HL Deb 03 March 1992 vol 536 cc757-800

3.15 p.m.

The Parliamentary Under-Secretary of State, Scottish Office (Lord Strathclyde)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Strathclyde.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Duty of Secretary of State to secure provision of further education]:

Lord Carmichael of Kelvingrove moved Amendment No. 1: Page 1, line 13, at end insert: ("( ) In discharging his duty under subsection (1) above, the Secretary of State shall ensure that no student under the age of 25 who has learning difficulties shall be required to pay a fee for further education.").

The noble Lord said: It may be for the convenience of the Committee if, with this amendment, we discuss also Amendments Nos. 2, 3, 7, 13, 14 and 15. The purpose of the amendment is to make provision for students with learning difficulties who require longer to complete their course because of their disability. The Government have given a commitment that students between the ages of 16 and 18 will not be required to pay fees for further education. That welcome reassurance requires to be extended for some students with disability.

Students with learning disabilities are often willing and able to learn but they do so rather more slowly. As the Minister will be aware, research funded by the Scottish Office education department on the transition from school to adulthood of young people with recorded special educational needs has shown that the transition is more complex and lengthy than for people without learning disabilities. There may also be a need for students with physical disabilities to take longer. Sometimes it is because their disability means that they have to use special aids or techniques to carry out their work. Computer aids can be excellent tools for the disabled but they are often laborious to operate. People with visual handicaps do not have the easy access to written material that sighted people have. Many people with disabilities often have associated health problems which may require them to take time off from a course of further education.

I hope that the Minister, who suggested the grouping of the amendments, will feel that this is a good enough introduction for him to be able to accept the amendments or at least to accept the spirit of the amendments. I beg to move.

Lord Addington

I support the noble Lord, Lord Carmichael, in all these amendments, including Amendment No. 2 to which I have not put my name. That was an omission on my part, but I support him on the amendment. The matters arising here were discussed on the English Bill. On the first amendment the Government gave a concession that people up to the age of 25 with special educational needs would not have to pay their fees. I would be very surprised if the Government were not prepared to give a similar commitment in Scotland as I have not heard of any cases of people north of the Border having a different learning curve despite the difference in accent.

One of the most important amendments in the group is Amendment No. 14 which deals with assessment. If we have accurate assessment of our special educational needs and can find out exactly what the special needs are and the type of help that is needed, we can more accurately, more quickly and more cheaply provide that assistance. Surely the Government must concede that point. If they cannot accept the amendment they must come up with something very similar to it.

Baroness Darcy (de Knayth)

I support this group of amendments. I shall not add much because the noble Lord, Lord Addington, has already put the case very clearly. As we said during proceedings on the Further and Higher Education Bill for England and Wales, the Government were extremely generous in their concessions to people with learning difficulties. I hope that they will be as generous to Scotland.

Lord Strathclyde

Perhaps I may start by thanking the noble Lord, Lord Carmichael, for the amount of work that he has put into the Bill and into preparing his amendments and also for agreeing so readily to the groupings that we have before us. I know that Members opposite have spoken briefly. I understand the intention of their amendments. If Members of the Committee will permit me, I shall answer them at some length.

The other place, rightly, gave considerable attention to the needs of students with learning difficulties. Our policy is clear: we wish to ensure that access to further education is more widely available, and that includes provision for those with learning difficulties. The Bill includes an important new statutory safeguard for such students. Clause 1 places a requirement on the Secretary of State to have regard to the requirements of persons over school age who have learning difficulties in exercising his duty to secure adequate and efficient provision of further education in Scotland.

A significant number of amendments have been made to the Bill by the Government to strengthen its provisions as regards students with learning difficulties. In other areas a commitment has been given to issue guidance to boards of management on how they exercise their duties and powers in relation to students with learning difficulties. I think that there is an important point of principle here that we should consider. Legislation can at times effect improvement in people's lives, but it is not always the best approach to be prescriptive. One of the best ways of improving the position of students with learning difficulties in further education is for boards of management to have clear guidance on best practice, to be adequately funded by the Secretary of State to provide for such students, but, ultimately, to have the freedom to adopt imaginative ways of developing provision. I am very confident that boards will do so.

As regards Amendment No. 1, part of the present difficulty in this area is the lack of basic information and of a coherent national approach. To rectify that, a lecturer with experience in this area, Mr. Paul Dumbleton of the Scottish School of Further Education, has been seconded to work with the Scottish Office Education Department on the matter. His remit is wide and his recommendations will inform crucial decisions on funding and on guidance to boards. Part of his work will involve looking at the financial support arrangements for students with learning difficulties. I suggest that it is too simplistic to include all students with learning difficulties in the same category or as having the same financial needs, be they aged 20, 25 or 26 as is the case with Amendment No. I. The bursary arrangements give discretion to authorities to support students. Full-time students have their fees paid. Those arrangements are currently being reviewed by the Scottish Office. We have confirmed that the present arrangements for not charging fees for those under 18 will continue.

I turn now to Amendment No. 7. I want also to draw the Committee's attention to the provision in Clause 12(2) (c) for boards to provide students of the colleges with such assistance of a financial or other nature as they may consider appropriate, including waiving or granting remission of fees. I acknowledge that the provision of transport for students with disabilities can be important in ensuring that they can benefit from further education. Education authorities make provision for transport for further education students, including those with disabilities. Boards of management will assume that responsibility from 1st April 1993, and Clause 12(2) (c) of the Bill gives them sufficient scope to do so. Clause 12(2) (c) and (3) already achieve the intention of Amendment No. 7 —that is, requiring boards to address their minds to the needs of those with learning difficulties in exercising their functions, which include the power to give financial or other assistance to students. I can restate an assurance given in another place by my honourable friend the Minister of State that we shall expect boards to provide as good a level of transport as education authorities currently do, and we will monitor the provision to ensure that that is the case.

As regards Amendment No. 2, I would emphasise that the purpose of the Bill is the transfer of the management and funding of further education colleges from local authorities and the establishment of boards of management. It is not about extending the powers or duties of local authorities. It is for authorities to judge how they exercise their power and to provide further education. I am sure that they will consider the needs of students with learning difficulties. Moreover, I gather that the amendment is flawed. It is difficult to reconcile with the duty that the Bill places on boards of management the requirement to have regard to the needs of such persons; for example, where the authority uses the board's college.

As regards the proposal that boards should establish a special needs advisory committee as set out in Amendment No. 13, I think that we are at one in agreeing that one means by which a college board can deal with their duties and powers for students with learning difficulties is to establish such a committee, with, if necessary, outside expertise represented on it. However, each college board and its staff must decide how best to tackle the matter. A knowledgeable committee where there are significant numbers of students with learning difficulties could be very useful. However, where, say, a college has relatively low numbers of students with learning difficulties, then it may not be sensible for the college to establish such a committee.

I turn now to Amendment No. 14, to which the noble Lord, Lord Addington, and the noble Baroness, Lady Darcy (de Knayth), spoke. I am sure that boards will carry out assessments of the needs of students with learning difficulties and judge how best to meet those needs, including any special facilities that are required. Clause 27 ensures that boards can be required to publish information as to the availability of special facilities.

The proposed new clause, as drafted, is unworkable. Any student with a learning difficulty could request assessment at any time, even a student still undergoing school education and on placement at the college by the education authority. That clashes with the assessment provisions of the Education (Scotland) Act 1980. It also introduces the concept of need for "special education provision" but gives it no meaning. It would be unfortunate to introduce such a narrow concept into the Bill which concentrates generally on the needs of those with learning difficulties in the context of further education, and is not restricted solely to needs calling for a special type of provision. However, I accept that, perhaps, in the drafting of the amendments, Members opposite will sometimes experience some difficulty in getting the wording right. I fully understand that.

As regards Amendment No. 15, I acknowledge that it will be desirable for boards of management and local authorities to work more closely together in the provision of further education for persons who have learning difficulties. We amended the Bill in the other place to place boards under a duty—in Clause 23—to respond to requests from authorities for information or advice in order to facilitate the carrying out by the authority of their duty under Section 65B of the Education (Scotland) Act 1980 to consider in relation to any recorded child what provision would benefit him after he ceases to be of school age.

Another area in which it will be important for boards and authorities to collaborate will be when authorities are carrying out community care assessments, and boards will be given guidance in that area. As I said earlier, the best way to cement and develop relations between boards and authorities is not to try to do so by legislation. That can be counterproductive and no more successful than a more flexible approach. The proposed new clause (Amendment No. 14) implies that co-operation is not desirable for other students. Much depends on the attitudes of individuals on both sides and their willingness and commitment to develop a relationship. We will ensure that the good work of the colleges in working with social work departments in day centres, adult training centres and residential establishments is supported and encouraged.

Perhaps I may now return to Amendment No. 3. I understand that this amendment has been suggested by the Scottish Society for the Mentally Handicapped, and others, to clarify the responsibility of Her Majesty's inspectorate with regard to disabled students in further education colleges. I should explain that Section 66 of the Education (Scotland) Act 1980 gives the Secretary of State power to cause inspections to be made of any educational establishment, and such inspections are made by HMI. HMI fulfils its responsibility by monitoring colleges' activity by regular contact with college staff and by whole-college inspections. The provision of further education for students with learning difficulties is dealt with by HM Inspectorate in the same way that it considers other aspects of further education. In addition, work is in hand for the issue of a report on "effective provision for special education needs", which will have a section on further education.

The effect of the proposed new clause would be to place a specific duty on the Secretary of State to ensure inspections of provision for students with learning difficulties, but no mention is made of the many other students in further education. While I would not wish to underestimate the importance of further education for students with learning difficulties, it needs to be placed in the perspective of the needs of all students. There are many aspects of provision which are applicable to all students; for example, the quality of guidance, accommodation and, indeed, the overall quality of teaching and learning in the college. I can give an assurance that HM Inpectorate will continue to play an important role in monitoring the provisions of further education in Scotland.

Finally, let me emphasise that the Secretary of State is under a duty to report to each House of Parliament on the discharge of his duties for further education. I am sure that Parliament will be assiduous in monitoring the provision being made for students with learning difficulties, which will form a part of that report.

I understand the goodwill with which noble Lords have tabled these amendments. The essential point that I am trying to make is that such amendments —and legislative proposals to deal with the problem —are not necessarily the best way to proceed. We need a certain amount of goodwill in this relationship. I believe that assurances from the Government will provide that goodwill. I hope that the noble Lord will feel able to withdraw his amendment.

3.30 p.m.

Lord Carmichael of Kelvingrove

The Minister gave a long reply, and I do not criticise him for that. Indeed, I am grateful for its length. He will appreciate that there is a great deal of feeling about this matter, although some of it may be rather enthusiastic and misguided, even to the point of thinking that more can possibly be done than is being done. We all believe that we should continually push the frontiers back to allow many people with disabilities to benefit as much as possible from education and from further education. One can continue to learn until a very great age. Indeed, some of the best pupils in further education are frequently those who have done a lot of other things in life and who, at the age of 30, suddenly realise that they have more potential than they had ever dreamt. The fact that they happen to be disabled in some way is no reason why they should not be able to benefit from the Bill.

I am grateful for the time that the Minister has taken to reply to the amendment. We may be able to find some common ground here, but as I believe that other noble Lords who are interested in the amendment are entitled to have their say, I reserve my rights until they have spoken.

Lord Addington

I do not think that I picked up the Minister's answer on Amendment No. 1. Is a requirement to provide further free education up to the age of 25 to be provided for in the Bill? That is an important point and should be in the Bill. Such provisions have already been agreed to in the English Bill. Many people with special educational needs need extra time to gain the requisite number of qualifications. That is often very difficult for them, especially if their problem has been spotted late and if correct assistance was not given to them in school. Such people will need extra time, and that is probably best available to them in further education. They should have a guarantee of that because, if they do not, there is no way in which they will be able to meet their full educational potential. Perhaps the Minister will clarify that point. I understand that I may have missed it in his long, complicated answer, but I repeat that such a provision should be in the Bill. It has already been agreed to in principle in the legislation for England.

