Lords Sitting of 22 June 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Coventry.

Lord Carter of Coles
Patrick Robert Carter, Esquire, having been created Baron Carter of Coles, of Westmill in the County of Hertfordshire, for life—Was, in his robes, introduced between the Lord Laming and the Lord Warner.
Baroness Morris of Bolton
Mrs Patricia Morris, OBE, having been created Baroness Morris of Bolton, of Bolton in the County of Greater Manchester, for life—Was, in her robes, introduced between the Baroness Seccombe and the Lord Brennan.

House of Lords: Display of Historical Documents
2.49 p.m.
The Earl of Sandwich The Earl of Sandwich asked the Chairman of Committees:
What is being done to ensure that original documents which highlight United Kingdom constitutional history continue to be displayed in the House for the benefit of Members and visitors.
The Chairman of Committees (Lord Brabazon of Tara): My Lords, original documents of constitutional significance will continue to be displayed in the Royal Gallery. But, on expert advice, the Administration and Works Sub-Committee agreed in 2002 that exhibits should be changed regularly to prevent their deterioration from overexposure to light. The Record Office now has a three-month cycle for displays, which are designed to use the rich and diverse content of the archives to engage visitors with the work of Parliament.
The Earl of Sandwich: My Lords, I am grateful to my noble friend for that Answer because it confirms that we will continue to see original documents displayed in this House. But does he agree that many people take a lot of pride in the history and development of Parliament? They would like to see more original documents displayed, including such landmarks as Catholic emancipation, abolition of slavery, votes for women and perhaps even House of Lords reform some time in the future. Will he therefore encourage more Peers and staff to make contact and to visit our excellent Record Office and, perhaps, also make suggestions for documents to be displayed?
The Chairman of Committees: My Lords, I endorse the noble Earl's comments about the pride of this House in the history of Parliament and our constitutional landmarks. The plan to change the displays regularly will help to preserve key documents and enable a wider variety of original records to be shown than ever before. Perhaps House of Lords reform will, one of these days, be among them—who knows?
On the second point made by the noble Earl, Lord Sandwich, the Clerk of the Records is keen to encourage Members and staff to visit the Record Office and welcomes suggestions for future document displays.
Baroness Trumpington: My Lords, I declare an interest as a member of the Works of Art Committee in this House. Does the noble Lord agree that there is not time or space for the many large parties of children and adults to examine documents in the display case? In the old display case, one of the items of main interest was the death warrant of King Charles I, which, sadly, is deteriorating. Temporarily, a replica will be on display. People also like very much to see the signatories of all the monarchs, which are most interesting. Items that are easy to look at in a display case are a practical solution, but that has nothing to do with the fact that documents of public interest should be available.
The Chairman of Committees: My Lords, I am grateful to the noble Baroness for that question. The old display case was unsatisfactory. It was made of oak which, apparently, gives off a noxious substance that is damaging to original documents. We have had the benefit of advice from an expert adviser from the British Library in that respect.
The death warrant of Charles I had been on continuous public display for around 150 years. Expert advice is that documents of that nature should be displayed for only three months at a time. Therefore, we have really behaved rather badly in the past. Signs of fading were starting to appear. It is essential that that document should be preserved in suitable repository conditions or it would fade irretrievably. It will probably be displayed occasionally, but not for long periods. The new display case, which has temperature and humidity control, will be better. Nevertheless, it is not right that such documents should be continuously displayed in light.
Lord Carter: My Lords, as the noble Lord said, historic documents displayed in the Royal Gallery were kept in a lovely Pugin-style display case which was completely appropriate for the gallery. That has now been replaced by a ghastly metal contraption which is gunmetal grey-green in colour. It is extremely difficult to see that as appropriate for the Royal Gallery. Why is that?
The Chairman of Committees: My Lords, I am afraid to disillusion the noble Lord, Lord Carter, but, as I mentioned in my response to the noble Baroness, Lady Trumpington, the oak display cabinet was completely unsuitable. The relevant British standard for this

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specifically recommends against oak and other materials which emit vapours harmful to documents. If the noble Lord has a criticism of the new display case in the Royal Gallery, whose design, colour and site were approved in 2003 by the Administration and Works Committee and, I believe, by the Works of Art Committee, he should consult those bodies. As I mentioned in my last reply, the new display case has considerable advantages in terms of humidity and light.
Viscount Falkland: My Lords, I congratulate the noble Lord on conveying what is, overall, a very sensible solution to a delicate problem. However, will he bear in mind that those of us who for a number of years have been taking parties and individuals around the Palace of Westminster, many of whom come from foreign countries and have a deep interest in our history, feel that there is nothing better than to show our guests articles and places of real historic interest within this impressive Victorian structure? As long as that is borne in mind, we shall achieve what most visitors to this excellent Palace expect.
The Chairman of Committees: Yes, my Lords; indeed, I hope that my answers have indicated that that is the case. However, I should say in regard to the death warrant of King Charles I that a facsimile is being made at the moment which will be put on display. I would bet that most visitors will be unable to tell the difference.
Lord Campbell of Croy: My Lords, do the documents include some of those concerning the union between Scotland and England in the reign of Queen Anne?
The Chairman of Committees: My Lords, the Articles of Union between England and Scotland of 1706 were indeed displayed. Those are documents like the death warrant of King Charles I which should not be kept on continuous display because of the likelihood of deterioration. Therefore they have been taken away and placed in proper, safe and secure conditions. However, I would strongly suspect that the 300th anniversary of the union with Scotland in two years' time would be a very suitable moment for the Articles of Union again to be displayed, although probably not for more than three months at a time.
Lord Tordoff: My Lords, first, does the noble Lord agree that the aromas of oak are better when surrounding French wine? Secondly, can he assist the House by giving us some idea of what items are likely to be included in the display in the near future?
The Chairman of Committees: My Lords, I am glad that the noble Lord has asked me that question. The displays in the Royal Gallery cabinet are due to be changed later this week. One display will feature Parliament during the Second World War, building on public and media interest in the 60th anniversary of the
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D-Day landings and examining the effect of the war on Parliament. A second display will feature the longest original Act of Parliament on a continuous vellum roll, the Land Tax Act 1821, which has never before been displayed. If this Act were to be unrolled, it would stretch over 382 yards, or considerably longer than the entire Palace of Westminster, which is 291 yards long.

Iraq: US Treatment of Prisoners
2.58 p.m.
Lord Lamont of Lerwick Lord Lamont of Lerwick asked Her Majesty's Government:
What representations they have made to the United States Government about the maltreatment of Iraqi prisoners; and whether such maltreatment is the result of official United States policy.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, we have expressed our disgust and anger at the mistreatment and abuse of a number of Iraqi prisoners to our American colleagues. We have stressed the need to ensure that anyone found guilty of these disgraceful abuses is punished appropriately, that detention and interrogation procedures meet international standards, and that safeguards to avoid abuse are put in place. A discussion of individual cases is clearly inappropriate, but United States officials have assured us and the international community that official US policy is to accord prisoners of war and security internees in Iraq the protections of the Geneva Convention.
Lord Lamont of Lerwick: My Lords, I thank the Minister for that reply and I hope very much that it is right. Has she seen the report of the Pentagon legal panel obtained by the United States Center for Constitutional Rights and published in the Wall Street Journal on 7 June, showing beyond reasonable doubt that at one time the best legal minds in the Pentagon were trying hard to find ways to sidestep both US and international laws banning torture? Has the Minister seen further reports in the Washington Post of 12 June indicating that the actions at Abu Ghraib prison were not just those of a few rotten apples, but that some practices such as the use of military dogs in interrogation were sanctioned at a senior level?
Would the Minister accept that, since we are partners with the United States, all these actions have implications for the security of British personnel, both military and civilian, and have not the British Government not only the right but the duty to find out what American policy has been?
Baroness Symons of Vernham Dean: My Lords, I have not read either of the reports to which the noble Lord, Lord Lamont, has referred, but of course I know of the concerns expressed by him about the attitudes of the United States. I strongly agree with him that we have a duty to find out from the United States what

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their official attitudes have been. We know that Major General Fay, the deputy chief of staff of the US Army Intelligence and Security Command, began an investiga tion in April of this year into military intelligence practices in Iraq, including in Abu Ghraib prison. Also, I was in Jordan a few weeks ago attending a meeting of the World Economic Forum at which Colin Powell, the US Secretary of State, made a full apology to what was largely an Arab audience for any abuse of Iraqi prisoners. So while I understand the fears articulated by the noble Lord, Lord Lamont, the official United States position has been made clear at very senior levels.
Lord Thomas of Gresford: My Lords, does not the noble Baroness accept that what has been happening in Iraq merely mirrors what happened behind closed doors in Guantanamo Bay and that some of its personnel were transferred to Iraq to carry out those practices? Does she not further accept that the institutions in Guantanamo Bay were part of the policy of the United States Government about which this Government have so often complained?
Baroness Symons of Vernham Dean: My Lords, the Question is specifically about Iraq. While I understand that fears will be mirrored in Guantanamo, I am not in a position to answer in any detail. However, as the Minister concerned with the British people who have been detained in Guantanamo, obviously I have looked into welfare issues in that regard. We have made welfare visits to Guantanamo, as has the International Red Cross. In saying that, I declare an interest as a patron of the British Red Cross.
Lord Renfrew of Kaimsthorn: My Lords, would the Minister care to refer to the other part of the noble Lord's Question? It has been authoritatively reported that supervisory personnel from the Guantanamo Bay prison have had a supervisory role in the Abu Ghraib prison. If it is the case that the United States Government declined to apply the Geneva conventions in the Guantanamo Bay prison, is not that a cause for concern?
Baroness Symons of Vernham Dean: My Lords, the noble Lord reiterates what is already a matter of public knowledge: that personnel were moved from Guantanamo to Abu Ghraib. I have expressed on behalf of Her Majesty's Government not only our disgust at the reports of what has gone on in Abu Ghraib but also, in response to the noble Lord, Lord Lamont, I have acknowledged that there is a duty upon Her Majesty's Government to make inquiries and to press these points very hard with the United States Government.
Lord Campbell-Savours: My Lords, does not the interview by John Humphreys in the "On the Ropes" programme last week of General Janis Karpinski—in which she stated that she was told by General Miller, when he was transferred from Guantanamo to Abu Ghraib, that he intended to "Gitmoise"
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Abu Ghraib on the Guantanamo model—suggest that further questions should be asked about whether the standards that applied at Abu Ghraib applied also at Guantanamo Bay?
Baroness Symons of Vernham Dean: My Lords, I did not hear the interview to which my noble friend Lord Campbell-Savours refers. I remind him that in my original Answer I said that a discussion of individual cases is clearly inappropriate. I hope your Lordships will accept that position because three trials of United States military personnel are beginning in Iraq right now. Nothing I say in any way detracts from the seriousness and importance with which these matters ought to be considered. However, I do not believe that it is right or appropriate for me, as a Government Minister, to comment from the Dispatch Box upon guilt or lack of it.

UK-US Mutual Defence Agreement
3.5 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell asked Her Majesty's Government:
Whether the negotiations with the United States for the renewal of the mutual defence agreement have been concluded; and whether there will be an opportunity for Parliament to debate its terms.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, the amendments to the mutual defence agreement were signed on 14 June by US and UK representatives. Yesterday these amendments, along with an explanatory memorandum, were laid before Parliament in accordance with normal procedures for amendments to such treaties. The amendments have also been put before Congress, where they will lie for 60 days.
At present, I cannot undertake to find government time for a debate. In accordance with their undertaking in 2000 to the Procedure Committee of another place, the Government will give due consideration to any request from the House of Commons Defence Committee and the Liaison Committee for a debate. A debate in your Lordships' House will, of course, be a matter for the usual channels.
Lord Archer of Sandwell: My Lords, while I thank my noble friend for that somewhat startling Answer, can he confirm that under the nuclear non-proliferation treaty the nuclear powers have undertaken to negotiate in good faith for the total elimination of nuclear weapons? Given that the mutual defence agreement is specifically intended to facilitate the transfer of information and materials between the United States and the United Kingdom in order to augment their nuclear capabilities, would it be

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surprising if the rest of the world perceived our position as, at best, schizophrenic—or is proliferation what other countries choose?
Lord Bach: My Lords, it would be surprising. The United Kingdom remains fully committed to the nuclear non-proliferation treaty in its entirety. Movements under the MDA do not involve nuclear weapons or nuclear explosive devices; hence they do not contravene the treaty. So far as concerns the United Kingdom's record, we are committed to working towards a safer world in which there is no requirement for nuclear weapons. Indeed, we can claim to lead the world in our commitment to neutral, balanced and verifiable reductions. Since 1992, the UK has given up the Lance nuclear missile in artillery roles, our maritime tactical nuclear capability and all our air-launched nuclear weapons. Trident is now Britain's only nuclear system and we maintain fewer than 200 operationally available nuclear warheads. We are the only nuclear power that has so far been prepared to take such an important step on the route to nuclear disarmament.
Lord Redesdale: My Lords, will the Government undertake in future to produce in advance a full list of agreements with the United States in the defence field? That will enable this House, if the Government are not prepared to give the time, to bring forward debates to discuss these issues. Can the Minister say whether the treaty has been changed to deal with the issues raised by national missile defence?
Lord Bach: My Lords, to the last question the answer is no. So far as concerns the first question, if the suggestion is that the Government are trying to avoid proper scrutiny, I refute it emphatically. This is a longstanding agreement and its renewal does not involve any consequential change to UK legislation. The Government have laid amendments before Parliament in accordance with the Ponsonby rule—that is, they are laid before both Houses of Parliament for 21 days. A copy of the command paper and the accompanying explanatory memorandum will be sent to the relevant Select Committee, in this case the House of Commons Defence Committee. As I said in my original Answer, in accordance with our undertaking made in 2000 to the House of Commons Procedure Committee, due consideration will be given to any requests for a debate from the Defence Committee or from the Liaison Committee.
Lord Astor of Hever: My Lords, following on from the Minister's reply, the confidential intelligence contents of the MDA have never been disclosed to Parliament. Does the Minister agree that this long-established practice should continue?
Lord Bach: My Lords, yes, I agree that that practice should continue because of the necessity for great confidentiality and because of the use that such
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information would be to other would-be nuclear states. In other words, it might well assist proliferation.

Bosnia-Herzegovina
3.10 p.m.
Lord Ahmed Lord Ahmed asked Her Majesty's Government:
Whether the Government of Bosnia-Herzegovina are meeting the 16 conditions under the European Union accession process and the NATO partnership for peace.
Baroness Symons of Vernham Dean: My Lords, Bosnia-Herzegovina has made significant progress in meeting the military conditions for Partnership for Peace, but lack of co-operation with the International Criminal Tribunal for the Former Yugoslavia means that Bosnia-Herzegovina has not yet met the political criteria for membership. Progress in the 16 priority areas identified by the European Commission's Stabilisation and Association Agreement feasibility study in November 2003 has also been mixed, with good progress in some areas but not in others. The European Commission will review progress in the 16 areas in the autumn.
Lord Ahmed: My Lords, I thank my noble friend for her reply. Does she agree that it is crucial for Republika Srpska to co-operate with the International War Crimes Tribunal at The Hague on the arrest of Radovan Karadzic and other indictees? Does she also agree that the High Representative, the noble Lord, Lord Ashdown, has achieved excellent results in rebuilding the institutions and encouraging appropriate legislation? Will she confirm that he has the full support of her Majesty's Government? Will my noble friend further agree that for a self-sustainable state, more power and fiscal authority has to be transferred to the state of Bosnia-Herzegovina from the two entities?
Baroness Symons of Vernham Dean: My Lords, I largely agree with my noble friend Lord Ahmed. The Republika Srpska authorities have indeed failed to take decisive action to locate and detain fugitive indictees, most notably Mr Karadzic, or to tackle their extensive support networks. Of course, we support all the action that the noble Lord, Lord Ashdown, is taking in this respect. I understand that he and others in the international community have delivered firm messages about the inaction over Mr Karadzic and others, which is jeopardising Bosnia's Partnership for Peace prospects. I also agree with my noble friend's comments about moving towards an economic entity.
Lord Howell of Guildford: My Lords, does the Minister agree that there is considerable disappointment among the Bosnian leadership that they have been told so definitely that their candidacy for Partnership for Peace in NATO has been turned down for the time being? As the Minister says, that is

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largely due to the failure of a single suspect being handed over, especially by Republika Srpska. Is it entirely fair that the Bosnians, who were doing their best to move forward and become candidates both for the European Union and for the NATO partnership, should be punished because of backsliding by Republika Srpska? Will she suggest ways in which additional pressure can be put on the government of Republika Srpska and their officials to move forward a little and make real efforts to find the suspects?
Baroness Symons of Vernham Dean: My Lords, I am grateful to the noble Lord for making those points so well. It is important to say that Her Majesty's Government fully support Bosnia-Herzegovina's NATO aspirations. We welcome the progress that Bosnia-Herzegovina has made in implementing wide-ranging defence reforms, especially by appointing the first ever state-level defence minister, whom I met only 10 days ago. He and I had the opportunity to discuss problems relating to Republika Srpska, which is part of Bosnia-Herzegovina. One of the main reasons for having a state-level defence minister is to make an effort to pull these issues together.
However, it is important that the noble Lord does not concentrate only on Mr Karadzic. Although he is the highest-level person that we want to see detained, as I mentioned a moment ago, there are others and we are not happy about the way in which the networks that support them are allowed to continue to exist.
Lord Wallace of Saltaire: My Lords, will the Minister confirm that, under the terms of the stability pact for south-eastern Europe, Bosnia and also Albania, Macedonia and Serbia Montenegro are on the path to join the European Union when they fulfil the full range of conditions that apply, and that it is important that the full range of conditions is applied to all of those candidates as they progress?
Baroness Symons of Vernham Dean: My Lords, it is important to recognise that all these countries are at slightly different points in developing their relationships, certainly with the European Union. Albania has begun negotiations for a Stabilisation and Association Agreement. Those negotiations began in 2003. Macedonia has submitted its official application to join the EU on 22 March 2004. We have not had an application from Bosnia-Herzegovina because it has not yet reached the point at which that would be appropriate.
Lord Tomlinson: My Lords, will my noble friend confirm that the European Union remains committed to the cause of Bosnia-Herzegovina? Will she further agree with Commissioner Patten, who, when speaking to the German Bundestag European Union committee
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in April, blamed political failure in Bosnia-Herzegovina for not making progress on the 16 items specified as part of the stabilisation and association process? Is my noble friend therefore in a position to spell out to the House quite clearly where the elements of failure in those 16 conditions are and how imperative it is that they are all met?
Baroness Symons of Vernham Dean: Yes, my Lords. Not only has the EU made it clear that Bosnia and all other countries in the region are potential candidates for EU membership, but, on behalf of the UK Government, I also say that we support Bosnia's EU aspirations. However, Bosnia-Herzegovina is not at that point yet. My noble friend Lord Tomlinson is right to remind us that there are some very specific areas where it is falling down. The problem for the EU is not only in respect of the non-co-operation with the International Criminal Tribunal for the Former Yugoslavia, but with a wide area of fiscal and economic areas such as customs and taxation reform, budget legislation, budget practices including the recording of all income accruing to public authorities and the whole question of having reliable statistics. There is a range of issues on the economic front that urgently need to be addressed.
Lord Hylton: My Lords, will the Government do everything that they can to encourage inward investment into Bosnia and the rest of south-eastern Europe because a rising economy will provide favourable conditions both for peace and general progress?
Baroness Symons of Vernham Dean: My Lords, the best encouragement to inward investment in any country—bearing in mind that inward investment is a highly competitive area, and I speak as a former Trade Minister—is for that country to have transparency in its economy. A country must also have effective public administration. Bosnia-Herzegovina still has to make further efforts towards creating not only an economic climate that is right but an effective public administration which would encourage that inward investment.
Baroness Gibson of Market Rasen: My Lords, is my noble friend aware of the very high esteem in which the British forces are held in Bosnia-Herzegovina, especially because of their role in the peacekeeping process?
Baroness Symons of Vernham Dean: My Lords, I am indeed aware of that high esteem, particularly because at the end of my time as a Minister in the Ministry of Defence, I visited Bosnia-Herzegovina with General Jackson. As a British soldier who had served there, he was held in the highest possible esteem, as were all the serving officers I met. I witnessed that for myself.

Bichard Report
3.19 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"With permission, Mr Speaker, I wish to make a Statement on the Bichard inquiry report.
"Last December, following Ian Huntley's conviction, I asked Sir Michael Bichard to conduct an inquiry into the events leading up to the murder of Jessica Chapman and Holly Wells. I am today publishing his report in full. The families have shown great courage and dignity. We extend again today our most heartfelt sympathy to them.
"I am grateful to Sir Michael for the speed and thoroughness of his inquiry. We accept his critique. In doing so we must not forget, as he states, that,
'Huntley alone was responsible for these most awful murders. None of the actions or failures of any of the witnesses or the institutions they represented led to the deaths of the girls'.
"His report uncovers serious failures in recording and managing information.
"These failures include local systems for recording, retaining and accessing data. They include national frameworks for inspection and information exchange, and the systems that underpin them.
"As a consequence, the report is wide-ranging in its recommendations. These apply to a range of public services and government departments. I am therefore responding on behalf of the Government as a whole.
"We are, in principle, accepting Sir Michael's main recommendations and will act on them immediately.
"It is the Government's task to ensure clear national standards as well as providing strong leadership. But other national bodies and local agencies also have a key role in strengthening the system.
"Let me turn to the specific recommendations.
"Sir Michael recommends the introduction of a national intelligence system. Information collected should be shared and acted upon before an individual is employed in a sensitive post. Let me describe how this will operate.
"The police national computer is the cornerstone of police information systems, but its task is to register recorded crime. It holds basic information—for example, names and addresses of offenders. We are working with forces to improve the quality and timeliness of data. It is necessary for them to keep up with the growing and changing demands on the police service.
"But the police national computer does not hold intelligence information—for example, where someone has been questioned in relation to repeated allegations of sexual assault.
"Until now, all 43 forces in England and Wales have operated individual systems for handling this kind of information. This should no longer be the case. As Sir Michael puts it, we cannot have a situation where, and I quote,
'local accountability will be used to defend ineffective local systems when a national system would be more appropriate'.
"This report marks a watershed in how police forces and authorities will work together to procure intelligence and information systems needed to do the job. No longer can the historic justification of operational independence take precedence over the imperative of being able to track and deal with offenders effectively.
"We are therefore now introducing the first national police intelligence computer system—entitled 'Impact'.
"'Impact' will ensure that all forces use the same system to manage and share intelligence information.
"As an interim measure, we are bringing forward the nationwide introduction of the police local exchange. It will begin this autumn and be complete by next spring. It will provide an easily searchable index of all those on whom any police force holds information. Sir Michael commends this.
"But systems are only as good as the information they hold. In this case, because records were handled so badly and deleted, a national intelligence system could not have identified the concerns. Sir Michael therefore concludes that the police need clearer, more soundly based rules, for recording, retaining and reviewing, as well as deleting information.
"Before the inquiry was established, the Data Protection Act was criticised as a contributory factor. While it is no doubt complex, it embodies important principles. Sir Michael concludes that the loss of intelligence cannot be blamed on the Act. He does not believe that radical revisions are necessary.
"It is crucial that rules on managing information are clearly understood.
"I am therefore introducing, by the end of this year, a statutory code of practice on police information handling. All 43 forces will deal with intelligence information in the same way. This will be backed up by detailed operational guidance. Effective training, management and inspection will ensure that it is fully understood and consistently applied.
"This will link closely to the police national intelligence model. This sets out how forces should collect and handle intelligence. It is already providing a more consistent structure. The code will ensure that all forces are required to make the most effective use of this structure. Those few forces still not operating this model must now do so.
"But these recommendations apply substantially beyond policing. The report recommends social services should routinely notify the police when a crime against a child is committed or suspected. Sir Michael concludes that this is not always done.
"The social services database needs to hold details of all alleged sexual offenders involved with named children and should be easily searchable.
"My right honourable friend the Secretary of State for Education and Skills is working urgently on this. The department will shortly receive a serious case review report from Sir Christopher Kelly on other specific lessons for social services.
"Sir Michael has highlighted the importance of robust selection and recruitment. He has recommended that those recruiting staff in schools must be properly trained in safeguarding children. My right honourable friends the Secretary of State and the Minister for Children have agreed that selection panels should contain at least one panel member properly trained in this work.
"He also calls for stronger, more consistent vetting, and a new system for registering those working with children and vulnerable adults.
"We will therefore urgently consider his recommendation that a register be created to bring together all the relevant information held on individuals in a way which is easily accessible.
"We need to consider how this fits with and enhances the service already provided by the Criminal Records Bureau. We will also need to make the link to proposals for identity cards.
"Let me now turn to concerns about the two forces involved.
"Sir Michael highlights deficiencies by Cambridgeshire on the checks into Ian Huntley's suitability. Sir Ronnie Flanagan's parallel report for Her Majesty's Inspectorate of Constabulary into the investigation, which is being published today, also highlights concerns about processes and the actions of individuals.
"However, Ian Huntley is behind bars. Cambridgeshire acted effectively to achieve this. It also asked the Metropolitan Police to review its procedures at the time of the investigation.
"Failings were neither systemic nor corporate. I should also add that mistakes have been fully acknowledged and actions have been taken to ensure they do not recur.
"But much graver concerns are raised about the senior management of Humberside. There were, and I quote, 'very serious failings', some of which the Chief Constable became aware of only when hearing evidence to the inquiry. Sir Michael finds the lack of awareness of the scale of these failings over such a long period of time to be 'deeply shocking'.
"It is Sir Michael's view that the,
'final responsibility for these serious failures rests with Chief Constable David Westwood'.
It is difficult to disagree with this.
"Paragraph 2.94 could not be clearer. It says of Mr Westwood, and I quote,
'he was Chief Constable from March 1999 and, as such, became ultimately responsible for information management and information technology systems. The wide-ranging & systemic
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failures … existed in March 1999 and therefore predated him becoming Chief Constable. However, they were not identified and continued for a considerable period thereafter. Chief Constable Westwood must take personal responsibility for the continuation of those failures. From 1 September 1997, he had been Deputy Chief Constable, the second most senior officer on the force'.
"The role of any Chief Constable has to be one in which the public have confidence. In the face of serious criticism, it is my responsibility as Home Secretary to question whether people in Humberside can continue to have that confidence. Mindful of our duty of care, I asked Her Majesty's Chief Inspector of Constabulary, Sir Keith Povey, to discuss Sir Michael's findings with the Chief Constable yesterday.
"The strength of the report's criticism of him has led me to conclude that, using the powers available to me under the Police Act 1996, as amended by the Police Reform Act 2002, I should require Humberside police authority to suspend Mr Westwood as Chief Constable forthwith.
"I have also invited the police authority to consider what steps it should take, having regard to its statutory duty under Section 6 of the 1996 Act to maintain an efficient and effective force. I have asked it to report to me by 6 July.
"I have also asked Sir Keith to ensure that the professional judgment of Her Majesty's Inspectorate of Constabulary is available to the police authority. When I receive the authority's report I will then decide whether to initiate the process which could lead to the retirement or resignation of the Chief Constable.
"Finally, let me repeat my thanks to Sir Michael for his work. I believe that he is right to suggest the discipline of reconvening his inquiry in six months.
"We know that this must be yet another unbearable day for the families of Jessica and Holly. We owe it to them to make substantial progress, as rapidly as possible, in ensuring that these failures are not repeated.
"I commend the report to the House".
My Lords, that concludes the Statement.
3.30 p.m.
Baroness Anelay of St Johns: My Lords, I thank the Minister for repeating the Statement made a short while ago in another place by her right honourable friend the Home Secretary. I am aware that the Home Secretary gave my right honourable friend David Davis unusually early sight of both the report and the Statement. This is not just the normal courtesy. It reflects the fact that this is a question of public safety and that will be recognised in my response today.
I wholeheartedly endorse the Minister's remarks about the dignity shown by the families of Holly and Jessica in the past few months. Our thoughts are with them and I have no doubt that all Members of this House share a determination that these failures should not be repeated. We welcome the report of Sir Michael

