HL Deb 26 January 1998 vol 585 cc49-64

5.34 p.m.

House again in Committee.

Clause 24 [Further provisions as to time off for study or training]:

[Amendment No. 132A not moved.]

Clause 24 agreed to.

Clause 25 [Orders and regulations]:

Lord Tope moved Amendment No. 133:

Page 22. line 27, leave out ("section I 6(5))") and insert ("subsection (2A) below)").

The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 135 and 136. The amendments all hang together. We now return to a theme which became familiar on the first day of the Committee stage. I refer to the skeletal nature of the Bill and the amount of flesh that is to be put on the bones by way of regulations.

On the first day of Committee the Minister explained that we were having to do it this way round because it was desirable to take the legislative slot in the parliamentary programme, to present the Bill at the earliest opportunity and to carry out the necessary consultation at best consecutive with the legislative process and perhaps some of it after the legislative process. He said that, therefore, the regulations could not be made until the consultation had been completed. 1 hope that is an accurate paraphrase of the position. Concern has been expressed throughout the Committee stage about the apparent lack of opportunity to discuss the flesh that is to be put on the bones. The purpose of these amendments is simply to ask that those regulations come back to Parliament and that we have a chance to look at them again.

The noble Lord, Lord Whitty, in replying to one of the many points made, described this as a cumbersome process. I am not at all sure that it is a cumbersome process. It is an important process, cumbersome or not, and one that we should return to. Otherwise, we are simply being asked to give the Government a blank cheque on what is a skeletal Bill. Others with much more parliamentary experience than I have said that it is the most skeletal Bill they have seen in their time in Parliament.

Amendment No. 133 paves the way for Amendment No. 135. Clause 1(3) deals with the regulations governing the general teaching council. which was a matter of great concern to us on the first day of the Committee stage. Clause 5(1) deals with regulations the Minister may make giving additional functions to the GTC, which was again a matter of great concern to us. Clause 13(1) deals with regulations governing the induction period for newly-trained teachers, another subject of discussion on the first day of Committee. Clause 16 deals with the regulations concerning student loans and grants, a matter which I am sure is fresh in all your Lordships' minds.

I acknowledge straight away that the wording of Amendment No. 136 may need to be tightened up as I recognise that regulations are made by the Secretary of State. Indeed, there is a definition to that effect in the Bill. What we are trying to get at here—I am sure the intention is understood—is that the powers should lie with the general teaching council to decide on a whole range of matters—those we debated on the first day. If the Minister is able to accept our intention I am sure we can find an acceptable form of words to put that into practice.

This is a return to a familiar theme. We seek to give this House and another place an opportunity to look at the important and substantial flesh that still needs to be put on the bones of this skeletal Bill. I beg to move.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

I have to point out that if this amendment is agreed to, I cannot call Amendment No. 134

Earl Russell

My late noble friend Lady Seear used to describe widely-drafted regulation-making powers as clauses saying that the Secretary of State may do whatever he likes. There is substance in that description. The clauses to which the amendments of my noble friend Lord Tope are addressed have a very widely drafted power. For example, Clause 5(1) states, The Secretary of State may by order confer or impose on the Council such additional functions as he considers they may appropriately discharge in conjunction with any of their other functions under this Chapter".

Secretaries of State have considered many things in their time and some, shall we say, are a little unexpected. While the Joint Committee on Statutory Instruments may describe something as an, "unexpected use of power", which is a valuable provision, I have known regulations carried in this Chamber despite such a finding from the joint committee. Therefore, it is important that we should look at what the Secretary of State does with these powers.

It is often said that, under the negative resolution procedure, Members of this House can put down a Prayer and scrutinise the Instrument. That happens much more often in this House than it does in another place. We should remember that any regulations should be properly scrutinised in both Houses. I have also known occasions in this House when it has proved impossible to get a Prayer on regulations debated simply because there was not time. That is regrettable, but it happens. I believe that my noble friend has moved an important amendment and I am very happy to support it.

Baroness Blatch

I support this amendment. There is a plethora of advice about the powers to which the Government refer and claim to use in order to introduce tuition fees. It is questionable. So far we have had debates at Committee stage on false premises.

