B.	Mason of Barnsley, L.
Bonham-Carter, L.	Monson, L.
Boston of Faversham, L.	Morris of Castle Morris, L.
Carmichael of Kelvingrove, L.	Nicol, B.
Cledwyn of Penrhos, L.	Ogmore, L.
Craigavon, V.	Palmer, L.
Dacre of Glanton, L.	Perry of Walton, L.
Darcy (de Knayth), B.	Peston, L.
David, B.	Pitt of Hampstead, L.
Dean of Beswick, L.	Porter of Luddenham, L.
Desai, L.	Prys-Davies, L.
Donoughue, L.	Redesdale, L.
Dormand of Easington, L.	Richard, L.
Ewart-Biggs, B.	Rochester, L.
Falkland, V.	Russell, E. [Teller.]
Foot, L.	Saltoun of Abernethy, Ly.
Graham of Edmonton, L. [Teller.]	Seear, B.
	Serota, B.
Gregson, L.	Shackleton, L.
Grey, E.	Simon of Glaisdale, L.
Hampton, L.	Stoddart of Swindon, L.
Hamwee, B.	Taylor of Blackburn, L.
Harris of Greenwich, L.	Taylor of Gryfe, L.
Hatch of Lusby, L.	Tordoff, L.
Hilton of Eggardon, B.	Turner of Camden, B.
Hollis of Heigham, B.	Underhill, L.
Hooson, L.	Walton of Detchant, L.
Howie of Troon, L.	Wedderburn of Charlton, L.
Jeger, B.	White, B.
Jenkins of Hillhead, L.	Williams of Elvel, L.
Judd, L.	Winchilsea and Nottingham, E.
Kennet, L.

NOT-CONTENTS
Aldington, L.	Greenway, L.
Ampthill, L.	Haslam, L.
Arran, E.	Henley, L.
Ashbourne, L.	Hesketh, L. [Teller.]
Astor, V.	HolmPatrick, L.
Balfour, E.	Hooper, B.
Barber, L.	Howe, E.
Belstead, L.	Jeffreys, L.
Bethell, L.	Jenkin of Roding, L.
Blatch, B.	Johnston of Rockport, L.
Blyth, L.	Kimball, L.
Borthwick, L.	Kinloss, Ly.
Brabazon of Tara, L.	Lane of Horsell, L.
Brougham and Vaux, L.	Limerick, E.
Butterfield, L.	Liverpool, E.
Caithness, E.	Long, V.
Campbell of Alloway, L.	Lyell, L.
Carlisle of Bucklow, L.	Mackay of Ardbrecknish, L.
Cavendish of Furness, L.	Mackay of Clashfern, L.
Cochrane of Cults, L.	Marlesford, L.
Craigmyle, L.	Mersey, V.
Crickhowell, L.	Mountevans, L.
Cross, V.	Newcastle, Bp.
Dainton, L.	Orr-Ewing, L.
Denton of Wakefield, B.	Pearson of Rannoch, L.
Eccles of Moulton, B.	Pender, L.
Elles, B.	Perry of Southwark, B.
Elton, L.	Peyton of Yeovil, L.
Ferrers, E.	Rankeillour, L.
Flather, B.	Reay, L.
Flowers, L.	Renfrew of Kaimsthorn, L.
Fraser of Carmyllie, L.	Rennell, L.
Gray of Contin, L.	Ridley, V.

St. Davids, V.	Trumpington, B.
Seccombe, B.	Ullswater, V.
Selsdon, L.	Vinson, L.
Shrewsbury, E.	Vivian, L.
Skelmersdale, L.	Waddington, L.
Stockton, E.	Wade of Chorlton, L.
Strathmore and Kinghorne, E. [Teller.]	Warnock, B.
	Wise, L.
Thomas of Gwydir, L.	Young, B.
Trefgarne, L,

Resolved in the negative, and amendment disagreed to accordingly.

8.57 p.m.

[Amendment No. 46 not moved.]

Lord Belstead moved Amendment No. 47: Page 49, line 25, leave out ("each institution, or each") and insert ("every institution, or every").

The noble Lord said: My Lords, I spoke to this amendment earlier this afternoon. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 48 and 49 not moved.]

Lord Belstead moved Amendment No. 50: Page 49, line 26, after ("conditions") insert ("being requirements to be complied with in the case of any institution to which the requirements apply").

On Question, amendment agreed to.

[Amendment No. 51 not moved.]

Lord Belstead moved Amendment No. 52: Page 49, line 32, at end insert: ("( ) Such terms and conditions may not be framed by reference to particular courses of study or programmes of research (including the contents of such courses or programmes and the manner in which they are taught, supervised or assessed) other than the duration of such courses or programmes.").

The noble Lord said: My Lords, this is the amendment to which I referred during the past 20 minutes. It was moved at the previous stage of the Bill when I referred to it as the "academic freedom" amendment. I maintain that description. If your Lordships do not think it discourteous, I beg to move.

Lord Beloff moved, as an amendment to Amendment No. 52, Amendment No. 53: Line 5, leave out ("other than the duration of such courses or programmes") and insert ("or to the criteria for the selection and appointment of academic staff and for the admission of students").

The noble Lord said: My Lords, your Lordships' anxiety about academic freedom has been shown by the narrowness of the majority on the last amendment. Therefore there is probably good reason for returning to the subject.

I ask your Lordships to note first that the amendment I propose has sponsors from every quarter of your Lordships' House. I believe that if the rules of the House permitted more than four sponsors, as do the rules of the other place, I could have assembled a powerful extra team of sponsors.

The amendment I now propose would be universally applauded on any academic campus to which it was put. One of the regrets one has is over the failure to consult which has been so characteristically a feature of the handling of the Bill, as the noble Lord, Lord Jenkins of Hillhead, has already pointed out today. One of the regrettable features is that no attempt has been made to find out on the ground, not only from the University of East Anglia but all the other universities, what they feel on the subject of academic freedom and whether it is adequately dealt with by the amendment now proposed by the noble Lord on the Front Bench. That is something that could have been done. The Secretary of State himself could have visited a university. But I think it is as unlikely that one would see the Secretary of State on a university campus as that your Lordships would see the noble and learned Lord on the Woolsack at Annabel's. There are frameworks appropriate to particular persons.

We are also in universities—I speak here after my chancellor but on behalf again of the University of Oxford with which I have been in close contact throughout proceedings on this Bill—worried because we feel that the Government's provision represents an attempt to enlarge the powers of central Government at the expense of the universities. We believe that that attempt is one which has been made on more than one occasion. People talk now as though we must take the Education Reform Act 1988 as gospel. However, I remind your Lordships that it only reached its tolerable form because your Lordships fought hard against the first version of that Bill.

Where does this pressure come from? I believe it was Bernard Shaw who said: Those who can do and those who can't teach".

Had Bernard Shaw been around today he might have added, "and those who cannot teach become civil servants in the Department of Education and Science". That is the core of our problem. It has nothing to do with the ambitions of Ministers, and yet it is something we should resist.

The noble Lord, Lord Belstead, to whose courtesy and willingness to listen I and other noble Lords have paid tribute before—I pay tribute to that again—referred to his amendment as the academic freedom amendment. That would suggest that the only kind of interference that matters is interference in the actual content of courses. Yet even that is qualified by the fact that he wishes still that there should be intervention in relation to the length of programmes and courses. But one cannot separate those two things. If a course lasts for two, four or five years, the content is likely to be different; the methods of teaching will be different and the methods of assessment will be different. How one can divide up the teaching functions of a university in this way is something I find difficult to comprehend.

Furthermore, as I have pointed out in the words which I suggest should be added to this amendment, there is—this was referred to at earlier stages, notably by the noble Lord, Lord Annan, who is supporting me on this amendment—also the question of the possible making of conditions as to the criteria for the appointment of staff or the admission of students. Some noble Lords think that somehow or other, by a mechanism I have not been able to understand, this might prevent initiatives on the part of the Government on funding for particular forms of additional support. The so-called new blood proposals of a few years ago are cited in this regard.

That is not the issue at all. The issue is whether any future government—by that I mean any future group of civil servants who have a spokesman in government—could say that there should be quotas for admission as regards students. Could they say that a proportion of students should be admitted with no qualifications at all? That is an extreme view which is held in some quarters, if not in this country then elsewhere. Those are all important issues. As I have said, any Minister or Secretary of State who had bothered to spend a few hours in a university would know that the present proposal is unacceptable and that my amendment represents the minimum that academic freedom now demands.

That is really the point at issue. As the noble and learned Lord, Lord Simon of Glaisdale, said, the question is one of academic freedom. I have no doubt that the noble Lord, Lord Belstead, will say, as he has said before, that the Government believe in academic freedom. What I have attempted to provide in this amendment is a litmus test. If one accepts this amendment, one accepts academic freedom because one accepts its substance. Otherwise it is totally irrelevant. It is like someone saying, "Of course I am not a racist, but you would not expect me to employ a black man". That is the position the Government are taking. They want to say that they are for academic freedom, but not the substance, as defined by the people who have to work the system and the individual institutions. That is something we are not prepared to accept. At this hour I think I need say no more. I beg to move.

Earl Russell

My Lords, the Minister described his amendment as the academic freedom amendment. I would prefer to describe it as the "some academic freedoms" amendment. It enshrines some academic freedoms for which I am grateful, but the power to decide the standard of the degree is as vital a part of academic freedom as the power to conduct one's own research. A degree is a certificate of approval from the academic community. Should the power to use these conditions come into effect, by its mere use it would certify that the degree in question did not have the approval of the academic community. Therefore the real degree-awarding body would not be the university but the Department of Education and Science.

Is the Department of Education and Science a proper degree-awarding body? I look at the Department of Education and Science News, the paper on degree-awarding bodies which the noble Lord, Lord Belstead, kindly sent me in December. The paper stated that a degree-awarding body should be, a self-critical, cohesive academic community". It should have, appropriate external academic and professional points of reference so that standards were judged against those of the wider academic world". It is my submission that the Department of Education and Science passes neither of those tests. It is not an appropriate degree-awarding body. In resisting this extension of the powers of the Secretary of State we are fighting a constitutional not an academic battle and one in which other people also have an interest.

Lord Annan

My Lords, can the noble Lord clarify two points? Can he deny that if the amendment moved by the noble Lord, Lord Beloff, is not accepted the Secretary of State in some future government will have the power to interfere with the admission of students and the appointment of staff?

Baroness Blackstone

My Lords, I have put my name to the amendment. We on this side of the House supported the amendment at Report stage. The amendment was withdrawn then because the Government agreed to think again about the clause. However, the absence of any apparent further thought on the exclusions has meant that it was necessary to put down the amendment again.

