HL Deb 23 February 1998 vol 586 cc405-22

3.8 p.m.

The Minister of State, Department for Education and Employment (Baroness Blackstone)

My Lords, I beg to move that the Report be now received.

Moved, That the Report be now received.—(Baroness Blackstone).

Lord Tope

had given notice of his intention to move, as an amendment to the Motion ("That this report be now received") to leave out from ("That") to the end and insert ("the Bill be re-committed to a Committee of the Whole House in respect of Clauses 16 to 18.").

The noble Lord said: My Lords, I say at the outset that it is not my intention to move this amendment, but I do intend to give an explanation of my reasons to your Lordships. This morning I received a letter from the Minister which I am sure she will not mind me—

The Lord Privy Seal (Lord Richard)

My Lords, I am sorry to rise and interrupt the noble Lord, but I do so on advice and instructions. I am told that it is not in order for the noble Lord to speak to the amendment when he has not moved it.

Noble Lords


Lord Richard

My Lords, I think that the noble Lord, Lord Tope, can speak to my noble friend's Motion, but he cannot speak to his amendment if he does not move it.

Lord Harris of Greenwich

My Lords, the noble Lord the Leader of the House and I are in agreement. My noble friend Lord Tope is speaking to the Motion moved by the noble Baroness, Lady Blackstone. He has referred briefly to an amendment which appears on the Order Paper, but it is perfectly reasonable to speak on the Motion, which is what he is doing.

Lord Tope

My Lords, I am, as always, grateful to my Chief Whip for telling me my intentions before I have discovered them for myself. I was, of course, intending to speak to the Motion and to explain why I am speaking to that and not to what some noble Lords might have expected me to speak.

As I was saying, this morning I received a letter from the Minister which I am sure that she will not mind if I read to your Lordships because it is pertinent to the whole House, and not just to me. The noble Baroness wrote: Following your request that more time be made available for debate on some of the key issues in the Bill, I have given further consideration to this and I am now able to tell you that we expect to spend about two and a half days on the Report Stage of the Teaching and Higher Education Bill. As I said in my earlier letter, I would be happy to allow maximum debate of Clauses 16–18 of the Bill at Report within the rules of the House, and also if possible as first business. I undertake to respond very flexibly to interventions from Peers asking questions further to elucidate points raised in the debate. I hope you can accept this assurance. I am keen to press ahead with the consideration of this Bill. I am now clear that recommitting the Bill would not prevent implementation this summer, but it would have the effect of delaying the Government's remaining legislative programme, much of which your party support. I appreciate we disagree on certain aspects of the Bill, not least in relation to Clauses 16–18, which at Report you may continue to wish to amend or delete". I shall! The letter continues: I hope however, that with your and your colleagues' constructive contributions, we will be able to work towards securing the objectives we share for schools and further and higher education". I believe that it was a common view throughout the House that Committee stage was deeply unsatisfactory for quite a number of reasons, not least the skeletal nature of the whole of the Bill. With regard to Part II, I believe that all noble Lords found it difficult to frame an amendment that would allow any principled debate on tuition fees and, when we finally reached that stage, it was a little after midnight. I recognise that in themselves none of those is a reason for re-commitment, but to compound all that, whatever the causes, there was considerable confusion and great difficulty in getting clear answers from the Government about the legal basis on which they were intending to proceed on the question of student payment of tuition fees.

My purpose in suggesting re-commitment was to allow more time to debate and to clarify those important points. My reason was not particularly to delay the implementation of the Bill, although the thought that it might have had the effect of delaying the implementation of tuition fees this summer was something of a temptation. However, the Minister has now made it clear that that would not happen, even if we re-committed the Bill.

We wanted more time. The Government have now given us an additional day for Report stage so, in practice, Report stage will be virtually the same length as Committee stage. That meets one of my requirements in tabling my amendment. I wanted to have a full and proper debate. We are assured that we shall now have that debate as "first business"—in other words, when the House is full, we hope, when there is much interest, and when noble Lords can be present to press their points.

My next purpose for tabling the amendment was the need to probe and question the Minister. I recognise that we cannot, and should not, change the rules of procedure of your Lordships' House but within that constraint the Minister has undertaken to be "very flexible" with regard to interjections from noble Lords seeking further clarification. I hope that that will go a considerable way to meeting our requirements.

Those are major concessions by the Government and they substantially meet my procedural concerns, if not my political concerns. I am strengthened in that view by a letter which my honourable friend in another place, Mr. Don Foster, has received from Douglas Trainer, the national president of the National Union of Students. I should like to read that letter also to your Lordships because it is important that the House knows the view of the NUS on this matter. Douglas Trainer stated: The issue of re-commitment of the Teaching and Higher Education Bill is something my colleagues and I have considered carefully. It is clear from both Hansard and the level of residual confusion amongst Peers that the initial Committee stage was insufficient. Indeed it is hard to understand how the Bill could have been debated in any truly meaningful way until Peers and others were clear about the Government's power to charge fees. For this reason there is a strong case for re-commitment. However, the central issue for NUS remains our ability to oppose many sections of the legislation and to affect major change for the benefit of our membership. Re-commitment would be a victory but NUS would rather secure a guarantee of suitable time to table amendments with Peers given the optimum chance for debate. For these reasons we would fully support a move to have the Bill debated in full session with a relaxation of the relevant procedures to facilitate a debate at report stage rather than the false dawn of re-commitment". As I said earlier, I recognise—I understand that the NUS is not so familiar with this—that we cannot relax our procedures, but we do have a very generous offer from the Minister. However, I remain unhappy about the skeletal nature of the Bill. That unhappiness will become clear during further stages. My party remains totally and fundamentally opposed to the imposition of student payment of tuition fees, and we shall pursue that opposition to the fullest degree at the appropriate stages.

