§ (1) The Funding Councils shall provide to the relevant authority copies of that part of Institutions Strategic Plans relating to Fair Access arrangements, which will then comment to each institution on the content of its plan and may, if it thinks fit, approve the plan.
§ (2) The relevant authority shall require each institution to provide an account of the financial assistance it has provided to students.
§ (3) The relevant authority shall report to Parliament each year on progress on the plans and on the financial assistance which has been provided to students under the plans."
§ On Question, amendment agreed to.601
§ Clause 33 [Duration of plans]:
§ Baroness Perry of Southwark moved Amendment No. 48:
§ Page 16, line 4, leave out from "made" to end of line 6 and insert "by the Funding Councils"
§ On Question, amendment agreed to.
§ [Amendment No. 49 not moved.]
§ Clause 34 [Variation of plans]:
§ [Amendment No. 50 not moved.]
§ Clause 35 [Enforcement of plans: England]:
§ Baroness Perry of Southwark moved Amendment No. 51:
§ Page 16, line 18, leave out "or (c)"
§ On Question, amendment agreed to.
§ Baroness Ashton of Upholland moved Amendment No. 52:
§ Page 16, line 25, at end insert—
§ "( ) The governing body of an institution is not to be regarded for the purposes of subsection (1) as having failed to comply with the requirement specified in section 23(1)(c) by reason of its failure to comply with any of the general provisions of an English approved plan, if the governing body shows that it has taken all reasonable steps to comply with that provision."
§ The noble Baroness said: My Lords, in response to an amendment tabled in Committee by the noble Lord, Lord Butler—whom I am delighted to see in his place—I explained that I fully support the principle that institutions that take all reasonable steps to comply with the provisions in their access plan should not be penalised when factors beyond their control prevent them from doing what they said they would do. I could not accept the noble Lord's amendment for technical reasons but I promised to take the matter away and consider it, and the amendment is the result.
§ I have always believed that the director's decisions must be reasonable and the draft letter of guidance to the director makes it clear that an institution's failure to meet milestones should not in itself be grounds for any kind of sanctions. Furthermore the draft regulations require the director to enter into a dialogue with institutions before turning down an access plan or applying a sanction. The director can never reject an access plan outright in the first instance or impose a sanction without giving an institution the opportunity to make its case. He must say if he is minded to reject it and give reasons. The institution will then have an opportunity to make further representations to the director before any final decision is made. Nevertheless, I accept the case for enshrining the principle of reasonableness in primary legislation. It is right that the director must make fair and reasonable decisions and must justify them.
§ I hope that noble Lords will welcome this amendment, which provides an important reassurance for institutions about how the director will go about widening participation. I beg to move.
§ 9.15 p.m.
Lord Butler of Brockwell
My Lords, I thank the Minister very warmly for being as good as her word in 602 Committee. I recognise the elegance and the greater rigour of the drafting of this provision compared with the one that I offered in Committee. I stand a corrected and improved man.
I have only one question for the Minister in respect of the amendment. Would it be right, in the interests of consistency, for a similar provision to be included in respect of the provisions for Wales?
§ Lord MacGregor of Pulham Market
My Lords, I wish to speak to Amendment No. 52A, which is grouped with this amendment. As my noble friend Lord Forsyth said earlier, the noble Lord, Lord Sutherland, is not able to be here owing to a prior and unavoidable commitment. Therefore, I will speak to Amendment No. 52A. Having discussed the amendment with him, I hope that the noble Lord will agree with everything I have to say.
We had a good debate on this in Committee, so I can summarise the main points very briefly. The director is a regulator: he has very substantial powers with considerable potential impact on universities. In particular, he has the power to fine universities and prevent them introducing variable fees. It is entirely at his discretion to judge the access plans and there are no opportunities for appeal.
This runs against the spirit of the way in which regulators are now being introduced or, alternatively, the way in which existing regulators are now being amended in legislation. In most cases, there is the opportunity for appeal. It also runs against the principles of the Better Regulation Task Force and, in particular, transparency, accountability and fairness.