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Bichard. It is exhaustive and we agree with most, but not quite all, of it. We consider his decision to reconvene in six months' time to review progress not merely a good idea, but one that should perhaps become standard good practice in reports such as this.
The report makes it clear that Cambridgeshire Criminal Records Bureau was so focused on the introduction of new systems that it failed to carry out crucial checks into Ian Huntley's background. We must ensure failures such as this never happen again. However, Sir Michael says that even if Cambridgeshire had got it right Ian Huntley's record would still have been missed because of other failures, most notably in Humberside Police.
There were two failures in Humberside Police: one relates to IT, and the other relates to the handling of the Huntley case. Even before the weeding of records took place, Ian Huntley's record of behaviour should have led police to act. We should consider the following facts. In August 1995, there was an allegation of unlawful sex with a 15 year-old; in May 1996, there was an allegation of unlawful sex with another 15 year-old; and, also in May 1996, there was an allegation of unlawful sex with a 13 year-old. That is not an IT failure. It is a failure of policing. These offences were known at exactly the same time, before they had been weeded by Humberside police. Is it any wonder that PC Harding concluded in his report, reproduced on page 52, section 1.229 of the report:
"It is quite clear that Huntley is a serial sex attacker and is at liberty to continue his activities"?
Sir Michael says that no one thing could have prevented what happened. In fact, if the police had acted on this sequence of events, Ian Huntley would presumably have been locked up. Incidentally, this failure preceded the current chief constable's arrival in post. His failures relate to the failures of the IT system and the consequences that flowed from that. In view of the fact that the Home Secretary has today initiated a quasi-judicial process under the Police Act 1996, as amended by the Police Reform Act 2002, over David Westwood, which I do not wish to prejudice, I will say no more about his role today.
The report states that social services should report incidents of sex with minors to police. I agree. However, the report also says there are "exceptional circumstances" when the police should not be notified. What exactly are those exceptional circumstances? When an adult is engaged in a sexual relationship with a child, surely there are no circumstances where the police should not be informed.
We now know that in 1995 social services knew of an allegation that Huntley was having sex with a 15 year-old girl but apparently chose not to inform the police. This was at exactly the same time as the cases I cited a moment ago, about which social services would not have known. They were not, and could not be, in possession of all the facts relating to public safety. Therefore, they should not make the decision. Will the Government review this aspect and consider the option of making it an absolute requirement to notify the police of such offences?
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Much of the report very properly focuses on the failure of information handling, primarily by Humberside, but also by Cambridgeshire Criminal Records Bureau, and generic failures by the Police Information Technology Organisation, ACPO, Her Majesty's Inspectorate of Constabulary and the Home Office. I agree with most of what Sir Michael says but issues arise on which I seek the Minister's opinion.
The report properly criticises the Humberside police IT practices and the lack of a national police IT system. It calls for the introduction of such a system as soon as possible. It does not say whether the problems of Humberside are replicated in other forces, although naturally I suspect that they might be. Neither does it deal with a problem we all know about—namely, that Whitehall, in general, and the Home Office, in particular, have a very poor track record of implementation of computer systems. So I welcome the Minister's comments on the police local exchange system. I also welcome the announcement on the police national intelligence computer system, the so-called "impact" system.
However, I shall make two suggestions to the Government. First, will they commission Sir Michael Bichard in the next six months to review all the IT systems in the 43 forces in order to establish the extent of the problem? Secondly, to minimise the risk of another computer disaster, will they use either the best practice that he identifies, or the already operational Scottish system, as the basis for the new national system?
The failure to implement such a system should have been identified much sooner. Sir Michael Bichard states in his report, at paragraph 2.131, that:
"HMIC could and should have been more proactive. Information systems are of obvious importance to policing and they could have been inspected effectively with relative ease".
Do the Government have any proposals to reform or improve the capability of Her Majesty's Inspector of Constabulary in IT review?
Sir Michael also recommends a registration system for all those working with children. Will this system apply to people who work in charities and voluntary groups, such as the Scouts, which often add great value and enjoyment to the lives of children?
We must remember that while child protection is clearly the paramount matter, a balance of justice must be established. A series of false allegations can effectively destroy an innocent person's career. Sir Michael envisages an appeal process for applicants who were refused registration. Sir Michael is absolutely right to do so. But how do the Government believe the appeal system will work? Will people know who is making the allegation against them—and, if not, how can it be challenged? Who will decide what information is held on record and how can this be challenged? Will the process be judicial? We recognise that these are difficult issues, but naturally they do need to be addressed.
The Minister will of course appreciate the burden that all this will place on the police. Humberside police will process 50,000 information requests this year.

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Across the area of England and Wales, that implies 2 million requests. How do the Government intend to progress work on that?
It is not just Humberside and Cambridgeshire who should read this report today; every police force and every social services department should read and learn the lessons of the report. If we fail, it will be a catastrophe measured in human tragedies.
3.40 p.m.
Lord McNally: My Lords, I thank the Minister and the Home Secretary both for making the report available at an early stage and for the prompt response to it today. Reading it this morning my mind went back to just over 20 years ago when I was in another place and we were debating the lessons to be learnt from the Yorkshire Ripper case. I remember people saying then, "If only we had computers"—because the Yorkshire police had been using card indexes to try to track the assorted information. Sadly, we need not only computers but the training and expertise to use them properly.
The report must make heartbreaking reading for the parents of Jessica Chapman and Holly Wells, for it contains in meticulous detail the "ifs" and "might have beens" which might have saved their daughters' lives. Our thoughts must be with them today. I think that they and we should be grateful to Sir Michael Bichard for a report that pulls no punches and makes very specific recommendations which must now be pursued with all vigour and urgency.
We can never say "never again" because, as the report says,
"the harsh reality is that if a sufficiently devious person is determined to seek out opportunities to work their evil, no one can guarantee that they will be stopped".
Human error happens in all walks of life. There will be many individuals and organisations who feel a terrible weight of responsibility in the light of these findings.
We welcome the fact that Sir Michael does not blame any individual for the murders other than Huntley himself. But that does not mean that there are not hard lessons to learn and personal responsibilities to be taken. Does the Home Secretary, in accepting Sir Michael's critique, accept that the Home Office bears its share of responsibility for some of the slipshod working and culture that the report reveals? Does he accept that there are frequent references to lack of training, lack of expertise and lack of guidance, pointing to failures right up the line of management to the Home Office itself?
How could the failures of the Humberside force go undetected or unremedied for so long? As the noble Baroness, Lady Anelay, rightly said, the specific case of Chief Constable Westwood is under review. However, what part in the failure to detect those failures should be shared by Her Majesty's Chief Inspector of Constabulary and by the local police authority? We take great pride in this country in local control of police, but if over a period of 10 years failures of this magnitude have occurred, then that responsibility also is with that police authority. As the
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noble Baroness, Lady Anelay, rightly said, how can we be sure that the spotlight that has shone so harshly on two police authorities and showed such glaring weaknesses would not reveal similar weaknesses in other authorities?
I wonder how much nearer this moves us to a national police force and how we are going to balance the kind of efficiencies to which the Minister referred in the Statement with the very strong local ethos in Britain of local accountability and local control.
The report refers to the fact that Cambridgeshire called in the Metropolitan Police at Scotland Yard at an early stage to review its procedures. When I was a lad it was almost customary to call Scotland Yard in for major cases. One wonders whether the necessary expertise, and not only that of Scotland Yard, is being brought in quickly enough, or whether local jealousies, turf wars or, dare we say it, budgetary controls from one police authority to another are preventing it.
I have just one comment on the social services, as this report awaits another one. I hope that we are not in for another outbreak, particularly in the tabloids, of social worker whipping. Social workers do society's dirty work. They have to deal with everyone from the dysfunctional to the criminally dangerous. Sometimes we have to appreciate that the support they receive from society as a whole is lacking. Of course they must learn the hard lessons as well, but it well behoves us to understand the difficult circumstances in which they often have to operate.
I was interested in the points on data protection and it was reassuring to hear what was said. It is important also to ensure that the reforms which we have supported, such as data protection and the Human Rights Act, are not being used to justify inaction or the failure to share information.
A question-and-answer session following the Statement is an inadequate response in view of the report's importance. I hope that the Government will give a full day at least in this House for a debate on the report, not least to draw on the considerable experience that exists in this House on the matters that it reviews. I share with the noble Baroness, Lady Anelay, the welcome of Sir Michael's commitment to a review of progress and believe that it should be standard.
I know that nothing can assuage the parents' grief and that no new laws, guidance or systems can make sense of their daughters' deaths. However, whatever level of responsibility belongs not only to police forces and social services departments but to every one of us as individuals when we accept a reference, check a fact, ask a question or follow a set procedure, let us all remember Soham. In so doing we may save others. Our thoughts are with the parents. I think that the whole country has a debt of gratitude to Sir Michael Bichard for a job well done.
3.48 p.m.
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Anelay, and the noble Lord, Lord McNally, for the sentiment and tone of their

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remarks. It is absolutely true that this is an incredibly sad and sobering day for everyone. No one comes away from the report without feeling a sense of responsibility and obligation to do better. I say to the noble Lord, Lord McNally, that it is absolutely accepted that there are lessons here to be learnt by the Home Office and by Her Majesty's Inspectorate of Constabulary. None of us should forget those lessons.
The noble Lord, Lord McNally, asked for a full-day debate on the report. As he will know, that matter could be settled through the usual channels. I am sure that if his sentiment is felt by all Benches, the usual channels will undoubtedly pursue the matter with great commitment.
Public safety is of course a matter of huge concern to us all. I endorse what was said by the noble Baroness, Lady Anelay; namely, that it is a very good thing indeed that Sir Michael Bichard will have the opportunity to review his report in six months' time. We are immensely grateful to him for that. I do not know whether he would be entirely grateful if we were also to burden him with reviewing all of the IT proceedings. I think that even his generosity has a certain limitation.
The noble Baroness was right to mention the IT procedures. Of course, I hear what she says but I hope that she will accept that we have made an enormous contribution to improving those IT systems. Indeed, there are some things about which we should feel a modicum of satisfaction; for example, the way in which we have implemented the DNA database and the other systems. We have invested more than £1.3 billion since 2002 on those systems simply because we understood the enormous importance of having a really good and effective method of communication.
The noble Lord, Lord McNally, highlighted the question of where the balance should rest between national and local responsibilities. There is a natural tension in that balance. We shall seek to preserve a sense of balance and fairness. The steps that we are taking to bring in a code and to make a method available to all 43 police forces so that they will have a similar template and operate in the same way may well help us to address the difficult issue of where that tension should properly lie.
The noble Baroness properly mentioned the Scottish system. It is a good one and we shall wish to look at it very carefully. The noble Baroness will know that the system was adopted on a consensual basis. The chief constables in Scotland decided that they would undertake both the intelligence sharing and the IT work together. The noble Baroness will know that we as a government have not resiled from that commitment. We have advocated and supported the tripartite approach to problem resolution between ACPO, ourselves and the police authorities. Part of the solution involves working in partnership, spreading good practice and therefore working together. We shall continue to look at those issues.
The noble Baroness asked a number of specific questions about the appeal system and how matters would be reviewed. In repeating the Statement made
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by my right honourable friend the Home Secretary, I made it absolutely clear that we shall look urgently and energetically at these issues. It is absolutely right that Holly and Jessica's tragedy should at least enable us to do better than we have done hitherto. There is hope that the highlighting of faults will enable us to do better in future. The police authorities and HMIC could have picked up problems. I have made it absolutely clear that they acknowledge that.
The noble Baroness, Lady Anelay, asked a specific question about the direct reporting of each and every unlawful sexual contact with an underage person. She is absolutely right as regards what she said about adults. The issue that was raised—there is by no means a definitive position—is whether 14 and 15 year-olds participating in certain sexual exploration with each other should be included in the prohibition; that is, when two children of comparable ages are involved. We shall need to consider those issues. These are difficult issues and we shall have to be very careful that in wanting to respond with vigour and energy to improve the situation we are not over zealous in the way in which we seek to implement provisions as we need to take into account very important issues.
3.54 p.m.
Lord Campbell of Alloway: My Lords, I hope that I may ask a very short question on the sharing of information. Is it not implicit that a statutory code of practice to establish clear national standards in this context should have legal efficacy?
Baroness Scotland of Asthal: My Lords, the noble Lord will know that a statutory code will have great force because each and every police force will be obliged to adhere to it. One of the difficulties that this case has highlighted is the ability of the 43 forces to have slightly different approaches to the way in which they deal with these issues. We have learnt the very painful lesson that in this area that degree of local autonomy is not one that we can continue in the future.
Viscount Simon: My Lords, I think it was a debate on 1 May 1996 in which I took part that I drew attention to the fact that police forces were not sharing information and that an individual who had committed a criminal offence could pass from one constabulary area to another undetected. Had those observations been taken into account following that debate, would these murders have taken place? Would the inquiry have been necessary? Would we be debating it now?
Baroness Scotland of Asthal: My Lords, I say to my noble friend that those issues were taken into account. It was appreciated that we needed to have a joint sharing of intelligence. A number of issues arose concerning how we should do that and whether the intelligence issue should be dealt with before the IT issue or vice versa. As I say, we have learnt some very painful lessons. I absolutely accept what my noble friend says in that perhaps the sharpness of that work was not properly understood. I reassure the House

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that it is absolutely understood by all of us. We shall seek to do all we can to ensure that this lesson does not have to be learnt again.
Baroness Sharples: My Lords, can we be confident that the proposed new national computer system will work in view of the fact that a number of previous systems have not worked? Is it merely a matter of training?
Baroness Scotland of Asthal: My Lords, we are more confident now than we have been hitherto because of the changes that we have made in the development of practice as a result, frankly, of other systems not working. Noble Lords will be familiar with the way in which we have piloted certain developments to test them out to ensure that they can work appropriately. We have tried to improve them. As I said, we have tried to learn from the lessons of the past to ensure that any future development has the maximum possibility of working successfully and smoothly.
Baroness Greengross: My Lords, will the Minister clarify a point about POVA, the Protection of Vulnerable Adults scheme? I was pleased to hear about the recommendation concerning a register. However, I wonder whether we are focusing enough on vulnerable people, whether or not someone working with them has a criminal record. Does the Minister agree with me that Huntley should have been on a POVA style list even though he did not have a relevant criminal record? Can we be certain that the Bichard recommendations will cover such vulnerable people in the future and protect them?
Baroness Scotland of Asthal: My Lords, we absolutely understand the point that the noble Baroness makes about vulnerable people. When we review the systems, we shall ensure that they are very much borne in mind, together with all the other vulnerable individuals. The noble Baroness says that Huntley should have been on a list. However, that is reliant on the fact that someone retains the relevant information and puts it on such a list. Tragically, we have learnt that human failure in that regard is as important as IT failure.
Lord Mackenzie of Framwellgate: My Lords, does my noble friend agree with me that a rather simplistic solution would be simply to have heads on platters? I agree somewhat with—I nearly said my noble enemy—the noble Lord, Lord McNally, that obviously police authorities and, indeed, the inspectorate of constabulary have some responsibility in this matter. We have the National Criminal Intelligence Service. If that body does not keep national criminal intelligence, what does it keep? It runs the football hooligans register which seems to work extremely well. I wonder why we need the new Impact computer when we have a National Criminal Intelligence Service.
Does the Minister also agree that false intelligence can lead in some cases to extreme injustice, as the noble Lord, Lord McNally, said? One allegation against an
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individual who applies for a job can be totally different from five allegations from different sources. Therefore, the quality of intelligence is absolutely critical, and we should not take the risk of extreme injustice in some cases.
Perhaps we should think outside the box and consider not only a national intelligence service, but a Europe-wide one, bearing in mind the reduction of barriers and the rights of people to travel. Criminal activity takes place across borders and, given the circumstances in France recently with the young Dickinson girl and the case with Marc Dutroux in Belgium, we clearly need to think wider than our own borders and perhaps develop a Europol criminal intelligence system.
Baroness Scotland of Asthal: My Lords, my noble friend raises a very interesting point in relation to a Europe-wide intelligence service. Noble Lords know that we are working as hard as we can with our European colleagues. It is right that not all European countries have the same system in terms of identifying perpetrators and targeting them in a way that we would recognise. We continue that work.
This is certainly not a case of heads on platters. I hope that noble Lords will find that we have been judicious and have tried to be proportionate in the way in which we have approached the issues. The decisions to which we have come have been come to painfully and very carefully, after proper consideration of the discoveries made by Sir Michael Bichard in his report.
The Earl of Northesk: My Lords, I associate myself with the heartfelt expressions of sympathy with the families of Jessica Chapman and Holly Wells from the respective Front Benches.
Obviously, I have not had the opportunity to read the report in full, but I draw the Minister's attention to paragraph 23 of the introduction, which states:
"I suggest … that better guidance is needed on the collection, retention, deletion, use and sharing of information, so that police officers, social workers and other professionals can feel more confident in using information properly".
I also draw her attention to the Home Secretary's insistence that a national system across all relevant services, allowing more effective sharing of information and intelligence, is urgently needed. Will the Minister accept that that gets to the core of the problem facing us, and that the legislative opportunity to address it exists in the form of an appropriate amendment to the Children Bill? That being so, and bearing in mind the tenor of Sir Michael's comments, will the Government seize that opportunity?
Baroness Scotland of Asthal: My Lords, I am always attracted by such seductive lures cast to me at the Dispatch Box. However, it is important that we get things right. My noble friend Lord Mackenzie indicated that we should not be precipitate. We have to be balanced and make sure that the systems that we put in place are fair and proportionate, and that we might not regret them later. I know the attraction of the Bill; it is like a passing bus on to which the noble

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Earl asks me to jump, but that may be a precipitate move. We will of course give all issues very careful consideration.
Lord Elton: My Lords, there is greater need for impatience than the noble Viscount, Lord Simon, suggests. It was in the 1970s that the necessity of transferring information across county borders in relation to children at risk was first raised, and I agree with my noble friend Lord Northesk that the matter is relevant to the Bill, on which the noble Baroness takes no part. However, I hope that her colleagues will note the matter.
Because of the anxiety about the transfer of information, and because the case has so clearly shown that one individual moving from place to place can strike again and again with impunity without it, I was rather distressed to hear in the Statement that only England and Wales were under review. I am not sure that I go so far as the noble Lord, Lord Mackenzie of Framwellgate—we want to think carefully before we start a monster machine to cover the whole of Europe—but the United Kingdom as a whole should be in the frame, not simply England and Wales. That is a comment and a question; I invite the noble Baroness to say that the Government will consider embracing Scotland and Northern Ireland as well.
My second question is on whether the statutory code of practice, when introduced, will be subject to the affirmative procedure. Will a means of discussing it be found, in the same way as codes of practice were discussed in parallel with the passing of the then PACE Bill in this House? In that context, what the noble Lord, Lord McNally, said about the dangers of false information is very relevant, because there has to be a means whereby someone wrongly identified or accused can clear their name. At the moment, there is no reason for them to know that it needs to be cleared.
Baroness Scotland of Asthal: My Lords, no decision has been made on whether the code of practice should have the negative or affirmative resolution procedure attached to it. We will obviously have to consider the merits of that in due course. Noble Lords will know that England and Wales has one legal judicial system and that a different system prevails for Scotland, with a slightly different system for Northern Ireland. Therefore, when we expressed our views in the Statement, that was obviously in relation to England and Wales. However, there is a huge job of work to do in co-ordination and co-operation right across the United Kingdom. We will certainly look at that very carefully and talk to colleagues to ensure that that synergy takes place.
Lord Ezra: My Lords, although I welcome very much the positive response of the Government to the report on establishing a national system, I am somewhat concerned about the size of the problem. I was impressed with the statistic cited by the noble Baroness, Lady Anelay, that 50,000 queries a year are addressed to Humberside alone. That seems to put
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substantial additional burdens on the police force. Therefore, the question arises of whether there should not be a separate agency to deal with such matters, so that the police would not be diverted from their other activities in following up those inquiries.
Baroness Scotland of Asthal: My Lords, I hear what the noble Lord says, but he will know that there is an issue in terms of the proliferation of agencies involved in such activity and making sure that the practitioners that collate the information actually participate in the system. When we look at creating something more fit for the purpose than what we have now, all those issues will of course be very much to the forefront of our minds.

Higher Education Bill
4.7 p.m.
Lord Grocott: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that she, having been informed of the purport of the Higher Education Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Lord Shutt of Greetland Lord Shutt of Greetland moved Amendment No. 1:
After Clause 25, insert the following new clause—
"REPAYMENT OF FEES VIA VOLUNTARY SERVICE
(1) The Secretary of State shall use his powers under section 186 of the Education Act 2002 (c. 32) (student loans) to develop a scheme whereby fees charged under sections 23 and 24 of this Act may be repaid in whole or in part through the performance of voluntary service.
(2) Regulations under section 186 of the 2002 Act shall specify both the types of voluntary service eligible and the minimum period of service necessary to qualify for such repayments."
The noble Lord said: My Lords, I again speak on the issue of volunteering. There may be advantages and disadvantages to having three bites at a cherry, but there is a sense in which markets move upwards or downwards. I feel very much that markets are moving upwards so far as the amendment is concerned, or at least in terms of my enthusiasm for it. I am therefore pleased to move the amendment.
There are three relevant areas. I do not want to go over old ground, and I understand that it is the convention of the House that we do not do so. First, I should establish volunteering as worth while and valuable for young people. There has been support all round the House for that principle.
My second point is that we do not really know at this stage where the Bill will lead us in a variety of ways, the effect that it will have on young people and their parents in their attitudes to university education—and on many other areas of later life. All that we know is that there will be another element of debt, on top of other debts, in our present society. Therefore, there is a major worry that volunteering will not be uppermost in the minds of people who are about to make their

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way in the world after obtaining a degree. The amendment aims to suggest to them that perhaps it might be worth considering volunteering.
My third point is that there is a gap in the volunteering market for people who have obtained their degrees and at that point might consider, "Shall we do some volunteering or do we make our way in the world?". That gap is not there at other times of life. For example, the "gap year" is a time when there are opportunities for volunteering and there are no associated financial problems.
There are also opportunities for people later in life. It is interesting that Voluntary Services Overseas—VSO—is keen on people who can bring many different experiences of life, who then go overseas and give their services in the third world and so on. The numbers of people who have graduated who take up volunteering at that stage are very low. They could benefit in many ways from the amendment.
I was grateful at an earlier stage to have the support of the noble Lord, Lord Campbell-Savours, who is present. He referred to VSO. Its chief executive, Mark Goldring, has pointed out that this amendment, or an amendment similar to this, would be valuable to that organisation. He has been mooting that idea and said that it should be passed on to the Minister.
A concern was raised earlier over the nature of the scheme. In moving the amendment we believe that it is important to establish the principle and not be prescriptive over the details of the scheme. There are two possible ways forward. One would be for the Government, who are invited to propose a scheme, to say, "Our proposal is for there to be 1,000 opportunities a year". They would discuss that with the organisations involved in volunteering and ask them to bid, as it were, for the numbers that they might be able to take from those 1,000 a year. Another way would be to have no fixed limit, but exacting standards on who could benefit from what might be called a fee remission certificate, provided that they did the appropriate amount of volunteering.
We are right to say, "Let us establish this important principle to fill an obvious gap", but not to go into details that might well cover half a dozen pages in the list of amendments. I beg to move.
4.15 p.m.
Lord Phillips of Sudbury: My Lords, I am grateful for the opportunity to support the amendment, even at Third Reading. It is immensely imaginative and in years to come, if passed, might be seen as a landmark. As my noble friend Lord Shutt said, it could develop, by degrees, into a quiet revolution in opportunities for young people to serve society. We all know that the modern world of education is such that the fees students must pay for university, and then for post-university qualification, are a huge disincentive for many young people to engage in voluntary activity. We also know that the level of giving of time and money by young people under 30 has declined and is declining. We know, too, that the top 10 per cent of earners in the population gives less than a third of what
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the bottom third gives as a proportion of their income. Those are manifestations of the pressures and the particularities of modern life.
I urge the Government to give the amendment a fair wind because they know better than anyone that the voluntary sector often does the job of government in a more effective and cost-efficient way. If this scheme is established, the benefit to the community from all angles, particularly regarding the cost to the Exchequer, will not be the concession by the Exchequer to those students that it might appear to be, but will be of huge net benefit in real terms, admittedly in ways that are not easily quantifiable. I would hope that in future it might be possible to extend the scheme to provide opportunities for people before university, so that they could gain a credit for doing their voluntary service before going up. I hope that the amendment will be accepted by the Government.
Lord Campbell-Savours: My Lords, I spoke to a similar amendment on Report. I do not believe in repetition on Third Reading and I hope that the amendment is carried.
Lord Forsyth of Drumlean: My Lords, I echo the sentiments expressed by the noble Lord, Lord Campbell-Savours. If I have a reservation about the amendment, it is that it should not be necessary to amend the Bill to make the Government use their powers for this purpose. Both the noble Lord, Lord Shutt, and the noble Baroness, Lady Sharp of Guildford, have tabled the amendment in the hope of teasing the Government to go down this course.
Of course there will be much detail to be decided relating to how the scheme would work, how it would be evaluated and so on. But it is a good idea that would encourage many of our youngsters, who, more than in any other country in the world, have a distinguished record of involvement in volunteering. So, I hope that, even if the Minister is still reluctant to accept the amendment, the Government might hint that they are open-minded about considering a scheme of this kind.
The Lord Bishop of Portsmouth: My Lords, I am grateful to the noble Lord, Lord Shutt, for moving the amendment and I was glad that on Report we could agree the inclusion of part-timers. Voluntary work is a fact of modern life and an indication of its complexity. If the Government cannot look kindly on the amendment, I hope that they might smile on the creatively Jesuitical intervention of the noble Lord, Lord Forsyth—and I use that adjective in ecumenical brotherliness.
Lord Dearing: My Lords, I have not spoken on this matter before, but I shall be brief, nevertheless. I agree with the noble Lord, Lord Shutt, that voluntary service is a valuable part of national life. It is vital to society and, perhaps, no less to the individual who gives it. However, I am less than enthusiastic about putting this amendment in the Bill. A minor reason is that it would be the third time that we have, as it were, diverted some money that was intended for higher