The exclusions the Government have listed do not go nearly far enough. While of course it is a great improvement with respect to academic freedom to have excluded the content of courses and how they are taught, more is needed. First, the inclusion of the right to frame terms and conditions with respect to the duration of courses is surely unnecessary. The Government can exercise general control over course duration through the overall public funding they make available to the funding councils. It is then a matter for the funding councils to negotiate with individual institutions on the length of particular courses on a case by case basis. The necessary expertise should be, and I believe would be, available to the funding council and its staff. As the noble Lord, Lord Beloff, said, it is unlikely that the Secretary of State will know enough about such matters to take a view. Nor do I think that civil servants in the DES are likely to know more. Therefore that part of the clause should be deleted as the amendment proposes.

Turning to the second part of the amendment, the selection of students and their admission are entirely, and must be, matters for individual academic institutions. No government, or even the funding, councils, should be involved in such detail. We must trust responsible people to get on with the running of institutions, deciding whom they can teach and who can best benefit from the courses they run. Any head of an institution would find it insulting to be told by anyone, even the Secretary of State, whom he or she should admit to study at his or her institution. Heads of institutions would be even more concerned if constraints were placed on them with respect to the academic staff to be appointed. That runs right into the issue of academic freedom.

Nor at Report stage did I hear the Minister say anything which was remotely convincing in support of the argument that the additional exclusions should not be accepted by the Government. If the Government are genuinely concerned with safeguarding academic freedom they will accept the amendment.

Lord Belstead

My Lords, the noble Lord, Lord Annan, asked me directly whether I could give an assurance that the condition-making power in Clause 66 could not lead to interference in the appointment of staff or the admission of students. I can offer this important assurance. The Secretary of State could not use his condition-making power under that clause to affect the appointment of individual staff, the admission of individual students or the length of individual courses. To do any of those the Secretary of State would have to make a condition in respect of a particular institution. The Government have always understood that to be ruled out under Clause 66 as originally drafted. The government amendments, Amendments Nos. 47 and 50, which were finally agreed to 25 minutes ago, now put that beyond all doubt.

Earl Russell

My Lords, I beg the Minister's pardon but there is a point of clarification which is vital. He said that the Government could not impose conditions on the appointment of individual staff. As one who has experience of affirmative action in the United States, I ask whether the Government can by this procedure impose conditions on the appointment of categories of staff?

Lord Belstead

My Lords, perhaps the noble Earl will look at the clause. It is important to remember the context of the powers, which essentially relate to public funding and accountability. If, for example, a Secretary of State sought to influence, through imposing a condition, the filling of a particular post or to require institutions to recruit a particular number of students, or if he sought to prohibit the admission or appointment of a particular individual or to determine the length of a particular course, I am advised, and I believe, that he would rightly be found to be exceeding his powers and to be riding roughshod over the autonomy granted to universities under their charters and statutes and to polytechnics and colleges under their instruments and articles of government. It is true that I have not quite answered the question, but will the noble Earl bear with me for a moment? I shall come back to the point he put to me.

The discussion has been brief. It has hung on the peg of an amendment which I rather grandiloquently called an amendment on academic freedom. It was an offer that I brought forward at Report stage but withdrew. The effect of Amendment No. 52 would be that the Secretary of State may not frame conditions by reference to particular courses of study or programmes of research. That includes an institution's ability to offer particular courses on programmes. It also applies to the content of an institution's courses or programmes. It covers the way in which those matters are taught, supervised or assessed.

The two points at issue are whether the amendment ought to extend the constraint upon the exercise of the Secretary of State's powers to cover the appointment of staff and the admission of students and whether it should exempt from the exclusion a condition-making power in respect of the duration of courses. Both points are tackled in the amendment which was spoken to by my noble friend Lord Beloff, the noble Baroness, Lady Blackstone, the noble Earl, Lord Russell, and the noble Lord, Lord Annan, having also put their names to it.

I sought to make clear at Report stage that there are circumstances in which the Secretary of State may have a quite legitimate policy which would cause him to make conditions which inevitably touch on those areas. For example, the Secretary of State has an interest in attaching conditions in respect of the number of publicly funded medical students. I have not thought that example up. It was one given by the noble Lord, Lord Dainton, whose experience in these matters rivals that of almost anyone in your Lordships' House.

My noble friend Lord Cavendish has made clear that funding councils will be expected as a condition of grant to ensure that they have specialist advice about the education of students with disabilities. That is worthy; it is good. It is about students. As to staff, funds have been earmarked in the past to enable institutions to restructure their staffing or to introduce new blood posts. Those are all policy interests for a government to pursue through the Secretary of State's condition-making powers. However, they inevitably have an effect on or a relationship with students and staff.

As to the duration of courses, it is important to distinguish powers in respect of the funding council from powers in respect of institutions. The condition-making power sought under Clause 66 is attached to the grant being made by the Secretary of State to the funding council. That enables the Secretary of State to further legitimate policies in respect of course length by making his grant to the council subject to terms and conditions of its use. But the power would not extend to the determination of length of higher education courses within individual institutions. Institutions are free to make up their own minds about that within the financial framework set by the funding council.

Perhaps I may give a couple of examples of what I believe are legitimate government interests in course duration. The higher education White Paper emphasised the Government's commitment to expand higher education. It also made clear that while the Government remain committed to awarding higher education a fair share of public expenditure, the result would not be an expansion of student numbers if additional resources merely served to fund the same number of students on longer courses. The White Paper made clear too that the Government do not see a case for an increase in the average length of courses. The condition-making power which we are discussing enables the Secretary of State to exercise influence in that area through funding. But it does not allow him to tell institutions what they may or may not do.

The power would also enable the Secretary of State to earmark funds for specific purposes in respect of course patents. Indeed there is a current example. At the Secretary of State's request the Polytechnics and Colleges Funding Council is making available no less than £1 million in 1992–93 to support a pilot scheme involving the provision of accelerated and intensive routes to degree courses. The response from institutions in the form of bids for those funds has been enthusiastic. I understand that just over 450 places on 12 courses with 11 different institutions are to be funded by the PCFC. I believe that it would be wrong to rule out the constructive use of conditions for such desirable development.

I end as I began with an important reassurance. The Secretary of State could not use his condition-making power to affect the appointment of individual staff, the admission of individual students or the length of individual courses. To do any of those things the Secretary of State would have to make a condition in respect of a specific institution. The Government, having always thought that that is exactly what Clause 66 would prevent, now have the agreement of your Lordships to Amendments Nos. 47 and 50 which finally make clear beyond all doubt that institution-specific conditions under Clause 66 are completely out of court.

I well understand why Amendment No. 53 has been moved, but I hope your Lordships will feel that I have taken the issues head on and have answered them all.

Lord Beloff

My Lords, we will be grateful to the noble Lord the Minister for his speech in reply to the amendment. It seems to me that he has protested a great deal about a matter of which we have already found him innocent. It has not been suggested in my amendment, or in any of the speeches made in support of it, that the Government are even suspected of contemplating dealing with individual cases of staff appointments, student admissions and the length of individual courses. What we have been talking about is whether general powers to lay down conditions applying to all institutions could be imposed under this clause, perhaps by some less high-minded Minister than the present one. That was why I began by saying that the amendment had the unanimous support of the university community.

Lord Belstead

My Lords, I say with very great respect to my noble friend that he cannot get away with that. The noble Lord, Lord Dainton, gave an example of the clearest possible kind which even I could understand. Of course it is right, and has been accepted procedure in the past, that if one is talking of a category of students the Secretary of State has a say as far as numbers are concerned. When the noble Lord says to the House, "Is it the case that categories of student can be interfered with by the Secretary of State?" and that is a matter which is the concern of everybody interested in academic freedom, all I can say is that I would have hoped the noble Lord might have listened to the noble Lord opposite.

Lord Beloff

My Lords, I listened very carefully to the noble Lord opposite. My answer must be that I am not speaking here as an individual. If the content with the situation is such as the noble Lord the Minister suggests why does the Committee of Vice-Chancellors and Principals want my amendment to be passed? That is a fact known by everyone here who has been briefed by that committee. Surely, I am more likely to be right if I listen to the representatives of nearly 50 universities than in any other way. I must ask the House to give its opinion on the amendment I have moved.

9.23 p.m.

On Question, Whether the said amendment, No. 53 (as an amendment to Amendment No. 52) shall be agreed to?

Their Lordships divided: Contents, 86; Not-Contents, 72.

Division No. 6
CONTENTS
Ackner, L.	Judd, L.
Acton, L.	Kennet, L.
Addington, L.	Kilmarnock, L.
Adrian, L.	Kirkwood, L.
Ampthill, L.	Llewelyn-Davies of Hastoe, B.
Annan, L.	Lockwood, B.
Avebury, L.	Macaulay of Bragar, L.
Barnett, L.	McCarthy, L.
Beaumont of Whitley, L.	McGregor of Durris, L.
Beloff, L.	McIntosh of Haringey, L.
Blackstone, B.	McNair, L.
Bonham-Carter, L.	Mallalieu, B.
Butterfield, L.	Mason of Barnsley, L.
Carmichael of Kelvingrove, L.	Morris of Castle Morris, L.
Cledwyn of Penrhos, L.	Newcastle, Bp.
Cocks of Hartcliffe, L.	Nicol, B.
Coleraine, L.	Ogmore, L.
Craigavon, V.	Palmer, L.
Dacre of Glanton, L.	Perry of Walton, L.
Dainton, L.	Peston, L.
Darcy (de Knayth), B.	Pitt of Hampstead, L.
David, B.	Porter of Luddenham, L.
Dean of Beswick, L.	Prys-Davies, L.
Desai, L.	Redesdale, L.
Dormand of Easington, L.	Richard, L.
Ewart-Biggs, B.	Ridley, V.
Falkland, V.	Rochester, L.
Flowers, L.	Russell, E. [Teller.]
Foot, L.	Saltoun of Abernethy, Ly.
Graham of Edmonton, L.[Teller.]	Seear, B.
	Serota, B.
Greenway, L.	Shackleton, L.
Grey, E.	Simon of Glaisdale, L.
Guildford, Bp.	Stoddart of Swindon, L.
Hampton, L.	Taylor of Blackburn, L.
Hamwee, B.	Taylor of Gryfe, L.
Harris of Greenwich, L.	Tordoff, L.
Hatch of Lusby, L.	Turner of Camden, B.
Hilton of Eggardon, B.	Walton of Detchant, L.
Hollis of Heigham, B.	Warnock, B.
Hooson, L.	Wedderburn of Charlton, L.
Howie of Troon, L.	White, B.
Jeger, B.	Winchilsea and Nottingham, E.
Jenkins of Hillhead, L.

NOT-CONTENTS
Aldington, L.	Flather, B.
Arran, E.	Fraser of Carmyllie, L.
Astor, V.	Gray of Contin, L.
Balfour, E.	Haslam, L.
Barber, L.	Henley, L.
Belstead, L.	Hesketh, L. [Teller.]
Blatch, B.	HolmPatrick, L.
Blyth, L.	Hooper, B.
Borthwick, L.	Howe, E.
Brabazon of Tara, L.	Jenkin of Roding, L.
Brougham and Vaux, L.	Johnston of Rockport, L.
Caithness, E.	Kimball, L.
Campbell of Alloway, L.	Lane of Horsell, L.
Carlisle of Bucklow, L.	Limerick, E.
Cavendish of Furness, L.	Lindsay, E.
Cochrane of Cults, L.	Liverpool, E.
Craigmyle, L.	Long, V.
Crickhowell, L.	Lyell, L.
Cross, V.	Mackay of Ardbrecknish, L.
Denton of Wakefield, B.	Mackay of Clashfern, L.
Eccles of Moulton, B.	Macleod of Borve, B.
Elles, B.	Marlesford, L.
Elton, L.	Mersey, V.
Ferrers, E.	Mountevans, L.