While the Government claim that Section 1(5) of the 1962 Act allows student or parental resources to be taken into account in making an award to a student, that section does not authorise the imposition of fees. As I understand it, Clause 18 of the Bill does that. That has never been divulged by the noble Baroness or the Minister. Clause 18(4) empowers the Government to force institutions to introduce fees at a specified level. Of itself the clause does not create a power to levy fees, but goes on to assume that higher education institutions already have the power to charge fees.

Therefore, the question is whether the Government have sufficient powers to make exemptions for those such as gap-year students to whom they undertook initially to apply the system of student support. I believe that the Government's difficulty is that Clause 16 does not provide an obvious route to make such exemptions. Clause 18(5) shows the level of fees controlled by the maximum amount of the grant. Under Clause 16(2)(b) students under the old system are entitled to a grant that covers any existing fee, plus a student maintenance award.

If the fee is set at £1,000, then the amount would be insufficient to keep the Government's promise to gap-year students. If the maximum grant is increased to keep the promise, then the level of the fee goes above that which the Government have announced.

It is our understanding—because we shall continue to take advice about this matter—that through the promise to the gap-year students the Government could have changed the structure of the Bill by breaking the link between the maximum grant and the prescribed fee. It is interesting to note that that link neatly achieves a number of objectives simultaneously, including the abolition of the maintenance grant, the imposition of the fee and the prevention of top-up fees. It is understandable and, I suspect, was why the Government were reluctant to adopt a more explicit structure that would have allowed extensive debate on each policy objective. We have not had an opportunity to discuss the policy objectives and that has caused great frustration.

Political policy proposals to abolish maintenance grants completely and to introduce tuition fees are a subject that should have been discussed in this and in the other place in terms of the policies they represent. Because of the misunderstanding, there should be an opportunity to have this part of the Bill recommitted. Parliament must have had in mind that any tuition fees payable by students to higher education institutions in 1962—

Baroness Blackstone

Can we discuss this issue when we deal with the next amendment, where it is somewhat more relevant than in connection with this amendment? I shall answer all the questions that the noble Baroness has put. It would be more appropriate, for the sake of orderly procedure, that we discuss these matters with the next amendment.

Baroness Blatch

I find it deeply regrettable that the noble Baroness has listened to three speeches so far, but has only just come in to say that she is not prepared to take these matters at this time. I do not intend to repeat what I have said. This is a matter for recommittal.

Baroness Blackstone

The noble Lord. Lord Tope, was not discussing the issues now raised by the noble Baroness, Lady Blatch. The noble Earl, Lord Russell, discussed quite different issues. He briefly touched on this matter, but I assumed that he was going to speak at greater length on Amendment No. 139 in connection with the matters that the noble Baroness is now raising. I am trying to be helpful so that we deal with each amendment as it arises and in a way which makes it clear to everyone on all sides of the Chamber what is being discussed.

5.45 p.m.

Earl Russell

I am in the Minister's hands here. I had been considering not moving Amendment No. 139. but since this matter has arisen and it clearly needs clarification, I will follow the Minister's preference as to whether we deal with it now or I move Amendment No. 139 to see whether we can get any further. What does the Minister prefer?

Baroness Blackstone

I believe I have made it clear. It would be more helpful and sensible if the noble Earl were to move Amendment No. 139 so that we can clarify the position then.

Lord Tope

I was going to give the Minister a few more minutes to contemplate the prospect of having my noble friend in her hands, to use his words. One of the reasons that we were contemplating not moving Amendment No. 139 corresponds with what I said at the beginning of the Committee stage today. I said that I intended to write to the Minister to set out the legal advice that we have had in order to give her the opportunity to consider it and seek further advice. We shall put down a Motion for recommittal. We shall consider what to do about that in the light of her response and those of the usual channels.

Of course we have no objection to pursuing the matter today, but I felt that we would make more progress when we have all had an opportunity to consider the legal advice that we are receiving, possibly even as I speak, but certainly the advice that we received over the weekend and earlier today. That is why my noble friend was considering not moving Amendment No. 139 today. It was not because we were going to drop the issue, but exactly the opposite.

Lord Whitty

Perhaps I may concentrate on the amendments which have been moved quite unambiguously. They deal with the procedure for resolutions in this House and another place as regards regulations. As the noble Lord, Lord Tope, said, we have had a number of lengthy exchanges on this issue earlier in the Committee stage. The other matters are either more appropriate to Amendment No. 139 or, if one likes, to a more informed discussion following the exchange of legal opinions.