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education to another cause. My particular reason is that the essence of voluntary service is of giving without payment. We diminish that when we begin to say that it attracts remuneration. A second point is that it is a bad principle to identify this form of financial stipend with graduates, rather than to all members of our society who give. There are other people in straitened circumstances who give to society. Let us celebrate that, along with the gift that young graduates make to society. On those grounds, I do not think that this is an appropriate matter for the Bill.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, I agree with all noble Lords who have spoken about the importance of volunteering. I support what the noble Lord, Lord Forsyth, said about celebrating our young people who do so much to ensure that people give to society in the most appropriate ways. I declare my interest as having spent a great deal of my life working around the voluntary sector. Indeed, I spent part of it with the Charities Aid Foundation looking at the whole question of incentivising people to volunteer.
I start by echoing the sentiments of the noble Lord, Lord Dearing, because there is an issue of principle about which I am uneasy. I believe that volunteering gives huge benefits to society—I agree completely with the noble Lord, Lord Shutt, about that—but I also believe that it gives huge benefits to the individuals who participate in it.
It is important to understand that the principle behind volunteering is that one gives of oneself. We would need to think very carefully about incentivising people. In the work that I have done, that has always been a matter of training and providing opportunities for accreditation of the work that people do as volunteers. It is also a matter of recognition by employers and universities of the fact that people have worked in a voluntary capacity in some way. Much of the work that I have undertaken personally has related to ensuring that recognition is given to the contributions that people make to society in this way.
The amendment concerns a different principle—that is, it states that we shall also, in a form, remunerate people for doing that work. I have some difficulty with that. I understand that underlying the amendment of the noble Lord, Lord Shutt, is the desire to look at the issue of volunteering and to ensure that a real pool of talent is available. It is a desire to ensure that young people, including young graduates, participate in this way with the talents that they have.
Noble Lords will know that we have established the Russell Commission, which is specifically working towards a national youth volunteering strategy. As the noble Lord, Lord Shutt, indicated, we believe that it is very important to examine any deterrents that may exist to participation in voluntary work.
I say to the noble Lord, Lord Phillips, in particular, that I recognise that there are issues surrounding the number of people who take up voluntary work. But, as
1140
the noble Lord knows very well, all the research in which I have been involved and the work that I have done with organisations has indicated that one of the critical factors is not financial incentive but time. The inability of people to take part in regular volunteering led to, for example, the setting up of the New York Cares project, which I consider to be spectacular. I recommend that noble Lords take the opportunity to have a look at that project. Rather than trying to persuade people to make a regular commitment, which they find impossible to meet, the project allows young professionals to volunteer in imaginative and creative ways.
Therefore, I hope that one way in which the Russell Commission will support such work is in examining how we can ensure that opportunities exist to volunteer in appropriate ways. As I said, that includes considering the issue of availability of time.
Lord Phillips of Sudbury: My Lords, I am most grateful to the noble Baroness for giving way. Does she accept that the amendment does not remotely require remuneration at what one might call a "market" level and that it would provide the possibility of modest financial assistance to the young people involved, which might make all the difference between their being able to give a major chunk of their time and not being able to do so at all?
Baroness Ashton of Upholland: My Lords, I return to the issue with which we began our deliberations on the nature of the proposals before your Lordships. We are saying that people who earn less than £15,000 a year will not pay back any of their student loan. Indeed, after 25 years, the loan would be written off. A salary of £15,000 is not huge; in many cases, it is a modest sum. None the less, the Bill contains what we believe to be appropriate measures in relation to the contributions that students make. I do not consider it to be debt in the traditional sense, as the noble Lord knows very well.
I simply say to the noble Lord, Lord Shutt, that if one remunerates people for carrying out voluntary work, a different principle is involved. In his amendment, the noble Lord is clearly saying that there could be an incentive for people to participate in such work. We cannot ignore that and say that it should be viewed in the same way as volunteering, as I understand the concept.
Real issues arise concerning the number of voluntary organisations that we have and how we would ensure that such a scheme recognised the kind of volunteering that would be eligible. The noble Lord, Lord Shutt, touched on that when he described the scheme that would need to be set up. I am very keen that people volunteer in all kinds of ways in all kinds of communities. I would be nervous about saying that if one volunteered for VSO, that would be acceptable, but that if, for example, one volunteered for Home-Start (Stevenage), that would not. We want to encourage volunteering in all its forms in all our communities and, again, I have some concerns in that respect. I am not sure that we would be able to find

1141
ways around that which would be satisfactory to all concerned. It is very nice of the noble Lord, Lord Shutt, to leave it to the Government to sort out the detail. I thank him very much.
There are also issues of principle behind the detail concerning how the scheme would be run. If we had such a scheme, we would need to ensure that people turned up to volunteer when they said they would. They would need to be monitored because we would, indeed, be writing off student loans. Therefore, a system of fraud prevention would need to be in place. Noble Lords will appreciate that this is public money and we would have to ensure that the scheme was carried out properly. It sets a challenge in terms of bureaucracy and so on, and, as I said, there is an issue of principle about which I have some concerns.
I have set out my reservations on the matter and I hope that the House will appreciate that they are genuine. We have already raised this proposal with the Russell Commission. I can say to the House that if, having deliberated on it, the commission decides that it has merit, then, under Section 186 of the Education Act 2002, we already have the power to pay off loans and we do not need to amend this Bill. I am happy to accept the general concerns raised by noble Lords, but I hope that I have balanced them to some degree by describing not only the logistical issues concerned but the issues of principle.
We cannot agree to a duty on the Government to provide such a scheme without looking at the implications of that duty, and I have outlined some of those. I have not even raised the issue of the cost that would be involved. Costs have already been mentioned but, again, this would involve another sum of money to come out of the higher education budget. I simply refer to the theme of top-slicing in passing; none the less, it is important.
I give the commitment to your Lordships that we shall raise the matter with the Russell Commission and we shall do so in the spirit of those who tabled the amendment. We need to think through how to obtain high-quality volunteering from our young people. If the Russell Commission felt that this issue was important, we would already have the power to carry it out. I believe that, at this stage, that is a commitment worth having from the Government. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Shutt of Greetland: My Lords, I thank my noble friend Lord Phillips of Sudbury, the noble Lords, Lord Campbell-Savours and Lord Forsyth, and the right reverend Prelate the Bishop of Portsmouth who have spoken in favour of the amendment. It was helpful to have the comments of the noble Lord, Lord Dearing, although they were not quite as helpful as others.
I hope that your Lordships will accept the challenge. Reference has been made to remuneration and incentive. I have never thought that there was anything wrong with an incentive—people have to live whatever the position is in the scheme. The beauty of the
1142
different stages of a Bill is that it gives one an opportunity to speak to experts in the field. I understand, for example, that VSO pays people at the rate paid in that country and they do not bring any money home.
So there will need to be remuneration, but it will be fairly low. I suppose that if I had worked up the scheme in absolute detail it would have been attacked in absolute detail. The Government have an army of people who are very good at writing documents which eventually become schemes and so on. If they have difficulties I will offer to help. It may well be that other noble Lords would offer to help and we could create a really good scheme.
I feel that noble Lords would like to give such a scheme a fair wind. I should therefore like to test the opinion of the House.
4.30 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 145; Not-Contents, 155.

Division No. 1

CONTENTS

Addington, L.

Garden, L.

Alton of Liverpool, L.

Glenarthur, L.

Anelay of St Johns, B.

Glentoran, L.

Astor of Hever, L.

Gray of Contin, L.

Attlee, E.

Greaves, L.

Avebury, L.

Greenway, L.

Barker, B.

Griffiths of Fforestfach, L.

Beaumont of Whitley, L.

Harris of Richmond, B.

Biffen, L.

Hayhoe, L.

Blaker, L.

Henley, L.

Blatch, B.

Higgins, L.

Bowness, L.

Holme of Cheltenham, L.

Bradshaw, L.

Home, E.

Bridgeman, V.

Howe, E.

Brooke of Sutton Mandeville, L.

Howe of Aberavon, L.

Brougham and Vaux, L.

Howell of Guildford, L.

Burnham, L.

Hunt of Wirral, L.

Buscombe, B.

Hurd of Westwell, L.

Byford, B.

Jenkin of Roding, L.

Caithness, E.

Kalms, L.

Campbell-Savours, L.

Kimball, L.

Carlisle of Bucklow, L.

King of Bridgwater, L.

Clement-Jones, L.

Kingsland, L.

Cope of Berkeley, L.

Laird, L.

Courtown, E.

Lamont of Lerwick, L.

Cox, B.

Lane of Horsell, L.

Crathorne, L.

Lester of Herne Hill, L.

Crickhowell, L.

Lindsay, E.

Dean of Harptree, L.

Linklater of Butterstone, B.

Denham, L.

Livsey of Talgarth, L.

Dholakia, L.

Lucas, L.

Dixon-Smith, L.

Luke, L.

Dundee, E.

Lyell, L.

Eden of Winton, L.

McColl of Dulwich, L.

Elles, B.

Mackay of Clashfern, L.

Elliott of Morpeth, L.

Mackie of Benshie, L.

Elton, L.

Maclennan of Rogart, L.

Ezra, L.

McNally, L.

Falkland, V.

Maddock, B.

Falkner of Margravine, B.

Maginnis of Drumglass, L.

Fookes, B.

Mar and Kellie, E.

Forsyth of Drumlean, L.

Marlesford, L.

1143

Masham of Ilton, B.

Roberts of Conwy, L.

Mayhew of Twysden, L.

Rodgers of Quarry Bank, L.

Methuen, L.

Roper, L. [Teller]

Michie of Gallanach, B.

Rotherwick, L.

Miller of Chilthorne Domer, B.

St. John of Bletso, L.

Miller of Hendon, B.

St John of Fawsley, L.

Molyneaux of Killead, L.

Saltoun of Abernethy, Ly.

Monro of Langholm, L.

Sandberg, L.

Montrose, D.

Sandwich, E.

Morris of Bolton, B.

Scott of Needham Market, B.

Mowbray and Stourton, L.

Seccombe, B. [Teller]

Murton of Lindisfarne, L.

Selborne, E.

Newby, L.

Selsdon, L.

Noakes, B.

Sharp of Guildford, B.

Northesk, E.

Sharples, B.

Northover, B.

Shaw of Northstead, L.

Onslow, E.

Sheppard of Didgemere, L.

Oppenheim-Barnes, B.

Shutt of Greetland, L.

Park of Monmouth, B.

Simon of Glaisdale, L.

Peel, E.

Skelmersdale, L.

Perry of Southwark, B.

Taverne, L.

Peyton of Yeovil, L.

Thomas of Gresford, L.

Phillips of Sudbury, L.

Thomas of Walliswood, B.

Plumb, L.

Tope, L.

Portsmouth, Bp.

Tordoff, L.

Prior, L.

Waddington, L.

Quinton, L.

Walmsley, B.

Razzall, L.

Walpole, L.

Redesdale, L.

Williams of Crosby, B.

Renton, L.

Williamson of Horton, L.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Evans of Parkside, L.

Ahmed, L.

Evans of Temple Guiting, L.

Allenby of Megiddo, V.

Falconer of Thoroton, L. (Lord Chancellor)

Alli, L.

Amos, B. (Lord President of the Council)

Falkender, B.

Farrington of Ribbleton, B.

Andrews, B.

Faulkner of Worcester, L.

Archer of Sandwell, L.

Filkin, L.

Ashton of Upholland, B.

Fitt, L.

Bach, L.

Fyfe of Fairfield, L.

Bassam of Brighton, L.

Gibson of Market Rasen, B.

Berkeley, L.

Gilbert, L.

Bernstein of Craigweil, L.

Golding, B.

Bhattacharyya, L.

Gordon of Strathblane, L.

Billingham, B.

Gould of Potternewton, B.

Blackstone, B.

Graham of Edmonton, L.

Borrie, L.

Grantchester, L.

Bragg, L.

Gregson, L.

Brennan, L.

Grocott, L. [Teller]

Brooke of Alverthorpe, L.

Harris of Haringey, L.

Brookeborough, V.

Harrison, L.

Brookman, L.

Hart of Chilton, L.

Brooks of Tremorfa, L.

Haskel, L.

Carnegy of Lour, B.

Haskins, L.

Carter, L.

Henig, B.

Carter of Coles, L.

Hilton of Eggardon, B.

Chorley, L.

Hogg of Cumbernauld, L.

Christopher, L.

Hollis of Heigham, B.

Clark of Windermere, L.

Howe of Idlicote, B.

Clinton-Davis, L.

Howells of St. Davids, B.

Cobbold, L.

Howie of Troon, L.

Corbett of Castle Vale, L.

Hoyle, L.

David, B.

Hughes of Woodside, L.

Davies of Coity, L.

Hunt of Chesterton, L.

Davies of Oldham, L. [Teller]

Hunt of Kings Heath, L.

Dean of Thornton-le-Fylde, B.

Irvine of Lairg, L.

Dearing, L.

Janner of Braunstone, L.

Desai, L.

Jay of Paddington, B.

Dixon, L.

Jones, L.

Donoughue, L.

Jordan, L.

Drayson, L.

Kilclooney, L.

Dubs, L.

King of West Bromwich, L.

1144

Kirkhill, L.

Randall of St. Budeaux, L.

Layard, L.

Rendell of Babergh, B.

Lipsey, L.

Richard, L.

Lockwood, B.

Rix, L.

Lofthouse of Pontefract, L.

Rogan, L.

Macdonald of Tradeston, L.

Rooker, L.

McIntosh of Haringey, L.

Sainsbury of Turville, L.

McIntosh of Hudnall, B.

Sawyer, L.

MacKenzie of Culkein, L.

Scotland of Asthal, B.

Mackenzie of Framwellgate, L.

Simon, V.

Marsh, L.

Slim, V.

Mason of Barnsley, L.

Smith of Leigh, L.

Massey of Darwen, B.

Stallard, L.

Merlyn-Rees, L.

Symons of Vernham Dean, B.

Mishcon, L.

Taylor of Blackburn, L.

Mitchell, L.

Temple-Morris, L.

Monson, L.

Thomas of Macclesfield, L.

Morgan, L.

Thornton, B.

Morgan of Huyton, B.

Tomlinson, L.

Morris of Aberavon, L.

Triesman, L.

Morris of Manchester, L.

Tunnicliffe, L.

Moser, L.

Turnberg, L.

Nicol, B.

Turner of Camden, B.

Norton of Louth, L.

Uddin, B.

O'Neill of Bengarve, B.

Varley, L.

Palmer, L.

Walton of Detchant, L.

Patel, L.

Warner, L.

Patel of Blackburn, L.

Warwick of Undercliffe, B.

Paul, L.

Whitaker, B.

Pitkeathley, B.

Whitty, L.

Plant of Highfield, L.

Wilkins, B.

Ponsonby of Shulbrede, L.

Williams of Elvel, L.

Prys-Davies, L.

Wilson of Dinton, L.

Puttnam, L.

Wilson of Tillyorn, L.

Quirk, L.

Winston, L.

Radice, L.

Woolmer of Leeds, L.

Ramsay of Cartvale, B.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 27 [Condition that may be required to be imposed by Higher Education Funding Council for Wales]:
4.40 p.m.
The Deputy Speaker (Lord Carter): My Lords, before calling Amendment No. 2, I should point out that it has been misprinted. The last line should read:
"the first three years of a first degree course".
I call Amendment No. 2.
Lord Renfrew of Kaimsthorn Lord Renfrew of Kaimsthorn: moved Amendment No. 2:
Page 13, line 45, at end insert—
"(d) to ensure that, in respect of any qualifying course, no qualifying fees are charged to any eligible student for any academic year beyond the first three years of a degree course."
The noble Lord said: My Lords, with the leave of the House, I should like to dissolve the proposed grouping and speak to Amendment No. 2 now and Amendment No. 15 in its place when it is called. I hope that that will be for the convenience of the House. My reasoning is that I have learnt that a number of noble Lords have reservations about Amendment No. 2 but are much happier with Amendment No. 15, so I shall not deal further with Amendment No. 15 at present.
Amendment No. 2 relates to Wales, which is why it becomes more complicated than might otherwise be the case. Your Lordships will recall that on Report precisely the same wording was carried as an amendment proposed by my noble friends Lord Forsyth and Lord Skelmersdale. It was proposed to Clause 24:
"Condition to be imposed by English funding bodies".
It therefore had the effect that students on a first degree course lasting for more than three years—such as not only medics, vets and architects but many studying four-year courses in science and engineering at many universities—would be required to pay top-up fees only for the first three years of their course, not subsequently. That amendment was carried in relation to England.
When we reach Amendment No. 15, I will point out that the amendment carried on Report left the burden of paying those fees on universities, whereas Amendment No. 15 would place that burden on the Secretary of State. But for the moment, Amendment No. 2 would introduce provisions to Clause 27:
"Condition that may be required to be imposed by Higher Education Funding Council for Wales",
to establish a symmetry between the situation in Wales and that in England. Although I am no expert on higher education in Wales, it seems inequitable that students at Welsh universities should be expected to pay top-up fees for fourth, fifth or even sixth years for a first degree course whereas, in the Bill as already amended, students at English universities are not expected so to do.
That is the purpose of the amendment. I beg to move.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for raising the issues that, as he rightly says, he raised on Report. I hope that he will forgive me; I started off on this Bill by trying to make him a happy Peer but have consistently made him unhappy ever since. I must say that he has also made me an unhappy Peer from time to time. I shall simply repeat what I said about the situation in England. I know that the noble Lord has degrouped his amendment, but he made a slight reference to Amendment No. 15 and, with the forbearance of the House, I shall make a similarly slight reference. There is one pot of money. Wherever the noble Lord puts the onus, it is one pot of money and the effect on universities is the same. We will debate that at greater length.
The passing of this amendment for Wales would create exactly the same problem that it would in England. That is twofold. First, the costs that we anticipate for England are roughly £180 million for universities to continue to offer the courses that they currently offer for more than three years. Secondly, it is a huge disincentive to offer courses, including sandwich courses, modern foreign language courses, engineering, veterinary and architectural courses. Noble Lords know those courses very well; indeed, institutions with which some noble Lords are connected offer them.
1146
I genuinely say to the noble Lord, Lord Renfrew, that that is not the way to go. It is important to stick with the two principles for which I have tried to argue throughout the proceedings on the Bill. First, we are trying to ensure that we do not top-slice the money for universities, which I am afraid that both amendments would do. Secondly, we want to give universities the flexibility to offer the courses that they feel right and proper. Noble Lords have fought very hard and I hope that I have been supportive in ensuring that those two principles rest within the Bill.
I urge the noble Lord to withdraw his amendment for Wales. It is for another place to consider what happens in England but I hope that noble Lords will understand the Government's position. It is important that we do not endanger four-year courses, nor make assumptions that there is additional money. There is one pot of money. I hope that the noble Lord will withdraw his amendment.
4.45 p.m.
Lord Renfrew of Kaimsthorn: My Lords, I am grateful to the noble Baroness for the unfailingly courteous way in which she puts her points. The doctrine of the one pot of money of inflexible size is at the heart of the Bill. It is a doctrine to which I hope to return at greater length on Amendment No. 15, which is really about who pays the money. I shall not speak to it now. I take the points made by the noble Baroness and, as I feel myself rather out of my depth in the affairs of Wales, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 [Director of Fair Access to Higher Education]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 3:
Page 16, line 10, after "education" insert "(whether full-time or part-time)".
The noble Baroness said: My Lords, when we debated part-time provision on Report, the noble Lord, Lord Dearing, said that he knew of no issue that attracted more solid consensus than the need to do something for part-timers. Many noble Lords have spoken on the issue on Report and during previous stages at the Bill. Sadly, there is not time to do them all credit. I shall mention a few and hope that others will forgive me.
The noble Baroness, Lady Sharp, said that there was a need for the director to take account of access to part-time education. The right reverend Prelate the Bishop of Portsmouth said that there needs to be a signal in the Bill to recognise an important growth area and a fact of modern life. The noble Baroness, Lady Seccombe, reminded us that the director needs to see the effects of the new system in an holistic manner. The noble Lord, Lord Rix, and the noble Baroness, Lady Boothroyd, have been passionate throughout the Bill's progress in arguing the case for part-time students. My noble friend Lady Blackstone said that it was important not to pass a Bill that neglects to recognise the existence of part-time higher education

1147
and that the director had a duty to consider both kinds of students. As she reminded the House, part-time students make up 40 per cent of the student population.
I agree with those sentiments, and we have listened and responded. I agreed on Report to return with two amendments, which I have now tabled in my name for your Lordships' consideration. Amendment No. 3 explicitly extends to part-time higher education the role given to the director on Report of spreading good practice. Like my noble friend Lady Warwick, I have every expectation that many institutions will include part-time provision in their access plans. It is therefore eminently sensible for the director to consider the good work that they are doing and encourage good practice.
In considering good practice, the director will consider the whole range of what institutions are doing through their access plans in respect of part-time study: outreach to ensure that potential students are aware of the part-time options available; ways in which institutions provide financial support for part-time students; and information on the range of financial support available to them. I believe that that will be a very positive move to help institutions and their part-time students.
Amendment No. 4 confers on the director a duty to perform his functions in such a way as to promote and safeguard equality of opportunity in connection with access to higher education, including part-time education, in so far as his functions are exercisable in relation to it. On Report, the noble Baroness, Lady Sharp, tabled an amendment with similar intentions, which I could not accept because of a technicality. I was, however, glad that she had tabled it and accepted the principle behind it.
Although the director will focus principally on full-time students, because it is those fees that the director will regulate, I agree that his remit should extend to part-time students. Many institutions will want to include their study in their plans. This amendment makes clear that the director will take an interest in what institutions are doing to encourage students in both full-time and part-time education.
The amendments put a clear signal on the face of the Bill that part-time education matters, and its importance should be reflected in the role of the Director of Fair Access. I beg to move.
Baroness Sharp of Guildford: My Lords, as one of the main proponents of a similar amendment on Report, I am very grateful to the Minister for the amendments that she has now tabled. It is absolutely right that the director's remit should include part-timers and that it should be on the face of the Bill. When we discussed the matter on Report the Minister mentioned that that was not necessary, but, as the right reverend Prelate said, it is a signal and it is very important that it is in the Bill. I welcome the two amendments and thank the Minister for them.
The amendments are important. We also recognise that the survey of part-time students is being accelerated—which is also good—and that the
1148
director's remit starts here in 2005–06. However, institutions providing part-time education, particularly the two specialist institutions, the Open University and Birkbeck, face problems in attracting graduates to apply for courses.
We did not proceed further with the amendment tabled by the noble Baroness, Lady Lockwood, about pro-rata grants and loans to part-time students; we left it for the Government and HEFCE to sort out with the institutions. Nevertheless, for the moment, it leaves the institutions in a very difficult situation. I urge the Government to do their best to ensure that, in the negotiations between HEFCE and the institutions, HEFCE realises the importance of part-time education and its development.
As we discussed on Report, part-time education is the way of the future for many of the extra students who will come into higher education over the next few years. It is very important that the opportunity exists for those students, and that institutions such as Birkbeck and the Open University can flourish. It would be very sad if, as a result of the Bill, in the short term both institutions suffered.
Lord Rix: My Lords, it is always a pleasure, and sometimes a pleasant surprise, to be able to thank the Minister and the Government for changing their minds and accepting an amendment, even if they had to rewrite two amendments on this occasion. As we have heard from the noble Baroness, Lady Sharp, there are still many issues to be settled in regard to part-time education. But if the Government are as receptive to the remaining changes that are needed as they have been to these two amendments. I am sure that all will be possible in the very near future. I extend my grateful thanks, certainly on behalf of the university that I represent. I am sure that goes, too, for all the other universities which have many part-time students.
Baroness Lockwood: My Lords, as I have tabled amendments in support of the principle that the noble Baroness, Lady Sharp, has mentioned, perhaps I may say how much I welcome the two amendments tabled by my noble friend. Not only are they a signal, as the right reverend Prelate the Bishop of Portsmouth said in an earlier debate, they underwrite the principle of part-time education in the Bill so that we now know that it is an important part of government policy.
The amendments will strengthen the hand of the Minister's department when it deals with HEFCE in relation to financial assistance for part-time education, particularly for Birkbeck and the Open University, but also for better facilities throughout the system. It is important that the Government grasp the opportunity that they have given themselves in the Bill, and make clear to HEFCE that this is a prime part of government policy and strategy that it should take on board when considering the position of the Open University and Birkbeck and completing its wider

1149
review of part-time education. I hope that the Government will press the advantage that they now have.
Baroness Carnegy of Lour: My Lords, the noble Baroness has put it very nicely. We all welcome the inclusion of a signal in the Bill. It would have been extraordinary to exclude from the Bill any mention of part-time students. However, the Government have not done much except to give a signal and to create a possibility. They have done nothing in response to those of us who pointed out the threat to the Open University and Birkbeck because of the Bill.
The Open University has written to me—and, I expect to other noble Lords—to point out that largely nothing has changed for it. There is a threat that if it increases its fees it will lose nine-tenths of its undergraduate students. The Minister always looks as though she does not believe that, but I have seen the figures and can assure her that it is a serious point that she must take on board. I suspect that Birkbeck is in a similar position, although it has not written directly to me.
The Minister has done nothing about those two urgent points. Money is needed now to go direct to those two universities because of what the Government are doing in the Bill. Unless they do that, the Government will find that the university that they created will have virtually disappeared. I hope that they are not sanguine about that.
Baroness Howe of Idlicote: My Lords, I thank the Minister very much for the changes. At least now we have an acknowledgment that part-time higher education exists. However, I re-echo the point made by the noble Baroness, Lady Carnegy of Lour. I have also received the letter to which she referred and seen the figures. I fear that the situation remains and that urgent action is still needed.
I spent the morning chairing a seminar on equal pay in higher education. One of the points raised was the duty of equal opportunities between the sexes that will be imposed on public services. Women may form a much greater percentage of part-time students at the Open University, in which case there might be yet another reason for the Minister to think carefully about those 40 per cent of students, many of whom are at Birkbeck and the Open University.
Lord Rogan: My Lords, I welcome the amendments tabled by the noble Baroness, Lady Ashton of Upholland. I am not sure whether I am declaring an interest or boasting, but I attended the Open University, during which time my wife was also a student. Over the five years of part-time study and full-time employment, we produced between us two degrees and two bonny baby boys. So, I am very conscious of the good work performed by the Open University, and others.
5 p.m.
Much of the debate has revolved around—rightly so—the full-time university institutions. This
1150
legislation is set to generate around £1 million in extra funding for English universities, but not one penny will go to either the Open University or Birkbeck College. The Open University has been overlooked in this legislation, and the Government must now listen to and address these concerns. The Open University provides an accessible educational service for part-time and mature students who work full time, and those whose needs are matched by the option to learn from home.
The Open University has asked the Government to ensure that it is not disadvantaged financially by this legislation in comparison to other universities. It has made its case to HEFCE for additional funding, to ensure that the resources available to it to teach part-time undergraduates are not less than those available to other universities to teach full-time students, taking the fees and the grants together.
Basically, the Open University needs an interim funding allocation to ensure that it can compete in the market place at this time of change. In the long term, the Government must think hard about how the Open University and Birkbeck can continue to provide their essential educational facilities to those who opt not to take the conventional university path. The new fee regime for full-time universities will be introduced in 2006, but HEFCE says that the earliest that it will be able to introduce any new funding methodology as a result of the review will be 2007. Consequently, this leaves part-time institutions in a precarious position compared to full-time universities, which will be able to plan and prepare for the future.
Furthermore, the very nature of the Open University means that if it wishes to remain open it cannot simply raise fees to the equivalent of £3,000 a year in line with the other universities. This will simply not be affordable to a great number of those who take the part-time option. I ask the Government to look again at this position and help the Open University.
Lord Graham of Edmonton: My Lords—
Baroness Seccombe: My Lords, I thank the noble Lord for giving way. I, too, welcome these amendments, which we see as a welcome first step to tackling these proposed worrying circumstances that part-timers find themselves in. I thank the Minister for bringing the amendments before us today, and we look to her to confirm that the ongoing discussions will continue with all the institutions to address the serious matters that they face.
Lord Graham of Edmonton: My Lords, I rise to thank the Minister most sincerely for giving effect to the requests made at the previous stage. The proof of the pudding is in the eating. Together with other noble Lords who have Open University links, I have had a letter that is somewhat bleak in looking at what will be done.
I have sufficient confidence and faith in the Minister and in her ministerial colleagues, and sufficient political savvy, to recognise that in this House it will not be a political matter; it will be an all-party matter

