Higher Education Bill

HL Deb 14 June 2004 vol 662 cc542-78

5.21 p.m.

Further consideration of amendments on Report resumed.

Schedule 5 [The Director of Fair Access to Higher Education: supplementary provisions]:

Lord Rix moved Amendment No. 26:

Page 31, line 29, at end insert—

"( ) The Director shall report on the equity and effectiveness of the schemes of financial assistance provided by institutions under section 31(4)(b), and the Director may make recommendations on a national scheme of financial assistance."

The noble Lord said: My Lords, Amendment No. 26 is a probing amendment affecting Schedule 5 to the Bill. Unfortunately the Minister is not in her place, but I am sure that she is well aware of all that I shall say—and here she comes. At the risk of some repetition I again declare my non-pecuniary interest as chancellor of the University of East London, as I return to the subject of the Government's proposals for bursary schemes.

"Oh, no", I can hear some of your Lordships sighing, "he's playing his one-string fiddle yet again". Well, so I am, because the last line of my amendment calls on the Director of Fair Access to make recommendations on a national scheme of financial assistance for students. "Why harp on the subject?" I sense the Minister thinking—she is now in her place. I have now added a harp to my fiddle. Those of us who are cautious about the Government's plans believe that a Bill designed to produce variable fees will end up producing variable bursaries. Universities which have relatively few poor students will end up either paying out significantly more than the £300 minimum bursary to their students or paying bursaries to students who would not qualify for a bursary in other universities.

We fear a situation where, say, two hypothetical twins, in identical financial situations, go to study in different universities and receive markedly different bursaries. A further education college offering degree programmes from a number of different universities could have to administer different bursary arrangements from all its different universities. As an extension of my hypothesis, that could lead to two identical twins, in identical financial circumstances, studying at the same institution, but again receiving markedly different bursaries.

However, this is where I cease playing my out of tune one string fiddle and battered old harp and bring my string quartet to the party. My amendment is not solely about a national bursary scheme that some have suggested could be a voluntary coalition, although I hesitate to use that term, but is about the equity and effectiveness of financial assistance to students right across the board. Furthermore, it places the responsibility firmly on the shoulders of the Director of Fair Access to live up to his title and ensure that the Secretary of State has a full and comprehensive report in front of him on an annual basis. That report should detail not only how the director has performed his functions during the previous year, but how all the varied and various grants and loans which are intended to ease the burden on struggling students are working out and how, in turn, they are affecting the universities themselves. The Secretary of State will then be able to act effectively and speedily to correct any imperfections upon which, quite rightly, the director has reported.

On the other hand, the director could also report that the Government's schemes of financial support for students were a raging success, with the universities full to overflowing, generating wider participation—and everything in the quadrangle would be lovely. I should then be likened to Cassandra, with my prophecies never being believed. That is the beauty of my amendment. If I am wrong, no harm can be done by it; each year the Director of Fair Access would write his or her report and devote a couple of paragraphs saying, in effect, that barmy old octogenarian Lord Rix was barking up the wrong tree yet again. However, if those of us who are concerned are correct, Parliament would receive notice of that in the quickest possible time and could then put matters right.

I trust that the Minister will not yet consider me a barmy old octogenarian and will give due and sympathetic consideration to my amendment. I beg to move.

Baroness Carnegy of Lour

My Lords, the only problem about the amendment relates to the recommendation for a national scheme. I have a letter from the vice-chancellor of Exeter University, which other noble Lords may have received, pointing out that he felt that it was extremely important that bursaries should be tailored by universities themselves to their needs and their circumstances. A national scheme could not allow for that.

Lord Rix

My Lords, I wonder whether I may respond to that question?

Noble Lords

No.

Baroness Sharp of Guildford

My Lords, the noble Lord, Lord Rix, has produced a rather good solution to this problem. There is a basic inequity in that those universities that have relatively few students from lower income groups will have plenty of money to disburse in bursaries, whereas those such as the University of East London, of which the noble Lord is chancellor, or London South Bank University, will have a major problem, because 60 to 70 per cent of their students come from low income families, and therefore bursaries will hang heavily around those universities' necks.

We have had much debate on this matter, both at Second Reading and in Committee, and the noble Baroness, Lady Blackstone, who is not in her place, has been greatly concerned. The noble Lord, Lord Rix, is, as I understand it, parrying the issue for the moment. He wishes to place it firmly on the plate of the Director for Fair Access to see how well the bursary schemes will be run by the separate institutions—which answers the question posed by the noble Baroness, Lady Carnegy. But if, after two or three years, the schemes turn out to be inequitable, then some other scheme might be proposed by the Director of Fair Access. The amendment seems to be a good solution to this problem and I congratulate and support the noble Lord, Lord Rix.

Baroness Ashton of Upholland

My Lords, I apologise to the noble Lord, Lord Rix, that I was not in my place when he began, although he will not mind me saying that I had the benefit of reading what he was going to say earlier today, when we met. So I understand his argument and "a barmy old octogenarian" is the last phrase that I would use to describe the noble Lord—far from it.

We had an interesting debate in Committee and I understand the concerns raised by the noble Lord. As the noble Baroness, Lady Sharp, has said, the amendment would not itself bring in a national bursary scheme. It would place a duty on the director to report on the equity and effectiveness of bursary schemes provided by institutions and would empower him to make recommendations about a national scheme.

I assure the noble Lord and your Lordships' House that there is no need to legislate to allow this to happen. The Secretary of State's letter of guidance to the director asks that his annual report should contain a brief survey of access agreements, the methods that institutions are using to improve outreach and typical practice on bursaries and financial support.

There is also the independent three-year review, which my right honourable friend the Secretary of State described in his statement of 26 January. That made clear that the director would also be involved in the review. Bursaries will be key to safeguarding access and therefore their impact across the piece will be a key feature of that three-year review.

The director should, and I am sure will, report on the effectiveness of bursary schemes both at individual institution level and nationally and make recommendations based on his analysis. These recommendations could include a recommendation about a national bursary scheme if that were where the analysis pointed. However, I do not agree that this needs to be enshrined in primary legislation; guidance is the place for it.

I hope that on that basis, the noble Lord will feel able to withdraw his amendment.

5.30 p.m.

Lord Rix

My Lords, I am delighted with the Minister's response from the Dispatch Box and I thank her and her department for it.

I am sure the vice-chancellors whom I know—they have doubts about whether the scheme is as effective as the national bursary scheme—will also be delighted by the response. The fact that the scheme can be examined and decided on in the future is a major step forward and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Perry of Southwark moved Amendment No. 27:

Page 31, line 36, at end insert—

"( ) The Director shall take account of views expressed in Parliament in response to his report under this paragraph."

The noble Baroness said: My Lords, I shall not detain the House. When I tabled a similar amendment in Committee, the Minister replied that there would definitely be parliamentary scrutiny. I would like her merely to repeat that so that it can be on the record. I beg to move.

Baroness Ashton of Upholland

My Lords, I am grateful to the noble Baroness, Lady Perry, for raising the matter. As I said in Committee, I have no doubt that Parliament will take a great interest in the director's work. His annual report will be laid before Parliament and Parliament, through the relevant Select Committee, may decide to scrutinise it further.

We have previously discussed Parliament and one voice. Unfortunately, the amendment does not alter the problem I indicated in Committee. However, I recognise the noble Baroness's concern to ensure that Parliament will scrutinise the report. I discussed that with the chairman of the Select Committee, who said he would be keen to ensure that his committee takes a keen interest in these reports. Knowing Mr Barry Sheerman, I am sure that will be the case.

I hope that on the basis of that reassurance, the noble Baroness will feel able to withdraw her amendment.

Baroness Perry of Southwark

My Lords, I thank the Minister for that reply and I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 [General duties of relevant authority]:

Baroness Sharp of Guildford moved Amendment No. 28:

Page 14, line 11, after "to" insert "full-time or part-time"

The noble Baroness said: My Lords, I shall speak also to Amendment No. 36. There has been much discussion in our debates about part-timers. The core issue is that the Bill makes no provision for them and is concerned wholly and entirely with the 60 per cent of students who sign on as full-time students.

Many of us in this Chamber who have taken up the interests of part-timers are concerned on a number of scores. First, we are concerned about equity. We have often pointed out that the fees for part-timers have been unregulated for some time. However, that does not take away from the fact that part-timers have for a long time been badly treated.

We accept that the Government have already done more for part-time students than previous governments, but they are still much less well treated than full-time students. Furthermore—and this is the central issue today—the Bill widens the gap rather than helps to fill it. Under the Bill, full-time students will he given facilities which enable them, at generous rates, to repay fees after graduation on the basis of loans with zero-real interest rates. No such facilities are being offered to part-time students who will still have to pay their fees up-front.

In addition, the Government, to their credit, are re-introducing maintenance grants for full-time students based on their parents' income—or, for mature students, based on household income. While they have increased the grant available to part-time students to £575 a year, and made a one-off £250 grant available towards the cost of books and travel, for which I am grateful, the means-test for part-time students is much tougher than for full-time students. Pro rata, the grant is on a much lower scale than for the equivalent full-time student. On the ground, therefore, of straight equity, part-time students are getting a very raw deal.

My second concern is that the Government are ignoring the way the world is going on part-time students. Again, this picks up on debates we had previously in the Chamber. In these days of mass higher education, widening participation, life-long learning and portfolio careers, we are already seeing an increase in the number of people seeking to improve their skills by studying part-time. And that has been growing and is likely to continue to grow.

In particular, we should recognise that widening participation is likely to pull in many who, given the choice, would prefer to earn and learn at the same time, rather than to run up vast debts on living costs, and to pay for that from their current earnings while devoting evenings and weekends—and, if they are lucky, time off from work—to studying. This is indeed the agenda of the vocational foundation degree, seen by the Government as the main instrument for expanding numbers in higher education. It is therefore fundamentally wrong that this relatively rare Bill on higher education—we will not see another for two or three years—makes no mention of part-time students. Like the White Paper, it ignores part-time students. It is absurd that the Government should be making it harder, not easier, for students to pursue part-time courses and be skewing the stakes yet once more in favour of the full-time 18 to 21 year-olds.

