HL Deb 20 January 1992 vol 534 cc633-720

7.28 p.m.

The Paymaster General (Lord Belstead)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Belstead.)

On Question, Motion agreed to.

Clause 64 [Grants to councils]:

Earl Russellmoved Amendment No. 144A: Page 47, line 14, at end insert: ("(c) any such terms and conditions which affect any institution differently from other institutions which are members of the same class shall not come into force until a draft has been laid before and approved by resolution of each House of Parliament.").

The noble Earl said: My Lords, both when we considered this subject in 1988 and when we consider it now, there has been a general sense of misgiving about allowing the Secretary of State a power to give specific directions to an individual institution.

Lord Belstead

My Lords, before the noble Earl starts into his remarks, can I ask whether Amendment No. 144A is the leading amendment in a group or whether it is being moved separately?

Earl Russell

My Lords, this is a single amendment. I beg the Minister's pardon for the lack of clarity. We had a lot of discussion today. We perhaps tried so hard to clarify matters that we failed. For my part in that I am sorry.

I was saying that there was a general misgiving about the power to give directions to a particular institution. When we discussed Clause 53 in Committee, the Minister said that one of the objections to making this power subject to the affirmative procedure was that it would involve the possibility of the instrument being hybrid, which would mean a lengthy procedure. That is a point in favour of it rather than against it. The powers of parliamentary sovereignty are in a mess. In its wisdom Parliament has decided that when it exercises those powers against a particular person or institution and treats a private interest differently from other private interests which are members of that class, it will use all the safeguards which are connected with the Private Bill procedure.

That is a good thing. If the Minister wishes to have the power to give directions or terms and conditions to a particular institution, he is doing something which of its essence is hybrid. Therefore, he should do it subject to the procedure which Parliament has worked out for controlling hybridity and not by the much more arbitrary and uncontrolled procedure of ministerial directive. I beg to move.

Lord Belstead

My Lords, the noble Earl has moved this amendment as a single amendment. If the House is content, when the noble Earl has finally finished with the amendment perhaps I may move the next amendment, which is Amendment No. 145. That is the peg on which we shall hang this very large group of amendments. However, I shall now deal with the noble Earl's amendment.

The Secretary of State's powers to attach conditions to grant are a quite normal instrument of policy. Those of us who have been involved in politics over the years can think of literally tens of times when we have known perfectly well that a condition is attached to a grant of some kind. Therefore, unlike the Secretary of State's direction-making powers, which are intended for use under exceptional circumstances and which I know have been the cause of very considerable disagreement in your Lordships' House —and we shall be debating again this evening—in principle it would not be appropriate to subject these condition-making powers in Clause 64 to parliamentary control.

Leaving the principle aside, my real worry is that this amendment is misconceived. Put in more vernacular language, I am not sure that it will work. Clause 64 enables a Secretary of State to attach conditions of grant to a funding council, which may impose requirements to be complied with by institutions falling within a specified class. I endeavoured to indicate at an earlier stage of the Bill the reasons for having that power. One aspect of its use would be in relation to pay and conditions of service settlements.

In that context some institutions might comply with the requirements, which would be the conditions, while other institutions might not. So the conditions may impact differently on individual institutions. But neither the Secretary of State nor anyone else will know in advance whether there will be a different effect on institutions, let alone which particular institutions will be affected differently from other institutions on account of their different reactions to the requirements set out in the conditions. In other words, the conditions would be of a general effect but they would impact differently according to the reaction of the different institutions.

Turning to the noble Earl's amendment, against that background an amendment involving parliamentary approval before such conditions could possibly come into force would be impractical. That is what worries me. In a sense this is an amendment which is putting the cart before the horse. Parliamentary approval would be needed before it would be possible to see what the effect of the conditions was on each individual institution.

Lord Campbell of Alloway

My Lords, Amendment No. 144A seeks to introduce a safeguard against an abuse of power arising under the linkage between Clauses 64 and 77. If Clause 77 were not to stand part or if it were left out on a Division under Amendment No. 173; or if it were to be amended as proposed by Amendments Nos. 169B and 169C, which I understand have the broad support of your Lordships' House, then there would be no justification for the introduction of this safeguard. However, if Clause 77 were to stand part as drafted, or amended as proposed by my noble friend the Minister, then it would be essential that some such safeguard should be introduced.

It may not be possible to resolve these matters until Third Reading, when there will be time to debate the amendments to Clause 77 at a more civilised and convenient hour. Therefore, it may be that the Government can give some intimation during this debate, if so advised, as to whether they will accept in principle Amendments Nos. 169B and 169C, which, together with my noble friend's Amendments Nos. 170 and 171, might well dispose of a serious constitutional issue concerned with an abuse of power under Clause 77. However, that may only be in a long-stop situation and in the nightmare scenario envisaged by my noble friend Lord Belstead (Official Report, 16/1/92; cols. 449–50.) That situation is not circumscribed by statute.

With great respect to my noble friend—and I say that sincerely and not tritely—he has made no justification for establishing in this Bill any such precedent as to how to order our affairs under our unwritten constitution. Section 134(7) of the 1988 Act provides that, The conditions subject to which grants are made … shall not relate to … payments by the council to any specified institution". Clause 64(2) (a) provides otherwise. I referred to that during the debate on Clause 53 (cols. 453–40.).

As your Lordships know, this is a very serious constitutional problem. The Secretary of State exercises his administrative control by imposing terms and conditions on grants under Clause 64 and by giving directions under Clause 77. The linkage between these clauses, together with Clause 53, constitutes conglomerate powers of control and direction without precedent in peace, war or any emergency. That was conceded by my noble friend Lord Belstead in our debates on Clause 53.

The essence of this problem arises with Clause 77, which is the tail which wags the Clause 64 dog, and in particular as regards Clause 77(2). Clause 77, put in plain English, gives the Secretary of State power to override virtually any decision of the council and in particular a council's distribution of the overall grant between councils.

Speaking for myself, the crucial question is whether Clause 77 is to be amended as proposed under Amendments Nos. 169B and 169C—what I call the Conservative Back-Bench amendments—which include my name and already seem to have met with informal approval in your Lordships' House. Add to them the amendments of my noble friend Lord Belstead—Amendments Nos. 170 and 171—and the composite would perhaps be a very happy marriage. Or, is Clause 77 to be left out? Here lies an issue. The unions want it left out. I have a letter from the Committee of Directors of Polytechnics which wants it left out and I have a letter from the Amalgamated Union of Teachers which also wants it left out. However, in my respectful submission that is not the right approach. The Conservative Back-Bench Amendment No. 169 is a fair resolution of the problem.

In any such situation there would be no inconsistency if Amendment No. 145, amended by Amendment No. 146, were carried into Clause 64. But if Clause 77 were to stand part only as amended by Amendments Nos. 170 and 171—the Government amendments—then an amendment such as Amendment No. 144A might well be appropriate. And why? It would serve as a safeguard against abuse of power; to impose special terms and conditions on any particular institution in the same class and institution. This linkage between Clauses 64 and 77 was described by the noble Lord, Lord Flowers, at Second Reading as producing a monstrous result and by my noble friend Lord Limerick and the noble Lord, Lord Broadbridge, as an overkill. They were views which represented the broad consensus on all sides of the House. I see many noble Lords present who expressed such views.

My noble friend the Minister asked for time to consider and in good faith has tabled Amendments Nos. 170 and 171 to seek to meet the argument. However, those of us whose names appear on the Conservative Back-Bench amendment consider that the full thrust of the argument which rested upon the linkage between Clauses 64 and 77 has not been met by my noble friend the Minister.

So, is it realistic to consider tonight, or at all events to divide tonight, on this or any other of the grouped amendments under Clause 64, all of which are designed to serve in their own way as a safeguard against abuse of power until it is known which, if any, of the grouped amendments to Clause 77 may be accepted by Government, in particular the Conservative Back-Bench amendment?

I apologise for the time I have taken. It is not a simple matter to explain. However, I hope it will be of assistance to your Lordships.

7.45 p.m.

Lord Simon of Glaisdale

My Lords, perhaps I may intervene on a purely procedural point at this stage. The order in which amendments appear might be described as disordered. That is not by any means the fault of the critics of the Bill, but rather the way that the department has chosen to play its hand. The only point I wish to make is on Amendment No. 172A which is in the leading name of the noble Baroness, Lady Young. It is to apply the affirmative procedure to Clause 77.

The noble Earl, Lord Russell, has already touched on that by mentioning the element of hybridity which the Paymaster General brought in at Committee stage. My only suggestion of a purely procedural nature is this. I do not know whether the noble Baroness, Lady Young, is going to move this amendment separately. I shall speak to it separately and my submission will be that no question of hybridity arises at this stage. I say that in the hope of shortening matters in case either the noble Earl, Lord Russell, wishes to continue with that or the Paymaster General intends to develop the point in his general argument on his amendment.

Lord Belstead

My Lords, with the leave of the House perhaps I may briefly say a few words. I understood the intention of the noble Earl, Lord Russell, was to move Amendment No. 144A, which is the first amendment on our Marshalled List, as a single amendment—an issue which the noble Earl lucidly and briefly explained—and that we were to discuss it. My noble friend Lord Campbell of Alloway then said—and I quite understand why my noble friend spoke as he did—that it was difficult to know what to do about the amendments under Clause 64 until we knew what was going to happen under Clause 77.

All I can say in reply to my noble friend Lord Campbell of Alloway is that the noble Earl, Lord Russell, as I understand the procedures of your Lordships' House, has every right to move Amendment No. 144A as a single amendment if the noble Earl wishes to in just the same way as the noble and learned Lord, Lord Simon of Glaisdale, gave us notice only a couple of minutes ago that when we get to Amendment No. 172A he wishes to speak to that as a single amendment. Whatever the grouping is, no one can stop any Member of your Lordships' House who feels strongly about an amendment from saying that he or she will wish to speak to it individually when it is reached.

Therefore, I feel that as the noble Earl, Lord Russell, wishes to take this amendment singly we ought to take it. However, may I give your Lordships an assurance before I sit down. I can respond to my noble friend Lord Campbell of Alloway by saying on behalf of the Government that if and when we have disposed of Amendment No. 144A I shall certainly move government Amendment No. 145 pretty briefly. That will be the peg on which we shall hang our portmanteau debate on Clauses 64 and 77. During that debate it will certainly be my intention to come clean—or as clean as I possibly can—in answer to any of the amendments put to me, including Amendment No. 169C.

Earl Russell

My Lords, I owe the Minister an apology. When we spoke on the telephone at midday today, he was right. I shall respond very briefly to a considered reply which he gave to my amendment and for which I thank him. I take the point about general conditions impacting differently on particular institutions. As I understand it, though I speak with timidity in so complicated an area, that is not actually covered by the hybrid procedure. It was not what I was trying to make this amendment bear on.

I take the point made by the noble Lord, Lord Campbell of Alloway, that we are not yet ripe to reach a resolution in this matter. I brought it before the House so that it could be considered. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Belstead

moved Amendment No. 145: Page 47, line 14, 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, as your Lordships will well remember, we had a lengthy debate on Clauses 64 and 77 in Committee, at the end of which I undertook on behalf of the Government to bring forward amendments which I believed would satisfy the concerns expressed. That is the intention of Amendment No. 145, which I move now, and of Amendments Nos. 170 and 171, to which I also speak, which are similar government amendments to Clause 77.

Clause 64 remains founded on the proposition of the Education Reform Act 1988 that the Secretary of State needs a condition-making power, and Clause 77 is founded on the proposition that he needs a direction-making power. The condition-making power is to promote policy developments in higher education. The direction-making power is to give the Secretary of State a longstop power of intervention in order to protect the taxpayer's interests in the considerable sums of public money flowing to higher education in the form of grant to the funding councils.

Perhaps I may say a few words about Clause 64. Its scope, I know, continues to cause concern. Section 134(7) of the Education Reform Act fetters the Secretary of State's condition-making powers by precluding him from attaching conditions in relation to the funding of individual institutions. It precludes the Secretary of State from setting as a condition that university X or polytechnic Y should receive a particular amount of funding. Is the position the same under the new structure represented by Clause 64, and in particular subsection (2) (a)? That is a reasonable question for any noble Lord to ask. I believe that it is the same under Clause 64 as it was when we left the Education Reform Act in 1988. If subsection (2) is read as a whole, I do not see that paragraph (a) can give rise to a power to attach conditions institution by institution. The paragraph is about attaching general conditions which apply equally to all institutions within a class or description. It is also about different impacts on institutions according to whether they meet the criteria specified; in other words, it is about general conditions but individual compliance. However, the key point is that while there may be a different impact on institutions, the Secretary of State cannot possibly know which ones in advance. That is the difference—the crucial difference —between these conditions and ones which would specify a particular level of funding for a particular institution.

A number of questions were raised about the Secretary of State's power of direction when we discussed Clauses 64 and 77 in Committee. Some noble Lords suggested that, rather than giving a direction in Clause 77, the Secretary of State should simply sack the chairman, the chief executive and other members of the funding council. Quite apart from difficulties in establishing whether the circumstances leading to a potential direction were such that individuals could be deemed to be "unfit to discharge the functions of a member of the funding council", I have to say that, in any case, such a course of action would be no less draconian than giving a direction under Clause 77. It would be more disruptive to the other business of the funding council. Under Schedule 1 as drafted, it would not be subject to parliamentary scrutiny.

We nonetheless had a spirited and fundamental debate on Clauses 64 and 77. As a result, I undertook, on behalf of the Government, to table government amendments which would, I thought, respond to criticism from many noble Lords of the open-ended nature of the powers conferred in the Bill by imposing important constraints. Amendment No. 145 and Amendments Nos. 170 and 171 provide that the Secretary of State may not frame conditions or directions by reference to particular courses of study or programmes of research. 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 or assessed.

Lord Flowers

My Lords, before the noble Lord moves on to explain his amendments, will he be kind enough to explain the significance of the word "otherwise" in Clause 64(2) (b)? It seems to me that that word negates the significance of what he has just said.

Lord Belstead

My Lords, I do not agree. Subsection (2) can apply only to the giving of directions of a general nature. The general directions will then impact individually on individual institutions according to their reaction. That is my reading of subsection (2). Perhaps I may return to that point in a moment if there is anything to add.

The amendments provide that the Secretary of State may not frame conditions or directions by reference to particular courses of study or programmes of research. That includes an institution's ability to offer particular courses or programmes. The amendments make certain that there can be no question of a Secretary of State prohibiting an institution from teaching a particular course. The Secretary of State could not intervene in the subject emphasis, for example by insisting that a history degree should concentrate on British history. Nor could he intervene in relation to any particular political, economic or sociological emphasis being given to the teaching of a particular course.

While it had never been the intention of the Secretary of State to do any of those things, the amendments do meet the concerns expressed by putting beyond doubt that neither the Secretary of State nor his successors could possibly do so. I believe that with Amendments Nos. 145, 170 and 171 the Government have moved very significantly to meet the concerns expressed both at Second Reading and in Committee about the scope of the Secretary of State's necessary condition and direction-making powers. Against that background I commend them to the House.

Before I sit down perhaps I may say a few words to the noble Lord, Lord Flowers. I should like to hear why he is putting a particular construction on that word. If the noble Lord can assist me with that when he speaks I shall do my very best to give him a reply.

Lord Peston

My Lords, I hope that this does not count as my contribution to the debate but I am still slightly lost as regards the Minister's contribution. Did I understand him to say that he would deal with his comments on the other amendments after they have been spoken to by other noble Lords? I had rather assumed that he would speak on those amendments as part of his introductory remarks. Am I right that he will speak on those later? Is that his proposal?

Lord Belstead

My Lords, perhaps I may intervene to answer that question. Under the rules of the House the Minister has the right to reply at the end of the debate. I thought that it would be my job to try to reply to the many amendments in this group and explain why the Government liked them or did not like them and to say whether they were prepared to do business on them or not to do business on them. It is tricky for a Minister to speak to amendments before they have been moved.

Earl Russell

moved, as an amendment to Amendment No. 145, Amendment No. 146: Line 5, leave out ("other than the duration of such courses or programmes.").

The noble Earl said: My Lords, I take the Minister's point about responding. It will be widely recognised as to the convenience of the House and therefore in order if the Minister should have leave to respond to the debate from time to time as points arise.

I should like to thank the Minister for giving me advance notice of the government amendment. Parts of it are excellent. I warmly welcome the non-interference with the academic content of courses. I did not suspect the Secretary of State of actually wanting to take that particular power. But I think that it is thoroughly good to have it spelt out in the Bill that he should not have it. It is not good for Secretaries of State to have that power; it might tempt them in the future.

However, the exception in the government amendment is what really worries me. It refers to, the duration of such courses". Therefore the effect of an amendment which was heralded as a concession, and which does indeed contain a concession, is nevertheless to confer on the Secretary of State a power that he did not previously possess. The total effect is at least arguably worse than it was before. I say that because, under the government amendment, we give the Secretary of State a new power. My objection to that power is, first, that he is not competent to possess it. That is illustrated in part by the actual wording of the amendment. It is the wording of someone who is more familiar with American than with British universities.

I once spent about an hour with my departmental secretary discussing a similar wording in the student poll tax regulations. We were completely unable to make it apply to the facts of the case. The Secretary of State comes to us from the Department of Health. Therefore, he will be familiar with the restriction that Ministers do not make clinical judgments. It is my argument that, similarly, the Secretary of State should not make academic judgments. If the Secretary of State for Health was able to decide by directive, as part of his claim to be accountable for public money, which conditions should receive operations and which should not, I think that there would be considerable concern. I believe that the cases are parallel.

I admit that it is at all times proper for the Secretary of State to consult, to request, to ask and to persuade. He may if he wishes to do something, like changing the duration of degrees, consult with the people concerned in the manner described by the noble Lord, Lord Dainton, in Committee. There will be a considerable urge to comply. Over the centuries, the academic profession has not been a particularly heroic one. Martyrdom has not been one of its great urges. It has at all times had an urge to conciliate the powers that be if possible. But refusal remains a right.

The Secretary of State has in fact attempted to persuade on precisely the question of the length of degrees. It is not something which arises absolutely out of the blue. Perhaps I may quote from the annual report of the Council of the British Academy, which arrived on my desk last Friday. The British Academy is not precisely a revolutionary body. The Council observed that: The Academy also made representations to the Universities Funding Council about their letter encouraging universities to consider innovations such as the introduction of two-year degree courses and a four term year. The following points were made: British Degree courses were if anything too short—shorter than in many other countries (which had already caused difficulties within the EEC regarding equivalence of academic qualifications); to make them shorter still would increase the pressures for specialisation in schools, whereas a greater breadth of sixth-form studies was needed; the addition of a fourth term to the academic year would have serious consequences for the research of members of staff; a proliferation of MA courses to supplement undergraduate studies could be expected to follow".

It is no part of my purpose to ask the House to decide who is right; it is simply my purpose to ask the House to note the existence of a disagreement and to consider who is competent to settle it. As I think that passage shows, the Secretary of State has, through his agents, attempted persuasion and failed. Therefore, he now attempts to lay before us powers which would authorise him to take away the right of refusal. I do not know whether he intends to use those powers or whether he intends to use them as a negotiating instrument to gain a consent which would not otherwise have been forthcoming. But, in either case, it is an attempt to override professional judgment.

I shall not assert for a moment that professional judgment is infallible. I believe that every professional will understand the story of the judge's children who saw crate after crate of champagne being carried into the house and asked, "Mummy, what are all those bottles for?" She replied, "Daddy has been upheld in the Court of Appeal." We are all subject to professional review and we all know the anxiety that it may create. But the Secretary of State simply does not know what constitutes degree standard.

My second proposition is that what is proposed will diminish the quality of the degree and its standing. The hallmark of a degree is the approval of a coherent, academic community which is able to recognise a standard which is not absolutely identical and which, like the European exchange rate mechanism, fluctuates within narrow bands. As soon as a degree is awarded under a directive under the Bill, it will carry a certificate that it is not hallmarked. I do not see why such a degree should be recognised in any other country. If President Mitterrand were to exercise such a power, I do not see why I should be bound to exercise a degree conferred under it.

My third point is that what is proposed is, I think, a major constitutional impropriety. Here the academic community would be most unwise to make out that it is only its own fight. The Minister may reply that he who pays the piper calls the tune. No doubt that is correct; but he is unwise to exercise that prerogative if he happens to be tone deaf. I can imagine a tone deaf music hall patron concerned for the productivity of his orchestra directing it to play all the slow movements in Beethoven's symphony at double the mark tempo.

In Committee, I referred to the parallel point of the authority of military commanders over operational decisions in the field. I sensed a slight resistance from the opposite side of the House. Perhaps people thought that I was being fanciful. But in the Independent last Thursday I read that civil servants intervened in the operational decisions of the management of the Gulf War and convinced the generals that they were hell bent on caution.

One final barrel: it is a matter of pleasure to me that we have a Prime Minister who is a cricketer. I congratulate him on his election to the MCC. Any power over the laws of cricket which he may properly exercise as an individual member of the MCC, I am happy for him to exercise. But if he should put before us a Bill to allow him by ministerial directive to change the LBW laws, I hope that there will be people here to cry, "No ball!" I can imagine the comments of an Australian umpire faced with an appeal under such a law. I beg to move.

Lord Renfrew of Kaimsthorn

My Lords, Clauses 64 and 77 have generated widespread concern. Advice that I have received, upon which I shall expand in a moment, in relation to Clause 64 leads me to the conclusion that that clause is not so pernicious as some of us at first suspected. I shall try to indicate why I believe my noble friend the Minister may well be correct in the interpretation which he has offered in response to the questions posed by the noble Lord, Lord Flowers.

I should like to focus first on Clause 77(2) which is the truly unacceptable and illiberal power which goes far beyond the 1988 Act. Before doing so, however, I should like to pay tribute to my noble friend who has worked hard in relation to those two clauses. I have read carefully the observations he made in Committee, and I must say that his amendments to the clauses are as good as his word in relation to the debate in Committee. It may well be that that proves sufficient in respect of Clause 64, but, unfortunately, with Clause 77 any number of amendments serve only to betray the fundamental deficiency of the clause. Deficiency may not be the word because it has such a high degree of overkill that even when considerably amended it is still a dangerous clause.

Clause 77(1) repeats exactly the wording of Section 134(8) of the 1988 Act. That wording may or may not be desirable, but the fact that it stands in the 1988 Act may reconcile one to it to some extent. Clause 77(2) introduces entirely new powers of intervention in the affairs of a particular institution. That is explicit in the subsection. These are unrestricted powers which are therefore unacceptable. The word "overkill" may be applied. That must surely be a paradigm case of the Henry VIII type clause—to use the terminology which the noble and learned Lord, Lord Simon of Glaisdale, has employed on a number of occasions.

The objection, even with the amendment proposed by the Minister, is a substantial one. It means that, if not this Government, the next Government, or if not the next Government, some future Government, will be given the instruments to intervene in the affairs of particular universities. Why do the Government want the new amendment? The answer must surely be because of a recent case in a university located well to the west of here which to spare blushes we must term the University of the West. There it was necessary on financial grounds to intervene. The noble Lords, Lord Dainton and Lord Flowers, had made it clear that the provision of accounting officers may give sufficient powers to deal with such events; but, mindful of the Secretary of State's wish that he should have a power of intervention as a power of last resort, Amendment No. 169C deals with that issue.

Those of us whose names stand to Amendment No. 169C, which should perhaps be read in conjunction with Amendment No. 169B, have taken the issue and assumed that the Secretary of State needs power of intervention when something has gone seriously wrong financially. That is the point. We can accept that if a university is going bankrupt or is on the brink of going bankrupt through maladministration or some such thing, it is conceivable that the Secretary of State should have powers of intervention, and that clause gives him those powers of intervention. He has, in effect, to make a declaration that something is wrong. He then has the complete power to move in as he chooses. I do not see what more he can reasonably ask. The only restriction is that the grounds for intervention should be default in the financial affairs of the University of the West, or whatever.

I apologise that the word "after" in the amendment is superfluous, but that is not an important point. Subsection (3), which relates to judicial review, may be an unnecessary addition to the amendment because the power probably exists in any case.