The Select Committee on the Constitution, of which my noble friend Lord Norton is the chairman, recently produced a report on the regulatory state, with particular reference to who regulates the regulators. We spent a great deal of time and developed a mass of evidence on all these issues. One of the strongest refrains, as I said in Committee, was the lack of independent appeal against a regulator's decision—not an internal system within the regulator's own ambit of reconsidering a decision but an independent appeal. We recommended that in every case where there is a regulator there should be an independent appeals system.
This also runs against what is happening elsewhere in government at present. We are currently considering the Pensions Bill, which, in relation to the pensions regulator, has not only an internal determination panel but an independent pensions regulator tribunal. Moreover, Clause 6 of the draft Charities Bill makes provision for a charities appeal tribunal. So in most areas of government now, quite rightly, an independent appeal tribunal system is being introduced.
Some have said that judicial review provides that appeal. Frankly, it is not an alternative or a reasonable substitute. There are three problems: on the whole, judicial review deals with the process and not the merits of a regulator's decision; it costs a great deal because lawyers are always involved; and it takes a great deal of time. So it is not really a proper alternative.
603 It is interesting to reflect that in the case of pensions there would be the alternative of going to judicial review, but the pensions tribunal has also been provided, as a quicker way of dealing with issues. So in most cases now, judicial review is not regarded as a satisfactory way of dealing with appeals.
In our debate in Committee on 25 May, the Minister raised a number of points. She said that the Government have looked at having a separate appeal tribunal and decided that it would be,potentially costly, lengthy, complex and of doubtful value".—[Official Report, 25/5/04; col. 1271.]I hope that I have dealt with "doubtful value" in terms of the general principle.
I would like to make two further points. First, I know that it has been argued—in front of our Select Committee, for example—that independent appeal tribunals can sometimes be seen as weapons of delay or ways of putting forward frivolous appeals. Frivolous appeals are unlikely with universities, but there are other related points. I hope that the need for appeals will not arise on many occasions. I believe that universities would act responsibly. Universities are not the type of organisation to make frivolous appeals. However, most important of all is the 12-week process in the amendment before us, which deals with the arguments about cost, length and complexity. If the process has to be completed in 12 weeks, appeals have to be solved quickly. That short time scale is a helpful way of dealing with those arguments.
My second point of detail is in relation to the composition of the tribunal, and I do not think that the amendment necessarily offers the right answer. The amendment is different from the one in Committee, but I suspect that there is still room for discussion about the composition. One of the best ways would be to follow what the Government have set out in the Pensions Bill for the composition of the pensions tribunal, where it is suggested that the Lord Chancellor—perhaps it will now be the Secretary of State for Constitutional Affairs—appoints the chairman and the members of the panel. The members of the panel are not a permanent group, so no cost is involved. However, if there is an appeal, the Lord Chancellor can select the members of the panel to hear the appeal with the chairman. That seems to be a sensible method.
The Pensions Bill has rather a lot of detailed clauses about the pensions tribunal itself. I am not sure that we need such detail in this case, but if we follow the precedent in terms of the composition, most of the problems will be dealt with. I acknowledge that this amendment is not perfect and probably needs further adjustment, but I think that that can be done.
In Committee, the Minister kindly offered the opportunity of further discussions, which the noble Lords, Lord Sutherland and Lord Norton, and I have had with the Minister. We are extremely grateful for those. I hope that she now understands the type of argument that we are putting forward and our willingness to be flexible in order to reach the right 604 solution. I look forward to hearing what she has to say. I am grateful for the meetings, but what is important is the principle that is now being applied to many other regulators. Therefore, I beg to move.
§ Lord Norton of Louth
My Lords, I know that there is pressure to be brief. I have to catch a train back to Hull this evening, so I do not intend to detain the House for too long. I made clear some of my reservations about OFFA in Committee. Following that debate, I came to the view that, if we are to have a Director of Fair Access, two amendments to the Bill are essential. I am pleased to say that those two amendments are the ones before us.
I am very pleased that the Minister moved Amendment No. 52, following the amendment moved in Committee by the noble Lord, Lord Butler. In Committee, the Minister pointed out quite rightly that a visit to a university campus may make a pupil aware for the first time of the potential of going to university. It may prompt an application for university entry. The problem for the university arranging such campus visits, is that the application may be to another university. It may be doing the hard work to attract students, but that does not necessarily deliver the students. It may do, but one must recognise that it may not.