Baroness Carnegy of Lour

Before my noble friend the Minister replies, perhaps I may say that I am not entirely clear to what the noble Lord, Lord Addington, is referring. I know that he has a great interest in people who have learning difficulties in relation to literacy, numeracy and basic skills learning. However, perhaps I may advise him that, if he was talking about such people, what he was saying does not apply in Scotland because adult basic education is part of further education and is being left with the local authorities on, as I understand it, exactly the same basis as at present. It is part of community education, and the Community Education Council is happy with that. Nobody pays for adult education courses. Therefore, I should have thought that such people are not within the bounds to which the noble Lord is referring. He knows Scotland well, having studied there, and probably understands what I am saying. The situation in Scotland is not the same. This Bill differs in many aspects from that relating to England and Wales and to my knowledge—unless my noble friend the Minister wants to put me right on this —I believe that it certainly differs in this respect.

Lord Strathclyde

Perhaps I may clarify this important point, on which I understand the strength of feeling. My noble friend Lady Carnegy made a useful intervention, and she is right.

The noble Lord, Lord Addington, referred to an amendment made to Clause 4(3) of the England and Wales Bill, to place a duty on the further education funding council in certain circumstances to secure provision for a person who has a learning difficulty up to the age of 25 outside the further education sector. That Bill of course does not guarantee exemption from fees—rather, assistance with fees may be given. Clause 4(3) instead deals with the provision of further education.

It is not necessary to have such a provision in the Scottish Bill. The two Bills start from different premises. The Scottish Bill, as drafted, achieves broadly the same effect as the England and Wales Bill. In the Scottish Bill, there is no new further education "sector" as such. As at present, the duty to secure the provision of further education does not depend on the extent to which colleges themselves can provide further education. The fundamental duty will lie with the Secretary of State, and it extends to Scotland as a whole.

The crucial question, to which the noble Lord, Lord Addington, would like an answer, is what would be the position of two individuals—one in Scotland, one in England both between school age and 25 who have identical learning difficulties and who believe that their needs are not provided for? In England, such a person would apply to the appropriate funding council. This is, however, no absolute guarantee that the person in England would obtain the provision they desire, as considerable discretion is involved and there are express cost restrictions and limitations.

In Scotland, the individual would first approach a further education college to ascertain if it has a course falling within Clause 6(1) (c) which covers special instruction for persons with learning difficulties. If it does not have such a course, a board of management would be obliged to consider if it was meeting its duty to have regard to the needs of persons with learning difficulties—that is provided for in Clause 12(3). If in its view it was, the individual could then approach the Secretary of State. If he thought that the needs of the individual were not being met, he could direct a board of management to make provision or alternatively he could pay some other persons for the provision using his power under Clause 4(1) (b). To satisfy his duty under Clause 1(2), he would need to demonstrate that he had considered those matters. There are no express cost restrictions or limitations as there are for England and Wales, but again there is no guarantee that the individual would get the provision he desired. I hope that that explains the differences between Scotland and England and Wales, and shows some of the similarities in the end result.

Lord Henderson of Brompton

Perhaps the Minister can help those who are not entirely familiar with Scottish law, which I suspect is the majority of us. I believe that in his very extensive replies, for which we are all extremely grateful, he said that he could not accept any of the amendments. That is right, is it not? He has now given us an explanation of why he cannot accept Amendment No. 1, which we had all hoped would become part of the Bill. Does the text, as currently drafted, substantially reflect the concessions that were made by the Government both in response to questions and proposals in another place and in this Chamber on the England and Wales Bill? If the Minister can give us that assurance, it would help us greatly.

Lord Strathclyde

I can give the noble Lord that assurance.

The Earl of Selkirk

My noble friend the Minister used the letters "HMI". Does that mean Her Majesty's Inspectors? Is it correct to say that the chief inspector carries some kind of royal enhancement of his position?

Lord Strathclyde

I am not entirely certain whether he does or not, but perhaps I can return to that question of detail later.

Lord Addington

Perhaps I may thank the Minister for clearing up that point. I was simply seeking to clarify whether that very important point was covered. In reply to the noble Baroness, Lady Carnegy, perhaps I may advise her that I was not thinking of basic literacy courses but of further education and further qualifications that might be gained following a delay in acquiring the initial basic literacy points. I think that is what the amendments are aiming at. That is why we are worried about the extension of fees to a person who may be late entering further education. That is what we are worried about in these amendments, not the preparation for further education. I should like to make that point clear because if we have to return to this, I think that it is important that that point is noted by the Committee.

Lord Carmichael of Kelvingrove

We are grateful to the Minister for that further clarification. I almost understood his explanation. However, although there is no reflection on him, I must point out that some people outside the Chamber are particularly anxious about the issue and they have spent a great deal of time briefing us. Although I shall withdraw the amendment, I cannot promise that I shall not return with it in some form after those who are more knowledgeable than I have read the Minister's reply. I hope that the Government are satisfied because we want to achieve results. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Function of education authorities]:

[Amendment No. 2 not moved.]

Clause 2 agreed to.

Clause 3 agreed to.

[Amendment No. 3 not moved.]

Clauses 4, 5 and 6 agreed to.

Clause 7 [Scottish Further Education Funding Council]:

Lord Carmichael of Kelvingrove moved Amendment No. 4: Page 4, line 28, leave out ("may") and insert ("shall").

The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 5 and 6. All three amendments relate to the establishment of the funding council. I am afraid that I have lost my papers—

Lord Strathclyde

Perhaps I may be of assistance to the noble Lord. The amendments which we shall address are Nos. 4, 5 and 6 and appear in the grouping which we agreed earlier. They relate to Clause 7 dealing with the funding council. The aspect that we are looking at in particular is whether the council should be introduced at an earlier date. I hope that we shall be able to have a useful discussion on the matter.

Lord Carmichael of Kelvingrove

I am grateful to the Minister not only for what he said but for the time that he took to say it. He gave me a chance to find my papers. The purpose of the amendments is to ensure that a future Secretary of State shall establish a further education funding council. Amendment No. 5 elaborates the proposal by inserting the words: with effect from the first transfer date (within the meaning of section 11 of this Act)". It relates to the setting of a date for the establishment of the funding council. Amendment No. 6 is tabled in order to clarify the Government's intention with regard to duties in respect of further education.

The provisions in the Bill relating to the further and higher education funding councils were introduced at the Report stage in another place. They followed a commitment given in Committee that such an amendment would be tabled to keep open the option to establish a funding council for further education. The Opposition in another place proposed the creation of a funding council to provide a buffer between the Government and the colleges. The Opposition also supported the amendment in principle as did the Convention of Scottish Local Authorities and many other bodies in Scotland.

There is to be a funding council for England and for Wales. The parallel legislation has already been through this Chamber. There has been no opportunity for proper scrutiny of the Government's proposals for a funding council for Scotland and several reservations should be made at this stage. The amendment seeks to insert a provision which commits a future Secretary of State to establish a funding council. As it stands, the provisions of the Bill do not do that; they simply allow a Secretary of State in the future to establish a funding council if he so wishes.

On Second Reading the noble Baroness, Lady Carnegy, took the view that: If the Bill becomes law as it stands there is no way that any Secretary of State for Scotland could fail to set up a council in due course".—[Official Report, 21/2/92; col. 1464.] We always have great faith in what governments will do. However, I am sure that the noble Baroness would prefer to see an absolute obligation on the Secretary of State to set up the funding council.

On Second Reading in another place the Minister of State for Education and Health in the Scottish Office stated: I remain of the view that it would be a mistake to establish such a council".—[Official Report, Commons, 5/2/92; col. 306.] As a result of what occurred in Committee he had to change his mind, or appear to change his mind. We believe that the funding council is important. The Government should make a decision on the matter and that should appear on the Bill. The Government's position should be clarified and we believe that the proposed amendments, perhaps with the Minister's preferred wording, will ensure that the Government will establish such a council. I beg to move.

3.45 p.m.

Baroness Carnegy of Lour

The noble Lord, Lord Carmichael, referred to what I said on Second Reading but he did not complete the sentence. I said that there was no way that the Secretary of State could fail to set up a council because the pressure on him from all sides to do so would be too great. I took the view that he would not get away with not setting up a council, even if he wanted to.

The setting up of the funding council is almost certainly the right idea. It may be that originally the Minister did not want to do so believing that it could be introduced in later legislation if necessary. However, he listened to what was said in another place, as he did on so many issues. He responded by including an enabling clause to allow a Secretary of State in the future to set up a further education funding council if it is required.

I understood that the Association of Principals of Colleges, which before Second Reading had indicated to me its liking for the way in which the Bill was drafted, probably wanted a further education funding council. It liked the drafting because it thought that it would be some time before the further education system in Scotland was ready to work with a funding council. I understand that the association has now written to the Minister and that the noble Lord, Lord Carmichael, has that information. The association has stated that the funding council should not be set up immediately but that there should be a pause until such time as the costs of running the colleges are ascertained by the Scottish Office. It likes the idea of working closely with the Scottish Office for a year or two until those costs are ascertained and until the various procedures are clarified. The funding council should then follow.

That appears to me to make good sense. I do not believe that the suggestion should be interpreted as leaving a questionmark over the likelihood of such a system of funding being set up in the future. The Association of Principals of Colleges suggests that the funding council should not be set up until 1997, quite a long way off. Enabling legislation is sensible. It means that the year in which it may happen is not specified. There is the possibility of it happening sooner or later if necessary.

Given the circumstances of the much smaller further education system that we have in Scotland than south of the Border, it is sensible. If the principals and the Scottish Office feel that it will work, then it probably will. It seems a good approach and I hope that the noble Lord will not press the amendments, although I appreciate that it is sensible to air the subject.

Lord Strathclyde

Our intention has been perfectly clear from the time that the Secretary of State announced our policy for the further education colleges. They should become self-governing at 1st April 1993. That is the date we are working towards. The Scottish branch of the Association of Principals of Colleges recently wrote to my honourable friend the Minister of State and indicated: We believe that an implementation in 1993 is achievable given the excellent co-operation between SOED and principals to date". Our approach is to provide for flexibility. The first step is for the colleges smoothly to achieve self-governance under boards of management. That process will be facilitated by direct funding from the Scottish Office education department. My noble friend Lady Carnegy explained that extremely well. It has built up expertise over the years in funding the central institutions and colleges of education. That is different from the position in England and Wales where the Polytechnics and Colleges Funding Council has been funding higher education colleges and higher education in further education colleges. Much of the expertise of the further education funding councils in England and Wales will be drawn from the PCFC experience. There is therefore an important difference in the starting position both sides of the Border.

Once the colleges' boards of management are well established they will no doubt have a view on the merits of the establishment of a further education funding council. It would be wrong, I contend, to try to do too much at once and without taking account of the views of boards. The wisdom of that approach is acknowledged by the Scottish branch of the Association of Principals of Colleges, as explained by my noble friend Lady Carnegy. In the letter to which I referred earlier it says: We are convinced that a funding council could not operate effectively until considerable trial work had been done in developing and implementing a funding formula and it is likely that this will take three to four years". I hope therefore that the noble Lord opposite would acknowledge the colleges' position, realise the merit of waiting to see the views of boards of management and withdraw the amendment.