I am grateful to many noble Lords from all sides of the House who have offered me support on re-commitment because they share the concerns that I have expressed previously and, I hope, today. However, we have had significant concessions from the Government which go a long way to meeting my procedural concerns. I am concerned that any further delay with this Bill would not have any effect on the imposition of tuition fees, but could have a serious effect on other government legislation, some of which, it is true to say, my party supports, at least in principle. In all those circumstances, it would be churlish of me, at this stage, to press ahead with re-commitment and that is why I have decided not to move the amendment.

3.15 p.m.

Baroness Carnegy of Lour

My Lords, before the noble Lord sits down, can he tell the House why his great concern about Clauses 16 to 18 does not extend to Clauses 21 and 22 which do exactly the same for Scotland? Is the noble Lord completely ignoring the situation in Scotland?

Lord Tope

No, my Lords. I share the concern about Clauses 21 and 22. I am sure that the noble Baroness will have noticed that my original amendment referred to the whole of Part II. That was for precisely the reason that the noble Baroness has outlined. I reduced the terms to "Clauses 16 to 18" in an attempt to meet some of the concerns expressed to me earlier by the Minister; namely, that if we re-opened the debate on the whole of Part II, all sorts of other issues would also be re-opened. I hoped and believed that further reconsideration of Clauses 16 to 18 would enable us better to understand and better to respond to the clauses relating to Scotland.

Lord Renfrew of Kaimsthorn

My Lords, since my name is on the Order Paper below that of the noble Lord, Lord Tope, I am advised that it is permissible, in debating the Motion that the Report be now received, to follow the noble Lord and to express some of the anxieties about the very nature of this Bill which emerged clearly in Committee and which made that Committee one of the least productive that I have known in your Lordships' House.

Lord Carter

My Lords, I think that the noble Lord will remember that in Committee I reminded him that he should not speak from the Gangway.

Lord Renfrew of Kaimsthorn

My Lords, I apologise to the noble Lord. He did, indeed, do that and I should have remembered his words with greater attention. I shall endeavour to do so in future.

What deeply troubles me about the Bill, and I know that it troubles quite a number of your Lordships, is its very nature. It is an all-purpose enabling Bill which seems to allow the Government to do almost anything in the field of higher education without further reference to Parliament, and to do so by means of financial controls which appear sweeping and unrestricted—unbridled. The Bill hardly outlines any policies whatever. It could be described as a monumental and sustained King Henry VIII clause. I wish that the noble and learned Lord, Lord Simon of Glaisdale, was still in his place and active on the battlefield to challenge it. Many of us here remember the battle to amend Section 68 of the 1992 Act which, if left unamended, would have seriously infringed the academic independence of universities. As the noble Earl, Lord Russell, argued in Committee in moving that Clause 18 do not stand part, that clause is a threat to academic independence.

It is not my purpose at this point either to argue against government policies—which, as I indicated in Committee, are not disclosed in the Bill and have to be gleaned from other sources—or to speak about individual clauses at Report stage. Instead, I should like to make two points of a more general nature to accompany the Motion that this Report be now received. First, I remind your Lordships that in Committee there was also on the Order Paper consideration of the 9th Report of the Select Committee on Delegated Powers and Deregulation. That committee said: We invite the House to consider whether the subject matter of the regulations under Section 16 is so important that the Bill should be amended to require affirmative procedure for the first regulations … It goes on to say that everything of importance will be in the regulations.

Referring to Clause 18, the committee said: The Committee is aware that this clause is controversial…the imposition of conditions…might be regarded as the exercise of secondary power". The House has not yet fully addressed this important point, although attention was drawn to it in Committee by my noble friend Lady Blatch who has tabled Amendment No. 54 at Report stage. I believe that the House should encourage the Government to frame more clearly just what they are trying to achieve rather than approve legislation that would allow them simply by regulation to achieve anything that they wanted without reference to anyone now or in the future. That task was not adequately undertaken in Committee; nor was a single Division called.

My second and final point is an important example of the vague yet sweeping powers that the Bill may confer. The example relates to the colleges of Oxford and Cambridge. As a former master and continuing professorial fellow of one Cambridge college I declare an interest and apologise for any apparent parochialism. These colleges are self-governing institutions established by charters and governed by statutes, all approved by the Privy Council, of up to seven centuries' standing. Financially they are separate entities. My own college, Jesus, has been in existence for more than 500 years.

Lord Campbell of Alloway

My Lords, with respect to my noble friend, is his speech on the Motion that this Report be received in order?

Lord Richard

My Lords, it is not for me to be the arbiter of what is or what is not in order in this House. However, I can only tell the noble Lord who asked the question and the noble Lord who is on his feet that I am advised that the latter is veering very much in the direction of being out of order, and very shortly will be, if he continues as he has in the past.