Orr-Ewing, L.	Stockton, E.
Pearson of Rannoch, L.	Strathmore and Kinghorne, E. [Teller.]
Perry of Southwark, B.
Rankeillour, L.	Thomas of Gwydir, L.
Reay, L.	Trefgarne, L.
Renfrew of Kaimsthorn, L.	Trumpington, B.
Rennell, L.	Ullswater, V.
Robertson of Oakridge, L.	Vinson, L.
St. Davids, V.	Vivian, L.
Seccombe, B.	Waddington, L.
Selsdon, L.	Wade of Chorlton, L.
Shrewsbury, E.	Young, B.
Skelmersdale, L.

Resolved in the affirmative, and amendment agreed to accordingly.

Amendment No. 52, as amended, agreed to.

9.32 p.m.

[Amendment No. 54 not moved.]

Clause 68 [Assessment of quality of education provided by institutions]:

Lord Annan moved Amendment No. 55: Page 51, line 4, after ("functions") insert ("(such as the profile of courses and the appointment of external examiners)").

The noble Lord said: My Lords, this amendment originally arises from disclosures by the noble Baroness, Lady Cox, and the noble Lord, Lord Pearson of Rannoch, of political indoctrination in various institutions.

I make it clear in moving the amendment that I believe in academic freedom. If a member of staff is appointed legitimately, it is a matter of indifference whether he is a Marxist, a monetarist, a Beysian or a continuous creationist like Sir Fred Hoyle.

What is more, I go further. There is on a member of staff who gives lectures and who teaches no obligation whatsoever to be fair. There is no obligation on him at all to draw attention to contrary views or even to indicate that his own views may not be wholly acceptable. Some of the most gifted and remarkable lecturers that I have ever heard were fanatics for their own vision of life. On the other hand when a group of like-minded people get into a department and the students find that in that department only one view is permitted, and that in their examinations they will be expected to toe the line, there is a real danger. It is in that spirit that the amendment on Report was moved.

However, this amendment goes to a matter much wider than the question of political indoctrination. Your Lordships will know that the amendment refers to two matters: the profile of courses and the appointment of external examiners. Students these days are extremely sophisticated. They expect to choose their institution because that is the institution in which they find the course which they wish to study. It is that that attracts them to the particular place.

It is essential that the profiles of courses are set out in full. That is particularly important when students arrive in their university and find that the course which they had no doubt seen described in rather abbreviated terms in a handbook is very different from what they had expected. It is incumbent upon them to change their course when they arrive if they find that they have been misled by the handbook. It is important that the students know what the course comprises and what books and other materials they are expected to study in order to pass the examinations at the end of the course.

The external examiners are mentioned for another reason. Originally they were mentioned by the noble Lord, Lord Pearson, because, in the departments in which political indoctrination was occurring, the external examiners were chosen because they were parties to the view being pushed down the throats of the students by all the teachers in those departments. That gave the students no escape. However, we are concerned with a wider issue.

Before the Bill imposed upon the funding councils a quality assessment committee, the universities had begun to say, "Perhaps we are to be attacked on whether or not we assess the quality of our teachers and the courses and had better look at it ourselves". As I understand it, when they began to do that, some were found wanting; that is to say, they had not insisted that external examiners should be appointed. The external examiner is the safeguard that standards are being maintained and also that fairness of assessment in the examination is being obtained. He is therefore an essential factor in maintaining academic freedom and fairness to students.

I understand that the amendment is perhaps not worded delicately enough or with sufficient finesse and that it may need further amending. However, I am hoping to extract from the noble Lord, Lord Belstead, an expression of sympathy indicating that he will bear its aims in mind, and that the Secretary of State will ask, in his submissions to the funding councils with their quality assessment committees, that they too should bear these points in mind. I beg to move.

Lord Campbell of Alloway

My Lords, I am a little foxed by the amendment. Did the quality assessment committee exist at Cambridge before the war or is it something quite new? If it did exist, it did not seem to do much. Most of my law dons were eccentric—certainly my law tutor was—and if there had been a quality assessment committee I should have learned less law than I did. I am not sure what it is all about.

Lord Pearson of Rannoch

My Lords, I hope to answer my noble friend Lord Campbell of Alloway in my few brief remarks. I begin by apologising to your Lordships on behalf of my noble friend Lady Cox as she is unable to be with us to speak on the amendment. She is still occupied with the tragic situation in Nagorno Karabakh, which remains under siege by Azerbaijan. I should also like to apologise to your Lordships for the inaccurate wording of the amendment, although I trust its spirit is clear.

First, the amendment intends to lay a duty on the new funding councils with their quality assessment committees to require publication by institutions of their course profiles and the names of their external examiners. The aim of the amendment is to improve accountability first and foremost to students who would thus have a better idea of what is on offer; secondly, accountability to the taxpayer to reduce the present waste in our system of higher education, and, thirdly, to improve accountability to academic quality and thus to academic freedom itself.

As I said at Report stage on this Bill, academic quality requires a certain amount of rigour. A course which does nothing to stretch the students on it, but rather leaves them bored and de-motivated for three or four years, is unlikely to meet the standards of academic quality which noble Lords rightly take for granted in a degree course. I have also mentioned at earlier stages of the passage of this Bill through your Lordships' House that academic freedom, about which we have again heard much today, is neither honourable nor justified if it does not discharge its sacred duty to academic quality. Academic freedom must not become the cloak which covers up academic self-indulgence.

My noble friend Lady Cox and I have given a number of examples where academic quality has been or is so low as to defraud the students on the courses in question and thus to betray its duty to academic freedom. I do not imagine that the law course followed by my noble friend Lord Campbell of Alloway at Cambridge before the war was exactly in that category. I am happy to repeat and emphasise that our examples come largely from the faculties of humanities, social sciences and teacher education. I know that my noble friend would join with me in paying tribute to our polytechnics and universities for their magnificent work in what I would call the harder disciplines; for example, medicine, chemistry, physics and engineering.

Indeed, we believe that this amendment on the face of the Bill would do much to ensure that the good work of the Council for National Academic Awards in these areas is continued and expanded. However, the faculties we have criticised and other soft disciplines account for nearly half of the first degree students in our polytechnics. I imagine that the proportion may be higher in our universities.

Looking back over our debates on this Bill, I remind your Lordships that we have given one example where a whole institution accredited, I have to say, by the CNAA, had admitted that its quality assurance mechanisms are not working properly. We have given examples where whole departments within institutions have been unacceptably narrow in the teaching that they offer. Indeed, I was given another example of that only last week. We have given examples where whole subject disciplines, such as cultural studies, independence studies and, I am afraid, much of teacher training, do not contain the breadth and depth of academic quality which your Lordships would expect in a degree course.

In this respect I am sure that many of your Lordships were somewhat shocked to read in yesterday's Sunday Telegraph that students in half the country's polytechnics and colleges and in several universities, are now able to gain degrees in English Literature without reading a word of Shakespeare. That is just another example of the sort of thing I am speaking about.

At Report stage I even ventured to query the workload of a tutorial history Fellow at Oxbridge who is required to give 16 lectures per annum and to teach no more than 15 hours per week for 24 weeks of the year, at handsome terms of employment. The noble Earl, Lord Russell, whom I am sorry to see is not in his place, took me to task for that, saying that 15 hours teaching means 50 hours work for the don in question and that I was profoundly mistaken if I confused his 28 weeks of vacation with a holiday. I do not know, but I have thought it over. I have discussed the matter with a number of Oxbridge academics. I am afraid I have to stick to my guns against the noble Earl.

Of course I accept that 15 hours teaching might mean 50 hours work when the academic in question is teaching one of the hard subjects to which I have paid tribute; when, for example, he is extending the frontiers of knowledge in particle physics or something like that. I would not have thought that that could apply to mature academic teaching, for example, of a defined period of British history. I really would not have thought that our history was being rewritten quite so fast as to require such a workload from 15 hours teaching for 24 weeks of the year.

Whether the noble Earl is right or whether I am right about this particular example, I have now been told of a teaching don at one of our leading universities who, during term time, runs an entirely separate small business virtually full-time. I am told that there are also examples of teaching professors—for example, professors of politics, economics and international relations—who spend more of their time working lucratively for consultancy firms than they do on their official teaching duties. No doubt they would justify that as research, or perhaps scholarly activity. But I am not sure that their students or the taxpayer would necessarily agree with them. This amendment would help to flush this sort of thing out into the open, especially if the new funding councils were to encourage university faculties to look a little more closely at the real teaching load of their staff. It seems clear that the academics who are honourably doing their duty and more, would welcome and benefit from such scrutiny at the long overdue expense of those who are not.

I should add immediately that no government interference with academic freedom would be involved. I am sure that open discussion at academic boards and in senates would soon have the desired effect without impinging on genuine research and scholarly activity.

There is a wider and perhaps more disturbing point behind all this which was brought home to me forcibly by two leaders of the United States insurance industry who were my guests at dinner in New York last Thursday evening. They told me that British university degrees in the faculties I am criticising are beginning to be seen as inferior in the United States business community and this despite all the prestige which our great universities carry over there. I am happy to say that they were fulsome in their praise of the hard subjects—medicine, physics, chemistry, engineering and so on.

One of my guests backed up his accusation with embarrassing personal detail. He has two student children, one at a leading US college and the other at a leading British university. Both are reading English and history and both are in their second year. Last vacation they compared their respective courses and found that, in fact they bore no comparison. The American course is immeasurably broader, deeper and tougher than its British counterpart. The student at the British university may well even get a first class degree, but he is bored and frustrated and now wishes that he had gone to college in the United States instead.

I am sure that we would all agree that it is serious indeed if the currency of some of our great university degrees is starting to be seen as debased by the international business community and no doubt by others too.

9.45 p.m.

Baroness Seear

My Lords, is the noble Lord telling us that those two people in the insurance industry are judges of the quality of all the subjects which he has listed?

Lord Pearson of Rannoch

My Lords, in answer to the noble Baroness I would say that I have given many other examples of that during the course of these debates. As leaders of a major United States insurance company they have worldwide experience, having branches worldwide. They are also very interested—and this is where the conversation started—in the quality of the students they employ in the various countries where they operate. I admit that it is somewhat anecdotal, but it fits with the rest of the experience and I do not think that it is idiosyncratic or too anecdotal to bring to your Lordships' attention. I believe that this means that we are failing not only the taxpayer and our students but also, inevitably, the country.