The regulations arise as regards the GTC—that is to say, the references in these amendments to Clause 1(3) and Clause SO). During the debates last Tuesday the Committee indicated its concern about the regulations. We sought to reassure Members of the Committee by indicating that we agreed to consider the amendment about whether regulations on the GTC clauses should be subject to the affirmative resolution procedure. We shall return to that.

At the same time, I recall seeking to reassure Members of the Committee that the regulations could set a framework within which the GTC would be empowered to make its own more detailed rules.

In particular, Members of your Lordships' House indicated their concern about Clause 1(3) which will enable the Secretary of State to make regulations about the composition of the GTC. Again, here, the regulations could be used to set out the framework for the composition of the GTC, but also allow the GTC scope to set out some of the detail of the future arrangements. This is the case with many other professional bodies.

We indicated clearly that one of the reasons for the timing is that before we finally propose precise regulations on issues such as the composition of the GTC, we want to engage in wide consultation to ensure that all interested parties have had an opportunity to comment on the arrangements.

The GTC will be a major public body. It is right, however, that regulations should set out the framework within which it will operate. The GTC will be an independent body, working with us to raise standards, and the power to make regulations does not give the Secretary of State powers to interfere in its day-to-day business, even if he wished to do so. I do not envisage that there will be any areas where we will not be able to achieve a broad consensus, so I expect the regulations will, following consultation, carry the support of the profession, the public, the council, and, indeed, this House. Nevertheless, we are considering the question of the affirmative resolution, as against the negative resolution, and shall return to that at a later stage.

On the point raised about Amendment No. 136 and the GTC making its own statutory instruments, we do not see a need for such a power. It would be odd if the GTC could make its own statutory instruments and we do not intend to provide for it to do so.

On the second batch of regulations which will be provided under the Bill—I refer to those relating to the induction of newly qualified teachers—we did not give a commitment. We do not think that it would be a good use of parliamentary time to make any regulations made under Clause 13(1) of the Bill subject to the affirmative resolution procedure. The note we have placed in the Library gives a clear indication of how we envisage the detailed arrangements for induction periods to be determined. I trust your Lordships find it useful.

Our intention is to consult next month on the detail of the induction arrangements as a basis for preparing regulations. I hope your Lordships will agree that this is the right way of ensuring that those regulations reflect the views of teacher trainers, employees and all with an interest in securing the highest standards of professional competence in our new teachers; and also that the new arrangements are manageable and unbureaucratic: and have strong support across the system.

In relation to the regulations on fees, we had a pretty full debate last Thursday on the amendment tabled by the noble Baroness, Lady Blatch, which sought directly to implement the recommendations of the Delegated Powers Scrutiny Committee. I do not want to detain the Committee for any longer than is necessary, but I should like to repeat the commitments that we made then. First, we made the commitment to come forward with an amendment at Report stage which would make the regulations under Clauses 16 and 21 for the 1999–2000 academic year subject to affirmative resolution. Those regulations will bring about the effective change of system. We remain of the view that those are the key regulations, rather than those which deal with the transitional period and which will be made later this year.

Our second commitment, which I am happy to repeat, was that we would further consider the recommendation of the Delegated Powers Scrutiny Committee that the choice of either affirmative or negative resolution should be left open for further regulations. It was probably in that context that the noble Lord, Lord Tope, thought that he heard me use the word "cumbersome", which may indeed have been the case. We see some difficulties with that recommendation, but will come back with a clear view on it at a later stage.

As drafted, these amendments would, if passed, make all future regulations under the relevant clauses subject to the affirmative resolution procedure. In relation to Clause 16, new regulations will be made every year. The changes from the previous year will in many cases be very minor indeed—for example, they might simply uprate the levels of grant and loan in line with inflation. I do not believe that affirmative resolution is a good use of your Lordships' time in those circumstances; nor, I should add, did the Delegated Powers Scrutiny Committee insist on it.

Given the undertakings that I made last Tuesday, last Thursday and today, I hope that the noble Lord will feel able to withdraw his amendment in anticipation of the Government returning to this at a later stage.