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for those who have accepted the good faith of the Minister. If there is any lesson to be learned, I am delighted, as an ex-Open University student and graduate, to find that there is support in depth all around the House, not just for the Open University or for Birkbeck but for the ethos of part-time education.
The Minister will take careful note of the reservations and caveats that have been mentioned. She will recognise that as we continue to be briefed by others, including the Open University, we will not hesitate to come back to this House and find a device of one kind or another to express that point of view. After the previous debate on this matter, I am satisfied that the Minister and her colleagues appreciate that there is a case to be answered. They have answered it by the words in this amendment. If it turns out that that does not do the trick, we will—without malice but with a great deal of forethought—come back again.
I was heartened by the Minister's words on the previous occasion. The agitation from the Open University then was about the timetable for the review, the survey and so on. There was a gap year, but, as I heard the Minister, that disappeared when we last dealt with this matter. If the point at which the Open University could be in trouble were removed, that would solve the problem. However, we will have to wait and see. I have confidence that when the survey is carried out by HEFCE it will find that the part-time student institutions—led by Birkbeck and the Open University; but not them exclusively, there are others—deserve a better crack of the whip.
I thank the Minister for what she has done, and I thank her for her attention to the matter. As I said, the proof of the pudding will be in the eating. I hope that we will hear from the Open University in particular that it is satisfied that what is needed to safeguard it as an institution will be taken care of. As a noble Lord said in this debate, it is precious to the Labour party that the Open University was started, but it is not a party matter. There were some queries at the beginning, but it is now accepted by all parties as one of the finest institutions in the world.
Tonight I will have the pleasure, along with other Labour colleagues, of warmly welcoming Mary Wilson, the wife of Harold Wilson, when the Labour Peers have a party on the Terrace. If there is a vote between 6 p.m. and 8 p.m., rest assured that we will be well represented. Mary Wilson is an embodiment of the Open University and all that it did, and there will be others. The Minister should be glad of the warm welcome for the efforts that she has made. She has done what she said she would do at the last meeting. Whether that is enough remains to be seen.
Baroness Blackstone: My Lords, I, too, welcome these amendments, which are about the Director of Fair Access and ensuring that part-time higher education is looked at when that office is operating. I want to pick up what has been said about the Open University. I also received the letter from the Open University, and I say to the noble Baronesses, Lady Carnegy of Lour, and Lady Howe of Idlicote, that I
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was a bit surprised by it. It did not seem to me that the letter reflected what my noble friend the Minister said when we had a debate about part-time higher education last week.
Like my noble friend Lord Graham, I believe that over the coming months and years your Lordships' House will be looking at what the Government said on that occasion, and we will be ensuring that the commitment that was made is followed through. Like my noble friend Lord Graham, I am confident that it will be. If it is not, plenty of us in this House will take it up again. We should recognise the major concession that the Government made last week, not just through these two amendments, but on the issue of funding part-time student places.
We are grateful for that, as is Birkbeck College. I happened to be there last night, as was my noble friend Lady Lockwood. Birkbeck is pleased about what happened last week. I believe that the Open University is probably pleased as well, even if that was not reflected in its letter.
Lord Dearing: My Lords, as the Minister referred to me in her opening sentence it would be curmudgeonly not to thank her, and I do, most warmly. For what we hope to receive, may we be reasonably thankful.
Lord Campbell-Savours: My Lords, as someone who has had a lot of difficulty with this Bill—and has indicated that in the Division Lobbies—I congratulate my noble friend, my noble friend Lord Graham of Edmonton and my noble friend Lady Blackstone, all of whom have been lobbying the Government very powerfully over the past week or two, on this extremely important issue. It is pleasing to know that flexibility was possible in this Bill.
Baroness Ashton of Upholland: My Lords, I thank all noble Lords who have contributed yet again to this very important debate. I have one disappointment of course in that there will be one Peer not at the Labour Peers' party this evening, for I have two Bills back to back. I hope noble Lords will think of me, if nothing else.
I am also sorry that I did not receive the letter from the Open University. I appear to be the only Peer who has not done so. It is very difficult to deal with some of the issues raised in it, as I am not fortunate enough to have a copy.
I can say a number of key things, however, to noble Lords. The first is to say to my noble friend Lord Graham, the noble Lord, Lord Rogan, and others who have spoken yet again with great passion about the Open University, that the commitment of this Government remains firm. The Open University receives £150 million, almost 4 per cent of the total for the sector. The next highest payment is to Leeds, just under £80 million. The Open University receives that money because we believe in that institution. It is in all our interests to ensure that it continues properly. I stand by all the commitments I made on Report, but I am not going to reiterate them. I am sorry the noble Lord, Lord Rogan, was not there, because a lot of

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what he is looking for from me was addressed then. Perhaps I might ask him to look back at that debate and come back to me if he has further queries. The Higher Education Funding Council is looking at the case for the Open University and Birkbeck. We have commended it for that.
I say to the noble Baroness, Lady Carnegy of Lour, that I always look concerned about this "nine tenths", because I am waiting for the figures. We sometimes have real difficulty with lots of figures being around, but it is actually very difficult to get underneath them. I hope and am sure that the Open University will provide the information to the Higher Education Funding Council in order for it to look at it carefully and properly. I urge it to do so as soon as possible.
The main thing I take away from this is broad welcome and support for what we have already achieved, support for the role of the Director of Fair Access within this, and recognition that this job is not yet finished, as I made plain on Report. I made a commitment that we would look at the needs of part-time students, the student income and expenditure survey—to include part-time students for the first time and, having looked at our students and who they are, we will then consider what more can be done. We have funded the Open University to get this information for us. Although noble Lords have been concerned about it, there is nothing in this legislation to stop us moving forward if that seemed the appropriate thing to do.
I stand by all those commitments. I recognise that if I were to fail in those commitments, there are plenty of noble Lords who have made it perfectly clear that I should be back here answering important and detailed questions. There is no intention to do other than what we said on Report, and I hope these amendments will be received in that spirit.
On Question, amendment agreed to.
Clause 31 [General duties of relevant authority]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 4:
Page 16, line 20, after "education" insert "(including part-time higher education in so far as his functions are exercisable in relation to it)".
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 5:
Page 16, line 20, leave out from "education" to end of line 26 and insert—
"(1A) In the performance of his functions under this Part, the Director has a duty to protect academic freedom, including, in particular, the freedom of institutions—

(a) to determine the contents of particular courses and the manner in which they are taught, supervised or assessed, and

(b) to determine the criteria for the admission of students and apply those criteria in particular cases.

(1B) The Director must, in the performance of his functions under this Part, have regard to any guidance given to him by the Secretary of State."
The noble Baroness said: My Lords, I am delighted that during our debates on this Bill, this House has continued its tradition of defending academic freedom. We have had some very helpful discussions about this in Committee, on Report and with other noble Lords outside of the Chamber. I hope that I have by now reassured noble Lords that it is not our intention that the Director of Fair Access should interfere in matters which are, quite rightly, for institutions to decide for themselves, particularly the criteria for the admission of students.
As noble Lords will know, I was happy to accept an amendment to the Bill in Committee and another on Report, tabled by the noble Baroness, Lady Warwick of Undercliffe, one of which confers a duty on the director to have regard to the need to protect academic freedom. The other ruled admissions criteria out of regulations. But I recognise the desire of the House for further clarification on this. I am very grateful to the noble Lord, Lord Forsyth, for tabling an amendment on Report which sought to define academic freedom. Although, as the noble Lord knows, I could not accept the exact wording of the amendment, I undertook to consider further and come back at Third Reading with a proposal.
I agree entirely that academic freedom should be safeguarded, and Amendments Nos. 5 and 13, tabled in my name, will further strengthen that principle. Amendment No. 5 will clarify Clause 31(1)(b)(i), which confers a duty on the director to have regard to academic freedom. We have already made it clear that it embraces the freedom for institutions to determine their own admission criteria for students. The Bill will now make it clear that that freedom also embraces the freedom to determine the content of courses and the manner in which they are taught, supervised or assessed. I know that there has been concern, for example, about whether the director might think that the manner in which a course was taught had affected applications from under-represented groups and whether he might therefore be tempted to intervene. The amendment puts it beyond doubt that he cannot. The definition used in the Further and Higher Education Act 1992 also refers to freedom in the matter of the selection and appointment of staff. We have not included that phrase here simply because that is so clearly removed from the functions of the director that its inclusion is not necessary and, indeed, would not make sense.
Amendment No. 13 is a corresponding amendment, which clarifies that regulations may not require plans to contain anything relating to such matters or any reference to particular courses. In other words, it absolutely rules out the possibility that institutions will have to include measures related to individual courses in their plans in order to gain the freedom to charge higher fees.
The amendments, together with the earlier amendments that I accepted on the matter, will protect the important principle of academic freedom, which the House rightly holds dear. I beg to move.
5.15 p.m.
Lord Forsyth of Drumlean: My Lords, I thank the Minister for tabling the amendment. I agree that the wording is better than that of the amendment considered at an earlier stage. It will go a long way to meeting the concerns that were expressed. I know that it was an issue of concern not just on these Benches but on the Liberal Democrat Benches and on the Cross Benches. My noble friend Lady Perry of Southwark was particularly concerned about it. I have two short words for the Minister: "Thank you".
Baroness Sharp of Guildford: My Lords, I add my thanks to those of the noble Lord, Lord Forsyth of Drumlean. We were anxious about the issue, but we are much reassured by the amendment that the Minister has tabled.
Baroness Warwick of Undercliffe: My Lords, I support the amendments. I congratulate the noble Lord, Lord Forsyth of Drumlean, on his persistence and am grateful to the Government for tabling the amendments.
Amendment No. 5 builds helpfully on the amendment that I tabled in Committee. It gives an even more powerful assurance that institutions are to retain their autonomy over admissions, course content and delivery.
Amendment No. 13 goes further and makes it clear that OFFA cannot require institutions to refer to individual courses in their plans, except as provided for in Clause 32(1). That is very welcome. Universities UK, in which I declare an interest as chief executive, has pressed for it since the Bill was first published, and I must say that I had all but given up on it. Universities UK felt, as I do, that it was rather important that OFFA should look at widening participation strategies as a whole. OFFA should not have the power to require institutions to focus on individual courses. One can imagine how, if OFFA had that power, it might be abused or used innocently in such a way as to distort the priorities of institutions in widening participation. It would also, inevitably, lead to a degree of micro-management, which would, in my view, be unacceptable. The amendment is very welcome, and I thank the Minister for it.
I wonder, though, whether the Minister might clarify the meaning of the phrase "general provisions" in the amendment. I hope that she means "except as provided for in Clause 32(1)". If that is what she means, I am entirely happy with the amendment.
Baroness Ashton of Upholland: My Lords, it is indeed my understanding that that is what I mean. I hope that that clarifies things for the noble Baroness.
On Question, amendment agreed to.
Clause 32 [Contents of plans]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 6:
Page 16, line 36, leave out "In relation to England,"
The noble Lord said: My Lords, in moving Amendment No. 6, I shall speak also to the other amendments in the group, with the exception of Amendment No. 8, which will be spoken to by the noble Baroness, Lady Sharp of Guildford.
The amendments would extend to higher education institutions in Wales the freedom from potentially gross interference that has already been granted to similar institutions in England by a government amendment tabled on Report. The freedom was conferred in England by confining the power of OFFA to insisting that plans for access should include provisions to ensure equality of opportunity only. It should not seek to promote higher education generally, which your Lordships strongly argued is best left to the institutions. Perhaps this is the point at which to note that the welcome government amendments that have just been agreed refer to what the institutions can do rather than to the institutions themselves.
The Government accepted the arguments that were put forward in your Lordships' House, but only as regards England. The power to insist that access plans promote higher education was retained for Wales. OFFA does not cross the dyke in this Bill to operate in Wales. But there will be a similar authority, which will probably be the Higher Education Funding Council, sponsored by the Labour Government of the National Assembly. Our amendments seek to ensure that the remit of the Welsh authority will be identical to OFFA and similarly restricted, and that higher education institutions in Wales will be as free as similar institutions in England. Your Lordships may well ask, "Why not"?
The main objection is that we are dealing here with a devolved matter. There is a presumption that amounts to a principle among ardent devolutionists that whatever the National Assembly wants in primary legislation, it should get. It was well expressed—albeit with a hint of mild embarrassment—by the noble Baroness, Lady Sharp, at Report. She said:
"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".—[Official Report, 14/6/04; col. 572.]
I do not know how far that Liberal latitude extends. Would it extend, for example, to the total abolition of higher education or some other extreme? That remains to he seen. I shall be very interested to hear how members of the Liberal Democrat Party reconcile taking one view in England—after all, on a matter of principle—and another view in Wales on the same principle.
The Minister confirmed that the Assembly had asked specifically for this differential between England and Wales. But, with respect, the request came from the Assembly Government within the National Assembly. As far as I am aware, there is no record of any such request being made by the National Assembly as a whole. I am not sure that it has scrutinised the Welsh clauses of this Bill in what your Lordships would call "any detail". It has certainly not discussed the issue that we are considering today. So I counsel caution.
This Parliament is still responsible for providing primary legislation for Wales. We should be careful when we issue blank cheques to the Assembly Government for the exercise of powers, which we deny to central government in the United Kingdom. We should be especially careful when central government concur that we are right to do so.
So why should we insist on these amendments? I respect those who believe in the prime importance—indeed, the sanctity—of the devolution process. But I must remind them of their current responsibility to provide sound primary legislation and, where important principles such as academic freedom are threatened, to lay down parameters for the exercise of powers that may undermine such principles.
We have reason to believe that higher education institutions in Wales feel threatened. They have told us so through Higher Education Wales, which comprises 14 vice-chancellors and principals. I quoted a letter from its secretary, Mr D G Lewis, at length at Report. I shall remind your Lordships of his view that the power to require an institution's plan to "promote higher education" may be used,
"in ways not directly connected with fair access to higher education … [but] to direct their business plans and even to force merges. … 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".
I have checked on Mr Lewis and his position. I have to say that the fear is not groundless. The chairman of Higher Education Wales, Professor Anthony Chapman, said recently:
"The Vice Chancellors and principals in Wales are concerned at the coincidence of several recent statements by the Welsh Assembly Government which taken together suggest an undermining of university autonomy, notwithstanding protestations to the contrary".
I am afraid that that is the true position.
On 9 June, the Minister, Miss Jane Davidson, said:
"I will ask the HEFCW to use the core grant to the sector more strategically, along with elements set aside for the same purpose. I will expect the Council to consider how those monies should be distributed to provide concrete benefits to those institutions which have embraced reconfiguration"—
which, I think, means mergers and collaboration—
"and to provide further incentives to achieve it".
If that is not an enforcement of policy on institutions, I do not know what is. Such actions would be clean contrary to the wishes of this House and this Government as regards England. I urge the House and the Government to stand by their principles and extend the protection of academic freedom, which, as the noble Baroness, Lady Blackstone, memorably said, is indivisible to Welsh institutions too. Our duty is clear and we must not shirk it. I beg to move.
Baroness Sharp of Guildford: My Lords, I perhaps should have asked for Amendment No. 8 to be degrouped. If Amendment No. 7 is agreed, Amendment No. 8 will fall. Therefore, it depends on whether the noble Lord, Lord Roberts, wishes to test the opinion of the House on his amendment. Amendment No. 8 is tabled on behalf of RNIB and
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SKILL, which were very concerned about the changing of the wording of the Bill in relation to England. I remind your Lordships that the original wording of the Bill was that the responsibility of the director should be the promotion of equality of opportunity or the promotion of higher education. We picked that up at a fairly early point and changed the wording. Indeed, this came forward at Report to cope with that. Nevertheless, as the noble Lord, Lord Roberts, explained, we left that wording in in relation to Wales.
The two organisations are very concerned because it would suggest that one is counterpoising the promotion of higher education against the promotion of equal opportunities. The suggestion therefore is that in order that those two sub-paragraphs should not seem to be alternatives, the word "or" should be substituted with the word "and". This is a minor amendment that would just clarify the wording.
The noble Lord, Lord Roberts, referred to the position of the Liberal Democrats on the devolution issue. Our spokesman on Welsh affairs, the noble Lord, Lord Thomas of Gresford, will speak on that for us. I do not want to speak on that issue. I just wanted to explain my amendment and also make clear that basically it stands only should the other amendments fall.
5.30 p.m.
Baroness Warwick of Undercliffe: My Lords, I rise to support fully the amendments tabled by the noble Lord, Lord Roberts, to which I have added my name. Noble Lords may know that this was the subject of amendments which I tabled on Report and I am delighted to be able to return to the matter. I know that for many noble Lords, the amendments before us pose a problem. Those who support devolution, as I do, instinctively feel that the Welsh Assembly must be free to determine its own path and that it should not be for Westminster to dictate what can and cannot be done.
However, we retain responsibility for making primary legislation for Wales. I do not believe that, that primary legislation should be subject to a lower standard of scrutiny than that for England. It is not good enough to say, "That's what Wales wants, so we should not interfere". Given the extensive and anguished communications I and others in this House have received from the Welsh universities which are the most closely involved, this is not what Wales wants. It may be what the Minister in Wales wants, but I do not think that we would be so trusting as to give Ministers in England everything they desire without stern challenge, and I do not see why we should adopt a different attitude to Wales.
With this Bill we are creating a regulator. We have tested the limits of that regulator through rigorous debate, and it is right that we should have clone so because the regulator will have power to tine institutions up to half a million pounds and withhold their grants. It is clear that, with respect to England, the regulator is to regulate access to higher education.

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The Government brought forward an amendment on Report to make it clear that that is all this regulator can do.
But that will not be the case in Wales. The RNIB and SKILL, to which the noble Baroness, Lady Sharp, also referred, are concerned that in Wales the powers created by this Bill will not be used to promote access. I think they are right to be worried. Wales has a very good record on access to higher education, as have many institutions in England. That should not mean that it is neglected as a priority in the future. As the RNIB and SKILL note, there is always more that we can do.
Even if it were true that there was not a problem in relation to access in Wales, surely the response should be to remove the regulator with respect to Wales rather than to keep the regulator to do other, unspecified, things. I do not know what the regulator will regulate in Wales; nor do the vice-chancellors of Welsh institutions and nor, I suspect, does the Minister. It is not right that a regulator should be created without clarity as to what he or she will regulate—and with the power to fine, but no clarity about what the criteria will be.
I will certainly support this amendment should the noble Lord, Lord Roberts, decide to test the opinion of the House. I shall do so knowing that I have the strong support of higher education institutions in Wales.
Lord Thomas of Gresford: My Lords, it is with some regret that Members on these Benches are unable to support the noble Lord, Lord Roberts of Conwy, on this amendment, in particular having regard to his many years of outstanding leadership in the education field as a Minister of State in the Welsh Office. But he has urged us to stand by our principles, and there are principles other than academic freedom at stake. He reminded us that the Minister assured the House that the Welsh Assembly had asked specifically for the differentiation contained in this Bill to exist between the English provisions and those for Wales. I have said from this Bench on many occasions that we believe that, if devolution is to work, the National Assembly for Wales should have its way and that primary legislation, subject to a reserve only in the most exceptional circumstances, should mirror the requirements of the National Assembly.
I said that over the four years when we were in a partnership government in Wales with the Labour Party. Am I to move away from that principle because at the moment the Labour Party is exercising power in the National Assembly on its own? We believe not. We believe that the purpose of primary legislation in Westminster is to enable the National Assembly to do its job and not to limit or curb it.
If this is all about money and the way that money should be used in Wales to fund higher education, I should make it quite clear that the Welsh Liberal Democrats in the National Assembly have called for the release of £50 million from the reserves of £726 million in order to support and enhance higher education in the Principality.
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We do not necessarily believe that the policies being followed by the present National Assembly government are right or even sensible. The noble Lord, Lord Roberts of Conwy, referred to what was said by Jane Davidson on 9 June in plenary session. She has stated that she intends to change the landscape of higher education in Wales and sharply strengthen the financial incentives for reconfiguration. That may not be sensible where the institutions of higher education in Wales do not agree and where they have not been consulted. But that is what devolution is about. It is a power given to the National Assembly government to make mistakes and it will be punished for those, we hope, at the ballot box.
If the Assembly wants, for example, to introduce variable fees for higher education in Wales, I am sure that the Labour Party will not have missed the fact that in the recent elections, the Liberal Democrats scored enormous successes in the university towns, taking every ward in Cardiff Central where there is a higher proportion of students to the population than anywhere else in the United Kingdom. Students and young people across the whole of the United Kingdom are responding to the policies of the Liberal Democrats on education. If the Labour Party wants to pursue other policies, whether elsewhere in the United Kingdom or in Wales, let it be punished for them. That is what the democratic process is all about and that is what devolution is all about.
So it is in support of that principle—that it is for the National Assembly for Wales to make up its own mind, right or wrong—that we are not in a position to support the amendment of the noble Lord, Lord Roberts. This House is a not a Court of Appeal. This is not the place for Universities UK to make representations about the future of education. It should concentrate its efforts in Wales by bringing students out into the streets in peaceful demonstration if that it what it wants, but it should not come here for us to second-guess what the National Assembly has done.
Baroness Carnegy of Lour: My Lords, the noble Lord has enunciated the theory that devolution means that Westminster should simply rubber stamp that which the Welsh Assembly wants, that we should be agents for the Assembly in making primary legislation because it does not have the power to do so. I find that very difficult to accept. This is an interesting devolution issue and I think it is one that worries us; it certainly worries me that it has arisen at all. It is something that we shall have to look at when we consider the Richard report.
As the noble Lord knows, although I am no expert on Welsh matters, I know how Scotland has dealt with the problem of getting universities to consider co-operating more and perhaps merging in the future. That has been achieved by asking the Scottish Higher Education Funding Council to make it a condition of funding that they do consider this. That has worked well and there is no question about the fact that it is open to Wales to do so as well.

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The point here is that we have a Bill which is the job of the Westminster Government; we have to legislate. This Bill creates the possibility of a regulator in Wales which could be extremely threatening to universities if it is not limited. But we have created the Bill and we are approving it. If we leave the Bill as it is, as the noble Baroness, Lady Warwick, has said, universities in Wales will have no protection from the threat that the regulator, which would he the creature of the government of Wales, will do what it will with them. We have a responsibility to ensure that the Bill does not create a situation where the universities in Wales could suffer in a way in which the universities in England will not suffer. We owe it to the people of Wales to do so.
Had the Assembly consulted properly with the universities in Wales and obtained their agreement that they did not want limitations on the regulator, the situation would he quite different. But it apparently has not done so. I believe that the noble Lord is getting slightly carried away with his enthusiasm for devolution and the Assembly in thinking that the Government are right to accept this simply because the Welsh Assembly says so.
I think that the Government are deeply wrong. If, with the help of the Liberal Democrats—who are also enthusiastic in this way—they do not accept the amendment, they will show that they have not done their thinking about the lop-sided kind of devolution that we now have in this country. We owe it to the people of Wales that the Bill should give the same kind of protection to universities in Wales as it gives to universities in England.
I hope that the Government will listen to the universities in this respect. Noble Lords sitting behind the Government Front Bench may or may not have gone into this issue in great detail, but I hope they realise that, having created devolution, we have to be extremely careful how we operate it. Some matters may have to be changed as a result of the Richard report but I hope that the House will accept my noble friend's amendment and that the Government will see the danger of the course they indicated they were on at the previous stage.
Lord Morgan: My Lords, I declare an interest as a former vice-chancellor of the University of Wales and of Aberystwyth.
"Give me liberty or give me death",
is a famous phrase from the American Revolution. This seems to be a case of "Give me liberty or give me devolution". As Tom Paine observed, I am for liberty. Although I sit on these Benches, I am not a politician; I am a life-long academic and I have always supported devolution.
There are two aspects of devolution to which I should like to refer. Noble Lords may not agree with the noble Lord, Lord Thomas, with whom I invariably agree on these matters. First, this is a case of devolution within Wales as well as a case of devolution in relation to Wales and Westminster. Devolution has always been said to rest on a consensual attitude, but
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this policy is part of a programme which is being imposed upon the universities and institutions of Wales.
I have spoken to many vice-chancellors over the past few days and we have had communications from the higher education body in Wales representing vice-chancellors and principals. They are totally opposed to the implications of this policy, as my noble friend Lady Warwick said. They are also deeply apprehensive that it makes Wales, in various ways, less free than England. The supreme quality of a university is its freedom. That matters more to me than anything else. I have spent my life as a university teacher and it seems to me that a lack of freedom from overt—and, even more, from covert—interference is very dangerous.
There are implications in the broader provisions for higher education which arouse suspicion, particularly in regard to the amalgamation of institutions where pressure has been imposed. When I was in Aberystwyth there were two amalgamations, but they were carried out by free, autonomous institutions. We cannot have it both ways. Universities are either free, autonomous institutions, or they are not.
There has been a good deal of double talk in these matters. In this case, the universities in Wales feel that they are not given the same degree of freedom. They have already raised grave concerns about funding and whether or not the possible gap in 2006–07 will be made up. They have grounds for believing that they will be more regulated. After reading the letter from the National Assembly Minister, Jane Davidson, which many of us have received, I am quite glad that I am not now a vice chancellor and subjected to such a degree of interference and regulation.
I suspect that my noble friend Lord Prys-Davies will take a different view—which is rather like arguing against God, as far as I am concerned—but, with great respect and great regret, I feel that academic freedom and academic autonomy are threatened, that Wales will suffer and that the Welsh higher education system, which has been one of the glories of our nation since the late 19th century, is likely to diminish. I hope that the Government will think very seriously about the amendment.
5.45 p.m.
The Lord Bishop of Portsmouth: My Lords, I do not argue against God very often. If a DNA test were carried out on me, I do not think it would reveal any Welsh or English blood in my veins.
Having supported the Liberal Democrat amendment on voluntary work, I rise to support the amendment of the noble Lord, Lord Roberts. It relates to the complex issue of the balance between what is right to be devolved and the national educational policy, as the noble Lord, Lord Thomas, indicated.
In my view, the Bill appears to have become the victim of what might be called the negative side of well-intentioned positive discrimination and needs to be rectified. In other words, as it stands, the Bill would involve undue interference in Welsh institutions. Like the noble Baroness, Lady Warwick, I very much hope