We may accept Amendments Nos. 170 and 171 tabled by the Minister. They could stand together with Amendment No. 169C. I refer also to Amendment No. 169B. They clarify Clause 77(1) in that it should not refer to any specific institution. I hope that that amendment gives the Secretary of State the powers of intervention as a power of last resort which he seeks. I shall be interested to hear from my noble friend what further grounds the Secretary of State could conceivably have for wishing to intervene personally in the affairs of a particular institution.

I should like to return to Clause 64(2) because, as I say, I have been advised that that provision is not as pernicious as I and other noble Lords think. The nub of the problem is that it differs from the wording of a comparable section in the 1988 Act; namely, Section 134(7), which provides: 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". It would be nice if the provision remained in that form. Why the change? To some extent the Secretary of State is fighting past battles. It clearly relates to the judgment of Mr. Justice Simon Brown in the case involving the Association of College and Polytechnic Teachers in the Queen's Bench Division of the High Court. From that judgment it appeared that it was difficult for the Secretary of State to intervene in practice, as had been hoped, when he had made a general condition and an individual university had fallen out of line.

I turn now to Clause 64(2). I am advised, and my noble friend the Minister has just stated, that we construe "each" to mean all. I hope that he will correct me if I fall into any kind of error because what I say in relation to Clause 64 is predicated upon that assumption. If that is the case, and I believe it to be so, it is possible for me to support, and in that case assist my noble friend, in the construction of "otherwise". Since this point is so important, I shall read the advice that I have received from a legal colleague in my college. He writes: I think 'otherwise' is unobjectionable, the point, as I see it, is this—that in paragraph (a) 'each' is used in the sense of 'every', and so 'each institution falling within a class or description specified', would be every institution offering (say) degree courses in history, and let us suppose that there are 20 of them. But grants are made by the council"— here we come to paragraph (b)— to a "particular institution", so that the grant to a particular institution which does offer a degree course in history will inevitably be subject to 'terms and conditions' in respect of an activity carried on by that particular institution, to wit history". I am not sure that it is easy to follow such matters on the wing. I believe that I now see the inwardness of Clause 64 in that respect. I am happy with my noble friend's observations.

However, I am sorry to say that the noble Earl, Lord Russell, made an important point. If we believe, as I now do, that Clause 64 says what the Minister intended it to, then I am afraid that his amendment, which of course was made at the express request of noble Lords—I refer to Amendment No. 145—carries with it a sting in the tail. That is where I believe the noble Earl, Lord Russell, is right, because he goes on to say that it would now seem perhaps superfluous to say, Such terms and conditions may not be framed by reference to particular courses". They could not possibly be framed by reference to particular courses of study if that means in particular institutions, if we accept the assurances offered to us by my noble friend the Minister; but then we have in the amendment, other than the duration of such courses or programmes". I am not a lawyer, but it seems to me that the "other than" now excepts, the duration of such courses or programmes from the assurance which Clause 64 gives. We are getting into quite a tangle. If we believe the Minister —as I unreservedly do—on Clause 64 of the Bill, then his helpful amendment perhaps has a deleterious effect. That is clearly a complexity.

The main point of my observations—I apologise to the House for speaking at some length—is to indicate the danger of Clause 77(2). I hope very much that my noble friend the Minister and his ministerial colleagues will be able to accede to what has been effectively argued by my noble friend Lord Campbell of Alloway and accept Amendments Nos. 169C and 169B.

Lord Adrian

My Lords, I support Amendment No. 169C. I have not so far contributed to the debates on Clauses 64 and 77 but I was involved three years ago in the debates on the Education Reform Bill. I listened as carefully as I could to what was said at Second Reading, in Committee and now on Report. I have heard the Minister's arguments in support of Clauses 64 and 77 and the wide powers demanded for the Secretary of State. I too have sympathy for the argument that the Secretary of State must have reserve powers to deal with nightmare scenarios, even if I doubt that they will be used frequently.

I am also grateful to the Minister for his willingness to go some way to meet the anxieties that have been expressed. His Amendments Nos. 145 and 171 do that. However, I am afraid that for me they cannot go far enough and hardly could, as legislation by exclusion is not a satisfactory way of dealing with ministerial powers.

Arising from his arguments, I have one question for the Minister: where, on the face of the Bill, is there any indication that the powers asked for in Clause 77 are reserve or long-stop powers? I would not expect those words to be on the face of the Bill, but I cannot believe that it is beyond the wit of the draftsman to indicate some equivalent in legislative language. I get no impression from Clause 77 as it stands at the moment, or as it is proposed that it should be amended, that these are reserve powers. Have I missed that elsewhere in the Bill? If not, what objection is there to some reassurance that the powers are meant to be long-stop powers on the face of the Bill?

I believe that Amendment No. 169C, proposed by my noble friends Lord Renfrew, Lord Campbell of Alloway, Lord Beloff and Lady Young, meets that case. It specifies, as we heard, the circumstances in which the Secretary of State may make directions and it allows for judicial review of his actions, should they be controversial. I shall certainly support that amendment, if it is pressed, although I very much hope that it will not be necessary and that it will commend itself to the Government.

Baroness Young

My Lords, we have had an extremely valuable intervention from my noble friend Lord Renfrew on Clause 77. As I attached my name to two amendments, Amendments Nos. 146A and 171A—the first being to Clause 64 and the second to Clause 77—I wish to speak briefly to them and then deal with another amendment grouped with them, Amendment No. 169A, which raises an entirely separate point. As we have only one opportunity to speak on Report, I cannot let this opportunity pass because the amendment is grouped with the other amendments.

I wish to begin by thanking my noble friend Lord Belstead for bringing forward his amendments. I know very well how much effort he personally put into producing them. It would be churlish of me in the extreme not to say that they are welcome and I am grateful. I believe that all of us who have been following matters agree.

Unfortunately, the amendments do not go far enough. I shall not repeat all the arguments that have been given, I agree with what the noble Earl, Lord Russell, said in an earlier debate, as well as with what my noble friends Lord Campbell and Lord Renfrew said earlier.

It is perfectly true that both my right honourable friend the Secretary of State and his colleague Mr. Alan Howarth have made it clear that they do not intend in any way to interfere with academic freedom. However, at the end of the day it matters only what is on the face of the Bill; it is not what the Minister says or what anyone else's interpretation may be. The sad fact is that the amendments, which my noble friend has brought forward, do not go far enough. They are amendments by exception and I share the view of the noble Lord, Lord Adrian, that this is not a satisfactory situation.

Clearly, there are loopholes and my amendments cover three of those which affect academic freedom. There is the issue of the admission of students. I do not suggest that the Secretary of State will introduce quotas or something similar, but there are those who are concerned that it is a possibility. There is the appointment of academic staff. I do not suggest that the Secretary of State is considering this, but as I understand it, it would be a possibility. As to the point about the duration of courses raised by the noble Earl, Lord Russell, that again, it seems to me, needs to be addressed and it is covered in my Amendment No. 146A.

I do not know quite what is the worry of the Government about the duration of courses. I wonder whether it is the recent report from the Advisory Council on Science and Technology which suggested that a number of science courses ought to be extended from three to four years. If that is the worry, it seems to me first that it is not unreasonable that the funding councils have some flexibility to respond to recommendations which they believe to be in the long-term interests of the country. However, whether or not that is the case, the Government would surely have the ultimate control over whether or not courses became four years through the funding councils. That would be the appropriate way to deal with the matter. It is the way, I believe, in which similar situations have been dealt with perfectly satisfactorily in the past. So the present condition-making power is not necessary.

I shall listen with great care to what my noble friend has to say on Clause 64. If the problem can be met, as my noble friend Lord Renfrew said, it would be a great assurance. However, as everyone has said, Clause 77 is the real worry, particularly subsection (2). My noble friend Lord Renfrew explained clearly what Amendment No. 169C means. I believe that this is an opportunity—and I hope that my noble friend will consider it carefully—to meet the twin concerns. The Government are concerned about financial accountability. That is something which I fully understand. No government of any political complexion will not require a long-stop power, especially if they give something like £5 billion to higher education. Therefore there needs to be some explanation.

On the other hand, there is the real concern about academic freedom. Our intention in Amendment No. 169C, and the accompanying Amendment No. 169B, is to meet that point. If the amendment is not drafted entirely correctly, we would like my noble friend to take it away and consider it carefully. I believe it would meet what seem to me to be perfectly reasonable anxieties of the Government. At the same time it would meet important and reasonable anxieties of higher education.

I wish to speak briefly to Amendment No. 169A, which raises a completely different issue. That issue is also important. That amendment has been grouped with the amendments we are discussing, but it concerns an issue which has not been discussed at any length in Committee or before. The purpose of the amendment is, I hope, clear. It is that directions must not apply to funds to universities derived from non-government sources.

Those of us who took part in the long debate on the 1988 Act will realise that we have been round this course once before. However, this is an extremely important issue for the universities. It is, to me at any rate, encouraging that universities have been so enormously successful in raising income from a large variety of sources. Public funding remains the main source of income but now, because of the high quality of universities' research, they have been able to attract considerable funding from industry and commerce, charitable bodies and overseas organisations, as well as from research councils and government departments. It is, however, particularly the money that is raised privately that is important.

It has been an extremely important part of all our discussions that the funds that are derived from non-government sources remain separate and are not taken into account in all these matters. I cannot believe that my noble friend and his colleagues do not want universities to raise money privately. The universities benefit from that and that process must be in the interests of higher education generally. It is perfectly apparent that if, having given the money, donors believe some part of it will be taken away or donors will be told how the money is to be spent, they will simply not give the money. Many people who have worked to raise money and who have given money will feel that they are being let down. In the future fund raising will be almost impossible.

I hope that my noble friend will think hard about Amendment No. 169C. I hope he will consider carefully whether he can introduce a provision on those lines on Third Reading. I also hope my noble friend will consider Amendment No. 169A, which concerns a separate issue.

8.30 p.m.

Lord Annan

My Lords, I wonder whether the noble Lord, Lord Belstead, remembers that in Committee I referred to the duration of courses. I refer in that connection to the amendment moved by the noble Earl, Lord Russell. My remarks were occasioned by the fact that the Secretary of State was reported as saying that he wanted to have the power, if necessary, to stop departments of architecture extending their courses to a period of about seven years. There is a question of principle here. I wish to give an example to the noble Lord. The example might also be of interest to the noble Baroness, Lady Blackstone.

I do not know whether the noble Baroness spoke for her party or only for herself but I recollect her saying there was great merit in abolishing A-levels and going over to a system of an international baccalaureate which would involve more broadly based courses. There are strong arguments for doing so in the sense that many people believe excessive specialisation in sixth forms is one reason why too few pupils continue to study maths and science. Consequently there is a shortage of such students in higher education. Let us suppose that that policy were to be put into effect by a government in the future. What effect would it have in the universities? It would certainly have no effect at all on the professional studies of lawyers or of architects because they do not study at school anything which is specifically in their line of country. However, the policy would certainly have an effect on medical and engineering students.

Medical students need to spend two years in the sixth form following pre-clinical studies as a necessary prologue to the pre-clinical studies which they carry out in their first year in medical school. Will the Minister say whether he thinks it is right that the Secretary of State could intervene and say, "We cannot afford that kind of thing", disregarding the opinion not merely of universities but also of professional organisations—for example, the medical council and the engineering institutes?

I asked the Minister another question in Committee but he did not reply to that in his long list of replies to the points made at that stage. I referred to another case. I asked whether it would be reasonable for the Secretary of State to point out to universities that for some years he had noted the admirable example of the University of Buckingham, which offers a BA degree which only takes two years and which has been accepted by the Privy Council. However, there are four terms in each year. In other words that course comprises eight terms as opposed to nine terms. Will the Secretary of State be empowered to say, "I am afraid I must ask all universities to go over to that pattern"? There may well be a strong case for him to say that. Does the noble Lord think it is right that the Secretary of State should have such a power?

I have a further point to make. I warmly welcome what the noble Baroness, Lady Young, has said. She was absolutely right to say there are certain areas in universities in which the decisions of academic staff are sacrosanct. In 1968 or thereabouts, for example, the Committee of Vice-Chancellors and Principals had the great good fortune to have as its chairman Sir Derman Christopherson. He had to deal with the whole question of the participation of students in university government. There was a great deal of confusion but he managed to persuade the National Union of Students at that time to agree to a concordat. There were three areas in which no student would have the power to sit on a committee or even have the power to offer advice or participate in the decisions taken by committees. The three areas were the admission of students, the appointment of academic staff and the running of examinations. As I understand it, the noble Baroness, Lady Young, has said that if we are to have government by exclusion, those areas should be excluded. If it would be considered wrong for students to participate in those areas, it would also be wrong for government to participate in those areas. I hope the Government will understand that these points are not trivial. They are at the heart of university governance.

I now turn to the financial aspect of intervention. I do not know whether the noble Lord, Lord Belstead, read in the newspapers this morning what Sir Peter Swinnerton-Dyer was reported as saying. Sir Peter said there had been a scandal in the University College of Cardiff. A self-indulgent and self-important principal had caused that institution to run into debt to the tune of millions of pounds. Sir Peter said that the Universities Funding Council or the University Grants Committee—that body changed its title during the period in question—had perfectly good powers to deal with that situation. However, it was not those bodies that failed to deal with it. The Secretary of State, for reasons of his own, declined to intervene decisively in that matter. I say to the Minister that the Universities Funding Council has the powers to deal with these matters.

Baroness Blackstone

My Lords, in speaking to this group of amendments I begin by welcoming the fact that the Government have put down amendments to Clauses 64 and 77 which are at least an improvement on the previous situation. I very much agree with the noble Baroness, Lady Young, that it would be churlish not to welcome them. However, I must make it absolutely clear that so far as concerns these Benches they do not go nearly far enough. Even with the amendments the Bill upsets the long-established and widely accepted careful balance of powers and responsibilities between the Secretary of State, the funding councils and individual institutions. No convincing reasons have been put forward by the Government as to why those long-established arrangements should be changed.

We have heard a great deal about powers of last resort and long-stop powers. I must agree with what the noble Lord, Lord Adrian, said on that aspect. We have also heard about nightmare scenarios. On that point the noble Lord, Lord Adrian, was a little more generous to the Government than I can be. I shall not repeat what I have already said on the subject in Committee and in the debate on Clause 53 during Report Stage last week other than to say that it seems ludicrously far-fetched to imagine that funding councils whose members and chairmen are appointed by a responsible Secretary of State should go seriously off the rails at the same time as individual institutions might go off the rails in terms of becoming financially irresponsible.

I should like to put a couple of questions to the Minister in relation to what he said in relation to Amendments Nos. 145 and 171. On Amendment No. 145 he began by saying that the Government needed the changes in relation to the condition-making powers which the Secretary of State wants in order to promote policy developments. He went on to say that there was no difference between the current proposals in the Bill under Clause 64 and those in the 1988 Act. I cannot remember which clause he mentioned but I think that it was Clause 134(7). If the 1988 Act is perfectly adequate why do we need those changes? I wonder whether the Minister would explain that. Perhaps he could also explain, if there is a difference, what the amendment adds. I remain a little confused on this matter.

I was also slightly confused by what the Minister argued in relation to Clause 77 in respect of direction-making powers. The noble Lord referred to something I said in the earlier debate on the matter in Committee when I argued that if a funding council went completely off the rails it must become apparent that the chairman of that funding council was unfit to run it. No properly appointed chairman who was doing the job as he or she should would allow that to happen. Therefore, it would be the first duty of the Secretary of State to replace that chairman. The Minister said just now that that would be more draconian than making directions. I find that confusing and cannot believe that the Government really mean that.

I return now to the other problems with the Government's amendments. If all that the Government can do is to come up with an amendment to exclude certain areas from being subject to direction it means that everything which is not listed in the exclusions is vulnerable to ministerial intervention, as other noble Lords have already said. What the Government should have done instead is to specify in the Bill the exact grounds on which the Secretary of State should have the power to intervene.

Even with the amendments the Government will still have sweeping powers to interfere, if they choose, in the way in which individual universities are run. It is not good enough to say, "Ah, but we have no intention of using those powers except as a last resort", as the noble Baroness, Lady Young, has already said. It is not possible to anticipate or determine what some future Secretary of State with a particular axe to grind might do about, for example, the kind of students who should or should not be admitted, the kind of academic staff who should or should not be appointed, or about departments which the Secretary of State has taken against and wishes to close. Lists of exceptions cannot encompass every possibility. An interfering Secretary of State could always find ways of exploiting loopholes.

Turning to the other amendments which have been tabled, I strongly support Amendment No. 146A in the name of the noble Baroness, Lady Young, and others. That amendment at least extends the exclusions to the admission of students and the appointment of staff and removes specific interference in the duration of courses. I accept entirely that if we are to expand higher education and make it accessible to a greater number of students there are cost constraints on courses becoming longer. However, I believe that the Government already have control over course duration in terms of the public funding they provide to the funding councils. If that is incorrect perhaps the Minister will put me right when he responds.

With respect to Clause 77, which is causing most concern although I am not as sanguine as the noble Lord, Lord Renfrew, was in relation to Clause 64, the crucial amendments are Amendments Nos. 169A in the name of the noble Baroness, Lady Young, and Amendments Nos. 169B and 169C in the name of the noble Lord, Lord Renfrew, and others. All three amendments have the support of these Benches. Unless Amendment No. 169A is accepted the Government could issue directions in respect of funds derived from sources other than the Government. Here I should declare an interest as head of an institution which has recently launched an appeal and is raising money from a number of trusts and foundations as well as from the private sector. It would be wholly unacceptable for the funds that my college has raised from those sources to become subject to direction by the Government. Like the noble Baroness, Lady Young, I suspect that were that to happen most donors would be reluctant to give financial support and that those sources of funding would dry up. I entirely agree with what the noble Baroness said.

We also welcome Amendments Nos. 169B and 169C because they impose constraints on the Secretary of State interfering in the work of individual institutions and they make explicit the right of universities to resort to the courts when the Secretary of State exercises his last resort or long-stop powers under Clause 77.

If the Government are serious in what they say about the limited use they wish to make of such 'powers they will surely accept the amendments. However, while supporting the amendments we believe that the best solution of all would be to leave out Clause 77 altogether. Therefore, while we support the amendment put down in the name of the noble Lord, Lord Campbell of Alloway, and others, we remain unconvinced that Clause 77 serves a useful purpose. We believe that it is inconsistent with the democratic traditions of this country in which we favour giving as much autonomy as possible to public bodies; consistent, of course, with their being properly accountable for public funds. Government by diktat from the centre is unacceptable in a society which values pluralism. The powers of Ministers must be constrained in the interests of devolving responsibility to those directly concerned with running public institutions.

I hope that at the very least the Government will accept the amendments in the group we are now debating to which I have drawn particular attention. However, it would be far better to be sure that the precious values of academic freedom were protected by abandoning Clause 77 altogether. As the noble Baroness, Lady Young, has already said, it is what is on the face of the Bill that counts, not the promises of current Ministers that they will not misuse those powers.

Lord Peyton of Yeovil

My Lords, I should like to support everything that my noble friend Lady Young said in dealing with the three amendments to which she particularly referred. I can put what I have to say both shortly and simply. One of the most irritating features of governments of all shades and colours is the assumption which they so frequently seem to make of "We know best". During the time that I have spent in both Houses of Parliament I have wondered why governments should frequently create so much unnecessary trouble for themselves.

Far be it from me to make any irreverent or disrespectful comparison between a committee of vice-chancellors and a hornets' nest, but I cannot see why an important government department should apparently be willing to take on a body of such people and to unite them with such ease. The Government, in taking their present attitude—here I should like to say that I entirely exonerate my noble friend Lord Belstead from what I am about to say because he has obviously had a major struggle with the forces of darkness in achieving the progress that he has—are saying two things: we greatly respect academic freedom but it is necessary for us to stay in control, if not of everything, then at least of something.

We have given up control. The amendment which my noble friend has moved has abandoned specifically —and on the face of the Bill one must welcome this —the possibility of using certain powers which it was previously going to have. If I understood my noble friend correctly, as I hope I did, I thought he said that the Government could not, would not have used those powers. I strongly suspect that the powers which remain in the Bill fall very much into the same category. I cannot understand how the Government can persuade themselves that it is wise to say that they must keep control over such things as the duration of a course at the same time as voluntarily giving up the power to control either the content of that course or the manner in which it is taught. That seems to be slightly eccentric, to say the least.

Then there is the point that, apart from the admission of students and the recruitment of teachers, they want to hang on to the power to direct subjects covered by funds which are provided from other sources. I agree particularly with my noble friend and with the noble Baroness who has spoken from the Front Bench opposite that there is absolutely no justification for that.

To take powers which, as the noble Baroness, Lady Blackstone, said, will probably never be used and which are just there as a kind of safety net, as a long stop, is a habit which has been endemic in governments for years. In my experience, none of them has been able to make a reasonable and respectable justification of such a course.

I plead with my noble friend to listen, if not to me, to the words of my noble friend Lady Young, who said it all and who reasonably and calmly urged upon the Government the need to escape from the consequences of their own folly.

Baroness Seear

My Lords, we have not spoken since the noble Earl sat down after his first amendment, and we just want strongly to support the changes that are proposed. To go further than that, this is all about academic freedom, which is absolutely priceless. If that is lost the heart and soul of university life and what academic life is all about are lost. There may be some catastrophes, there may occasionally be things that go wrong, but that is a small price to pay for academic freedom and for not introducing intervention from the centre.

What this amounts to is that we should go very strongly indeed not for the powers of the Secretary of State which would be limited only in certain specifics but for the powers of the Secretary of State which should be limited to certain specifics, that he should not have an overall power to intervene except for certain named matters but that he should have no power to intervene except in certain specific cases. There is a world of difference between the two, and in the end academic freedom will rest on getting this right.

If the noble Baroness, Lady Blackstone, was right that the Minister had said that it would be more serious to sack the chairman of the funding council than to intervene in the university, it means he can have no idea of what academic freedom is about. If they think that getting rid of the head of what is, after all, a quango—personally I am not against them, but most people are—compares in importance with interfering with the rights of academic institutions to run themselves it is quite clear that the Government do not understand what we are talking about.

Lord Kilmarnock

My Lords, before the noble Lord rises to reply, I should like to add my support in particular to Amendment No. 169C. The noble Lord, Lord Campbell of Alloway, referred to it as a Conservative Back-Bench amendment, but it has also been commended by the noble Lord, Lord Adrian, from the Cross Benches and by the noble Baroness, Lady Blackstone, from the Opposition Front Bench.

When we were debating Clause 53, which is analogous to this, the noble Lord, Lord Belstead, said to me that the Government wanted, 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". —[Official Report, 16/1/92; col. 449.] A little lower down he said: It is most likely that what I have in mind would involve an institution getting into financial difficulties". If those are the Government's concerns, I cannot understand why they are not fully met by Amendment No. 169C in particular, and I very much hope the Government will come round to that view when the noble Lord comes to reply.

9 p.m.

Lord Beloff

My Lords, I should like to point out to the House that we are debating a matter which affects not only higher education, the subject of this long debate, but also the way in which the British Government operate in respect of this important branch of the nation's activities.

The noble Lord, Lord Belstead, has been rightly complimented on his willingness to listen to your Lordships on previous occasions and on the work that undoubtedly went into producing the three amendments that he has himself put forward today. However, I was struck, as perhaps were other noble Lords, by the fact that in speaking originally to the first of his amendments he gave it as his opinion that it would have satisfied the anxieties which your Lordships expressed on an earlier occasion. By now he is well aware from the speeches that have been made from all quarters of the House, and from the amendments on the Marshalled List, that the assumption that these amendments would do the trick was wrong. One therefore comes to the fundamental question. I believe that it affects the way in which British Government operate. Why was no effort made between the Committee stage and the Report stage to achieve agreement on amendment which would satisfy those anxieties?