Thirdly, the Government are confronted by a real dilemma. The package they have put together to finance higher education—that is, fees and maintenance grants for low-income full-timers—is expensive. We have pointed out many a time how expensive the package is and how they will ultimately spend more than they are pulling in in fees. However, time and again they tell us that it is the only way in which they can bring in more money for higher education. We have a little dispute about that, but I will accept it for the moment. It is an expensive package.

In the process, the Government have exhausted their credit with the Chancellor of the Exchequer. The cost of providing for large numbers of part-time students are substantial and as yet unknown. They are unknown because remarkably little research has been undertaken into who the part-time students are and whether they need or would take up extra help if it were available. We have been told that HEFCE has put in hand a survey and that we must wait three years for its completion before anything can be done about part-timers.

That is unacceptable. I have tabled the amendment to try to help the Government in their dilemma. Our proposal remains firm to the principle that the Bill should provide for part-timers. Amendment No. 28 seeks to add powers to the Director of Fair Access so that in Clause 30(1)(a) not only must he, promote and safeguard fair access to higher education", but it will be his duty to, promote and safeguard fair access to full-time or part-time higher education".

Likewise, we are proposing to add the words "full-time or part-time" to paragraph (b) of Clause 31(2) so that it reads, the promotion of equality of opportunity in connection with access to full-time or part-time higher education". In other words, both the director of OFFA and the plans relating to access which the higher education institutions must draw up need to take account of access to part-time higher education. That says nothing about spending money now. The Office for Fair Access will not come into effect for another two years. Only in two years' time—in 2006—shall we begin to see fees introduced. We are saying that during 2007—the director will have a year in which to start work—he will have to consider the issue of part-time students, along with full-time students, when the plans are presented to him, and he will have to say to the universities, "What are you doing about part-time students?".

I recognise that ultimately the question is: is there any money? It will be for HEFCE to answer that question, but I can say only that that will be another comprehensive spending review down the road. Let us hope that we can see some more money for part-time students in the next comprehensive spending review. However, at least this amendment would put the issue of part-timers on to the face of the Bill and, as with the previous amendment pursued by the noble Lord, Lord Rix, it would give the director a responsibility to remind the Government, time and again, that they must do something about it. I beg to move.

Baroness Lockwood

My Lords, I have tabled two amendments on this subject. The first—Amendment No. 54—is an amendment to Clause 38, which concerns the interpretation of Part 3, and it complements the amendments in the name of the noble Baroness, Lady Sharp; in other words, it would bring the whole range of part-time education within the ambit of the Bill. As the noble Baroness said, it would have the value of ensuring that part-time education was one of the responsibilities of the director of OFFA, and therefore it could, as it has in the past, form part of universities' programmes to widen access.

My second amendment—Amendment No. 55—differs slightly from that. It would not bring part-time education within the ambit of OFFA but it would provide the same support facilities for part-time students as are available for full-time students. All institutions which have part-time students would benefit from both amendments, but the two institutions which would benefit most from my second amendment are Birkbeck College, which is part of London University, and the Open University.

As has already been said, those two institutions are seriously and adversely affected by the Bill because, whereas other universities will have an opportunity to increase their funding automatically through their access programmes being accepted by the director of OFFA, Birkbeck College and the Open University are not covered in that way. They feel that it would be disastrous for them to increase their fees pro rata without some assistance either to the institutions or to the students so that, if the fees were increased, the students would have some financial support.

The amendment which relates to Birkbeck and the Open University would ensure that grants and loans for part-time student courses were brought, pro rata, within the full ambit of the student financial support regime in the same way as financial support is available for full-time courses. That would allow part-time students with an income of less than £15,000 per annum to receive a loan to pay their fees, and that would be repayable only when their income exceeded £15,000 per annum at the end of the course.

5.45 p.m.

At a previous stage of the Bill, we discussed to some extent the nature of part-time students. It was pointed out that perhaps some of the wealthier students were studying part-time at some institutions. The amendment would ensure that students in real financial need had the same support as full-time students. Taking Birkbeck as an example, it would make a difference of £5 million to its income if the college were able to charge the full £3,000 fee. But Birkbeck feels that if it does not receive any support, the market will not stand it increasing its fees to the level of £3,000. At present, the college receives in the region of £5 million from fees. If it increased the fees, its income in 2006 would be £9.4 million, and that would make a tremendous difference to what Birkbeck could achieve.

In previous discussions, the Minister said that the assumption is that the market will not stand part-time fees being raised. But we have no evidence to substantiate that. Have any of the institutions carried out research on the matter? I have to say that Birkbeck College has not carried out any such research, but its assumption is backed up by the assumption of my own university, 25 per cent of whose students are part-time, and it, too, is of the opinion that its fee is fixed at a rate that the market will currently support.

Nevertheless, Birkbeck quotes the Open University, which has carried out a specialised market analysis through an organisation call Planning Business, using a methodology called the Van Westendorp Price Sensitivity Measure, which measures the percentage change in the number of students. It states that raising the fee by 1 per cent would bring about an enormous decrease in student numbers. A £3,000 a year increase would mean that the university would retain about 10 per cent of its current number of students. That would make an enormous difference to the Open University and to Birkbeck College. Neither organisation would be a viable institution if it was to meet with such a drastic reduction in student numbers and consequent loss of income from student fees. So, it is a crucial issue which needs to be addressed.

The Government, through my two amendments, have a choice. They can bring the whole of part-time education within the full ambit of the Bill or they can isolate the financial support for students by providing this additional support for part-time students. There is a price to this. The noble Baroness, Lady Sharp, mentioned that it would appear that there is no more money in the government coffers to support part-time students in this way. If HEFCE did decide to do this it would be at the expense of other universities and would be taken from the support they are being given. If that is so and the Minister has no solution to the problems, I support what was said by the noble Baroness, Lady Sharp; that is, that we must have a fundamental review of the entire part-time system very soon. We cannot wait for the full review, which HEFCE is undertaking by 2006, to make a difference to the position not only of these two institutions but of all universities which have a substantial number of part-time students. We want immediate action.

I would ask the Minister if she could at least commit the Government to provide for a review of the whole position, financial and otherwise, of part-time students to take place this year, to be completed by the end of the year and for a report to be presented early in 2005. Unless we can do something with that amount of urgency and along those lines, the whole position of part-time students in all our higher education institutions is under threat.

Baroness Carnegy of Lour

My Lords, very briefly, the noble Baroness said that the Open University has carried out recent research. To my knowledge, from my involvement over a long time with the university, it has put an enormous amount of money into market research. I have heard it said that it spends more on market research than all the rest of the university sector put together. Because of that, Open University courses are very closely tailored to its market. Now the Bill alters the market totally. As a result, the Open University must either receive more money from the Government or put up its fees to match what is required in the Bill.

As the noble Baroness said, if it does that, it will have to multiply by three its average undergraduate fee and will lose nine-tenths of its undergraduate population. That would be lethal. The Government are threatening the very life of the university they created, which is shocking. I hope that the noble Baroness will do something about this. Just to say that the funding council should top slice its funding to other universities in order to help the Open University and Birkbeck, which is probably in very much the same position, is no good. Universities UK oppose that and I agree. Something quite different has to be done, and promptly. The Open University is now at stake. I hope that the Minister realises that.

Baroness Howe of Idlicote

My Lords, I support all four of the amendments because I feel that we really do have to return to this issue of discrimination against part-time students and part-time higher education institutions. I will, perhaps, draw rather more on the Open University. The case has been made as far as it is concerned, but it would have been even better if made by the Chancellor of the OU, my noble friend Lady Boothroyd. It was clear from her outstanding contribution at Second Reading and afterwards how she feels about it. However, I am afraid that you will have to hear from only a former vice-chairman of the OU—I declare an interest there—which is very much the second eleven.

I have two specific points to make: first, to stress a real unfairness in the treatment of part-time higher education students and institutions, and secondly to emphasise the distorting effect of the Bill on the whole higher education system and on student choice. As the noble Baroness, Lady Sharp, said, the central mischief is that the whole of the Bill is directed exclusively at the full-time sector. Those institutions which teach part-time students will receive nothing for their labours not one penny. That is particularly the case, as I said, with the Open University, which is and has been for so long the jewel in the crown of part-time higher education. Unlike every other university except Birkbeck, the OU has no full-time provision to make good this particular blow.

To understand the problems facing the Open University we need to turn to the students. From the beginning of the OU, it has been the route to a degree for very many from poor backgrounds with few if any qualifications. They could never have made their way into conventional universities. Many students too are late entries—no doubt we shall turn to that a little later—and have come to realise the benefit to be gained from a degree later in life.

By now I think that your Lordships are clear that all OU students pay fees and have done so from the foundation of the OU; which, as we have heard, are carefully set by the OU at the maximum which students are likely to be able to afford. So, why should they now be discriminated against? It is argued that as a considerable number of part-time students are in jobs, they do not need the same support and access to loans that undergraduates straight from school are to receive under the Bill. Where is the sense in that? Certainly, very few of those OU students who are in employment are earning high salaries. More than half have a personal income of less than £25,000 and only just over one in 10 have their fees paid by an employer.

The argument that the OU could match the full-time sector by tripling its fees over three years is manifestly absurd. It becomes doubly absurd when the Bill is framed in such a way as to exclude these students from additional hardship grants and from the very real privileges of deferred fee payments. If the OU was inside instead of outside the world as redefined by the Bill it would benefit by £48 million in the first three years of top-up fees. Why on earth not? It really is counter intuitive for the Government to make it more difficult and comparatively more expensive for those who wish to or can only study part-time. It is not good enough to say that it can all be considered again when the new system has settled down—a point made by other noble Lords.

Government money, as we know, is always a scarce commodity. There has to be a short-term response, which will enable the OU to invest in growth and pay its staff just like the rest of the sector. That will require the Government to make a direct intervention, and frankly, they have to do so now.