Amendment No. 6 is unacceptable both legally and constitutionally. It seeks to ensure that the funding council would exercise all the Secretary of State's duties as regards further education without exception. It takes no account of the structure and context of the Bill. The Secretary of State will have clear statutory duties. He will be accountable in law and to Parliament for the discharge of those duties. He will be the person liable for any breach of those duties, whether in practice the breach arises from his own or the funding council's action or inaction. The amendment seeks to take away protection which is essential to the Secretary of State. It is inappropriate, in the context of the Bill—the Secretary of State having the basic duties and accountability—for the excluded functions listed in Clause 7(3) to be exercised by the funding council. Many of the activities there carry a high risk of legal challenge.

I hope that that is a useful explanation. I invite the noble Lord to withdraw the amendment.

Lord Carmichael of Kelvingrove

After the remarks of the Minister, I accept without hesitation that Amendment No. 6 probably goes too far and I shall not move it. In view of what was said on Amendment No. 5 and in the light of the letter from the principals of colleges, it would also not be appropriate to press that amendment at the moment. However, Amendment No. 4 ensures that a future Secretary of State will establish a further education council. I am less inclined to accommodate the Minister on it for a number of reasons. First, "may" in an Act of Parliament is—as it was so well put—"always a wobbly word". We are never sure what will happen with it.

I do not believe that the Government will have much power to do anything about the conditions after the summer, but we received a clear statement from Mr. Michael Forsyth in another place. He stated: I remain of the view that it would be a mistake to establish such a council". [Official Report, Commons, 5/2/92; col. 306.] It would not come later on; he does not want it at all. Suppose a great misfortune befell the party opposite and ultimately Mr. Forsyth became Secretary of State for Scotland. He would not establish a council.

I shall bring the amendment back at the next stage, and I hope that the Minister will give it thought. We could insert "shall" without a timetable. That is a little firmer than what the Minister and the noble Baroness, Lady Carnegy, suggested, which was that we should leave matters as they are. In most cases, where it is possible, I prefer an Act to use "shall" rather than "may". Meantime, for the reasons I have given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 5 and 6 not moved.]

Clause 7 agreed to.

Schedule 1 agreed to.

Clauses 8 to 11 agreed to.

Clause 12 [Boards of management]:

[Amendment No. 7 not moved.]

Clause 12 agreed to.

Schedule 2 [Constitution and proceedings of boards of management]:

Lord Carmichael of Kelvingrove moved Amendment No. 8: Page 43, line 42, leave out ("ten nor more than sixteen") and insert ("sixteen nor more than twenty").

The noble Lord said: In moving Amendment No. 8, I wish also to speak to Amendments Nos. 9 to 12. The purpose of the amendment is to increase the minimum size of the board to allow greater flexibility and to include wider interests, including local authority interests.

The current arrangements for college boards provide for a maximum of 20 persons and no case has been made for a reduction in the number. The Convention of Scottish Local Authorities suggests that there should be no fewer than 16 members of the board. That would allow for, at the minimum, two representatives of the education authority and two other places which would be available for other interest groups; for example, a person with an interest in special educational needs.

It is important that the board of management should have flexibility to appoint members who, in the opinion of the board, reflect important local interests outwith those of the employers. This issue, along with the matter of education authority representation on boards of management, was discussed fully at the fourth sitting of the Committee in another place.

In previous briefings, the convention suggested 16 as a necessary minimum size for a board of management if any scope was to exist for involvement of board members for which provision is not made specifically in the Bill. In the course of wide-ranging discussions in Committee and on Report in the other place, insufficient emphasis was placed on the minimum size of a board. We believe that the main concern is that if the board agrees to restrict its membership to a minimum of 10 places, at least five would be taken by representatives of the business and professional community. There is no objection to their being on the board, but it is a high proportion. I want them on the board, but not in such a high proportion.

A further four places are reserved under the Bill for staff and students of a college, leaving only one place for any other member. Clearly, this would allow for only one member of an education authority or of another interest group and no scope for, perhaps, a local councillor and a representative of the voluntary sector. Raising the minimum to 16 would allow for up to four places for board members not otherwise provided for under the terms of the Bill. I do not like big boards any more than the Minister does. However, I do not believe the number suggested in the Bill is sufficient. My amendment suggests a good compromise. I beg to move.

4 p.m.

Lord Addington

I support the amendments. The size of the board is at present somewhat small. I do not believe it would hurt to have a larger maximum number of persons on the board as well as a larger minimum number. Such larger numbers of board members could cover the great variety of interests with which the boards will deal.

Lord Taylor of Gryfe

I have a certain amount of sympathy with the amendment moved by the noble Lord, Lord Carmichael. In a good deal of government legislation that affects Scotland I detect a diminution of the responsibilities of local authority representatives. We ought to state now, and again on discussions not only on this Bill but on a number of other matters, that there appears to be a move away from local authority representation. After all, local authority representatives are the elected representatives of the people in the community. One may not like their politics and one may not like the representatives themselves but they are part of the democratic structure.

I believe that there has been a move towards emphasising the importance of the local business community. We have seen this occur in relation to the setting up of the local enterprise boards. Those boards have substantial responsibilities. I wonder sometimes where we shall find these busy men who run local industries and who are willing to discharge the responsibilities of the local enterprise boards and to sit on the councils that are mentioned in the Bill. I suggest that the Bill is slightly overweighted in the direction of the business community. I very much support the idea that there should be representation from the local business community. However, I believe we should also accept that local authorities have responsibilities in these matters too.

Baroness Carnegy of Lour

I understand what the noble Lord is saying. However, he must realise that one of the main problems that colleges are meeting at the moment is that distinguished, able local business people who are at present on the governing bodies of colleges are finding it extremely tedious to have to plough through a lot of local politics in the discussions of the governing bodies. One cannot expect councillors who are sent from their council to be members of the new boards not to fight their corner, whether that corner is their political corner or their council's corner. These boards are a different kind of animal from what has existed before. I believe they will work much better than what we had previously from the point of view of training for local industry and commerce. I have been on three such governing bodies in the past, although that was some time ago now. Those of us on the governing bodies found that the less discussion we had on local authority politics and the more we discussed the needs of the customers, the better satisfied were the employers of those customers. I believe that union members who had the interests of employees at heart also found that to be the case.

I understand that local authorities may be sorry to lose the automatic statutory link, but that provision is essential to the working of the Bill. There will be much contact between local authorities and the new boards because the provision of the local authority and of the boards will be interlinked. The director of education will constantly move backwards and forwards between the colleges and the boards, and vice versa. I do not think that the amendment is the right way to tackle this issue.

The noble Lord, Lord Taylor of Gryfe, has been on a great number of boards and has been involved in the management of important organisations. However, I must ask him whether he does not think that 20 is a large number of people to have on a board in the modern world. I suggest to him that 16 is a better maximum number from the point of view of getting business done. The boards will always be able to have sub-committees to deal with different subjects and they will be able to consult people on different matters. I believe it is important to keep the boards small and if possible to keep the local political scene separate so that colleges may be run in the most efficient and effective way for the students. After all, that is the objective of the whole exercise.

Lady Saltoun of Abernethy

I wish to support what the noble Baroness, Lady Carnegy, has just said. I am sure that years ago every one of your Lordships studied Parkinson's law. I seem to remember that Professor Parkinson thought the optimum number of members for any committee or board was seven. I am not suggesting that we should reduce the minimum number of members on the board from 10 to seven. But if one has a large board or a large committee, the members will all want to talk and it takes far longer to get through the business. The noble Baroness, Lady Carnegy, was quite right to say that. That process has happened in this House. We now have far too many Members and that is why we have to sit so late and why the business takes so long.

Lord Taylor of Gryfe

I have a great deal of sympathy with the point made by the noble Baroness, Lady Carnegy, as regards the number of members on a board. I believe 20 is a fairly large number. However, I am making a plea for a different balance in the construction of the board of 16, if 16 were to be the appropriate figure. I am concerned that it may occasionally be tedious for some people to sit through the democratic processes of discussion. However, that is part of our democratic process of arriving at decisions. It is easy for people to say, "Let us have six or seven members and get through the business". That has nothing to do with democracy. Democracy is about allowing elected representatives of the people to have a voice in their local affairs.

The noble Baroness, Lady Carnegy, has suggested local authority representatives might introduce a political element into the discussions. However, they would not necessarily all be drawn from one political persuasion, although that is more likely in Scotland. Nevertheless, the people who will wish to sit on the boards will have a sense of responsibility for discharging good educational practices. They will not necessarily want to advocate a particular political doctrine. The suggestion of the noble Baroness is ill-founded. I have seen local councillors sitting on boards of various charitable, educational and cultural organisations. Those councillors are not weighed down by ideology. They attend the boards with a view to discharging their responsibilities. I do not like the idea that, because people are local authority representatives, they should not represent local opinion on important matters such as education.

I suggest to the Minister that I am not necessarily in favour of the figure 20, although that is what the amendment suggests. However, I am strongly of the opinion that there should be some reasonable balance. I do not regard the present arrangements as achieving that reasonable balance.

The Earl of Selkirk

I was on an education committee in Edinburgh for two or three years. A great many Edinburgh citizens were singularly ignorant of educational matters. Few of the members of the committee had a constructive part to play on it. The committee was set up to look after the interests of the city. When I was on the committee far more was achieved than is the case today. Many of the committee's achievements have already been discarded by the local authority for a number of reasons.

Education is an awfully complex subject for the ordinary citizen. Those who have not trained themselves in it—I do not pretend that I have trained myself in it—cannot make much of it. We on the committee depended almost entirely on the director of education. He was fortunately a first class man and for that reason we did little damage. This is not strictly a matter for local people. There is not a great deal of what I would refer to as democracy in this matter. It is a case of a board member learning various facts about, for example, chemistry or reading and all kinds of subjects that have little to do with democracy. If there is a good man then certainly he should serve on the board, but in general there should not be much control by local government.

Lord Macaulay of Bragar

I was fascinated by the observations of the noble Lady, Lady Saltoun, on the exercise of democracy, particularly as they came from a Member of a non-democratic Chamber. Was she suggesting that a time limit should be imposed on democratic discussion within local authorities and institutions established on democratic principles? That is a most interesting proposition. I was even more fascinated to hear her observe that there is a plague in your Lordships' House of too many noble Lords speaking for too long. I wonder whether in due course she would circulate a list of those Members of your Lordships' House whom she considers to be dispensable to the process of democracy.

Lord Strathclyde

Like the noble Lord, Lord Carmichael, I shall speak to Amendments Nos. 8 to 12 inclusive. Given that we have had a rather interesting debate, we should be clear on certain principles when considering this group of amendments.

We aim unashamedly for boards to have a strong employer interest because vocational education and training are among the most important aspects of the work of further education colleges. Likewise, links with local enterprise companies will be important because of the vital role those bodies play in vocational education and training. We acknowledge, however, that that is not the sole activity of colleges. Accordingly, Schedule 2 provides for others to be appointed who have an interest in the work of the college. Those can include local authority members or officials if it is felt that they will make a valuable personal contribution to the work of the boards. That was the point which my noble friend Lord Selkirk made. If they are good enough, people will want them on the boards. That is the most important aspect of the matter.

Lord Taylor of Gryfe

Who will want them on the boards and who can express that wish? Who can recognise suitable local people? Surely the elected representatives are recognised?

Lord Strathclyde

The noble Lord, Lord Taylor of Gryfe, made a number of points and I shall come to the aspect which he no doubt regards as a democratic deficit in this instance.

In practice, initially the members of the boards will be the same as those of reconstituted college councils. They will be appointed by the Secretary of State to ensure a smooth transition. After that initial round of appointments, boards will themselves fill vacancies as they occur. That is the current practice in Scottish central institutions and it works well. Education authority members or officials are not precluded from membership and I am sure that in some instances boards will wish to appoint such people because of their personal qualities and expertise.