Lord Renfrew of Kaimsthorn

My Lords, I am disconcerted by the remarks of the noble Lord the Leader of the House. If I am permitted by the House to do so I should like to take just two minutes to outline why this is a very difficult Bill to debate. It is precisely because the substance is not in it. Therefore, it is very difficult to amend the Bill. I make the point—I shall make it from the proper position—that the Bill may impact directly on the standing of the colleges of Oxford and Cambridge in a manner which it is not possible to amend because there is no statement to that effect in the Bill. With the permission of the House, I shall take perhaps two or three minutes to conclude the point.

The statutes of some of these colleges, for example Trinity Hall, not only empower them but require them to charge fees for tuition and other facilities that are offered to students. What are the intentions of the Government in respect of college fees? Since the colleges are not in receipt of grants from the Higher Education Funding Council for England, which go directly to universities, how are college fees to be controlled under the mechanism of the Bill? There are moments when it looks as if the Government regard college fees as falling under the new anathema that they have pronounced upon top-up fees. But have not college fees been charged with government approval for centuries?

I have been shown a draft government amendment to Clause 20 that seeks to include college fees within the definition of "fees" as set out in that clause, but that particular element does not appear in Amendment No. 67 tabled by the noble Baroness, Lady Blackstone. Is the whole future of the colleges of Oxford and Cambridge to be determined by the vagaries of what is or what is not set down in the definition of "fees" at Report stage by the noble Baroness? Do the Government have a policy on this matter, or are they writing a Bill and inventing the policy afterwards?

That is an example—it is my only example—of why the amendment that has been withdrawn would have been welcome. Our problem is not simply that we disagree with government policy but that we are not sure what the policy is, and the Bill certainly does not tell us. There is no way in which this nebulous Bill, with its sweeping yet ill-defined powers, can profitably be amended to deal with such matters, because it is not at all clear whether or not it refers to them. We cannot effectively discuss these matters at Report because they are not in the Bill, yet the Bill is so sweeping that if the Government so choose they are covered by it.

That is all I have to say. I simply draw to the attention of the House my grave misgivings about a Bill which comes to Report stage when many of the policies which it allegedly contains are not at all clear.

Baroness Blatch

My Lords, I rise to speak to the Motion that this Report be now received. I found the speech of the noble Lord, Lord Tope, extraordinary in the extreme, although not surprising. The love-in between the Liberal Democrat Party and the Labour Party is almost complete. There is no doubt that there have been high level discussions and the Labour Party has said, "Keep the Liberal Democrats off our backs. We want this legislation quickly". Therefore, there has been a capitulation over the weekend.

I ask the noble Lord—perhaps it is an answer that he owes this House when he comes to sum up—what the noble Lord knows today that he did not know on Thursday. I shall answer for him. Nothing. The noble Baroness said in a meeting that I had with her—I know that the letter had already been written to the noble Lord, Lord Tope—that the rules of debate during Report stage could be relaxed. I ask the Minister directly: on what authority can the Minister in this House determine that the rules for Report stage should be relaxed? My understanding is that rules govern Report stage, Committee stage and Third Reading and that no Minister alone has the unilateral power to relax those rules. If noble Lords want to ask questions with the leave of the House it is not for the Minister gratuitously to say that she will give way to those. Noble Lords have the right to ask questions under those rules.

Beyond that, the noble Lord, Lord Tope, is easily pleased if he has accepted that as a concession. If it is a concession the noble Baroness should explain to the House on what authority she has made it. The other reason for the remarkable about-turn of the noble Lord, Lord Tope, having had an amendment on the Order Paper for 27 days, is that he has said that noble Lords have two-and-a-half days for the Report stage of this Bill. That is simply not true. This Bill will be curtailed at about five o'clock this evening. The reason the proceedings have gone into a third day is that we are giving way to the Competition Bill today. I readily agreed to that because I understood that the Government were in difficulties over timetabling. We were offered part of Thursday. It is my understanding that this is not first business on Thursday. I understand that first business on Thursday is the Third Reading of the Late Payment of Commercial Debts (Interest) Bill. We also share the day with the Unstarred Question of the noble Lord, Lord Ashley of Stoke. Therefore, we have part of Thursday, not all of Thursday, and finish on Monday.

Lord Carter

My Lords, the Unstarred Question is in the dinner hour, and Third Reading of the Late Payment of Commercial Debts (Interest) Bill will be brief.

3.30 p.m.

Baroness Blatch

My Lords, when I was talking to the usual channels about how the Bill could be accommodated, I was told that it had a short time today. That is not half a day. We also have a Statement this afternoon. I was told, secondly, that we have a short time on Thursday, and that we would be given time on Monday to complete the Bill. That does not add up to two days, let alone two-and-a-half days. That is not a good reason for accepting what has been offered. The reason for accepting it is that Mr. Ashdown has been told by Mr. Blair that he must capitulate or else.

I do not know this, because I have not had an opportunity to ask my noble friend Lord Renfrew, but I do not know whether he has been shown the discourtesy that I have been shown. I had not been told that the intention was not to move the amendment. I heard it informally. I heard it rumoured around the place. One Liberal told me that it was not to be moved, another told me that it was to be moved, and the Liberal Chief Whip just shrugged his shoulders and said, "I do not really know what is going on". That is a discourtesy.