Like others, I call upon the Minister today to give such an undertaking. Unless that is done and both lots of students are treated from the beginning on the same pro-rata basis, the part-time student and part-time world class institutions such as the OU are unlikely ever to catch up. If the Government fail to rectify the glaring anomaly in the Bill, they threaten to hamstring the one institution capable of delivering the outcomes to which they are so publicly committed. I hope the Government can, even at this late stage, be persuaded to think again.

6 p.m.

Baroness Warwick of Undercliffe

My Lords, I support the spirit in which Amendment No. 28 has been moved, although I believe it is unnecessary. OFFA has a remit over applications, not admissions, so it deals with potential rather than actual students. It will work generally to widen participation. With that approach it is as likely that potential students will be encouraged to apply for part-time as for full-time courses.

As your Lordships know, my aim during the passage of the Bill has been to ensure that OFFA has no remit over the composition of the student body. That is why I tabled amendments in Committee ensuring that admissions were outside OFFA's remit. The amendment tabled by the noble Lord, Lord Butler, in Committee and brought back at this stage with improvements by the Government will also clarify that OFFA cannot punish an institution if an agreed plan does not alter the composition of the student body.

If OFFA's role is only to encourage applications from under-represented groups, and it has no powers over which courses they actually take, I do not think there would be any need to differentiate between full and part-time students. It does not need to do so and I believe therefore that the amendment is unnecessary.

Having said that, institutions have always been free under the proposed legislation to include part-time students in their plans if they wish, and I think many will. But I do not believe that OFFA should be able to require them to do so. That would be a step too far, which I hope the Government will resist.

However, I want to comment briefly on the amendment of my noble friend Lady Lockwood. A very wide consensus has been expressed, not only in this debate but in previous debates in the House, that there must be a movement towards greater equity of treatment for part-time students. The real question is how to achieve it.

The part-time student body, particularly among mature students, is diverse. Although there is evidence available for individual institutions, there is no sector-wide picture of the circumstances of part-time students. At present, there is not even an agreed consistent definition that is applied to part-time students. We therefore—and I echo the views of noble Lords who have also made this point—need a serious study, which goes beyond the problems, clear though they are, that face the OU and Birkbeck on the implications of the Higher Education Bill for part-time students and their institutions, including income yield to the latter. The effects of the Higher Education Bill upon part-time course provision and upon those institutions which have been particularly successful in providing more flexible forms of study really must be examined.

I have argued, therefore, with others that we need evidence to ensure that we target the available resources accurately, so that the really poor part-time students are supported in the right way. I have argued that that evidence does not exist at present. I welcome the Government's decision to include part-time students in the student income and expenditure survey. In recognising the wide consensus on this issue and, indeed, the need for institutions to be able to advise students well before 2006 on what fees they will be charged, I hope that my noble friend will he able to tell us what speedy action can be taken.

My final point is that this will cost money. It is clear that little is available. My fear is that if the amendment is passed, the Government will look to pay for it, as other noble Lords have mentioned, out of funding already earmarked for higher education. We know that the spending review settlement for the next three years averages only 4.4 per cent. That is not enough to meet the needs already identified in the spending review. Many will argue, and have argued, that it is up to the Government to find more money. I fear that that is naïve. I do not feel able to support the amendment without an assurance that new money will be found to make it a reality and that it will not be found from existing resources.

Lord Graham of Edmonton

My Lords, it is often said that Ministers are well served if they have eyes in the back of their head. If this Minister had eyes in the back of her head she would see that I was wearing the tie of the Open University. Perhaps I am not its only member in this House but I am a very proud member.

The Minister will recall two or three years ago when we had the great privilege of welcoming the Queen's Speech that I wore a special tie. It was the tie of the Royal Marines. In view of the past few days my job tonight is to strengthen ties between the Government and the part-time sector.

All is not lost. We are almost at the last knockings. I make no threat to the Government about support or otherwise for the amendment, except to say that the Minister could earn credit with a great many people if—despite the words at the top of her brief, which might say "resist"—she were to say, "I am prepared to take this back and talk to my colleagues".

The noble Baroness, Lady Boothroyd, has been mentioned. She has been a great stalwart and has met Ministers and argued the case. I really cannot understand why the Government are so obdurate in this matter. This nexus in the Bill is—in the parlance—part of the doctrine of unexpected consequences. I do not think that the Government or their advisers fully saw the implications of what they were doing.

I certainly applaud everything the Bill does in respect of what one might call the "orthodox university sector". I appreciate that the Government—the first government for many years—are attempting to tackle it. I understand the situation of youngsters and their parents who are faced possibly with an impost that is not welcome.

I started my degree in 1970 in the second year of the Open University. I would think that I was typical of those who left school at the age of 14 and always knew they had a degree in them but never had the chance to get it out until the Open University came along. Harold Wilson said that if he were to be remembered for anything, it should be for the Open University. Also involved were Jennie Lee, who served in this House, and Ted Short, the education Minister. I do not make a party point, except to say that of all the political parties, the Labour Party should have more pride in what the Open University stands for.

Crowther started the thinking about this and defined what the Open University was. He said that it was open to students as well as to many others. On its range of people, in my classes in Enfield there was an 85 year-old lady and uneducated people. We all were inspired by the feeling that we were being treated by the government and the people who taught us that we were worthy of nurturing—and we were nurtured.

I had the great opportunity to be the first Member of Parliament to be given a degree while he was a Member of Parliament. I am still the only Member of Parliament to get a degree while he was a Member of Parliament. Many have come into the House with a degree; many have left and got a degree. So, we are thinking of a special institution in education, but to my dear friend the Minister we are thinking of a special institution in the annals of the Labour Party and what it did.

We can ill afford to lose friends. I say that in a kindly way. We need all the friends we can get. Because of the Open University there are millions of people who are the friends of the Government and of government in general. There are millions of other potential students who I think should be taken care of.

Much of what I want to say has been said very well by others. I take my advice from the Open University, just as Ministers take their advice from civil servants. I am told by the Open University that it cannot raise its fees to £3,000. Even with the proposed part-time grant of £575 per annum such study would not be affordable.

I was very impressed when the Open University said: Our market research shows that, at the price of £1,500 per part-time course, we would retain less than 10% of our current students". In other words, our undergraduate student population in England would shrink from 140,000 to 14,000. Can that be true? I do not know. The Open University has said it, so it will have to prove it. I know from conversations that Ministers doubt whether that could happen.

Let us suppose that it were true, and that the legislation had a devastating impact on the lifeblood of the Open University. It would be terrible. The Minister and her colleagues should take the opportunity to think again. Over half of Open University students are unemployed or from low or semi-skilled occupational groups—you cannot say that about the orthodox universities. The Minister has a very important job to do.

I attended a meeting at which the noble Lord, Lord Dearing, in discussing the matter, raised possible solutions. He acknowledged that the Dearing report, a very valuable publication that was the springboard for many of the recent changes to higher education, had not been able to give adequate consideration to the part-time sector. He suggested that his report had perhaps misled government into underestimating the significance of the sector and misunderstanding its needs. The noble Lord then came up with a solution so simple and inexpensive that I cannot understand why the Government are not prepared to accept it to get them off the hook. His "first-aid" solution was to acknowledge that the position of part-time students would be looked at in the review to be undertaken by HEFCE. In the mean time, he said, we ought to move towards assisting them.

What would it cost? I am told that in 2006, the gap year during which there would be trouble, it would cost £20 million. If that is the cost of the Government's saying to the Open University and the part-time education sector, "We are prepared to recognise your problems; we are prepared to give you that", that is all right. If the arrangement were to continue, after three years the sum would be £58 million per annum, of which £48 million would accrue to the Open University.

When we talk about the millions and billions involved, we are talking about how the Government can get off the hook and recognise the sagacity and wisdom of the argument. Of the 43 noble Lords who spoke at Second Reading, 19 raised the issue of part-time students. The last thing that I want to do is say that the Government have done nothing to assist part-time students; on the contrary, they have done a range of things. No doubt the Minister will be well briefed to tell us what the Government have done. However, those who manage the Open University tell me and others that that little thing remains to be done.

I hope that the Minister has been impressed by the width and the all-party nature of attempts to persuade her to change her mind. If she takes away the amendments tonight, she will have an opportunity to return at Third Reading with a solution. But I fear that, if she presses on and resists the amendment, we will become involved in the game of ping-pong. The Bill will be sent to the other end; eventually it may be accepted. I ask this Minister as I ask others: why go through the purgatory of sticking your toes in at the first opportunity in the knowledge that eventually they will have to change their mind? This is a time when statesmanship is required; I look to my noble friend on the Front Bench to demonstrate it.

6.15 p.m.

Lord Sheldon

My Lords, I have much pleasure in following the speech of my noble friend Lord Graham, much of which I agreed with. I was astonished that the Bill contained nothing about part-time students. I thought that perhaps I had missed the relevant words. In a whole world of universities and further education, I was astonished that there was such a gap in this important area.

The noble Lord, Lord Barnett, who is absent because of a serious accident, received part-time evening education and training as an accountant. In my engineering days I took eight years of classes, studying for national certificates of one kind and another, which led to university degrees, all during the evening. The whole point of part-time education is that it involves learning while one works. Full-time education is an alternative to working; part-time education is a combination of the two. It allows one to use one's learning in a working environment. Sometimes that can be very helpful. I was able to design a tractional horse-powered electric motor, a matter of considerable technical expertise, because of the work that I did in my student days. That is the sort of thing that happens; one should give it maximum encouragement.

Technical colleges started with George Birkbeck, who helped to introduce the London Mechanics Institute, from which the three institutions that I had the privilege of attending followed: Stockport College; Burnley Mechanics Institute, which became Burnley College; and the Royal Technical College, Salford, where I got my external degree. All those developments followed on from the understanding that a gap existed for those unable to go to university, in the days when it was a great privilege to do so. Even today, many people have the enthusiasm and commitment to study or train in the evening. Their commitment is great; one does not give up one's evenings or one's days to do such work unless one is fully committed. We should not be placing such students at a disadvantage; there should be positive support for them. I find it astonishing that we have an education Bill that gives no support to such people.