The noble Lord, Lord Peyton, referred to this matter in a somewhat jocular fashion. But, seriously, the Committee of Vice-Chancellors and Principals, representing the universities, had made it clear that it would have been willing to participate in a discussion to try to meet the Government's needs and the anxieties expressed about Clause 77 but the offer was not taken up. The Minister must explain to the House why it was decided to proceed in that fashion.

If it were argued that it was difficult to consult such a body, is it not normally the case that when a set of institutions comes under scrutiny for the purpose of legislation its representatives are consulted? One may or may not like what the Department of Health does but one cannot say that the BMA and the royal colleges are never consulted. One may not always agree with some of the views of the noble and learned Lord the Lord Chancellor but he consults as a matter of course with the Bar Council and the Law Society.

Why should higher education be excluded? There were other less formal methods if it were felt that that was too great a government commitment. The noble Lord or other Ministers of the department could have consulted his noble friends on these Benches who have some contact with and experience of the academic world. I do not say that he should have consulted me, but I could have told him that I had been asked by the Vice-Chancellor of the University of Oxford, which is one of the those institutions—perhaps the noble Lord, Lord Jenkins of Hillhead, as Chancellor, will support me—to make it plain that the University of Oxford does not accept the view that the amendments go far enough to satisfy its anxieties about academic freedom. I could have imparted that information. I am sure that there are others with closer and more recent contact in the university world who could have explained that.

Instead we now debate at length—I apologise for adding to it—a series of amendments which have been grouped together. I can see that there were certain arguments for the grouping but there are also arguments against it. The amendments suggest different ways in which the problem could be approached. The most satisfactory way for many of us —I believe that the noble Baroness, Lady Young, made it clear—is by Amendment No. 169C, which makes it quite clear that powers are given in order to intervene in the interests of the public purse, and for no other purpose. That is one method.

The other is to take the exclusion route. I warned your Lordships at Committee stage that legislation by exclusion is not likely to be satisfactory. However, if one takes the exclusion route, one says, "Let us accept the amendment put forward by the Minister that courses will not be interfered with and let us add to it things which are of equal and sometimes greater importance to the universities than courses". We have to consider what has happened in other countries where governments put money into universities. Experience in this country and abroad suggests that, while politicians are rarely anxious about the content of courses and do not understand or know much about them, they have been known to interfere with the way in which students are chosen. They have been known to interfere—the recrudescence of neo-Nazism in Europe reminds us of it—with the criteria which have enabled individuals to be appointed to or, in the German case, to retain university positions.

The position was made perfectly clear in your Lordships' House at previous stages. If the Secretary of State does not have time to read Hansard of the House of Lords, there must be people in that department—rightly now occupying Sanctuary Building, since it needs sanctuary—who could précis the debate for him, and say, "This is what the universities appear to be anxious about. This is the kind of amendment or procedure—either by exclusions or concentrating on finance—which will be acceptable to them".

Instead of that, we have brought before us, and must debate, two or three amendments from the Minister which, as numerous speakers have pointed out, do not meet the case. The noble Lord, Lord Campbell of Alloway, may therefore be right to express the hope that everything will be put right on Third Reading. I would argue that it could have been put right by now and that to wait for Third Reading to make sure that academic freedom is not tampered with by this or any future government is trying the patience of this House to an excessive degree. I hope therefore that there will be a genuine acceptance by the Minister of the points made, particularly those made by my noble friends Lady Young and Lord Campbell of Alloway.

Lord Flowers

My Lords, perhaps I may respond to the request from the Minister that I explain my question to him during my interruption to his speech. Before I do so I should briefly say that, although I support all the amendments in this group—because I think that they all help in some way to deal with the problems about which we are worried—I support especially Amendment No. 169C. That amendment attempts to deal positively with a matter which, in my view, the Government have signally failed to deal with negatively, because it cannot be dealt with negatively. I should like most sincerely to thank the movers of the amendment and especially the noble Lord, Lord Campbell of Alloway, whose drafting skills are apparent in its wording. I hope that the Government will find it possible to accept an amendment which allows the Secretary of State to intervene when to use the words of the amendment: there has been a want of due care in the conduct of the financial affairs but not otherwise; and which requires him to consult the appropriate funding council and receive representations from the institution concerned. Without that, in my book at any rate, he would be guilty of injustice and maladministration.

If the Government are not prepared to accept an amendment along those lines, it seems to me that noble Lords will be entitled to draw the conclusion that the Secretary of State —as many noble Lords feared—intends to interfere in academic matters. The length of a course, admission of a student or appointment of a teacher or researcher are academic matters which he has no business to venture into.

The Minister asked me to explain to him my question about the use of the word "otherwise" in Clause 64(2) (b). I still find the drafting of that part of the clause most obscure. I feel that it is very bad drafting. However I have now consulted my noble friend Lady Warnock on the Bench behind me. She is much better at logic than I am. She ought to be as a philosopher. She offers the following paraphrase, which, with her permission, I shall read out. It is very brief:

  1. "(a) The Secretary of State may impose requirements which each institution has to meet before any support has been given to the activities it carries out; and
  2. (b) apart from that, no conditions may be imposed".
That is clear enough compared with the tortuous wording of the Bill.

Assuming that the noble Baroness has got it right, which I am sure she has, I withdraw my question to the Minister. I also accept what the noble Lord, Lord Renfrew, had to say. I therefore agree that Clause 77 is the more important item. Fortunately, most of my intended comments refer to that clause in any case.

Lord McCarthy

My Lords, we are where we are because Mr. Justice Simon Brown decided that the Government could not any more accept conditions precedent. If we want to know what the Government are likely to do if they get their policy and their way, we can look at what they were doing before that they will stop doing and we can look at what they say they want to do if they get those rights back again.

What they did before was to withhold money from those who would not operate systems of appraisal. That is what they did before and they will stop doing it. In Committee (at col. 1033 of the Official Report of 16th December) the Minister said: Another example of the use of a condition precedent might be for the Secretary of State to say to the funding councils that they should not release a particular portion of funding to institutions which do not over time receive a satisfactory report from the unit which the Committee of Vice-Chancellors and Principals and the Committee of Directors of Polytechnics will be establishing to look at institutions' internal quality control systems". Therefore, you do not get the money if you do not satisfy the system of internal quality control. That is something else which the Government want the power to do.

We can guess that one of the main reasons for the Government wishing to retain the power is because they want to do something about the existing length of courses. We assume that they want to reduce their length. One advantage of a debate of this kind is that the Minister can tell us what the Government want to do about courses. The Minister has not told us that. When he moved his own amendment which includes a sentence that is the subject of a subsequent amendment taking out that sentence, we thought he might tell us why he wishes to see the inclusion of that sentence. However, he did not do so.

Most academics and universities oppose the Government having the powers which they seek in their amendments because they believe that they will affect course content, research programmes, teaching methods and examination standards; in other words, all the things which the Government say they do not wish to influence. If we did not believe that the compulsory institution of a system of appraisal would affect course content, research programmes, teaching methods and examination standards there would have been no opposition. If we thought that the quality control criteria might not affect course content, research programmes, teaching methods or examination standards we should not oppose that.

Several noble Lords have already argued that a reduction in the length of courses—for example, the introduction of two-year degree courses—would not be acceptable because it would affect course content, research programmes teaching methods and so on. In other words, academics and institutions of higher education oppose those kinds of powers only on academic grounds. The Government may say, "We do not believe those arguments; we believe that you are more concerned about your workload". However, that is the nature of the debate.

Therefore, I wish to ask the Minister what will happen if this amendment is passed, the Bill becomes an Act, and the Government start to use those powers as regards the duration of courses. For example, let us suppose that a university believes that what it is being told to do will affect academic standards. Would it merely have to say that and the Government will then back off saying, "We are sorry. We did not realise that it would affect academic standards"? Or, does it have to go through a system of judicial review? Does it have to persuade a judge to say, "You are quite right; it affects academic standards". In other words, there will be a long and protracted debate about whether or not the Government's actions affect academic standards. What is the procedure for resolving those future disputes?

Finally, can the Government give examples of reductions in the length of courses which do not affect academic standards or any of the particular, precise uses which they intend to make of those powers of conditions precedent which they believe will be academically free? That is what I ask the Minister.

9.30 p.m.

Lord Peston

My Lords, I am totally lost as to what is our procedure, as I believe I indicated implicitly to the noble Lord, Lord Belstead, when I spoke earlier. We are discussing a wide-ranging group of amendments but the only amendment now before us which has been moved is the Government's amendment. I take it that the two amendments to the amendment were also moved, but that has not been said.

My difficulty with regard to what is taking place is that I accept that the government amendments, suitably amended, are better than the Bill as it was. However, they are very much third or fourth best compared with the outcome which I seek; namely, the acceptance of Amendment No. 169C. However, I am not clear—and I hope the noble Lord, Lord Belstead, will tell us when he replies—about how we interpret a tacit acceptance of the earlier amendments if we do not want them but do not wish to vote against them, given that the Bill as it stands would be even worse.

There are at least two amendments in this group which have not been spoken to. Do I understand that they no longer count in the group? That is further complicated by the fact that normally when one speaks to a group of amendments the person moving the amendment states to which amendment he is speaking. That means that if the first amendment is carried, the other amendments in the group which are being spoken to will also be carried. That cannot apply to this case especially as the Minister said that he was not speaking to all the amendments.

I need the Minister's help on this matter because it affects how some of us will vote in due course or, indeed, whether we should vote. I was even more confused by the noble Lord, Lord Campbell of Alloway, when he said, having spoken to an amendment which has not yet been moved, that he did not propose to move the amendment even though I had indicated, and my noble friends had indicated, that we should vote for that amendment.

I do not criticise the Minister because he was anxious to have an integrated debate and I supported that. I am now completely lost as regards our procedures and I felt I should raise that problem at this stage.

Lord Campbell of Alloway

My Lords, before the noble Lord sits down perhaps I can ask him, on the question of procedure, whether he understood the position for which I was seeking to contend; that is, that it was virtually impossible to vote on these matters tonight. If the Government indicated how they viewed the various amendments then the matter could be resolved at Third Reading. However, it may well be that it cannot be resolved tonight.

Lord Belstead

My Lords, first, perhaps, I owe the House an apology and a word of explanation regarding matters which arose from the speech of my noble friend Lord Beloff. He asserted that nothing had been done between Committee stage, which was before Christmas, and Report stage, the final hurdle of which we are dealing with this evening, in regard to Clauses 64 and 77.

The watchwords, when we were discussing these matters in Committee, were the two words "academic freedom", repeated this evening from the Front Bench of the Liberal Party, by noble Lords opposite and by other noble Lords. As I was in charge of the Bill in your Lordships' House, I felt strongly and said to my right honourable friend the Secretary of State that we needed to bring forward amendments which would fulfil the undertakings I had given at the previous stage. Incidentally, it was suggested at that stage that it was a pity that I had not brought forward amendments then. I felt therefore that we should get on with the matter and not undertake endless consultation, desirable though that may be.

However, I say to my noble friend Lord Beloff that it was not as though there had been no consultation. My right honourable friend the Secretary of State discussed Clauses 64 and 77 with the Committee of Vice-Chancellors and Principals before Christmas and, whenever it was possible, I had informal discussions with Members of your Lordships' House regarding the work that we were doing in trying to bring forward these amendments, of which Amendment No. 145 is the one I am presently moving and the peg on which this long debate has hung.

Secondly, perhaps I can say a brief word in regard to Clause 64. I was grateful to the noble Lord, Lord Flowers, who, in both an elegant and kindly way, not only asked me a question but gave me the answer to a question I had been unable to answer. The noble Baroness, Lady Warnock, is correct, not for the first time in your Lordships' House. Although there are some details which I could add if I read out a page of brief, I do not believe there is much that I should add.

However, I must answer the direct question posed by the noble Baroness, Lady Blackstone, regarding why Clause 64 is included. I take that head on and reply that Clause 64 is different from Section 134 of the Education Reform Act 1988 and is included to put beyond doubt the Secretary of State's power to make general conditions which may have a different effect on individual institutions. That impact can be different although the conditions are general.

The wording of Section 134(6) and (7) was effectively discredited by the judgment in the case brought against the Government by the Association of College and Polytechnic Teachers. It is about setting conditions precedent. The noble Lord, Lord McCarthy, can forget more about industrial relations than I shall ever learn, but I hope he will forgive me when I say that there is one matter on which I would cross swords with him. If the noble Lord talked informally around the House on different Benches, I do not know that he would find many noble Lords who would join him in saying that setting a condition precedent before wage settlement negotiations is necessarily always a bad thing.

Perhaps I may go on to the meat of my answer. First, I remind your Lordships that this evening I spoke to at least three amendments on academic freedom.

Our intentions on this side of the House were to try to meet the apprehensions of your Lordships as regards Clauses 64 and 77. I have heard the reaction which there has been to them; namely, that your Lordships almost universally have accepted the amendments but have said that they do not go far enough.

As I listened to the debate I remembered the immediate reaction of some of your Lordships when I gave an undertaking in Committee before Christmas. It was that not only were the Government not going far enough but that any amendment put down should also exclude conditions and directions in respect of the type of students to be recruited in institutions of higher education and the type of staff to be appointed. Amendments Nos. 146A and 171A, in the names of my noble friends, Lady Young and Lord Renfrew, address that particular point.

It seems to me that any legitimate intervention by the Secretary of State under powers in this part of the Bill is almost bound to impact on students and staff in one way or another. There are also circumstances in which it is possible that the Secretary of State may have a perfectly legitimate policy which would do the same. For example, my noble friend Lord Cavendish, dealing with that part of the Bill which affects students with disabilities, has made clear that the funding councils will be expected as a condition of grant to ensure that they have specialist advice on the education of students with disabilities. That statement by my noble friend was much welcomed.

Funds have been earmarked in the past by Secretaries of State for Education in respect of staff restructuring and what are sometimes known colloquially as "new blood posts." All are legitimate policy interests for a government to pursue through these powers. The difficulty is that all are framed by reference to students and staff but they relate to staff and students generally and not to individuals.

However, there is one particular circumstance in which the Secretary of State might be said to have an interest in an individual. It concerns a point made by the noble Lord, Lord Flowers, and others in Committee; namely, the question of accounting officers. The head of a publicly-funded higher education institution is the accounting officer for the public funds made available to that institution by the funding council. The accounting officer of the funding council is responsible for the funds put at its disposal, but it is the Secretary of State who is ultimately responsible to Parliament and to the taxpayer for the Government's higher education policy and the funds provided by Parliament to support it.

The existence of the institutional and funding council accounting officers cannot give the Secretary of State an absolute guarantee in financial matters which are their responsibilities. It has been known (reference has been made to it this evening) for institutional heads sometimes effectively to fail in responsibilities. In such cases action by the funding council has been able to resolve matters happily.

As I have said, the power of direction is needed against the remote possibility of what I have described as a nightmare scenario, with the funding council accounting officer failing to fulfil his responsibilities as well. If the head of an institution were to be found in dereliction of his duties the Secretary of State's overriding responsibilities to Parliament are such that he needs the power to influence the public funding of that institution subject to parliamentary scrutiny, provided for in the Bill.

Lord Annan

My Lords, should we really legislate on nightmare possibilities?

Lord Belstead

My Lords, I can do no more than to say that at the end of the day, given the responsibilities of the Secretary of State, to Parliament and the general public, for taxpayers' money, that it is necessary. The ground was gone over exhaustively in 1988. It is not for the first time that I say that my noble and learned friend the Lord Chancellor, who dealt with that part of the Bill on that occasion, made it clear that the direction-making power would only be used in very exceptional circumstances. I fully acknowledge that that should be the limit of the Secretary of State's powers in relation to individuals.

However, that is already the case. It is important to bear in mind the context of these powers which are essentially about public funding and accountability. The accounting officer example that I have just given is precisely about that. The appointment of other individual staff and the admission of any individual students is clearly not.

The Secretary of State could not, under any circumstances, use his condition-making powers to effect the appointment or admission of an individual. That, I am advised, would require conditions to be made in respect of the activities of individual institutions concerned, but that is ruled out under Clause 64 of the Bill.

With regard to directions, any attempted intervention by the Secretary of State in the filling of a particular staff post would, except where the post carried major responsibility for the administration of funds provided by the council such as that of the accounting officer, be so far removed from the Secretary of State's funding responsibilities that it would almost certainly exceed the legitimate scope of his powers. The Secretary of State would be riding roughshod over the autonomy granted in these matters with the universities under their charters and their statutes and the polytechnics and colleges under their instruments and articles of government.

I have gone into detail because it is for those reasons that, although we are in no way unsympathetic to the anxieties which have been expressed about staff and students, the Government did not themselves put down amendments about either students or staff.

The noble Earl, Lord Russell, and my noble friend Lord Beloff have their names to Amendment No. 146, which would remove the reference to the duration of courses in the amended Clause 64. It is important to emphasise on this point that conditions under this power could not of themselves determine the length of higher education courses. That can only be done by the institutions. Rather, this power is about the funding of courses where there are legitimate questions concerning the effective use of public funds. The higher education White Paper emphasised the Government's commitment to expanding higher education. It also made clear that while the Government remain committed to awarding higher education a fair share of public expenditure, the continuing drive for greater efficiency would need to be secure. That would not happen if additional resources merely served to fund the same number of students on longer courses. The White Paper made clear that the Government see no case for an increase in the average length of courses. The power contained in Amendment No. 145 enables the Secretary of State to exercise influence in this area through funding while in no way allowing 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 patterns.

The noble Lord, Lord McCarthy, asked whether I would give examples. At the Secretary of State's request the Polytechnics and Colleges Funding Council is at present making available £1 million in 1992 for 1993 to support a pilot scheme.

Lord Grimond

My Lords, I would be greatly obliged if the Minister would explain further what he said about the Secretary of State's power over the duration of courses. Do I understand him to say that he cannot actually determine the duration of courses but merely refuse funds for the extension of a course? Or has he a direct power to forbid the extension of a duration?

Lord Belstead

My Lords, I said more or less exactly what the noble Lord, Lord Grimond, has just repeated—that the power which I am seeking to include in Amendment No. 145 would enable the Secretary of State to exercise influence in this area through funding but would not allow him to tell institutions what they may or may not do in that respect.

The noble Lord, Lord McCarthy, asked whether I would give examples of any beneficial use of this power. The answer is quite a simple one. At present £1 million in the next financial year is going to support a pilot scheme involving the provision of accelerated and intensive routes to degree courses. I understand that the response from the higher education institutions in the form of bids for those funds has been enthusiastic. Often specific initiatives of this kind are needed to promote new types of provision. That would be put at risk by the amendments put down by the noble Earl and by my noble friend Lord Beloff.

Lord McCarthy

My Lords, I do not think I said that I wanted the noble Lord to think of one advantageous example. I wanted something that did not affect academic freedom. If it is said that there cannot be a three-year course, does the noble Lord not agree that nothing could be more effective than saying that one can only have the money for a two-year course? Does that not do the trick?

Lord Belstead

My Lords, the noble Lord is seeking to lead me onto the ground where it would not be possible for the Secretary of State of the day to decide at all on what the effects of funding would be. That is a fairly basic matter to which we shall probably come again on later amendments. For the moment I rest on what I have said. The noble Lord asked for examples that would be beneficial and sensible. I have given him one which is extremely beneficial and extremely sensible.

There is a third and penultimate area with which I should like briefly to deal. Amendment No. 169A relates to the use of funds. I can confirm that my right honourable friend the Secretary of State's condition and direction-making powers concern the administration of public funds. That answer derives from Amendments Nos. 147 and 172 in the name of the noble Earl, Lord Russell, but we are also close to Amendment No. 169A to which my noble friend Lady Young spoke. Put simply, I am advised that the Secretary of State could not require the funding councils to act in breach of their statutory duties and so the Secretary of State could not require them, whether under a condition or a direction, in turn to impose conditions on institutions which related to the use to which they put funds derived otherwise than through the council. That would be prohibited by Clause 61(4). In the case of an individual institution which refused public funds, any direction from the Secretary of State to the funding council could relate only to funds received previously from the council.

Amendment No. 169A in the name of my noble friend Lady Young is slightly different because it seeks to confine the application of a direction to financial support from grants made by the Secretary of State. In practice of course the overwhelming bulk, if not all, of the funding councils' funds will come from the Secretary of State. If the funding councils receive funds from other sources, which they most certainly do not at present, the Secretary of State could not direct that those funds could be used in a manner inconsistent with any conditions subject to which they were made available; and there would surely almost certainly be such conditions.

That leads me finally to Amendment No. 169C. Noble Lords have without exception said that they attach importance to this amendment. I have been urged from all sides of the House to look upon it favourably and to treat it in a variety of other ways, all of which would be beneficial, the top of the list being to take it away to see whether agreement can be reached on it. There are aspects of the amendment about which I am not sure and on which I have some worries. First, the specific addition to the amendment that the powers exercisable by the Secretary of State shall be subject to judicial review arguably does not add very much to the clause. Indeed I am advised that the Secretary of State's powers under the Bill would be liable to judicial review. To single out one power could be confusing because it would give the impression that the exercise of other powers was not liable to judicial review. Therefore, arguably there is a criticism there.

Secondly, I and the Government want to be sure of the exact scope of the wording "substantially funded". Those words appear in line 4 of Amendment No. 169C which refers to, an institution substantially funded by one of the higher education funding councils". Thirdly, I must say to my three noble friends that I think the test in the amendment of, reasonable cause to believe that there has been a want of due care", is a pretty narrow and restrictive power. Although I am not at present standing at the Dispatch Box and saying for that reason the Government wish to turn away from that particular form of drafting, nonetheless I think that it is a form of drafting at which we would want to look very carefully.

Finally, there is an aspect of the amendment which is absolutely fundamental. I put it very simply for my own benefit. While I accept that any direction would most likely be in response to an institutions's financial situation, it is in the nature of the power we seek in Clause 77 that it would come into use only in the most exceptional circumstances. That is why the government amendments attack the matter by seeking to limit the nature of any direction which might be given, whereas Amendments Nos. 169A and 169C would limit the circumstances in which a direction could be contemplated.

However, in uttering that criticism I realise that that is exactly the point upon which many of your Lordships feel that the Government are not right and that the amendment is. Therefore, in conclusion perhaps I may try out this suggestion on your Lordships. If the Government—and this is the offer that I make this evening—are seriously to consider Amendment No. 169C, but with the reservations which I voiced (and there may also be some other reservations), I suggest that we should do so, without commitment, seriously and in discussion with those noble Lords who are interested in the matter.

I should point out to the noble Lord, Lord Peston, that that would mean that the Government could not possibly move Amendments Nos. 170 and 171 to Clause 77. In the circumstances, I could give an undertaking now that when we reach that stage I would not move those amendments. Nevertheless, I had to move Amendment No. 145 because it is, from the procedural point of view, the peg upon which the whole debate hangs. I shall shortly press the amendment and await your Lordships' reaction.

Lord Peston

My Lords, perhaps the Minister could clarify a point for me. If we do not make any effort to divide the House on Amendment No. 145—and I am not an expert on procedural matters so I have to accept what the noble Lord says—I take it that he would not use that as an indication that any of us consider that that would be a good outcome. I presume that he is merely using it procedurally in order to give us more time to sort out matters before we meet again for further discussions. That would be the only commitment if we do not divide the House and decide not to intervene further in the matter. Am I right in thinking that the process suggested is purely technical?

Lord Simon of Glaisdale

My Lords, I rise only to speak in relation to the offer made by the Paymaster General. It leaves the situation in a highly unsatisfactory position. On Second Reading the noble Lord said that he had not been able to find a suitable narrowing formula. In fact the amendment in his name that has been tabled today is one that could have been framed at any time. The most junior clerk in the department could have given instructions to draft it to the most lately recruited officer in parliamentary counsel's office. That was not done. Nor was this perfectly simple amendment put down in Committee. On the contrary, what was done was at the very last moment. In order to buy off opposition, the noble Lord offered to bring forward an amendment on Report. That was shortly before your Lordships rose. He said that it could not be brought forward before Christmas. In fact, it was available at the very end of the Recess so that those who had been critical of the provisions were deprived of the opportunity of taking counsel.