I shall further explain why it is a discourtesy. The noble Lord, Lord Tope, knows that my name would have been on the amendment. I was happy to support him and his colleagues on the Liberal Benches in pressing the amendment, because he knows that I believe strongly that we have had the most unsatisfactory Committee stage of any Bill in my experience since I entered the House in 1987. I understand that there is a technicality. I was not allowed to add my name to the amendment, because only one name is allowed on such an amendment. I think there should have been at least the courtesy of telling me this morning, or making some attempt to contact me this morning, to say that the amendment was not going to be moved. I repeat my question: what do we know today that we did not know on Thursday?

My noble friend Lord Renfrew has attended to put his amendment to the amendment. I suspect that he was not aware that that was going to be the case until he arrived here. In speaking to the Motion, That this Report be now received, my noble friend made the point most powerfully that we are still in the process of asking questions about the Bill; students are asking questions about the Bill; I receive letters daily asking me questions about the Bill; students are ringing up their colleges and their local authorities. They are being told that the Bill is only part way through its passage through Parliament. It still has to go to the House of Commons. Until it has gone through both Houses, we cannot pre-empt with certainty the outcome of the Bill. That is an unsatisfactory state of affairs.

We have exhausted the Committee stage. That is a more relaxed stage of a Bill which the House enjoys and which enables there to be discussions on amendments. Instead, we have had to use every kind of device to elicit information from the Minister. In fact we received a letter from the Minister, after the Committee stage, setting out in more detail the answers to some, but not all, of the questions that had been posed in Committee. We have now reached Report. I ask the Minister again: on what authority is she promising to relax the rules of the Report stage? If she is asking us to behave within the rules, that is not a concession. Nothing changes. We always act within the rules of this House. It is a matter on which the whole House should take a view, or at least the Procedure Committee should make a recommendation to the House.

The very fact that the Minister has written a letter to the noble Lord, Lord Tope, suggesting that there would be some relaxation of the way in which we conduct ourselves on Report, and that we would be given two-and-a-half days—it does not add up to two-and-a-half days—is because she is conceding that we need more time, and need a more relaxed stage of the Bill during which to conduct our discussions on the Bill. The Minister has, in principle, conceded the argument, but, in practice, she is going to stick to the promise she has given to her leader, that she wants to deliver the Bill and that she will not be thwarted by the Liberal amendment.

Earl Russell

My Lords, in speaking to the Motion, That this report be now received, I must repeat the declaration of interest which I made on Second Reading. I speak as a serving university teacher. I have the greatest confidence in the political judgment of my noble friend Lord Tope, but the questions I have to ask are inevitably somewhat different from the ones he has to ask.

He has to make a political judgment, but if the Bill is as badly drafted and as badly thought out as I believe that it is, I will have to help clear up the mess when my noble friend and the Minister may well have moved on to other briefs. For that reason, among others, I am sorry that we are not going to get the chance, in a proper Committee stage, to investigate exactly what the legal situation is.

That regret will be shared widely in university circles. The House will believe that I have not spoken on the Bill without taking a considerable amount of academic advice. In that advice, I have found that the doubt about the legal foundation for tuition fees is spread far outside the confines of the House.

In expressing my agreement with the point made by the noble Baroness, Lady Blatch, that procedure is a matter for the House, and not for the Government, I shall ask the Minister whether, in writing her letter to my noble friend, she took the advice of the Table before sending it. It is a material point, and the House is entitled to an answer.

It is clear that whenever we have a framework Bill before us, it leads to an ill-regulated Committee stage. That is an old rule, and it has been repeated. On the point about the timetable, I shall ask the Minister whether we are, after all, too late. I imagine that the Minister has seen the Times Higher Education Supplement for last Friday. She may have noticed the view of Mr. Dennis Farrington, deputy secretary of the University of Stirling, and author of The Law of Higher Education, that students could mount successful legal challenges against universities which fail to state in their offers to applicants for admission the exact details of any tuition fee to be paid. I have been making offers since before the Second Reading of the Bill. Was the Bill already too late when it was introduced?

Baroness Young

My Lords, I have just two points to make on this important Motion. First, I am sure that I am not alone in having received a letter from the noble Lord, Lord Tope, setting out his reasons for the amendment which he has put down today. I did not find his remarks a satisfactory answer to that. I echo what my noble friend Lady Blatch said. There is a way in which Members of your Lordships' House behave to one another. If one is not going to press an amendment, it would at least be a courtesy to write to say that one is not going to press it, rather than to leave everyone to come here uninformed. Furthermore, many have had to do homework over the weekend for something which is now clearly not going to take place. I am sorry that the noble Lord should have behaved in that way, because I agree with his object in tabling the amendment.

That takes me to my second point. I hope that the Minister will consider carefully her reply as to whether or not she can make a promise about relaxing arrangements on Report. I am bound to say that if, when I was Leader of the House, I had made such a statement, the House would have been very surprised indeed. The criticisms from the then Opposition would have been considerable. I am someone who believes profoundly in the self-regulation of this House. It is a matter for the House to decide, and it works very well indeed. Once we start having points of order, let alone Ministers deciding on the conduct of the House in changing the arrangements, we shall all suffer. Perhaps I may offer a little political advice and say that the Government will probably suffer more than the Opposition because two can play that game once it is started. However, it is a most undesirable game to play and I hope that the Government will not go down that path. It would lead us into great difficulties.