Having spoken to many students and academics in different institutions, I am fairly sure that I see something of what is going wrong. The picture which emerges is as follows. The academic gold standard of British education is the A-level exam which many of our young people work extremely hard to achieve. However, the best of them are then creamed off by the so-called best universities and are all too often allowed to coast through the next three or four years towards a comfortable second class degree. Less good A-level students are often treated similarly by less good universities. Not much academic value appears to be added by our universities in this process, although of course I accept that it is usually so when a student is trying to get a first class degree.

Perhaps I have been unlucky in the very many students I have spoken to, not one of whom would disagree with what I have said tonight. Perhaps student perception is misguided; But this amendment on the face of the Bill would do much to find out where the truth lies. Therefore I earnestly commend it to your Lordships.

Lord Flowers

My Lords, I hope that this amendment is not pressed. The Bill sets up funding councils which are instructed to look after the quality of the teaching and research in the universities. Moreover, it tells those funding councils that they are to set up quality assessment committees which will specialise in giving the funding councils advice on just those responsibilities.

I respectfully suggest to noble Lords that it is not our job in this House to move odd amendments in order to give effect to every hobbyhorse which we individually may have. We should trust the bodies that we set up to be sensible and we should ask, "What do we need in order to guarantee quality in our higher education institutions?" We have a committee to tell us. We may give it some guidelines but we should let the committee get on with the job. It will in due course advise us. If we do not like its advice we can send the committee back to do it again. However, let us not try to write into the Bill all the things that the committee should be thinking about. Partly we shall forget them and partly the things that it should be thinking about will change with time. In any case, all the things I have heard tonight are nothing more than hobbyhorses.

Lord Belstead

My Lords, the purpose of the amendment is to provide that among the functions conferred on the quality assessment committees by the funding councils would be that of giving advice on the profile of courses and the appointment of external examiners. The noble Lord, Lord Annan, and my noble friend Lord Pearson have spoken with considerable feeling on the desirability of that line of thought. The noble Lord, Lord Annan, asked me to reply on behalf of the Government that we understand the case that has been made and are sympathetic to it. If I may, I shall come to that in a moment or two.

As I ventured to say during the debate at Report stage, the Government are at one with the views expressed by many noble Lords on the importance of institutions being accountable for the way they spend public funds and in particular for the ways in which they seek to maintain and improve the quality of what they offer. Under the Government's proposals, there will be external assessment of the quality of an institution's teaching and research, and institutions will establish and run a unit to monitor the quality assurance machinery in all institutions. Reports of quality assessments and quality audits of individual institutions will be published.

The external examiner arrangements within institutions will clearly need to be the subject of scrutiny by the quality audit unit in view of their importance in ensuring independent checks. The institutions have fully recognised this. My right honourable friend the Secretary of State will also encourage the quality audit unit to maintain a register of external examiners and advise on their development and training.

Profiles of courses are already published by institutions, most notably in their prospectuses. As I have said, the quality of those courses will be the subject of assessment by staff of the funding council as part of their normal duties. However, while I respect the concerns expressed that the content of some courses may not be as relevant as we may like—my noble friend Lord Pearson has spoken, roughly speaking, on those lines—it really must be for individual institutions to determine that content, guided where appropriate by the requirements of the professional bodies. Otherwise, we really do get near to the slippery slope of centralised control of academic thought.

This clause already provides for the councils to require the quality assessment committee to provide such advice as it sees fit. I see some difficulty in legislating by exemplar as the amendment seeks to do. But having said that, I give my noble friend this assurance. The Government take very seriously indeed the need for a flow of information to be available from institutions to students, parents, schools and employers on matters of genuine interest. I very much take the point made by my noble friend Lord Pearson that the views of others, particularly those in industry and commerce, are important so far as concerns the academic world.

Lord Peston

My Lords, I was going to ask the Minister whether he would rebut the remarks of his noble friend. I have sat here feeling unable to join in. I have never as an academic taught as much as 15 hours a week. I am a teacher of what his noble friend calls a soft subject. It appears now that my economics graduates are not up to the standard of an American insurance company. That has really shocked me. I was rather hoping that the Minister would say a word or two on behalf of those of us who carry the burden of teaching in this country at least slightly to criticise his noble friend for what I thought were, to say the least, personally outrageous remarks.

Lord Belstead

My Lords, I have contented myself this evening with saying that I understand the general thrust of what my noble friend Lord Pearson said so far as concerns the importance of the views of those in the business world and their perception of what happens in the academic world without going into specifics. I do not intend to go into specifics. The noble Lord, Lord Peston, is admirably well qualified to say what he wishes to say on behalf of the academic community; indeed, the noble Lord is distinguished in both politics and academics. I can go no further than that.

I should add that the Secretary of State will want to discuss with the institutions and the funding councils the scope of the information which should be available from institutions to students, parents, schools and employers and the role which the assessment committees and the quality audit unit might play in monitoring it. I hope that those reassurances will be acceptable to and welcomed by the noble Lords who tabled the amendment. As the amendment has now been debated, I hope that it will be withdrawn.

Lord Annan

My Lords, I am grateful to the Minister for having taken such trouble to respond to the amendment. I shall not ride or rein in any hobbyhorses. Indeed, half an hour ago we actually rode two hobbyhorses which ultimately defeated the Government; that is to say, the hobbyhorses as regards the admission of students and the appointment of academic staff. However, leaving that aside, I believe that the issue has been given a good airing. I am most pleased and reassured by what the Minister said. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 69 [Higher education corporations: constitution and conduct]:

Lord Cavendish of Furness moved Amendment No. 56: Page 53, line 48, leave out ("original") and insert ("then subsisting").

The noble Lord said: My Lords, your Lordships will recall that Clause 69 inserts Sections 124A, 124B and 124C into the Education Reform Act 1988. New Section 124C(4) provides that when the Privy Council makes a new instrument for a higher education corporation the present members (other than those specified in Section 124C(5)) shall continue, for the residue of the term of their original appointment".

However, some of those members may have been re-appointed following their "original" appointment, and the subsection in its present form could be taken to mean that re-appointed members should not continue. That was not the intention; the intention was for present members to continue until the end of their present appointment, whether it was an original or subsequent appointment. The amendment is needed to ensure that this intention is realised beyond doubt. I beg to move.

On Question, amendment agreed to.

Clause 73 [Variation of trust deeds]:

Lord Belstead moved Amendment No. 57: Page 58, line 28, leave out ("and").

The noble Lord said: My Lords, this amendment was debated when we discussed Amendment No. 31. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 58: Page 58, line 32, at end insert ("and ( ) where the instrument to be modified is a trust deed and the trustees are different from the persons mentioned in paragraphs (a) and (b) above, the trustees.").

On Question, amendment agreed to.

Clause 74 [Power to award degrees, etc.]:

Lord Belstead moved Amendment No. 59: Page 58, line 33, leave out ("Secretary of State") and insert ("Privy Council").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 60. I signalled at Report stage that I would be moving an amendment transferring the power to specify an institution as competent to grant its own awards from the Secretary of State to the Privy Council. Such an arrangement would be consistent with the proposals elsewhere in the Bill for the Privy Council to have the responsibilities in relation to institutional titles and governance. That is what these amendments do.

The amendments which I have brought to your Lordships today do not change one iota the policy that all present polytechnics will receive the full range of degree-awarding powers. The criteria which other institutions will need to meet will remain those announced by my right honourable friend the Secretary of State on 16th December. The arrangements by which my right honourable friend will receive advice on whether institutions meet the criteria are not affected either. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 60: Page 59, line 25, at end insert: ("( ) Section 124D of the Education Reform Act 1988 applies in relation to orders under subsection (1) above as it applies in relation to the exercise of powers for the purposes of Part II of that Act.").

On Question, amendment agreed to.

10 p.m.

Clause 79 [Directions]:

Lord Belstead moved Amendment No. 61: Page 60, line 36, after ("directions") insert ("under this section, and such directions shall be").

The noble Lord said: My Lords, I beg to move Amendment No. 61 and speak to Amendments Nos. 62 to 67 and 69.

Lord Simon of Glaisdale

My Lords, would the noble Lord allow me? I am content that he should speak in that way, but I ought to give him notice that I shall be moving Amendment No. 66 separately. That is the affirmative resolution amendment.

Lord Campbell of Alloway

My Lords, I shall be moving Amendment No. 63 separately.

Lord Belstead

My Lords, let me start again and move Amendment No. 61 and speak also to my Amendment No. 65 and to the other amendments I mentioned, less the two amendments that the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lord Campbell of Alloway are going to move separately.

As with Clause 66, the Government have been thinking very carefully about the scope of the Secretary of State's power of direction under Clause 79. As Amendments Nos. 61 and 65 in my name make clear, the Government have been persuaded by the argument put on all sides of the House at Report. Put very simply, the new amendments adopt in full the proposition embodied in what was Amendment No. 169C at Report in the names of my noble friends Lord Campbell of Alloway, Lord Renfrew, Lady Young and Lord Beloff, that rather than limiting by exclusion the nature of any direction which might be given, the Bill should instead limit the circumstances in which a direction could be contemplated.

As the House had asked, the amendment now limits the Secretary of State's power to make institution-specific directions to a situation in which, in an institution funded by the funding councils, there is financial mismanagement. It requires the Secretary of State to consult both the council and the institution concerned before making a direction. And it restricts the nature of any direction to being one which is necessary or expedient to tackle that mismanagement.

In addition to explaining briefly my amendments, may I give one assurance that I think is relevant to these amendments. The power to give general directions under Clause 79 in the amendment that I am moving, which in effect retains the power that the Secretary of State already has under Section 134(8) in the Education Reform Act, could not be used to give an institution specific directions. It is this concern that I understand has prompted Amendment No. 63 in the name of my noble friend Lord Campbell of Alloway, which we shall come to. But may I say at this stage that the juxtaposition of a subsection concerned with general directions and a subsection with an institution-specific power makes it clear that the powers conferred by the two subsections are mutually exclusive.

If it had been the intention to make the institution-specific power merely one way in which the general power could be used, then the amendment would have to be worded very differently indeed. With just that one assurance, which I believe is absolutely correct—I have taken great trouble to take advice on it and I, for one, am wholly convinced by the advice but we shall come back to it again on my noble friend Lord Campbell's Amendment No. 63—I beg to move Amendment No. 61.

Lord Campbell of Alloway

My Lords, this affords a measure of clarification but it does not exclude directions which relate to the activities carried on by a particular institution save as is provided by Clause 79(1), as proposed by Amendment No. 63, to which I shall come in due course. I am grateful to my noble friend the Minister for his assurance. I am not only grateful to him for the tremendous trouble he has taken in order to produce his Amendment No. 65, which in fact is wholly satisfactory save as to qualification, but also for considering the matter with which I have to deal, which is whether Amendment No. 61 affords the requisite measure of clarification. In my view, the assurance is in no way binding upon any court or judge. It is not apparent to anyone who reads the statute and it is insufficient.