The noble Lord the Paymaster General, again faced with formidable opposition, now says at the last moment that he will consider, without any commitment. In my respectful submission, in view of what has happened, that is unsatisfactory. I hope that your Lordships will divide on the amendment.

9.45 p.m.

Lord Campbell of Alloway

My Lords, perhaps I may ask for clarification. Before doing so, with the greatest of respect to my noble friend, I must say that I find this position all but intolerable. I agree with every word said by the noble and learned Lord. If he had not said it, I would not have had the courage to say it. I find it intolerable.

Secondly, is my noble friend taking on board Amendment No. 169B, a Conservative Back-Bench amendment that has found favour throughout the House? We did not know that it would, but it has. That applies also to Amendment No. 169C. I find it unacceptable that I should be, so to speak, beaten down a little at every stage. I am content that the Government whom I support should take the matter back. Baroness David: My Lords, perhaps I may ask one question to make clear what the Minister is offering. Is he going to take back Amendments Nos. 169A, 169B, and 169C and possibly Amendment No. 146A? Many of us are not clear what he is taking back.

Lord Belstead

My Lords, if I have the leave of the House, the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lord Campbell of Alloway have uncharacteristically been a little hard this evening. In Committee, I gave an undertaking that I would try to meet the anxieties which were expressed by bringing forward amendments on academic freedom. That I have done. They have not received the approbation of the House. I have said openly that government amendments to Clause 77 cannot be moved if we are to look at the other amendments.

I am advised that I can withdraw Amendment No. 145. That would leave the Bill as drafted. If we did that, that would be playing fair with the House. Perhaps I may say to my noble friend Lord Campbell of Alloway that I am not seeking to move or jockey the House in any particular direction. The Bill would be left as drafted, but there would be an undertaking that I would look at the amendments which had been tabled by your Lordships to Clause 77. In particular, I would look at Amendment No. 169C because that attacks the problem from a direction that is different to that of the Government. Your Lordships expressed some mirth when I said that it had entered my consciousness that the House felt that the amendment was doing it the right way and the Government were not. Therefore, on this aspect, I have said that I shall take the amendments away, particularly that one. On behalf of the Government, I offer to leave the Bill as drafted and not change it one iota but to look with the greatest care in the context of my speech at the amendments, which are mostly to be found on page 7 of the Marshalled List.

Lord Simon of Glaisdale

My Lords, the noble Lord the Paymaster General has moved his amendment, to which further amendments have been moved. They will first be put to the House by the noble Lord on the Woolsack. The noble Lord the Paymaster General cannot now try to stymie all the opposition by withdrawing his own amendment. That can come later but it cannot come at this stage. In my respectful submission, it is quite wrong to threaten your Lordships in this way.

Baroness David

My Lords, the Minister answered two of my questions. He said that he would take back Amendments Nos. 169A and 169B as well as Amendment No. 169C. He did not respond to my question about whether he would also take back Amendment No. 146A.

Lord Belstead

My Lords, if I have the permission of the House to speak for perhaps the last time, it is to say that I shall consider this. I have spent a considerable time explaining that I am not in the least unsympathetic on the Government's side as concerns the apprehensions over the effects on staff and students of the powers in this part of the Bill. The Government themselves, however, did not, for the reasons I gave, put down amendments because we believed that any powers in this part of the Bill were almost bound to impact —often beneficially—on students and staff. The answer to the noble Baroness, Lady David, is, yes, I shall look at the position and I hope that she will look at what I suggest.

Baroness Young

My Lords, perhaps I may make a procedural point which may help the House. For my part, I wish to take up the offer of my noble friend to look at the amendments. I realise the caveat he made and the strength of feeling of the noble and learned Lord, Lord Simon, and my noble friend Lord Campbell of Alloway. However, the way in which the House works is that we return for the Third Reading in two weeks' time. I am quite certain that my noble friend has taken the clear message from all parts of the House from every single Peer who has spoken. Unless we receive satisfaction, we shall return to the matter at Third Reading. For this evening, I shall be happy to accept the offer of discussion made by my noble friend and then we shall see whether we can achieve agreement before the Third Reading.

Lord Hughes

My Lords, in view of what the noble Baroness has said, is the offer of the Paymaster General to take the amendments away another way of saying that he is prepared to recommend that the amendments be accepted? Taking them away is no commitment, it only means that the amendments will be considered. If that is what the noble Lord means, then it is not going very far.

Earl Russell

My Lords, for the sake of clarification, will the Minister move Amendment No. 145 or not?

Lord Belstead

My Lords, as I said when I spoke previously, my intention is to withdraw my amendment and to leave the Bill as at present drafted.

Lord Renfrew of Kaimsthorn

My Lords, I wish to make the point that if, as suggested, the Minister is able to give an element of commitment, rather than simply agreeing to look at the suggestions, I hope that the House will not oblige the noble Lord to press the matter to a Division if it is technically difficult for him to withdraw the amendment. I feel that, if he would give that indication, then the House could accept that he would prefer to withdraw the amendment.

Earl Russell

My Lords, the Question before the House is on Amendment No. 146 as an amendment to Amendment No. 145. I believe I heard the Minister say he would look again at Amendment No. 146A, which stands in the name of his noble friend Lady Young. In that case it is incumbent upon me to withdraw Amendment No. 146 and to welcome the Minister's undertaking to look at it again. However, I ask him to look a great deal more sympathetically than was the case when he replied a few minutes ago.

The Minister relied again on the question that concerns the legitimate use of public funds. However, there is the matter of whether the Minister obtains a degree for the use of public funds. The argument put to him is that if what he obtains does not have the approval of the academic community, it is not a degree, in which case the Minister would be paying money for nothing. I hope the Minister will look again at this matter very carefully as I cannot see any compromise without a concession on this point. For the meantime I beg leave to withdraw the amendment.

Amendment No. 146, as an amendment to Amendment No. 145, by leave, withdrawn.

[Amendment No. 146A, as an amendment to Amendment No. 145, not moved.]

[Amendment No. 147, as an amendment to Amendment No. 145, not moved.]

The Deputy Chairman of Committees (Lord Ampthill)

My Lords, the Question is that Amendment No. 145 be agreed to?

Lord Belstead

My Lords, I beg leave to withdraw this amendment.

Amendment No. 145, by leave, withdrawn.

Clause 65 [Supplementary functions]:

[Amendments Nos. 148 to 150 not moved.]

Clause 66 [Assessment of quality of education provided by institutions]:

[Amendment No. 151 not moved.]

Lord Dainton

moved Amendment No. 151A: Page 48, line 25, leave out paragraph (b) and insert: ("(b) establish such expert competent committees as they think fit to give them advice on the discharge of their duty under paragraph (a) above and such other functions as may be remitted to the committees").

The noble Lord said: My Lords, your Lordships may by now be somewhat weary of my interventions on the subject of the maintenance of quality which carries with it the notion of quality assessment of British universities. I make no apology for returning to this matter, for if quality declines so will everything in higher education. Everything that both this Bill and the 1988 Act sought to achieve will be rendered nugatory. Entrance to higher education in the future will be short changed. The existence of Clause 66, and especially subsection (2), suggests that the Government share this view.

Government Amendment No. 152 acknowledges one of the points I made in Committee; namely, that an assessment committee or committees should comprise a majority of competent people who are up to date in knowledge of what goes on in best university practice and in teaching and research around the world. I thank the noble Lord, Lord Belstead, for that concession. Alas the Government, against their own repeated protestations that they do not wish to see bureaucratic structures imposed on funding councils, have nevertheless insisted that a single quality assessment committee should be brought into being.

What is even worse, in the Government's Amendment No. 152 a further prescriptive and damagingly restrictive principle has been introduced; namely, that no member of the council may serve on the quality assessment committee. It is almost as if the Government were in this vital matter determined to attenuate the connection between the council and its committee, whereas all experience shows that awareness of the quality of the institutions with which the committee will deal must always be in the forefront of the minds of the council members. That cannot be achieved unless some council members are involved in the quality assessment. I believe that it should be one of their most important duties.

When I sought reassurance on those points at Committee stage the noble Lord, Lord Belstead, said that he could not go so far "on his feet" and would write to me. Because I knew that the Government were not sympathetic to my view it was necessary for me to reintroduce my amendment, which now stands as Amendment No. 151A.

Having said all that, I should now like to propose a solution which would avoid including inappropriately bureaucratic mechanisms on the face of the Bill, to which I understand the Government are opposed in principle. It would simply give the funding council the duty specified in Clause 66(1) (a) of ensuring provision for quality assessment. The council could then carry out that duty in ways which it judged best, which I am sure would evolve over time and might well involve other councils. It will not evolve over time to meet emergent needs if it is set in tablets of stone on the face of the Bill. After all, we must remember that councils already have powers to establish committees for any purpose. Therefore, without that subsection they could do all that they wish to ensure quality assessment by the means which seem best to them.

I hope that the noble Lord, Lord Belstead, will feel able to respond positively to that suggestion between now and Third Reading. I beg to move.

10 p.m.

Lord Belstead

My Lords, there is no difference between the noble Lord, Lord Dainton, and the Government on the need for the funding council to exercise robustly its duties in relation to ensuring the assessment of quality in institutions. However, where we do not see eye to eye is in relation to whether it is right for legislation to require that the funding councils establish a series of expert committees as the principal means by which the funding councils fulfil their responsibility. Perhaps there is some misunderstanding about the proposed nature of the single quality assessment committee proposed in the Bill, and it might be helpful if I set out the background.

The duty upon the funding councils will be to assess the quality of higher education at institutions. The Secretary of State's guidance will make clear that such assessment will need to cover all subject areas. That is a necessary prerequisite if, as is currently the case, assessments of quality are to inform the funding decisions of the new councils. Assessment in all subject areas and the results feeding into funding decisions is, after all, not a new proposal. It is currently the practice, as the noble Lord knows better than I, of the universities and polytechnics and colleges funding councils. That coverage is also necessary in order for potential staff and students to have a complete view of the quality of what is provided by higher education institutions.

The question is what mechanisms should the funding council use for the purpose of securing the assessments. Currently the PCFC has a programme advisory group for each of its nine programme areas. As part of their task of advising the council, they consider the evidence which is available on the utility of provision in each institution in their particular field. Their recommended allocations take account of those quality judgments. The senior HMI for the subject area concerned attends each meeting of the group and reports on the findings of HMI in respect of each institution offering the subject.

That is a perfectly sensible way for a funding council to operate and would be one possible approach for the new councils to adopt under Clause 66 as it stands. However, there are other ways in which the councils could proceed. As the duty to assess rests with the councils, they should be allowed to construct the most appropriate structure.

The noble Lord mentioned one of the options which he would favour, namely that the clause should be truncated and simply provide for a funding council without any frills. The difficulty with that is that it would not be possible for me to move the next amendment, which was tabled partly in response to a proposal from the noble Lord, Lord Peston, at a previous stage of the Bill that current practitioners in higher education should be included on the quality assessment committees—which the noble Lord, Lord Dainton, was kind enough to say that he also approved of—and that there should be a majority of those involved in higher education on the committees.

The last point—and I am personally sorry that it is part of the amendment which I am going to move to Amendment No. 152—is one point of which I know the noble Lord disapproves. He has expressed his disapproval.

Amendment No. 152, which I shall soon move, responds to the debate which we had in Committee by referring to the desirability of those members being currently engaged in the provision of higher education, and strengthens the independent voice of the committee by providing a majority of members not to be members of the council.

The Government believe that the requirement on the councils to take independent expert advice on the principles of and approach to quality assessment has been widely welcomed. Although I know that the noble Lord, Lord Dainton, feels there should not be the provision that a majority of members should not be members of the council, we are actually responding to what has been said by a majority of Members in this Chamber who felt the opposite.

Lord Dainton

I am in some difficulty because I am not sure whether I should speak now on my objection to Amendment No. 152 or whether I should wait until it has been formally moved.

Lord Belstead

I think perhaps the noble Lord should wait.

Amendment, by leave, withdrawn.

The Deputy Speaker (Baroness Lockwood)

My Lords, I have to point out that, if Amendment No. 152 is agreed to, I cannot call Amendments Nos. 153 and 154.

Lord Belstead

moved Amendment No. 152: Page 48, line 29, leave out from ("committee") to end of line 32 and insert:

  1. ("(a) shall be persons falling within subsection (2A) below, and
  2. (b) shall not be members of the council.
(2A) Persons fall within this subsection if they appear to the council to have experience of, and to have shown capacity in, the provision of higher education in institutions within the higher education sector and, in appointing such persons, the council shall have regard to the desirability of their being currently engaged in the provision of higher education or in carrying responsibility for such provision.").

The noble Lord said: The noble Lord, Lord Peston, was concerned at the previous stage of the Bill that there should be on the quality assessment committees a voice for current practitioners in higher education. This amendment meets that particular point. The second effect of the amendment is to require that a majority of members of the quality assessment committee shall not be members of the funding council. As I have acknowledged, although I know that this is not the wish of the noble Lord, Lord Dainton—and I understand the reasons why—it is a matter which was favoured in Committee by my noble friend Lord Limerick and supported by a number of other Members. After considering the arguments carefully, the Government have concluded that a statutory requirement of this kind would provide an important guarantee of the independence of the committee's operations and advice. I beg to move.

Baroness Blackstone

I should like to welcome this amendment. The noble Lord the Minister has said that this is in response to an amendment moved at an earlier stage by my noble friend Lord Peston. I think this is a considerable improvement on the Bill, and we are grateful to the Government for bringing it forward.

Earl Russell

On behalf of these Benches I should like to add my voice to the welcome offered by the noble Baroness, Lady Blackstone.

Lord Dainton

I should like to make two points, based on practical experience. I am very anxious that we should avoid setting the scene so rigidly as to provide just one quality assessment committee and secondly that the committee should not have members of the council on it. That would impede the work which the council will have to undertake. My experience of serving on the University Grants Committee leads me to two conclusions. The first is that there is no point in their discussions at which a knowledge of an intimate kind of the quality of the institutions with which they are dealing is not necessary. It is always required. Secondly, a council of this kind has to find its own ways to adapt to changing situations. That is why I feel I have to speak against the notion of one committee specified the Bill. I prefer to see that removed and the council allowed to find its own way and react in a flexible manner to situations which none of us can foresee.

Lord Belstead

My Lords, perhaps I may reply to the noble Lord, Lord Dainton. I have heard the noble Lord argue the point outside the House. With his almost unique experience from UGC days, the Government would be ill advised not to listen to him.

The noble Lord believes that we are locked into a single committee. When we discussed the noble Lord's previous amendment, I stated that the Polytechnics and Colleges Funding Council has a programme advisory group for each of nine programme areas. I am not sure, therefore, that we are locked into an entirely rigid position. For instance, we envisage it as one sensible way of going about the task of quality assessment.

I have already referred to the point about not having members of the quality assessment committee on the council. I know that I have not satisfied the noble Lord on that matter.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, Amendments Nos. 153 and 154 are pre-empted.

[Amendments Nos. 153 and 154 not moved.]

Lord Pearson of Rannoch

moved Amendment No. 154A: Page 48, line 35, at end insert: ("(4) Before the Secretary of State makes any grant under section 64 above each institution shall draw up and publish its arrangements for monitoring and reporting on the quality of the education that it provides. (5) Such arrangements shall ensure that each faculty in each institution, shall publish:

  1. (a) detailed profiles and indicative reading lists of the courses they provide,
  2. (b) the names of the external examiners appointed to those courses,
  3. (c) the teaching load of the faculty members concerned,
  4. (d) graded pass lists for those who receive their awards as a result of attending one of the courses in question, together with lists of those who have failed,
  5. (e) where appropriate (d) above should be given on a collegiate rather than institutional basis,
  6. (f) the destinations of their students one year after receiving their awards.
(6) Such arrangements shall also ensure that each institution shall publish a report on the application of the provisions of section 43 of the Education (No. 2) Act 1986 relating to freedom of speech on campuses.").

The noble Lord said: My Lords, the amendment follows and amplifies one tabled by my noble friend Lady Cox and myself at Committee stage of the Bill. My noble friend is now in Stepanakert, the capital of Nagorno Karabakh, which is under siege by Azerbaijan, delivering her second consignment in a fortnight of medical supplies. That is why the noble Baroness's amendment is not on the Marshalled List today. I am sure that your Lordships will wish her well in her very courageous mission.

I wish to make the usual disclaimers about the precision of the amendment's wording. I apologise to my noble friend Lord Renton for the fact that it does not yet reflect the excellent point he made in Committee that it should be the funding councils rather than the Secretary of State which require the reporting envisaged. I thought that it might be helpful to separate the debate on the amendment, which is intended to contribute to academic quality in our future university system, from the debate that we have just had about academic freedom. I would, however, again remind your Lordships that the academic freedom about which we care so much is not honourable unless it carries with it an unwavering commitment to academic quality.

In the debate on the amendment tabled in the name of my noble friend Lady Cox and myself in Committee, several noble Lords were good enough to support the concept that institutions should be required to monitor and report on the quality of the education they provide. However, some noble Lords believed, or hoped, that the examples we gave where quality had failed were somewhat idiosyncratic. Doubts were also cast as to whether an amendment along these lines should be on the face of the Bill or whether its requirements should be left to the funding councils and to their quality assessment committees.

I believe that those requirements should be on the face of the Bill. I notice that a majority of the members of the proposed quality assessment committees are to be providers of higher education. In other words, they would be largely self-regulating in their daily work. My experience on the Council for National Academic Awards and its committees over the past nine years, often as the only non-academic present, is that it would be helpful to them to have firm guidelines such as these from which to work.

As to the idea that our examples were idiosyncratic, we would deny that strongly. Indeed, I have some further areas of anxiety to share with your Lordships today. They underline my doubts as to whether quality in our universities is all that so many noble and academic Lords in this House obviously believe. I should confirm that my doubts concern mainly the subject areas covered by the humanities, social sciences and teacher training. In giving those examples, I wish also to touch on the question of waste. I maintain that wasteful courses cannot claim academic rigour and therefore quality. I state that quite separately from pointing out that it is bad for young people who may wish to enter the world of work to be allowed to spend the three or four preceding years in enforced idleness.

For instance, I draw your Lordships' attention to a current advertisement for a history teaching post at an Oxbridge college. The job carries a salary of over £30,000 per annum for the basic 24 weeks of term or less than half a calendar year. In addition, the successful applicant will have free furnished accommodation, free heating and light, free meals all the year round and a few other allowances and perks. For that, he or she will be required to give tutorials on a one-to-one or one-to-two basis for not more than 15 hours in each of the 24 weeks of term time and also give up to 16 lectures per annum. Any additional college duties will be rewarded with a further stipend.

I know about research and scholarly activity which teaching fellows are supposed to carry out but I should have thought that many, if not most, people who are not academics would find those terms of employment a little unbalanced. It is the kind of example which makes some noble Lords sit up and think when told that our university system is at breaking point for lack of funds.

One wonders how seriously to take the claim when it is set against the pay and conditions of similar professions. For example, one could consider the pay and conditions of ward sisters in the National Health Service. It might be thought that they are at a similar level in their profession as are tutorial fellows at Oxbridge. Ward sisters in outer London earn up to £17,600 for a 47-week year. For each of those 47 weeks they work a minimum of 37½ hours. They often work longer and at unsocial hours. Their responsibilities, which often include making decisions that may affect whether a patient lives or dies, are every bit as great as those of the tutorial fellow.

But it is when one comes to talk to many university students that one begins to fear that much of what goes on in our universities may be very wasteful. Over the past few weeks I have spoken to many students who feel that they are wasting much of their time. The worst case I found is that of a student at one of our leading universities—not Oxbridge—who is required to attend two lectures and one tutorial per week. He is also required to write two essays per 10-week term. I suppose that I shall be told that that is yet another idiosyncratic example. I am quite sure, however, that when noble Lords talk to students, particularly in the subject areas that I have mentioned, much will be found that leaves them uneasy. Indeed, I have come across a group of about a dozen students who proposed to write to The Times saying how bored they were on their course and asking for its duration to be halved. I advised them not to write their letters until they had their degrees.

Another area which worries me is the waste and irrelevance in most of the business courses in higher education. That fear was confirmed by an article in the Daily Telegraph of 6th January this year which revealed that the Small Firms' Lead Body is calling for a major shake-up in the way in which business managers are trained. The article reflects what I was told, for example, by a girl who recently obtained a degree in economics from the London School of Economics. There she had three 10-week terms a year with only 12 hours per week of contact with teaching staff—360 hours per annum at a cost to the taxpayer of some £4,000. She is now a trainee accountant and has been sent by her partnership to a private college called Financial Training in preparation for her accounting examinations. The 10-week course there delivers 300 hours of personal tuition for about £1,500.

I know that the "student experience", as it is called, is widely considered to be of great value. But I wonder whether those figures do not suggest that there may be sometimes too much of it to be good for academic rigour and quality.

There is at least one other indicator which suggests that some of our universities, far from being starved of funds to the extent that they cannot do their job properly, may still be too comfortably off at taxpayers' expense. The number of first class degrees —if the latest edition of The Times Higher Education Supplement is to be believed—awarded by our universities has gone up by 10 per cent. in the past two years. It seems to me that that statistic forces our universities either to admit that they are more than adequately funded or that the quality of at least their first class degrees may be going down. Be all that as it may—and I think that it is the case—this amendment does not seek to make judgments. It does not attempt to interfere or proscribe. It merely seeks to make sure that the funding councils and their quality assessment committees are fully aware of what is going on so that they can take any action that they feel may be appropriate.

Finally, the amendment would require institutions to report on how successful they are being in securing freedom of speech on their campuses. The trouble with Section 43 of the Education (No. 2) Act 1986 is that it goes no further than requiring institutions to draw up a code of practice. When freedom of speech is denied, it is left to individual students to take action. Although there have been many cases where freedom of speech has been denied since the 1986 Act, only one case has been brought to court to test it. The case was won by the student but costs were awarded equally and not against the college authorities. That has not encouraged other students to take action. I believe that if institutions were required to publish their record in that important area of academic quality and freedom, they might take their duty under the 1986 Act more seriously. I beg to move.

Earl Russell

My Lords, the noble Lord, Lord Pearson of Rannoch, has a great gift for enlivening our proceedings. He reminded me a little of a certain kind of old-fashioned shop steward holding forth on the proceedings of the Palace of Westminster. It is a fairly common illusion outside the Palace of Westminster that when we are not in the Chamber we are not working. I hope that I need not say to any Member of the House that that is not so.

The noble Lord quoted the case of a person teaching for 15 hours per week. It is a rough but fairly reliable rule of thumb to say that 15 hours of teaching is equivalent to about a 50-hour week. The noble Lord also made the profound mistake of confusing a vacation with a holiday. That is the time at which you do your work.

I also comment briefly on the noble Lord's point about the number of first and second class degrees. There has been a considerable amount of correspondence about that in the Times Higher Education Supplement, some of which the noble Lord may have seen. About 15 years ago a considerable body of anxiety developed because firsts were a great deal easier to achieve in some subjects than in others. It was twice as easy to achieve them in the sciences than it was in the humanities. There was a widespread feeling that that was an anomaly. On the whole, that is being corrected by making it easier to achieve firsts in the difficult subjects rather than harder in the easier ones. That explains the statistics to which the noble Lord drew attention.

Lord Addington

My Lords, as regards the number of hours which undergraduates work—and I hope that the distinguished academics will support me on this matter—when a student is set one hour's tutorial, he is expected to prepare for it. I can remember that that meant reading large chunks, if not the whole, of several books for one tutorial. Moreover, if a person has to be sat down and spoon fed by taking dictation in a lecture hall to get through his work at university, he should not be there in the first place.

Lord Harmar-Nicholls

My Lords, the noble Lord who opposed the points made by my noble friend battened only on the figures as regards hours of work. He made an extremely good case. However, he rather gave the impression that everything is perfect and that there is no need to look at anything. That is the impression which he gave by dealing only with that part of the argument. By giving no consideration to the other points made by my noble friend, that is the impression he gave.