As regards the size of boards, we judge that boards with an upper size limit of 16 will be more effective than larger boards. The noble Lady, Lady Saltoun, made that point. Sixteen people may not always have the expertise or experience to cover the multitude of activities of some colleges. That is why we have provided for non-board members to be appointed as non-voting members of committees.

Finally, we have to be clear that the boards will be running education establishments for the benefit of their students. It is our belief that that is best done without political influence. As the noble Lord, Lord Taylor of Gryfe, said, we may not like their politics. In many instances I do not like the politics of Scottish local authorities. I dare say that the noble Lord, Lord Taylor, does not like their politics either. However, that is not the point. The issue is less the type of politics than whether or not politics should be involved in the management of further education on a day-to-day basis. My noble friend Lady Carnegy was absolutely correct on that matter.

The noble Lord, Lord Taylor, does not need to get too excited about the democratic deficit. We are dealing with the Houses of Parliament; it is Parliament which will decide what the structure should be and, if Parliament decides that local authorities should have a lesser voice than business, then democracy has been well protected.

I am not sure what point the noble Lord, Lord Macaulay, tried to make about this Chamber. I regard this Chamber as part of Parliament and supremely democratic in the way in which it deals with its work.

Lord Macaulay of Bragar

My point was how the Minister could justify that position when none of us is here as a result of a democratic vote of the people.

Lord Strathclyde

I stand here as a member of the Government by virtue of the people of this country having voted for my party and not for the party of the noble Lord. That is the way we should like things to continue. We have built up a very successful relationship on that basis.

If experience shows that our concern proves to be ill founded and boards themselves feel that a change needs to be made, that will be possible in the future under the Secretary of State's order-making power in Clause 3 to amend certain provisions contained in Schedule 2, which include those on membership and chairmanship of boards.

I hope that the Committee will acknowledge those principles and note that the heart of the policy is to remove further education colleges from the direct management of education authorities. The provisions of Schedule 2 are consistent with that policy. I do not expect the noble Lord, Lord Carmichael, to agree with everything I have said, but I hope that he understands the basis on which we have put forward our proposal.

4.15 p.m.

Lord Carmichael of Kelvingrove

The Minister expected that I would disagree with his proposal. He is quite right. I am always amused by the fact that the party opposite seems to believe that local authorities are run by horrible political people while businessmen are non-political. That is a great joke. For many years there were business people serving on Glasgow Corporation. They served as the Lord Dean of Guild and the Deacon Convenor, who were supposed to be totally neutral. However, every time a casting vote was required on the occasions when the Labour Party had an overwhelming majority of the confidence of the people of Glasgow, (which happened twice), those non-political people always voted one way. The only thing to do was to take the vote away from them. They were allowed to sit there but they were not allowed to vote.

I do not think that we shall get anywhere. The Minister and the party opposite are convinced that local education authorities have little to contribute to those bodies while business people have. There is a later amendment which reflects my anxiety that some business people could be compromised in terms of the direction in which they would try to drive the colleges. I do not think that that is a matter of politics either.

I shall consider the matter and take advice and possibly bring it back at the next stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 9 to 13 not moved.]

Schedule 2 agreed to.

Clauses 13 and 14 agreed to.

[Amendments Nos. 14 and 15 not moved.]

Clause 15 agreed to.

Clause 16 [Transfer of property etc. to boards of management]:

Lord Carmichael of Kelvingrove moved Amendment No. 16: Page 13, leave out lines 4 to 12.

The noble Lord said: This is an important amendment which concerns a matter which worries local authorities. In fairness I believe that the Minister explained the matter at Second Reading, although that was rather hurried. However, certain education authorities are worried because the Bill proposes that all land or other property in respect of a college will be transferred from the education authority to the board of management of the college on the first transfer date but any debt charges relating to such property will remain with the local education authority. We take the view that that is wholly unreasonable, although, as I said, I believe that the Minister tried to explain the matter in his Second Reading speech.

We are raising the matter in order to have it set out in clear terms that there will be no long-term liability on education authorities as a result of the transfer of land and assets. I beg to move.

Lord Strathclyde

I acknowledge what the noble Lord said. It is an important amendment. Perhaps I can explain more fully than I did at Second Reading. Local authorities' loan charges are met on virtually a pound for pound basis in the distribution of the aggregate external financial settlement and FE historic debt will continue to be taken into account in the calculation in the normal way. Loans taken out by local authorities are made up in a complex way. Although we acknowledge that it is possible to identify the overall total outstanding of some £86 million, it needs to be borne in mind that local authorities repackage particular loans so that it is not straightforward over a period of years to disentangle debt for a particular building.

Local authorities entered into those loan arrangements. They are experienced in administering them, including repaying debt. The most sensible and straightforward arrangement is to leave the authorities to administer debt. That presents no additional burden to them. Nor can there be justification for rewarding education authorities for taking out loans without consent as required by statute. Yet the amendment would do that and would therefore render useless the provisions of the Bill protecting college property in the run-up to the transfer of colleges.

Moreover, if historic FE debt charges were to transfer, because of the size of the total outstanding debt and the Treasury policy that it would have to be redeemed, that sum would have to be found out of the Secretary of State's block. That could only be done to the disadvantage of further education and other services. The proposed arrangements would have no such disadvantage; neither would they place any additional burden on the taxpayer, as they continue the present arrangements.

I hope that that is a more full explanation of what I recognise is an important and complicated issue.

Baroness Carnegy of Lour

Perhaps I may add—for the comfort of the noble Lord, Lord Carmichael—that during the passage of previous legislation relating to England and Wales, the same arrangement was included in the Bill. My noble friend Lady Young and I were very concerned that local authorities should have in their accounts a debt for borrowing to build or to add to a college which was no longer in their hands. We thought that very strange.

At more than one stage of the Bill we went into the matter at considerable length by means of an amendment rather like the one moved by the noble Lord. Finally, we came to the conclusion that this is the neatest and simplest way to deal with the matter. As my noble friend on the Front Bench said, it is simply not possible to identify precisely the debt of a given college. Therefore, it will appear in the local authority's accounts. The loan charges will be paid and, as I understand it, the local authority will be refunded for those loan charges. There will be no loss by anybody except the taxpayer who continues to pay the debt on the loan charges. In a sense that is a book-keeping arrangement rather than anything else.

That having been established and understood by the local authorities, I believe that they will accept it, as, I seem to remember, did the local authorities in England and Wales in respect of schools. I am not sure whether it applies to schools in Scotland.

Lord Carmichael of Kelvingrove

The Minister realised that the point was worrying. Perhaps it still is. The local authority will never be repaid for anything expended on the colleges. I assumed that the Secretary of State would be the ultimate owner of the colleges and not the new boards. If the new boards were the owners in law, the colleges might pay off the interest in, say, 10 years' time and sell the colleges at a very high capital gain. However, I am sure that the Minister will have considered the matter.

I am trying to find out as much as possible in order to reassure those local authorities which are very concerned. Some people have spent many years and have gone to a great deal of trouble fighting to get a college. It is rather sad to find that they may lose it. It would be even sadder if they were to lose it and find that it was a burden on the local authority of which they were members. I shall be only too glad to hear the Minister if he has any more reassuring words.

Lord Strathclyde

The noble Lord asked a question. Ownership will not be in the hands of the Secretary of State but in the hands of the boards. There is a more general point. I recognise that some local authorities wanted colleges. They argued for them and got them. But now those colleges are moving into a different era of further education. That is the way local authorities should view the situation. As to the amendment, it will not cost local authorities one penny more or less than they were paying before. The position is neutral and they are refunded pound for pound for the amount of money they expend in terms of debt repayment. That is the most important aspect.

Lord Carmichael of Kelvingrove

I am afraid that that is slightly more worrying. It means that the buildings and grounds are in the hands of the new body, which is not answerable to the Secretary of State for the disposal of the land and buildings. There are a number of examples from various parts of Scotland where the local authority has been able to take over a redundant school and make it into a very good block of flats. In the area that I represented, they were highly desirable blocks of flats. The college board could do the same and do rather well from it. It could find that it was more profitable than teaching pupils.

Lord Strathclyde

Under the Bill there is a clear responsibility for the boards to provide certain levels of education. We are not creating a system in which the boards, after five or 10 years, will say, "We have had enough of this education game. Let us get into the property development game."

Lord Carmichael of Kelvingrove

There have been many demographic changes and schools have become redundant. It may happen to colleges, and it is quite worrying. It is true that this provision will not cost local authorities any more money but they will lose one of their assets. I should like to look very carefully at the matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Schedules 3 and 4 agreed to.

Clauses 17 to 21 agreed to.

Clause 22 [College development plans]:

Lord Carmichael of Kelvingrove moved Amendment No. 17: Page 17, line 23, after ("college") insert: ("(d) how the college development plan relates to overall educational provision in the area in which the college is situated;").

The noble Lord said: It may be convenient if, with this amendment, we take Amendment No. 18. The amendment seeks to ensure that college development plans cohere with overall education provision in the area. We welcome the new provisions introduced at Report stage in the other place, compelling colleges to produce annual development plans and to consult with local authorities in their preparation. The amendment provides that colleges must take into account the wider educational provision in a local area and take steps to ensure cohesion between college plans and the education plans of the local authority.

Amendment No. 18 deals with the same point. There is no objection to the involvement of business interests in the college boards. I return to a suggestion I made earlier. I said that we would welcome business interests which have contact with local enterprise companies. But we have difficulty with the provision in the Bill for formal involvement of local enterprise companies through membership of boards and the provision for consultation on college development plans.

Local enterprise companies are commercial organisations and will seek services from a range of training agents, including colleges. There could be a strong possibility of conflict of interest between local enterprise companies and college boards. It cannot be stressed too strongly that colleges serve the entire community, not only the needs of the local employers, and certainly not only the commercial interests of the local enterprise companies. The independence of college boards from local enterprise companies should be preserved by removing the formal links. I beg to move.

4.30 p.m.

Lord Addington

I support the noble Lord. I believe that there should be the greatest possible degree of co-ordination between the new colleges and the education authorities in any area. Education should not be sub-divided at any level.

Lord Strathclyde

I am slightly puzzled that the noble Lord opposite has tabled these amendments. When Clause 22 was introduced at Report stage in another place the Opposition spokesman very much welcomed it.

Perhaps I may point out to the noble Lords, Lord Addington and Lord Carmichael, that it is inevitable that boards must consider how their development plan relates to the overall educational provision in the area in which the college is situated. That is because Clause 12(1) places boards under an obligation to have regard to the provision of education in the area in which the college is situated. They will have therefore to consider not only education authority provision but provision made elsewhere, including in higher education institutions. The amendment would cause confusion where none would exist otherwise. Its meaning is vague and would be constantly open to question. I understand the principles that the noble Lord seeks to put forward. The provision clearly already exists.

I am also puzzled why the noble Lord should seek to exclude local enterprise companies from being involved with colleges in the preparation of development plans. LECS are key players in the planning of training and they will have vital information and views on local labour market and employment trends. Boards need to have that information if they are to be responsive. I do not consider that problems of commercially sensitive information are serious or cannot be overcome by those concerned. It may assist the Committee if I say that neither colleges nor LECS have expressed any difficulty to us on these provisions. I hope that the noble Lord will accept that explanation.

Lord Carmichael of Kelvingrove

The difficulty relating to what the Minister states and what may happen is that time sometimes changes people's attitudes. That is why we are always anxious to have matters on the face of the Bill. One would be surprised if at this stage of the Bill any LECs were to have the slightest intention of doing anything other than for the benefit of the education of the population. However, I was concerned that as time goes on conflicts of interest may arise. I do not believe that anyone doubts that. However, I do not believe that we shall make much further progress with the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

Clause 22 agreed to.

Clauses 23 to 34 agreed to.

Schedules 5 and 6 agreed to.

Clauses 35 and 36 agreed to.