I am particularly sorry that the Bill is not to be recommitted. I hope that the Minister listened carefully to what was said by my noble friend Lord Renfrew. It is difficult to overestimate the anxiety in universities. It exists not only among students, although the situation is difficult for them. They are young and inexperienced and face considerable financial problems. However, the situation is just as serious for those who teach and take part in universities. The House has not been treated well in respect of this Bill and it does not augur well for the future of higher education.

Lord Baker of Dorking

My Lords, I wish to express support for the sentiments of the noble Earl, Lord Russell. In Committee he, more than anyone else, questioned the legality of the powers that the Government were seeking to take in Clauses 16 to 18, and he did so very effectively. The Committee stage was nearly a month ago—23rd January—and since then there has been no clarification of the Government's intentions. Various amendments have been tabled which do not add any light to those intentions. The amendments are fairly minor. Not only are we, as part of the legislative authority of our country, in the dark, but the universities are in the dark. There is considerable anxiety and confusion as to what the Government intend and what will be the effect of their intentions. I would have hoped that at some stage Ministers would have made that clear.

If the Liberal Democrats have done some kind of deal with the Government not to have a recommittal, that is a matter for them. However, the noble Lord, Lord Tope, said that part of the deal was that the crucial Clauses 16 to 18 should be taken at "prime time"; namely, when many Peers are in the House. It may not be possible to reach those clauses at prime time on Thursday. That depends upon the progress of the House today—and there are pressures on the House today. Can we have an undertaking that Clauses 16 to 18 will not taken at some late hour on Thursday, but that the House will be adjourned then so that we can take them at prime time on whichever day the Government select?

Lord Glenamara

My Lords, I wish to say only two or three sentences. I am glad that the noble Lord, Lord Tope, has withdraw the Motion. I could not see much point in it. Furthermore, I have been in Parliament for 47 years and this is probably the worst Bill I have seen during those years not only in the way it is drawn up but in what it proposes.

The Bill will impose considerable financial burdens on large numbers of people at the beginning of their working lives. Those numbers will grow year by year. There will be debts of £12,000 a year on young people—teachers, nurses, midwives and so forth—so the Bill is wrong from that point of view. During the weekend, I discovered that large numbers of MPs and, I fear, some Members of your Lordships' House, believe that the Bill will introduce a graduate tax. It does no such thing. The amount which young people will have to pay for their tuition will depend not on what they are earning but on the income of their parents in their family home which they left years before. Therefore, a barrister earning £200,000 a year might pay nothing; but a teacher earning £15,000 might have to pay the full amount. That is ridiculous, but that is what the Bill does.

I also oppose the Bill because of the way in which it is drawn up. It gives no details of its proposals; it is a purely skeletal Bill. It imposes financial burdens without explaining how that will be done and without giving any details. It is a ridiculously unfair Bill. I hope that the noble Baroness will listen carefully to my suggestion that the Government take it away, withdraw it, think it over again and bring another Bill back in the next Session. But, my Lords, please do not proceed with this Bill. The Government will lose it in the House of Commons if they do.

3.45 p.m.

Lord Peyton of Yeovil

My Lords, the noble Lord, Lord Glenamara, said that this is the worst Bill he has experienced in 47 years in Parliament. I wish to associate myself with the words spoken by my noble friend Lady Blatch. She is never one to be discourteous; but in speaking of the speech of the noble Lord, Lord Tope, she chose her words with lethal effect: extraordinary, but not surprising. Furthermore, I endorse the words spoken by my noble friends Lady Young and Lord Renfrew. Both were lethal in their effects.

I wish to ask the Minister one question, but I am not sure whether it has already been asked. Precisely when and precisely how did the Government communicate the so-called "concessions" to the noble Lord, Lord Tope? Was it so late in the day that they had no opportunity of informing other parties in opposition in this House?

I am afraid that I was not here for much of the Committee stage, but I gather that I did not miss very much. There are two aspects of legislation which I find objectionable. The first is regulatory powers taken freely and liberally—I am sorry. I did not mean to use that word—taken freely by Ministers on the quite unfounded assumption that they will be trusted to use them with wisdom and care. When my party sat on the other side of the House, I objected constantly to Bills containing regulatory powers which I thought were totally unjustified and unsuitable to present to Parliament.

Secondly, when Ministers offer concessions—I must admit that we know of this concession only through the medium of the noble Lord, Lord Tope—one needs to examine them very carefully. When they contain the word "flexibility" and when we are assured that Ministers will be flexible, my goodness, I become exceedingly suspicious! "Flexibility" is a word used by Ministers almost as a claim to the possession of virtue. "Flexibility" usually means not that Minsters will bow to the will of the House or listen to opinions, but that they will twist and turn in their efforts to get their own way.

I rejoice in this short debate because I hope that it has gone some way to teach Ministers a lesson in humility and good manners. As for the noble Lord, Lord Tope, I do not believe that anyone need bother to add to what was said by my noble friend Lady Blatch, particularly the words "not surprising".