We are here concerned with a method of conferring a power by Parliament on the Executive to do various things. I suggest that that should be expressed on the face of the Bill and not be implicit in what is to be read out of the Bill; nor be covered by an assurance from any Minister, however reliable and however much respected throughout the House, as is my noble friend Lord Belstead. There is nothing personal in this; quite the reverse.

We are a revising House. The way this matter should be dealt with is that if Parliament confers a power on a Secretary of State, it should be open, expressed and clear on the face of the Bill for everyone to see. In my respectful submission, Amendment No. 61 goes some way but not all the way. Against that background, while accepting that Amendment No. 61 goes some of the way, I quote the CVCP brief which I received this morning. That organisation should know what it wants and should understand the subject. It seeks, further clarification and if this is accepted, a proper balance between financial accountability and academic freedom will have been reached". That is in support of my Amendment No. 63.

To reach that end, I invite your Lordships—and it does not require much invitation—to accept Amendment No. 63 in due course on the basis that another place may substitute for, directed to any specific institution", the words, relate to the activities carried on by any particular institution". It is not possible at this stage to table a manuscript amendment. I am advised that the appropriate way, as a matter of principle and if your Lordships agree with me, is this. We should accept Amendment No. 63 in due course, if the House is so minded, and leave it to another place to deal with the matter, if it is so advised, when the Bill reaches it.

Amendment No. 65 in the name of the noble Lord, Lord Belstead, is acceptable. It reflects the substance of the Conservative Back-Bench amendment which commended itself to all sides of the House. I wish to thank my noble friend Lord Belstead for his Herculean endeavours, and also my noble friend Lord Cavendish for the care, time, trouble, patience and courtesy with which they have both dealt with the problems.

There is little more to be said. I rest upon the position that the power conferred by the legislature upon the Executive to lay a draft of a proposed statutory instrument before each House of Parliament in which directions are given is conferred by Clause 79(1). As your Lordships know, the procedure is governed by Clause 87. This is a delegation of legislative power and the nature and extent of the delegation should be clear and expressed on the face of the Bill and not subject to implication or assurance. I know that it may well be said that this is implicit. Well, is it?

I defer in such matters to my noble and learned friend Lord Simon, and I accept that this point is arguable, but we cannot accept that it is the inevitable conclusion. If such be the intention of Government—my noble friend has assured us that is the case, and I accept his assurance and his good faith; who would not accept that?—it should be expressed on the face of the Bill. That is the sole issue between us. It is a matter for your Lordships and for clarification. In the good order of producing legislation I suggest to your Lordships that it is proper to accept, in due course, not only Amendment No. 61 but also Amendment No. 63.

Lord Simon of Glaisdale

My Lords, I join in the welcome given to the Government's amendments to this clause. It seems to me they have gone a long way to meeting the anxieties that have been expressed about this clause. I would only say that that accentuates and is bound to exacerbate the suspicions that have already been aroused by the tenacity of the refusal to grant the crucial concomitant concession on Clause 66.

As regards this clause, subject to what the noble Lord, Lord Campbell of Alloway, has said, it seems to me that, largely, the Government have gone a long way to meeting all the legitimate objections. As regards the point made by the noble Lord, Lord Campbell of Alloway, in my respectful submission he is plainly right. The noble Lord the Paymaster General may be right on his point of statutory construction. That is not a matter to be argued at this time of night. It is sufficient to say it rests on an implication. I can certainly envisage—as the noble Lord, Lord Campbell of Alloway, can—a counter argument. The matter therefore ought not to be left on an implication but should be made explicit on the face of the Bill.

My only other point is this. The noble Lord, Lord Campbell of Alloway, is clearly right as regards the procedural method. The noble Lord, Lord Belstead, should accept the amendment of the noble Lord, Lord Campbell of Alloway, in principle and undertake to put it into the proper form in another place.

Lord Renfrew of Kaimsthorn

My Lords, I believe nothing has given so much dissatisfaction to this House in the whole progress of the Bill than the original Clause 79(2) giving a widespread and unbridled power to the Secretary of State as regards making directions. That is what the amendment of my noble friend the Minister now rectifies. I wish to echo the point made by other noble Lords, that we are all grateful for the enormous care which the noble Lords, Lord Belstead and Lord Cavendish, have taken over this matter so that the amendment which originally figured as the so-called Conservative Back-Bench amendment has now come forward in the form of Amendment No. 65.

Amendment No. 62 is the relic of that Back-Bench amendment which should have been withdrawn sooner. I hasten to withdraw it now. I wish to add simply that among those academics and indeed lawyers whom I have consulted there is a consensus that the clause, as amended by the noble Lord, Lord Belstead, is satisfactory.

I should particularly like to draw the attention of your Lordships to Amendment No. 61. It appears to be a paving amendment but it means that Clause 79(1) will read: shall comply with any directions under this section, and such directions shall be contained in an order made by the Secretary of State". That means that compliance must be in accordance with subsections (1A) and (1B) of Amendment No. 65. Therefore, the power of general directions under subsection (1A) of Amendment No. 65 and the specific powers spelt out in subsection (1B) relating to intervention when the finances have gone off the rails are the powers afforded.

It is not for me to seek alternative interpretations to those offered by the noble and learned Lord or by my noble friend. However, I have taken advice and I find that very persuasive. It is unfortunate that, as the noble Lord, Lord Campbell of Alloway, has by implication conceded by his mention of a manuscript amendment, his own amendment is defective in a minor sense. It provides that the directions of the Secretary of State may not be directed towards any specific institution whereas the mechanism of the Bill provides for the Secretary of State to make directions to the council which then passes them on to specific institutions. That is no doubt the nature of the manuscript amendment which would have to be introduced. I do not want to go into that complexity. If the House feels that the amendment of the noble Lord, Lord Campbell of Alloway, would be helpful if further amended in that way, I hope that my noble friend Lord Belstead will accept it. I do not believe that it alters the intention in any way.

The main point which I wish to emphasise is that we can now feel satisfied—although some of us may feel that we could have been satisfied earlier—that the Government have brought forward amendments which satisfactorily restrict the powers, which were formerly very wide powers. I congratulate my noble friend the Minister on having brought matters to that satisfactory conclusion.

10.15 p.m.

Lord Belstead

My Lords, I am grateful to my noble friend Lord Renfrew for those words and to other noble Lords who have said that they are satisfied with Amendment No. 61, together with the substantive amendment, Amendment No. 65. Those amendments are the complete answer to the original amendment, Amendment No. 169C, which was moved at the Report stage of the Bill. In that respect I am encouraged in moving the amendment.

However, I am somewhat dismayed that my noble friend Lord Campbell, who spoke to his amendment, Amendment No. 63, is of the view that the two limbs of Amendment No. 65 are not mutually exclusive as I asserted. I made that assertion on advice. I said that: The juxtaposition of a subsection concerned with general directions and a subsection with an institution-specific power makes it clear that the powers conferred by the two subsections are mutually exclusive". If it had been the intention to make the institution-specific power merely one way in which the general power could be used the main part of the amendment —subsection (1B)—would need to have been worded very differently.

I ought not to cross swords with two distinguished lawyers —the noble and learned Lord, Lord Simon, being a Law Lord in addition—and particularly after they were very generous in what they said to me. However, I put it to my noble friend and to the noble and learned Lord, Lord Simon, that they have not explained why they believe that the two limbs are mutually exclusive. The noble Lord, Lord Simon, simply rose to his feet and said that my noble friend Lord Campbell was right and sat down again. My noble friend Lord Campbell simply said that the matter was clouded in mystery and ought to be put right, but did not explain why.

Lord Simon of Glaisdale

My Lords, surely it would be an imposition to embark on detailed matters of statutory construction at this hour of the night and at this stage of the Bill?

Lord Belstead

My Lords, I accept that from the noble and learned Lord, Lord Simon, and turn to the amendment of my noble friend Lord Campbell. My noble friend's amendment would not work. Assuming, as I think is the case, that his reference to subsections (1A) and (1B) of Amendment No. 65 is intended to refer to the two limbs of my amendment, that implies that both the general power in the first limb and the specific power in the second limb are institution-specific. That would mean that there is no direction-making power left in the amendment which is not specific. Presumably that is not what my noble friend intends; it would make a complete nonsense of his amendment. It makes Amendment No. 63 in the name of my noble friend absolutely nonsensical.

On Question, amendment agreed to.

[Amendment No. 62 not moved.]

Lord Campbell of Alloway moved Amendment No. 63: Page 60, line 37, at end insert ("which save as provided by subsections (1A) and (1B) below, may not be directed to any specific institution.").

The noble Lord said: My Lords, the advice to my noble friend Lord Belstead was calculated to make nonsense of my amendment. Of course the noble Lord appreciates that I make no complaint that he gives your Lordships the advice that he receives. However, I have not been particularly impressed at any stage of the Bill with the quality of that advice and I question it. The advice of course was such that it rubbishes the amendment.

Perhaps I may read an extract from a document that I received this morning from the CVCP. I did not ask for it. It states: The amendment tabled by Lord Campbell of Alloway, Baroness Warnock and Lord Flowers seeks further clarification and if this is accepted a proper balance between financial accountability and academic freedom will have been reached".

They were not prepared to rubbish the amendment but perhaps they received other legal advice.

Most lawyers tend to disagree on the question of advice. It is very seldom that one finds the advice of lawyers wholly consistent. All that my noble and learned friend Lord Simon and I are saying is, first, that it is an arguable point that warrants clarification; secondly, if one is delegating powers to a Secretary of State it should be plain on the face of the statute.

My noble friend Lord Belstead may be right that this juxtaposition advice that he has received is wholly well founded and totally convincing. But it is not assuredly right. Rather than relying on the game of shuttlecock between one legal adviser and another, why not have the matter plain on the face of the statute? I beg to move.

Lord Simon of Glaisdale

My Lords, I have already indicated that it seems to me that the noble Lord, Lord Campbell, is right. If one relies on an implication it is arguable and therefore it is best to make the matter specific.

I rise again only to say this because the noble Lord the Leader of the House is present. The noble Lord, Lord Campbell, cannot under the rules of order move a manuscript amendment at Third Reading. There have been many examples of how inconvenient that rule is. This is yet another. It matters less with this measure going to another place, but when your Lordships' House is the last place of consideration it is a highly inconvenient rule. I hope that the noble Lord the Leader of the House might consider taking up the matter again with the Procedure Committee.

On Question, amendment negatived.

[Amendment No. 64 not moved.]

Lord Belstead moved Amendment No. 65: Page 61, line 1, leave out subsection (2) and insert: ("(1A) The Secretary of State may give general directions to a council about the exercise of their functions. (1B) If it appears to the Secretary of State that the financial affairs of any institution within the higher education sector have been or are being mismanaged he may, after consulting the council and the institution, give such directions to the council about the provision of financial support in respect of the activities carried on by the institution as he considers are necessary or expedient by reason of the mismanagement.").

The noble Lord said: My Lords, I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Simon of Glaisdale moved Amendment No. 66: Page 61, line 4, at end insert: ("( ) No order under this section shall have effect until approved by a resolution of each House of Parliament.).