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that the amendment of the noble Lord, Lord Roberts, will be accepted. If the will of the House is to be tested, I hope that the amendment will be agreed to.
Lord Livsey of Talgarth: My Lords, I am in favour of liberty and devolution and I respect the views of the noble Lord, Lord Morgan, very much indeed. However, I believe that it is not right necessarily to assume that the Education Secretary in the Welsh Assembly Government is the most popular person in Wales. I know that to be not a fact.
The principles outlined in Amendment No. 6 give rise to an interesting situation, as my noble friend Lord Thomas said. As currently drafted, Clause 32(2) relates specifically to England. This is an England and Wales Bill and matters relating to higher education are specific to the Secretary of State in England and the Welsh Assembly Government in Wales. We agree with Clause 32(2) because it is consistent with the devolution settlement, and Clause 32(3) spells out what should apply in Wales. Indeed, it places duties on the Welsh Assembly Government either to promote equality of opportunity or to promote higher education. My noble friend Lady Sharp has tabled Amendment No. 8, which seeks to put that right. We are confronted with an interesting situation. We would obviously prefer that the Bill did both.
The principle of devolution is very important. Amendment No. 7 seeks to strike out specific reference to Wales and therefore goes against the principle of devolution. We oppose the deletion of Clause 32(3) and we will vote against Amendment No. 7 for this reason.
However, a great many issues arise. My noble friend Lord Thomas made the point that although we are consistent in our attitude to devolution, that does not necessarily mean that we agree with what might happen to higher education under the present Minister for Education in the Welsh Assembly Government.
I should like the Minister to consider several matters. In Wales, equality of opportunity is very important and should be essential, not just an option. Why is this? Will she explain why the Welsh Assembly Government want this distinction?
Secondly, is there a price tag connected specifically with the word "promotion"? Thirdly, will promotion as specified in the Bill be used as a means of amalgamating a number of university colleges and higher education establishments in Wales, which has been hinted at by several contributors to this debate? Fourthly, will moneys be withheld from establishments that do not comply with the diktat of the Welsh Assembly Government's Education Minister if she so desires them to amalgamate?
There are also wider questions. What impact would this measure have on the federal university colleges of the University of Wales? Indeed, the Government will know that the right honourable Dafydd Wigley has been appointed by the University of Wales to produce a report into its constitution. I have not seen that
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report and I do not know whether it has been published yet, but it might have an impact on what we are discussing.
What measures will the Government take to redress the substantial under-funding gap, to which the noble Lord, Lord Morgan, referred, between the higher education sector in England and that in Wales? Historically, Wales has fallen short by approximately £300 per student in comparison with England, and I believe that the gap may be greater at the present time. Clearly, it has an impact on equality. The Government should surely provide equality of funding for both England and Wales, as well as equality of opportunity for students to access higher education in Wales. If the Welsh Assembly wants to go ahead, I would like to know whether it has said that it wishes to use promotion as a means of getting additional funding to force higher education establishments in Wales to amalgamate. That would be extremely foolish of the Welsh Assembly because of the geography of Wales and the paucity of physical communications—it is practically impossible to get Bangor to amalgamate with the North East Wales Institute of Higher Education or Trinity College Carmarthen to amalgamate with the University of Wales, Swansea.
There are many issues that need to be raised. If the Welsh Assembly in Cardiff is foolish enough to pursue this path, as my noble friend Lord Thomas of Gresford said, it should have the freedom to do so. However, the electorate in Wales will deliver a verdict that will not be favourable to the Welsh Assembly government.
Lord Roberts of Conwy: My Lords, I would like to clarify one point. The speech by the Minister, Jane Davidson, to which I referred, was made on 9 June and actually states that the Higher Education Funding Council for Wales,
"will take a much more proactive approach to delivering on the reconfiguration agenda. For a sector with a large number of relatively small institutions, funding will continue to be available for mergers. However, I shall also be looking to promote innovative ways of working to enable the sector to take forward other forms of collaboration".
There is not much doubt about the Government's intentions.
Lord Livsey of Talgarth: My Lords, I accept what the noble Lord says. It is obviously correct. However, if the Minister is unwise enough to pursue this course, frankly, judgment will be made by the people of Wales.
Lord Triesman: My Lords, this is a Third Reading debate and we should try to stick to the conventions of Third Reading.
Baroness O'Neill of Bengarve: My Lords, I do not think that this amendment bears on devolution at all. It is open to the Welsh Assembly to promote higher education. The clause that we are discussing is about the requirement to include the promotion of higher education in an access plan. This is something very specific. I support the amendment.
Lord Prys-Davies: My Lords, when my noble friend replies to this debate, it would be helpful if she would

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confirm two matters: first, that Clause 32(3) has been brought forward at the request of the Welsh Assembly Government and, secondly, that the UK Government themselves are satisfied that the new power is justified given the circumstances prevailing in Wales. If my noble friend can give us that assurance, there is a presumption that the clause as it stands should be acceptable to the House. I remind the House that between 31 July 1999 and 31 December last, Parliament passed 42 Acts of Parliament containing distinctive Wales-only clauses or Wales-only Bills. To the best of my recollection and belief, on no occasion did your Lordships' House reject a Wales-only clause or a Wales-only Bill. If that is correct, there is no need for me to emphasise the obvious. If the series of amendments is agreed, an important precedent would be established.
If the Welsh Assembly, which has a democratic mandate, is to be denied the primary legislation to enable it to pursue policies that it considers to be in the interests of the Welsh people and if that legislation is agreed by the UK Government—the two conditions that I mentioned at the beginning of my speech—we are bound to ask how the devolution settlement will work. That was the question put by the noble Lord, Lord Thomas of Gresford. It greatly saddens me that so much criticism has been levelled at this clause by the Higher Education Funding Council for Wales. The Welsh higher education sector is small, but it has made a substantial contribution to Welsh life during the past 120 years, and continues to make a contribution. I should declare an interest: I am hugely indebted to the University of Wales, Aberystwyth, and the University of Wales, Swansea.
When I read the evidence of the Welsh Assembly Education Minister to the Richard Commission on the powers of the Welsh Assembly, it seemed to me that she was seeking the legislative powers to promote higher education in Wales. That is what emerged from her evidence to the commission. When did Higher Education Wales first make representations to the Welsh Assembly about this power? That is a very difficult question to put to my noble friend the Minister; indeed, the noble Lord, Lord Livsey, has asked a series of questions.
6 p.m.
I see that the noble Lord, Lord Norton of Louth, is in his place. I am wondering whether we are faced with a basic weakness in the devolution model. The clause emanates from the Welsh Assembly but is being scrutinised by this forum. The Welsh Assembly Minister is not present to explain or defend the clause or to answer the questions that have been put to our Minister. That "split responsibility", as the Richard Commission called it, is partly the cause of the difficulties that we are in tonight. Of course, if a Welsh Minister were present in the House or in a Special Standing Committee to consider the Welsh clauses of an England and Wales Bill, she might be able to give assurances to noble Lords who are concerned about the Bill.
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I hope that the House is not asked to vote on the amendment. However, if the amendment were passed, I believe that the Ministers of the Welsh Assembly Government and many people in Wales would think that the time had come for the conferment of primary legislative powers on the Assembly. That has never been more necessary nor more timely than tonight.
Lord Brooke of Sutton Mandeville: My Lords, I declared my Welsh pedigree in support of my noble friend Lord Roberts of Conwy at an earlier stage. I shall not dwell on the niceties of the devolution issue. However, in comparison with the knowledge that some of us could once have had about the entire UK higher education sector—even though the department's writ did not run throughout the land—we are in these matters severely constrained by devolution. We are also constrained by the purity under which, as Westminster parliamentarians, we cannot be given information by Ministers relating to devolved institutions on the one hand and, on the other, we have no right as Westminster parliamentarians to receive information from those in devolved institutions who could tell us. All I can say is, "more's the pity".
I rise to support my noble friend Lord Roberts of Conwy. In relation to his anxieties about what may happen in Wales, I can cite analogously an ILEA episode from long ago. I was resident in Highgate and was, or had been, a governor of the Camden School for Girls, to which the episode relates. The Hampstead and Highgate Express reported that a senior elected member of ILEA had addressed the parents of Camden School for Girls and had said that in her view it was absolutely wrong for girls—or, indeed, women—to go into higher education. The paper reported that officials from ILEA sitting on the platform with her put their heads in their hands and presumably hoped that the roof would fall in. Like the thunderbolt that fell on York Minster shortly after the Bishop of Durham expressed his famous views, as the paper also reported, the roof obligingly did fall in that very night, though after the meeting when everyone had left. In that time-honoured phrase of the Metropolitan Press, "Provincial papers, please copy"—and, if I may say so, Liberal Democrat Benches, please note.
Baroness Perry of Southwark: My Lords, I briefly offer my support to this amendment. To me the issue is very simple. Whatever the rights or wrongs of devolution, we in this Parliament currently have the responsibility for primary legislation in respect of universities in Wales. We have already achieved a great deal in the passage of the Bill though this House, and with the concessions made by the Government on the issue of academic freedom for English universities. It seems to me totally wrong that we should not just as stoutly defend the academic freedom of Welsh universities. That is why I give my support.
Lord Dearing: My Lords, I speak briefly in support of the amendments. It seems rather extraordinary that

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we have been invited to endorse Clause 32(3) when, seemingly, no decision has been taken in Wales as to whether they want to promote higher education or about access. I cannot see how there are alternatives. That seems to make no sense whatever, and I find it difficult to endorse a proposal that does not seem to make sense.
There is another reason, however, why I very reluctantly speak on a matter that one would regard as properly the business of Wales. It is not a concern for me that the universities in Wales feel threatened and do not like what the Government have in mind. However, I do care that they have not been consulted on a matter, on which, if they are found wanting, they face a serious financial penalty. That cannot be good for the process of government in Wales. Therefore, I support the amendments.
Baroness Finlay of Llandaff: My Lords, I apologise for not having been involved before in this debate. I must declare an interest as an employee of one of the universities that has benefited from the merger process and which is now in the process of merging.
I have listened very carefully to the debate, and fear that we are muddling up two different things. There is devolution and whether Wales should have more powers; that, in a way, is a separate debate. The amendment tabled by the noble Lord, Lord Roberts, relates to the situation as it stands today. It is with great regret that I feel inclined to support the amendment.
My gut feeling is that I want to support Wales and the Assembly Government in Wales, but things work in Wales when everyone works together, when consultation is wide and there is a consensus view. If the universities in Wales are giving a message that they are anxious, forcing things on them will only create unhappiness. Sadly, there is an exit across Offa's Dyke for the brightest and best among our academics. I fear that if we allow those universities to become unhappy, the fantastic tradition of academic excellence of which we in Wales are so proud will be under threat.
Baroness Ashton of Upholland: My Lords, I am very grateful to noble Lords. The debate has been long and interesting, as befits what is an important part of the Third Reading of the Bill. I shall try to keep my remarks as brief as possible, as I am mindful that many comments have been made that cover the points well.
I should tell my noble friend Lord Prys-Davies that the provision is the desire of the Welsh Assembly, as he knows. Jane Davidson, to whom noble Lords have referred, has made clear to me her commitment to the autonomy of higher education institutions. The provisions in Clause 32 will in no way undermine that principle. The Assembly has requested the inclusion of the phrase,
"the promotion of higher education",
to enable institutions to propose plans drawn more widely than simply in terms of access. The intention is to free the hands of institutions, not bind them further.
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Noble Lords referred to the differences within the sectors. The sector in Wales is much smaller than that in England, and its concerns are also different. Access is an area of success in Wales, where higher education institutions have a very good track record. Jane Davidson has made it clear, too, that if variable fees were introduced in Wales, there would be no question of the Assembly imposing requirements on individual institutions. The Assembly would not envisage defining the content of fee plans in such tight terms as to infringe the autonomy of Welsh institutions. Rather, fee plans would be an integral part of the sector's strategic engagement with the Funding Council and the Assembly Government.
During Report, the noble Baroness, Lady Sharp, raised concerns that the inclusion of promotion of higher education or equality of opportunity could lead to disregard for equality of opportunity in Wales. I assure the noble Baroness and other noble Lords that the National Assembly for Wales is committed to equality of opportunity in all its functions. Indeed, Section 120 of the Government of Wales Act 1998 makes this a statutory duty on the Assembly, which applies to all its functions. This Bill sets out the framework under which a system of variable fees would operate in Wales, but we contend that it is essential that the Assembly has sufficient flexibility to determine and deliver a policy suited to Wales.
The noble Lord, Lord Roberts, was concerned about granting power to the Assembly without rigorous scrutiny of how it will be used. The Assembly regulation-making procedures involve at least as much scrutiny as the affirmative procedure in Parliament. The relevant subject committee and the legislation committee will consider the Assembly regulations. There will be a full public consultation, which is also a requirement. I hope that covers, at least in part, the point made by the noble Baroness, Lady Finlay. It will be important. Of course, higher education institutions will be part of the full public consultation. In view of the number of comments that have been made about the need to consider scrutiny, that is an important point. There is no negative procedure in the Assembly, other than in cases of urgency, so draft regulations are open to scrutiny and debate.
The noble Lord, Lord Roberts of Conwy, asked whether the Assembly has already debated these provisions. The National Assembly has debated the Higher Education Bill in plenary on more than one occasion since it was introduced. On each occasion, the Assembly voted to welcome the devolution of the powers in the Bill. That addresses the second point made by the noble Lord, Lord Prys-Davies.
We are satisfied that the Assembly is best placed to make the judgment about how it wishes to take this forward. It has a statutory obligation to consult, it has debated these issues at length and it will make any regulations within the affirmative procedure, as I have made clear. We believe that we should offer the flexibility for the National Assembly to make its own

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decisions. I believe that the assurances about scrutiny and consultation, which would precede any Assembly regulations under this clause, and the assurances from the Assembly Minister on the policy context should be enough to satisfy noble Lords. I hope that the noble Lord will agree to withdraw his amendment.
Lord Roberts of Conwy: My Lords, we have had a very interesting debate. There has been a fairly clear clash between those who stand by the principle of academic autonomy and freedom and those who give priority to devolution. It was very interesting that, right from the beginning, the voice of higher education in Wales was very clearly heard, starting with the noble Baroness, Lady Warwick, who was followed by the noble Lord, Lord Morgan, a former principal. Then we heard the voices of my noble friend Lady Perry and the noble Baroness, Lady Finlay of Llandaff, an employee of the University of Wales College of Medicine. She is very much in touch with academic feeling in Wales.
There is no doubt about it: academic institutions feel threatened and rightly so, from what I have read of the intentions of the Assembly's education executive. It is no wonder since, as the noble Lord, Lord Dearing, implied, there has been no consultation. This is what has really caused anxiety in institutions of higher education in Wales.
The noble Lord, Lord Thomas of Gresford, was very firm in his belief in devolution and also in his belief that devolution means the freedom to make mistakes. I am not sure that that freedom extends to this Parliament while it has responsibility for providing Wales with primary legislation. We cannot contemplate the road to ruin as far as institutions of higher education in Wales are concerned with any degree of equanimity. I agree with the noble Lord that devolution may well mean freedom to make mistakes. However, while we have responsibility for primary legislation there is no doubt that we should do our best to ensure that no major errors occur.
I am very grateful to all noble Lords who have spoken in this debate, but the fact is that the clause as it stands is rightly seen by academics and students in Wales as a Trojan horse. There is no doubt that the Assembly government would like to use their financial muscle to shape higher education in Wales as they think fit. We have ample words from the Minister herself. The question is, is that the right way to go about achieving these ends? I doubt it very much. The impression that has been given is that the Minister is riding roughshod over the institutions of higher education. They do not like it and I do not like it either. I have a feeling that the House will not like it. I wish to test the opinion of the House.
6.16 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 100; Not-Contents, 115.

Division No. 2

CONTENTS

Astor, V.

McColl of Dulwich, L.

Attlee, E.

MacGregor of Pulham Market, L.

Biffen, L.

Bowness, L.

Mackay of Clashfern, L.

Bridgeman, V.

Mayhew of Twysden, L.

Brooke of Sutton Mandeville, L.

Monro of Langholm, L.

Burnham, L.

Monson, L.

Burns, L.

Morgan, L.

Byford, B.

Moser, L.

Caithness, E.

Mowbray and Stourton, L.

Campbell of Alloway, L.

Moynihan, L.

Carlisle of Bucklow, L.

Murton of Lindisfarne, L.

Carnegy of Lour, B.

Noakes, B.

Chadlington, L.

Northbourne, L.

Chorley, L.

Northesk, E.

Colwyn, L.

Norton of Louth, L.

Cope of Berkeley, L.

O'Neill of Bengarve, B.

Cox, B.

Onslow, E.

Craig of Radley, L.

Oppenheim-Barnes, B.

Craigavon, V.

Palmer, L.

Crickhowell, L.

Park of Monmouth, B.

Cumberlege, B.

Pearson of Rannoch, L.

Dean of Harptree, L.

Peel, E.

Dearing, L.

Perry of Southwark, B.

Dixon-Smith, L.

Plumb, L.

Elliott of Morpeth, L.

Portsmouth, Bp.

Ferrers, E.

Prior, L.

Forsyth of Drumlean, L.

Quinton, L.

Fraser of Carmyllie, L.

Quirk, L.

Freeman, L.

Renfrew of Kaimsthorn, L.

Gilmour of Craigmillar, L.

Roberts of Conwy, L.

Glenarthur, L.

Rotherwick, L.

Glentoran, L.

St John of Fawsley, L.

Greenway, L.

Seccombe, B. [Teller]

Henley, L.

Selborne, E.

Higgins, L.

Selsdon, L.

Howard of Rising, L.

Sharples, B.

Howe, E.

Shaw of Northstead, L.

Howe of Aberavon, L.

Sheppard of Didgemere, L.

Howe of Idlicote, B.

Skelmersdale, L.

Hunt of Wirral, L.

Stoddart of Swindon, L.

Jenkin of Roding, L.

Sutherland of Houndwood, L.

Kimball, L.

Trefgarne, L.

Laird, L.

Tugendhat, L.

Lane of Horsell, L.

Ullswater, V.

Lawson of Blaby, L.

Walpole, L.

Lewis of Newnham, L.

Warwick of Undercliffe, B.

Lindsay, E.

Wilcox, B. [Teller]

Listowel, E.

Williamson of Horton, L.

Lyell, L.

Wilson of Dinton, L.

Wilson of Tillyorn, L.

NOT-CONTENTS

Acton, L.

Brooks of Tremorfa, L.

Ahmed, L.

Campbell-Savours, L.

Alli, L.

Carter, L.

Amos, B. (Lord President of the Council)

Carter of Coles, L.

Chandos, V.

Andrews, B.

Clark of Windermere, L.

Archer of Sandwell, L.

Clinton-Davis, L.

Ashton of Upholland, B.

David, B.

Bach, L.

Davies of Oldham, L. [Teller]

Bassam of Brighton, L.

Dean of Thornton-le-Fylde, B.

Berkeley, L.

Desai, L.

Bernstein of Craigweil, L.

Dixon, L.

Bhattacharyya, L.

Donoughue, L.

Billingham, B.

Dubs, L.

Borrie, L.

Evans of Parkside, L.

Bragg, L.

Evans of Temple Guiting, L.

Brooke of Alverthorpe, L.

Farrington of Ribbleton, B.

Brookman, L.

Filkin, L.

1171

Fyfe of Fairfield, L.

Mallalieu, B.

Gale, B.

Massey of Darwen, B.

Gibson of Market Rasen, B.

Mitchell, L.

Gilbert, L.

Morgan of Huyton, B.

Golding, B.

Morris of Aberavon, L.

Gordon of Strathblane, L.

Morris of Manchester, L.

Gould of Potternewton, B.

Nicol, B.

Graham of Edmonton, L.

Patel of Blackburn, L.

Grantchester, L.

Paul, L.

Grocott, L. [Teller]

Pendry, L.

Harris of Haringey, L.

Pitkeathley, B.

Harrison, L.

Plant of Highfield, L.

Hart of Chilton, L.

Prys-Davies, L.

Haskel, L.

Puttnam, L.

Haskins, L.

Radice, L.

Hayman, B.

Ramsay of Cartvale, B.

Henig, B.

Randall of St. Budeaux, L.

Hogg of Cumbernauld, L.

Rea, L.

Hollick, L.

Rendell of Babergh, B.

Hollis of Heigham, B.

Rooker, L.

Howells of St. Davids, B.

Sainsbury of Turville, L.

Hoyle, L.

Scotland of Asthal, B.

Hughes of Woodside, L.

Simon, V.

Hunt of Chesterton, L.

Smith of Leigh, L.

Hunt of Kings Heath, L.

Symons of Vernham Dean, B.

Irvine of Lairg, L.

Taylor of Blackburn, L.

Janner of Braunstone, L.

Temple-Morris, L.

Jones, L.

Thomas of Macclesfield, L.

Jordan, L.

Tomlinson, L.

Kennedy of The Shaws, B.

Triesman, L.

King of West Bromwich, L.

Tunnicliffe, L.

Kirkhill, L.

Turner of Camden, B.

Layard, L.

Uddin, B.

Lea of Crondall, L.

Varley, L.

Levy, L.

Warner, L.

Lipsey, L.

Whitaker, B.

Lofthouse of Pontefract, L.

Whitty, L.

Macdonald of Tradeston, L.

Winston, L.

McIntosh of Haringey, L.

Woolmer of Leeds, L.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.27 p.m.
[Amendments Nos. 7 to 11 not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 12:
Page 17, line 27, after "(2)" insert "or (3)"
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 13:
Page 17, line 27, leave out "to include provisions" and insert—

"(a) to include among the general provisions of the plan any provision referring to particular courses or to the manner in which courses are taught, supervised or assessed, or

(b) to include any provision"

The noble Baroness said: My Lords, I spoke to this amendment in moving Amendment No. 5. I beg to move.
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 14:
After Clause 37, insert the following new clause—
"REVIEW OF DECISIONS MADE BY RELEVANT AUTHORITY
Regulations made by virtue of section 35, 36(3)(b) or 37(3)(b) must include provision—

(a) requiring any decision of the relevant authority under section 35, 36 or 37 affecting the governing body of an institution to have effect in the first instance as a provisional decision,

(b) enabling the governing body of the institution to apply for a review of the provisional decision to a person, or panel of persons, appointed in accordance with the regulations—

(i) in relation to England, by the Secretary of State, or

(ii) in relation to Wales, by the Assembly,

(c) enabling the Secretary of State or the Assembly to pay remuneration and allowances to any person so appointed,

(d) prescribing the grounds on which an application for the review of a provisional decision may be made, and

(e) requiring the relevant authority to reconsider its provisional decision having regard to any recommendation of the person or panel."

The noble Baroness said: My Lords, I am very grateful to the noble Lords, Lord Sutherland, Lord MacGregor and Lord Norton, for tabling an amendment at Report which sought to give institutions a right of appeal against a decision by the director. Having discussed the issue with the noble Lords—I am most grateful for the time they have given me—and having read the report of the Select Committee on the Constitution, which we hold in high regard, I said at Report that I accepted the principle that it should be possible for an independent panel to make the director think again about his decisions and promised to come back at Third Reading with a government amendment.
I should say at the outset that I do not expect any review procedure to be much in demand. I hope that the need for such a mechanism will arise very rarely, if at all. I have every confidence that the director will make careful and well considered judgments, and I am also sure that institutions will not appeal to the review body lightly. However, there was consensus in your Lordships' House that there should be some form of extra safety net, which this amendment provides.
The amendment allows for a review of the director's decisions. It specifies that regulations must provide that the director's decision is, in the first place, provisional. If an institution wishes to contest that provisional decision, it may appeal to a panel to review it. That panel would be appointed by the Secretary of State. Any appointment to the panel would be made under the Nolan rules and would therefore be subject to scrutiny by the Commissioner for Public Appointments.
We will put in regulations the grounds on which a review could be demanded, and will need to secure detailed advice on this from legal advisers. However, I can say that we would expect the grounds for review to include: new facts that had come to light since the

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director took a decision; the director's having ignored any relevant fact; and the director's decision being manifestly disproportionate or unreasonable.
I shall give an illustration of that last point. If the director were able to impose a sanction on an institution for non-compliance with its plan, and the institution felt that it had taken all reasonable steps to comply, I believe that that would constitute potential grounds for review. There is a clear correlation here with the amendment we have already accepted from the noble Lord, Lord Butler, who is not in his place, and now at Clause 36(2), providing that an institution should not be liable to sanction if it has taken all reasonable steps to comply with the provisions of its plan.
The panel would look at the director's decision and, if it felt it appropriate, ask the director to reconsider his decision. This regulation must require the director to reconsider his decision, having regard to the panel's recommendation. I assure noble Lords that that gives the panel teeth. The director cannot ignore what the panel says. It is quite clear in law that he actively has to reconsider the original decision, giving due weight to the panel's recommendation. Were he not to do so, any future judicial review would take that into account.
Lord Forsyth of Drumlean: My Lords, perhaps the Minister can clarify a possibly "daft laddie" question. On the face of it the provision seems welcome. However, would the appeal procedure include the right to appeal any financial penalty? I understand the Minister's point about particular decisions, but will that encompass the right to question particular fines or sanctions?
Baroness Ashton of Upholland: My Lords, yes, indeed, it would. That would be a matter of proportionality. The issue that is not covered in this amendment is appeal against approval. On accepting the amendment of the noble Baroness, Lady Perry, we deleted the regulation-making powers in this clause for the approval of plans. I am not able to bring forward an amendment to appeal a measure that we no longer have in the Bill as that would be against the rules.
The amendment also gives the Secretary of State the power to pay the panel. We think that that payment should be assessed according to the time spent carrying out a review as we expect reviews to be very infrequent. Noble Lords will have noticed that the amendment covers decisions made by the relevant authority in Wales.
I hope that the amendment addresses the concerns raised by noble Lords. I am very grateful to those noble Lords who have worked with me on this matter, if I can put it like that. I hope the House agrees that the measure provides greater security for institutions. I believe that the principles of reasonableness and fairness, which we have always maintained were our intentions, are now very clear on the face of the Bill. I beg to move.
Lord Sutherland of Houndwood: My Lords, I warmly welcome what the Minister said on the matter. In the
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light of what she had to say, I welcome the acceptance of the principle of a review or appeal procedure being inserted into the Bill. I, too, hope that the mechanism will be used rarely and that discretion will be used by universities and that the director will act in a way that will not provoke the need for appeals. None the less, it seems to us—I am glad that this has been accepted—that in the interests of justice being done and being seen to be done one can reasonably look for an appeal and review procedure.
The matter was debated in a civilised fashion in Committee and informally. I appreciate the exchanges that have taken place and the support of colleagues, particularly that of the noble Lord, Lord MacGregor, in framing the measure. I particularly welcome the mention by the noble Baroness of appointment according to Nolan rules and the itemisation of the grounds on which an appeal might be heard—that new facts are available that were not reasonably available previously; that facts may have been ignored or perhaps overlooked; and particularly the point about disproportion. I was pleased that the noble Lord, Lord Forsyth, clarified the fact that that might apply also to the level of penalty that is imposed.
The new clause makes provision for such a review. Clearly, the devil will be in some of the detail. We shall listen with great interest to what is said in due course if the new clause is accepted. The detail of the regulations will be critical but the noble Baroness has put matters on the record which are of great importance. I thank the noble Baroness and the Government for moving on this matter.
Lord MacGregor of Pulham Market: My Lords, I, too, thank the Minister not only for the way in which she has responded so positively to the debate but also for the way in which she engaged us fully in the discussions prior to the new clause being tabled. If I may say so, that is an example of this House at its best. I hope that the outcome is satisfactory to everyone.
I had intended to raise two points but I need to raise only one because the Minister has already dealt with one of my concerns, which was to ensure that the Nolan rules applied to the selection of whoever deals with the appeal. The Minister gave a clear guarantee that that will be the case.
The only other point I wanted to raise was in relation to the grounds on which an application can be made. I listened carefully to what the Minister had to say but obviously the regulations will contain more detail on the matter. I hope that they will not be too narrowly drawn so that they replicate almost what could happen with a judicial appeal, except that, of course, the process will be faster and less costly. I hope that the matter will go wider than that. We shall certainly want to consider the regulations when they are drawn up. I thank the Minister again for the way in which she responded to the debate.
Baroness Warwick of Undercliffe: My Lords, I am delighted that the Government have brought forward this amendment. I congratulate the noble Lord, Lord Sutherland, who has pursued the matter with such