Clause 37 [Scottish Higher Education Funding Council]:

Lord Carmichael of Kelvingrove moved Amendment No. 19: Page 27, line 34, leave out subsection (3) and insert: ("( ) In appointing the members of the Council, the Secretary of State shall ensure that not less than two fifths and not more than three fifths of those members shall be persons appearing to the Secretary of State—

  1. (a) to have experience of, and to have shown capacity in, the provision of higher education; and
  2. (b) to be currently engaged in the provision of higher education;
and in appointing the remaining members the Secretary of State shall have regard to the desirability of including persons who appear to him to have experience of, and to have shown capacity in, industrial, commercial or financial matters or the practice of any profession.").

The noble Lord said: Amendment No. 20 is linked with the amendment. The intention of Amendment No. 19 is to ensure that a reasonable proportion of funding council members have an up-to-date working knowledge of universities while at the same time acknowledging the valuable contribution of industrialists alongside them. The proportion that we consider reasonable is that which applies in the present Universities Funding Council under Section 131(3) of the Education Reform Act 1988. The draft reflects the language of that enactment. I believe that the Minister is aware of the arguments and has had consultation with the universities. I beg to move.

The Deputy Chairman of Committees (Lord Skelmersdale)

I should point out to the Committee that if this amendment is agreed to I cannot call Amendment No. 20.

Lord Strathclyde

Amendments Nos. 19 and 20 were debated in Committee in another place. My right honourable friend the Minister of State accepted the Liberal Democrat amendment which is now Amendment No. 20 but unfortunately it was never moved by Mr. Nicol Stephen, and we are now putting that right and accepting it in this Chamber.

Amendment No. 20 brings the Bill into line with the equivalent provisions for England and Wales and strikes the right note in requiring the Secretary of State to have regard to the desirability of including currently engaged academics or academic administrators in the council.

Clearly the Secretary of State will want to appoint members who are currently engaged in higher education, but for a whole series of reasons ideal candidates might not happen to be currently engaged at the time a vacancy came up. For instance, someone might have recently retired, have taken a temporary appointment in industry or have been seconded to an international organisation. It would be wrong to impose thresholds in those circumstances, as Amendment No. 19 does, which might prevent an outstanding candidate from being appointed.

I hope that I have sufficiently explained why I do not believe that Amendment No. 19 is a reasonable amendment. I hope that the Committee will accept Amendment No. 20.

Lord Carmichael of Kelvingrove

The Minister meets most of the points about which we were concerned in Amendment No. 19. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Strathclyde moved Amendment No. 20: Page 27, line 39, after ("education") insert ("and, in appointing such persons, he shall have regard to the desirability of their being currently engaged in the provision of higher education or in carrying responsibility for such provision").

On Question, amendment agreed to.

Clause 37, as amended, agreed to.

Schedule 7 agreed to.

Clauses 38 to 40 agreed to.

Clause 41 [Administration of funds: supplementary]:

Lord Addington moved Amendment No. 21: Page 30, line 26, after ("bodies") insert ("including bodies representing the views of students").

The noble Lord said: The amendment deals with the consultation of student bodies relating to the activities of the funding council. Effectively all we ask is that those bodies which represent students' interest —they are the ultimate consumers of education—are consulted. It is not a totally unreasonable consideration especially since the Government have given so much emphasis to the power of the consumer. I beg to move.

Lord Strathclyde

I am not entirely certain in the amendment that bodies representing the views of students would have any real interest in the terms and conditions which the council intended to attach to its payments to particular institutions. Those terms and conditions will relate principally to the arrangements for the proper stewardship and efficient administration of public funds. They will cover the responsibilities of the governing bodies of institutions and in particular those of the accounting officer as well as accounting and internal audit procedures. In particular they might cover the earmarking of funds for particular purposes such as access courses, or the broad divisions between teaching and research and between capital and recurrent expenditure.

All those conditions will impose a requirement on the governing body to ensure that they are complied with. It is therefore quite appropriate that, as at present with the UFC, the council should be required to consult institutions collectively and individually as appropriate. Where students are members of governing bodies, as they frequently are, they will have an opportunity to influence the response made by the governing body to the consultation process. However, at the collective level—the level addressed by the amendment—the interests of students are surely tied up with the level of student support and not with the responsibilities which councils may place on governing bodies in relation to their institutional grant.

I can understand that bodies representing students will be interested in the former but not in the latter. I do not make an anti-student response, but on that basis I hope that the noble Lord will withdraw the amendment.

Lord Macaulay of Bragar

I was interested to hear the Minister refer to the student body. Perhaps if we were to substitute the singular for the plural, so that the amendment refers to a body representing the views of the students, that may be more in line with the democratic principles of the college. After all, the students are the core of the college. It is wrong to cut them off at an administrative level when dealing with funds as though that group of people are incapable of applying their minds to the administration of funds.

Perhaps the Government will consider accepting the principle of the amendment so that student representation goes right through the whole system of the administration of the college and its funds. The college does not belong to the students; the students belong to the college. They are the people most affected by what is happening within the college.

I can understand why the Minister does not accept the amendment because bodies representing the interests of students could include every society within the college—political societies, philosophical societies, debating societies and so on. However, perhaps the Minister will agree to take away the amendment and think about bringing the student body into the consultative procedure from beginning to end on the discussions on the administration of funds.

Lord Strathclyde

Students are on the governing bodies of individual institutions so they are fully consulted.

Lord Taylor of Gryfe

I have a great deal of sympathy with the point made from the Liberal Benches and made by noble friend Lord Macaulay.

It is important to get students to realise the full responsibilities of administration of a college. Sometimes in universities and higher education there is a them-and-us relationship between the governing bodies and the students, which is undesirable. Perhaps the Minister will assure us that the voice of the students will he heard. I realise that this part of the Bill may not be the appropriate place to deal with that. However, that seems to me to be an extremely desirable part of the well-run institutions which are now being created. It would help students to realise the funding problems, which is extremely important. They should realise that everything that they seek is not available. If the Minister will assure us that the voice of the students will be heard, we shall be happy with that.

Lord Mackie of Benshie

I found it rather difficult to see the objection to the amendment. I do not believe that the Minister could envisage an occasion when it may not be better to consult the student body. I know that students can be an appalling nuisance, but the way to make them rational is to give them responsibility.

The argument was raised that the amendment may make it necessary to consult philosophical societies and so on. However, the Bill states quite clearly that: the Council shall consult such of the following bodies as appear to the Council to be appropriate to consult in the circumstances". I can envisage that the expenditure of funds on student facilities, teaching facilities and accommodation may affect a student body. In such a case, it would be essential and extremely helpful to consult a body representing students.

4.45 p.m.

Baroness Carnegy of Lour

This part of the Bill is likely to be largely concerned with the funding of staff, which always comprises a large part of the provisions for a university or other higher education institution. The noble Lord, Lord Mackie, with his experience of the University of Dundee, will remember that it is always necessary to discuss staff with staff. It is preferable that staff matters are not discussed in the presence of the students.

This part of the Bill deals with the funding terms and conditions of the institution in general. We are not talking about the day-to-day running of the institution in which students are fully involved in Scotland. That is a somewhat different matter.

Earl Russell

I apologise for intervening so soon after my arrival but as my name is to the amendment, I should like to say a few words in favour of it.

I entirely accept what the noble Baroness says about reserved areas. That is an accepted principle of business in any committee involving students. It is understood and does not seem to give rise to any dispute.

One reason for consulting students on occasions is that there are certain matters about which they know a good deal more than anybody else. In many areas, they know where the shoe pinches. In some areas, which are frequently forgotten about—such as the capacity of the refectory—if the students are not consulted, the issue is not discussed at all. I have also found from my experience of student representation that we hear from them a great deal of practical common sense. The 1960s are rather a long time ago.

Lord Strathclyde

I should not want this debate to get out of hand. It is not a case of whether or not there is student consultation. We are delighted to consult with student bodies. Nothing prevents a council from consulting any body. However, we believe that the student interest is best covered at institutional level.

As regards this amendment, we cannot see that students have any real interest in the terms and conditions which the council intends to attach to its payments to a particular institution. Those terms and conditions will relate principally to the arrangements for the proper stewardship and efficient administration of public funds. I may be wrong. Perhaps students throughout the country are fascinated by those subjects and would play a valuable role.

The noble Lord, Lord Macaulay, made a suggestion which I am happy to consider. I believe that the greater the consultation, the better. However, I do not wish to impose consultation where none is genuinely required.

Earl Russell

There are circumstances in which the student voice may be particularly appropriate on terms and conditions. One of the terms and conditions most often discussed at present is how many students the college will be asked to take in return for a specific amount of money. On the question of the physical capacity of the college, the students can see the problems arising usually before and better than their teachers can. Also, they can weigh the force of the argument for expansion because they need only to think back to the situation which existed for them a maximum of three years ago. Therefore, their capacity to weigh one argument against another seems to deserve a particularly careful hearing. In such matters, their views should be taken as seriously as those of anybody else.

Lord Macaulay of Bragar

I agree with the Minister that we do not want the debate to get out of hand. However, it is important to look at what we are talking about. The Minister is rather dismissive of student bodies in regard to what is being discussed here. Clause 41(1) gives the council the right to refuse to consult because the Bill states: the Council shall consult such of the following bodies as appear to the Council to be appropriate to consult in the circumstances". If an approach was made by the "student body" as a whole to the council, the council could tell it to go away. The clause refers back to Clause 40(3)(a), which reads: The Council may— (a) make grants, loans or other payments to the governing body of any institution within the higher education sector in respect of expenditure incurred or to be incurred by them for the purposes of any activities eligible for funding under this section by virtue of subsection (2) (a) or (b) above". Clause 40(2) (b) states: The activities eligible for funding under this section are … (b) the provision of any facilities, and the carrying on of any other activities, by such institutions in Scotland as are within the higher education sector which the governing bodies of those institutions consider it necessary or desirable to provide or carry on for"— note the words which follow— the purpose of or in connection with education or research". If we take the first phrase, the purpose of or in connection with education", who can be more affected by that part of the Bill than the students? I cannot see what harm can be done to the principle of the Bill and of this clause by giving representation of the students at least a mention in the bodies which should be consulted under the terms of Clause 41.

I detected an indication from the Minister that he will take the matter away and consider it. I see that he nods his head. In that case I am happy to have made the point and at this stage I leave the matter there.

Lord Addington

The debate hinges on the fact that students are ultimately those with whom the institutions are concerned. It is a question of how the students come through them and what they think. They are the consumers of the education provided and take away the final product—qualifications. It is difficult to see them not being able to give at least something to most, if not all, specific areas of what goes on inside the institutions. I agree that there are probably one or two areas in which they should not be included as there are one or two areas where staff would not be included. However, I cannot see why they are excluded.

The Minister said that there will be some thought given to the matter. I am prepared to withdraw the amendment but I shall certainly come back to it if nothing positive happens.

Baroness Carnegy of Lour

Before the noble Lord sits down, perhaps he will clarify something. I am a little unclear as to what student body would be consulted in this case.

Lord Addington

It could be the student council, the NUS, or some other federation where students happen to be included. Generally, it could be the student body in any institution.

Baroness Carnegy of Lour

The noble Lord was more recently a student than any of us. Is there a body which would be able to represent the views of students in all these institutions? He made an inspiring speech about the need to involve them and, as he knows, I absolutely agree with him. I am keen on the subject. I am concerned, however, with the practicalities of how the funding council can consult students about issues being dealt with under this part of the Bill. I wonder whether the noble Lord can clarify that. I am not necessarily against the amendment, but I cannot imagine how it would be fruitful.

Earl Russell

If it is in order to intervene before my noble friend sits down, perhaps I can say that student representatives on the academic board would be appropriate people to undertake that responsibility.