There must be some understanding and appreciation of the role of part-time education; it must find its way into the Bill. There must be a means of giving such students fair access, and the institutions must be encouraged in their work for part-time students. They must not be under any disadvantage in giving whatever assistance they can to such people. I look forward to a substantial rethink by my noble friend on those important matters.

Baroness Seccombe

My Lords, I support the amendments tabled by the noble Baroness, Lady Sharp, to which my noble friend Lord Forsyth has added his name. I shall speak also to the rest of the amendments in the group.

This has been a well versed subject; it is a concern of noble Lords on all sides of the House. Amendments Nos. 28 and 36, in the name of the noble Baroness, Lady Sharp, aim to reverse the current situation in the Bill so that the contents of plans submitted to OFFA must include provisions for the promotion of equality of opportunity in connection with access to higher education for full-time and part-time students. That would enable the director not only to see the effects of the new system in a holistic manner, but also to encourage higher education institutes to manage their full-time and part-time students regarding widening access on the same basis.

The Minister assured the House: There is much that we have to offer the Open University in the passage of this Bill".—[Official Report, 19/4/04; col. 15.] It is astonishing that at this stage of the Bill we have not yet seen any sign of the wonderful offer that the Bill can make to such students. As I have said before, the Government cannot impose top-up fees on higher education institutes that cater for full-time students without giving special consideration to the treatment of part-time students.

The Government have suggested that institutions such as the Open University should raise their fees to stay apace of those charged by the rest of the higher education sector. However, it has been made clear that such steps, without the safety nets that the Government are putting in place for full-time students, would damage the ability to attract and retain the very students whom the Government argue they want to encourage. Not only that, but part-time, higher education institutions may also end up losing staff to the better-endowed institutions, resulting in a decline of part-time students as a whole. It is clear that the part-time student sector is being "let down by Labour" by its failure to address these issues in this one-sided Bill.

Lord Phillips of Sudbury

My Lords, I will briefly add my voice to those who have spoken, particularly for the Open University. I have an indirect interest, in that my wife got a first-class honours degree in English from the Open University while raising our family. I suspect that a great many women in particular are in that position. I do not want to say more than that it provides what I call passionate education. The contact that I had with the group that my wife was part of opened my eyes to the extraordinary commitment that late-life undergraduates bring to their studies, and with it the rich experience of their own lives. In the end, most of them contribute to the commonweal in a fulsome way that more than repays any financial provision that the state gives them through the Open University.

I will also make the obvious point that Open University degree courses reach the parts that the others, on the whole, do not reach. If the noble Baroness, Lady Carnegy of Lour, is even half right in what she said about the potential consequences of this Bill unless something is done to it, we should all take to the streets, because it would be vandalism, to use an overblown but justified word.

Lord Rix

My Lords, I spent more than a few moments yesterday morning in the boiling hot sunshine crouched over my word processor to make notes on Amendments Nos. 28, 36 and 55, because my name is attached to them. However, as a result of the impassioned speeches that I have heard from all around the House, I no longer intend to use those notes.

I had the honour to receive my first honorary degree from the Open University way back some 20 years ago. That was as a result of the co-operation that the Open University had with Mencap at the time. As I said in my Second Reading speech, the Open University was the first university, I think probably in the world, to give credence to people with learning disabilities and their families. As a result, three courses have emanated from the Open University over the years, and they will continue to do so in the future. My support for the Open University is totally and absolutely wholehearted. I support everything that was said by the noble Lord, Lord Graham, in his wonderful speech.

For some inexplicable reason, I find that I may well have added my name to Amendments Nos. 28, 36 and 55, but it seems to be missing from Amendment No. 54. I declare my interest in Amendment No. 54 as well, and I hope that the Minister will give us a satisfactory answer in a few moments.

The Lord Bishop of Portsmouth

My Lords, I apologise for not being in my place at the start of this short debate. I was fully aware of those who are involved in this group of amendments, and I shall be brief. We can all rehearse our own experiences, and rightly so. I was chaplain at Manchester University, which started life as Owen's College. Before it had its charter in 1880, it was a part-time place. On Sunday week, I shall be ordaining 14 priests, the largest number that we have had in the diocese for many years, if not ever, since its founding in 1927. Nearly all of them will have done a part-time course. As the noble Lord, Lord Phillips, said, the motivation is high.

These amendments will not only provide a signal—and legislation needs signals—but will ensure a proper provision for what I, and many others, regard as a growth area and as a fact of modern life. We have heard the eloquent speech made by the noble Lord, Lord Graham—I am sorry that I cannot wear a Marines tie, although I saw some of them beating the retreat in Caen at the D-Day celebrations recently. I fear that the Minister will tell us that we are doing this already, or that there are legal difficulties, or that there is not enough money. In anticipation of those three points, none of them will do. These amendments are important, and if we do not pass something like them, in years to come we will regret not having done so.

Baroness Blackstone

My Lords, if the great George Birkbeck could hear this debate up in Heaven—and he is in Heaven, I am sure that the right reverend Prelate will agree with me about that—he would be pretty pleased. I hope that when the Minister has spoken, he will also be pleased, and that we are going to see some movement from the Government on this important issue.

I was not here, unfortunately, when this debate took place in Committee. I will say a few words now in favour of part-time students and part-time places in our universities. It is undoubtedly the case that part-time students who, as George Birkbeck said in 1821, work by day and study by night, are among the most committed, most highly motivated and hardest-working of all of our students. They make huge sacrifices to study, and we ought to recognise that. We also ought to recognise the fantastic work that is done by those institutions that have for many years specialised in supporting part-time students The teachers in these institutions are immensely committed to helping, supporting and providing the extra pastoral care that sometimes must be given to mature students who come back to study, perhaps not having done any study since leaving school at the age of 16; some 10, 15 or even 20 years earlier.

Part-time students come cheap; they really do. They come cheap in the sense that they have not been eligible for maintenance support until very recently. I am sorry to be political, but I must dispute something that the noble Baroness, Lady Seccombe, just said, when she implied that this Government are failing part-time students. We will see whether that is true when we hear what the Minister says. However, previous Conservative governments have failed them far more than this Government, in that this Government have introduced a loan scheme for part-time students, so they are able to take out a loan of up to £500 for maintenance, which was never true before. I know that because I spent 10 years of my life pleading with Tory Secretaries of State to do more to support part-time students and part-time places in our universities.

Many noble Lords have spoken about the value of part-time higher education. It is important that we do not pass a Bill that neglects to recognise the existence of part-time, higher education, but also that we do not pass a Bill that unintentionally—and I am sure that it would be entirely unintentionally—could lead to a situation in which there is an inbuilt disincentive to higher education institutions to recruit part-time students. Universities undoubtedly cannot charge them £3,000 a year in fees, and therefore the facilities that they can provide for part-time students decline relative to those available for full-time students. Given the nature of part-time students and what we have said about them, that would not be desirable; indeed, it would be a tragedy.

We have before us two rather different kinds of amendments. We have the amendment proposed by the noble Baroness, Lady Sharp, suggesting that the regulator, OFFA, should be required in the Bill to consider part-time students. I support that, and I hope that my noble friend the Minister is able to as well. I do not think that she is in her place, but I am sad that I must disagree with my noble friend Lady Warwick, who thought that the amendment was unnecessary. Perhaps it is strictly unnecessary, in that of course in principle OFFA will be able to look at part-time as well as full-time places and consider applications for both, but it should be clearly stated that the regulator has a duty to consider both kinds of students. After all, part-time students make up 40 per cent of our student population, and it is an extremely effective way to widen participation, if institutions are to be encouraged to do more on part-time student numbers. So, I disagree with her on that.

6.30 p.m.

I support what my noble friend said about hoping that the Government would eventually be able to provide additional funding to support part-time student places. However, I do not agree with my noble friend that, were the Government to be unable to do so, all the money should be kept as it is. Were we to be in the undesirable position of having no extra funding, I would like to see some redistribution towards part-time places. There would be widespread agreement in the House, even if not in the sector. However, the sector consists of institutions that have more full-time students than part-time students overall. That does not mean to say that governments and people outside the sector, including your Lordships' House, should not take a different view. I hope that my noble friend the Minister will do so.

There are two possible routes to go down, with regard to what my noble friend Lady Lockwood said. The first is to provide additional support for part-time students, so that they can pay higher fees. The second is to provide additional support to higher education institutions, not just the OU and Birkbeck but all those that have large numbers of part-time places, so that they can continue to provide proper facilities for those most deserving of all students. The Government should take the second route, and I hope that we will hear from the Minister that the Government and the Higher Education Funding Council for England can do that. Even if we cannot produce an immediate solution because of the complexity of the issues, I hope that it will be possible to find a short-term interim solution to protect those places and protect the institutions that provide them.

I know that pledges were made in another place by my right honourable friend the Minister of State for Lifelong Learning, Further and Higher Education, in particular, I think to my honourable friend the Member for Milton Keynes North East, Brian White. In the light of that, I am extremely confident that my noble friend the Minister will come up with a response that will meet your Lordships' concerns.

Lord Dearing

My Lords, I know of no matter that, during debates on the Bill, has attracted more solid consensus than the need to do something for part-timers. We are a nation committed to the principle of lifelong learning, and we want all people to be able to benefit. I had better declare an interest: I was chairman of the University for Industry and am now its patron. That institution is dedicated to the cause of lifelong learning for everyone.

The noble Lord, Lord Phillips of Sudbury, referred to his wife's having done a part-time degree and having done very well. However, many other women, possibly of a similar age, do not live in such a well heeled environment. They need financial support to encourage them to persist with their courageous decision to go back into the world of learning after 10 or 20 years out of learning or work. They have high aspirations, and we must support them. I join all those who have spoken in asking the Government to take action.

There is a hole in the White Paper of January last year. We were all so transfixed by the issue of variable fees and what it involved—it was breaking new ground—that we forgot that, in concentrating on the full-time, we were creating a problem, a disparity of funding that would affect the OU, Birkbeck and other higher education institutions that have a high proportion of part-timers. There will not be the money to compete for staff, for example. There must be action.