The noble and learned Lord said: My Lords, this amendment proposes that the direction-making power should be subject to affirmative resolution. It also goes with the next amendment which is consequential. This amendment is the same as that put down at an earlier stage by the noble Baroness, Lady Young. Cogent as the argument was then, it has been reinforced by the terms of the amendment of the noble Lord the Paymaster General which your Lordships have just approved.

We have been over this ground before and know the advantages of affirmative resolution over negative resolution. The negative resolution frequently and generally does not come on at all in the other place. When it does, it comes on at an inconvenient hour. The first advantage of the affirmative resolution procedure is that the Government have to make time for it. The second advantage is that the Minister in charge moves the regulation and explains why it is needed. It is universally regarded that the affirmative resolution procedure is a superior form of parliamentary control than the negative procedure. It was for that reason that the Joint Select Committee on Delegated Legislation of 1972 and 1973 laid down criteria for the choice of affirmative or negative resolution.

Your Lordships will remember that those matters were canvassed at Report stage on an amendment by the noble Earl, Lord Russell. The criterion of the Joint Select Committee was that it should be affirmative if the regulations were likely to be important or substantial. The Joint Select Committee explained what it meant by that. It recognised that "important" and "substantial" were somewhat vague terms and one had to look at "important" in contradistinction to "trivial" and several other things like "consequential".

The sole question here is whether the regulations are likely to be important or trivial. Opinions differed on the amendment of the noble Earl, Lord Russell. It was very much a borderline case. The noble Lord, Lord Renton, having hesitated, on the whole thought they could be described as trivial. The noble Lord, Lord Peyton, took a different view. In view of the difference of opinion the noble Earl did not pursue the matter. But here there can be no possible question at all. I ask your Lordships to look at the new Amendment No. 65. It states: The Secretary of State may give general directions to a council about the exercise of their functions".

Obviously, a general direction of that type must be important. I hope that the noble Lord the Paymaster General will say whether he believes that regulations made under his new subsection (1) are important or trivial. The same goes for subsection (2), although it can be treated differently.

Subsection (2) is the institution-specific direction. I am anticipating an argument that will be put forward on subsection (2), because the noble Lord the Paymaster General put it forward in relation to the amendment moved by the noble Earl, Lord Russell. It is that an affirmative resolution attracts the hybrid regulation procedure in your Lordships' House alone. The argument will be that quick action will be needed in a subsection (2) regulation; the hybrid regulation procedure may impose delay; and, therefore, it should not be entertained so far as subsection (2) is concerned.

The answer to that point is simple. Hybridity can be excluded. The proper course would be for the noble Lord the Paymaster General to accept the amendment and if he fears hybridity to exclude it in the other place so far as subsection (2) is concerned. That is done in the Local Government Bill which is currently before Parliament. I have drawn the attention of the noble Lord the Paymaster General to the relevant clause. It has been done in a previous Local Government Bill. The exclusion of hybridity was countenanced by the Joint Select Committee, although it said that that action should be exercised with caution.

We return to the fact that in relation to both the criterion of importance is surmounted; the criterion of triviality cannot be advanced; and so far as hybridity is concerned it can be excluded. I beg to move.

10.30 p.m.

Lord Peston

My Lords, I favour the amendment. Noble Lords will be aware that the question of affirmative versus negative procedures usually does not exercise me. It is my view that modern, efficient government requires Secretaries of State to have order-making powers. When they are of the negative type it does not seem to me, as it does to other noble Lords, that it is the first step along the road to the Gulag Archipelago; but in this case it seems to me that the noble and learned Lord, Lord Simon of Glaisdale, is right, especially as the noble Lord, Lord Belstead, argued that the powers would be used in extremis only; in other words, they would be used only in special and difficult cases. Therefore, it seems to me to be right that for once the affirmative procedure should be the one for which the Secretary of State would wish to go.

I believe that the Secretary of State would wish to be able to put his case to us via the affirmative procedure. Unusually for me, I support the amendment, and I hope that the Minister will be able to give us an affirmative answer.

Lord Belstead

My Lords, I hesitate to disappoint the noble Lord, Lord Peston, who has spoken cogently on this matter, but I believe that Amendment No. 65, which was tabled in direct response to what the House asked for at the previous stage and which includes the consultation process in subsection (1B), should not be subject to the affirmative resolution procedure. An order under this clause would be subject to the negative resolution procedure.

The reason I say that—and this has been referred to by the noble and learned Lord, Lord Simon of Glaisdale, whose amendment we are now debating—is because a statutory instrument containing an institution's specific direction under the affirmative resolution procedure would almost certainly be hybrid and, as such, subject to the hybrid instrument procedure of this House. As your Lordships know, that involves, among other things, giving the affected institution the right to petition and to appear before the Hybrid Instruments Committee. The procedure can be extremely lengthy.

It is in the nature of emergencies that they often need a rapid as well as an effective response. The Secretary of State is already required by Amendments Nos. 61 and 65 to consult the funding council and the institution concerned before making a direction. That is not only a safeguard but it is also bound to take time. To involve also the hybrid instrument procedure, piling representation upon consultation, would surely put at risk the effectiveness of using the amendment at all.

I was surprised to hear the noble and learned Lord, Lord Simon, commend as a solution to that problem the "dehybridising" of the affirmative resolution procedure. It is true that the Government sought to take that course on one of the local government Bills, when the noble and learned Lord, like a deus ex machine, appeared as if from nowhere and both in Committee and on Report tabled amendments castigating the Government for daring to do such a thing.

Even if I were not surprised that the noble and learned Lord should be promoting something which he condemned only a few months ago, if there is, as the noble and learned Lord and the noble Lord, Lord Peston, say, a strong case for an affirmative resolution and there should be a hybrid procedure, the case for maintaining the private rights and interests of the hybrid procedure is surely all the stronger.

The problem about that is that it would mean that the amendment tabled with the agreement of all sides of the House—namely, Amendment No. 65—would be unworkable because of the hybrid affirmative resolution procedure. I must resist that.

Lord Simon of Glaisdale

My Lords, first, I must apologise for the fact that I was losing my voice when moving the amendment.

Perhaps I may say that I was not in the least surprised that the noble Lord, Lord Belstead, did not answer my question as to whether the regulations are likely to be important or trivial. Obviously, he could not answer that because they are bound to be important for the reasons given by the noble Lord, Lord Peston.

However, the Minister did not disappoint me by referring to hybridity. Hybridity might make subsection (2) (b) quickly unworkable. However, that can be avoided in the way that I pointed out. It is true that I thought that that was unjustified in the local government Bill but the Minister in charge of the Bill argued strongly for it. As the noble Lord, Lord Peston, pointed out, the case here is much stronger. If it is "dehybridised", as the noble Lord put it, in the other place, I should not find it possible to argue that your Lordships ought not to accept that amendment from the other place.

Therefore, we come back to the fact that, under both subsections, these are important amendments in so far as the valuable hybrid regulation procedure, peculiar to your Lordships' House, can be excluded. The argument for the affirmative resolution procedure as regards both limbs of the amendment stands unimpugned.

It would be absurd to divide the House at this hour on this point. But I am bound to say that, while the Government persistently try to downgrade parliamentary control of subordinate legislation, they will do themselves great constitutional harm. Considerable doubts have been aroused in influential quarters as a result of the way in which the passage of the Bill has been conducted. I do not refer to the noble Lord the Paymaster General, who has been courteous and patient throughout. But the fact is that every concession has been fought inch by inch to the last moment, and now we find the department arguing strongly that the minimum proper parliamentary controls shall be still further minimised and only the insufficient negative resolution procedure shall be available.

As I said, it would be absurd to divide the House at this time, but it is with some indignation that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 67 not moved.]

Clause 87 [Orders, regulations and directions]:

[Amendment Nos. 68 and 69 not moved.]

Schedule 2 [Courses of Further Education]:

Baroness Darcy (de Knayth) moved Amendment No. 70: Page 71, line 21, at end insert: ("( ) a course to teach independent living and communication skills to persons having learning difficulties which prepares them for entry to another course falling within paragraphs (d) to (h) above;").

The noble Baroness said: My Lords, the purpose of Amendment No. 70 is to extend the list of courses for which the FEFCs are responsible to include a course in independent living and communication skills. It is similar to amendments I withdrew at earlier stages but, following discussions and a most helpful meeting with the noble Lord, Lord Cavendish, and one of his officials, the amendment now seeks to achieve its purpose in a rather different and, I hope, more satisfactory way.

The amendment will cover most students needing courses in independent living; that is, when they are one step before a preparatory course or a further basic skills programme. They will thus benefit from being based in FE colleges and can gain from the daily contact with other students. It has the strong support of disability organisations.

The Spastics Society says that its educational centres have frequent problems in placing students on further skills courses or pre-vocational courses because of the difficulties that students experience in communicating, and this amendment will be valuable to them. The RNID support the amendment because it means that most sign language classes will be under the funding councils.

However, with the amendment in its present form two groups of people will not be covered, and I hope that if the amendment is accepted, the Minister will be able to give thought as to how their needs may be met, whether by a letter to the LEAs, in guidance or whatever. First, families of deaf children: the latter are increasingly taught to sign at school so it is important that the siblings and parents also learn sign language to enable the family to communicate. There is a need to clarify the LEA's duties to provide such courses free or at reasonable cost.

Secondly, lip readers: while some young deafened people will be covered by the amendment, by far the greatest number of people in need of lip-reading classes will be elderly. Therefore they will not be covered in the amendment. There is a great shortage of lip-reading classes. Deaf Accord and the British Association for the Hard of Hearing, which has several thousand members, are anxious about the matter. Part of the problem is that there is some doubt as to whether they are the responsibility of LEAs, health authorities or social services. That needs to be made clear. I hope, therefore, that the Minister is able to come up with some way of safeguarding the needs of those two groups.

Meanwhile, I hope that the amendment provides a satisfactory solution for the students needing courses in independent living and communication skills. I beg to move.

10.45 p.m.

Lord Cavendish of Furness

My Lords, I am glad to say that the Government are able to accept this amendment. Its effect, in combination with the words already in the schedule, is to bring into the FEFCs' area of responsibility courses in independent living and communication skills for students with learning difficulties, where they lead on to any of the other types of course listed in that schedule.

Your Lordships will recall that we have debated the matter before. I have also had the opportunity to discuss it in more detail with the noble Baroness, as she said. I would like to pay tribute to her persistence in advancing her cause. Those for whom she works must have great cause for gratitude. I am glad that those discussions have enabled us to reach a common view.

As regards the other matters that the noble Baroness raised, I hope that at this time of night she will not mind if I write to her, especially as I am not yet in a position to say exactly what the situation might be. Meanwhile, I am glad to say that we can accept the amendment.

Baroness Darcy (de Knayth)

My Lords, I thank the Minister very warmly indeed, not least for the kind things that he said about me. As I said, the amendment will be greatly welcomed by the disability organisations. Of course I do not expect the noble Lord to come up with a solution at this hour for the other two groups which are not covered. I very much hope that eventually he will be able to do so. I hope that we have correspondence about it. I thank the noble Lord, Lord Cavendish, for always being so willing to discuss, reflect and come up with a satisfactory solution.