Lord Tope

I am grateful to the noble Lord for that response. The Government are clearly right to be carrying out extensive consultation and we would all support that. However, whether it is right to present the Bill to us before that consultation has even started is more questionable. Nevertheless, this is the Bill that we have before us and that is the legislative process in which we are engaged. As I have said, we are going through a legislative process, not a consultative process. We are where we are because of the timetabling and because the Bill is now before us. All the important substance of the Bill—the "flesh" as we keep calling it—will come in the regulations. That is why so many noble Lords believe it is important that your Lordships and the other place should have an opportunity to consider what is going to happen as a result of the legislation that we pass. I am pleased to hear that consideration is being given to the affirmative resolution.

I was also pleased to hear the noble Lord's undertaking to return to this at a later stage. I hope that that later stage will be the next stage because I am certain that we shall continue to pursue this matter vigorously on Report. We would all be saved a lot of time, trouble and upset if the Government could give such an indication at an early stage. Although many of us find it unsatisfactory to be in this position, such an early undertaking would at least reassure us that we shall have a further opportunity to consider the matter when the consultation has taken place and when we have the much-talked-about "flesh" on the "skeleton" that is now before us. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 134 and 135 not moved.]

Clause 25 agreed to.

Clause 26 [General interpretation]:

[Amendment No. 136 not moved.]

Clause 26 agreed to.

Clauses 27 and 28 agreed to.

Clause 29 [Short title, commencement and extent]:

Baroness Blatch had given notice of her intention to move Amendment No. 137: Page 23, line 17, at end insert— ("sections 14 and 15,").

The noble Baroness said: It is not my intention to move this amendment today because during earlier Committee debates, it became clear that there are practical problems about the introduction of teacher training inspections. I tabled this amendment originally because I believe it is right that teacher training should be inspected and that the sooner we can get on with it, the better.

However, I became aware that two inspection systems have to live alongside each other. There are questions of overlap and duplication. Whatever the practical implications of implementing the measures in the Bill, it is important that they are implemented efficiently and effectively and in such a way as not to cause great tension between the two systems.

My noble friend Lady Carnegy has referred to the effect of these measures on the Scottish system. We need some assurances that the two systems will work effectively in practice in the interests of good teacher training. They must not cause tensions between the two systems. I believe that it is right that the Government should implement as, and when, all these issues are resolved. That is why I do not propose to move the amendment.

[Amendment No. 137 not moved.]

Clause 29 agreed to.

Schedule 2 [Minor and consequential amendments]:

Baroness Blackstone moved Amendment No. 138: Page 28, line 38. at end insert— (" . In section 58 of that Act (right to time off for occupational pension scheme trustees), at the end of subsection (3) add ", and (c) references to training arc to training on the employer's premises or elsewhere.).

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

6 p.m.

Schedule 3 [Repeals]:

Earl Russell moved Amendment No. 139: Page 29, leave out line 8.

The noble Earl said: I apologise for taking up the time of the Committee, but it appears to be for the convenience of noble Lords that I do so. A moment ago I heard my noble friend Lord Tope say that we are taking part in a legislative, not a consultative, process. I hope that my noble friend was not being optimistic. Parliament began its life as a consultative process and occasionally, late at night, I wonder whether it might end its life as one.

More seriously, I am concerned here with trying to narrow the areas of difference which engaged us last Thursday. Having taken legal advice in considerable quantity over the weekend, I believe it is common ground between us that there is no problem about the repeal of the 1962 Act. I am advised that the saving of the transitional provisions in Clause 17 is entirely sufficient and on that the legal advice received is unanimous.

It is also my understanding that tuition fees are being levied by universities under the authority of private law, not the authority of government. Therefore, we cannot speak about the introduction of a power to levy tuition fees. In spite of the Government's memorandum to the Delegated Powers Scrutiny Committee, it is not justified under any legislation unless one is considering private Acts relating to particular universities, which was probably not the intention in that memorandum. The two new changes introduced by this Bill—one that the local authority no longer reimburses the student for the fee and the other that under Clause 18(4) the Government place a cap on that fee—places the universities in exactly the situation of the privatised railways. One of the pieces of legal advice that I received suggested that that had been used as the draftsman's model for the Bill. It is not something that fills universities with joy.

Now that we have an agreement on what is actually happening, I hope that the noble Baroness will agree that the debate on the previous amendment illustrates that the Committee still has difficulty in understanding on what legal basis tuition fees are being put forward. It is my contention that we did not debate the right amendments. I did not table the right amendments because I did not understand the legal basis of what was being done. I believed on the strength of the memorandum submitted to the Delegated Powers Scrutiny Committee that somewhere, once I could find it, there was legislation that gave a public law authority for the levy of tuition fees. If that is not so a whole series of questions arises that we did not address at Committee stage because we did not believe that they were relevant. If the noble Baroness says that that was in part our fault she is entitled to do so. Were she to say that it was wholly our fault that would be a quite different matter.