As my noble friend Lord Renfrew said earlier today—and this point was also made in Committee—it may be difficult to overcome a culture of not going to university. However hard universities and schools work together, there is no guarantee of success, although I fully recognise the value of the efforts made. The noble Lord, Lord Dearing, referred earlier to the work of my own university, the University of Hull, and I can confirm the tremendous work being done by that university. In response to the comments of the noble Baroness, Lady Blackstone, earlier, such work is carried out most effectively at departmental level, and I speak from experience.
For those reasons, the amendment moved by the Minister is extraordinarily important. It ensures a degree of equity and will go a long way to assuage many of the doubts held by universities. It will not in any way reduce the efforts made by universities to widen access but it will reduce the worries that otherwise would exist. I therefore welcome the Government's response to the discussion at Committee stage in tabling this amendment.
The other amendment that I think is essential is Amendment No. 52A, to which my noble friend Lord MacGregor has already spoken. The Office for Fair Access is being established to deal with what the Government see as a particular problem. The director, however, will join an ever-growing body of regulators, as my noble friend said. The new office needs to be seen in that context. Regulators are created in order to take decisions independent of government. Independence of government, however, does not mean that regulators are not accountable for their decisions.
My noble friend Lord MacGregor referred to the recent report of the Constitution Committee on regulators, to which the Minister referred earlier in our 605 deliberations. In that report, we drew attention to the extent to which regulators should be, and to some extent are, accountable to different bodies. These include the bodies that are subject to regulation. It is important that the decisions of regulators are open to the possibility of independent review. There should be some means of challenging decisions through an appeals procedure.
The value of an appeals procedure is generally accepted. That is clear from the evidence presented to the committee. Sir Christopher Bellamy, chairman of the Competition Appeal Tribunal, drew attention to the value of an appeals procedure in improving the quality of decision making and in improving confidence in the process as a whole. The case for having an appeals procedure is compelling; the problem is with the appeals mechanisms that exist.
The decisions of regulators are subject to judicial review. The problem with that, as my noble friend said, is that the scope for review is narrow. Unless regulators have acted ultra vires or irrationally, or against the principles of administrative law, their decisions are not open to challenge. Judicial review is expensive and time consuming, and delay can cause major problems. Many regulated bodies are therefore reluctant to go down that path.
There is no right of appeal on the merits of the case unless Parliament has specifically provided for it. Parliament, however, has variously provided for it. It has not done so in a vacuum. Legislation has been influenced by Article 6 of the European Convention and by developments in the Court of First Instance in Luxembourg, which hears appeals from the European Commission and which has adopted procedures closer to appeals on the merits or a rehearing than just judicial review.
The Competition Act 1998 provides for the OFT and the sector-specific regulators in their own areas to be subject to appeal broadly on the merits of the case. The Communications Act 2003 incorporates a directive allowing for appeals to an independent tribunal and appeals on the merits of the case. The Act, as the report of the Constitution Committee notes, sets a generic precedent. My noble friend has outlined the other legislation under consideration, which extends the scope for an independent appeals mechanism. The Constitution Committee considers that there should be greater coherence and that we should move towards appeals based on the merits of the case. It is important that such appeals do not emulate judicial review in terms of time and cost. We favour fast-track procedures; we also recognise that there needs to be some mechanism to prevent vexatious appeals.
I therefore support the amendment moved by my noble friend. It provides for appeals on the merits of the case and builds in an important and reasonable time constraint. It may be necessary for some tweaking to sift out appeals which are vexatious and designed simply to frustrate the process. However, as my noble friend said, in any case we are not likely to be talking about a large number of appeals.
606 The case for appeals on the merits of the case is powerful on grounds of equity. It is also something that is likely to become more pervasive, not least because of Article 6 of the European Convention. The Constitution Committee recommends that we should provide for such an appeals mechanism. I hope, therefore, that in the light of the committee's report the amendment will receive a positive response from the Minister.
§ Baroness Carnegy of Lour
My Lords, looking back to our debate on Clause 31 regarding the contents of the plan for Wales and as the Bill now stands, I should have thought that a means of appeal was absolutely essential. I support Amendment No. 52A on those grounds alone.