I am not going to make a speech on Bill do now pass; I have spoken quite enough. But perhaps I may thank the noble Lords, Lord Belstead and Lord Cavendish, for their unfailing co-operation and good humour. The Government have responded very generously to students with learning difficulties. I am most grateful for the amendments on transport and the condition of grant on funding councils. I am particularly pleased that the Government have been able to accept this amendment to Schedule 2. It may seem very small in relation to the broader issues that we have been discussing over the past few hours, but it is very important and of great benefit to the students concerned.

On Question, amendment agreed to.

Schedule 6 [New Schedule 7A to the Education Reform Act 1988]:

Lord Cavendish of Furness

moved Amendment No. 71. Page 78, line 28, after ("board") insert ("and up to two may be students at the institution nominated by the students at the institution"). The noble Lord said: My Lords, on behalf of my noble friend I move Amendment No. 71 and speak to Amendments Nos. 72 to 74. We had lengthy discussions about student representation on higher education corporation governing bodies in Committee and at Report stage. At Report stage, the House voted on and rejected an amendment in the name of the noble Lord, Lord Addington, which would have restored the automatic right of student representation.

This amendment has the same effect as one which my noble friend Lord Renfrew had tabled at Report. It continues to be phrased in terms of a freedom rather than a requirement. But it expresses that freedom full square on the face of the Bill and, if I may employ the expression used in the earlier debate by my noble friend Lord Renfrew, it provides for students, if chosen, to be pukka members of the corporation: involved in choosing co-opted members, rather than being in that category themselves.

Turning now to Amendments Nos. 72, 73 and 74 in the name of the noble Lord, Lord Addington, I point out that they have virtually the same effect as Amendment No. 71. The principle underlying them is identical. There are three differences of detail. First, Amendments Nos. 72 to 74 limit the students who may be members of the governing body to full-time students. Amendment No. 71 does not contain that limitation. I imagine that where there are student governors they will be for the most part full-time students, but in institutions in which there are large numbers, perhaps even a majority of part-time students, it is desirable to have the added flexibility which is in Amendment No. 71.

Amendments Nos. 72 to 74 provide for student governors to be elected rather than nominated. In practice it may be that there is not a great deal of difference between these two. It seems unlikely that students will elect governors whom they have not already elected to represent them in one capacity or another. On balance, I believe that nomination does offer a little more flexibility for governing bodies and students to attain a mutually agreeable approach. The Education Reform Act already provides for nomination.

Amendments Nos. 72 to 74 have the possibly unintended effect of providing that students could be independent members of governing bodies. It seems to me that that would blur unhelpfully with the distinction between the variable categories. I beg to move.

Lord Renfrew of Kaimsthorn

My Lords, it is pleasant to end on a note of harmony. Like the last speaker but one, I should also like to commend my noble friends Lord Cavendish of Furness and Lord Belstead not only for the sympathetic way in which they have treated this matter but for the sympathetic manner in which they have treated all these difficult issues throughout the debate. It was the initiative of the noble Lord, Lord Addington, in bringing this general matter to the attention of the House, that has been largely instrumental in achieving the satisfactory outcome which we now have. I very much hope that in a moment he will profess himself satisfied.

This Bill goes a long way towards restoring the position of students on the higher education corporations to that which appertained in the 1988 Act. The only regret one might have is that here it says "may" rather than "shall". But at any rate students are restored to an integral place along with teachers at the institutions as pukka members; that is, as appointed, not co-opted members. Further down the printed page this amendment allows the provision that they may also serve as co-opted members. My right honourable friend the Secretary of State has been reported as saying that provision for students was dropped initially in the Bill at the instance of certain directors of polytechnics. The noble Lord, Lord Pearson of Rannoch, made reference to that at an earlier stage of the Bill. But that has always seemed to be an extraordinary representation and I am happy to say that, now that the polytechnics are going to become universities, they will also, I hope, have that greater degree of maturity whereby students will take an integral part in their deliberations. This is a most happy outcome which I commend to the House.

Lord Addington

My Lords, I should like to thank the Government Front Bench for bringing forward this amendment and for allowing us to debate this issue so often. We achieved the final answer at Third Reading, although the issue was originally raised in Committee. Nevertheless I thank both the noble Lords who have steered the Bill, who have put the case forward and who have handled it with great courtesy.

The final amendment is one that addresses the issue of part-time students. The noble Lord, Lord Renfrew, was instrumental in drawing up the three amendments which appear under my name, but both he and I would like to express our appreciation that part-time students are now included. I should also like to thank the noble Lord, Lord Renfrew, for his neat footwork at various stages of the Bill in allowing this issue finally to be raised at this stage and for giving us a stop-gap position. I thank the noble Lord and the Government Front Bench.

Baroness Perry of Southwark

My Lords, I should also like to add my thanks to the two noble Lords for their help with this amendment and for their drafting of this new amendment. I hope that the position as stated by the noble Lord, Lord Renfrew, will not go on record as being the position in polytechnics. Our record of student participation and student democracy is without question as good as and possibly, in some cases, better than that in some universities. As a group, the Committee of Directors of Polytechnics has continued to press for flexibility in the way that the Bill is worded and I very much welcome the fact that Amendment No. 71 provides for that flexibility.

Baroness Blackstone

My Lords, in the absence of my noble friend Lord Morris of Castle Morris who is unable to be here, I too would like to welcome this amendment and to thank the Government and the noble Lord, Lord Belstead, for bringing it forward.

On Question, amendment agreed to.

[Amendments Nos. 72 to 74 not moved.]

An amendment (privilege) made.

Lord Belstead

My Lords, I beg to move that this Bill do now pass.

At this hour your Lordships will not wish me to say very much. However, in the tradition which I believe is embedded in our Companion to the Standing Orders, referring to the Motion "That this Bill do now pass", that we do not lament what is not in the Bill but perhaps extol what is in the Bill, may I say that with the help of all your Lordships we have covered some very useful ground. Indeed it can almost be said that we have left no stone unturned. In particular, my mind goes back to the fact that the Government have been able to give some useful assurances to the noble Baroness, Lady Lockwood, about the long-term residential colleges, the WEA and the four London colleges for adults. The noble Baroness, Lady Darcy, was extremely generous in what she said about the changes for the disabled.

We have been over the ground thoroughly—indeed we have been over it again today—and no one could be a doughtier champion of adult education than the noble Baroness, Lady David. Although I realise that there are issues which divide us, it has been useful that during the proceedings on the Bill we have been able to establish that local education authorities will have a continuing duty to ensure adequate provision for all kinds of courses for adults that do not fall to the funding councils and that that duty will be supported by funding through the rate support grant settlement.

On the higher education clauses, well, enough is enough. However, I think that we would agree on one point. They are leaving the House in better shape than when they came here, although noble Lords will not expect me, speaking from this Dispatch Box, to say that that includes Amendment No. 53. I say that in a spirit of friendliness to my noble friend Lord Beloff.

I should like to make on other point. I have heard criticisms being voiced in the House today of the department as a department. I remind the House that it is not possible to make headway in making changes to a long and complicated Bill unless those who are members of the department are enthusiastic about, as they see it, improving the Bill in co-operation with your Lordships. I am extremely grateful for the work that has been done on the Bill by the department.

I am also extremely grateful to your Lordships. I thank my noble friends on these Benches. Of those who are still here I thank my noble friends Lord Renfrew, Lady Young, Lady Perry, Lord Limerick and Lord Beloff, who I find a difficult opponent but a splendid friend. I thank my noble friend Lord Pearson and others. I thank noble Lords on the Cross-Benches who have taken part in the debates. I thank the noble Lords, Lord Flowers, Lord Adrian and Lord Dainton, and of course the noble Lord, Lord Annan. I feel sure that I have made omissions. On the Liberal Democrat Benches I thank the noble Earl, Lord Russell, the noble Lord, Lord Addington, and the noble Baroness, Lady Seear, for the part they have played. Finally, I thank noble Lords and the noble Baroness, Lady Blackstone, opposite.

I say quite genuinely that no one could have to contend a Bill against fairer opponents but I regret to say that no one could have to contend a Bill against more knowledgeable and formidable opponents. Noble Lords opposite certainly have played a remarkable part in the proceedings on the Bill.

In conclusion, perhaps I may—because it is engraved on my mind —thank those on the Bishops' Bench who have taken part; the most reverend Primate today and the right reverend Prelate the Bishop of Guildford throughout the proceedings on the Bill. The right reverend Prelate notched up a famous victory today. Finally, I thank my noble friend Lord Cavendish for doing a very great deal to pilot this Bill through. I commend the Bill to the House.

Moved, That the Bill do now pass.—(Lord Belstead.)

Lord Annan

My Lords, perhaps I may just say a few words of thanks to the noble Lord, Lord Belstead. He has given a parliamentary performance of quite astonishing vitality and courtesy. He has fought a very difficult battle and he has fought it all the way with the greatest charm and the greatest willingness to meet the House. My mind went back to the 1970s when he used to speak for education. It went back in another way. It was then that Mrs. Shirley Williams put 13 points to the universities and they rubbished them. Well, since that time, the Conservative Government have been putting, at any rate, some of those 13 points into operation. Because, obviously, the former vice-chancellors and chairmen of the UGC have spoken with such vigour in moving amendments, the noble Lord should not think that universities are not sensible of the need for change.

The Bill before us is very important as regards producing change in the universities; indeed, it is much needed. Moreover, I believe that there is still too great a reluctance in universities to accept the fact that perhaps the criticisms of some people on the outside are justified or, at any rate, partially justified. We may look back on the speech made by the noble Lord, Lord Pearson, with some approbation in some quarters and some regret and chagrin in others. I believe that changes will take place in universities as a result of the Bill. I welcome them; and I welcome the kind of changes that the noble Lord, Lord Belstead, has in mind.

11 p.m.

Baroness Blackstone

My Lords, I should like to begin by thanking all those who have taken part in the deliberations on the Bill. Like the noble Lord, Lord Annan, I am immensely grateful to the noble Lord, Lord Belstead, and the noble Lord, Lord Cavendish, for the extremely courteous and helpful way that they have handled the Bill. They have been extremely responsive to the many requests which were made for further information and clarification. I, alone, must have received at least five or six letters during the course of the proceedings in answer to questions that were difficult to answer in the Chamber. Of course, we also received many answers to questions put in the House on a direct basis.

However, I regret the fact that the Government were a little slow to accept the legitimate concerns of many of your Lordships on Clauses 66 and 79, so that we were left on Third Reading with the task of trying to sort out some of the problems. But it is possible that that was beyond the control of the noble Lord, Lord Belstead, because the matter was determined by the Secretary of State and his advisers.