The question is whether the legal authority of the universities as private corporations for the levying and collection of tuition fees is sufficient: for example, whether universities have the right to withhold degrees from those who do not pay the tuition fees. These points require clarification which at Committee stage they did not get. We require clarification quite urgently as to whether the Government see it as being within the power of universities not to levy tuition fees. My understanding of the Government's position is that a university may refrain from levying a tuition fee if it is prepared to forgo the income. It is that which creates the possibility of cut-price, downward spiral market pressure—clearance sales and so forth. That would possibly represent a fulfilment of the ambition expressed by Mr. Robert Jackson as Minister for higher education when he referred to "breaking the cartel". If that is so, it indicates either that the Government are even more conservative than I had ever supposed or that the late Dick Crossman was right in saying that there were not more than half a dozen Ministers who controlled their departments.

There are a good many difficulties and questions to probe: for example, whether it would be allowable for universities to charge differential fees between subjects, as my noble friend Lord Wallace of Saltaire has from time to time suggested. I do not want to argue on any side of these questions, but we must probe the Government's intentions in these matters before we can decide exactly what to do with the Bill. Because the Committee stage procedure is so different from Report stage procedure and allows speaking twice and after the Minister it is particularly suitable for probing, for which it was designed. It is for that motive and in order to understand precisely where we find ourselves legally that we on these Benches ask for a recommitment of the Bill. We hope that it is to shed light rather than heat. I beg to move.

Baroness Blotch

I apologise both to the Minister and the noble Lord, Lord Tope, for jumping the gun, if I may put it colloquially. When the noble Baroness suggested that this should be discussed later, she did not mention the particular amendment to which she was referring. I thought that the amendment moved by the noble Lord, Lord Tope, had relevance to the affirmative resolution procedure, which I wholeheartedly support. I hope that the noble Lord will return to it. Whatever the outcome of this debate, the case for these regulations coming before the House under the affirmative resolution procedure, whether for 1998/99 or beyond, is even greater if there is no movement on the second debate as to whether or not there is another opportunity to discuss not simply the changes themselves but the policy changes. It is that frustration which has led to a prolonged Committee stage. Sadly, we are beginning to realise that it is a Committee stage that in large part has proceeded on a mistaken understanding of what the Government claim to be the legitimate basis for the policy changes.

For the purposes of the record, I hope that noble Lords will refer to the words that 1 used on the previous amendment. I should like to complete what I said when I was quite rightly interrupted by the noble Baroness. I believe that the reason why the Government referred to Section 1(5) of the 1962 Act was simply to use it as a mechanism rather than an opportunity to discuss the policy. The next question for the Government is whether Section 1(5) can be used to pay fees under Clause 18. Section 1 of the 1962 Act refers to awards. Local authorities have the duty to pay in respect of attendance on certain courses. Can such awards cover Clause 18 fees?

It appears that when passing the 1962 Act Parliament had in mind that any tuition fees payable by students to higher education institutions in 1962, or in 1980, could be the subject of awards. Nevertheless higher education institutions have the power to charge fees. Even if they use the power at present only for overseas students, Clause 18 fees are wholly new. That is a very important point. In requiring institutions to make their fees conform to the prescribed amount Clause 18(4) may be taken as forcing the abolition of the old fees to which the 1962 Act applies.

It is likely that a court would agree with the Government's position that Section 1(5) is apt to cover awards for any kind of charge to students in respect of their attendance at higher education courses. Section 1(1) and 1(5) would authorise the payment of grants to cover the fees of the exempted students. On that view, Clause 18(4) does not create a new form of fee but instead institutes a particularly severe form of price control amounting almost to nationalisation

There is such disquiet and frustration about the way in which the law operates in this respect and the fact that this House—it will be the same in another place—has not had an opportunity to discuss the policy of completely abolishing maintenance grants and introducing for the first time tuition fees, together with a very real misunderstanding of the premise on which we have discussed these matters at Committee stage, that I believe the argument for recommittal is justified. This is not unprecedented. The previous government conceded recommittal in a similar situation in relation to the jobseekers Bill when the House took the view that there had been a mistaken premise and there should be a recommittal to allow the subject to be fully discussed. I believe that the arguments in this instance are overwhelming.