Lord Peston

My Lords, my noble friend the Leader of the House might tell us whether it is out of order for anyone to speak in favour of the Minister or of the Motion before the House. I am somewhat appalled at those who say they are sticklers for our rules but they still felt able to make Second Reading speeches in connection with the former Motion before the House. However, it is for them to reflect on that.

I spoke at Second Reading but I do not recall most of my noble friends and noble Lords opposite being present. At that time I made it clear that I did not care for tuition fees. But it seemed to me from that point on it was up to the Opposition to put up some opposition at the Committee stage. I have forgotten which noble Lord said that it was an appalling performance but I agree, it was. That appalling performance was not down to my noble friend the Minister, it was down to the fact that we discovered afterwards that the Opposition had not the faintest idea about the Bill or about university and higher education finance. I remember making this point not long ago. It did not seem to be my job to give them lessons on the subject. It was clear that they totally bungled the Committee stage because they did not know what they were talking about. They now seek to blame my noble friend the Minister because somehow she did not do their job for them.

I do not have a copy of the letter with me, but my last point is that it did not seem to me, when the noble Lord, Lord Tope, read it out, that he was for one moment suggesting that my noble friend was proposing that we break our rules. She was simply saying that she thought she had behaved reasonably. If she had consulted me purely on a friendship basis I should have said—and this is my whole attitude—"Never behave reasonably when you are dealing with the unreasonable". She is now being attacked for behaving reasonably. The noble Lord, Lord Tope, is being attacked for trying to respond to a reasonable offer, it seems to me.

I hope that my noble friend will now say: "Enough's enough; the whole thing is preposterous". She should suggest to noble Lords opposite that they start doing their job of tabling meaningful amendments and arguing the case. Some of us would be rather interested in taking part in that argument, but not to have this constant crying: "Oh, we bungled it, but it's not our fault".

Lord Campbell of Alloway

My Lords, perhaps I may make a brief point. By what authority does a Minister of the Crown offer flexibility affecting the rules of procedure of your Lordships' House? To me this is almost beyond credibility and belief. What did the noble Lord, Lord Tope, imagine he was getting other than a pig in a poke? There is absolutely no power, no sense and no force in an undertaking to use flexibility if it means in any way changing the procedures of this House on Report.

I came here to support the amendment. The essence of the problem was that we required the seriousness of debate at Committee stage where one can speak more than once and entertain discussion. That is what we needed, but it has been given away in accepting an undertaking which, whatever the noble Baroness said, is worthless. It is a worthless, sterile, useless undertaking by which a kind of compromise has been accepted between the two parties so that the right action—to recommit the Bill—has not been taken.

Lord Desai

My Lords, I sat through the Committee stage of the Bill till late at night because I cared about higher education. If other people had cared about it, they would have been here and not asked for what is called "prime time". Prime time is when a Bill is being discussed that you care about you should be here to discuss it and not ask for special concessions. I should also add that we have now wasted 45 minutes of prime time.

Baroness Blatch

My Lords—

Noble Lords


Baroness Blackstone

My Lords, I wish to begin by thanking the noble Lord, Lord Tope, for not moving his Motion for re-committal. He and I have had a couple of constructive discussions recently and I can assure your Lordships' House that I shall be happy to allow maximum debate on Clauses 16 to 18 during Report stage within the rules of the House.

Baroness Blatch

My Lords, I believe that I am within the rules of the House to intervene when the noble Baroness is speaking. I wish to ask her this: since when has it been the lot of a Minister to allow maximum debate at any stage of a Bill? The Minister gave a hint that somehow this Report stage would be different from any other Report stage. I come to this House, whether it is to the Committee stage, the Report stage or Third Reading, and expect to have the maximum opportunity within the rules of the House as an individual Member of the House. I do not expect to be condescended to, and I do not expect the Minister to be condescending about allowing us to have maximum debate within the rules of the House.

Baroness Blackstone

My Lords, I feel that I am in one of those "damned if you do, damned if you don't" situations. I am trying to respond to some of the concerns that Members opposite, both in the Liberal Democrat Opposition and in the Conservative Opposition, have expressed about the Committee stage. I wrote to the noble Lord, Lord Tope, but since he was out of the country last week—and this is in answer to one of the questions put by a Member on the opposite Benches—he only received my letter this morning. I hope that that is a helpful explanation of the timing.

Perhaps I need to repeat what I said in the letter. I said that I would stick to the rules of the House and would also try to make it possible—because this question was also raised—to deal with the crucial clauses, Clauses 16 to 18 in the second part of the Bill, at first business. That is the Government's intention.

It is also the Government's intention to allow two-and-a-half days for the debate, if that is the time taken up by the amendments that are tabled. Of course, I accept what the noble Baroness, Lady Blatch, said. The exact length of time will depend on how many people speak and how many amendments are put down; but the Government will stick to what we agreed.

Baroness Blatch

My Lords, again with the leave of the House, is the noble Baroness suggesting that we could negotiate more time, if there are sufficient amendments? We are talking about a very short time today, a relatively short time on Thursday and one day on Monday. Does the Minister suggest that that is the offer, over and above what we have at the moment? We do not have two-and-a-half days at the moment.