Baroness Carnegy of Lour

That happens in individual colleges. We are talking about funding in general.

Earl Russell

They could perfectly well be consulted by any funding council.

Lord Strathclyde

Perhaps I can offer some clarification. The point made by my noble friend is a good one. At the individual college level, students are members of governing bodies and are consulted on that basis. We are talking about the collective level by which the funding council wants to make general terms and conditions for all colleges. My noble friend was making the point about which student body it would consult.

Lord Addington

I should have thought that the NUS would be an excellent body with which to consult. The name "union" may not go down too well. But the NUS acts in a responsible way in the vast majority of cases. I see no reason why it could not be regarded as a suitable body for consultation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Clause 42 [Grants]:

The Deputy Chairman of Committees

If Amendment No. 22 is agreed to, I cannot call Amendments Nos. 23 or 24.

Lord Strathclyde moved Amendment No. 22:

Page 30, line 44, leave out subsections (2) and (3) and insert:

("(2) The terms and conditions subject to which grants are made by the Secretary of State to the Council—

  1. (a) may in particular impose requirements to be complied with in respect of every institution, or every institution falling within a class or description specified in the terms and conditions, being requirements to be complied with in the case of any institution to which the requirements apply before financial support of any amount or description so specified is provided by the Council in respect of activities carried on by the institution; but
  2. (b) shall not otherwise relate to the provision of financial support by the Council in respect of activities carried on by any particular institution or institutions.

(3) 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) or to the criteria for the selection and appointment of academic staff and for the admission of students.").

The noble Lord said: we have what appears to be a series of competing amendments, all attempting to do exactly the same thing. I do not want to rehearse the history of this complex matter. Your Lordships debated it long and hard on the corresponding Bill for England and Wales. The provisions in this Bill have also been debated at length in the other place and have been the subject of extensive and detailed consultation with the higher education institutions.

As Members of the Committee will be aware, my ministerial colleagues at the Scottish Office sought to construct a Scottish solution to this problem which would satisfy all concerned. That, unfortunately, was not to be. I made clear at Second Reading that I was willing to consider your Lordships' views and the views of Scottish higher education interests before determining the best way forward.

It was clear from that debate that your Lordships wished Clauses 42 and 54 to be amended to bring them into line with the provisions in the England and Wales Bill as they left this House. That was also the view of the Scottish universities, although earlier they had seemed content with the provisions currently in the Bill. The grant-aided colleges, on the other hand, had no problem at all with the current provisions.

Taking all those views into account, I have accepted that Clauses 42 and 54 should indeed be brought into line with their England and Wales equivalents. However, I should perhaps explain that Amendment No. 32 to Clause 54, in the name of my noble friend Lady Carnegy of Lour and the noble Earl, Lord Russell, refers to functions of the council "under this part of this Act." Those words do not generally appear in the Scottish Bill, although they do in the England and Wales Bill because it is possible that the council might have a function conferred on it by Clause 82 of that Bill. Clause 82 extends to Scotland and deals with the joint exercise of functions by the three territorial councils. The amendments I have tabled to Clause 54 —Amendments Nos. 33 and 34—however, remove directions otherwise than from financial mismanagement without restricting the scope to functions under this part of the Bill. With regard to Clause 42, Amendments Nos. 22 and 23, are identical and both achieve the desired effect. Amendment No. 24 to Clause 42, tabled by the noble Lord, Lord Carmichael, would also secure the desired effect, but mine and my noble friend's amendment go rather further in bringing the wording in the two Bills together, and so I think they are preferable in the circumstances.

I turn now to Amendments Nos. 35 and 36—

Lord Simon of Glaisdale

I am obliged to the noble Lord for giving way. I propose to move Amendments Nos. 35 and 36 separately. I am sure that it will be more convenient for the Committee if the noble Lord postpones his observations until that stage.

Lord Strathclyde

I thank the noble Lord for his courtesy in advising me of that before I stumbled into responding to what he has not yet explained. I shall wait until we reach Amendments Nos. 35 and 36.

I hope that the noble Lord, Lord Carmichael, will be willing to withdraw Amendment No. 24 to Clause 42, and that my noble friend Lady Carnegy and the noble Earl, Lord Russell, will be willing to withdraw Amendment No. 32 to Clause 54. My amendment and my noble friend's amendment to Clause 42—Amendments Nos. 22 and 23—are identical and I shall be content if the Committee accepts either. Finally, I hope that my amendments to Clause 54, Amendments Nos. 33 and 34, will be accepted.

Lord Beloff

I rarely intervene on Scottish affairs but I should like to congratulate my noble friend the Minister on adopting word for word the amendment which I drafted and which this Chamber passed at my suggestion on the English and Welsh Bill. I suggest that this might be a very useful precedent. If the Government were to accept amendments that I draft to education Bills they would spare themselves a great deal of trouble of the kind that they got into last night, for instance. Perhaps my noble friend will convey to his right honourable friend the Secretary of State that rather than threaten this House through the radio and the media, as he has been doing today, with dire penalties if this Chamber does not reverse its majority decision of last night, he might, on reflection, think that the House of Lords is more often right than wrong, and that in the amendment moved by the Minister we have accurate and convincing proof of that fact.

5 p.m.

Baroness Carnegy of Lour

I am sure that we all understand my noble friend Lord Beloff wishing to use the opportunity of a Scottish Bill to remind us of his great work last night which concerned the inspectorate in schools applying entirely to England and Wales. Last night the clause on the Scottish Bill was unchanged. I return to the amendment. We owe a debt of gratitude to my noble friend Lord Beloff for the wording. I thank my noble friend for his introduction to Amendments Nos. 22, 33 and 34. I am sure that the Committee is grateful to the Government for their flexibility and willingness to amend this part of the Scottish Bill not once but twice.

In speaking to the amendments in my name and those of the noble and learned Lord, Lord Simon of Glaisdale, the noble Earl, Lord Russell, I apologise for the exact repetition of Government Amendment No. 22 in my amendment which is Amendment No. 23. When I originally tabled the amendment, I was advised that it was flawed. I adjusted the drafting, but the weekend intervened. It was only this morning that I realised that the only two differences on the Marshalled List between my amendment and that of the Government are a misprint in the middle of paragraph (a) where the letter "n" is floating in space instead of having an "i" before it to make the word "in". In the last line of paragraph (a) of the Government amendment there is a semi-colon, and in my amendment there is a comma. That may seem insignificant; but punctuation does matter. I was informed only today of something which I should have known already; namely, that in this century someone was hanged because of the lack of a comma in the Treason Act 1351 which I understand is still on the statute book and without any commas. Apparently not much punctuation was put into legislation at that time.

In this case I do not believe that my amendment or that of the Government say anything different. The sense is exactly the same. Perhaps we can ignore that matter. In fact, it is my amendment which contains punctuation from the English Bill and not the Government amendment.

My Amendment No. 32 and the Government Amendments Nos. 33 and 34 are differently worded, but they have almost identical effect. As my noble friend Lord Strathclyde has said, he has omitted one phrase which was unnecessary, but otherwise the effect is the same. I gladly accept Government Amendments Nos. 33 and 34 as I am sure do other Members of the Committee whose names are attached to Amendment No. 32. I shall not move that amendment.

It seems to me that the outcome is now satisfactory to all concerned. As originally drafted, the Bill allowed for too much Scottish Office interference in the affairs of higher education institutions. That perhaps reflected the Scottish Office experience of close control of what used to be called central institutions. The Government listened very carefully to the arguments in another place on this matter. When their amendments were put forward and agreed, the Government had the impression, and so I believe did all Members of Parliament present, that the universities in Scotland were satisfied. However, once the Scottish university principals reflected on the matter, they were not satisfied. The Secretary of State for Scotland would still have more power than the Secretaries of State for England and Wales to intervene in university affairs in certain circumstances.

Scottish universities wanted the same degree of autonomy and freedom for Scottish institutions as is allowed for in the England and Wales Bill. The Government have now provided that. There is a long and much-cherished devotion in Scotland to the concept of academic freedom in universities. But more than that—and this is important—despite separate funding councils now being set up, it is of vital importance to Scotland that our higher education institutions do not become isolated. Quality and the funding of research must continue to be handled on a UK basis. Academic freedom and institutional relationships with the government of the day may affect both quality and research funding. That is particularly why Scottish higher education institutions have reason to be grateful to the Government for their willingness to listen and to respond not only once but twice to their requests. I hope that the Committee will accept the Government Amendments Nos. 22, 33 and 34. In turn, I shall not move Amendments Nos. 23 and 32.

Lord Simon of Glaisdale

These amendments concern the important matter of academic freedom. At Second Reading, I asked the Minister why the Scottish Bill, which is now before the Committee, did not include the safeguards which had been written into the English Bill, if I may call it that. If I may say so, the noble Lord, showing a precocious mastery of the technique of the Dispatch Box, omitted to answer that question. As the concession has been made, it would be ungracious for me to repeat it. In this matter, I eat out of the hand of the noble Baroness, Lady Carnegy of Lour. I am entirely content to follow her line and to thank the noble Lord for the concession that he has brought forward.

On Question, amendment agreed to.

[Amendment Nos. 23 and 24 not moved.]

Clause 42, as amended, agreed to.

Clause 43 [Further functions]:

Lord Addington moved Amendment No. 25: Page 31, line 19, after ("Scotland") insert ("including performance measures which describe as fully as possible the education received by students including measures such as staff-student ratios, funding per student, student library book ratios, drop out rates, spending or student support facilities and other measures as appropriate").

The noble Lord said: This amendment merely states that there should be made available information as regards, staff-student ratios, funding per student, student library book ratios, drop out rates, spending or student support facilities and other measures as appropriate". For each institution these facilities will be comparatively easy to provide. They will assist with the choice of institution. I cannot see how this amendment can be objected to because under the Citizen's Charter we have heard more about consumer choice and so forth. Surely we can bring these facilities into the Bill. It should not be very expensive to state how many students and staff there are in an institution. It cannot be difficult to do that or to include the number of books and the drop out rate. That would be very simple. It would not greatly inconvenience anybody as the information must be readily available if the institution is functioning in a reasonable and efficient manner. I beg to move.

Earl Russell

I think that this is a reasonable proposal for exactly the same reason as before a horse race it is reasonable to specify the weights; otherwise a good many of us guess wrong.

Lord Strathclyde

The noble Lord, Lord Addington, asked how could anyone object to this amendment, and the noble Earl, Lord Russell, said that the amendment is reasonable. The point is, I do not object and it is reasonable. But it is an amendment that is unnecessary because it seeks to require the funding council to give the Secretary of State the kinds of information that the Secretary of State would wish to receive and that the council would wish to provide. It therefore adds nothing of substance either to the Secretary of State's powers or to the council's ability to address the important area of performance indicators.

Clause 43 requires the council to provide the Secretary of State with information about higher education in Scotland which he may require, and enables the council to provide him with such information as it thinks fit.

The Government's belief in the importance of performance indicators is well known. The department formed a joint working group with the grant-aided colleges two years ago to examine the issue. In addition, the launch letters of guidance to the present funding councils in 1988 made clear that the Government looked to the UFC and PCFC, to develop further indicators of both the quality and quantity of institutions' teaching. In the universities sector, joint work by the UFC and Committee of Vice-Chancellors and Principals on the development of such indicators is also continuing.

The higher education White Paper repeated that expectation in relation to the new council, and I am sure that the Secretary of State will want to reinforce that in his guidance to it. It would in any case be remarkable if performance indicators relating to the output and quality of higher education as well as its funding, did not become an increasingly important part of the information collected and provided by the council.

I hope that what I have done is to describe the tremendous advances that the Government believe need to be made in this area, but why the amendment is not necessary. I hope that having explored the amendment fully, the noble Lord will withdraw it.