Baroness Blackstone

I am grateful to the noble Lord. Lord Tope, for agreeing that he will wait until I have had the opportunity to write to him to set out all the arguments and the whole legal basis on which we are proceeding before moving for a re-committal. That will be helpful because this is an extremely complex area and I would like the opportunity to set it out in writing. I will of course place my letter in the Library and also send a copy to the noble Baroness, Lady Blatch.

Meanwhile, it will be helpful if I begin by trying to respond to the concerns. I did not want to be critical when the noble Baroness, Lady Blatch, spoke earlier: I thought it would be helpful if I said a few words about these issues, including the saving provisions which she also referred to.

I am aware that the noble Earl, Lord Russell, has taken legal advice on the issue since we discussed Clause 16 last Thursday and we now agree on the legal basis of the Government's powers to introduce contributions to tuition fees under the 1962 Act. However, it would be helpful for the record if I set out the position, which I will then confirm in writing.

The Government will not be legislating to require students to pay tuition fees because they have no need to do so. It is individual universities and colleges which charge tuition fees for students. As the Committee is aware, they are quite free to do so. If they were not, there would be no need to include in the Bill Clause 18, which provides a reserve power to control top-up fees in certain circumstances.

What the 1962 Act does is require local education authorities to make mandatory awards to certain types of student to help them with the costs of attending their courses—that is the fees charged by their university and their maintenance costs. In practice the position in recent years has been that universities have charged fees at precisely the level of the fee element of the mandatory award so that students have not been expected to contribute personally. Legally speaking, the university has still been charging a fee to the student but that fee has been met by the local authority through the mechanism of the mandatory award.

What we are proposing to do in 1998 is provide for maximum support of £1,000 towards fees and then means test that support so that the full £1,000 is available only to students from lower income families. It will remain for universities and colleges to set their own fee levels, though they will need to do so in the knowledge that no student will receive more than £1,000 in financial support for fees from public funds. It is precisely because the Government do not set university fees that we are seeking reserve powers in Clause 18 to prevent universities from charging more than the maximum level of support available to students if necessary. If the Government set university fee levels there would be no need for Clause 18.

In legal terms, what our proposals mean is that the fee element of the mandatory award will be means tested, just as the maintenance grant is now. The power to do this is set out in Section 1(5) of the 1962 Act, which provides that regulations shall, prescribe the circumstances in which [the award] is to be payable, and the amount of the payment or the scales or other provisions by reference to which that amount is to he determined".

That is the provision under which maintenance grants have been means tested since 1962. There is no reason why the means test cannot also apply to the fee element of the award. This is precisely what was done between September 1962, when mandatory awards were introduced, and August 1977. The powers in Clause 16 replace those in the 1962 Act and allow us to make regulations to the same effect.

It is regrettable if noble Lords feel that they have been misled by what is said in paragraph 22(f) of the department's memorandum to the Delegated Powers Scrutiny Committee. This is a misunderstanding about the legal basis for the charging of fees to students rather than any failing in the memorandum.

This power to make regulations is the power under which the mandatory award regulations are made. Students have received an indemnity for university fees through awards made through these regulations. They will not do so in the future and will be liable to pay up to £1,000 a year in respect of fees. This change in the law will be achieved by amending the mandatory awards regulations so that they provide for only a partial reimbursement of fees. This is the existing legislation referred to at paragraph 22(f) of the Delegated Powers Scrutiny Committee report.

I hope that the Committee will, now that I have explained the legal background, accept that paragraph 22(f) is not misleading and accurately reflects the true position. As I said, I shall follow this up with a letter which I hope will further clarify the matter. Members of the Committee will also have the opportunity to read what I have said in Hansard.

Turning to the savings issues which the noble Baroness, Lady Blatch, is concerned about, it will be helpful if I again try to explain the matter. There seems to be continuing misunderstanding over the repeal of the 1962 Act, the current student loans legislation and the introduction of the savings provisions. Our policy is quite clear: from 1998–99 we will be introducing a new system of student support for new entrants to higher education. Existing students, and exceptionally new students such as those who fall within the gap in the scheme announced last August, will continue to receive mandatory awards and student loans for the duration of their course.