As I understand my noble friend, he is merely saying that the people who are in a position to make the decisions as to whether the money paid and the hours allocated to the work are correct should have some statutory reason for looking at the matter rather more carefully than perhaps has been the case in the past. That seemed to be the message which my noble friend wished to convey. Unless one can put one's hand on one's heart and say that everything is perfect and that there is no need for the people who must make those adjudications to look at matters rather more carefully, then this amendment should be looked at more sympathetically than did the noble Lord in his debate-winning speech.

Lord Annan

My Lords, I sympathise with those remarks. The noble Earl, Lord Russell, is entirely right about the kind of work involved if one teaches 15 hours a week. I agree with the view that at Oxford and Cambridge one would expect the undergraduates to be able to work on their own and not be spoonfed. Nevertheless, the amendment of the noble Lord, Lord Pearson, has a great deal to commend it.

There are some good reasons why universities should be expected to set out those basic conditions. Most universities that I know set out some, but by no means all. I wonder how many universities actually publish the teaching load of the faculty members concerned. I wonder how many state the names of the external examiners appointed to the courses. Of course they are always published in the Reporter or wherever the official proceedings are, but they are not always evident to the students.

The other point with which I have sympathy concerns a period I well remember in 1963 when I was chairman of a committee looking at teaching in the University of Cambridge. When we did some sample surveys on three faculties we discovered some disturbing statistics; namely, that there were people who were college officers earning a stipend additional to their university stipend but teaching only three or four hours a week. I sympathise with the feeling that some publicity on those matters is a good thing.

There is nothing in the amendment which impinges upon academic freedom. It is a simple statement of facts. The noble Lord perhaps deserved to receive some elucidation from the noble Earl, Lord Russell, but I for one would not be against an amendment of this kind.

Lord Belstead

My Lords, it is a question of what one puts on the face of the Bill and what one does not. Having said that, my noble friend Lord Pearson has once again raised important matters concerning accountability within higher education institutions. Let me say at once that the Government are at one with him on the need for institutions to maintain the quality of what they do and to publish information relating to that so that their performance can be looked at.

In a sense my noble friend's cry that what is being done must be clear is being attacked from two different directions in the Bill. In one direction the Government's proposal is that institutions should, themselves, establish a quality audit unit to monitor the standards of quality assurance mechanisms within institutions. Whether or not encouraged by the Secretary of State's reserve power to require the establishment of such a unit by the funding councils, the institutions have responded positively to the responsibility envisaged for them. They are proposing that the unit should arrange visits to each and every institution to examine quality assurance systems and structures, together with ongoing monitoring. The reports of those visits would be published, and the three representative bodies have accepted that an institution's public funding could ultimately be affected by an unsatisfactory report if adverse aspects are not corrected.

At the same time, the funding councils will appoint external assessors to report on the quality of provision within institutions. They seem likely to look at aspects of quality assurance as well. Those reports, too, will be published along with annual sets of performance indicators covering a wide range of measures.

Without following the noble Lord down the road of all the proposals he mentioned, perhaps I may say that clearly some of the areas covered by the amendment need to be in the public domain. Higher education institutions educate students, and it is right that performance indicators should include data showing how well they do it. The first destinations are also an important indicator.

Finally, with regard to freedom of speech, I understand the point made by my noble friend that, despite the provisions of the Education (No. 2) Act 1986, enforcement is a problem.

On that point it may reassure my noble friend that the Government have initiated consultations with parties concerned in education over the effectiveness of the freedom of speech legislation. At this stage I cannot say what conclusions will be drawn from the consultations, but I can confirm that Ministers at the department are alive to the issues and will take careful note of what has been said here today.

10.30 p.m.

Lord Pearson of Rannoch

My Lords, I am most grateful to noble Lords who have contributed to this debate, particularly those who supported me more than I expected. I am very grateful for that. I am also grateful to noble Lords who were critical of my intervention. My only hope is that if the spirit of this amendment can in the end be enshrined in good practice, a little light will be let in and everyone will be able to make their own judgment on who was right on the subject. I beg to withdraw the amendment.

Lord Annan

My Lords, the noble Lord told the House that he advised students who wrote to him not to write a letter to The Times. My advice would be that they should do so. They could not then possibly be failed!

Amendment, by leave, withdrawn.

Earl Russell

moved Amendment No. 155: Leave out Clause 66.

The noble Earl said: My Lords, in this amendment we propose to leave out Clause 66, which relates to the quality assessment committee. In Committee I described this clause as an umpire that could only give one side out. I said then that I could not mention such umpires, but I can now without any breach or abuse of parliamentary privilege. Mr. Gavaskar, commenting on the Indian tour of Australia, remarked that they were playing against 13 men. That is the way in which some of the academic community feel about this clause.

I am not going to enter any further into the argument with the noble Lord, Lord Pearson, as to whether the threat to quality comes primarily, as I believe, from the lack of funding or, as he believes, primarily from the negligence and sloppiness of the profession. It is sufficient to my purpose to ask the House to note that that dispute exists and, having listened to both of us a few moments ago, I do not believe that the House can be in any doubt that a dispute exists. It seems to be contrary to the principles of natural justice to have a dispute existing and be able to hear only one side of it. The committee could not get an accurate view of what is going on.

The House may be greatly relieved to hear that I am not going to develop at great length the argument that the Secretary of State is not competent to assess academic quality. We have already spent long enough on that tonight. However, as a point of history, the House should note what a colossal moving of the goalposts this is. Until very recent times the Secretary of State had not thought himself competent to make an assessment of quality. It had been made by the academic community. It was not his business. So his attempting to do it would be under-described by calling it "moving the goalposts". It is not only moving them but like turning rugger goalposts into hockey goalposts in the process.

It is a real example of the creeping bureaucracy to which the noble and learned Lord, Lord Simon of Glaisdale, has many times drawn our attention and what the noble Lord, Lord Peyton of Yeovil, has described as the unending tendency of governments of all parties to believe that they know best. Inevitably —because they cannot judge everything individually —they will fall back on quantitative indicators. While there are some things that such indicators can tell one, there is a very great deal that they cannot. It is a little like conducting a beauty contest simply by collecting the measurements of the contestants and never letting one's eyes fall on them. It is a rather limited form of perception.

My biggest argument against this clause is that it has the effect of making the Bill, in the nice 17th century phrase, felo de se; because it is a clause which contradicts the central thrust of the Bill. I am convinced that the Minister would hotly resist me if I were to say that the main thrust of the Bill was to reduce quality. He would not be able to resist me equally were I to say that the main thrust of the Bill is to increase what the Government mean by efficiency; in other words, to reduce unit costs. The Minister has admitted that many times. It appears to me to have something very near a synonymous quality with reducing quality.

There is a certain offensiveness here about the contrary assumption because it involves assuming that money is spent by higher education institutions in a way without any relevance to their primary purposes. Therefore, less of it may be spent without affecting their primary purposes. That is quite a far-reaching assumption. Anybody who is going to make that assumption needs to put before us a good deal more evidence for it than the noble Lord, Lord Pearson of Rannoch, has done.

I shall not argue at great length any more—

Lord Pearson of Rannoch

My Lords, at Committee stage my noble friend Lady Cox and I put forward other examples which included a whole institution—which appears to have gone off the rails at the moment —and no less than three subject areas which at present seem to be seriously questionable. Therefore, I would not want judgment on this matter to be confined to the few remarks I made this evening.

Earl Russell

My Lords, as I recollect that debate, the chief points made by the noble Lord and the noble Baroness concerned freedom of speech. On that there is agreement on all sides of the House. I accept that the noble Lord also found a certain number of academic Marxists.

Lord Annan

My Lords, I do not think the debate was purely on freedom of speech. It was on a department, or departments, prohibiting students from taking a different point of view from their teachers and that the whole reading lists, and everything else, was constructed to bring them to one conclusion and one conclusion only. Not one individual teacher—a department.

Earl Russell

My Lords, I think that nobody defends any such practice. There are cases in all professions where something goes wrong. I am certain that the noble Lord will not wish to maintain that his own profession is immune. I do not wish to maintain that my profession is immune. However, I think that efficiency, as defined by the Minister, is creating such a threat to quality that we are getting very close indeed to the point where it would be better if the job were not done at all.

If the noble Lord, Lord Pearson of Rannoch, or anyone else, wants to deprive us of all funding, they have that right. We might then be free to go off and do a job where we would be better appreciated. Meanwhile, so long as we are trying to do the job we must have the tools, or else we cannot. I beg to move.

Lord Renfrew of Kaimsthorn

My Lords, I do not entirely follow the logic of the noble Earl, Lord Russell. It may not be for the first time, but generally I get his drift at the very least. He has argued with the greatest consistency throughout our discussions on the Bill that he is anxious that sufficient resources may not be assigned in order to ensure that quality is maintained. That is a very legitimate anxiety.

However, Clause 66 is about quality assessment and I do not in the least understand how it would suit the book of the noble Earl if quality assessment were left out of consideration. It seems to me that the noble Earl is perhaps giving up the ghost. It would be of the greatest sorrow to all of us if he were to give up the ghost in any sense. I hope that he will continue to inspire us with his observations. I do not think that he should give up, as it were, on quality and I am sure that he should be supporting quality assessment. Like him, I have some unease about the approach taken by the noble Lord, Lord Pearson of Rannoch. Fortunately, however, the noble Lord's amendment is not immediately under discussion at this time, and so one need not take that point further.

It is appropriate that the universities should be subject to scrutiny in terms of quality, which is the principle established by the clause. I very much hope that on further consideration the noble Earl will agree with me that if we are concerned about the provision of resources, as indeed we are, it is appropriate that the end product should be monitored. That is precisely what the clause ensures.

Baroness Perry of Southwark

My Lords, I am also surprised that the noble Earl has suggested that this is somehow a move on the part of the Secretary of State to attempt personal assessment of the quality of teaching in universities. I remind him that the proposal in the Bill requires the funding council to set up a committee on the assessment of quality and not in any sense to involve the Secretary of State directly or his immediate civil servants in the process. Indeed I should like to reassure the noble Earl that there has been considerable consultation with the bodies representing higher education institutions about the process of quality assessment.

The pilot assessments of quality are taking place this month. Only about 10 days ago I was involved in training the first batch of assessors. I should like to reassure the noble Earl that they are people drawn from the universities and from the current polytechnics. The process has carefully drawn equal numbers from each of the existing sectors. They do not in any sense come from outside the system. People engaged in and experienced in teaching in higher education will be performing the assessments. I endorse the remarks of my noble friend Lord Renfrew. It is extremely important that the organisations in higher education should be assessed in the way the Bill proposes.

Lord Belstead

My Lords, I am disappointed that the noble Earl has chosen to move this amendment. The deletion of Clause 66 would mean that there would be no statutory requirement upon the higher education funding councils to assess quality in higher education. I join my noble friend Lord Renfrew in being concerned that in this sense the noble Earl has given up on quality. I know that the noble Earl has not in any way given up on quality.

The assessments under the clause will have three broad purposes. They will inform potential students and employers through the publication of reports, they will enable the institutions to take account of the independent and objective views of those carrying out the assessments and they will inform the funding methodology of the new councils. I accept that assessment is about far more than a simple and mechanistic quality funding equation—I am thinking of the point I made previously. Carried out effectively, it should help to improve quality as higher education expands. There is a serious quality issue involved.

Before I sit down I should like to make a point of which I am sure noble Lords are aware. It is, however, worth putting on the record. The Secretary of State will not be responsible for these assessments. The funding councils will be responsible. The White Paper made very clear that experts drawn from HMI and institutions would be needed to carry out the assessments and my noble friend Lady Perry has just told us about the pilot assessments that are taking place.

I realise that there are two points of view about Clause 66. I express the hope that, having given the matter an airing, the noble Earl will feel able to withdraw the amendment.

Earl Russell

My Lords, I thank all those who have spoken. I take the point made by the noble Lord, Lord Renfrew, about scrutiny. There is nothing wrong with scrutiny. But the noble Lord did not answer the point about the umpire who can only give one side out. The Secretary of State is not subject to scrutiny. The argument that the Secretary of State is offering a major threat to quality is one which the quality assessment committee cannot assess. I take the point made by the noble Baroness, Lady Perry; namely, that this will be done by a committee. But, again, such a committee cannot say what, in the opinion of many of us, desperately needs to be said.

I also take the point made by the noble Baroness that there has been consultation about Clause 66. I believe that she knows as well as I do that that consultation has come nearer to achieving agreement in some quarters than it has in others. However, I cannot understand the indifference to the problem of funding. Talking about academic freedom while funding is at its present levels seems to me a case of fiddling while Rome burns.

I thank the Minister for conceding, at the second attempt, that I have not given up on quality. I am struggling as hard as I can to preserve it. By his funding policy, I feel that the Secretary of State is thwarting my efforts at every turn. If I succeed in preserving it, it will be despite the Secretary of State. That gets under my skin. I commend the amendment to the House.

10.46 p.m.

On Question, Whether the said amendment (No. 155) shall be agreed to?

Their Lordships divided: Contents, 17; Not-Contents, 56.

Division No. 1
Addington, L. McNair, L.
Beaumont of Whitley, L. Ogmore, L.
Bonham-Carter, L. Redesdale, L.
Carmichael of Kelvingrove, L. Rochester, L.
Grey, E. Russell, E. [Teller.]
Hamwee, B. Seear, B.
Jenkins of Hillhead, L. Tordoff, L. [Teller.]
Kirkwood, L. Winchilsea and Nottingham, E.
Mackie of Benshie, L.
Adrian, L. Beloff, L.
Annan, L. Belstead, L.
Arran, E. Bethell, L.
Astor, V. Blatch, B.
Balfour, E. Blyth, L.
Brabazon of Tara, L. Kimball, L.
Butterworth, L. Lawrence, L.
Caithness, E. Long, V.
Campbell of Alloway, L. Lyell, L.
Carnegy of Lour, B. Mackay of Clashfern, L.
Carnock, L. Marlesford, L.
Cavendish of Furness, L. Monk Bretton, L.
Craigmyle, L. Park of Monmouth, B.
Cross, V. Pearson of Rannoch, L.
Dainton, L. Perry of Southwark, B.
Darcy (de Knayth), B. Porter of Luddenham, L.
Denton of Wakefield, B. Reay, L.
Ferrers, E. Renfrew of Kaimsthorn, L.
Flowers, L. Skelmersdale, L.
Fraser of Carmyllie, L. Strathclyde, L.
Gridley, L. Strathmore and Kinghorne, E.
Guildford, Bp. [Teller.]
Harvington, L. Trumpington, B.
Henley, L. Ullswater, V.
Hesketh, L. [Teller.] Vivian, L.
Holderness, L. Waddington, L.
Hooper, B. Willoughby de Broke, L.
Howe, E. Young, B.
Jenkin of Roding, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.55 p.m.

Clause 67 [Higher education corporations: constitution and conduct]:

Lord Addington

moved Amendment No. 156: Page 51, line 22, leave out ("or student nominee").

The noble Lord said: My Lords, I wish to speak to Amendment No. 156, which stands in my name, as does Amendment No. 158, and to the other amendments in this group. In them, we readdress issues which we have talked about on several previous occasions on this Bill, relating to both the higher and the further education sectors.

The basic question is whether we want a sizeable opinion. Some of us would say we want a working amount of student representation provided in the Bill, while others say that one student nominee is sufficient. I suggest, for a variety of reasons, that students are effectively the lifeblood of any institution of education. Thus, the number currently represented in the Bill is not sufficient. I beg to move.

Lord Renfrew of Kaimsthorn

My Lords, at Committee stage the area of this amendment was also discussed in relation to representation of other categories of person on the corporations of universities. Some of us found that an inconvenient juncture because we feel with great vigour that students are part and parcel of the university. They are its core, it is the students and the teachers who together constitute the university. There are those in other categories who may have their role to play and account should be taken of that, but the members of the university are the students and the academic staff. For that reason, there is a fundamental principle here to which the noble Lord, Lord Addington, rightly drew our attention.

My own Amendment No.158A is similar to that of the noble Lord, and it is also in the name of the noble Lord, Lord Morris of Castle Morris. I do not see a great deal between the amendments; the subject could be debated in great detail, but perhaps it is too late to do so.

It is worth stressing that in the 1988 Act, as I understand it, there was provision for student membership as well as membership from other categories. Many of us are entirely in sympathy with the intention of the Government, which the Minister made clear, that in general terms representation on corporations of higher education institutions should be less itemised. That is in the sense that there are one or two here, one or two there and one or two from somewhere else. That is fine, but we need one or two students.

The matter was extensively discussed in the debates on the 1988 Act and there are other noble Lords present who remember them, although I cannot do so at first-hand. In the debate at Committee stage, the noble Lord, Lord Henderson of Brompton, quoted Mr Robert Jackson. In 1988 he was Minister with responsibility for education and he then emphasised that the Government valued highly the participation of students in governing bodies of institutions.

I am sorry that the Government give indications not perhaps of not valuing it highly, but valuing it no more highly than other categories which they have swept away. I have no objection to that, but Schedule 6 to the Bill is extremely parsimonious. On the possibility of student participation, it refers to, at least one and not more than seven (referred to below … as the 'co-opted members') shall be persons nominated by the members of the corporation who are not co-opted members".

If we follow through the rather tortuous wording of the Bill, that is the back door by which students may be admitted to higher education corporations. They may be co-opted by the real, "pukka" members of the corporation. That is not good enough, and it is why my amendment, which is not substantially different from that of the noble Lord, Lord Addington, takes for students an exact parallel with the wording for teachers. Paragraph (2) (b) states: up to two may be teachers at the institution nominated by the academic board". I have tried to follow that wording entirely and suggested that up to two may be students who would be nominated by the student body.

In Committee a number of noble Lords said they did not want student representatives as opposed to nominees. I believe that point is taken care of. The persons concerned would not necessarily be the student president or delegates. They would be full-time students elected by members of the student body. I should be sorry if the Minister, on behalf of the Government, saw fit to gainsay that principle at this stage now that the noble Lord, Lord Addington, has conveniently separated this issue from those which complicated it in Committee.

11 p.m.

Lord Morris of Castle Morris

My Lords, in supporting this group of amendments, I also strongly support what has just been said by the noble Lord, Lord Renfrew. On the general issue I do not know what I can say that others have not said, or that I have not said myself, as all the arguments on behalf of student representation on governing bodies have been marshalled, paraded, recalled to the colours, remustered and re-presented time after time. The issue of the membership of both further and higher education corporations was discussed extensively in Committee and again on Report. The overwhelming majority of noble Lords who spoke from all sides of the House have been in favour of the principle of student participation. The basic arguments in favour of student involvement remain unchanged and I shall not repeat them.

Students are, in the language of the Government, consumers of education. As I would prefer to think of it, they are members of a community which prides itself on preserving its academic autonomy and its democratic procedures. As such, students surely deserve a say in the running of those institutions at the highest level. In Committee concern was expressed over the term "representatives". Noble Lords questioned whether this might mean that students would be mandated.

In the first of the amendments in this group, as it now stands, it is clear that a student nominee is what is being considered. After the 1988 Education Reform Act the DES issued model articles of government for higher education corporations. Article 6.2 stated: Members of the Board of Governors, shall not be bound in their speaking and voting by instructions given to them by other persons".

It is fairly clear that student nominees selected by other students cannot be mandated. They will be proper, ordinary, straightforward, up and down the wicket, common-sense members, like every other member of the corporation.

Government spokesmen have also made use of the argument that students will be on governing bodies anyway, as institutions will feel it necessary to include them. That, in my respectful submission, is a weak argument because, if the Government really believe that and can see the benefits of student involvement on governing bodies, they will surely not oppose this amendment.

It is, of course, not for me in any way to attempt to lead the mind of the Minister. However, if, when considering this group of amendments, the Government were prepared to look kindly on Amendment No. 158A, they might feel that was perhaps on balance preferable to the wording of Amendment No. 158. They might feel similarly that Amendments Nos. 160A and 160B might command slightly wider support than Amendment No. 160. However, that is a matter for the Minister to consider. The general thrust is surely clear. Students are currently serving as representatives of their fellow students on most governing bodies in higher education to everybody's entire satisfaction. These amendments seek only to retain their hard won status quo. Students on governing bodies have done well. Let us not now take away from them what they are all so rightly proud to have won.

Lord Redesdale

My Lords, I thank the noble Lord, Lord Morris, for giving his views on student nominees. I know the arguments have been put forward before at all stages of the Bill. However, if a student is not nominated by other students, he will not have the benefit of the trust of the students in the institution concerned. They may not think that he represents their views. Therefore it is most important that a student nominee should be elected by the members of the institution of which he is a member.

Baroness Perry of Southwark

My Lords, it is unfortunate that the amendments are grouped together because they make different points. Amendments Nos. 156 and 158 refer to an individual student nominee, whereas Amendment No. 158A in the name of my noble friend Lord Renfrew suggests the freedom, rather than the requirement, for a corporation to appoint up to two full-time students of the institution. I believe that that is an important distinction.

The president of my own institution's student union has on several occasions mentioned the difficulty he finds in being alone in a group of articulate and experienced adults who are members of the board. He has frequently said how much he wished that there were more than one student present at board meetings. The freedom to appoint two representatives is an important point and I should be sorry if as a result of the grouping that point were lost.

Baroness Park of Monmouth

My Lords, I should like to support my noble friend. Frequently two categories of student will be represented—the undergraduate and the postgraduate. Their interests are very different and what they can contribute to the discussion is very different though equally valuable. We need to carry both with us in the major changes which may be necessary in education from time to time in the next 20 years. Therefore, I strongly support the proposal that we should be thinking in terms of two representatives from the first because of the difference of view that needs to be represented.

Lord Cavendish of Furness

My Lords, we had an interesting debate in Committee about the Government's proposals to remove the statutory right of legal authority nominees, teacher nominees, general staff nominees and student nominees to be members of the governing body of a higher education corporation. A number of arguments were put forward, particularly in favour of student representation, and I undertook to convey them to my right honourable friend the Secretary of State. I see that it is the right of students to be nominated which the amendments tabled by the noble Lord, Lord Addington, now seek to restore.

My right honourable friend has considered the views expressed in Committee carefully but he has concluded that the provisions of the Bill should remain as they are. Several noble Lords referred to the quality of the contribution made by students and, as we have always acknowledged, I am sure that is the case in many instances. There is nothing in the Bill that will prevent a governing body having the benefit of that contribution and, as I said in Committee, the indications are that most governing bodies will wish to retain student members. Governing bodies are free, if they wish, to ask the student body to nominate someone and then to co-opt that person as a member should the governing body wish to proceed in that way. I do not accept my noble friend's remarks about pukka or not pukka representatives.

The Government's intention is to reduce the element of prescription and to give greater flexibility to governing bodies to determine their way of working. After three years' operational experience that is a sensible way forward. As I mentioned in Committee, both the Committee of Directors of Polytechnics and the Standing Committee of Principals of Colleges have welcomed the increased flexibility. I can add that the chairmen of the governing bodies of polytechnics have also welcomed the increased flexibility.

I do not doubt that governing bodies will take the necessary steps to ensure that they are fully aware of the views of the various parts of the institutional community. The Government believe that they can be trusted to do so without having statutory requirements for nominees placed upon them. In view of those arguments I must resist the amendments.

Lord Peston

My Lords, perhaps I may interrupt the noble Lord and I apologise for doing so. It never occurred to me that he would reject the amendments. That is why I did not speak earlier, so that we could get a move on. I am astonished.

Does the noble Lord remember his own remarks last week on the model articles and instruments for FE colleges and can he make what he said then fit in with what he has just said? It did not occur to me that this would be a contentious issue and I do not know whether the noble Lords who have moved the amendment are about to divide the House, but if they do not do so I shall certainly divide the House if this is the best we are to receive by way of answer on the issue. The noble Lord's answer does not meet any of the matters which have been put before your Lordships in the past few weeks. This really will not do.

Lord Cavendish of Furness

My Lords, I cannot quarrel with the noble Lord, Lord Peston, if he wants to divide the House. I have told him that my noble friend wants to keep the flexibility and he does not want to be prescriptive. We can disagree on that maybe.