The noble Lord, Lord Forsyth of Drumlean, teased me about the malleability of civil servants. I assure him that someone who has worked for Mr Benn and then switched to working for Sir Keith Joseph has a fairly malleable mind. Malleable or not, I would, if I were writing the Minister's brief, say, "You have got to do something, but, for goodness' sake, be careful, if you do not know what it will cost or where the money will come from". Perhaps, the noble Lord, Lord Burns, would give similar advice.

Lord Forsyth of Drumlean

My Lords, does the noble Lord think that it is conceivably possible that officials in the Department for Education and Skills could have forgotten about part-time students in such large numbers? Was it just that the Government did not want to face up to the financial consequences of dealing with the problem?

Lord Dearing

My Lords, as the noble Lord has perceived, I am a man of limited imagination. As one of limited imagination, I must confess that, when I gave a rather lengthy public commentary on the White Paper, I did not focus on the part-time issue.

There is a hole, and we need two things. We cannot wait long; we need some first aid. Before we get a long-term solution, the matter must be properly researched. We must know how much it will cost and how the money can best be spent. The Minister has already assured us that we do not need legislation to do something, so I hope that she will enlighten us about what the Government have in mind.

Baroness Ashton of Upholland

My Lords, it has been a long and interesting debate. Mindful, as ever, of your Lordships' desire to hear the detail from the Government and to finish Report stage this evening, I shall be as brief as I can. It is a delight to see my noble friend Lord Sheldon taking part in the debate. I am grateful to him. I shall resist the temptation to go through many of the things that I said in Committee.

This Government have done more than any other to support part-time students. To my noble friend Lady Blackstone, I say that we have introduced a grant from the autumn. To the noble Baroness, Lady Greengross, I say that there are no age limits on those grants. We have increased the funding to help part-time students from £18 million in 2003 to £37 million in 2004–05. We hope to more than double the number of students whom we can help. The Government have shown commitment to the matter.

I am conscious that my noble friend Lord Graham of Edmonton has told me to be statesmanlike; that my noble friend Lady Blackstone has invoked heaven in the debate; and that the noble Lord, Lord Phillips of Sudbury, is going to take to the streets. I recognise the pressure on me from different parts of your Lordships' House. Knowing Lady Phillips, I know that she would have got a first-class degree, whatever she did. She is an extremely able woman.

There are four amendments in three distinct categories. The first two—Amendments Nos. 28 and 36—are similar and relate to the role of the director and access plans in relation to part-time students. Amendment No. 54, tabled by my noble friend Lady Lockwood, is concerned with regulating part-time fees. Amendment No. 55 is about support for part-time students, and I shall start with it.

The question that I want to raise is about the rationale behind the amendment. We know that part-time higher education is a vibrant and growing market and that part-time numbers are rising faster than full-time numbers and have done so for several years. As the noble Lord, Lord Dearing, just said, it is critical that, whatever we do, we do it on the basis of evidence. There would have to be a substantial increase in public investment to achieve what Amendment No. 55 would require. That is not to say that we are ruling out changes. Noble Lords have made eloquent statements of the need to consider part-time students, but we need evidence in order to make the changes.

In the amendment is the assumption that part-time students want loans. We had a loan scheme for part-time students, and take-up was extremely low. That is why we have introduced grants from this autumn. We must think carefully about what we would be doing, if we made the amendment. We did some costings, and we found that it would cost about £0.75 billion. The amendment covers students on 50 per cent-plus courses. If the scheme were to be extended to students on any kind of part-time course, the costs would rise to about £1 billion. Those are big amounts of money. Before we take big, costly decisions, we must be sure that we do so on the basis of the correct evidence. So it is not that I do not think that those matters are important or that a case could not be made, but we do not have the evidence to assess the case.

The noble Baroness, Lady O'Neill, who is not in her place, said that we need to think about that group of students as not being all the same. There are many different categories of students who are studying part-time, which make it a rich and vibrant group. But we need to make sure that we have the evidence.

So what are we doing? Currently, we are running a survey of part-time students and their financial backgrounds. The contract for that has been awarded to the Open University and we are grateful for its work on the survey. Next year, we will get more information when part-time students are included in the income and expenditure survey, which will also assess their needs in the light of the new grant that they will be receiving by then. Again, we shall have a much greater evidence base.

We must then decide what we wish to do, which we would be doing on the basis—

Earl Russell

My Lords, I have every sympathy with the noble Baroness in her search for evidence. Perhaps I may ask her to include two things within it; namely, the possibility that for older people an interesting education may result in improvements and therefore saving in health and, for people of child-caring age, excess expansion reduces the space available for child care.

Baroness Ashton of Upholland

My Lords, I am not sure that I quite understand the noble Earl's second point. But—

Earl Russell

My Lords, the same room cannot be used for child care and lecturing at the same time. So if the college is jam-packed, there is nowhere to look after the children.

Baroness Ashton of Upholland

My Lords, the National Childcare Strategy is working precisely to support children and child care in lots of different locations. Of course, we supply support for people who have children, to enable them to take part in education. As I have already said, the question of age and grants available does not apply: the grants are available regardless of age.

It is critical that we get the information that we need and make the decisions based on that information. On that basis, I would ask that Amendment No. 55 be withdrawn.

As regards Amendment No. 54, institutions have always been free to determine the level at which to charge for part-time courses. That unregulated market is working well. We have no desire to interfere with it. If we were to regulate part-time fees, we would be imposing new restrictions on institutions where there have never been restrictions before. A cap might be imposed on fees that are less than some institutions currently charge and employers or students currently pay. That would have a dramatic effect on the income of those institutions: some might stop running the courses. Equally, if we set the cap higher, there might be an upward drift in fees charged. We do not believe that that is the right way to go or that we should regulate. I hope that my noble friend will not press her amendment.

I turn now to institutional funding and the review. Noble Lords have mostly talked about the Open University and Birkbeck, but I think that they are also interested in this issue in more general terms. We are very aware of the concerns that some institutions have expressed—particularly those with a high number of part-time students—about the funding for part-time students in the light of our proposals.

Last autumn, the Higher Education Funding Council for England consulted the sector about proposed changes to its teaching funding methodology. That consultation, and the responses to it, led to some changes to the way that the funding for part-time students will be calculated for the 2004–05 academic year. I understand that allocations have been announced. For the longer term, HEFCE has commenced a comprehensive review.

Following debates in your Lordships' House at Second Reading and in Committee, we have had further discussions with HEFCE regarding the scope of its review of the funding methodology. In particular, we have pressed it to ensure that the review is conducted and that proposals are developed as quickly as possible with full consultation with the sector. That consultation needs to take account of the position of those institutions with a strong interest in part-time issues. That does not refer simply to the Open University and Birkbeck, although, of course, they are very important players. We have also asked for an assurance that changes flowing from the review will be implemented at the earliest opportunity.

I am pleased to say that HEFCE has responded very positively and has confirmed that part-time issues, far from being an add-on to the review, will form an important and integral part of it. Its starting point will be to consider whether in the future it makes sense to continue the full-time/part-time distinction at all and how to develop a better approach that is consistent with more flexible learning.

HEFCE has also confirmed that its fundamental review, which is now under way, will involve extensive consultation with the sector on the issues that are to he addressed. Its expectation is that in summer 2005, it will be in a position to consult on the principles of the new system with a view to finalising proposals for a new model in early 2006, which would be before the introduction of variable fees. Those recommendations can then be implemented in a phased way as soon as the associated financial information systems can be developed.

Therefore, before variable fees are introduced, universities will know the funding regime and the broad implications for the sector. Of course, that does not address the very specific issue of the implications of variable fees for those institutions with predominantly part-time students. Here again, HEFCE proposes further consultation with the sector on the detail of what will be the transitional arrangements pending the introduction of the new funding method. It has explained that using its current funding formulas, if it did so happen that full-time tuition fees increased at a greater rate than part-time fees, there would be a natural rebalancing of government funds in favour of part-time courses. It has also agreed to consider the special cases that both institutions—the Open University and Birkbeck—have made regarding their funding, with a view to the HEFCE board coming to a decision in the autumn.

6.45 p.m.

Baroness Carnegy of Lour

My Lords, I am most grateful to the noble Baroness for giving way. In the consultation by the funding council, perhaps the Minister could ascertain and make sure that consultation is also done with the Scottish funding councils. The Open University exists in Scotland. In fact, it has a higher recruitment per head in Scotland than almost anywhere else in the country. Funding for students of the Open University in Scotland, which will be done through the Scottish funding councils, needs to match that.

I understand that, currently, a lot of consultation is going on in Scotland and that there is very little interest in the matter of part-time students. The Open University in Scotland exists as well.

Baroness Ashton of Upholland

My Lords, I recognise what the noble Baroness, Lady Carnegy, is saying. In looking across Open University funding, I believe that that would be the case. But I shall confirm that in writing to the noble Baroness with a copy placed in the Library.

I could talk a great deal about the Open University and Birkbeck, which would echo much of what has been said about them. We have discussed with HEFCE that it should look very carefully at the proposals that have been put forward. I have rather galloped through this, but I hope that as noble Lords look back on what I have said, they will see the timescales involved, which reflect some of the concerns that have been raised. In particular, HEFCE will look at those institutions very carefully. There is no disrespect to either institution if I do not go through a whole set of notes that I have. I hope that noble Lords will take that as read.

I turn now to Amendments Nos. 26 and 36.

Baroness Lockwood

My Lords, before my noble friend the Minister moves off this issue, can she clarify the timetable again? Will the review be finished in the summer of 2005 and that there will then be consultation with universities?

Baroness Ashton of Upholland

My Lords, there are three different timetables. First, HEFCE will reach a decision by the autumn in respect of the Open University and Birkbeck. Secondly, all the principles behind the reviews will be established by summer 2005. Therefore, institutions will know what is being proposed and will be able to make plans accordingly. The final part of the consultation will be completed with firm plans made by the early part of 2006, which is before variable fees are introduced. I can clarify that further, but I hope that that gives my noble friend what she needs. In a sense, that is the framework, together with the research that we have put in place, which will give us the evidence base. I hope that that is recognition of the fact that we take this issue extremely seriously.