I should especially like to welcome the contributions made by new Members of the House; for example, the noble Baroness, Lady Perry, the noble Lord, Lord Renfrew, and my noble friend Lord Desai. Higher education is a subject in respect of which there is a great deal of expertise in the House, especially on the Cross-Benches. I should also like to thank all those Cross-Bench Peers who have helped to improve the Bill, thus making it a better Bill as it leaves this House than was the case when it arrived here. Similarly, I should like to extend my thanks to those who spoke from the Bishops' Benches.

Because of the very extensive knowledge of higher education in the House, the debates may have been a little longer than they might otherwise have been. However, they have certainly been of a higher quality. Last but not least, I should like to thank all my noble friends on these Benches who have contributed to the debates. I should especially like to thank my noble friends Lady David and Lord Peston.

If I have one regret about the proceedings it is that there has been much less interest in the further education part of the Bill. It is just as important as higher education, if not more so. It affects just as many adults and young people, if not more; and it is a growing part of our education system. It is a sector that we must get right and make work well. Unfortunately, if the Bill is enacted, I do not believe that it will achieve those aims.

Throughout the debates, no good educational arguments were put forward as to why further education should be taken out of local government control. Many noble Lords accepted that further education colleges are local institutions. Indeed, no one denied that during our debates, or made a convincing case to show that the further education funding councils would be a better way of allocating funding to the further education colleges and providing the structure in which this sector of the education system would operate.

We were told that further education college principals wanted this change, and of course any institution wants the maximum autonomy. The right approach would have been to give the further education colleges greater autonomy through corporate status but to leave the local authorities as the strategic planners of 16 to 19 education and of further education for the adult population in their areas. This would have had the benefit of greater independence for the colleges without the massive disruption to the system entailed in the new funding councils and the regional structure beneath them. The Government have always claimed that they dislike unnecessary bureaucracy, but it seems to us that what they have done in this Bill is to create an unnecessary tier of bureaucracy and one that will be rather expensive.

The vendetta the Government have been pursuing against the local authorities has now reached a point where it can only be described as a damaging obsession. By objecting to amendments to ensure that local authority representatives should sit on the funding council and the new corporation governing bodies, supported with considerable conviction by my noble friend Lord Callaghan of Cardiff and others, the Government have rejected a sensible compromise which would at least have created proper links within the new structure to be established. Informal links are one thing, and they are to be welcomed, but we need a guarantee of more formal links in order to maximise communication and ensure co-operation.

The unnecessary speed with which the Government are trying to bring about these major changes to the delivery of further education is also a matter of concern. At every stage of our discussions on the Bill I have put down amendments designed to establish a more realistic timetable. I now understand that not only are the college principals concerned about the way the transition to the new structure is being rushed through; so also is the new chief executive of the English funding council. It cannot be right to jeopardise orderly and well-managed change by an absurdly short timetable. In the end it will be the students who will suffer because their education is damaged, and in turn the nation then suffers. I only hope that my worries about this prove to be unfounded. I shall be delighted to be proved wrong.

What of course is fundamentally important is the quality of courses on offer. There is unfortunately nothing in this Bill about the content of further education, and again amendments put forward on the curriculum were rejected by the Government. The Bill's proposals for monitoring the work of the colleges are also a matter of concern and will need to be watched carefully. Without the long-standing expertise and experience of local authority advisers and officers some colleges will certainly suffer. Despite the Government's assurances, there will also be a great deal of concern about the question of charging in both schools and colleges, concern which is being voiced now by the college principals themselves.

If the Government's promises on this matter are broken we will certainly not hesitate to bring this to the public's attention. When the Labour Party wins the election, as will happen in a matter of months, we shall wish to reconsider the further education part of this Bill. It is in our view flawed. We shall also wish to ensure that adult education gets the support and resources that it deserves. Again there have been many opportunities in Committee and on Report and Third Reading for the Government to accept amendments which would have provided the reassurance that millions of adult learners want.

Even today my noble friend Lady David moved amendments to achieve this, but again the Government have been deaf to the pleas of the adult education world and the students for whom the opportunities it provides are so important. I regret this intransigence almost more than the failure of the Government to listen to some other aspects of the first part of the Bill.

Turning to higher education, the Labour Party has argued vigorously for some time that the binary line between the polytechnics and the universities should disappear. We have favoured merging the existing funding councils for a number of years and are glad that, having resisted this for quite a while, the Government have at last accepted our arguments. If the new system is to work, resources must be found to support the expansion of higher education. We cannot go on increasing student numbers without providing the wherewithal to do so and to maintain quality.

The Bill as originally drafted gave rise to a storm of protest over the powers it gave the Secretary of State to interfere in the activities of individual universities. To have left such powers on the face of the Bill would have been very dangerous indeed. Only the Secretary of State and perhaps the Department of Education and Science civil servants advising him seemed unable to recognise this initially. In this House the unified opposition of government Back-Benchers, the Labour Opposition, the Liberal Democrats—whom I also wish to thank for their part in the work on the Bill —and the independent peers in the end forced the Government to retreat and bring forward amendments to protect academic freedom. It took time, but in the end, against the threat of certain defeat, the Government thought again.

I am grateful to all those who took part in the debates. We have secured important changes to this part of the Bill. It is an excellent illustration of the important role this House can play in revising legislation when the Government have got it wrong.

Lord Simon of Glaisdale

My Lords, Lord Beaconsfield described Lord Hartington's speech on the Treaty of Berlin as a string of congratulatory regrets. The atmosphere on a Third Reading or on the Motion that the Bill do now pass generally has that character. On this occasion the congratulations can be fervent, particularly so far as they relate to the noble Lord the Paymaster General. On the other hand, so far as I have been able to read the Bill—and this is only on higher education and the threats to academic freedom—the regrets must be profound.

However, it is pleasanter to start with the felicitations. My noble friend Lord Annan and the noble Baroness, Lady Blackstone, as well as the noble Lord the Paymaster General have expressed solicitously what we all feel about those who have been principally concerned with the Bill.

I wish to say a few words about the noble Lord the Paymaster General. In 40 years of Parliament I have never known a Minister face greater difficulties and carry his Bill through to the very end so triumphantly. Just think of the difficulties. The Bill went back on undertakings that were given in 1988. That had to be justified. It went back on them after a failure to nullify the effects of those undertakings in the case before Mr. Justice Simon Brown. It was a fantastic difficulty. Added to that, the provisions of the Bill as introduced had aroused widespread alarm throughout the academic community.

Those apprehensions were increased rather than reduced by the way every concession had to be wrung and every step was contested inch by inch, as I said earlier. Those were great difficulties and yet the noble Lord has brought the Bill, unamended in those two important clauses, to Third Reading. But then the regrets begin. Although a safety catch was fitted on the Clause 79 barrel, I fear that Clause 66 is still full of potential mischief. I do not suppose for a moment that those who are now in charge will misuse it, although one must not forget that the attempt before Mr Justice Brown to nullify the 1988 concessions took place within three years.

The other point I wanted to make by way of regret was the attitude just recently evinced as to parliamentary control. It is part of a serious pattern in which parliamentary control over administrative bodies has been persistently devalued in the past, I suppose, five years. The time will come when all the unconstitutional provisions that have crept in to our legislation—not least in the so-called child support Act—must be pulled together. Tonight is not the night to tackle that issue. One can only express regret that a further grave intrusion upon parliamentary control has occurred in the shape of this Bill. However, I do not want to end on that note. I prefer to end as I began, with the congratulations which are abundantly due to the noble Lord the Paymaster General and also to the other noble Lords who have been mentioned.

11.15 p.m.

Earl Russell

My Lords, when the Minister thanked those who had taken part in this debate he spoke in a way absolutely characteristic of him. I wish to join in the thanks to all those he named, save one. For that one I can only say thank you. If I say that the Minister has been courteous, I say what everybody knows and nobody would have doubted. I say the Minister has been patient and I believe he cannot always have found that easy during this Bill. I say the Minister has been gentle. He has been reasonable and accessible, but, what is more, the Minister has undertaken a formidable task of negotiation.

We have heard tonight in the amendment from the noble Baroness, Lady Darcy (de Knayth)—I assure her, the amendment was not small at all—and in the amendment on student representation just two of the fruits of the Minister's powers of negotiation and of the work, patience and persistence he has put into those issues.

I do not know how great were the difficulties that he has been labouring under, but I have an imagination and I have a considerable respect. I also wish to thank the noble Lord, Lord Cavendish of Furness, who is one of the most thoughtful people on the Government Front Bench. An argument in which he joins is one he will think about afterwards. Engaging in debate with him is always interesting.

My admiration for the Ministers, which is deep, does not extend to the Bill. When the noble Lord, Lord Belstead, made his statement about Part I of the Bill I said that it sounded to me like a knee-jerk reaction. Nothing that I have heard since has forced me to change my mind. I still do not understand why the Government have introduced Part I of the Bill. It has given rise to an extremely large postbag, the largest I have received on any issue before this House since the restrictions on political activity by employees in local government. My correspondents did not appear to have great confidence in the funding council regime. I hope that their fears are misplaced.

I also found that the fears among those taking part in adult education that they would not be adequately funded were even deeper than in any other area. Shortly Ministers will have an opportunity to speak directly to those who have those fears. I hope that they will have good answers for them.

In the debates on Part II of the Bill I have never known the House speak on such a non-party basis. I must thank your Lordships for the support and understanding which the universities have received in every quarter of the House. I am delighted by the success of the noble Lord, Lord Beloff, with Amendment No. 53. That is essential to the value and the international standing of the degree. Once, in Edwardian Oxford, someone who applied to do postgraduate work was asked, "Where is your first degree?". He replied, "BA, Albuquerque, New Mexico". He watched the man fill in the form and saw the writing upside down. What was written looked to him suspiciously like, "No degree". The Americans are a very generous people, as I have good cause to know, but there might be one among them who might at some time take pleasure in returning the compliment. If that amendment is not accepted we have a good deal of talking still in front of us. We all hope that we shall not have to go round that course again.

On the other hand, in respect of Clause 79 I am deeply grateful to the Minister, to the noble Baroness, Lady Young, to the noble Lord, Lord Renfrew - who has had a notable first Bill—and to many others who have taken part in discussion on the clause. In accepting that clause as satisfactory I feel that I, too, have moved. In 1988 I would not have accepted the specific power to which tonight I have agreed, but over Christmas I re-read the Public Accounts Committee report on the hearings on University College, Cardiff. Politicians and academics cross each other on many occasions. We have one thing in common: both are thespian professions. Some harsh things have been said about Whitehall in the course of the proceedings on the Bill. But we do not always understand the anxieties of Whitehall. It is a profession in which it is much easier to receive blame than to receive praise. It is because that got through to my imagination as well as to my intellect that I am happy with Clause 79 as it stands. However, I hope that the Government will not mistake poverty for mismanagement.

There is a link between autonomy and funding. Autonomy is about choosing. That is something that, tautologically, beggars cannot do. The House will be delighted that I shall not enter into a debate on funding at this time of night. The Committee of Vice-Chancellors and Principals is beginning one. I shall listen to it with great interest, but that is another story.

Lord Belstead

My Lords, I commend the Bill to the House.

On Question, Bill passed, and sent to the Commons.