The powers to make those awards and loans are contained in the 1962 Act and the Education (Student Loans) Act 1990 respectively. This is not just a matter of a gap: it is all existing students. Next year there will be second year students, third year students and some fourth year students. It is important that those existing students should be adequately looked after.

However, those existing students will not be students for ever. Once the last of them has left the system, the powers in the 1962 and the 1990 Acts will no longer be needed. The Bill therefore requires for them to be repealed in full. If it did not, we would have to come back to the House in due course to seek powers to repeal legislation which no longer served any purpose. That would not be a sensible way to use your Lordships' time.

In the meantime the 1962 and 1990 Acts need to continue to have effect in relation to existing students. It is essential that they do not have effect in relation to new students. For those students, regulations will be made under the new powers in Clause 16 of the current Bill. If the 1962 and 1990 Acts remained in force in relation to new students, we would have a legislative muddle. For example, local authorities would be obliged to continue making awards under the 1962 Act to new students even though alternative arrangements have been put in place for them. Our intention is to repeal the 1962 and 1990 Acts so they no longer have prospective effects in relation to new students. At the same time, however, we will be putting in place saving provisions under Clause 17 of the current Bill which will provide for the relevant parts of those Acts to continue to have effect in relation to existing students.

I hope that that helps to clarify the matters that the noble Baroness, Lady Blatch, has been concerned about. I also hope that what I have said on the issues raised by the noble Earl, Lord Russell, helps. It would be helpful to everybody if we now waited until I am able to write to the noble Lords and follow this up in further detail so that everybody should have the chance to study what I have said. On that basis, there would not be a good case for recommitting the Bill at this stage.

Baroness Carnegy of Lour

In relation to the first part of the Minister's reply to the noble Earl, I wonder whether everything she said about English law applies in Scotland. I wonder whether the noble Earl would like her to include in her letter to him the legal base in Scotland. It cannot be the same, because local authorities are not involved with mandatory awards. I imagine that there is a variation. Could I, at least, have a copy of that letter?

Earl Russell

I second what the noble Baroness, Lady Carnegy, said about Scotland. It would be helpful to us also.

Lord Peston

I speak for those of us who are trying to understand anything that has been said, let alone everything. I had understood that universities could charge fees. I am amazed that anyone should think that they cannot. The reason they did not charge them above the levels mentioned by my noble friend is that any government would have immediately introduced legislation if they had tried to do other than what they wanted.

I found what the noble Earl said confusing. He seemed to be saying that a number of things that universities do are not legal; for example, universities do not reveal degree results to students from overseas who have not paid their fees. He seemed to imply that they had no legal foundation for doing that, which rather frightens me. My main reason for rising is different. I look forward to receiving my noble friend's information. Are we to be given all the legal information that the noble Earl and the noble Lord, Lord Tope, have, because some of us will probably be asked what we think, and I should, as usual, rather say what I think on the basis of information than on no information. If we could generally all be fully informed, it would be of assistance.

Earl Russell

Of course I know what is the present legal situation. I wanted to know whether the Government propose to change it under any of their many regulation-making powers.

Baroness Perry of Southwark

When the Minister writes to the noble Earl, will she answer another of our questions? I understand, from what she clearly said, that the Government recognise that the universities have the right to charge fees, but the Secretary of State's powers, as they stand at the moment, are to require local authorities to re-imburse the fees that universities charge. There are limits on how much they can be reimbursed. Where in the Bill, as it now stands, does the Secretary of State have powers to sanction universities which charge more than the prescribed amount? That is the question that was not answered in the noble Baroness's reply and which I still find difficult. If universities have the power to charge fees and local authorities are to be removed from the picture, where in the Bill, or anywhere else, is the basis for the Secretary of State's powers to impose sanctions on universities if they charge more than the prescribed amount?

Baroness Blatch

Before the Minister replies and before the noble Earl comes back on the amendment, there are two issues here. They are equally important. One is a technical one. It relates to the technical legitimacy of what the Government want to do and from where they are taking their powers. I was interested in part of the Minister's explanation. I agree with her that it would be helpful if not only did she read what we have said but that we read more carefully what she has put on the record. The other point is the moral one. It is equally important.

As recently as 14th April last year the Prime Minister said: We have no plans to charge students tuition fees".