Amendment No. 28 requires the director to promote and safeguard fair access to full-time and part-time higher education. Amendment No. 36 includes access to part-time higher education as a matter that regulations might require to be included in plans. While the Bill does not rule part-time study into plans, it does not rule it out. For example, within the Bill, it is possible for the Secretary of State to require the director to write a report that relates to part-time provision. Of course, we have also made it clear that institutions can include reference to part-time provision in their plans if they wish.

The draft guidance from the Secretary of State to the director points out that institutions could use additional income from courses for which they are charging higher fees to attract and support part-time students. So part-timers are not ruled out of access plans, but we wish to keep the details of an access plan for the institution to think about and make decisions on rather than prescribe too much from the centre.

I am not able to accept Amendment No. 36, but I think that I can offer something on Amendment No. 28. While I cannot accept it as drafted, I can accept the amendment in principle and bring back a government amendment at Third Reading. I have also reflected on a debate that we had earlier today, on Amendment No. 24. Noble Lords know that that is a government amendment following the proposal put forward by the noble Baroness, Lady Perry, which would give the director the power to identify and advise on good practice in relation to the promotion of equality of opportunity in access to higher education. Since I believe that many institutions will in fact include in their access plans measures relating to part-time provision, this amendment might be further amended to include specific reference to good practice in respect of part-time as well as full-time students. If noble Lords agree, I will consider whether we can come back at Third Reading with two amendments along the lines I have indicated.

Within the package, an evidence base is critical and we are working on it, as well as supporting the Open University in that regard. We recognise the importance of the unregulated market for part-time study and the wish to continue in that way. I have made clear the HEFCE position. We accept in principle Amendment No. 28 and we shall bring forward an additional amendment along the lines I have just set out. I hope that, on that basis, the noble Baroness will feel able to withdraw her amendment.

Baroness Sharp of Guildford

My Lords, I am immensely grateful to the Minister. This is the solution that we have all been looking for. I sense that the noble Baroness, Lady Lockwood, may share my feeling that it would have been very nice if we had been able to go that little bit further, but we knew that that would be extremely difficult. As I said when introducing the amendment, we understand that we do not yet really know who these part-time students are. I am delighted to learn that HEFCE is accelerating the pace of its survey. It was extraordinary that it was going to take three years to complete it; one year is fine. As the Minister rightly indicated, we shall see movement, developments and plans in 2006, and we have it on the face of the Bill.

As the right reverend Prelate pointed out, this is of symbolical importance. It sends a clear signal to the community when a provision is put on the face of the Bill. I take on board the fact that institutions can do as they wish and that perhaps we did not really need the provision—that is the implicit response—but, as I said, it is an important signal to the community. I am delighted.

I thank all noble Lords who spoke in the debate. It has been very long, but extremely useful. Once again, I thank the Minister for what she has offered in her response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Lord Forsyth of Drumlean moved Amendment No. 30:

Page 14, line 12, leave out from "have" to end of line 17 and insert—

1. "(i) a duty to protect academic freedom, including the right of institutions to determine the criteria and the application of that criteria for the admission of students, and the selection and appointment of academic staff,
2. (ii) a duty not to require plans to include reference to particular courses of study or research, (including the contents of such courses or programmes and the manner in which they are taught, supervised or assessed) except as provided for in section 23(1)(a) and (b),
3. (iii) a regard to any guidance given to him by the Secretary of State."

The noble Lord said: My Lords, Amendment No. 30 is tabled in my name and that of my noble friend Lady Perry of Southwark, as well as that of the noble Baroness, Lady Sharp of Guildford, and of the noble Lord, Lord Sutherland of Houndwood. I should mention that the noble Lord, Lord Sutherland, had an important medical appointment this afternoon and thus was not able to be here, but I know that he strongly supports this amendment, to which he has added his name.

While we welcome the acceptance by the Government of the amendment tabled in Committee by the noble Baroness, Lady Warwick, and the move made by the Minister to recognise the importance of academic freedom—an issue that this House has a long and distinguished history of fighting for—we do not feel that it went far enough in providing all the assurances that are needed.

This amendment maintains the duty of the director to protect academic freedom, including the right of academic institutions to determine the criteria and the application of that criteria in relation to the admission of students. It adds to that the selection and appointment of staff, which is important given the argument that in some circumstances certain staff attract particular students. The amendment also aims to exclude the director from requiring plans to refer to particular courses of study or research, including how they are assessed.

Perhaps I can make the case most positively for the amendment by quoting the noble Baroness, Lady Blackstone, from the debates on the 1992 Act. She said that, The principle of academic freedom is indivisible. It is not possible to anticipate or determine what some future Secretary of State with a particular axe to grind might do about, for example, the kind of students who should or should not be admitted, the kind of academic staff who should or should not be appointed, or about departments which the Secretary of State has taken against and wishes to close. The list of exceptions cannot encompass every possibility and an interfering Secretary of State could always find ways of exploiting loopholes".

No doubt the Minister will tell me that my amendment is not absolutely spot-on technically, but she will recognise where the wording has come from. In commending the amendment, I hope very much to enlist the support of the noble Baroness, Lady Blackstone, because she is the inspiration behind the words used. On that basis, I beg to move.

Baroness Warwick of Undercliffe

My Lords, I support the amendment, although I have a few minor caveats. However, I am very pleased with its wording. Noble Lords will recall from our debate in Committee that I felt it was important to protect all stages of the admissions process. However, the amendment leaves one area of that procedure vulnerable. One part of the wording inserted by my amendment in Committee meant that admissions decisions are protected by the phrase, and to apply those criteria in particular cases". So there are one or two minor drafting points. It is my understanding that requirements are to be determined by regulations, and hence by the Secretary of State rather than OFFA.

On a minor point, paragraph (ii) refers to provisions set out in "section 23(1)". I wonder whether that should be "section 31(1)"? Perhaps my noble friend on the Front Bench will be able to clarify whether my understanding is correct.

Those issues aside, I strongly support this proposal. I have been concerned about the risk that OFFA might require institutions to make reference to particular courses of study in their plans. My noble friend has been most reassuring on this point, but the amendment tabled by the noble Lord, Lord Forsyth, would put the matter beyond doubt. I hope that these brief comments can be considered and I repeat my support for the amendment.

Baroness Blackstone

My Lords, it is a new experience for me to have inspired a Conservative amendment. I am not sure whether to be flattered by that or slightly nervous about my reputation in the Labour Party. However, I support the amendment tabled by the noble Lord, Lord Forsyth, although I cannot comment on its wording. I am not sure whether it will stand up technically, but that is for my noble friend to determine. However, the point he makes in principle should be supported.

Baroness Sharp of Guildford

My Lords, my name is also attached to the amendment. In Committee two different versions of moves to protect academic freedom were on offer, but because the Minister accepted the amendment tabled by the noble Baroness, Lady Warwick, that was the one to be incorporated. However, I did remark to the noble Baroness, Lady Perry, who I think is the author of this amendment, that I had a slight preference for her form of words. I am delighted to see that it has been brought back and I reiterate my endorsement.

7 p.m.

Earl Russell

My Lords, I too support the amendment. The key principle behind this is that decisions on the admission of students must be made individually. That cannot be done if one has to produce a statistical tally. We have to be able to decide whether he or she is the best person in front of us. That must be done by consideration of the person's mind.

I do not think that people always understand exactly what we are doing when selecting students. We are not assessing past performance. In fact, my objection to using A-levels as a way of selecting students is that it is always like betting that the winner of the Derby will be the horse in the lead at Tattenham Corner. I am told by those who know more about these matters than I do that on that principle one would lose a very large sum of money.

What one is looking for is promise; the ability to develop talent. To achieve that, one needs to get the students thinking about something that they have never come across before; an unfamiliar piece of evidence; a strange idea. One needs to look to see what they do with it. Therefore, the handicap suffered by people from schools which are rather less adequately endowed is that of a smaller library; far fewer things are familiar to them and therefore far more are surprising to them. In some cases the difference has been so extreme that I have been unable to assess candidates except by interviewing them on matters right outside their academic field and on which they could not possibly have been expected to prepare.

But the word "require" in Amendment No. 29 is, I hope, understood in Amendment No. 30. It is absolutely vital because one cannot carry out this duty according to any conscience but one's own. A colleague of mine resigned from an extremely good job because her superior demanded that she alter the transcription of a word in a manuscript which he had not seen. He may perfectly well have been right, but he could not possibly have known he was right. He had not seen it, she had; he simply did not have the authority to do what he did. For that to be met by a resignation was perfectly right.

Were I to be still in office—I have now, unfortunately, retired—and were I to be faced with a requirement to select student X in preference to student Y, even if I intended to do so anyway, I would feel bound to resign rather than submit to an order to do it. One cannot delegate one's conscience in that way; one has to make one's own judgment and has to be free to stick to it. Without the guarantee of academic freedom one cannot have that and the wonderful variety of the academic conscience allowed full play.

I remember listening to and speaking opposite the right honourable gentleman Mr Oliver Letwin when he spoke at the Oxford Union on 26 February. He began his argument from the proposition that the state has failed. When he said that, what he meant was that it had failed as a manager; that the state does not understand how to manage universities. It does not understand how to manage hospitals or schools or railways simply because it does not have expert knowledge of the bodies concerned.

What he left out, which is also important, is that the state has equally failed in any attempt to hand over to the public the selection of people who are to receive these privileges. There is no way of making a market carry out an equitable allocation according to merit and without reference to money. In fact, to do so without reference to money is to contradict the very nature of the market. I believe the noble Lord, Lord Forsyth, would not disagree with that.

My noble friend Lady Sharp, in her Second Reading speech, mentioned figures—to which I do not think the Minister will object—showing that the proportion of people from the lower social classes at Harvard and Yale was less than half what it is at Oxford and Cambridge. So, if the market cannot select and the state cannot manage, you need some kind of combination; you need the state to provide the money for the selection but to keep out of the management. If it does not keep out of the management, you simply cannot do the job. That is why the principle of academic freedom is so vital. If it is not enshrined it will be eroded. The Civil Service, like Hobbes's man, has a perpetual and restless love of power after power that ceases only in death. If we do not go for death—which is a little draconian—let us see whether an Act of Parliament will make a good second best.