Baroness Blackstone

My Lords, this is a matter for the usual channels and not for debate across the Floor of the House. I have simply said that I have made an offer to the noble Lord, Lord Tope, that there would be two-and-a-half days available. The noble Baroness, Lady Blatch, queried whether that was the case. I wish to provide the reassurance that it is the case and we will make the time available.

I was asked whether we had consulted the Table. The answer is no. We did not need to consult the Table as there was no attempt or no wish in any way to relax the rules of the House. I simply said that I wished to be flexible. It is perfectly legitimate for any Ministers speaking in this House to be flexible in the way they interpret the rules. That is the issue. It is a matter of how many interventions—

A noble Lord


Baroness Blackstone

My Lords, I am sorry, but I have heard many debates in the House at Committee and Report stages and Third Reading where, when Members of your Lordships' House rose to elucidate a point, the Minister speaking said that that Member had already spoken and it was not right at Report stage to take further questions of elucidation. That is all I am trying to do.

I found the remarks of the noble Lord, Lord Peyton, a little offensive, if I may say so. He accused me implicitly of lacking both humility and good manners. I say this in all humility. I do not wish to be rude or not to display good manners. I am attempting to find a way round the issue. In responding to the debate I hope that noble Lords will accept that it would not be right for me to become involved in the substantive matters raised as though it were a Second Reading debate; that is, on questions of policy. This is a procedural debate and we should stick to procedural matters.

I accept that the policy concerns of the noble Lord, Lord Tope, and many other Members of your Lordships' House will not be met by the Bill. We have different views on what should be the right policy. However, those noble Lords who have suggested that the higher education sector does not accept some of the principles behind the Bill are not right in making that claim. Of course, there will be some members of the higher education sector who take that view. However, today I received from the CVCP briefing a statement which said: Vice Chancellors broadly support the principles of the new funding scheme". That is an important point which we need to take on board. However, we are not here to debate that.

I should remind the House that the Companion to the Standing Orders provides for two situations in which re-committal may take place: where important amendments were tabled too late in Committee for that stage; or where amendments on a subject which had not been considered in Committee were tabled at a later stage and required detailed examination. Neither of those two situations applies in this case.

I have not heard any arguments which would lead me to believe that the House had not had sufficient opportunity fully to debate the provisions of the Bill and that it should not pass now to Report stage. I find it extremely difficult to understand how it can be argued that the Government have not been clear about the legal basis for the new fee regime. Both the Explanatory Memorandum and Notes on Clauses published on the same day as the Bill made clear that Clause 16 gives the Secretary of State power to provide substantial support to students in respect of fees. Clause 18 gives the Secretary of State power to make it a condition of grant from the funding council that institutions charge certain students fees at the level of the maximum support payable under Clause 16; that is, it gives him a reserve power to control top-up fees.

Again, I understand that some noble Lords do not agree with the Government's decision to take that reserve power. But we shall debate that at length on Report when further amendments have been tabled to Clause 18. Indeed, we have already had a debate about it in Committee. The Government believe that it is right to take that reserve power because of their commitments to parents that they would not have to pay any more than they do at present and also the commitments they have made to students.

I return to the issue on which there is confusion. Fees have been charged by universities, not the Government, for years and the Bill does nothing to affect that position. Moreover, exactly the same device has been used to secure contributions from students and their parents as is planned under this Bill; that is, the means-testing of government support for fees from 1963 to 1977 under the 1962 Act.

Our Second Reading debate on 11th December did not indicate any misunderstanding of our plans. At the end of that debate there was nothing to indicate to me that there was a misunderstanding on the charging of fees. Moreover, I said in relation to the Bill: It does not give the Secretary of State power to set university fees".—[Official Report, 11/12/97; col. 257–8.] The noble Earl, Lord Russell, seemed to indicate his understanding of the status of universities when he said: Universities are not nationalised industries. They arc private corporations". Later, when referring to fees, he said: I appreciate that the noble Baroness is technically right that the university is still free to set its own level".—[Official Report, 11/12/97; col. 286.] In view of that, I was genuinely unaware that the noble Earl, Lord Russell, believed that the Government thought that they had power to charge directly. I can only apologise for the fact that I was unaware of that. The noble Earl's misunderstanding, which first came to light in Committee, seemed to have stemmed from his misinterpretation of my department's memorandum to the Delegated Powers and Deregulation Committee. Before that time, I did not know that there was a misunderstanding. Had I done so, I should certainly have agreed to meet the noble Earl to try to clarify the position. When the misunderstanding became apparent, the noble Earl will recall that I took the first opportunity, at about five o'clock on 26th January, to meet him and his noble friend Lord Tope, together with the senior legal adviser from my department, to clarify the matter. Of course, any misunderstanding is always regrettable and I know that the noble Earl was grateful to my officials and thanked them for their assistance in trying to put the matter right.

From the Delegated Powers and Deregulation Committee memorandum, the noble Earl came to the conclusion that the Government believed that they had the power to charge fees. I do not wish to go into more detail about that because it would not be particularly helpful at this stage.

I shall now deal with one or two points raised by other noble Lords. I am rather puzzled by what the noble Baroness, Lady Blatch, said. During our Second Reading debate she asked some 37 quite specific questions but none of them related to the charging of fees. I should certainly have responded before the Committee stage had she raised a question on such an important point. But again I had no idea that there was any misunderstanding of the provisions of the Bill on her part until the noble Earl, Lord Russell, intervened on that point in Committee.