Lord Addington

I thank the noble Lord for that reply. Certainly it appears that he has met most of my points. However, I should like to go away and read his answer and check it out to make sure that everything is there. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 26: Page 31, line 25, at end insert ("and shall be published by him.").

The noble Lord said: In speaking to this amendment, it may he appropriate if I speak also to Amendments Nos. 27 and 28.

The purpose of these amendments is that we feel very strongly that the advice of the funding councils to the Secretary of State should be published in order to establish greater openness in the framework of government within which the institutions have to work. It is especially important that the issue of funding and quality should be seen to be separate. That was the view taken by a number of noble Lords during speeches on the Bill for England and Wales. All those involved in higher education should have good data on the sector at their disposal. That is particularly relevant to the determination of student numbers, for example, as well as to other aspects which have a substantial impact on the work of the university institutions.

If we are moving into a new era where there are to be citizen's charters and a greater spread of the knowledge and the reasons for decisions being taken, surely this is a place where there are enough responsible people able to handle the publication of advice to the Secretary of State from organisations such as the Universities Funding Council. I beg to move.

Lord Strathclyde

I too shall reply to the same amendments to which the noble Lord has spoken.

There was an extensive debate during Committee in the other place on the question whether and to what extent the information and advice provided to the Secretary of State by the council should be made public. In answering the debate, my right honourable friend the Minister of State made clear that he expected that a good many of the exchanges between the Secretary of State and the council would be made public as a matter of course, and the council would have a public role in influencing the climate of opinion on issues affecting the higher education sector in Scotland.

However there were occasions where it would be undesirable, or indeed damaging, for the council's communications with the Secretary of State automatically to be made public. For instance, exchanges could well concern the confidential financial resources of a particular institution, or the level of resources which the council considered the sector required. It has been the long-standing practice of successive governments to conduct the discussions leading up to public expenditure decisions in private. The reason being that this provides the most conducive environment for an objective and rational appraisal of competing bids for the available resources to be carried out.

The difficulty with Amendment No. 26 is that it requires publication in all circumstances which in effect would mean that the Government could not benefit from the advice and assistance of the council in the most difficult and sensitive cases. The Government have no wish to gag the council. The intention is simply to preserve the existing arrangements under Sections 131(8) (b) and 132(10) (b), of the Education Reform Act 1988 which rest discretion over publication with the Secretary of State. That will allow the council to function effectively both on matters which are appropriate for the public domain and those which must remain at least for a period in the private domain.

An identical amendment to Amendment No. 27 was also debated in another place. What I feel about this amendment is that student numbers are such a basic statistic that the council could not fail to be aware of them. Therefore it is unnecessary to require them to keep these numbers under review. In general, the collection of statistics and other data and details of funding methodologies are best left to the three funding councils to work out in consultation with the institutions.

With regard to Amendment No. 28, the council already has sufficient powers under the Bill to conduct all the research and engage in all the statistical activity that will be appropriate. The necessary statutory cover stems largely from subsections (1) and (2) of Clause 43. The council could therefore already commission its own independent research and no doubt will wish to do so. I believe that Amendment No. 26 is undesirable, and that Amendments Nos. 27 and 28 are unnecessary. I ask the noble Lord to withdraw them.

5.15 p.m.

Earl Russell

The Minister has made an interesting reply. I wonder whether there might possibly be some scope for further discussion. I take the Minister's point about confidential information concerning the financial circumstances of an individual institution. If the Minister would prefer an amendment tabled in the form of a requirement for the Scottish Higher Education Funding Council to provide an annual report, that might be something that the noble Lord, Lord Carmichael, might wish to consider.

The other part of the Minister's argument is essentially about the public expenditure round. The Minister argued that governments prefer to have this conducted with as much confidentiality as possible. I can see perfectly well that they do. It is much more convenient for them. But the Government's convenience is not always the only criterion to be taken into account. There is a considerable number of parties whose confidence, ideally, should be gained if possible. While it is a great deal easier for the Government to conduct everything in private, it does not necessarily follow that that results in arriving at a better decision.

The policy of restraint from giving advice in public is not a longstanding government policy; it is something that was brought in in the Education Reform Act 1988. It has given rise to a good deal of comment since. It has been reflected on, somewhat unfavourably, by Sir Peter Swinnerton-Dyer when he was censured by the Public Accounts Committee in another place for not revealing in public advice which the Education Reform Act 1988 did not allow him to reveal. He felt that that was a little unfair. I have a certain amount of sympathy with him.

Therefore, is the Minister prepared to consider that there may be some scope for discussion about how far people should know the advice which is coming in from the funding council? After all, because it is a public body it ought to be able to contemplate informing Parliament on occasion, as well as the Secretary of State. I understand that the Secretary of State needs to be able to make an informed decision, but so on occasion do we. If we knew what the funding council was advising, very often we could do it rather better.

Lord Strathclyde

Perhaps I may briefly respond to that point. With regard to general consultation, I am always delighted to have more discussions with the noble Earl or anyone else on these subjects. But there is a general point of principle here. If there is a requirement to publish all advice, which under this amendment is the case, in all circumstances, what will happen is that the advice will not be sought in the first place. I cannot believe that that is what the noble Lord opposite or the noble Earl would like to see. Privacy is not just convenient. It allows better decisions to be reached between the competing claims on the limited resources available. The 1988 Act probably strikes the right balance.

I hope that I have replied to the noble Earl in such a way that he can accept the force of argument. There is always a problem that governments of whatever colour seek to have these kinds of discussions in privacy. If the position were ever reversed between the noble Lord Carmichael and myself, he would want exactly the same provisions. These are the provisions that work best in terms of government, and from the accountability point of view it is Parliament's right to cross-examine the Secretary of State or other Ministers to find out what decisions have been made and what advice has been received.

Lord Carmichael of Kelvingrove

It has been an interesting debate. The noble Earl, Lord Russell, suggested that a report of the Scottish Higher Education Funding Council should be laid before Parliament. Perhaps the Minister will take that suggestion away. We all accept that every organisation must have some confidentiality about its discussions and dealings with other bodies. However, in Britain we seem to ask, "How little do we have to tell them?"; and never, "How much can we tell them without doing damage to our point of view?" The Minister was quite right. I was in much the same position as he now is. I had to withhold some so-called secrets. However, I shall not go into details—that the figures that we were trying to protect for various reasons were produced in America via the Freedom of Information Act. There was an agreement between Britain and America that all data on certain subjects should be given to the Americans. They published them but even then we were not allowed to discuss them in the British House of Commons.

Rational appraisal is more difficult if everyone knows the facts or everyone knows a lot of the facts. However, I believe that a start should be made at some point. A modus vivendi should be found through the facts given by the SHEFC to the Secretary of State. Perhaps we can gradually build up until we know the minimum that the Secretary of State and the Government need before damage is done to the argument. I believe that the more discussion one has on most things, the better. With all their faults and all the contradictions in terms of what the Government have been saying about confidentiality, that even applies to the league table published on Friday of last week concerning not only the standard of education in some of our schools, or what the Government crudely thought was the standard of education, but the cost per pupil. That should have been better dealt with than it was. Secrecy serves the Government sometimes; perhaps, sadly, all governments. At other times, when it suits them, they want to dispense with secrecy.

However, I take the Minister's point and I hope that he will take on board the point made by the noble Earl, Lord Russell, and give thought to the idea of a report being laid before Parliament periodically on the advice of the SHEFC to the Secretary of State. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 27 and 28 not moved.]

Clause 43 agreed to.

Clause 44 [Designation of institutions]:

Lord Carmichael of Kelvingrove moved Amendment No. 29: Page 32, line 25, at end insert ("which is not a university and").

The noble Lord said: This may seem to be an unnecessary amendment. Its purpose is to prevent confusion between the status of a university as currently instituted and a designated institution under this clause. In particular, Clauses 38(2) and 50(1) and (2) do not make absolutely clear that the Secretary of State may not choose to designate an existing university and thereby obtain extra powers. This amendment would make absolutely clear what in any case appears to be the Government's intention. I beg to move.

Lord Strathclyde

I think I can help the noble Lord. The Secretary of State cannot designate one of the existing universities under Clause 44. There is a very clear distinction in the Bill between designated institutions and the existing universities. Therefore the provisions of Clauses 45, 47 and 49 cannot apply to the existing universities. Accordingly, the amendment is unnecessary and I hope that the noble Lord will withdraw it.

Lord Carmichael of Kelvingrove

With that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 agreed to.

Clause 45 [Power of Privy Council in relation to designated institutions]:

Lord Addington moved Amendment No. 30: Page 32, line 39, after ("body") insert ("which shall include at least two students nominees elected from the student body").

The noble Lord said: We find ourselves returning to the matter of student representation. The amendment states that the governing body shall include at least two student nominees from the student body. The amendment effectively states that there should be elected student representatives and that there should be at least two.

I regard it as something of an opening position to say that there should be at least two, but I think that two is the minimum functioning number for student representation on any one of these bodies for the simple reason that they will need support, one from the other. One will also have a better cross-section of the student body if it is represented by two persons rather than one. It is quite conceivable that one person may be able to do a particularly good job under certain circumstances but two covers the fact that there may be disagreements in the student body and that it may be divided. It also covers the fact that a person may be incapacitated through illness or for reasons of academic study.

I shall not speak at any great length about the value of student representation. When discussing the Bill relating to England we found dozens of situations where Ministers had said how wonderful, or at least how useful, student representation was. I do not think it has ever been disputed that student representation is useful. On those grounds I would suggest that the amendment is certainly one that should be considered very seriously as it seems to express the consensus of all the opinions on this issue in their various guises. I beg to move.

Lord Strathclyde

The composition of the governing bodies of the Scottish grant-aided colleges has traditionally been dealt with by regulations rather than in primary legislation. At present, the relevant provisions are contained in Part II of the Central Institutions (Scotland) Regulations 1988 and in Schedule 1 of the Colleges of Education (Scotland) Regulations 1987. Clause 45 as it stands simply repeats the provisions of Section 77(1) of the Education (Scotland) Act 1980 and transfers the powers concerned from the Secretary of State to the Privy Council. It would therefore be out of keeping with our established practice in these matters to specify one element of the composition of governing bodies on the face of the Bill.

Members of the Committee will no doubt he aware that the Secretary of State indicated on Second Reading in the other place that, before the Privy Council began making governing orders for institutions, it was right that a number of changes should be made to relax the present restrictions on the composition of the grant-aided colleges' governing bodies. However, the grant-aided colleges argued in favour of retaining the existing arrangements under the 1987 and 1988 regulations, and accordingly the Government listened to their views and have now decided to make no changes to those arrangements. That means that the requirement for staff and student representation and for local authority experience will remain. I accordingly invite the noble Lord to withdraw the amendment.

I believe that Amendment No. 31 is both unnecessary and inappropriate. It is unnecessary because the academic appeals procedure is already covered under paragraph (a) of subsection (3) which allows the Privy Council order to prescribe the administrative and other arrangements to be adopted by the governing body for the purpose of discharging its functions. The amendment is inappropriate because—

5.30 p.m.

Lord Addington

I was under the impression that Amendments Nos. 30 and 31 had not been grouped together and that they would be dealt with separately.

Lord Strathclyde

The noble Lord is quite right; I apologise.

Lord Addington

I thank the noble Lord for his response. It seems to cover most of the points which I raised. I shall want to have one or two consultations, but I suspect that the matter has been dealt with sufficiently. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Addington moved Amendment No. 31: Page 33, line 25, at end insert: ("( ) prescribe the procedure to be followed in case of an academic appeal by students in attendance at any such institution, following consultation with relevant bodies, including those representing students,").