The Lord Bishop of Portsmouth

My Lords, it is always a pleasure to follow the noble Earl, Lord Russell, who brings to debates his experiences as a university teacher, which I half-shared in a previous don manqué existence.

One of the clichés often hurled at modern leadership and government is "control freakery". I come to legislation as a layman. What it is intended to enact is in itself important but, as I said earlier, the signal that it gives out to the wider community is, to me, equally important. The academic community would find the amendment of the noble Lord, Lord Forsyth, welcome, appropriate, right and proper. I hope that it is taken very seriously.

Baroness Perry of Southwark

My Lords, I have little to add to the splendid points that have been made already by other noble Lords. Not only is academic freedom indivisible, as the noble Baroness, Lady Blackstone, said in 1992, it is also a very delicate plant. On it rests many of the freedoms on which this country depends. I do not think it is possible to repeat too often in legislation the defence of academic freedom.

Baroness Ashton of Upholland

My Lords, as I have indicated already to the noble Lord, Lord Forsyth, I cannot accept the amendment as drafted. However, let me begin by stating that we fully appreciate and support the need for the director to respect academic freedom. That is why at Committee stage we accepted the amendment that makes explicit on the face of the Bill that the director must have regard for academic freedom, particularly in respect of the admission of students. I know that is an issue of real concern, as has been indicated in your Lordships' House.

This amendment seeks to go further and would give the director a duty to protect academic freedom. This is not necessary because, used in this context, the phrase, have regard … to the need to protect academic freedom", obliges the director to perform his duties with his in mind. Were he demonstrably to fail, he would be open to legal challenge. I am very happy to consider how best we might meet the noble Lord's concern and to spell out—as he has attempted to do—what we mean by "academic freedom".

I know that my noble friend Lady Warwick has retabled an amendment, which we shall debate in due course, which would preclude the Secretary of State including admissions policies or procedures in the content of plans. As I indicated during the debate in Committee, I am inclined to accept the amendment if the noble Baroness moves it.

The combined safeguards of these amendments offer a real reassurance on the face of the Bill. So, with the commitment that I shall accept the amendments in principle, I shall work with the noble Lord, Lord Forsyth, and my noble friend Lady Warwick to agree an amendment which, if you like, encompasses the amendment to the amendment I am going to accept in order to take on board the noble Lord's points. With that explanation, I hope the noble Lord will feel able to withdraw his amendment.

Lord Forsyth of Drumlean

My Lords, I am extremely grateful to the Minister. It is always a joy to hear that what is being proposed will be enshrined in the Bill. I look forward to seeing the text. I accept that my precise wording may not be right.

The noble Baroness, Lady Warwick, suggested that we were referring to the wrong paragraphs in the Bill. I believe that they are the right paragraphs because they relate to the powers in respect of the raising of fees. However, I should be happy to follow up the point with her.

I am very grateful to my noble friends Lady Perry and Lord Sutherland who have worked on this with me. To have the amendment pretty well accepted is a treat. The contribution of the noble Earl, Lord Russell, would in itself have made tabling the amendment worthwhile. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Contents of plans]:

[Amendment No. 31 not moved.]

[Amendment No. 32 had been retabled as Amendment No. 34A.]

The Deputy Speaker (Lord Ampthill)

I remind the House that if Amendment No. 33 is agreed to, I will be unable to call Amendments Nos. 35, 36 or 37, due to pre-emption.

Baroness Ashton of Upholland moved Amendment No. 33:

Page 14, line 27, leave out subsection (2) and insert—"

1. "(1A) In relation to England, a plan under this section—
1. (a) must also include such provisions relating to the promotion of equality of opportunity as are required by regulations to be included in the plan, and
2. (b) may also include further provisions relating to the promotion of equality of opportunity.
2. (1B) In relation to Wales, a plan under this section—

1. (a) must also include such provisions relating to—
   1. 10 (i) the promotion of equality of opportunity, or
   2. (ii) the promotion of higher education,
   as are required by regulations to be included in the plan, and
2. (b) may also include further provisions relating to either of those matters."

The noble Baroness said: My Lords, as I made clear in Committee, it has always been our intention that plans in England should be concerned with fair access and not with the promotion of higher education more generally. I recognise the value of placing a restriction on the face of the Bill which reflects that intention. I have therefore laid Amendment No. 33, and consequential Amendments Nos. 38, 39, 41 and 44 to ensure that the term "promotion of higher education" does not apply to English plans.

Amendment No. 33 makes it explicit in the Bill that English plans must include provisions that relate to the promotion of equality of opportunity in connection with access to higher education. That will ensure that the promotion of higher education applies only to Welsh access plans. As noble Lords will know, the National Assembly has yet to determine whether to introduce variable fees and, if so, how it will do so. It is appropriate that this legislation should give it the flexibility to determine policies suited to Welsh circumstances, following the precedent set by other post-devolution Bills.

I hope that noble Lords will understand the need to allow for devolution to operate in this context, and will support these government amendments. I beg to move.

Baroness Sharp of Guildford moved, as an amendment to Amendment No. 33, Amendment No. 34:

Line 10, leave out "or" and insert "and".

The noble Baroness said: My Lords, when we discussed Clause 30 in Committee, I was one of those who was unhappy about the wording of the original clause, which was very similar to that in Amendment No. 33 for Wales. It provided that the duties of the director must include such provisions relating to the promotion of equality of opportunity or the promotion of higher education. I was objecting to the use of "or" rather than "and".

I have tabled this amendment on behalf of the Royal National Institute of the Blind and of Skill, the body that promotes the interests of students with disabilities. They have come back to me and said that they are still confronted by a problem with Wales. There are disabled students in Wales as much as there are disabled students in England. The two organisations are very concerned that the wording might imply that equality of opportunity was not to be promoted in Wales. It is a little thing, but there is implicitly a conflict as the Bill stands, about which RNIB and Skill are very concerned.

Having agreed to promote this amendment, I then found that I was stirring up a hornets' nest, because education in Wales is a devolved matter. My party, in particular, is concerned that Wales should be able to do its own thing and should not be dictated to by this Parliament.

There is another issue arising, which the noble Baroness, Lady Warwick, will talk about. If we leave the wording as it is, there is an implicit contradiction and a difficulty for disability groups. It ought to be considered, but it gets swept up into the wider area. Therefore, I shall leave what I have to say at that. I beg to move.

7.15 p.m.

Baroness Warwick of Undercliffe

My Lords, it is known that I have not been inclined to support government Amendment No. 33. I do not think that it goes far enough. With respect to Wales, it leaves in place a power which I firmly believe is unacceptably wide.

Vice-chancellors in Wales have no idea what the Welsh Assembly intends its regulator to do. There have been no discussions with institutions in Wales. It seems clear that the priority will not be access.

Would we in England accept the creation of a regulator with the power to fine institutions up to half a million pounds—the whole of their grant—without knowing what the regulator will regulate? We certainly would not.

I have reconsidered my position in the light of the House's decision on Amendment No. 23. That amendment was grouped with Amendment No. 34A. In my view, it would be disastrous if Amendment No. 34A were passed, for two clear reasons. First, as I said when I spoke to the amendment of the noble Baroness, Lady Perry, I do not believe that the package of amendments will be acceptable in another place. The ability to amend the Bill constructively could well be lost. I am very concerned that there will be no opportunity at all to remove the words, the promotion of higher education", with respect to Wales as well as to England.

My amendment to remove admissions from plans would also be lost, as I understand it. My admissions amendment, the second of a pair which was moved and accepted by the Government, prevents OFFA requiring plans to contain reference to admissions. It is a vital amendment, which I think the House felt very strongly about. I failed to move it in Committee, sadly, for which I apologise, but I very much hope that it will be passed this evening. This is too high a price to pay for an amendment that will not remain after another place has considered the Bill.

To avoid such an outcome, I intend to support government Amendment No. 33. Welcome though it is—and it is very welcome that the Minister has accepted the arguments we have made in relation to England—the amendment does not go far enough, and I intend to bring this issue back at Third Reading.

Baroness Carnegy of Lour

My Lords, before the noble Baroness sits down, and with the leave of the House, I am a little confused. Is she saying that the Welsh universities which belong to Universities UK are complaining that the Assembly has not discussed this properly with them, and that they are worried about it? Is that the case, despite the fact that the noble Baroness supports the government amendment? I believe that the House has a certain responsibility when we legislate not just to do what the Assembly says it wants but to pay attention to the people who are affected. I wonder whether we should be accepting the amendment.

Baroness Warwick of Undercliffe

My Lords, with the leave of the House, perhaps I can clarify my intention. There has been no discussion about the intention of the Welsh Assembly as regards the regulator. It simply wants to take on what we regard as a very wide power, which is of great concern to the institutions in Wales. I am anxious that we have an opportunity to ensure that the provision is removed for England, and I intend to come back with an amendment to remove it for Wales on Third Reading.

Lord Roberts of Conwy

My Lords, there has indeed been considerable concern expressed in Wales about Clause 31. I am not sure that government Amendment No. 33, which I am happy to welcome on behalf of England, has not exacerbated rather than ameliorated the situation in Wales.

I have a letter from the secretary of Higher Education Wales, which comprises the 14 vice-chancellors and principals of higher education institutions. The letter sums up the situation very succinctly. Mr D G Lewis writes: If enacted, the clause will allow the Welsh Funding Council (as the body likely to be designated by the National Assembly) to use the power to require an Institution's plan to 'promote higher education' in ways not directly connected with fair access to higher education". He then goes on to quote from a debate on 17 May, when the noble Baroness, Lady Ashton of Upholland, said: I am clear that higher education institutions are autonomous bodies, and the provisions in Clause 31 are in no way intended to undermine that long-established principle".—[Official Report, 17/5/04; col. 631.] Mr Lewis continues:

However, in Wales there has been no discussion with HEW, and some of its members are deeply concerned that this power will be used, for example, to direct their business plans and even to force mergers. This is not a permissive power—it is a restrictive one. Some members of HEW fear that the power is there to ensure that institutions comply with the Minister's wishes, and to fine them if they do not". Of course, the Government now propose to remove the power to promote higher education in England from OFFA, but to retain it in Wales at the insistence, we are told, of the Welsh Assembly government for that relevant authority in Wales—which is likely to be the Higher Education Funding Council. So there would seem to be a direct link between funding and the promotion of higher education.