The noble Lord, Lord Renfrew, will forgive me if I do not become involved in the issue of college fees at Oxbridge. That is quite a different matter. It is not an issue for this Bill. No legislation is required for the Government to respond to the recommendation made by the noble Lord, Lord Dearing, and his committee of inquiry but it is a matter that should be looked at by the Government. The Government have referred it to the HEFC.

The noble Lord, Lord Renfrew, my noble friend Lord Glenamara and the noble Baroness, Lady Blatch, have objected to what they consider to be skeletal provisions. However, we have had extensive debate about the nature of those provisions during the passage of the Bill. I have tried to explain that it is right that we should put much of the detail of a Bill of this sort into regulations. I believe that that is right so that when the higher education system changes, as it may well do, we do not have to come back with primary legislation.

I should say to the noble Lord, Lord Baker, that there really can be no doubt that the Government have made quite clear what they intend to do. I do not believe that the noble Lord took part in the Committee stage of the Bill, although he spoke on the Second Reading. We have provided extensive documentation in relation to our intentions and have set out at length what is likely to form the vast bulk of the regulations. We have done that in language which is rather easier to follow and understand than draft regulations would be.

Lord Denham

My Lords, perhaps the noble Baroness will forgive me. I should like to ask the Leader of the House a question. Is not this procedure indicative of the fact that it is absolutely essential that the rules of order of this House be maintained? The noble Lord the Leader of the House suggested quite properly that the noble Lord, Lord Tope, was not in order to say that he would not move his amendment.

When the noble Lord decided not to press his amendment he had two options which would have been proper in this House. One would be—the least satisfactory option—to say "not moved" and then the House would have moved into Report in the normal way.

The second would be to move his amendment to the Motion, whereupon the noble Baroness on the Woolsack would have put that Question. The matter would then have been debated and he would have asked leave to withdraw the amendment. The House would then have had an opportunity to refuse him leave to withdraw it and come to a vote on it. We have had all this discussion purely because the rules of order have been allowed to be widened far more than they should have been. That is not at all the fault of the noble Lord the Leader of the House because he set about the matter in the right way. However, is it not absolutely essential that the rules of order in this House should be obeyed; otherwise, we enter a totally unjustifiable general debate on what is, after all, a procedural Motion?

Lord Richard

My Lords, the noble Lord invites me, I suppose, to give judgment on the proposition he puts to me. I can say only that I am advised that the Motion that this House do now move into Report is a debatable Motion. I tried to confine the limits of the debate upon that Motion in as polite a way as I could. We have had a series of Second Reading speeches. If the House wants to indulge itself in this way, it is difficult to see what I as Leader of the House can do to stop it.

Baroness Blackstone

My Lords, I have just tried to respond to some of the procedural points.

Lord Denham

My Lords, could not the Question be put, because if this debate continues we shall exacerbate the breaches of order in this House?

Lord Richard

My Lords, I believe that the debate is just about coming to a conclusion. I have great hopes that it is. My noble friend the Minister is on her feet. I anticipate, and trust, that she is coming rapidly to a conclusion. In those circumstances the Question will then be put. I am advised that the noble Lord. Lord Tope, will not be entitled to say anything else in the course of this debate.

Lord Strathclyde

My Lords, I support very much what my noble friend Lord Denham said. We have got ourselves into a procedural muddle. That has been caused by the decision of the noble Lord, Lord Tope, not to proceed with his amendment. Will the noble Lord the Leader of the House examine how this has happened and try to make sure that the House does not get itself into the kind of mess in which it now finds itself, particularly as we are about to commence a Statement before reverting to the Bill? Am I also right in thinking that there is every likelihood that we shall not continue with this Bill after the Statement because it will then be time to discuss the Competition Bill?

Lord Richard

My Lords, I shall certainly take into account and ponder deeply the circumstances in which this debate has taken an hour and four minutes. I am bound to say that I regard it as basically the self-indulgence of many of those people who have spoken in it who have chosen to turn what is a narrow procedural point into a major Second Reading debate.

Baroness Blackstone

My Lords, I end by saying that obviously Bills are not, and could not possibly be, drafted with a view to assisting the Opposition to table amendments. Bills are drafted to give effect to government policy. The noble Baroness, Lady Blatch, seemed to expect the Government to spell out what the Bill does not do. However, I believe that is rather at odds with the normal mode of explanation where one explains what the legislation does. I am pleased that the noble Lord, Lord Tope, has decided not to move the Motion. I believe that the higher education sector would prefer not to see this Bill re-committed. Plenty of time has been made available for discussion on Report today, on Thursday and on Monday of next week. I very much look forward to that discussion.

Baroness Blatch

My Lords, before the noble Baroness sits down I raise a point which is important to the House. I understand that the noble Baroness wrote a letter on Friday, 20th February to the noble Lord, Lord Tope. Was the letter copied to me and was it copied to my noble friend Lord Renfrew?

Baroness Blackstone

No, my Lords. The Motion on the Order Paper was in the name of the noble Lord, Lord Tope. I did not think it appropriate for me to copy that letter to either the noble Baroness, Lady Blatch, or the noble Lord, Lord Renfrew.

On Question, Motion agreed to.

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