Lord Peston

My Lords, I do not think the noble Lord understands what I am saying. I am trying to work out why we bother with any of this sort of thing if he simply says, "I don't want to do something". Some of us are rather more used to rational argument and a certain give and take. I have not heard anybody support the Government's view on this matter. Is that not something that they might take into account?

This is not like the major issues we have been discussing. This is a minor but rather important matter that I thought was not in the remotest sense contentious. That is why I am slightly angry.

Lord Pearson of Rannoch

My Lords, if I may intervene, I did not come in earlier but I must say that I have spoken to a number of polytechnic directors who, were they here, would resist this series of amendments. I am not in the least surprised by what my noble friend the Minister has said about the support he is getting on the position the Government are taking.

The Lord Bishop of Guildford

My Lords, I wonder whether the Minister could help me. I recognise this is not the particular amendment with which we are dealing now, but the associated amendment in the name of the noble Lord, Lord Renfrew, which is to the schedule, is to provide for two students. If I understood the Minister right, he said the reason why the Government were against this was that they did not wish to be prescriptive; yet they have in the schedule that up to two may be teachers. That is prescriptive. I cannot follow the logic of the argument.

Lord Cavendish of Furness

My Lords, dealing with the noble Lord, Lord Peston, first, I did say that I had consulted and we had had some response to that consultation, and also I gave two reasons. I have given them twice, and I hope the noble Lord has absorbed them.

In respect of the amendments of my noble friend Lord Renfrew, as I have just indicated, the Bill already makes provision for students to be co-opted members of a higher education corporation. It does not restrict governing bodies to any particular method of determining which students to appoint. A governing body may appoint students selected by members of the student body if it so wishes. Therefore the amendments would not appear to be necessary to permit the appointment of student members in line with the governing body's wishes. However, they put those student members in a different category for appointment. They would no longer be co-opted members, and because of that they would themselves be able to participate in the nomination of co-opted members. We believe that to be undesirable.

The Bill presently makes provision for co-opted members to be nominated by independent members and any teacher members nominated by the academic board. The Government believe that that is the right group of members to nominate co-opted members, and it should not be extended to include students.

With regard to what the right reverend Prelate said, the two teacher nominees are not representatives; they are nominated by the academic board. That is the difference.

Baroness Blackstone

My Lords, before the Minister sits down, I wonder whether he could clarify why students should not participate in the nomination of co-opted members. Of course they will be a small minority if we are talking about two only, and there will be many more independent members, so the views of the independent members are likely to prevail when it comes to any final decision about who co-opted members should be. I am puzzled as to why students should not make a contribution towards such a discussion and such suggestions. Perhaps that could be clarified.

Lord Cavendish of Furness

My Lords, my understanding is that it is felt that this particular area is one where maybe students would not be able to make much of a contribution because it would be in the nomination.

Lord Flowers

My Lords, it does not seem to be understood by the Government that students' presence on governing bodies of universities and other higher education institutions is not simply to give the students something; it is also to give universities something. Students are the most important element in the university. They have to be carried with one, whatever one does. The university is there for them, first and foremost. They can be carried with one most successfully, if one has a few, perhaps two, sensible students—and in my experience they are usually sensible students—who take part in the discussion. More important than taking part, they understand the discussion and can take the message to their fellow students saying, "Don't get excited about this. What is intended is as follows". They explain. They are the communicators between the governing body and the student body; and they do a very good job.

Lord Cavendish of Furness

My Lords, it is Report stage. I can respond only once more. If the noble Lord had been following the debates, I have acknowledged all those qualities which have been referred to frequently during the conduct of the Bill.

Lord Addington

My Lords, to say that I am a little disappointed at the Government's response is probably the understatement of the decade. I thank the noble Lord, Lord Cavendish, for taking the issue back and discussing it. However, I am afraid the answer is not good enough.

The noble Baroness, Lady Perry, stated that my amendment referred at least to one representative. That was a fallback situation to ensure that there was a nomination. The amendment in the name of the noble Lord, Lord Renfrew, was a second bite. In my opinion, two would be the minimum number to make student representation practical. The amendment made sensible provision for those two students.

They are modest amendments. They have had wide general support. There is no real case for stating that students do not make a good contribution in this respect. I cannot understand why the Government have not accepted the amendment, or put forward their own amendment to meet the problems that have been raised by Members on all sides of the House. I have no option but to seek the opinion of the House on the matter.

11.17 p.m.

On Question, Whether the said amendment (No.156) shall be agreed to?

Their Lordships divided: Contents, 29; Not-Contents, 43.

Division No. 2
Addington, L. [Teller.] David, B.
Adrian, L. Flowers, L.
Annan, L. Graham of Edmonton, L.
Blackstone, B. [Teller.]
Dainton, L. Grey, E.
Darcy (de Knayth), B. Guildford, Bp.
Hamwee, B. Ogmore, L.
Howie of Troon, L. Peston, L.
Judd, L. Redesdale, L.
Kirkwood, L. Rochester, L.
Lawrence, L. Russell, E.
Lockwood, B. Seear, B.
Mackie of Benshie, L. Tordoff, L.
McNair, L. Turner of Camden, B.
Morris of Castle Morris, L. Winchilsea and Nottingham, E.
Arran, E. Howe, E.
Astor, V. Jenkin of Roding, L.
Balfour, E. Kimball, L.
Belstead, L. Long, V.
Blatch, B. Lyell, L.
Blyth, L. Mackay of Clashfern, L.
Brabazon of Tara, L. Marlesford, L.
Butterworth, L. Monk Bretton, L.
Caithness, E. Pearson of Rannoch, L.
Campbell of Alloway, L. Perry of Southwark, B.
Carnock, L. Reay, L.
Cavendish of Furness, L. Seccombe, B.
Craigmyle, L. Skelmersdale, L.
Cross, V. Strathclyde, L.
Denton of Wakefield, B. Strathmore and Kinghorne, E.
Ferrers, E. [Teller.]
Fraser of Carmyllie, L. Trumpington, B.
Gridley, L. Ullswater, V.
Henley, L. Vivian, L.
Hesketh, L. [Teller.] Waddington, L.
Holderness, L. Willoughby de Broke, L.
Hooper, B. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

11.24 p.m.

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

Lord Cavendish of Furness

moved Amendment No. 157: Page 75, line 42, leave out ("twenty-one") and insert ("twenty-four"). The noble Lord said: My Lords, on behalf of my noble friend, I beg to move this amendment. In doing so I shall speak also to Amendment No. 159.

In Committee, in responding to the amendment of my noble friend Lord Limerick, Amendment No. 277A, I informed the Committee that my right honourable friend the Secretary of State, after considering various representations, was prepared to table an amendment which would restore the maximum size of the governing body of a higher education corporation to its present level and make consequential changes to the permitted number of co-opted members.

This amendment seeks to make the necessary changes. In fact, I believe that my noble friend has noticed that, after consideration, the Government have retained his original wording. The increase by only two in the permitted number of co-opted members, rather than three, which might appear more appropriate, serves to correct an anomaly in the 1988 Act whereby the total of all permitted categories of member exceeded by one the maximum permitted size of the corporation. I beg to move.

On Question, amendment agreed to.

[Amendment No. 158 not moved.]

Lord Renfrew of Kaimsthorn

moved Amendment No. 158A: Page 76, line 4, after ("board") insert: ("( ) up to two may be full-time students of the institution to be elected by members of the student body;").

The noble Lord said: My Lords, a number of noble Lords on this side of the House indicated to me that they would have had difficulty voting in favour of Amendment No. 156 because it dealt with transitional arrangements and was of no great general significance; but they would be willing to vote in favour of Amendment No. 158A, and we have already discussed the substantive issues relating to it. I beg to move.

Lord Campbell of Alloway

My Lords, I support the amendment but I am not anxious at this hour to enter the Division Lobby. I may have been willing to do so at a previous stage but I am not anxious to do that now.

As my noble friend is taking back one or two points for consideration, albeit without commitment, I ask him to consider this matter on the basis which we discussed previously; namely, that students should take part because they are the essence of it all. So long as they are not representatives - and that has been discussed - but are elected by members of the student body, in what better way or in what other way can we ensure their participation? They should take part. If the Minister accepts that, how are they to do so if the amendment or something like it is not accepted?

Lord Cavendish of Furness

My Lords, when I dealt with the group of amendments which included Amendment No. 156, I covered the ground rather carefully on this matter. I informed the House that we have no difficulty as regards wanting student participation but we do not wish to prescribe. We wish to give the governing bodies the flexibility about which I have spoken.

I shall read carefully what has been said but I regret that I cannot give my noble friend any assurance beyond that. I am sorry that I cannot move from what I said in the earlier part of the debate.

11.30 p.m.

Lord Tordoff

My Lords, we are in some difficulty in that this amendment was grouped with Amendment No. 156 and indeed is linked with that amendment. It is the custom of this House not to press amendments that are linked. That is not necessarily the case where matters are grouped that are different from the original amendment. But we are in some difficulty on the linkage between this and the previous amendment.

Lord Renfrew of Kaimsthorn

My Lords, perhaps I may comment on what the noble Lord, Lord Tordoff, says. If it were the case that he, and in particular the noble Lord, Lord Addington, were to find it more convenient for this amendment to be withdrawn in order that it may be brought back at Third Reading, I should be happy to follow their guidance. If it is in order for the noble Lord, Lord Addington, to comment, I shall be happy to follow guidance.

Lord Addington

My Lords, I was under the impression that we were dealing with the whole group as an issue. If I had been informed that noble Lords opposite preferred the amendment of the noble Lord, Lord Renfrew, I should certainly have given way in favour of it. However, I am in favour of bringing the amendment back at Third Reading if it is in order to do so. It is an important issue.

Lord Renfrew of Kaimsthorn

My Lords, I am not in a position to advise anybody on the procedures of the House. If it is in order that the amendment be brought back at Third Reading, I shall be happy to withdraw it at this stage.

Lord Peston

My Lords, I too am not convinced that it is in order. For the few years I have been in the House I thought that when amendments were linked and one was defeated, they were all defeated, just as the reverse is the case; that when they are linked and one is carried, the rest are carried with it —though in this case there would be a slight logical difficulty in doing that.

I have nothing against the amendment. In fact, my noble friend indicated that he preferred this amendment to the one on which we voted. However, as a matter of procedure I am not sure that we can either vote on it or speak of coming back to it. Perhaps we could be advised on that.

The Deputy Speaker (Baroness Lockwood)

My Lords, is the noble Lord withdrawing the amendment which has been moved and spoken to?

Lord Renfrew of Kaimsthorn

My Lords, I should like to be clear whether it is in order that it be brought back at Third Reading. If it is in order, I shall certainly withdraw it. It may be that I am not in order in moving it. However, I am a novice in this House and, as the noble Lord, Lord Peston, indicated, it will be helpful if I can receive the guidance of those who understand the rules of procedure, which I do not claim to do.

Lord Cavendish of Furness

My Lords, I have attempted to obtain brief guidance from the House. The amendment can be moved if it concerns a different point from the other amendments in the group. As I understand it, my noble friend can also withdraw it and bring it back at Third Reading.

Lord Renfrew of Kaimsthorn

My Lords, I shall seek to do that. It is at present clear to me that it concerns a different point from that in the amendment on which we voted. On that I am confident. I shall withdraw it. That will give opportunity for those who have greater experience than I in the procedures of the House to advise me whether it is proper to bring it back at Third Reading. If so, that is what I shall do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cavendish of Furness

moved Amendment No. 159: Page 76, line 5, leave out ("seven") and insert ("nine").

The noble Lord Said: My Lords, on behalf of my noble friend perhaps I may say that I spoke to this amendment with Amendment No. 157. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 160 to 160B not moved.]

Clause 69 [Government and conduct of designated institutions]:

Lord Cavendish of Furness

moved Amendment No. 161: Page 54, line 18, at end insert ("but does not include any institution established by Royal Charter").

The noble Lord said: My Lords, Amendment No. 161 seeks to remedy an anomaly which has come to light in respect of the Secretary of State's existing powers and the proposed powers of the Privy Council under Clause 69 to modify the instruments and articles of institutions designated for funding by a higher education funding council.

A number of such institutions were established by Royal Charter and already come within the Privy Council's jurisdiction under the Crown's prerogative powers. Thus, both the existing and the proposed legislation make those institutions subject to parallel jurisdiction under both prerogative powers and statute. It is an anomaly which needs to be remedied, and the amendment seeks to achieve this by removing institutions established by Royal Charter from the scope of Sections 129A and 129B. I beg to move.

On Question, amendment agreed to.

Clause 71 [Variation of trust deeds]:

Lord Cavendish of Furness

moved Amendment No. 162: Page 56, line 2, leave out ("institution within the higher education sector") and insert ("such institution as is mentioned in subsection (1A) below").

The noble Lord said: My Lords, I explained in Committee in response to the amendment of my noble friend Lord Renfrew that the Government were looking again at the scope of Clause 71. My noble friend explained clearly that as presently drafted Clause 71 would provide the Privy Council with a new power to modify the charter and statutes of universities. This was unintended, and the amendment the Government are now tabling confines the power of the Privy Council to modify trust deeds or other instruments only in respect of higher education corporations, or designated institutions other than designated institutions established by Royal Charter. In other words, no university is affected by this provision. I beg to move.

Lord Renfrew of Kaimsthorn

My Lords, after so many contentious words this evening it is a pleasure to be able to say that I am advised that the amendment completely meets the difficulties which were raised. I thank my noble friend the Minister for so completely meeting the difficulties in so satisfactory a manner.

Lord Adrian

My Lords, I spoke to the original amendment moved by the noble Lord, Lord Renfrew. I also thank the Minister for a very satisfactory outcome.

On Question, amendment agreed to.

Lord Cavendish of Furness

moved Amendment No. 163: Page 56, line 5, at end insert: ("(1A) The institutions referred to in subsection (1) above are—

  1. (a) any institution conducted by a higher education corporation; and
  2. (b) any institution in relation to which a designation made or having effect as if made under section 129 of this Act has effect, other than an institution established by Royal Charter.").

On Question, amendment agreed to.

Clause 72 [Power to award degrees, etc.]:

Lord Dainton

moved Amendment No.163A: Page 56, line 14, after ("may") insert ("after consultation with the committee established under subsection (7) below").

The noble Lord said: My Lords, we now move to the question of the designation of institutions as being competent to award degrees, diplomas and certificates. As the Bill now stands, the Secretary of State would be able to designate an institution as fit or unfit to make such awards. This is obviously a very important matter. I need not dwell on its importance. It is particularly important to institutions seeking designation, to potential students and to the public at large who will seek reassurance as to the fitness of any institution to make awards which seem to them to have any value.

There are two mechanisms by which that can be done. The Secretary of State cannot do it himself without advice. There are two ways in which that advice can be offered to him. One is by the device of having a committee set up for each institution; the other is having a committee which can compare and maintain the same standards and ensure that those same standards are applied to different institutions which are under consideration.

It is for that reason that we want a subsection added requiring that the Secretary of State shall establish a committee with the duty of advising him on the exercise of his functions in this designation process and that those persons shall be members who represent the interests of the funding councils and those of the institutions for whom they provide support.

It will be a thoroughly competent committee. The question arises as to whether it should be a standing committee which exists to apply consistent standards throughout to different institutions or whether it should be an ad hoc committee. I have no doubt about the matter. As we know, we lag behind the Scots in almost all matters educational and the Secretary of State for Scotland has already written to the vice-chancellors and principals of the Scottish universities stating that it is his decision, following representations made to him, that the committee should be a standing committee in Scotland.

That is a recommendation. The most important aspect is that there is a proper mechanism, whether it is standing or ad hoc, but preferably standing, to advise the Secretary of State on the application of consistent standards in the selection of institutions which shall be designated as worthy to grant degrees, awards or certificates. I beg to move.

Baroness Perry of Southwark

My Lords, I am advised that this amendment as it stands would apply to institutions already accredited by the Council for National Academic Awards. In other words, it would apply to the polytechnics as they now stand and in which case I strongly resist the amendment.

The Council for National Academic Awards was established by Royal Charter. It has conducted its business impeccably in the past few years in accrediting institutions which in all but the name have been awarding their own degrees. It has accredited them either for research degrees or for undergraduate degrees. To force those institutions to be subject to very long delays to be examined by a new committee before they could become degree awarding institutions would be extremely unfortunate. I am not sure whether the noble Lord intended the amendment to have that result, but I am advised that, in effect, it would do just that.

Lord Dainton

My Lords, I thought that the Council for National Academic Awards was to go out of existence within a fixed period of time. Is it then the suggestion that there will be other institutions thereafter which will seek to be designated to have the power to grant degrees and certificates?

Baroness Perry of Southwark

My Lords, perhaps I may have the leave of the House to reply and to speak a second time. The point I was making is that this amendment as it stands would apply to those institutions already accredited by the Council for National Academic Awards. In other words, it would apply to all the polytechnics. Although I agree with the noble Lord that for the future it will be important to have some mechanism—whether a committee or otherwise—which would deal with new institutions, I would consider it extremely unfortunate, and so would all my colleagues and the many hundreds of thousands of students in our institutions, if there were to be a delay in the process of the polytechnics becoming degree awarding by having to go through a new process of accreditation as proposed in the amendment.

Lord Flowers

My Lords, since I supported my noble friend Lord Dainton, in this amendment may I say that it is not our intention that it should have the effect described by the noble Baroness. If the exact words do have that effect then of course they must be changed at Third Reading, and we shall do that.

My noble friend has explained the purpose of these amendments. Clause 72 as it stands allows the Secretary of State in person, advised only by civil servants or by a "kitchen cabinet", to empower institutions to make academic awards. No doubt in practice he would appoint an ad hoc committee to consider each case on its own merits. But that is not good enough. There should be a standing committee to consider every new proposal and as far as is humanly possible to require a minimum acceptable standard of achievement, or a promise, before the power to offer degrees is conferred. That is the intention of the amendment—to deal with new institutions coming into the degree and qualification-giving circle.

I also have some anxiety about the converse problem. I should be grateful if the Minister would enlighten me. Does this clause as it stands imply that unless an institution has permission from the Secretary of State it cannot offer a particular qualification? If so, that would be a very serious barrier against academic innovation. I shall give two examples. First, some years ago when I was rector of Imperial College we were asked by the Health and Safety Executive to set up short courses for its new graduate recruits. If I remember correctly, the teaching was to be shared between us, the costs to be borne by the executive, and the certificate to be awarded by the college to each student who performed satisfactorily.

Secondly, at Manchester, we introduced a diploma in advanced studies and science in response to the perceived need for intending PhD students to undergo formal courses of instruction during their first year of research. It was a most successful innovation and continued for many years, possibly even until today. I wholly fail to understand why the Secretary of State's permission should be sought in such cases and I hope that the Minister will be able to tell me that Clause 72 would not require that.

11.45 p.m.

Lord Peston

My Lords, perhaps I may say a few words in favour of both the clause and the amendment. I read the clause to mean that the Secretary of State will have power to announce that an institution is now a degree-awarding institution. I do not believe that the problem suggested by the noble Lord, Lord Flowers, can possibly arise. The clause provides that, where institutions do not have the power to award degrees, the Secretary of State will be able to designate some of them to be able to do so. I do not see a problem there.

I agree with the noble Lord, Lord Dainton, that, where institutions will be doing so for the first time, it would be much better if the Secretary of State had a committee to advise him rather than, as it were, purely doing it in-house at the DES. However, the noble Baroness, Lady Perry, made a valid point when she said that the polytechnics can in a sense claim that the Secretary of State has had a committee —namely, the CNAA—which has said that to all intents and purposes these are already near to and from now on should become degree-awarding institutions. She made the point that if the polytechnics had to wait for the new committee they might be delayed for a year. I cannot believe that that is remotely what the noble Lord, Lord Dainton, has in mind.

However, that is a minor matter of drafting. Essentially, the clause is about new institutions and the amendment is about advising the Secretary of State on new institutions. If there is confusion in regard to the polytechnics it is purely a matter of drafting. I see no major difficulty with the clause as suitably amended by the amendment.

Lord Dainton

My Lords, it is certainly not my intention in moving the amendment to interfere with satisfactory existing procedures, but the time will come when those procedures are no longer available. Therefore it should not be beyond the wit of man to draft an amendment, if that is the general wish, to provide for the future when there is no CNAA. I would withdraw the amendment if an assurance were given that the necessary procedure would be provided for.

Lord Cavendish of Furness

My Lords, before discussing the meat of the amendment, perhaps I may confirm that the noble Lord, Lord Peston, is right. The Secretary of State's power is to confer on institutions the power to confer a range of awards as set out in the clause. He cannot stipulate one type of qualification and not another.

Following consultation with higher education institutions, the Government announced on 16th December the criteria against which institutions would be considered for degree-awarding powers, both for taught courses and for research. Those reflect the recommendations in the consultation paper, which were widely welcomed.

In general terms, these are that, for taught-course degrees, an institution needs to be a self-critical, cohesive academic community with a proven commitment to quality assurance supported by effective assurance and enhancement systems. An institution which would qualify to award its own research degrees would need to demonstrate that its arrangements were broadly comparable with those in universities.

The Government's announcement also explained how the Secretary of State would receive advice on whether institutions met the criteria. In line with proposals in the consultation paper, the Secretary of State will look to the CNAA to advise on whether institutions validated by it meet the criteria, up to the CNAA's formal dissolution. In parallel, ad hoc committees will be appointed to provide advice on institutions validated by universities. That approach was also generally welcomed.

The consultation paper had proposed that, if the ad hoc committee approach worked in the short term, it could be retained in the longer term. However, a number of different views were expressed in the responses, and the Secretary of State announced that he wished to consider these longer-term arrangements further with a view to reaching a decision in the spring. The three options are: first, retaining the ad hoc committees; secondly, asking the funding councils to advise; or, thirdly, seeking the advice of the Quality Audit Unit. There are good arguments for each, or for a combination of two or more. But, so far as concerns the principle underlying the amendment, all three will enable an appropriate range of interests to be brought together for the purposes of providing the advice. I can assure your Lordships that an institutional voice will be essential.

The Government see no value in setting down in legislation a structure for advising the Secretary of State on the issue. It is, after all, a new function. It would be far better to wait to see how the ad hoc committees perform and then reach a view. That would also leave open the opportunity for the structure to change over time. In the light of those comments, I hope that I have been able to reassure noble Lords and that they will feel able to withdraw the amendment.

Before I sit down, I can say that the Committee of Vice-Chancellors and Principals has proposed to the Secretary of State that the Privy Council should have a role in conferring degree awarding power. The Secretary of State is very sympathetic to that proposal and envisages that he will be bringing forward an appropriate government amendment for discussion on Third Reading.

Lord Dainton

My Lords, before the Minister sits down, perhaps he can answer a simple question. Is the intention behind what he proposed, by whatever means it is achieved, to ensure that there are constant criteria which we can all accept, which have to be met by an institution and which will be consistently applied, even though he referred to the fact that there must be ad hoc committees up to the point at which, for example, the CNAA disappears? At that time, will there be every intention of ensuring some continuity and consistency in the application of the criteria?

Lord Cavendish of Furness

Yes, my Lords; I think that I can broadly agree with that. Under this method we have the chance to see how the ad hoc committees perform.

Lord Dainton

My Lords, in those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 163B not moved.]

Clause 73 [Use of "university" in title of institution]:

Lord Belstead

moved Amendment No. 164: Page 57, line 10, leave out ("by, or on the direction of or").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 165, 166 and 180. In the light of the debate at Committee stage on an amendment in the name of the noble Lord, Lord Kirkwood, the Government have looked again at the provisions in the Bill concerning university titles. We have concluded that it is not necessary for the Privy Council to have the power to impose such a title upon an institution. As set out in guidance already sent to institutions, the Privy Council's role would be restricted to giving its consent to an application from an institution for a new title. The amendments will put beyond doubt the Privy Council's role in this area. I am grateful to the noble Lord, Lord Kirkwood, for raising the matter in Committee. I beg to move.

On Question, amendment agreed to.

Lord Belstead

moved Amendment No. 165: Page 57, line 12, leave out ("by the Privy Council or, as the case may be, on the direction of or").