The noble Lord said: I shall be very brief in my remarks as the Committee has already heard half of the answer. The amendment prescribes a universal process for academic appeal throughout the institutions covered by the Bill. It also requires that the relevant bodies, including those representing students, are consulted when the process is brought into being.

The consultation with student representative bodies —presumably the NUS—means that the student view, which is the one that probably should be taken into account when one considers what is going on, will be heard—for example, why a certain given mark has been arrived at. It may be due to some sort of doctrinal difference within a discipline. For instance, inside politics, if you have a student with views "A" and an academic with views "B", you can end up in the position where everyone is very unhappy and the final interpretation of the mark could be brought into question. I therefore suggest that the amendment should at least be given some serious consideration. I beg to move.

Lord Strathclyde

I apologise to the noble Lord for pre-empting his remarks, which of course were very helpful in clarifying my mind. Perhaps I may again make the point that the academic appeals procedure is already covered under Clause 45(3) (a). It allows the Privy Council order to prescribe the administrative and other arrangements to be adopted by the governing body for the purpose of discharging its functions. I believe that that point makes the amendment as drafted unnecessary. Further, the academic appeals procedure is a detailed matter which is best dealt with by each institution individually under its delegated powers to make rules relating to the discharge of its functions. That is the way the matter is dealt with at present. Moreover, it seems to be the way that works best. Accordingly, I invite the noble Lord to withdraw the amendment.

Lord Addington

This is one case where we are not so much defending the status quo as asking for some form of improvement. A form of unified structure would make the procedure easier to understand. For example, it would make it easier for governing bodies of students to give assistance when talking about appeals. However, I have taken note of the noble Lord's remarks. Although this is one issue to which I feel that it may be necessary to return in a somewhat different form, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 agreed to.

Clauses 46 to 53 agreed to.

Clause 54 [Directions]:

[Amendment No. 32 not moved.]

Lord Strathclyde moved Amendments Nos. 33 and 34:

Page 37, line 35, leave out from ("mismanaged") to end of line 38.

Page 37, line 42, leave out from ("mismanagement") to end of line 43.

On Question, amendments agreed to.

Lord Simon of Glaisdale moved Amendment No. 35: Page 37, line 43, at end insert: ("( ) No order under this section shall have effect until approved by a resolution of each House of Parliament.").

The noble and learned Lord said: The amendment concerns the parliamentary control over the regulation-making power of the Minister. Members of the Committee will see from Clause 54 that there are two sorts of power in question. Under subsection (2) of the clause, the Secretary of State, "may give general directions" to the funding council. Under subsection (3) he may in certain extreme situations give institution-specific directions. Those extreme situations are, roughly speaking, financial mismanagement or a financial crisis. As it was put during the discussion on the English Bill by the Paymaster General, it is a power of last resort when the funding councils and the specific institutions appear to have gone, as it was put, "completely off the rails".

The question is whether one or other of those types of directions—that is, the general direction or the institution-specific regulation—should be subject to the affirmative or the negative resolution procedure. As Members of the Committee know, so far as concerns parliamentary control, the negative resolution procedure is far from satisfactory. For one thing, in the other place the resolutions very rarely come on for discussion because time has flown before they have come into force. When they are dealt with in the other place, they are dealt with at an extremely inconvenient hour. The big difference in both Chambers is that the Government find time for the affirmative resolution procedure. Moreover, the Government explain at the outset why they need the regulations: whereas, under the negative resolution procedure, the Minister replies at the end and there is no answer to what he says. Therefore, the affirmative resolution procedure is really the only effective parliamentary control. If one is to delegate important powers to the Secretary of State, the least that Parliament can do is to ensure that there is some effective control.

That fact was recognised by the Joint Select Committee on Delegated Legislation of 1972–73. I shall read the longer passage from its report because that was summarised later in the document at paragraph 77. However, as regards what should be subject to the affirmative resolution procedure, paragraph 46(1) entitled, Powers substantially affecting the provisions of Acts of Parliament", reads: Everything turns upon the word 'substantially'. The view of Your Committee is that when important issues are involved, whether because of the nature of the enactments … it is likely to he obvious that the affirmative procedure should be used—if indeed it is appropriate for the amendment to he made by order at all, and not by the Bill. Conversely, there will be cases [for the negative resolution procedure] where the amendment is of a trivial or tidying-up character, or is consequential on previous provisions.

The relevant word is "trivial" in contradistinction to "important".

I previously exonerated the Minister from answering a question that he had omitted to answer on Second Reading for reasons that I think all of your Lordships understood and sympathised with. However, on this occasion I venture to ask him to answer specific questions because they can be answered in one word. First, on subsection (2) and the general directions to a funding council, are those directions trivial or important? One word will do. Secondly, turning to the institution-specific regulations, which are matters of last resort when everybody has gone off the rails, are they important or can they be dismissed as trivial? Again, one word will do. I beg to move.

Earl Russell

The noble and learned Lord, Lord Simon of Glaisdale, is right to move this amendment. When we agreed in the course of our deliberations on the English Bill not to oppose the Government's powers to deal with financial mismanagement, we made a significant concession. We were right to make that concession because it contributed to an honourable settlement. However, "mismanagement" is a potentially subjective word. On occasion, mismanagement may be in the eye of the beholder. It is possible that there could be occasions when this Chamber might want to be able to satisfy itself that what it is dealing with is mismanagement.

I very much take the noble and learned Lord's point about terms and conditions and the directive. Is that trivial or substantial? The character of higher education in this country is being affected by terms and conditions and is capable of being further affected by terms and conditions. This Chamber does not always have the opportunity to debate the most important points. I do not think that that is trivial. The noble and learned Lord was right that it is substantial.

Turning to the use of the directive, where there is a case of serious financial difficulties it may be necessary to change the whole character of an institution. Let us imagine, for example, a directive that the University of Cambridge should have no scientists. I imagine that a great many of your Lordships might think it important that that should be considered by the House. Therefore, I think that the noble and learned Lord is right and I am glad that he has moved his amendment.

Lord Harmar-Nicholls

Only one point strikes me about this and it is the old argument about negative and positive resolutions. I believe that the negative resolution is often the best way to achieve good, effective government. It goes through quickly without setting in process a time-consuming machine that operates in a sometimes misleading way. It is a question of whether this point comes in a category for which the certainty of the positive resolution can be justified. I do not know enough about the details of this to have a worthwhile opinion on it; but my feeling is that in this case the negative resolution would meet the need. I do not, however, want to argue with our experts on further and higher education in Scotland on this point. By and large, rather than debase the coinage of the positive resolution procedure, which we must have for the really important matters, I should have thought that, on this occasion, the negative procedure would meet the bill.

5.45 p.m.

Earl Russell

I hear what the noble Lord, Lord Harmar-Nicholls, says. It has force. As it happens, I was in the Printed Paper Office last night reading some affirmative instruments that are about to come before this Chamber, some of which were made affirmative partly at my request. When I was trying to follow the language of those instruments, I said to myself that I was doing my penance. I understand therefore what the noble Lord is saying, and I have weighed that point in my mind before speaking. However, I believe that we are witnessing what is capable of becoming a total change in the character of higher education in this country, and I think that that is more important than the point about efficiency, which was made by the noble Lord. Both points have force and can be weighed against each other.

Lord Strathclyde

The noble and learned Lord, Lord Simon of Glaisdale, has argued forcefully in favour of the wider use of the affirmative resolution procedure. He has brought tremendous experience and knowledge to bear and has quoted from various documents. I recognise that this is a subject that has exercised the noble Lord both during the passage of the equivalent England and Wales Bill and during the passage of the Local Government Bill. I hope that I can justify the practicalities of what we are trying to do in this Bill, as my noble friend Lord Harmar-Nicholls did a few moments ago.

The order containing any directions from the Secretary of State to the council, whether general or specific, will be subject to the negative resolution procedure. That is the case at present under the Education Reform Act 1988. During the passage of this Bill and the corresponding England and Wales Bill, the Government have agreed to a very significant restriction in the power of direction which effects both its scope and the circumstances under which it may be used. The savage beast feared by some of your Lordships has been tamed, and the docile creature we have before us hardly merits the full rigours of the affirmative resolution procedure.

The noble and learned Lord, Lord Simon of Glaisdale, asked me what sounded like a simple question requiring a "yes" or "no" or "trivial" or "substantial" answer. I feel that the restrictions that we have already imposed on this power would confirm that the nature of the order is nearer the trivial than the substantial under the terms of the definition that was quoted by the noble and learned Lord.

Lord Simon of Glaisdale

Does the Minister mean that that applies also to the general directions?

Lord Strathclyde

No, it applies simply to the terms that were defined by the noble and learned Lord.

Perhaps I may continue to justify my position. There is another point to do with the nature of the power itself. As the Government have made clear, it is intended to be for use in emergencies. Emergencies, by their very nature, tend to move rapidly, demanding urgency and haste in those who would deal with them. They are not noted for their propensity to wait upon the completion of sometimes lengthy parliamentary processes. That is one problem with the affirmative resolution procedure. In general, it takes longer to complete than the negative resolution procedure. In theory it can be completed quickly, but in practice it is not.

Finally, it is wrong to dismiss the negative resolution procedure as being of little significance, because, like the affirmative resolution procedure, it gives Members of the Committee and Members of another place an opportunity to make known their views on the Government's intentions and if necessary to reject them.

For all those reasons it is right that the orders containing directions under Clause 54 should be subject to the negative resolution procedure, as indeed are their equivalents in the England and Wales Bill. I do not suppose for one moment that I have convinced the noble and learned Lord but I hope that he recognises the validity of our arguments. I hope too that he will not press his amendments.

Lord Simon of Glaisdale

I am particularly sorry, for reasons that I gave previously, that I cannot accept the validity of the Minister's argument. Three arguments have been put forward. The noble Lord, Lord Harmar-Nicholls, spoke of the devaluation of the affirmative resolution procedure. Let us not forget that the normal parliamentary method of regulating behaviour is by the provisions of an Act of Parliament. Immediately we are vouching safe that ancient and valuable power to a Minister. Therefore, there can be no question of devaluation of the affirmative resolution procedure. If any devaluation has occurred it has been by giving power to do by regulation what is normally done by Acts of Parliament. That applies in particular to the general regulations.

The second argument was based on the 1988 Act. It was said that the equivalent provisions were subject only to the negative resolution procedure. So they were, but under peculiar circumstances. When as a Bill that Act passed through the other place there was constant agitation on two fronts; first, that academic freedom was threatened and, secondly, that in any event the regulations ought to have been by the affirmative resolution procedure. In the end the Government gave way on the first and safeguards for academic freedom were written into the Bill. As a quid pro quo the critics dropped their demands for the affirmative resolution procedure.

The third argument was that the regulations would be needed in an emergency. That might conceivably apply to the regulations under subsections (3) but it cannot possibly apply to the regulations under subsection (2). They are the general regulations to the funding councils.

In the end the noble Lord valiantly took the question: are the regulations trivial or are they important? He said that so far as he could guess they verged on the trivial. Does any Member of the Committee, having considered the matter, believe that general regulations to the funding council are other than important and that specific regulations as a last resort are other than important?

In withdrawing my amendment I come back to my opening remarks. I withdraw it not because I consider the Minister's reply to be satisfactory but because this is not an occasion on which to divide the Committee. I must add that in persistently devaluing parliamentary control in this and in other ways the Government will have made a harsh rod for their own backs should a government of another complexion come to power. Such a government will not hesitate to govern by regulation, and it will be regulation with the least parliamentary control possible. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54, as amended, agreed to.

Clauses 55 to 59 agreed to.

Clause 60 [Regulations and orders]:

[Amendment No. 36 not moved.]

Clause 60 agreed to.

Clauses 61 to 63 agreed to.

Remaining schedules agreed to.

House resumed: Bill reported with amendments.