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determination. I also congratulate the noble Lord, Lord MacGregor, who spoke to it so cogently on Report. Given the powers that OFFA will have to fine institutions and prevent them charging fees, an appeals mechanism is vital. It was difficult to come up with a solution that was not just as expensive and potentially as time consuming as the original proposal of judicial review. I believe that the measure before us will be satisfactory in that regard. It explains why the decision of the appeals panel will not be binding. If it were legally binding, it is likely that the scheme would have offered no advantages over judicial review. I look forward to hearing how the Minister proposes to take the measure forward in regulations. I hope that the Minister will confirm that she will consult sector bodies before bringing forward the necessary regulations.
Lord Norton of Louth: My Lords, I, too, welcome the amendment. Like my noble friend Lord MacGregor, I appreciate the work that the Minister has done in order to bring the amendment forward and also what she said for the record in moving it.
As I said on Report, I believe that it is one of the most important changes needed to the Bill. It addresses some of the concerns that universities have about OFFA. It will ensure that, if universities believe that the Director of Fair Access has not met the criteria to be stipulated in regulations, there is a body to which they can have recourse. Judicial review, as I argued on Report, is not sufficient: it is too narrow in scope, time consuming and expensive.
The mechanism that is created by the new clause is not a full-blown independent appeals process. The appeals body will not be able to overturn the decision of the director. What is created is essentially an independent review procedure—a fact recognised in the wording of the clause. The decision can be referred back to the director. The Minister and I have had interesting discussions on the legal effect of the provision "to have regard to". The director may be required to think again—to reconsider, as the Minister said—but the appeal body cannot overturn the decision. The provision may not go so far as I would wish but I acknowledge that it represents a significant step forward.
My noble friend Lord MacGregor and I have a particular interest in the subject of an appeals process deriving from our membership of the Constitution Committee. The committee issued its report on the regulatory state in May and included a chapter on the means of appeals from the decisions of regulators. For the reasons given in the report, which I summarised on Report, there is pressure for the decisions of regulators to be subject to an appeals process on the merits of the case, not least because of Article 6 of the European Convention. This amendment is therefore an important move in that direction. As we recommend in our report, there is a need for the Government to take what we describe as a "whole of government" view of regulation. I hope that there will be a generic template for new regulatory regimes, which will include an
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appeals process on the merits. Though I would prefer a full-blown independent appeals process, I none the less very much welcome the new clause that the Minister has brought forward.
Baroness Ashton of Upholland: My Lords, I am very grateful for the welcome given to the amendment, and shall briefly respond to a couple of the points raised. I can tell the noble Lord, Lord MacGregor, that the regulations will be subject to affirmative procedure, so we will have the opportunity beforehand to make sure that we continue to fulfil the obligations that we have set out. I am sure that he will have a contribution to make, to which I shall look forward. I say to my noble friend Lady Warwick that we will, of course, talk to sector bodies, as she indicated would be important.
I confirm to the noble Lord, Lord Norton, that I have checked again with the lawyers to make absolutely certain what the process would be. It is clear that the obligation set out means that the director has no choice but to look at the original decision again and examine very carefully the issues that the panel has raised. In the light of that consideration, he would have to make the final decision. If he did not take account of the views of the panel, the institution could apply for a judicial review of the director's decision. If the panel had identified procedural failure by the director, that would in itself furnish a reason for judicial review. I hope that we have covered the point as carefully as we can. I am happy to continue the dialogue, because the issue is important.
It is extremely nice to see the noble Lord, Lord Sutherland, in his place and to see that he looks to be fully recovered. Once again, I say how grateful I am for the work of the noble Lords to whom I have referred in helping us to get to this position.
On Question, amendment agreed to.
Lord Renfrew of Kaimsthorn Lord Renfrew of Kaimsthorn moved Amendment No. 15:
After Clause 37, insert the following new clause—
"QUALIFYING FEES BEYOND FIRST THREE YEARS
In respect of any qualifying course, the Secretary of State shall, through the relevant funding body, pay to the relevant institution any qualifying fees for any academic year which, but for the provisions of sections 24(1)(d) or 27(1)(d), would have been charged to the eligible student."
The noble Lord said: My Lords, with the leave of the House earlier, I was able to separate the amendment from Amendment No. 2. In moving Amendment No. 15, I seek to alleviate what would be the unfortunate consequence of an opposition amendment made on Report. It was the amendment that very rightly sought to remove from students at English universities the burden of fees beyond the first three years of a first degree course. That amendment is now in the Bill, in Clause 24(1)(d). The unfortunate effect of that amendment was to make the universities undertake that cost by forgoing the fees, rather than to arrange that the fees should be paid by the Secretary of State.
I have learnt through the researches of the excellent research department in the Library, with the help of Universities UK, that the cost to English universities of that amendment—unless we rectify it by Amendment No. 15—is likely to be of the order of £180 million per year. That would be an outrageous consequence of our work in this House. The crux of the matter is that our universities are under-funded, and will remain under-funded as a result of the Bill. The fees will go about half-way to meeting the recurrent deficit. It is very important that we seek to remove the additional financial burden that the provision would place on the universities unless it were amended.
The point of my amendment is to provide that:
"In respect of any qualifying course, the Secretary of State shall, through the relevant funding body, pay to the relevant institution any qualifying fees for any academic year",
as specified in Clause 24(1)(d). The reference to Clause 27(1)(d) falls away, I hope, because I did not press the Wales amendment, Amendment No. 2. I hope that the Minister will confirm that the cost to universities of Clause 24(1)(d), unless amended, would he of the order of £180 million per year, and therefore that the cost to the Secretary of State of the amendment would be of the same order.
My amendment is intended to ensure that the fees for the fourth and subsequent years will indeed be waived, as was discussed fully on Report. I particularly hope that that position will be supported by colleagues on the Liberal Democrat Benches, because their stated policy is, as I understand it, that fees in general should be paid by the state, not by individual students. Therefore, it would be a strange anomaly if they encouraged the universities to pick up the burden rather than the Secretary of State. I shall be interested to hear their position. I shall also be very interested to hear from the noble Baroness, Lady Warwick, what the position of Universities UK is on the amendment. I would find it altogether astonishing if Universities UK were to accept cheerfully the additional burden of £180 million per year to be paid by the universities.
6.45 p.m.
I feel a sense of shame that the only financial provision that your Lordships have implemented in the course of amending the Bill should place an additional financial burden on the universities, rather than on the state. The purpose of my amendment is to rectify that. I could almost write the speech of the noble Baroness, Lady Ashton, for her. She will tell us that there is no money, that the amendment would mean top-slicing, and that everything must come from the same pot. I assume that she will say that because she is instructed to do so by the Treasury.
We are, however, talking about legislation in Parliament, which is the sovereign body. I could never accuse the noble Baroness of arrogance—she has been charm itself in our debates—but it seems a rather arrogant statement to say that an amendment should not be passed in this House because it does not suit the Treasury, and essentially that the Treasury will not follow it because everything should come from the
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same pot. I hope that noble Lords will not be tempted to accept that argument. It may have the ring of financial reality, as I am sure that she will remind us, but I would regard it as a discourtesy to this House to advance that argument in such a way.
I invite noble Lords to shift the burden in the matter to where it belongs—to the Government, to the state. I beg to move.
Lord Campbell-Savours: My Lords, I supported the then Amendment No. 7 on Report and I cannot see how it is possible not to join the noble Lord in the Lobby tonight, in the event that he presses his amendment. Those of us who spoke on the matter on Report have a responsibility for finding where the money will come from. I shall support him.
Earl Russell: My Lords, one of the points on which the least thought has been given in the preparation of the Bill is its differential effect between subjects. I drew attention at Second Reading to its harmful effect on departments of chemistry. The provision multiplies that. I say that on behalf of the late Lady Young, as well as on my behalf; it is a cause on which we often worked together, and were proud to do so.
Chemistry is a four-year course. It needs to be; it is expanding all the time, because new discoveries are made all the time. It is also a subject very vital to our industrial development. It is not the only four-year course, either. Medicine takes much more than four years on occasion. The burden of the Bill to medical students is one about which we have already heard a great deal and will, I hope, hear a great deal more before it is finished. The burden to people doing greats at Oxford, which is in effect two subjects, is also considerable.
The provision will encourage universities to close departments of chemistry and other departments whose courses take more than three years because, as the noble Lord, Lord Renfrew, said, they simply cannot carry the costs. The universities are in no position to carry extra costs. I do not believe that that is the Government's intention, because if we have to buy in all of our chemistry from abroad we will be in for major national expense that is unnecessary, probably undesirable and possibly not as good as what would have been done in this country.
There is much concern in my own college, for example, about the closure of its department of chemistry. I spoke recently to the students' union, which had a great deal to say about it. So the Government have shot themselves in the foot and they might be wise to get the bullet out before any poison from it is taken into the system. If the noble Baroness, Lady Ashton, believes otherwise, I would be glad to hear why.
Baroness Warwick of Undercliffe: My Lords, I was opposed to the amendment on Report that imposed a three-year limit precisely for the reasons to which the noble Lord, Lord Renfrew, referred. This is not new information. Amendment No. 15 could be seen as repairing some of the potential damage to universities that would be caused by the three-year limit, but there

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should be no limit at all. I am opposed to that limit for the obvious reason that the noble Lord, Lord Renfrew, has identified. He is right about the consequences—it would prevent universities from charging any fees at all after the first three years. In addition to the loss that he has already indicated, it would mean a loss of £180 million. That would be disastrous for the universities.
Perhaps I should see the amendment as a relief in that it puts the bill at the door of the Government. However, there is no guarantee at all that that additional resource will be found. The Department for Education and Skills faces a tight spending round, as does the university sector, and there is a limited pot of funding. Therefore, I fear that any money to pay for the imposition of a three-year limit would have to come from elsewhere in the Budget or from elsewhere in the higher education sector. I cannot see that the universities would not suffer in some way if the amendment is carried.
The amendment deals with a symptom, not the cause of these difficulties, which is the three-year funding limit that I will continue to oppose.
Lord Forsyth of Drumlean: My Lords, the cause of these difficulties is the central core of the Bill. Listening to the contribution by the noble Baroness, Lady Warwick, and that of my noble friend, Lord Renfrew, I felt that I had received something of a wigging for having proposed an amendment that I thought my noble friend supported, but that the noble Baroness did not. My concern was for those people who decided that they wished to be architects or wished to take a longer degree course such as chemistry—and other groups who would find themselves discriminated against to an enormous extent. That is certainly not reflected in the labour market.
So, although I support my noble friend's amendment, he is looking at this matter from the wrong perspective. He regards it from the point of view of money for the universities, which he says is £180 million. I do not know whether that figure is correct, but I was looking at the matter from the perspective that it was £180 million that those students would have to find to pursue their professions.
Earl Russell: My Lords, are not both those perspectives correct, which is why the Bill is mistaken?
Lord Forsyth of Drumlean: My Lords, the noble Earl is absolutely right, which is why I said in my opening remarks that this matter is at the heart of the Bill. Listening to the noble Baroness, Lady Warwick, who represents Universities UK and the Labour Benches in these matters, it struck me as extraordinary that this was the consequence of a Faustian deal made by the universities. From now on they will be told that, "There is a limit to how much money we can provide publicly. You will have to find more money from the students themselves".
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My noble friend's amendment is welcome and I support it, but I am concerned at the way in which the debate about the funding of higher education has been skewed—undermining the notion that there is a public good in people taking longer courses that are not only valuable in themselves but that many of them produce an economic contribution to our country. We now have the Treasury and the universities as unholy allies, because the Government, which was elected on a platform of "Education, education, education", are refusing to meet their obligations. So I welcome my noble friend's amendment from a slightly different perspective.
Baroness Sharp of Guildford: My Lords, I entirely endorse the remarks made by the noble Lord, Lord Forsyth. This matter is, indeed, a Faustian deal. He said the Government were elected on a platform of "Education, education, education". They were also elected in 2001 on an explicit platform of "We will not impose top-up fees". The central problem that now confronts the Government arises from their own doing.
The noble Lord, Lord Renfrew, asked whether the Liberal Democrat Benches would support the amendment. He is right. We have always argued that the fees should be paid by the central Exchequer and we were prepared to waive taxes to increase the revenues of the Exchequer to fund the universities properly. We have a fully funded and worked-out plan to that effect, which is viable. As I have argued on previous occasions, it is an alternative that the Government have not allowed to be discussed.
Lord Dearing: My Lords, when he introduced his amendment the noble Lord, Lord Renfrew, said that he was concerned to alleviate an "unfortunate consequence"—more recently an "outrageous consequence". It should have come as no surprise, given that on the first day of Report on 8 June, when the noble Lord, Lord Triesman, replied (column 181 of Hansard) he warned us that there would be no extra money to fill the funding gap. It was an unfortunate consequence, but it was not one that we were not forewarned about before we chose to vote.
I was among those who voted against the amendment. I confess that I did not know what the bill would be—although I guessed that it would be considerable—but it had not crossed my mind that it was £180 million. That concerns me.
Lord Forsyth of Drumlean: My Lords, I am grateful to the noble Lord, but he his talking as if the matter was an inevitable consequence. This problem only arises as a result of the Bill, which he has consistently supported. It is a little odd and inconsistent for him just to accept the Government's position, given what has been said in respect of other groups, such as part-timers, by other people who have taken a similar view.
Lord Dearing: My Lords, I was not arguing about the merits of the figure, I was saying that it should not

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have come as a surprise, because we were forewarned by the Government that there would not be funding. That is a fact that can be cross-checked in Hansard.
The second reason that I voted against the original amendment was that I did not accept the principle that anyone who took more than three years should not make a contribution beyond three years—partly because the student going to university is not only concerned to gain a degree but to benefit from the experience of higher education. If a student is there for four years there are benefits, other than career benefits, that come from those four years.
A Noble Lord: No.
Lord Dearing: My Lords, noble Lords may disagree but it is a fact that people benefit from the experience of higher education in addition to obtaining a degree.
There is the matter of the £180 million. I voted against that amendment. I was very much in favour of avoiding any pre-emption or opportunism by the Chancellor in taking some of that £180 million, or, more accurately, the money that comes from fees, to reduce Exchequer contributions. But here the noble Lord is arguing that there should be a pre-emption of Exchequer resources to fill the funding gap that arises from the amendment.
7 p.m.
I want to raise two points. First, I do not think that the proposal would be effective because there would be nothing to stop the Chancellor taking out of the funding some other element that the higher education institutions were hoping to obtain. After all, the bid by Universities UK on behalf of the sector was about £8.7 billion for the three years. A great deal is being required but the money is simply not available to meet everything. Therefore, I do not think that the proposal would be effective.
However, if it were effective, I should not like the principle that the Chancellor, in deciding how he was to use the money that he was prepared to make available for education, should be able to pre-empt that £180 million, regardless of the claims of other sectors in higher education. Perhaps I may advance the cause of those who have special educational needs or advocate the cause of those who come from disadvantaged communities.
Earl Russell: My Lords, if the noble Lord, Lord Dearing, is correct in saying that the money is simply not there, why are we trying to educate more students than there is the money for?
Lord Dearing: My Lords, that is one reason why I believe the Government are right to seek a contribution from students, as that would enable that to happen.
I shall continue briefly. We have, and I think the noble Lord, Lord Forsyth, has been leading us into, a repeat of the Second Reading debate on the basic principles. I am saying that the Chancellor should not make financial allocations other than on the basis of
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what is most to the national advantage—that is, on behalf of all the people of this country at all levels. In taking that decision, he must think about, for example, the very early years, children with special educational needs and lifelong learning. He must consider a range of issues in principle. First, I do not believe that the proposal would be effective and, secondly, it is wrong in principle.
Baroness Carnegy of Lour: My Lords, when we discussed this matter on the previous occasion, I suggested that the Minister should look at what was happening north of the Border. The same Chancellor, the Member of Parliament for Dunfermline, is funding the Scottish Parliament so that it can pay fees over the basic length of a degree course in Scotland, which is four years. That is how the courses are funded.
I do not think that on this issue the Scottish Executive thought, "Here's a pot of money and we must fit into it", in the way that the noble Baroness, Lady Warwick, and the noble Lord, Lord Dearing, seem to think must happen. That is not how it works. This is a government policy to charge fees, which will be paid back after graduation. The question is whether medical education, architectural education and so on matter enough to ensure that students are not put off going into those areas. The system has worked in Scotland. Medical education in, for example. Dundee University is flourishing, but students there pay for only four years of their course; the rest is paid for by the Scottish Executive, and the same Chancellor has agreed to that.
Therefore, I think that it is wrong for us to defend the Government on the issue of a pot of money. They can talk like that if they wish and try to make us realistic. Everyone has to be realistic. But if a government have a policy, they must fund it and they must find the money from somewhere else. That has happened in Scotland; why should it not happen here?
My noble friend is right to move the amendment. I believe that we were wrong to agree to the amendment on the previous occasion without the necessary funding being available. I said that the Minister should look to Scotland to see how it was done. We understood perfectly what we were doing but it was necessary to have this additional amendment. We now have it and I hope that the Government will agree to it.
Baroness Ashton of Upholland: My Lords, I recognise the passion with which noble Lords have spoken on this issue. I must correct something that the noble Lord, Lord Forsyth, said. He said that the problem arose only as a result of the Bill. In fact, the amendment would prevent all fees. That includes not only an increase in fees; it removes the prospect of the additional income and also the income that higher education institutions receive today. Therefore, it is a different matter, and I would argue that it does not only arise from the Bill because, in that context, we take away all fees for higher education institutions.
It might make the noble Lord, Lord Renfrew, smile to hear me say that the amendment is defective because Amendment No. 2 was not agreed to. Amendment No. 15 refers to Section 27(1)(d), which does not exist.

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I shall resist the temptation to go down the route of discussing the whole principle behind the Bill because I feel that I have already discussed that at great length. I recognise what the noble Baroness, Lady Sharp, said regarding the option that she put before your Lordships of additional taxation in order to fulfil the promise to universities. I have argued—I hope coherently—the case for saying that the purpose of government is to make rational choices with the money available. I have also argued that universities are important to us but that we need to think creatively about funding all the important aspects of our lives.
I have noted, too, the Conservative Party's latest proposal concerning endowments. From the figures that I have been given, I understand that £38 billion would be required to be invested in order to raise the necessary money. However, I do not want to go down that route now because I think that we debated that issue at great length. The Bill before the House is what we as a government believe is the best way forward for higher education, putting responsibilities where responsibilities should lie. I believe that that is very important.
I do not accept the argument that students are deterred. Because of the support that we have put in place in the Bill, we believe that students will be able to make the right kind of choices in relation to the courses that they take up, and they can benefit in making those choices. We are very keen to see students do that in the right context. That is important.
Lord Forsyth of Drumlean: My Lords, I am most grateful to the Minister, and I do not wish to prolong matters. However, can she answer the point obliquely alluded to by my noble friend Lady Carnegy, who I think was talking about the position of Scottish students in Scotland? I know that the Minister's response to that will be that that is a matter for the Scottish Executive. But can she explain to the House the difference between what is proposed and what I understand the Government are doing now? Currently, students from England go to Scotland for a four-year honours degree—in Scotland, the honours degree lasts for four years, whereas in England it lasts for three years. The Government—the Minister's department—pay the Scottish Executive for the fourth year completed by the English student in Scotland. I am finding it difficult to understand where the problem lies with regard to the amendment, given that that precedent has already been established.
Baroness Ashton of Upholland: My Lords, the precedent is set under the Quigley arrangements, and I know that there is a recommendation before the Scottish Executive to continue with that. The answer to the noble Lord is very simple: the norm in Scotland is that it takes four years to complete what we, in England, would regard as a traditional undergraduate course. That arrangement—I cannot answer if the noble Lord is bantering with me; it is very difficult to hear what he is saying—was put in place because the two courses are comparable. A three-year
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undergraduate course in England equates to a four-year undergraduate course in Scotland. I do not mean that that is the case in terms of quality, and so on—I do not wish to raise issues concerning the wonderful Scottish higher education system. I am simply saying that that is the logic behind the arrangement and the Scottish Executive makes the necessary funds available. A four-year-plus course in England—whether it is a sandwich course, a modern languages course, including time spent abroad, or a course in architecture, veterinary surgery, and so on—is different.
It is not a case of saying that the Treasury has told me to say certain things—
Lord Campbell-Savours: My Lords, therefore, is my noble friend saying that the first year at a Scottish university in no way equates with a foundation year in a four-year English university course?
Baroness Ashton of Upholland: My Lords, I am saying precisely what I have just said. The norm within Scotland is that an undergraduate degree is completed within four years. The norm within England is that an undergraduate degree is completed in three years. The reason that the fourth year is paid for is that the two courses are comparable. My contention is that it is quite different from a situation where a degree course lasts for four years either because that course needs to be longer—that is, it is a course in medicine or architecture and so on—or because the nature of the course is different, such as a modern foreign language course which includes a year abroad. That is all that I am saying in this context.
The figure that I have been given for the amount of money that that equates to is between £130 million and £180 million. It is hard to be precise, but that is what I understand the cost to be. I am clear that there is one pot of government money, and we can all agree on that. It is not a question of whether it is for higher education, but that there is an amount of money available to the Exchequer from its entire works across government. The noble Lord will know well that decisions about funding are made within that.
The Department for Education and Skills recognises that we have had very generous settlements from government and that this matter will fall to the next settlement. However, it is my responsibility on the department's behalf to make clear, as I did through my noble friend Lord Triesman on Report, the consequences we foresee of the generosity we have already had from the Exchequer. We contend that although we expect further generosity, none the less there will be implications for higher education of this change, not only in additional fees but in the fees that universities charge today. It will be of that order. I think that I must put that responsibility before the House.
I consistently have said throughout the passage of the Bill that the two things I seek to avoid on behalf of universities are top slicing and taking away their freedoms. The difficulty I have with what the noble Lord, Lord Renfrew, sought to do in his previous amendments, which your Lordships accepted, and with this amendment, is that I believe we run into both items.

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The amendment provides for top slicing because it requires the funds to be paid by the funding council, so there will automatically be a top-slicing operation. Because that takes away the private contribution universities would lose out. I also believe that we would have to create bureaucracy in order to take money out of higher education and then put it back in a slightly different place.
So I contend—and as I have said already, it is up to another place to determine what it wishes to do about the amendments already passed by your Lordships—that the implication is that the sector may well find itself losing resources, not only because of the additional moneys we hope to raise through fees, but also because of the fees currently made available to universities.
I do not believe that it would be right to say other than that. That is the position I want to put before your Lordships' House. I ask the noble Lord to withdraw the amendment. I do not believe it adds to what I understand the noble Lord wishes to achieve. It has serious implications for universities and the impacts would be as I have said.
Lord Renfrew of Kaimsthorn: My Lords, I thank all noble Lords who have spoken. It may well be that we would not wish to be where we are. But where we are is that the amendment was passed on Report. I see the merits of it and I agree with the résumé by my noble friend Lord Forsyth that students in the fourth year and above of a first degree course are absolved from the burden of paying fees after the third year.
So the question is: who pays? The noble Baroness was very clear on her cause and the noble Lord, Lord Dearing, was almost clearer. The noble Baroness, Lady Warwick, was less clear. She saw the problems but did not clarify exactly where she would vote or where indeed she will vote. Perhaps that will be very interesting to observe.
I would say to the noble Lord, Lord Dearing, that he was not the only person to see the potential consequences of the amendment on Report. In Hansard of 8 June, col. 180, he will see that I mentioned that I had tabled Amendment No. 14 but did not move it, which would have had consequences similar to those that I propose now. That was why I did not go through the Lobbies in support of my noble friend's amendment. So the noble Lord, Lord Dearing, was not the only one who foresaw the problem.
However, the noble Lord, Lord Dearing, has a view of the Treasury which is almost as sacrosanct, though less understandably perhaps, as that of the noble Baroness, Lady Ashton. He points out to us with prescience, that there is nothing to stop the Chancellor—he did not use the word—"fiddling" the books; in other words, meeting this and taking the resources from elsewhere in the higher education sector. So I take the point.
The noble Lord went on to say—and I think I quote him accurately—that, "There just isn't the money and the money is not available". That is the same point as
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the noble Baroness made. But that is a matter for decision by the Government. It is exactly what we are debating; and it is the purpose of the amendment. If carried, I hope the amendment will strengthen the hand of the noble Baroness when she goes to the Treasury and says, as she would have to, "Look, we have a problem here".
Also I have taken some advice. The amendment contains the negative clause,
"but for the provisions of sections 24(1)(d) or 27(1)(d)".
I do not believe that the amendment is defective, although I accept that the reference to Section 27(1)(d) is no longer necessary. I think that the amendment is intelligible and not defective, although that phrase could certainly be dropped, as I hope it would be, in a tidying up procedure.
Your Lordships have heard the arguments. I still find it an arrogance—I must be careful; I must not say that word looking at the noble Lord, Lord Dearing, because I used another disagreeable word and had to withdraw it at an earlier stage of our proceedings—to say that the money is not there. The money is not there because the Government are not putting it there. That is the central problem with the Bill. That is why many of us in this House are distinctly dissatisfied and why I feel it is necessary to test the opinion of the House.
7.16 p.m.
On Question, Whether the said amendment (No. 15) shall be agreed to?
Their Lordships divided: Contents, 71; Not-Contents, 125.

Division No. 3

CONTENTS

Anelay of St Johns, B.

Mackie of Benshie, L.

Brooke of Sutton Mandeville, L.

McNally, L.

Brookeborough, V.

Maddock, B.

Brougham and Vaux, L.

Mancroft, L.

Caithness, E.

Mar, C.

Campbell-Savours, L.

Mar and Kellie, E.

Carlisle of Bucklow, L.

Mayhew of Twysden, L.

Carnegy of Lour, B. [Teller]

Miller of Chilthorne Domer, B.

Colwyn, L.

Moynihan, L.

Dean of Harptree, L.

Nicholson of Winterbourne, B.

Dixon-Smith, L.

Noakes, B.

Falkner of Margravine, B.

Northesk, E.

Ferrers, E.

Onslow, E.

Fookes, B.

Park of Monmouth, B.

Forsyth of Drumlean, L.

Peel, E.

Fraser of Carmyllie, L.

Perry of Southwark, B.

Garden, L.

Renfrew of Kaimsthorn, L. [Teller]

Glenarthur, L.

Greenway, L.

Renton, L.

Hamwee, B.

Roberts of Conwy, L.

Harris of Richmond, B.

Roper, L.

Howe, E.

Russell, E.

Howe of Aberavon, L.

St John of Fawsley, L.

Jenkin of Roding, L.

Saltoun of Abernethy, Ly.

Laird, L.

Seccombe, B.

Lindsay, E.

Selborne, E.

Linklater of Butterstone, B.

Selsdon, L.

Luke, L.

Sharp of Guildford, B.

Lyell, L.

Shaw of Northstead, L.

MacGregor of Pulham Market, L.

Shutt of Greetland, L.

Skelmersdale, L.

Mackay of Clashfern, L.

Smith of Clifton, L.

1187

Thomas of Gresford, L.

Walmsley, B.

Thomas of Walliswood, B.

Watson of Richmond, L.

Tope, L.

Williams of Crosby, B.

Waddington, L.

Windlesham, L.

Wallace of Saltaire, L.

NOT-CONTENTS

Acton, L.

Hoyle, L.

Ahmed, L.

Hughes of Woodside, L.

Amos, B. (Lord President of the Council)

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Andrews, B.

Janner of Braunstone, L.

Archer of Sandwell, L.

Jones, L.

Ashton of Upholland, B.

Kennedy of The Shaws, B.

Bach, L.

King of West Bromwich, L.

Berkeley, L.

Kirkhill, L.

Bernstein of Craigweil, L.

Lea of Crondall, L.

Bhattacharyya, L.

Levy, L.

Billingham, B.

Lipsey, L.

Borrie, L.

Lockwood, B.

Bragg, L.

Lofthouse of Pontefract, L.

Brooke of Alverthorpe, L.

McCarthy, L.

Brookman, L.

Macdonald of Tradeston, L.

Brooks of Tremorfa, L.

McIntosh of Haringey, L.

Burns, L.

McIntosh of Hudnall, B.

Carter, L.

MacKenzie of Culkein, L.