On Question, amendment agreed to.

Earl Russell

moved Amendment No. 165A: Page 57, line 16, at end insert: ("( ) No institution shall be called a university unless its academic staff are obliged by their contracts to engage in research, and given sufficient time and facilities to enable them to discharge that obligation."). The noble Earl said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 165B, 165C and 165D. The amendment before the House marks the breakdown of 800 years of partnership between the universities and the state. I hope that it is not an irretrievable breakdown. However, I must admit that I have my doubts on that point. For the whole of the history of universities in England there has, first, been no control on the Crown's power to designate a university.

Secondly, the Crown has taken the opinion of the academic community in deciding whether to designate any particular institution as a university. At no stage in the history of universities in this country has the Crown ever attempted to impose upon the universities its own definition of what is a university. That is now changing. In the concept of the non-research university, which this amendment addresses and seeks to render impossible, the Crown is not merely attempting to impose its own definition of what is a university; it is attempting to impose a definition which appears to many universities to be a contradiction in terms and frequently contradicts the charters and statutes of the universities concerned. It is a deliberate devaluation of the title of university, a little like what Members of the House some 350 years ago protested indignantly against under the title of the inflation of honours.

Let the Crown do what it will to institutions: it has sovereign power behind it in this House; but let it not call those institutions universities. It is a Humpty-Dumpty Bill. It changes the meaning of words.

In passing, I express my agreement with the point about benefactors made by the noble Lord, Lord Renfrew. I can, as it happens, illustrate that point personally. It so happens, with my children growing up, that I was in the process of remaking my will. I was about to bequeath a number of 17th century books which I possess to a college of which I was once a member, but I am not prepared to bequeath any such books to a place which might become a non-research university for it would have no use for them. I may well end up bequeathing those books outside this country.

Where we have non-research universities, I think we shall have a massive exodus of staff, for it is, after all, for many of us one of the main reasons for which we entered the profession. We shall have a considerable loss of students. After all, they tend to prefer teaching which is news to teaching which is not. It is a common and indeed human preference. They will also find that it will be a great deal less interesting.

We talk from time to time about rote learning, and in many fields, including my own, I do not know what value it has. But there is also such a thing as rote teaching. If one is not doing any work of one's own, one is not being forced by new evidence to change one's mind, not being pushed constantly into a state of uncertainty, and so there is a risk of falling into rote teaching. Here we reach a point where we must question whether the Secretary of State, who is, as we have heard before, accountable for public money, is receiving value for money.

It must be presumed that there is some value in all the education that is being provided. In some fields —I cannot speak for fields other than my own with any confidence—it may be valuable merely to learn the information; but I cannot believe, for example, that it is of any value to the country for people to learn by rote the reasons why the Parliament of 1614 was dissolved, especially as they would be learning by rote only one person's interpretation of that event rather than another's.

The value of most degrees in the humanities must rest upon the acquisition of critical skills, the ability to weigh arguments against one another and the ability to read conflicting books, and when those things are gone, I do not see what there is of value that is being done. When we reach the point of rote learning and rote teaching, the Secretary of State is spending his money for nothing. At that point a number of our institutions of higher education might as well be closed. It is not as far off as some of your Lordships think.

On Amendment No. 165B I will answer a point which was made by the noble Lords, Lord Renfrew and Lord Peston, in Committee. That amendment directs that a body should not be described as a university unless it has sufficient library and laboratory resources. The noble Lord, Lord Peston, said that it was a mistake to consider the definition of a university in terms of costs. If its costs were not adequately met, it was merely a poorly resourced university. Up to a point, that is true. We are here dealing with the familiar point of whether a difference of degree, when it is large enough, may become a difference of kind. If I experience first a pinprick, then a knife stab, we could say that the difference was only one of degree, but it is big enough to constitute also a difference of kind.

In the debate on the humble Address, I used the analogy of a bicycle without wheels. I do not believe a bicycle without wheels is actually a bicycle; it is a bicycle frame. By analogy, I argue that we are in danger of reaching the point where what we have is not a university; it is a university frame.

There are two points which we cannot sacrifice. One is that there should be a meeting of minds in teaching; the other is that there should be a library in which critical scrutiny of books is possible. Both are severely under threat and in one place at least, which I shall not name, they have disappeared to the point where I believe that the place concerned ought to lose its university status.

Amendment No. 165D provides that: No institution shall be called a university without the consent of the Royal Society and the British Academy". I do not know whether this amendment has found the right way of addressing the problem; probably not. But we can no longer leave to the Crown, represented by the Secretary of State, unfettered discretion over what constitutes a university. The consent of the academic community, which used to be taken for granted, now needs institutional protection. I beg to move.

12 midnight

Lord Annan

My Lords, I see that this is the latest effort by the noble Earl, Lord Russell, to force the Government to increase the funding to universities. I remember that during Committee stage he said that the B.A. degree began to decline in 1985 and that he had been forced to reduce the number of essays that he set his pupils for lack of funds, lack of library books. He warned—

Earl Russell

My Lords, I am grateful to the noble Lord for giving way. I did not say I had been forced to reduce the number of essays. I said that there was acute pressure to do so and many people had been forced to do it.

Lord Annan

My Lords, I apologise to the noble Earl. I think he said that if one reduces unit costs, then one reduces the amount of work done. I thought that at that time he was in favour of quality committees as a way of forcing the Government to produce more funds for universities. However, today he moved an amendment against that.

I wish to say to the noble Earl in all sincerity that I do not believe that anyone who has listened to him during the long debate which went on before this Bill has any doubt about his devotion to his subject and to research. He is a master of the history of the Civil War, of the English Revolution, its causes and consequences. That is not an easy field to be a master in. Some of the best minds among British historians have been working in that field for the past 40 years.

I do not think anyone could possibly doubt the devotion which the noble Earl shows to his pupils and his understanding of their difficulties today. However, I hope he will forgive me if I say that he does not seem to me to understand what it is the Government are up against and are trying to do today. As I understand it, the Government are trying to increase the number of people from the age of 16 upwards who can acquire some kind of higher or further education. This will cost a large sum of money. I remember saying three, four or five years ago that the universities had to recognise they were no longer the first priority in funding, and that funding would probably go first to the polytechnics and then to other sectors to train our young workforce. Somehow the money must be found to provide that training and that is why universities have been so squeezed in recent years.

I ask myself sometimes when I listen to the noble Earl what date he would wish to return to as regards funding. Is it 1985? No, it is probably not 1985. Perhaps he wants to return to the funding position in 1979, or 1973 before the oil crisis. Perhaps he would prefer to return to 1968 when money was pouring in to the trough and the dons were swilling it with both feet in the trough. That was the post-Robbins expansion when the money was really flowing. Whatever date the noble Earl chooses, he will find if he consults Hansard of this House that university vice-chancellors and professors in every subject were saying that the funds were totally inadequate for the purposes of the universities, that the brain drain was intolerable and so on and so forth. This happened over the years. These complaints are always made. I do not deny that universities are squeezed today, but I believe that in one sense they have sometimes brought this on themselves by crying wolf far too often many years ago.

I put it to the noble Earl that he makes these complaints but I never hear him suggest how he might alleviate the situation. I know this is a small point but lectures can be put on video. That saves the time of the lecturer. He must, of course, record his lecture and he would have the hour he would otherwise have spent in expounding the lecture to take a class to expound difficult points in the lecture or to answer questions put to him by his pupils.

Then again another way in which one can improve the situation, in the humanities at any rate, is by decreasing the number of options. In the 1930s the options in a history degree were comparatively few. There were options, of course, but once one allows the multiplication of options, one faces difficulties in providing books and in providing the teachers for those options. It is possible for the noble Earl to say that he stands by the Von Humboldt principles of Lehrfreiheit and Lehrnfreiheit; that is to say, the teacher is free to teach whatever he wants and the pupil is free to go to whatever professor he likes.

However, if one does that, one will not be able to have single subject degrees, carefully structured in the way they often are in universities. One will approach something like the American system of undergraduate education where one takes courses, often one may think at random. Whether that provides as good an education as the British system is open to question. However, one has to choose. I do not think the American system is at all economical in the way of using teacher resources. The noble Earl may ask about library books and say nothing I have suggested helps libraries on which many humanities subjects depend. Here one has to do some in-fighting in one's own university and try to persuade people to work with one to influence the resource or planning committee, or whichever committee carves up the cake, however small the cake may be. Often one has to say, "Vice-Chancellor (or Principal), we cannot go on as we are. We must cut down the number of subjects, departments and faculties in our university".

Already, I understand, in the noble Earl's college there is a proposal that the department of mechanical engineering should come to an end. That is a step very much in the right direction. When I read that I wondered whether all engineering departments in King's College might be closed down and the students distributed among Imperial College, University College and Queen Mary and Westfield College, which are bigger engineering schools. If one could do that over a short period of time one would release funds. The noble Earl must not take me up on that point. I do not in any way suggest that I know what should be done in his institution. Of course I do not. I merely suggest that one of the options the universities have been slow to take up is cutting down the commitments which they took on in much more generous and affluent days.

Lord Addington

My Lords, will the noble Lord give way? I hope that he is not suggesting for one second that we are prescribing matters to such an extent that one would know exactly what work one would do before one started a given course. If we restrict the number of options we could ultimately restrict them to such an extent that one would know exactly which essays one would write before embarking on a course.

Lord Annan

My Lords, I do not think that that is so at all. Students will very soon begin to realise that the correct answer is not the one which apparently is the standard one which comes out in the lecture course. Of course not. How does one judge whether students have initiative? One judges them by the kind of dissent which they show from the established view.

One cannot dictate to the Government on the subject of resources. How can one say, as the amendment says, that academic staff should be given, sufficient time and facilities to enable them to discharge that obligation". What the devil are sufficient time and facilities? Again, another amendment states: No institution shall be called a university unless its library and laboratory facilities are sufficient for its purposes". That is an open-ended commitment. No government could possibly accept such a commitment.

Finally, I notice the noble Earl's plea that: No institution shall be called a university without the consent of the Royal Society and the British Academy". I admire the Royal Society more than words can say. The noble Lords, Lord Flowers and Lord Adrian, may correct me if I am wrong, but it was only a comparatively short time ago that it was very rare indeed for any professor or scholar in engineering to be a Fellow of that society. The Royal Society has changed, but if that provision had been in operation in the 1960s, or the 1950s, I wonder what the result would have been. The British Academy is the same. Although the revolution in the teaching of English took place in the 1930s and literary criticism became the main way in which faculties and departments of English taught the subject, only one professor—Professor Frank Kermode—was elected a Fellow of the British Academy until very recently indeed. Under the influence of the good leadership of the present president the situation is now changing. One cannot rely even on those eminent bodies to be the only judge of whether a university is a university.

Finally, on the question of universities, perhaps due to my mother's American blood, I have always been somewhat sceptical of the idea that a university is a sacrosanct body. In America all bodies of that kind are called colleges. You go to college. Of course some, like the universities of Harvard or Berkeley, California, are great campuses of international fame, probably the best universities in the world, but some of the colleges calling themselves universities belong to what in America is called academic Siberia. They are not distinguished places but they perform some function, and nobody is under any illusion as to what the standards in the different places are.

12.15 a.m.

Earl Russell

My Lords, I am sorry to intervene again, but the noble Lord says they perform some function. Could he be more precise about what that function is?

Lord Annan

Yes, my Lords. For instance, some of the campuses in the State University of California are community colleges. Of course they are not at all of the kind of standard to which the noble Earl is used in his institution but I see no reason why they should not be part of the State University of California. It seems to me that here you allow public opinion to judge, and public opinion is very rarely wrong about the differences between different institutions. So I cannot bring myself to vote for this amendment.

Lord Belstead

I always enjoy listening to the noble Earl, Lord Russell, and listening to the debates on his amendments, but I had rather a sinking heart when I looked through the Marshalled List and saw this particular group of amendments. I wondered what the merit could be in attaching to the power to award the university title a series of amendments which indulge in nothing more nor less than special pleading for more funding for the university sector.

The spin-off has been that we have been treated to a splendid speech from the noble Lord, Lord Annan, which has been refreshing. I think the strictures which he has delivered have been delivered in a kindly and generous way, but they have gone home.

The fact of the matter is that these amendments will not do. I will content myself with but one example of why I think that. The first of the amendments would require that all academic staff in an institution should be obliged and enabled to engage in research before an institution could adopt a university title. It would require research to be taking place in every single area of an institution's activity and to be carried out by all the academic staff employed in those areas. With very great respect to the noble Earl, Lord Russell, that is not reasonable and it is divorced from reality. Although it has been quite fun listening to the remarks about these amendments, if I may say so, I do not think that they are worth the paper they are written on.

Earl Russell

The Minister says that an obligation for all university staff to be engaged in research is divorced from reality. It happens to be the present position, which I had supposed to be some form of reality. It is working at present. You would not guess from listening to the Minister that I am defending the status quo and the Minister is defending a very far-reaching change.

I listened with enjoyment to the noble Lord, Lord Annan. I felt a little like Joe Chamberlain in his Liberal Unionist incarnation. Your Lordships are well aware of the long-standing rivalry between King's and University Colleges. I recently transferred from University College to King's College. I think there was a little institutional competition going on behind the noble Lord's speech.

I shall take up one or two points that he raised. I repeat once again my position on the quality assessment committee. I was prepared to accept it if it were an umpire that could give both sides out. I failed to achieve that in Committee. I am not prepared to accept it as an umpire which can give only one side out.

I know all the points about improvement that the noble Lord makes. I know all about infighting on library resources. I spent most of last term doing it. I do not come to this House and ask for a special directive from the Secretary of State when I wish to do that. That is why the noble Lord has not heard me doing it all that often. He has not been in the right place.

I entirely accept his point that one cannot dictate to the Government on resources. Equally, the Government cannot dictate to universities or other bodies with which they deal how much those resources will buy. To be the purchaser and also able to control the seller's price is a central feature of a command economy and it is the command economy tendency of the Government's working in this area which is doing so much harm.

I take the point that the noble Lord made: that people have said before that funding was inadequate. It was true. But we again have the argument that a difference of degree may become a difference of kind. Up to this term it has been axiomatic among my colleagues with whom I have discussed the matter that, whatever happened to universities, closure was the worst option. This term I no longer find people taking that for granted. Since last November I have participated in some 20 or 30 discussions with academic colleagues as to the point at which closure becomes preferable to continued survival on present terms. I am not sure how far off that point is, but there is an increasingly general agreement that such a point exists.

However, the central point which the noble Lord, Lord Annan, made and which deserves a serious answer was about the commitment to taking an increasing number of people into higher education. That is an all-party commitment. My own party is as committed to it as anyone else. But what we have to be sure about, and I do not believe that at present we can be sure, is that what they are taken into is higher education.

I am reminded of Aristotle's story of Apelles the painter, who was taken hostage. Pressure was put on his captors to release him, which ultimately they did. But before they did so, they cut off his right hand. It was ruled that they had returned Apelles but not Apelles the painter. Therefore a punitive expedition was organised against them and they were put to death.

It is in that spirit that I ask whether, when we provide higher education to people, it is genuinely higher education. If it is not, I have a real doubt whether it is worth while. I have heard the argument that higher education must change for the sake of expansion. Up to a point I can see the force of that argument. But there is a point beyond which it becomes dangerously close to saying that because higher education is so good, therefore nobody shall have it.

I appreciate that I do not have the support of some quarters of the House. However, I am reminded of the story of Robert Cecil, who was hunchbacked. Queen Elizabeth used to describe him as "my pygmy". He once said to somebody who was a known leaker of information, "Which name I mislike not, only for that it is Her Majesty that gives it". It is in that spirit that I say that there are certain matters to which I can consent only because I consent to the majority principle. It is a principle that one cannot invoke too often. This is the third time that I have invoked it since I have been in this House. I hope not to do so again for some time. I must ask the opinion of the House.

12.25 a.m.

On Question, Whether the said amendment (No. 165A) shall be agreed to?

Their Lordships divided: Contents, 6; Not-Contents, 42.

Division No. 3
Addington, L. Rochester, L.
Kirkwood, L. Russell, E. [Teller.]
Mackie of Benshie, L. [Teller.] Tordoff, L.
Adrian, L. Hooper, B.
Annan, L. Howe, E.
Arran, E. Long, V.
Astor of Hever, L. Lyell, L.
Belstead, L. Mackay of Clashfern, L.
Blatch, B. Marlesford, L.
Blyth, L. Park of Monmouth, B.
Brabazon of Tara, L. Pearson of Rannoch, L.
Carnock, L. Perry of Southwark, B.
Cavendish of Furness, L. Reay, L.
Craigmyle, L. Renfrew of Kaimsthorn, L.
Dainton, L. Seccombe, B.
Darcy (de Knayth), B. Skelmersdale, L.
Denton of Wakefield, B. Stockton, E.
Ferrers, E. Strathclyde, L.
Flowers, L. Strathmore and Kinghorne, E.
Fraser of Carmyllie, L. [Teller.]
Guildford, Bp. Trumpington, B.
Henley, L. Ullswater, V.
Hesketh, L. [Teller.] Waddington, L.
Holderness, L. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

12.33 a.m.

[Amendments Nos. 165B to 165D not moved.]

Lord Belstead

moved Amendment No. 166: Page 57, line 24, leave out ("change, or direct or"). On Question, amendment agreed to.

Lord Peston

moved Amendment No. 167: Page 57, line 27, leave out ("whose name includes the word "university") and insert ("which is entitled to include the word "university" in its name").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 168. This is the high point of the evening. I do not wish to become involved in a deep philosophical debate on what is a university. I assume, for the purposes of the Bill, that Clause 72, which deals with degree-awarding powers, is central. There are also the degree-awarding powers of the institutions which have charters.

Representatives of the polytechnics have drawn to my attention—it is the reason for tabling the amendment—that Clause 73 deals with the use of "university" in a title. What has been put to me, and therefore I put it to the Minister, is that Clause 73 concerns bodies that apply for, and no doubt receive, a title. The question is, if one receives the title, does one receive anything else?

I took it for granted that, unlike your Lordships when we come here—and I forget the full definition of what we are given—if one receives the title one does not receive anything else. What matters is the degree-awarding power in Clause 72 which is not contingent on the title. However, there is a slight complication to which I shall draw your Lordships' attention. It concerns the last part of Clause 73, which says: Any educational institution whose name includes the word 'university' by virtue of the exercise of any power as extended by subsection (1) above is to be treated as a university for all purposes". I hope in a sense that that last part is as vacuous as all the rights and privileges that we receive when we come here, because none of us has ever found out quite what they are; in other words, that it does not mean anything. The reason I say that is that if it means something, to be treated as a university for all purposes", if one has the title "university", what happens to those institutions who choose—I am not saying any will though I have advised one or two to do so—not to use "university" in their title? Will they not then be treated as a university for all purposes? More to the point, will that in some sense detract from the powers to award degrees in Clause 72?

I tabled the amendment in the hope that I would be told that, to be treated as a university for all purposes", is a meaningless expression; what matters is the power to award degrees, but that that will bear no connection whatever to whether anybody applies for a title and that nothing will depend on whether anybody applies for the title "university". I hope that will be the answer. If not, my amendment will turn out to be a good deal more serious than I at first thought. I am seeking elucidation, but I have also outlined what I hope will be the answer to my question.

Lord Belstead

My Lords, I hope that I can satisfy the noble Lord for the reasons I shall give, though I cannot accept the amendment.

Subsection (4) ensures that all institutions which include the word "university" in their title cannot be challenged by the argument that, whatever their name, they are not in law universities. But that is all it does.

Amendment No. 167 would re-introduce confusion into this area by providing that an institution which met the criteria to adopt a university title but which for some reason chose not to do so should nonetheless fall within the scope of subsection (4). Every time such an institution asserted that it should be treated as a university it would be necessary to establish afresh whether it satisfied the criteria applied by the Privy Council in permitting an institution to call itself a university. I do not think that would simplify subsection (4); it would render it meaningless.

However, there is a third and I hope more encouraging point I wish to make. An institution which meets the university title criteria but which chooses to retain its present title will be perfectly at liberty to describe itself in those terms. It will need to consider, among other things, whether the marketing advantages of a "university" title outweigh those of its present title. But it can do so firm in the knowledge that all institutions funded by the new higher education funding councils will be treated in the same way, funded by a common funding methodology and assessed by a common quality assessment unit. It will make no difference for those purposes whether an institution is called a university.

I hope that the assurance I have just given is the one which the noble Lord seeks.

Lord Peston

My Lords, I thank the Minister for his reply. I take it in particular that under his assurance he means Clause 72. For example, if a body such as the South London Polytechnic still called itself the South London Polytechnic, it would still be judged as an appropriate degree-awarding body. That is the point I have in mind, and there is no doubt about that.

My second question is that in the assurance the Minister gave, I want the further assurance that that is true by statute and not by action on the part of the Secretary of State. In other words, not calling oneself a university still gives one everything one wants under Clause 72 and all the funding as the Bill is written. I did not for one moment think that my amendment was one that should be included in the Bill. What I wanted was a correct interpretation of the Bill for institutions which might decide not to call themselves universities. In other words, am I right in saying that there is no problem? I do not want to prolong the matter.

Lord Belstead

My Lords, the noble Lord is right. Whether or not an institution which meets the criteria for a university title chooses to adopt such a title will not affect that institution's power to award its own taught course and research degrees.

Lord Peston

My Lords, I thank the noble Lord and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 168 not moved.]

The Lord Bishop of Guildford

moved Amendment No. 169: After Clause 73, insert the following new clause: ("University colleges .—(1) Where an educational institution or a body corporate carrying on such an institution—

  1. (a) is within the higher education sector, and
  2. (b) has power by virtue of any enactment or instrument to change its name, and either
  3. (c) satisfies the Secretary of State that it has for a period of not less than five years been conducting courses of study or programmes of research leading to the award of a degree or degrees by any university existing at the date this Act comes into force or the Council for National Academic Awards or an institution which is authorised to include the word "university" in its title 709 by virtue of section 73 of this Act and that it is currently conducting courses of study or programmes of research leading to the award of a degree or degrees by an institution which is authorised to include the word "university" in its title whether by virtue of section 73 of this Act or otherwise, or
  4. (d) is specified in an order made by the Secretary of State under subsection (1) of section 72 of this Act as competent to grant degrees
Then the institution or body corporate carrying on the institution may use the expression "university college" in is name (2) If it appears to the Secretary of State that any institution or body corporate carrying on an institution using the expression "university college" in its name has ceased to conduct courses of study or programmes of research leading to the award of a degree or degrees by an institution which is authorised to include the word "university" in its title or (as the case may be) is no longer specified in an order made under subsection (1) of section 72 of this Act as competent to grant degrees then he may issue a direction forbidding the institution or body carrying on the institution from using the expression "university college" in its name.").

The right reverend Prelate said: My Lords, in moving this amendment, I bring your Lordships back to the title of "university college". I speak particularly for those smaller academic institutions which perhaps do not have as many friends and spokesmen in this House as some of the larger institutions. Sometimes, when I look around the House, particularly at this hour of the night, I wonder whether everybody present is the head of an academic institution, if not a vice-chancellor.

I believe that your Lordships will know the concern. Whereas this Bill is welcomed in general terms because it removes the binary line between the universities and the polytechnics, there is concern among the smaller academic institutions that it is merely transferring the binary line and drawing it under the polytechnics with consequent disadvantages for the smaller institutions. There are many colleges with fewer than 4,000 students whose degrees are validated by universities or the CNAA. Therefore, they are doing work comparable to that of universities.

If they cannot use the title "university college" the anxiety is that they will be perceived to be sub-standard higher education institutions. That could make it more difficult for them to attract students and so disadvantage them. In November the Prime Minister told the annual conference of the Polytechnics and Colleges Funding Council: This Government is about extending the power to choose. We want to see all forms of higher education have the same status and esteem. We want higher education institutions competing for students on equal terms. We do not want choice influenced by some imaginary or historic status. Rather choice should be based solely on the calibre of the staff, the quality of the institution, the attractions and relevance of the courses; the strength of the institution's record".