§ 9.30 p.m.
§ Baroness Warwick of Undercliffe
My Lords, I found the interventions of the noble Lords, Lord MacGregor and Lord Norton, extremely impressive and I shall look forward to reading the detail. I very much supported these two amendments in Committee and I would like to do so again. The amendment tabled by the Minister clarifying that an institution will not be punished if an access agreement agreed with OFFA has no impact on the student body will certainly reassure universities. As the noble Lord, Lord Renfrew, has reminded us in our debates, there are many factors that make up the student body; for example, prior attainment, performance at school or the performance of schools themselves. Some of these are beyond the power of universities to influence, so this amendment is very welcome.
The amendment of the noble Lord, Lord Sutherland, also has my support. Although I hope that institutions and OFFA will be able to resolve their differences through negotiation, it is always possible that this route will fail. An independent appeal mechanism 'would therefore be a valuable addition to the system. We must ensure that such a mechanism would be cheaper and quicker for institutions than the current proposal of judicial review. If this can be assured, I hope that we will see this amendment on the face of the Bill.
§ Lord Forsyth of Drumlean
My Lords, I thank the Minister for Amendment No. 52. At an earlier stage, the noble Lord, Lord Butler, made a very persuasive case for it. I shall not reiterate the arguments: there is no point in arguing for something that we now have. I thank the Minister for that.
On Amendment No. 52A, my noble friend Lord MacGregor has given several examples. In the discussions that I have had with the Minister, she has asked me to point to a possible mechanism. Many have been mentioned. I do not know what she is going to say tonight in response but, in the friendliest possible way, I say to her that the Bill is not going to reach the statute book without this matter coming up again and again. There is clearly strong feeling on the matter. But it is not beyond the wit of the Civil Service, as we were reminded, 607 to be the servants of Ministers and to be flexible and ingenious in finding a solution to difficult problems. With such a good Minister, I am sure that between them they can resolve this and we can stop endlessly discussing these issues and can reach a resolution.
§ Baroness Ashton of Upholland
My Lords, I say to the noble Lord, Lord Butler, that there is a power in the Bill at Clause 28(3) that would enable the Assembly to replicate this clause for Wales in regulations and to designate the relevant authority. I shall have discussions with my colleagues in Wales and formally respond to the noble Lord on the point that he raised about Wales before Third Reading.
I congratulate and thank the noble Lord, Lord Sutherland—who I am sure we all wish a speedy recovery from his operation—and the noble Lords, Lord MacGregor and Lord Norton, for the work that they have put in to bring forward this amendment and for taking the time and trouble to have a discussion with me last week, which I found extremely valuable. I think that the noble Lord, Lord Norton, said that he is now able to vote for OFFA and I am very pleased. We will see when the matter returns.
As noble Lords will know, when we discussed an earlier amendment I expressed concern about the membership of appeal panels and the limiting of access to the courts. The amendment now before us has been changed to avoid those problems and I appreciate the creative thinking that has gone into that. As the noble Lord, Lord MacGregor, said, in Committee he referred to the report of the Select Committee on the Constitution chaired by the noble Lord, Lord Norton, and in particular to Chapter 11 on improving appeal mechanisms. I have now studied that and noted its concerns as both noble Lords have indicated that regulatory decisions should be subject to proper review and that judicial review has sometimes proved expensive and time-consuming.
We propose that the discretion whether to approve an access plan should lie with the director but I accept that it should be possible for some independent person or panel to invite the director to think again. I would find it more difficult if an appeal panel and not the director decided the terms on which an access plan would be approved. That would simply substitute the discretion of the director for the appeal panel. From my discussions with the noble Lords, I think that it is possible for us to propose a solution that meets all our concerns.
The House will not be surprised that I cannot accept the amendment as it stands. There are a number of matters about which I am concerned. However, I undertake to discuss this matter further with the noble Lords concerned and to return at Third Reading with a proposed way forward. On that understanding, I hope noble Lords will not press their amendment.
§ On Question, amendment agreed to.608
§ Lord MacGregor of Pulham Market had given notice of his intention to move Amendment No. 52A:
§ After Clause 35, insert the following new clause—