Carter of Coles, L.

Mallalieu, B.

Chandos, V.

Mason of Barnsley, L.

Clark of Windermere, L.

Massey of Darwen, B.

Clinton-Davis, L.

Merlyn-Rees, L.

Currie of Marylebone, L.

Mitchell, L.

David, B.

Morris of Aberavon, L.

Davies of Oldham, L. [Teller]

Nicol, B.

Dean of Thornton-le-Fylde, B.

O'Neill of Bengarve, B.

Dearing, L.

Palmer, L.

Dixon, L.

Parekh, L.

Donoughue, L.

Patel, L.

Dubs, L.

Patel of Blackburn, L.

Evans of Parkside, L.

Pitkeathley, B.

Evans of Temple Guiting, L.

Plant of Highfield, L.

Falconer of Thoroton, L. (Lord Chancellor)

Portsmouth, Bp.

Quirk, L.

Farrington of Ribbleton, B.

Radice, L.

Faulkner of Worcester, L.

Ramsay of Cartvale, B.

Filkin, L.

Randall of St. Budeaux, L.

Finlay of Llandaff, B.

Rea, L.

Fyfe of Fairfield, L.

Rendell of Babergh, B.

Gale, B.

Rooker, L.

Gibson of Market Rasen, B.

Sainsbury of Turville, L.

Gilbert, L.

Scotland of Asthal, B.

Golding, B.

Simon, V.

Gordon of Strathblane, L.

Smith of Leigh, L.

Gould of Potternewton, B.

Sutherland of Houndwood, L.

Graham of Edmonton, L.

Symons of Vernham Dean, B.

Grantchester, L.

Temple-Morris, L.

Grenfell, L.

Tomlinson, L.

Grocott, L. [Teller]

Triesman, L.

Harris of Haringey, L.

Tunnicliffe, L.

Hart of Chilton, L.

Turnberg, L.

Haskel, L.

Turner of Camden, B.

Haskins, L.

Varley, L.

Hayman, B.

Walpole, L.

Henig, B.

Warner, L.

Hilton of Eggardon, B.

Warwick of Undercliffe, B.

Hogg of Cumbernauld, L.

Whitaker, B.

Hollick, L.

Whitty, L.

Hollis of Heigham, B.

Wilkins, B.

Howarth of Breckland, B.

Williamson of Horton, L.

Howe of Idlicote, B.

Wilson of Dinton, L.

Howells of St. Davids, B.

Woolmer of Leeds, L.

Howie of Troon, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.26 p.m.
The Deputy Speaker (Viscount Simon): My Lords, before calling the next amendment I should point out that the line reference for this amendment has been incorrectly printed. It should read, "page 19, line 30".
Clause 38 [Provision of information]:
Baroness O'Neill of Bengarve Baroness O'Neill of Bengarve moved Amendment No. 16:
Page 19, line 31, at end insert—
"( ) If so requested by the governing body of a relevant institution in relation to which an approved plan is in force, the Higher Education Funding Council for England must provide that institution with any information which is in its possession and is reasonably required to enable the institution to inform its students about the level of publicly provided resource for each category of course offered at that institution, and about the level that would have been available had the level of publicly provided resource for that category of course in the previous year been uprated by an index of higher education institution costs."
The noble Baroness said: My Lords, I shall be brief; I expect that we need that by now.
At present, Clause 28(4) provides that any fees paid by students will be additional to and not in substitute for public funding. The Government opposed this amendment, and it may well be removed when the Bill returns to the Commons.
On Report, I moved but then withdrew an amendment to ensure that any reductions in funding for teaching were matched by proportionate reductions in student numbers. The Minister objected that such an amendment would require the Higher Education Funding Council for England to control student numbers more tightly than it does at present. The Government may also have opposed the amendment precisely because it would have made it explicit that reductions in public funding mean that, for any given level of fee, either numbers of places must be reduced or quality of provision must be lowered. That is the truth of the matter.
At this stage I wish to move a weaker amendment; that is why it relates to a different part of the Bill. Its aim is only to ensure transparency about levels of public funding for university teaching and courses of different categories.
On Report the noble Lord, Lord Sutherland of Houndwood, supported the amendment that I had moved, pointing out the degree of transparency that it would achieve. He said:
"The Government will understand fully the implications of what they do, and that is good for good government. Taxpayers will understand why universities must be supported: they are not a bottomless pit of energy and talent that can be milked and milked. Students, their parents and sponsors will understand why, in the current situation, fees are necessary and they will see what they get for those fees. Finally, also in terms of transparency, universities will know what is expected of them, they will know what the resource is and they will be able to make proper plans over a foreseeable future".—[Official Report, 8/6/04; col. 251.]
Those are aims with which all of us can agree. I hope that the Government will be able to accept the amendment. The amendment would secure a degree of transparency. It allows taxpayers to know the extent to which students on courses in different categories are supported from public funds. It allows students and

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their families to know how far the costs of their education are met by their fees and how far by public funding. It allows universities to make a secure case for any fee they charge. It also allows them all to know if public funding is reduced or increased in real terms. In the past, the unit of resource for university teaching has very often been reduced by an adequate suppositious uprating of funding at less than the rate of increase of university costs, labelling the resulting gap in funding and efficiency gain, and in effect meeting the shortfall at the expense of students, who received less teaching, and academic staff, whose level of pay was eroded.
It would at least help to be clear about those matters. The amendment does not add to the burdens on universities. It neither requires nor allows HEFCE to exert more precise control of numbers admitted or of their distribution across categories of courses. It does not determine which index of university costs—whether the higher education pay and prices index or another index—should be used. That would be a matter for HEFCE in consultation with the sector. Universities that find the funds to admit more students, despite any future reduction in public funding per student, would remain free to do so. However, I think that students, their parents, universities and the public would be able to see what was going on. I beg to move.
Baroness Warwick of Undercliffe: My Lords, I congratulate the noble Baroness, Lady O'Neill, on what she has said and for exploring the complexities that will be part of all our discussions on the unit of resource. We will ensure that the Government stand by their commitment that the income from fees will be additional, and if necessary that they must be made to stand by it.
What the noble Baroness has sought to do in her amendment is already possible. The information referred to here is at least in part already publicly available. Institutions can use a measure—it is a Universities UK measure, but it is produced by the London School of Economics—called the HEPPI index, the higher education pay and prices index.
However, the amendment proposed by the noble Baroness touches on an important point. While I do not think that the Bill should be amended in the way that she suggests, it would be helpful if the Minister could indicate that the retail price index does not give an accurate measure of inflation in the higher education sector. While the Minister may not be prepared to accept that the HEPPI is the only possible, or even the right measure, perhaps as part of our discussions on the definition of unit funding, which has already been agreed, we might discuss what an appropriate measure of inflation would be and arrange for that to be published annually.
Baroness Sharp of Guildford: My Lords, I will be brief. I had hoped that my name would appear alongside those of the noble Baroness, Lady O'Neill, and the noble Lord, Lord Wilson of Dinton, on the
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Marshalled List. I had asked for it to be so, but a slip up in the Public Bill Office meant that it was not so. I had an apology this morning to that effect.
We support this amendment, because it adds to transparency. There is already ambiguity as to what constitutes unit funding, and it would be useful to clear that up. There is also ambiguity as to what price index is used when we have real figures as distinct from those on current terms. On all scores, and for the reasons already set out splendidly by the noble Baroness, Lady O'Neill, we support this amendment.
Lord Wilson of Dinton: My Lords, I also support the amendment. It will be fair for students, who are already going to be expected to contribute to their education, to know what the Government are going to contribute. That transparency is very much in line with the openness that the Government want in many fields. I also point out—this may be some encouragement to the Government—that if, as we all hope, the Government are going to be much more generous to higher education in the future, it will be a good way of indicating to people in higher education how their generosity is moving over time. I support it very much, and I hope that the Government will respond positively.
Lord Renfrew of Kaimsthorn: My Lords, I, too, support this amendment. The notion of transparency is admirable. I am enchanted by the suggestion made by the noble Lord, Lord Wilson, that it might bring us increasingly good news. On that happy thought, I warmly support it.
Baroness Ashton of Upholland: My Lords, I congratulate the noble Baroness, Lady O'Neill, for the way in which she has identified the issues that are of concern to her. I know that the purpose behind this amendment is to look at the transparency around the amount of funding that the Government commit to higher education. This amendment is not necessarily the way to do it. Although I shall be brief, I hope that in doing so I shall reassure the noble Baroness.
I spoke to HEFCE this morning. It confirmed that it already provides extensive information to heads of higher education institutions, as my noble friend Lady Warwick pointed out, about their annual funding allocations, including information on the effects of inflation using the GDP deflator. The grant letter that it provides is around 50 pages long, plus annexes. I have a copy here, but I will resist the temptation to read from it. I cannot say that I have read every page—
The Countess of Mar: My Lords, I hate to interrupt, but I remind the noble Baroness very gently that she is addressing the whole House, not just my noble friend Lady O'Neill. The Liberal Democrats are seeing only the back of her head.
Baroness Ashton of Upholland: My Lords, it is always my intention to move around the House, as I believe the noble Countess will see as she watches me in the course of this speech. I was addressing the noble

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Baroness, Lady O'Neill, and I shall move to address those who have spoken in this debate, as is my wont on every occasion—
The Countess of Mar: My Lords, the noble Baroness is not addressing those noble Lords who have spoken, she is addressing the House.
Baroness Ashton of Upholland: My Lords, in doing so, I always attempt to be courteous. As I have indicated, there is the letter from HEFCE. Detailed information is available on how the higher institution block grant figures are arrived at, based on a combination of the expectations of the mix of courses that institutions provide. Of course, higher education bodies are autonomous and are free to use their overall block grant to fund provisions at they see fit. I say particularly to the noble Baroness, Lady O'Neill, that HEFCE is happy to provide additional details on request.
On Report, I took care to respond to the issues around additionality, which I know your Lordships' House feels strongly about, and our plans to work with Universities UK on such a definition. As I explained, we plan to publish the new definition in the departmental annual report, which is laid before Parliament in the usual way. We know that HEFCE has plans to carry out a further fundamental review of the funding method, to take into account the impact of variable fees. This will lead to further changes in due course.
I have a number of concerns about the practicalities of the amendment before us, because I do not think that it will be so straightforward to devise a new index—the index of higher education costs. To summarise, I hope that I can reassure the noble Baroness that this amendment is unnecessary. HEFCE already provides regular annual information, and we are planning to develop a new definition of the unit of funding. Taken together, this will provide institutions with the clarity that they need about levels of public funding.
I am also concerned that we ensure that the noble Baroness, Lady O'Neill, who has such an interest and expertise in this area, is able to do that. I offer the opportunity to bring the noble Baroness and the noble Lord, Lord Wilson of Dinton, to discuss these issues with HEFCE, so that there can be absolute clarity about the way in which we are proposing to go forward. I should point out to my noble friend Lady Warwick that university costs are generally estimated by Universities UK to be higher year-on-year, as the noble Baroness will know, than the retail price index or the gross domestic product deflator. The amendment is unclear on which index to use. In our deliberations with HEFCE, we shall be concerned to ensure that consideration is given to how we might take forward the correct way of identifying the means of inflation.
In the context of recognising the work that HEFCE is already doing, the offer to discuss this further with the noble Baroness and to facilitate those
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conversations, and our continuing work with Universities UK to identify the transparency that noble Lords want, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness O'Neill of Bengarve: My Lords, I am grateful in many respects for that reply. I was interested in the shift in the course of the Minister's reply from an emphasis on the amount of information that HEFCE discloses to the clarity of the information that it discloses. These are rather different considerations.
One of the concerns that lay behind our amendment is that institutions should be able to make apparent to students the extent to which their education is being paid for by the public purse and to what extent it is covered by their fees. I have in mind, for example, a student taking a course of study which includes a bit of laboratory work. It is not a simple matter for any student, or their family or their sponsors, to answer that question from the scads of information that HEFCE produces.
If the noble Baroness can assure me that this issue of firm, communicable information on an annual basis for category of course is the objective of this review, then I would consider withdrawing the amendment. If, however, it is simply the development of a new index—and I was very careful not to tie the Government's hand to one index or another—then I think I would consider dividing the House. I wait to hear what the Minister has to say.
Baroness Ashton of Upholland: My Lords, it is my understanding that we would look to do that. I will try and be as firm in my commitment to the noble Baroness as I can. My only hesitation in being absolute is to make sure that when the noble Baroness joins us—it is to be hoped—in discussions with HEFCE she will feel confident that the way in which the work is undertaken—and, indeed, the work with Universities UK, which I am sure will also wish to join in the discussions—will cover that issue properly. I can commit to the underlying issues behind the amendment being addressed fully by the ongoing work. With that assurance, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness O'Neill of Bengarve: My Lords, I thank the Minister for her reply. I have listened carefully and, on that basis, it should be possible to work something out that would provide a degree of comfort and information which would be useable by students and their families, not merely by the finance departments of universities and HEFCE. These are vital figures for students, and quite vital politically. On the understanding that this is one of the objectives of the exercise, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 50 [Commencement]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 17:
Page 25, line 14, at end insert—
"section (Review of decisions made by relevant authority), so far as relating to England;"
On Question, amendment agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that this Bill do now pass. In moving the Motion, I wish to say a few words of thanks to noble Lords who have given so much time to the Bill and have spoken during its passage through your Lordships' House. I am particularly grateful to my noble friend Lord Triesman, whose detailed understanding of the higher education sector has been immensely helpful.
I want to say to the noble Lord, Lord Forsyth, that while I regret the circumstances of the absence of the noble Baroness, Lady Blatch, it has been a pleasure to work with him. I have been impressed by the noble Lord's knowledge and understanding of the issues and, while we have differed in our views in some respects, we have shared a genuine commitment to the autonomy of the sector, with a special regard to academic freedom.
The noble Baroness, Lady Sharp, has, as always, played an important part in our debates, and I thank her for her constructive approach. I am particularly pleased that we have been able to accommodate a number of the amendments of the noble Baroness, where she has characteristically been supporting the views of groups such as the RNIB and SKILL, and also dealing with part-time student matters.
Sometimes we have disagreed on the Front Benches, but debate has never been less than thoughtful and courteous. Other noble Lords have contributed greatly, and I will resist the temptation to name them all at this time. I am extremely grateful to everybody who has spoken.
I want to end by giving my thanks to the Bill team. They have been fantastic. They have good sense and high intellect, and it has been a privilege to work with them.
Moved, That the Bill do now pass.—(Baroness Ashton of Upholland.)
Lord Forsyth of Drumlean: My Lords, I have no wish to detain the House, but I want to say a few words of thanks to my colleagues and noble friends Lady Seccombe and Lord Skelmersdale. At the risk of destroying her future ministerial career, I also want to pay tribute to the Minister and to the noble Lord, Lord Triesman, for the very positive way they have dealt with the amendments and probing which we have tried to carry out in the proceedings on the Bill.
I do not know if I am giving away any secrets in saying that there has also been a lot of time spent behind the scenes, arguing the case. I am particularly grateful to the Minister for the way in which she has been prepared to listen to argument and to help us in trying to reach agreement.
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This House is sometimes portrayed as being asleep and not doing much. One need only compare the consideration of the Bill in the other place with that given here, where the Government have agreed to important amendments in respect of OFFA, appeals and part-time students. I hope that we will not have finished with the consideration by the Commons of other matters that have come forward.
At the risk of causing difficulty to the noble Baroness, Lady Sharp of Guildford, I offer her my thanks. We are in different parties, but we have tried to work in the interests of the universities and higher education institutions, as we see them. The noble Baroness has been a pleasure to work with. I have rather enjoyed the experience, but I have no intention of repeating it.
7.45 p.m.
Baroness Sharp of Guildford: My Lords, we are very grateful to the Minister for the consideration and good humour with which she has dealt with the Bill. There were occasions on which our positions were diametrically opposite, but there was always a feeling that there was a degree of understanding of where we were coming from. I find that encouraging.
I reciprocate the comments of the noble Lord, Lord Forsyth of Drumlean. It has been a great pleasure to work with him. It is very sad that the noble Baroness, Lady Blatch, is not in her place. I suspect that, had she been there, we would have spent many long hours on the Bill and, perhaps, considered more amendments than we have done. In some senses, we might have done a slightly more thorough job on occasions. Nevertheless, we have done a very good job, and it has been a pleasure to work together in this way.
Finally, I thank my noble friend Lord Shutt of Greetland, who came in at the last moment to help me to cope with the Bill. I am extremely grateful to him.
The Lord Bishop of Portsmouth: My Lords, I do not want to preach a premature funeral oration, but, on behalf of those of us on these Benches and others, I add my thanks for the way in which the Minister has responded to no end of approaches and the way in which she has listened. Although she was unable to work in our concern to have a statement of the values of higher education because of lawyers and litigation, I look forward to a future opportunity to explore that theme in another way in the House.
I am sure that I speak for many others when I say, "Thank you very much". It has been fascinating to watch not just the "Punch and Judy" show of Forsyth and Ashton but the triad involving the noble Baroness, Lady Sharp of Guildford, as well—and, occasionally, to take part in it.
On Question, Bill passed, and returned to the Commons with amendments.

Business of the House: Children Bill [H.L.]
7.47 p.m.
Lord Triesman: My Lords, unless any noble Lord objects, I beg to move that further consideration on Report of the Children Bill should be postponed until after the Unstarred Question in the name of the noble Earl, Lord Selborne.
Moved accordingly, and, on Question, Motion agreed to.

Waste Management Policy (EUC Report)
7.48 p.m.
The Earl of Selborne The Earl of Selborne rose to ask Her Majesty's Government, further to the Report of the European Union Committee on European Union Waste Management Policy (47th Report, HL Paper 194), what steps they are taking to improve the development and implementation of European Union waste legislation.
The noble Earl said: My Lords, my Question refers to European Union waste management policy and specifically draws attention to the report by the Select Committee on the European Union that came out last year. I had the privilege of chairing Sub-Committee D, which drafted the report.
It must be recognised that European Union waste management policy has not been an easy area of legislation for this country to wrestle with. We found that often we failed to influence the debate and from time to time had difficulty implementing the legislation in a timely and effective way. One need only think of the approaching deadline for the co-disposal of hazardous and non-hazardous waste and of the End-of-life Vehicle Directive and the Waste Electrical and Electronic Equipment Directive. All have caused great difficulty, and we must learn some of the lessons.
One of the documents that we scrutinised was a European Commission document that suggested a thematic approach. The document is called Towards a Thematic Strategy on the Prevention and the Recycling of Waste. We welcomed at least part of that thematic approach because it appeared to open the possibility of a sudden change in direction on EU waste strategy, which we felt was much needed. The report states:
"Current Directives foresee that all Member States should achieve the same recycling rates. However, the question is legitimate whether this uniformity in targets is most effective from both an environmental and economic point of view".
That goes right to the heart of the current problem with the EU approach of one solution fits all, which we found to be fundamentally flawed when trying to implement across Europe. In summary, we found that there was inadequate scrutiny by national Parliaments and by the European Parliament. We found that there were imprecise definitions of what is waste, which leads to different interpretations in member states. We found a lack of adequate baseline data, which made impact assessments of present and future legislation inadequate. There was a lack of impact assessments on
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amendments by the European Parliament and by the expert committee, the Technical Adaptation Committee. There was most uneven reporting by member states.
At the UK level, we recognised a lack of involvement in developing national strategic thinking by those best suited to contribute. We always seem to be overtaken by events. It was rather discouraging to find that the Environment Agency complained that it did not have an adequate opportunity to contribute to legislation in its formative stage. Certainly, that was true of the waste industry, which felt that it could be much better employed as part of the consultation process. We heard the same from local authorities.
A second fault at the United Kingdom level identified our failure to implement EU legislation in a timely way. That has been fully dealt with by the Better Regulation Task Force. At this stage, I would endorse its recommendations for project planning. We felt that the third area of United Kingdom failure was a lack of adequate co-ordination within government. We made proposals for how Defra and the DTI might work more effectively together.
To return to the areas of concern, the Technical Adaptation Committee (TAC) is meant to be an expert committee which should not be involved in determining policy. It should certainly not be left to conclude matters that are fundamental to the delivery of policy. However, on taking an example such as the landfill directive, industry found itself having to determine what class of waste it should handle before definitions had been determined about what was and what was not included as hazardous. That is a completely inappropriate use of a technical committee. It is impossible to decide how to invest in infrastructure until precise directions are given from the European Union about what should go into it.
The timing of the TAC deliberations was most unhelpful. Currently, we have the electronic equipment directive. The decision process took more than 2.5 years, so one really cannot say that there was any need for a rush. But here we have UK transposition required by August 2004 and the details of the TAC and its deliberations are still emerging on the DTI website. However, it is an advance at least to have a DTI website which is publishing those deliberations. That was not the case for earlier EU waste recommendations. We made a very firm recommendation that substantive definitions accepting the operation of the directive should be decided at policy level and not at expert level.
As regards definitions, there must be consistency between the different directives about the definition of waste and other technical terms. We saw an overlap between directives; that is, the Urban Wastewater Treatment Directive and the Waste Framework Directive. As regards something like taking a battery out of a car, the industry was not clear whether that should be dealt with under the End of Life of Vehicles Directive, the Waste Electrical and Electronic Equipment Directive, the Battery Directive or the

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Hazardous Waste Directive. How on earth can anyone plan sensibly to handle those materials if definitions are not agreed?
Turning to the lack of baseline data, there cannot be consistent legislation until one understands where one is starting from. Targets are quite meaningless if the data is suspect. The timetable for a proposed waste statistic regulation suggests that the first set of data will be available from the Commission in 2006, which will allow the assessment for trends by 2008. That makes quite problematical any future directives that may set targets.
Our firm belief is that we should resist setting further targets until we have got some robust data. In the United Kingdom, we should not wait for the European data, but we should try to generate some for ourselves in which we have some confidence.
The lack of impact assessments is a particularly worrying aspect. It is being addressed. The Battery Directive is subject to a pilot study, as well as the revision to the Groundwater Directive. We need to ensure that as amendments are moved by the European Parliament, they are subjected to impact assessments. As we have a proud record in this country, we should lead the way on that.
As regards who should collect the data in Europe, we felt that the European Environment Agency, as the main agency for collation of data, has a central role. It has the task of promoting awareness and producing reliable comparisons on the state of the environment across the European Union.
If we accept that the United Kingdom's influence on EU policy making has been less than impressive in the past, we must ensure that the Environment Agency, industry and local authorities are brought in at an early stage in deliberations. There is evidence, which comes through in the Government response to the report, that this has been taken in hand. Certainly, if the Better Regulation Task Force recommendations on project planning are accepted—as I believe they will be—by government, we will have a much more sensible approach. Co-ordination in Government needs to be led within Defra, which has a concordat with the Environment Agency. The DTI needs to do the same. We need a single website; we need to have one unit.
The example of the landfill directive and all the other waste directives to which I have referred in my short address demonstrates that we have most inadequate data, definitions and objectives. If we are to have anything like consistent implementation across Europe, now is the time for the European Commission to take a long, hard look at the effectiveness of regulations. Indeed, the United Kingdom Government should look at their own ability to transpose such directives into law in this country.
7.58 p.m.
The Countess of Mar: My Lords, I am grateful to the noble Earl, Lord Selborne, for asking this Question today. I also express my gratitude for the way in which
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he chaired Sub-Committee D for quite a long time. It was a pleasure to work with him and I am sorry that he has gone. It has been a long time since this report was published. In fact, it is so long that I would have expected to see more results than those that have materialised.
Waste will always be with us, but there are measures that can be taken to manage it. Since 1975, the European Union has developed a waste management hierarchy that is based on prevention, reuse and recycling, energy recovery and final disposal. Disposal to landfill, used extensively in the UK, is seen as a last resort.
It is said, "The road to hell is paved with good intentions". There is also a saying, "All talk and no do". If ever there was an organisation to which both those sayings might apply, it is the Department for Environment, Food and Rural Affairs. I know that the Minister will not like to hear me say that. As we deliberated the EU legislation on waste management, we were told constantly that groups of people were having talks or were consulting, both within the UK Government and with their European counterparts. No one seemed to be willing to take any firm decision about what action was required. No individual or even units within a particular department seemed to have been given responsibility for overall management of EU waste legislation. The result is a lack of leadership, accountability and direction from government to stakeholders. I look forward to hearing the results of the review being undertaken by the Cabinet Office. Can the noble Lord give any indication of how soon is "soon"?
The failure of Government to learn from past experience—dare I mention the word "fridges"?—to stop talking, to take a grip on the timing of the implementation of legislation and to do something about developing a comprehensive and consistent policy has led to a state of confusion among those responsible for the disposal of waste. Local authorities and others responsible for implementing the law are too often found to be unable to meet the practical requirements of EU legislation which our Government have endorsed simply because they have not been consulted at an early stage.
For example, with less than a month to go to the deadline for ending the co-disposal of hazardous and non-hazardous waste, I understand that only two sites have been licensed to take a wide range of hazardous waste, two that will take asbestos and one that will take contaminated soils, filter cakes and packaging. The Government and the Environment Agency have been accused of weakening the rules for toxic waste tips and for waste that can be categorised as fuel for cement kilns as a result of lobbying by the chemical industries.
Waste industry stakeholders are unhappy about the risks to the environment inherent in the interim rules which mean that the disposal of hazardous waste to landfill before the full EU standards are imposed in July 2005 may well create problems that will have to be dealt with at a later date. Their reluctance to offer sites

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for the disposal of hazardous waste is understandable in the face of the liabilities they are likely to have to accept.
There are also serious concerns about the fly-tipping of hazardous waste because of a lack of local facilities for smaller companies to dispose of small quantities of waste economically. Have these companies been told about the new rules? Have they been told what they must do with their hazardous waste? Have they been told what hazardous waste is?
That is just one example of the way things can go wrong because of a lack of understanding by central government of the practical implications that new legal requirements can create for organisations and individuals. The Government have been very much more communicative with stakeholders about the progress of the waste electrical and electronic equipment directive, but unfortunately they seem to have been hampered by forces beyond their control. In their response to the report, the Government said that they hope to transpose the directive by 13 August. Will this deadline also be missed?
I was pleased to read that the Government, in their response to the report, recognise the importance of reliable data across all waste streams as the basis for waste management policy formation, planning and investment decision making. Throughout our inquiry we were aware of the hampering effect that the lack of data had on those responsible for policy making, drafting legislation and implementing it. It seems extraordinary that, in all the years since the waste framework directive of 1975, no one seems to have faced the fact that such a vast body of legislation—and it is a vast body—affecting the whole of the EU population has been based on conjecture. No business would survive if it operated on that basis.
The Environment Agency has a pivotal role as the waste regulation authority for England and Wales. It was apparent at the time of our inquiry that the agency was not always as involved in decision making as it might have been, a point made by the noble Earl. I am pleased that the Government, in their response, acknowledge the importance of co-operation between Defra, the DTI and the agency. May I ask the Minister at what stage is the formal confirmation of the concordat between the agency and the DTI? I note, too, that the Government acknowledge the need for the agency to be properly resourced. How do they propose to ensure that the agency has sufficient staff, with the appropriate specialist skills, to enable it to be proactive in the early stages of policy development as well as to carry out its regulatory functions? The Government have already indicated that they are prepared to provide the funding.
A great deal of confusion still surrounds EU waste policy and legislation, much of which seems to emanate from the EU. We found little evidence to substantiate Defra and DTI claims that the UK Government were having a major influence in driving strategic thinking in EU waste policy. Is the Minister able to say how many of the recommendations of the
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Better Regulation Task Force have been implemented, and are the Government becoming proactive within the EU? I look forward to hearing his response.
8.5 p.m.
Lord Palmer: My Lords, it is sad to think that after all the hard work that went into this report, it is very nearly eight months since it was published. On re-reading it, I had forgotten just how depressing the whole problem of waste is and is bound to become. I believe that waste disposal of any sort or kind, along with energy, are the two biggest problems facing the planet in the immediate future.
Like my noble friend Lady Mar, I too wish to pay tribute to the superb chairmanship of the noble Earl, Lord Selborne. Having served under him on Sub-Committee D for three years, I feel I have learned a great deal, for which I shall always be extremely grateful. We were also so ably served by our committee clerk, Mr Tom Radice, supported by the ever-helpful Marilyn Byatt.
Where this report is concerned, the lines of demarcation seem to be rather confused to say the least, as there are so many different bodies involved in each member state. Indeed, the problem of waste does not appear to come under a single European directive, but I accept that this is a most complex problem.
The noble Earl has succinctly covered most of the vital issues in our report. I think it is very worrying that 430 million tonnes of waste was generated in the United Kingdom last year and on all predictions that figure is probably going to rise by at least 4 per cent per annum in the foreseeable future. I think we must all agree that we are going to face serious problems about how to deal with it.
I do believe strongly that the fundamental and underlying factor about waste is that we must produce less of it in the first place. Mr Bird of Defra agreed this on page 77 in his oral evidence. Yet it was frightening that by his own admission, all we seem to do is discuss it, whereas we need to take firm action now, and not before it is too late.
I too was interested to read the Government's response to this report. I believe that we need to look afresh at our waste policy, and indeed that of all of the members of the European Union; we ought, for instance, to consolidate the 72 separate initiatives. I also believe that an improved investment incentive would help attract funding and a realistic commitment to build new waste management facilities.
The whole recycling policy needs to be re-examined. The Minister's right honourable friend Mr Meacher rightly said recently in a radio interview how pointless it is to make a 10-mile journey with empty bottles to have them recycled. This is, in many ways, the hub of the recycling debate and it is an important subject completely on its own.
As a farmer, I am all too aware that a change in policy or the growing of a new crop cannot just happen overnight and, likewise, waste facilities and all processing plants cannot just spring up at a moment's notice. I believe that the current legislation relating to