There is not much doubt in my mind why this difference is proposed between England and Wales in Amendment No. 33, and Higher Education Wales appears to agree with me. What is at the bottom of all this is the amalgamation of institutions. That has been discussed in Wales over the past year. The University of Wales College of Medicine, of which I am president, approached Cardiff University, and voluntarily and successfully negotiated a merger that will benefit both institutions. The combined institutions will become a separate University of Cardiff. The new university will still have a close relationship with the rest of Wales. The necessary legislation to effect these changes is currently proceeding through Parliament.

At least two other amalgamations have been proposed—between the University of Wales, Bangor and the North East Wales Institute of Higher Education and between the University of Glamorgan and the University of Wales Institute, Cardiff. Both proposals have made no headway for one reason or another. I strongly suspect that what the Assembly has in mind is to force the amalgamations through in the name of promoting higher education.

I will not go into the pros and cons of such mergers, but I wonder whether it is appropriate for the Assembly government to lean on the parties concerned and force them to merge when they have sought to do so and failed, for the time being at any rate, to find enough common ground to warrant amalgamation. I may be wrong that the desire to merge institutions lies behind the Assembly government's insistence on the retention of the promotional element in the contents and plans. I would be grateful if the Minister would correct me, and in the course of correction, tell us what the Assembly government do have in mind. It is glaring that what has been withdrawn from England voluntarily by the Government is insisted on for Wales. Surely, the same principle should apply.

The promotion of higher education sounds a high enough ambition, but, like liberty, it is possible to commit many crimes in its name, I am sure. The proposed new Section (1B)(a)(ii) is causing deep concern in academic circles in Wales and will be deeply unpopular. The Assembly Government have botched the health service in Wales and it looks as if they are well on their way to botching higher education as well. I therefore have every possible sympathy with Amendment No. 35 in the name of the noble Baroness, Lady Warwick, and that sympathy may extend to a similar amendment at Third Reading. However, I also welcome the Government's amendment in so far as it refers to England. However, I beg the Government to answer, why grant to England a blessing that is being denied to Wales?

Lord Morris of Aberavon

My Lords, there is a difference between what is proposed for Wales and what is proposed for England. I declare an interest as Chancellor of the University of Glamorgan. I have watched very carefully and actively from the sidelines the immense effort that has gone into achieving an amalgamation that has not come to fruition despite the views of many people such as the funding council and so forth. I would like to know—and this is the principle with which I approach all legislation affecting Wales—whether this difference is at the behest of the Welsh Assembly, or not. That would help me and my deliberations.

Earl Russell

My Lords, I have a couple of questions. The first relates to proposed new Section (1A) of Amendment No. 33, which states: a plan under this section … must also include such provisions relating to the promotion of equality of opportunity as are required by regulations to be included in the plan". Such proposals, as are required by regulations to be included in the plan", are a pig in a poke. "Must" is draconian. A draconian pig in a poke is a zoological curiosity of the first water. It is one that I view with considerable suspicion. I wonder in particular whether the draconian quality of "must" is capable of overriding the vital and very welcome concessions that the Minister made in the course of our debate on Amendment No. 30. I would like to hear it spelt out that that was not the case.

My other question relates to "and" or "or". The basic skill of Opposition has been described as the ability to see all hell in a grain of sand. My noble friend Lady Sharp has exercised that ability to perfection. In general, obviously, greater equality of opportunity would be likely to lead to the improvement of higher education because it draws on a wider pool of talent. The chance of selecting the best people is improved. However, if it were to interfere with the right of individual judgment, on which I was speaking on Amendment No. 30, that would cease to be the case.

For example, if we use "and" instead of "or", quotas are not ruled out. If we use "or" instead of "and" quotas are ruled out. "Or" allows a particularly vital judgment of the merits of the student to be made irrespective of any social consideration whatever. It directs people to look for merit in students from social classes not hitherto adequately represented, which I am sure most of us do already, and which I am sure all of us will do even harder if this Bill becomes law. That I welcome. However, when we get to the draconian prescriptions involved in the use of the "and/or" dichotomy, I feel that an authority is being claimed that should not be there, and I hope it goes out.

Lord Prys-Davies

My Lords, I shall say a few words in support of the second part of Amendment No. 33 on the understanding that this part of the clause has emanated from the Welsh Assembly. My noble friend made that clear in her introduction.

Of course I am aware of the concerns expressed by Higher Education Wales; those concerns have been voiced in this Chamber this evening. I also note the letter from the chairman of Higher Education Wales and his statement that there has been no discussion with HEW. In spite of those worries, I believe that it is hardly for this House to oppose a clause initiated by the Welsh Assembly when it is also acceptable to the UK Government. However, I readily accept that there is a problem here.

7.30 p.m.

It was always envisaged in the White Papers that the Welsh Assembly would have the opportunity to influence primary legislation affecting Wales. However, I recognise that we did not foresee the problems that would arise. The problem has been identified by the noble Lord, Lord Richard, in the commission considering the powers of the Assembly, and this evening we are in a situation that he described well in his report. The difficulty is this: the clause has been initiated by the Welsh Assembly but the initiators are not present to explain their policies in the forum that scrutinises and legislates. That is a fundamental flaw in the devolution model and will have to be addressed.

I hope that the Minister can say something to allay the fears of those noble Lords who have expressed concerns, but I would find it difficult for the House to oppose a clause that has emanated from a representative body in Wales and is supported by the UK Government.

Lord Forsyth of Drumlean

My Lords, I welcome the government amendment. The Minister has done much to reassure the House by introducing it. I contemplated voting against it and supporting the amendment tabled by the noble Baroness, Lady Warwick, but I am delighted that she has decided not to press it tonight.

I act on the basis that a bird in the hand is worth two in the bush. The problem with Wales arises because of devolution. It seems to me that the Welsh Assembly would like the proposed phrase to be kept in because it wishes to use OFFA to do something that the Government have assured us that OFFA will not be used to do—to pursue wider issues, namely the economic ones. I do not want to venture into the merits of integration of different departments or institutions, as did my noble friend Lord Roberts, who spelt that out very clearly. That is clearly a matter for the Welsh Assembly. But it is also a matter for the Government and for this House, that legislation introduced on one basis should be used for another purpose when we have been specifically assured by the Government that that will not be the case.

The Minister has been extremely helpful and positive throughout the consideration of the Bill, and I recognise that she is between a rock and a hard place, because she cannot tell the Welsh Assembly what to do. We shall accept the government amendments and come back to the matter at a later stage. That is probably the best position to be in, for it gives the people in Wales time to reflect on what they are doing and the Minister time to extricate herself from between the rock and the hard place.

I support the government amendments and support the noble Baroness, Lady Warwick, in her decision not to press her amendment to a Division. However, I put the Minister on notice that the issue is not off the agenda; it is clearly there, for the reasons that I have given.

Baroness Ashton of Upholland

My Lords, I am grateful to noble Lords who have spoken in this debate. I should say to the noble Baroness, Lady Sharp, that I am not clear where we got to with her amendment, so perhaps she and I should have a conversation about it at the end of this stage of the Bill to ensure that the issues that she raised are covered.

The noble Earl, Lord Russell, asked whether "must" overrides the duty not to interfere with academic freedom. Not at all—I can be very clear on that.

The noble Lord, Lord Roberts of Conwy, made some very important points, as ever. I do not have the specific answers, as I am sure he will not be surprised to hear, but I shall endeavour to get responses to his questions between now and Third Reading so that he can make his decisions on the basis of that information.

The noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Prys-Davies, were both concerned that the Welsh Assembly had put the amendments forward. That is right; it was the Assembly that asked specifically for this differential. As the noble Lord, Lord Forsyth, rightly said, that is the nature of devolution.

I hope that my noble friend Lady Warwick will be reassured that the membership of the group led by Professor Rees considering the future includes representatives of Higher Education Wales, which represents the interests of the sector. As I said before, there is no question of the Assembly passing regulations under this clause without due consideration. It has a duty to consult and propose subordinate legislation with significant cost.

There are different issues in Wales, which the National Assembly, as a democratically elected body with responsibility for higher education, wishes to put forward. Between now and Third Reading, I am sure that there will be the opportunity to discuss these issues and to get the kind of responses that the noble Lord, Lord Roberts, in particular, wanted. I have been put on notice by the noble Baroness, Lady Warwick, with the support of the noble Lord, Lord Forsyth.

Earl Russell

My Lords, can the Minister say something on the question of "and" or "or"?

Baroness Ashton of Upholland

Not easily, my Lords. We had some of these debates in Committee, and it is probably better, if the House and the noble Earl will permit it, that I write to him on that matter. I would take too much of the House's time at this point.

Baroness Sharp of Guildford

My Lords, I am grateful to the Minister for her response. I get the impression that she was quite sympathetic to my little "and" instead of an "or". We need to discuss the matter further. The amendment has clearly stirred up a hornets' nest in devolution terms, and we shall return to it on Third Reading. I beg leave to withdraw the amendment.

Amendment No. 34, as an amendment to Amendment No. 33, by leave, withdrawn.

On Question, Amendment No. 33 agreed to.

[Amendment No. 34A not moved.]

[Amendments Nos. 35 to 37 not moved.]

Baroness Ashton of Upholland moved Amendments Nos. 38 and 39:

Page 14, line 36, leave out "subsection (2)" and insert "subsection (1A) or (1B)"

Page 14, line 38, leave out "subsection (2)" and insert "subsection (1A) or (1B)"

On Question, amendments agreed to.

Lord Triesman

My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before twenty minutes to nine o'clock.

Moved accordingly, and, on Question, Motion agreed to.