Every student in the land had a real understanding that in the middle of an election that is what the Government meant: what Mr. Blair said, Mr. Blair meant. Therefore it came as something of a shock to every student that such a proposal was brought before Parliament but was not included in the Bill—that links in with the technical argument—because there is already in the system power to charge fees. We understand that the power is with the higher education institutions and not with the Government. We understand that it is not in Clauses 16 or 17 but is in Clause 18, where the sting is in the tail. As I have already argued, that represents a serious move by the Government.

It is difficult for us properly to understand the technical arguments and to ensure that there is a legal base not just for the 1998–99 old system students and their transitional arrangements. I disagree with the noble Lord, Lord Whitty, who said that we do not need to worry about this year's students because, in a sense, it is just a matter of uprating. It is important that the Committee is secure in the knowledge that all students who are still in the old system, and will be for some time, are properly catered for. We shall insist that those regulations come before this place under the affirmative procedure. The transitional arrangements for the new system should begin their life under the affirmative resolution procedure. Thereafter it will be for the Government to make up their own mind as to whether any changes brought before this place in the form of regulations are matters of substance or just minor matters that require the negative procedure only. It is an important point.

I shall set aside the technical argument because we all need to go away to do some reading and to take more advice. There is a great deal of disquiet in the legal community about what the Government are doing. It is not enough to say that it has always been possible to charge fees; everyone knows that; the power has always been within the system. There was an understanding by students in England, Scotland, Wales and Northern Ireland that, if any Conservative, Liberal or Labour government had taken the move to break with tradition and charge home students tuition fees, there would at least be a policy debate in both Chambers.

There has not been a policy debate. There is no opportunity under the Bill because there is no measure in the Bill which allows us to discuss a policy issue. It is being dismissed constantly as a technical issue. I argue that it is a moral issue. I hope, for the technical reasons and the moral arguments, that we shall be given an opportunity to discuss the matter on recommittal.

I repeat the point made powerfully by the noble Earl, Lord Russell, that it is important to have the freedom in Committee to have a discursive debate. It is important to do so at the beginning of a Bill. The whole point of having a Committee stage, followed by a more restrictive Report stage, followed by an even more restrictive Third Reading, is so that as we go through the Bill we are secure in the knowledge that we have had the type of discursive debate that we need to have at the beginning of a Bill. We have not had a discursive debate on this issue, and so the argument for recommittal is a powerful one.

Timing is of the essence here. We are due to come back for Report stage on 17th February. If there is to be any recommittal, and we are allowed a second opportunity to discuss these matters, that has to be done well before 17th February so as to allow a proper discussion on Report of all the issues contained in the Bill. So any letters, any advice and any reconsideration of the matter need to take place literally within the next week.

Earl Russell

I am sorry to want one more piece of information. I shall not ask the Minister to make a second speech. If she has the information, I will happily give way to her. If not, I look forward to receiving it when she has it. I understand that there is a cap over the fee. I should like to be clear as to whether there is also a floor. I shall give way if that information is available, because it is important to me.

6.30 p.m.

Baroness Blackstone

There is no floor in the legal sense, but any university which fails to collect the fees will be jeopardising the quality of the higher education which it is able to provide.

Earl Russell

I thank the noble Baroness for that answer. It was my understanding and it clears up the position considerably. I agree with the noble Baroness, Lady Blatch, about the importance of a general debate on the principles of the main proposals in the Bill. Looking back to the Education (Student Loans) Bill 1990, it is my experience that a framework Bill always leads to an exceptionally prolonged Committee stage. That is because it takes so much work to tease out the meaning of the Bill and to discover how one can table amendments to meet points. But at least we are beginning to approach the issue on the basis of a factual framework. I am grateful to the Minister for her exposition, which in some respects was very close indeed to my legal advice. In fact, the coincidence was remarkable; there must be a high level of lawyers on both sides.

I am grateful for the Minister's exposition of paragraph 22(f). That paragraph is a Whitehall classic. There is nothing in it which is in any way incorrect, yet it does not have a high degree of transparency. That is exactly how the trick is worked. It does not convey the correct impression to me. While I am prepared to take part of the responsibility for that, I am not prepared to take the whole of it. Therefore, if we can agree on an amicable basis to share the responsibility, we shall proceed a great deal faster. If we cannot, a certain amount of time might be taken up. In the meantime, and in hope, I beg leave to withdraw the amendment and give way to the next business.

Amendment, by leave, withdrawn.

Schedule 3 agreed to.

House resumed: Bill reported with amendments.

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