In the light of that, with which I wholly agree, we look for more flexibility in the use of the title "university college." I have previously pointed out that a number of existing universities started out on life calling themselves university colleges long before they had 4,000 students. It is an avenue which has served us well in the past. I hope that we are not going to close it now

Perhaps I may convey to your Lordships an anxiety which has arisen in connection with recent circulars from the Department of Education. One circular, issued on 16th December, indicates that in the light of the plans for a new framework the Minister does not expect to approve further plans for polytechnic status. That has caused some dismay because some colleges seeking accreditation had already arranged for visits from the CNAA. Those visits are now in question. It appears also from the circular that Ministers are saying that any future applications along these lines will have to include facilities for research degrees. It appears as though someone has seen the horses approaching and not only closed the gate, but added another bar on top. That is causing considerable dismay. Will the Minister agree that in fairness and justice it will be better for the present PCFC criteria to continue until the provisions of the new Bill are in place?

I refer more particularly to the discussions I had with the Minister about this matter when he was kind enough to meet me. We discussed my representations to him, which were particularly the anxieties of the Church colleges. However, I want to underline that I am speaking not just for the Church colleges but for other colleges which have the same anxieties. After our meeting the Minister wrote to me saying: I have taken this up with my ministerial colleagues in the DES, but I am sorry that I am not yet able to give you an answer". I had expected to hear something further. Therefore, I was rather dismayed to discover that a circular was issued only last week on this very matter about which I had not been informed—I had picked it up quite by accident—in which it appears that the department has said that the title "university college" is to be used only where a college is a constituent part of a university.

I am sure that the Minister will understand if I say that I am somewhat dismayed that in the middle of conversations with him, and where from his own letter I had expected to hear further, I then discover that a public circular has been issued. I find that very difficult for parliamentary debate. I recognise that the Minister has many responsibilities and I am not in any way implying a personal criticism of him, but I am sure he will understand my sense of dismay over the matter.

In order to help your Lordships, and in particular the Minister, I cite an example of a way in which flexibility can operate without the need for rather rigid rules. The Minister may be aware that the College of Ripon and York St. John, by agreement with the University of Leeds, calls itself the "university college" of Ripon and York. The degrees awarded are those of the university. Students are students of the university and for all academic purposes the college is subject to council and senate regulations. But the college maintains its Christian foundation. It has its own governing body, it appoints its own staff and admits its own students. Therefore, I find it very difficult to know whether that actually fulfils the definition as to whether or not it is a constituent part of the university. That model indicates that there would be much to be gained by having a greater flexibility and openness in the use of this type of university college. I recognise that my amendment may not be the most appropriate way forward, but it is a way in which we could make progress and at least open up the possibility of a much more flexible approach on this issue. It is in that hope that I beg to move.

Baroness David

My Lords, at Committee stage I had my name to a similar amendment moved by the right reverend Prelate. It is only my own slowness that accounts for my name not being on the Marshalled List now.

I repeat my support. The right reverend Prelate has already said everything there is to be said, but I should like to underline that these colleges will be accountable to higher education funding councils in exactly the same way as universities and they will be subject to the same performance indicators and quality assessment procedures. It seems wrong that students in the sector who do not attend universities should be accorded less recognition and status than their contemporaries in the other higher education institutions.

I heard about the circular only today. It is extraordinary that this should have been going on while conversations were still continuing and in the light of what the Minister said at the end of his reply to the right reverend Prelate in Committee. It sounded then as if this matter was still under serious consideration. I hope that we shall have a little clarification, particularly about the college at Ripon. Other colleges are closely linked with universities. Edge Hill is closely linked with Lancaster. It would be nice to have clarification and an explanation.

Lord Addington

My Lords, I support the amendment. We need some definition here. Unless the matter is cleared up and the status of these small colleges is clarified, there is a slight danger of having a left-over of the binary divide.

Lord Belstead

My Lords, the admiration of colleges of higher education which has rightly been voiced by the right reverend Prelate the Bishop of Guildford is fully shared by the Government. Colleges, including the Church colleges, have been extremely successful in maintaining high academic standards and in increasing their student numbers. They have proved particularly successful at attracting those who do not have traditional academic backgrounds.

But the issue we have to address in this amendment is whether it is appropriate for all or some of such colleges to be able to adopt a "university college" title. I sought to explain in Committee that Clause 73 already empowered the Privy Council to approve titles which included the word "university" and that there was nothing in the Bill to rule out a change of title from college of higher education to university college. The issue was essentially an administrative one.

I indicated then that the Government would announce their view on the matter once the Secretary of State had had the opportunity to consider the arguments put forward, in particular by the Standing Conference of Principals, which represents the heads of colleges of further education. Therefore, the amendment moved by the right reverend Prelate in Committee was under serious consideration, as were the arguments coming from the standing conference. The Minister with responsibility for higher education, Mr. Alan Howarth, has in the meantime met a number of college principals to hear their views at first hand. The Secretary of State then announced his decision by way of a Parliamentary Answer which included the text of a letter from the Department of Education and Science to all institutions. I most certainly owe the right reverend Prelate an apology. He should have received a letter from me, as should the noble Baroness, confirming that this decision had been taken. In fact I wrote over the weekend to the right reverend Prelate, but that does not put the matter right.

The Secretary of State's letter to all institutions included these words: The Secretary of State has considered the points made on this matter and has concluded that there should be no change in the current policy. Extending the availability of 'university college' to independent institutions which are not part of a university would cause confusion with established 'university colleges'. The Secretary of State believes nevertheless that Colleges of Higher Education which do not qualify for a university title will be able to maintain their successes over recent years". My right honourable friend felt that to allow all colleges of higher education to refer to the word "university" in their title when they were not actually constituent parts of a university would make it difficult for a potential student to know whether any particular university college was part of a university or whether it was not.

Of course, there are already established university colleges at the universities of Kent, Durham, Lancaster, York and Wales. I should be interested to look more closely at the college of Ripon and York St. John, which was an example given by the right reverend Prelate. If I may, I should like to write him on that issue. I believe that the matters involved are complex and not entirely straightforward. My understanding is that the circumstances of that college are rare.

Perhaps I may emphasise and reaffirm that, in the Government's view, the standard of education in the colleges of higher education is no different from that in the universities and polytechnics. The issue here is simply that an institution's title should clarify the nature of that institution.

In conclusion, I should like to reply to a point made by the right reverend Prelate on the polytechnic designation issue. As regards polytechnic status, I am advised that it is important to remember that, while that will no longer be possible, the route to university status remains open. It is also the case that that requires an institution to have power to award research degrees as well as taught-course degrees. But the research criteria do not require colleges to overcome any hurdles which polytechnics have not already satisfied.

The Lord Bishop of Guildford

My Lords, I am grateful to the Minister for responding so thoroughly and carefully to the points I raised. I am also most grateful for the fact that he is prepared to look further at the unusual model of the college to which I referred. While looking at it, I hope that he will recognise that it indicates that there should be varieties of approach and not just an over-rigid one. I trust that he will be able to consider that point.

I find the Minister's reponse about the applications for polytechnic status slightly less reassuring. However, at this hour of the morning, I have no option but to thank the Minister and to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 [Directions]:

[Amendments Nos. 169A to 173 not moved.]

Clause 78 [Joint exercise of functions]:

Lord Dainton

moved Amendment No. 173A: Page 58, line 33, leave out subsection (2).

The noble Lord said: My Lords, Clause 78, to which the amendment refers, brings us to Part III of the Bill, which relates to miscellaneous and general provisions. The first subsection of Clause 78 allows funding councils to co-operate where this is a perceived advantage. As such, it is not only innocuous but it is also in praise of virtue and against sin. I should imagine that, even without that phrase, the councils would be able to co-operate if they so wished. Therefore, I am not so sure that it adds anything. However, it certainly does not subtract anything.

Subsection (2) cannot be so nicely categorised. The amendment proposes its deletion from the Bill. It gives the Secretary of State, once again, power to direct councils jointly to appoint a single person to investigate the arrangements made by each higher education institution in Great Britain for maintaining academic standards. I was greatly surprised when I first read the subsection and, after some six weeks, I still remain so. It seems to me that the idea underlying it—that is, unless the Minister can give us some assurance—is that, left to themselves, higher education institutions would not strive for the highest academic standards possible within the limits set by the available resources.

I am bound to say that, after a lifetime spent within two large civic universities and in the service of Oxford and Cambridge, I have been made conscious of the strong motivation among academic staff who are striving for quality, which is simply that the better students, whom all university teachers want to recruit, are attracted to those institutions where, other things being equal, the academic reputation is highest. That is the purest example, I suppose, of academic market forces.

How to sustain and improve the good practice needed to achieve those high standards needed to attract students is another matter. Much has already been done in that direction through the well-established external examiner system and the learned and professional societies, which in a wide range of fields such as science, technology, medicine and veterinary studies, are bodies which are also empowered to grant a licence to practise and are therefore especially keen on high standards. Latterly, universities have, in addition, co-operated to establish collective academic audit arrangements, which are working well.

In those circumstances—bearing in mind the duty of quality assessment to which Clause 66, which we have already debated, imposes upon all councils—to give to the Secretary of State the power to appoint, as the subsection prescribes, a single person to assess the arrangements made by each higher education establishment seems to me unnecessary and supererogatory to a degree which can be described only as absurd and counter-productive, unless I have totally misunderstood the intentions of the clause. It is counter-productive merely because it will make those who have to deliver that quality—no one except the teachers delivers it—feel once again that they are not trusted constantly to strive for the best. If that were not enough, there is not one single person living whom I know who is capable of performing the assessment for all the higher education institutions in Great Britain at anything except the most superficial level.

I feel that, ideally, one could do without Clause 78 altogether, but, if we have to have it—we have the encouragement of the councils to co-operate and, as I have said, the first subsection is at least in favour of virtue and against sin—the second is peculiar, and I look forward to hearing some explanation for it. I beg to move.

1 a.m.

Lord Flowers

My Lords, I support the amendment because Clause 78(2) utterly baffles me. I cannot for the life of me understand why a Secretary of State should desire the power to instruct funding councils jointly to appoint a single person to assess the arrangements made by institutions for maintaining academic standards.

The Bill sets up funding councils which have powers in the matter of academic standards, and rightly so, of course; it also obliges them to have quality assessment committees whose job it is to perform assessments of academic standards. What on earth is that single person to do that the quality assessment committees cannot do? The answer must be that that person is to do the job if the funding councils refuse to do it or have it done.

The Bill is riddled with a barely disguised, almost paranoiac, lack of trust in the bodies that it proposes to create. Why should the Secretary of State be willing to trust his specially appointed inspector when he cannot accept the judgment of his funding councils and of their quality assessment committees? Should he not appoint a succession of inspectors each inspecting the work of the previous one? The whole concept is absurd and unworkable. The only solution is to drop it, which Amendment No. 173A is designed to do.

Lord Cavendish of Furness

My Lords, the noble Lords who introduced the amendment plainly feel that behind the provision there is great distrust by the Government. Perhaps there is a misinterpretation. This has come up before. In legal language a "person" is not a reference to a single person. Section 5 of the Interpretation Act states that the singular includes the plural. "Person" therefore means persons in the plural.

The Government believe that institutions themselves should be responsible for setting up an organisation to scrutinise internal quality control systems and to ensure that they are satisfactory. As the noble Baroness, Lady Blackstone, who is not in her place, said during the debate at Committee stage: The prime responsibility for both quality and standards must rest with the universities themselves, both new and old". —[Official Report, 16/12/91; col. 1116.] The Government agree with that and, I would add, consider that such a responsibility rests also with all institutions in the new higher education system.

The Government are pleased that the Committee of Vice-Chancellors and Principals, the Committee of Directors of Polytechnics and the Standing Conference of Principals have responded positively to the Government's invitation to establish a body to scrutinise institutions' quality control systems. In our view it is far preferable for institutions themselves to ensure that satisfactory systems are in place than for the Secretary of State to have to intervene.

Precisely because the Government look to institutions to monitor internal quality assurance systems the Bill does not provide for a unit of this type to be established. The Secretary of State does, however, need a reserve power in case the institutions do not succeed. Clause 78(2) enables him to require two or more councils to make provision for the assessment of institutions' arrangements for monitoring academic standards; in other words, to establish a quality audit unit.

I am surprised, incidentally, that noble Lords had such difficulty in identifying this provision during the Committee stage debate. The purpose of this clause was explained clearly in the Notes on Clauses. I am similarly surprised that some noble Lords were seemingly not aware of the proposals submitted to Ministers by the representative organisations of the institutions. Those representative organisations made their proposals public in a press release dated 15th October 1991.

While recognising the institutions' determination to create a unit, and welcoming the progress made to date, it would not be right for the Government to assume that the outcome will inevitably be successful. The Secretary of State must retain the power, in the last resort, to ensure that a satisfactory unit is established and he has concluded that the best way of ensuring that is for him to have the power to direct the funding councils, acting jointly, to arrange the necessary provision.

To delete Clause 78(2) would deprive the Secretary of State of an important reserve power that he may need. It would also give the wrong signal to the institutions. The Government hope and believe they will succeed, but if they do not it is right that the institutions should know what alternative the Government intend to pursue.

After the speeches I have heard from noble Lords I believe that there might have been an element of misunderstanding. I hope very much that I have been able to reassure them.

Lord Dainton

My Lords, I am afraid I was unaware of the reference to the work which was done in October 1991. I was completely unaware of the underlying suggestion that it was directed towards encouraging the universities to do this work for themselves. I should like to be reassured that that is the intention and it is only as an extreme last resort that it would be called upon by the Secretary of State, who would direct the councils.

I still do not see why he has to direct the councils to combine to do that. It seems to me that one council might be required to do it for those bodies which it funds and the other council in Scotland would do it for those which it funds. It does not seem to me that it is necessary for them to combine to do it. That said, I am to some degree reassured by what the noble Lord said and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 [Efficiency studies]:

Lord Flowers

moved Amendment No. 173B: Page 59, line 13, at end insert: ("( ) In this section the expression "management or operations" does not include academic activities carried on by an institution."). The noble Lord said: My Lords, this amendment is intended to remove the possibility that the Secretary of State may interfere in academic matters under the guise of improving economy, efficiency and effectiveness. It excludes any academic interpretation of the phrase "management or operations". The amendment confines itself to that modest action.

However, I wish to point out that I consider the whole clause objectionable because it is unnecessary. I am in no doubt whatever that every university in the land believes that the UFC—or the UGC as it was before—has access to the books of the institution and can, and will, appoint experts to advise it on management or operations if it so chooses. Every university—and I am sure polytechnic—knows it has to provide whatever information is required, provided it does not thereby compromise academic decisions.

Why does the Secretary of State require a clause to provide a power which already exists? Perhaps the Minister will enlighten me, even though the amendment itself is addressed to a more specific aspect of the matter. I beg to move.

Lord Cavendish of Furness

My Lords, this clause enables the funding councils to arrange studies whose principal purpose is to assist institutions in improving the efficiency with which they manage their finances. This provision is no different from one which currently exists in Schedule 7 to the Education Reform Act as applying to higher education corporations. It merely extends the PCFC's existing powers to all higher education institutions reflecting the removal of the binary line.

The purpose of an efficiency study is to assist an institution in achieving its own objectives more effectively and efficiently, thus releasing resources for other purposes. There is an important distinction to be drawn between looking at what an institution is doing and telling an institution what it may or may not do. This clause is about the first provision I have just mentioned, not the second. It is not about interfering in the autonomy of an institution to decide its own objectives—including academic objectives—or to manage itself as it sees fit.

Therefore the clause really is not about academic freedom. If it had been, the Government would have brought forward amendments similar to others which have been discussed earlier. Rather, it is about the funding councils, which have responsibility for allocating large sums of public money to institutions and for ensuring value for money, having the right to take an occasional close look at how those resources are being managed. In a higher education institution it really would make no sense for such a study not to extend to the management of resources spent on academic activities, and for that reason I cannot accept this amendment. But, as I have said, it is not the function of an efficiency study to seek to determine those academic activities. It is possibly that point which caused the noble Lord anxiety. With the reassurances I have given, I hope he will feel able to withdraw the amendment.

Lord Flowers

My Lords, in a moment I shall withdraw the amendment. However, I asked the noble Lord why it was necessary for the Secretary of State in this Bill to take powers which already exist. I am sure the funding council can already do everything this amendment provides for, as the UGC and the UFC have done so for a long time.

Lord Cavendish of Furness

My Lords, I have already said this provision is no different from one that currently exists in Schedule 7 to the Education Reform Act—I imagine that is what the noble Lord refers to—and that it extends the existing powers of the PCFC to all higher education institutions reflecting the removal of the binary line. If there is something beyond that I have not understood, I shall have to look into it and write to the noble Lord.

Lord Flowers

My Lords, I shall not press this matter. However, I am not referring to the Education Reform Act. These powers have existed for years and years. They may not be powers laid down by Parliament but they are practices followed by the UFC and by the UGC before it. They are well understood by every university and, I am sure, polytechnic. However, I shall not press this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 173C not moved.]

Clause 85 [Orders, regulations and directions]:

[Amendment No. 173D not moved.]

1.15 a.m.

Clause 86 [Interpretation]:

Lord Cavendish of Furness

moved Amendment No. 174: Page 61, line 45, after ("or") insert ("(in their capacity as a local authority)").

The noble Lord said: My Lords, Clause 86 provides interpretations of a number of terms for the purposes of the Bill. The amendment concerns the interpretation of "local authority" which at present is defined as meaning a county council, a district council, a London borough council or the Common Council of the City of London.

The common council can act in capacities other than as a local authority and the effect of the amendment would be to provide that the common council falls within the definition of a local authority only when acting in its capacity as such. Where the common council, other than in its capacity as a local education authority, holds property on trust and that property happens to be used for the purpose of an institution which is to fall within the new sector, clearly it would not be appropriate for such land to transfer. I beg to move.

On Question, amendment agreed to.

Schedule 8 [Minor and Consequential Amendments]:

Lord Belstead

moved Amendments Nos. 175 to 178: Page 79, line 27, leave out sub-paragraph (a) and insert: ("( ) for subsection (1) there is substituted— (1) A local education authority shall make such arrangements for the provision of transport and otherwise as they consider necessary or as the Secretary of State may direct for the purpose of facilitating the attendance of persons receiving education—

  1. (a) at schools,
  2. (b) at any institution maintained or assisted by them which provides higher education or further education (or both),
  3. (c) at any institution within the further education sector, or
  4. (d) at any institution outside the further education sector and higher education sector, where a further education funding council has secured provision for those persons at the institution under section 4(2A) or (2C) of the Further and Higher Education Act 1992;
and any transport provided in pursuance of such arrangements shall be provided free of charge.""). Page 79, line 35, leave out ("and") and insert: ("( ) for subsection (4) there is substituted— (4) Arrangements made by a local education authority under subsection (1) above shall make provision—
  1. (a) for pupils at grant-maintained schools which is no less favourable than the provision made in pursuance of the arrangements for pupils at schools maintained by a local education authority,
  2. (b) for persons receiving full-time education at any institution within the further education sector which is no less favourable than the provision made in pursuance of the arrangements for pupils of the same age at schools maintained by a local education authority, and
  3. (c) for persons receiving full-time education at institutions mentioned in subsection (1) (d) above which is no less favourable than the provision made in pursuance of the arrangements—
  1. (i) for persons of the same age with learning difficulties (within the meaning of section 41(9) of this Act) at schools maintained by a local education authority, or
  2. (ii) where there are no such arrangements, for such persons for whom the authority secures the provision of education at any other institution.", and").
Page 79, leave out lines 37 to 42. Page 79, line 48, leave out ("within the further education sector") and insert ("mentioned in subsection (1) (c) or (d) above"). The noble Lord said: My Lords, these are amendments to Schedule 8 to the Bill. They serve two important purposes. Most importantly, they clarify the extent of the local education authorities' duty to provide transport to students with learning difficulties in the further education funding council sector. The need for clarification in this area was highlighted during Committee stage, during which it became apparent that the Bill as drafted does not make sufficiently clear where the statutory responsibility lies for providing transport for students with learning difficulties who are placed in institutions outside the further and higher education sectors by the further education funding councils. The proposed amendment will place a clear duty on local education authorities to provide transport in such cases.

The remaining amendments are purely presentational: they are designed to clarify the way in which the provisions relating to transport are set out in the Bill and hence by amendment in the Education Act 1944. As such I hope that they will be welcomed and that your Lordships will feel that the amendments are on the right lines. I beg to move.

Baroness Darcy (de Knayth)

My Lords, I welcome Amendment No. 176, which is in response to an amendment which I moved in Committee. It tidies up the confused position on transport responsibilities in a very satisfactory manner. It is particularly welcome that the provision for students with learning difficulties is extended to the age of 25.

I have one worry. At present some local authorities provide transport for part-time students. By specifying full-time students the amendment may have the effect of discouraging that. That would penalise the most severely disabled students, those who are least able to study full time and most in need of transport help. Can the Minister comment briefly and say whether part-time students are meant to be included? Is he prepared to consider making a minor change to the wording at Third Reading so that they are not excluded?

That is a detail, although a very important one for the students concerned. On the broad front I should like to echo my enthusiastic welcome for the amendment, particularly the extension to the age of 25. I thank the Minister very warmly for being so constructive and helpful in this matter.

Lord Belstead

My Lords, this is a matter which my noble friend Lord Cavendish dealt with in negotiation with the noble Baroness and other colleagues. I am grateful to the noble Baroness for staying until this late hour and for pursuing the matter to a conclusion which the noble Baroness feels is successful.

I am also grateful to the noble Baroness for giving notice of her question. The amendment does not include part-time students, but local education authorities will continue to have discretion to make provision for them. As that leaves the law as it is at present, that is as far as we feel we ought to go.

On Question, amendments agreed to.

Lord Belstead

moved Amendment No.178A: Page 80, line 9, after ("Acts") insert ("1944 to 1992").

The noble Lord said: My Lords, together with this amendment I shall speak also to Amendments Nos. 179A and 179B. The amendments add the words "1944 to 1992" to the references to the Education Acts —there are three references to the Education Acts—so that they correspond to the relevant definition in Clause 90(2). I beg to move.

On Question, amendment agreed to.

Lord Belstead

moved Amendment No.179: Page 80, line 25, leave out from beginning to end of line 28 and insert ("Section 77 (inspection of educational establishments) shall cease to have effect in relation to any institution other than a school.").

The noble Lord said: My Lords, a Government amendment has already been moved inserting a new clause after Clause 52. This concerns the inspection of local authority institutions other than schools by Her Majesty's Inspector of Schools in England and Wales and by local education authorities. Inspection of schools would be outside the scope of the Bill. The effect of the new clause after Clause 52 is to supersede the provisions of Section 77 of the Education Act 1944 except in so far as they apply to schools. For that reason, this amendment to Schedule 8 to the Bill provides that Section 77 of the 1944 Act shall cease to have effect in relation to any institutions other than a school.

I should like to add in response to apprehensions expressed by the noble Baroness, Lady Blackstone, in the debate on Amendment No. 122 that the replacement of the provisions in Section 77 by the clause after Clause 52 does not in any way prejudice local education authorities. I beg to move.

On Question, amendment agreed to.

Lord Belstead

moved Amendments Nos. 179A and 179B: Page 85, line 39, after ("Acts") insert ("1944 to 1992"). Page 85, line 50, after ("Acts") insert ("1944 to 1992").

The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Lord Belstead

moved Amendment No.180: Page 88, line 2, leave out from beginning to end of line 3 and insert ("for paragraph 1(4) there is substituted— (4) A corporation may change their name with the consent of the Privy Council."").

The noble Lord said: My Lords, this was spoken to with Amendment No.164. I beg to move.

On Question, amendment agreed to.

Schedule 9 [Repeals]:

Lord Belstead

moved Amendment No.181: Page 95, leave out lines 38 to 40. The noble Lord said: My Lords, this was spoken to with Amendment No.179. I beg to move.

On Question, amendment agreed to.

House adjourned at twenty-three minutes past one o'clock.

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