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waste management, together with mixed messages from government, whether it be central or local, are creating a climate of uncertainty; nobody is going to invest where there is a strong degree of uncertainty.
I believe that waste is the Cinderella of the nation's infrastructure and that time is running out, and fast. The report provides the Government and, indeed, the European Union with an ideal opportunity to take a fresh look at the whole problem. I hope they take it.
8.9 p.m.
Baroness Miller of Chilthorne Domer: My Lords, member states can be grateful to the European Union for putting waste firmly on the agenda of every national government. Whether it has been done in the right way by issuing directives with good guidance on their implementation is another question. However, there is no doubt in my mind that, without a push from Europe, not nearly as much would have been done in any member state.
At the same time, every member state—including Britain—bears some responsibility for having too little dialogue with Europe about implementation at an earlier stage. I am grateful to Sub-Committee D for the report, which highlights some of the issues identified.
It is a problem that we should still be talking about "waste". We should change the terminology. I believe that in the report the representatives from the Local Government Association, among others, referred to "resource reuse". Calling it "waste" simply suggests that it should be thrown away.
A couple of years ago I attended a meeting in your Lordships' House with Members of the Indian Parliament. We were discussing the GAP agreement. They explained that, in their view, it was inappropriate for waste companies here to tender for municipal services there because they simply did not recognise that there was such a thing as waste. They simply saw it as resources that would be used in different ways. They did not believe that our waste disposal companies would see their problems in that light.
However, the waste industry here, as represented by Biffa and others, has come to see very clearly that we no longer have rubbish and waste but resources that must be divided up and reused. Very little of the material we are referring to is actually waste.
It is clearly identified in the report that the waste industry—I use the term in its widest sense—is far too divided in almost every way. We have collection authorities and disposal authorities; we have municipal waste, industrial waste, inert waste, clinical waste, hazardous waste and biodegradable waste. The way in which it has been divided historically has been very unhelpful. If we were to re-divide it into categories such as "easy to reuse", "difficult to reuse" and "impossible to reuse", it would be a constructive starting point. The categories would be difficult to unpick but it would be very helpful.
I notice that a new statutory instrument has recently been introduced into Parliament under the environmental protection landfill regulations 2004. The aim of this statutory instrument seems to be to
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reduce our current targets to something a little more achievable. Is the Minister aware of any other targets that will need to be reduced in a similar way? Does he believe that the kind of redefinition I have suggested would be helpful?
I declare an interest as a Somerset county councillor. It is difficult for local authorities to get the message across that this is a much wider issue than simply recycling one's bottles, cans and paper. A good start has been made by many local authorities on recycling domestic waste, but as we know—and this was clearly underlined in the report—this is simply the tip of the iceberg. We need a whole life-cycle approach and we are miles away from that at the moment, which we can see from the abandoned car figures alone. I realise that the end of life directive may start to have an effect, but the attitude of the public and small and medium-sized enterprises is still that it is difficult to see what we can do with things that are not categorised in the simple way of paper, cans and bottles.
Another difficulty with the more sophisticated approach is that the Government have resisted a comprehensive labelling scheme to give an idea of the length of life that members of the public should expect from various items. The Minister will remember that I have raised this matter with him before. The Government have made some commitments, and the Minister quoted domestic appliances as a good example of energy-saving labelling. Nevertheless, there is nothing to indicate their expected length of life except for the guarantee. Unless one takes out an extended warranty, one does not know whether one's fridge should have lasted for five years when in fact it lasted only for three and will become part of the fridge mountain.
Along with energy labelling that shows how much energy is consumed while the appliance is running, there should also be labelling showing the level of embedded energy—the energy taken to make the appliance and dispose of it. That should be included for every single item of a substantial size that we buy. That would be a positive step that the public could expect from the Government. The public could then see exactly what sort of disposal problem would arise from the purchase of such products.
The Government should also address the change in attitude needed with regard to the constant wish to renew office equipment and fittings, internal shop fittings and domestic kitchens. A whole industry is built around the constant renewal of items. That emphasis must change. Again, the problem may he addressed by labelling that shows how long things last, but the problem has not been sufficiently addressed by the landfill tax, which has not proved effective to date in reducing this fashion for the constant renewal of perfectly adequate items.
What is being done about inert waste from the construction industry and soil, which is still proving to be far too large an element of that—I am not talking about contaminated soil—which is considered to be waste? It should not be such a problem to reduce the volume of such waste. Also, what is the position with

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regard to liquid waste? I understood that provisions had been phased out in 2001. I wonder whether the Environment Agency and others are still finding that there is a problem with people disposing of liquid waste in illegal ways.
8.18 p.m.
Lord Dixon-Smith: My Lords, the House owes a considerable debt of gratitude to my noble friend Lord Selborne and Sub-Committee D of the European Union Select Committee for their work in creating this report and for making sure that this debate takes place. How fortunate it is that it did not happen yesterday. Yesterday, we had a Statement on the EU Summit. With a great fanfare, the success of Europe moving forward was trumpeted. The United Kingdom was at its heart. This wonderful edifice was to be all-singing and all-dancing and would improve the world. Today, we deal with this report, and find that that whole wonderful edifice cannot even run a waste tip. That discovery would really rather have tarnished the bright shine on yesterday's events. What a difference a day makes.
I agree with the noble Baroness, Lady Miller of Chilthorne Domer, that the effect of the European Union in waste matters has been that of a catalyst, in that at least things are happening. But she is too pessimistic when she says that things would not have happened without the European Union. It was clear many years ago that we could not go on as we were, because landfill sites were simply disappearing too fast. I declare a sort of indirect historic interest, in that Essex at one time used to take 37 per cent of London's domestic refuse for disposal.
I agree with the noble Baroness's concept of resource reuse, which is something we need to consider very seriously. We need to change our attitudes in that regard.
I recall when the Waste and Emissions Trading Bill went through this House, which, again, implemented an EU directive—in, I believe, about 1990. We were immensely concerned that that Bill was simply enabling legislation that would be wholly dependent on regulations, and that the meaning of the Bill would be obscure, not to say totally hidden. The process was heavily criticised, and I wish that we had had this report before we dealt with that Bill. It would have helped the process enormously, and the Bill would have had to be enacted in a much better form.
This report reveals that the process by which European directives are arrived at is deeply flawed. There is inadequate research, so directives are not even consistent with the definitions in their predecessors. One cannot run any waste disposal business with that sort of problem. My noble friend Lord Selborne has already mentioned batteries, which are subject to four different directives, each with a separate way of dealing with one specific problem. That is no way to run a business.
Paragraph 25 of the report says that,
"Member States sometimes agreed to Directives without fully understanding their scope".
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That is not surprising if the process under which the directives were established was flawed. That comment is only part of a damning paragraph, and is capped in paragraph 29, which states:
"The Government were thus in a position of having signed up to legislation without knowing the practical implications; while landfill operators were faced with significant uncertainty and confusion about what the law required".
If we are supposed to be at the heart of Europe, I begin to understand why there is antipathy and bored frustration in the electorate, as was revealed in the elections only 10 days ago.
We cannot deal with all the problems that are highlighted in the report. There are certainly issues on the European side that the report highlights and which, I hope, the European Union administration will take note of. Not the least of our problems in debating this report is that the Minister cannot be held in any way responsible for dealing with that side of the business. All that he can be held responsible for is responding to what I would call the United Kingdom side of the report. However, I would ask him to say something about what is happening in Brussels as a result of the report.
It is clear that one cannot formulate policy without adequate data on what is happening in the first place. Without adequate data, one cannot do a regulatory impact assessment—and without a regulatory impact assessment, one cannot formulate proposals that are likely to produce the effect that one desires. So we have a fundamental problem on the other side of the Channel.
However, at paragraph 84 we see that, on this side of the Channel,
"the Government do not provide convincing evidence of a strategic approach to … waste policy … Currently it appears that the Government's position is essentially reactive".
If we are at the heart of Europe, and all we are doing is reacting, then the heart is not beating very strongly.
At paragraphs 105 and 106, we see that divided departmental responsibility is inhibiting a co-ordinated response to European initiatives. This is a problem that we can do something about. I acknowledge that, in response to the report, a review is being undertaken by a Cabinet committee. This has already been touched on by other members of the committee. It will be very interesting to hear when that report will be published and, more importantly, if it will be implemented when it is published. I know that that is anticipating a great deal but we need action to be taken.
It is very easy to say that this report is unhelpful but that would be completely wrong. It is immensely helpful because it is criticism with a purpose. The purpose is very simple: it is to improve the whole area of waste disposal policy and legislation and the way we handle the issue. The ball is now in the Government's court and I am grateful to my noble friend for the part that he has played in putting it there. I look forward to the Minister's reply.
8.27 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, I thank the noble Earl, Lord Selborne, for initiating this debate and, more importantly, for chairing the committee that did such stalwart work in this respect. Just to reassure the noble Lord, Lord Dixon-Smith, I was certainly not going to say that the report was unhelpful. Indeed, the tone of the Government's response will show that we found it a very positive report. Although it has pointed out a few significant problems about discussions at the UK level and European level, the Government can accept the general messages of the report, by and large. Therefore, we are extremely grateful.
The Government do take the issue of waste management very seriously. I do not think it is true that, as the noble Lord, Lord Palmer, said, we are sending mixed messages, either on waste prevention and minimisation or on the way in which we deal with waste. But, to address the unusually political point made by the noble Lord, Lord Dixon-Smith, it is true that there has to be a European dimension to this. We need a coherent Europe-wide approach to waste management. We need to engage with the other member states, as well as with the European institutions, because the environmental impacts of waste management go wider than one country and because markets in waste are international. If there is no EU co-ordination of waste management policy, we run the risk of a "race to the bottom", which is in nobody's interest.
As the report rightly acknowledges, we also need to ensure that the European Union policy is holistic and adopts a strategic approach. In developing and implementing individual directives, we need to follow that holistic approach and to ensure that it is done as cost-effectively as possible. Given the large number of European directives that there have been—some overlapping, as the noble Earl indicated—that is one of the reasons why we support the principles of the communication from the Commission, Towards a Thematic Strategy on Waste Prevention and Recycling. We regard that as a major step forward. Both the communication and the UK Government's response look right across the piece and we need to develop that thematic strategy. It is not just the United Kingdom Government who strongly support that, although we are one of the leading proponents; many of our EU partners do as well.
The UK is very actively participating in discussions that will lead to conclusions at the Environment Council meeting at the end of the month, and those conclusions will steer the Commission's policy from then on. So I do not think we need fear that the United Kingdom is not playing a leading part in the discussions. Whatever the criticisms of past performance in that respect, we are helping the development of future EU policy. Meanwhile the United Kingdom is participating in those negotiations.
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In the past, we have often been in the lead in practice. We supported and were senior proponents of the development of the Packaging and Packaging Waste Directive, the End of Life Vehicles Directive and the Waste Electrical and Electronic Equipment Directive. In particular, we tried to ensure that those were delivered in the most cost-effective way. Although we had a variable degree of success, I think that, without the UK intervention, many of those would have been less cost effective and more of a problem for industry.
We would say that the WEEE directive has been a particular success. The UK is the first member state actively to draw up technical guidance for industry to follow on final treatment. In fact, the UK has been asked if the guidance can be used to steer discussion of an informal technical adaptation committee subgroup so as to harmonise the approach with other member states. We are therefore in the lead on that.
I need, however, to deal with a number of criticisms and points made by the committee and in this debate. The noble Earl rightly referred to the Better Regulation Task Force and the action undertaken there. Although it is still early days in some ways, the Government are following through many of the task force's recommendations. Certainly we in Defra hope that those principles run through our approach to both UK and European regulations.
There were comments on the need to engage the Environment Agency more at the European level. I think it is very important that the Environment Agency is involved at the technical level and in policy discussions. We certainly see the need for it to operate fully with Defra, for which the concordat provides. Although the DTI has always accepted the principle of that concordat, we now accept that that needs to be put more formally. We are developing that procedure as well.
I believe that engagement with stakeholders in the UK has improved substantially. There is also better regulation, as the committee requested, between central and local authorities. That is a complex issue and a broad problem that we have debated at various points in various legislation relating to waste management and other local authority powers. Although it is not always easy to see the best way through, it is very important to ensure that progress is made.
The waste implementation programme, for example, provides a strong and direct interface with local government on a full range of waste management delivery measures. The local authority support unit has launched a new portal for all local authorities so they can all have access to case studies, best practice, practical toolkits and so forth. That has been a result of engagement between central and local government.
A number of concerns on specifics were expressed in the debate. The noble Countess, Lady Mar, referred to the position on hazardous waste and whether there is adequate provision to deal with such waste. It would be wrong to suggest that the capacity to landfill hazardous waste will cease to be available in July.

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When co-disposal ends as a result of the directive, merchant landfills will continue to accept hazardous waste and they will have a capacity to accept more than 1 million tonnes per annum. We expect that up to 15 merchant sites and 10 in-house sites will be able to do so. So I think that the numbers referred to by the noble Countess and in the media are a serious underestimate.
While that amount—1 million tonnes—is less than the historic level of hazardous waste, which is closer to 2 million tonnes, there are strong indications that the annual capacity will be sufficient to meet the need for a number of reasons: additional disposal sites will come on stream; we are clearing contaminated soils prior to the ban and therefore the demand is likely to reduce and, of course, there is on-site remediation, which we would encourage to a large extent. Many of the industries see that, far from causing a problem, the end of co-disposal will help them in terms of their on-site management.
A number of procedural issues were dealt with in the report. The Government fully accept the need to strengthen the regulatory impact assessment. We are pleased that the institutional agreement on better lawmaking has now been ratified. We are strongly supportive of the carrying out of impact assessments prior to the adoption of substantive legislative proposals. We are pushing the Commission in that general direction. It is also very important that the RIA gives rather more details than some of the European RIAs have done hitherto, even where they have been carried out.
I refer to responsibilities within government. Clearly, major responsibilities rest with Defra and the Environment Agency. Others—certainly sponsorship of the industry—rest largely with the DTI. Planning issues lie with the ODPM.
The Government are currently considering options for improving the co-ordination of interdepartmental responsibilities in response to the Strategy Unit report, Waste Not, Want Not, and the recommendations of the report that we are discussing.
I cannot give a clearer definition of "soon" except to say that my brief says "shortly" rather than soon. However, I do not suppose that the noble Countess, Lady Mar, is any the clearer for that. We shall not need to wait too long but beyond that I cannot give a clear date. Other decisions which were part of the recommendations such as the single website would be dependent on a decision regarding any reorganisation of government but in the mean time we have made significant improvements in relation to the current websites, principally the Defra website.
The noble Baroness, Lady Miller of Chilthorne Domer, asked a number of questions about the position regarding waste from the construction industry. The mineral planning system and the aggregate levy on that are designed to reduce the increase of raw aggregates and increase recycling of demolition waste. The noble Countess, Lady Mar, asked whether the transposition date for the WEEE
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directive would be met. While major progress has been made on WEEE, the 13 August date will not be met despite our having extremely productive steering discussions both at UK and European level. The aim now is to transpose the directive completely by the end of the year.
The noble Earl, Lord Selborne, referred to the batteries directive, as did a number of other noble Lords, and the number of directives that impinge on batteries. The Government have learnt from previous waste directives. We are working very hard with other member states to ensure that definitions are clarified at the earliest opportunity and that the duplication and overlap of recommendations relating to batteries are resolved.
The noble Baroness, Lady Miller, referred to the definition of waste and whether we should look at material specific definitions or the conceptual definitions that she proposed. Some of these definitions are partly determined by EU legislation. The Commission is looking at material specific recycling targets and so forth that begin to address the issues of how much each material can be used. However, I am not sure that the other structure of definitions is yet being considered at European level.
Many points were made about data collection. We agree broadly with the need to improve data collection. We are working on that in order to report in line with our European obligations and in order to inform our policy and our practical implementation of that policy.
There are a number of questions that I have not answered. For example, the noble Baroness, Lady Miller, asked about liquid waste, and I am afraid that I shall need to write to her on that. There are a number of other questions that I am sure that, when I read Hansard, I shall find that I have not answered, and I hope that noble Lords will be content with me writing to them on those matters.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.49 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.40 to 8.49 p.m.]

Children Bill [H.L.]
Baroness Ashton of Upholland: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Clause 36 [Amendments to notification scheme]:
[Amendment No. 94A not moved.]
Clause 37 [Power to establish registration scheme in England]:
[Amendments Nos. 95 and 96 not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 97:
Page 24, line 34, at end insert—
"( ) The provision which may be made under subsection (2)(a) includes provision that any person who, in an application for registration under the regulations, knowingly makes a statement which is false or misleading in a material particular is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale."
The noble Baroness said: My Lords, Clause 37 already makes provision for a number of offences for private foster carers under a registration scheme. The amendment is proposed to deal with a situation where a person in an application for registration as a private foster carer knowingly makes a false or misleading statement in a material particular. By doing so, such a person would be guilty of an offence and liable, on summary conviction, to a fine of up to £5,000.
We believe that providing false or misleading information which could lead to the registration of someone who might otherwise have been considered unsuitable to be a registered private foster carer is a very serious matter and one that should carry a severe penalty. Although the amendment might be regarded as relatively minor, it is, none the less, important. It would improve the Bill. I beg to move.
On Question, amendment agreed to.
[Amendment No. 98 not moved.]
[Amendment No. 99 had been withdrawn from the Marshalled List.]
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 100:
Before Clause 41, insert the following new clause—
"DUTY OF SCHOOL GOVERNING BODY IN RELATION TO PUPILS WHO ARE IN PUBLIC CARE
The governing body of a community, foundation or voluntary school or a maintained nursery school shall secure that the teachers in the school are aware of the importance of identifying, and providing for, those registered pupils who are in public care."
The noble Baroness said: My Lords, the purpose of the amendment is to probe further the Government's reluctance to give in legislation a specific responsibility to school governing bodies for the education of children in public care. On the fifth day in Committee, we had a debate on the role of governing bodies in respect of children in public care. However, in her response to the various amendments, the Minister focused on who was the best person to have responsibility for promoting the education of children in care.
In summing up the reasons why children in care have unacceptably low levels of educational achievement, the Minister used the findings of the
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Social Exclusion Unit's report, A better education for children in care. She concluded that the unit points to the,
"need to place a duty on the corporate parent. I am not ruling out the importance of schools, but all five key findings lead to the local authority. The local authority, as corporate parent, can deal with the issues of instability, time out of school, lack of extra help, insufficient support and health".—[Official Report, 27/5/04; col. 1471.]
The Minister made a very good point. However, she did not address the role of the school in respect of children in public care. What can the school do to help those children most? Amendment No. 100 tackles that issue by saying that schools should ensure that all staff are aware of the educational needs of looked-after children in general and, where appropriate, staff should know which children are in public care. That is essentially a staff training issue. There is a need to appoint a senior member of staff—a designated teacher—who has responsibility for ensuring that staff know of the educational needs of looked-after children.
Support for that approach comes from the DfEE guidance (as it was in the year 2000 when it was issued), entitled Education of Young People in Public Care, which is still current. This quotation comes from the DfES website:
"The Guidance states at paragraph 5.34
Schools should designate a teacher to act as a resource and advocate for children and young people in public care"
The guidance goes on to ask that LEAs and social services departments co-ordinate suitable training for designated teachers and maintain an up-to-date list of them in schools in their area.
Those who have read the guidance will know that paragraph 5.34 is underlined. The underlining is explained on page iii of the introduction. It states that,
"primary legislation will be needed to give statutory force to paragraph 5.34".
That indicates that someone at the DfEE, as it then was, recognised the importance of placing a statutory duty on schools in respect of the education of children and young people in care.
The Social Exclusion Unit's report, A better education for children in care says a lot about designated teachers. Where designated teachers are in place there have been positive results, but there have been problems in identifying the staff to take on this role. Paragraph 5.13 of the Social Exclusion Unit's report states:
"Every school should have a designated teacher to act on behalf of children in care. The designated teacher role can be adapted to meet local needs. It could include advocating for children in care, monitoring their progress and performance, or providing coaching to other staff on the needs and experiences of children in care".
Problems of finding designated teachers of sufficient seniority and commitment could be overcome in part by placing an explicit duty on governing bodies to ensure that staff know about the educational needs of children in care. Clearly, a specific requirement to have a designated teacher is too specific for primary

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legislation, but a more general duty on the governing body, as proposed in Amendment No. 100, is a way forward.
The Minister may not accept that Amendment No. 100 is the best formulation to ensure school staff are aware of the educational needs of children in public care and to meet the Government's stated commitment. However, the commitment has been given. Either the Government should take the opportunity to renege on that commitment or they should bring back a government amendment at Third Reading to support the education of children in care. I beg to move.
The Earl of Listowel: My Lords, I thank the noble Baroness, Lady Sharp of Guildford, for stepping in at the last moment to introduce the amendment for me. I apologise to her for momentarily stepping out of the Chamber.
I strongly support the amendment. I welcome what the Government are doing in Clause 43 to promote the educational attainment of children. As the Minister said, the Social Exclusion Unit's report into the education of looked-after children emphasises the five different ways that local authorities need to raise their game in order to improve the educational attainment of those children.
I also welcome the assurance the Minister gave in Committee that there will be statutory guidance on the designated governor within the governing body. That is also a helpful step forward. In Committee, I raised concerns about the implementation of tools used in schools by the government to promote the educational attainment of looked-after children. First, the designated teacher is a specially trained senior teacher who can advise other teachers about how to work with looked-after children and has a responsibility to liaise with the social service department and the foster carer and ensure that the child is properly ensconced in school.
Secondly, I raised concerns about personal educational plans. Each child in care has a personal education plan. That is filled out by the child, the foster carer or the residential social worker and the teacher. It sets a number of goals for the child to attain. Both tools are good in principle but, regrettably, in practice they do not appear to work properly.
I asked the Minister about the matter in Committee. I felt that her response was a little complacent. She asked where the evidence was that these tools are not effective. In the chapter on schools in the Social Exclusion Unit's report on the education of looked-after children the Minister will see clear evidence that the designated teacher is not being used consistently. Certainly, her advisers—I am sure she has her scouts as I have mine—will tell her that in practice there is a great deal of inconsistency in the use of these tools.
Again, there is little research in this area, but some has recently been published and, having spoken to the researchers, they found that when they talked to the schools with which they were working, sadly, the
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personal education plan amounted to little more than a tick-box exercise. Even so, it was to some extent useful because it brought social workers and school teachers together, but it was underperforming its potential.
9 p.m.
So my concern is that, although the steps that the Government have taken are welcome, they will not go far enough to ensure the proper implementation of the measures that we need. Although it is right that there should be a special duty on local authorities to promote the education of children in care, what happens in schools? Surely schools are vital to children's educational attainment and we need to ensure that what happens in school works, as well as what happens in local authorities.
I turn briefly to school governors. They have the strategic role in schools of ensuring that the right policies are in place. If there is a duty on school governors of the kind that we are describing, they may think, "Yes, we will have our designated governor", but when the designated governor comes to the governor's meeting, the school governors as a body corporate will be responsible for asking that person, "Well, what is going on with the looked-after children?" If there are no looked-after children in the school, they must say, "Are we ready to receive such children?"
It was made clear to me in the research that it is necessary for schools that do not have looked-after children to be ready for them when they arrive. The Minister will be well aware that currently, too often, the worst-performing schools are those that receive children in care. That is often because children in care move during the middle of the school year and the school with vacancies is a school that is underperforming and a school to which no one wants to send their child. We hope that the changes in the admissions policy recently made will begin to ease that problem but, as it begins to ease, we must ensure that schools that have not received looked-after children in the past are ready to do so.
I will not go on about the outcomes for those children, because I think that we know them pretty well. But let us consider what happens with teenage pregnancies. In the 1958 cohort of children who went through the care system, young women were found to be two-and-a-half times more likely to be pregnant in their teens when they came out of care. Also, a child born to a parent who has been looked-after is two-and-a-half times more likely to go into care. So we need to address that vicious circle. Education plays an important part in reducing the amount of teenage pregnancy. The Social Exclusion Unit report on teenage pregnancy mentioned that as one of its three key factors in reducing pregnancy rates. I look forward to hearing the Minister's response.
Baroness Howe of Idlicote: My Lords, I support the amendment, proposed by the noble Baroness, Lady Sharp and my noble friend Lord Listowel. One

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of the many figures concerning looked-after children makes especial sense in this context. About 27 per cent of looked-after children have special educational needs; compared with 3 per cent on average. That puts into perspective how important are the special arrangements and the fact that schools must be thoroughly involved in the whole process.
I have been impressed, not least by the pioneering group of local authorities which reported to a group of us the other day, all of which emphasised the need to work together to identify the specific needs of children. I say that because it was clearly difficult to get the different specialities to work together. There was a clear indication that they would prefer to be made to work together, for which the Bill clearly lays the groundwork.
I have been equally impressed by the number of initiatives that are already under way. We have heard about one of them. The Taking Care of Education project certainly indicated that successful pioneer schemes were under way. Everybody involved with the children, and the children themselves, were involved in working out a plan. Levels of self-esteem, how everybody worked together and the effect on the children seemed to indicate a step in the right direction. There is still a tremendously long way to go. I hope that the Government, having set up and backed the proposals, will do everything possible to ensure that everybody works together.
The General Teaching Council, with which I had a meeting, is very interested in getting its people to work together with the other specialists involved so that at least a core of each speciality is working in the same direction. I hope that this small amendment can be agreed to without too much difficulty. It would operate via governors of schools; there would be a designated teacher where necessary. Obviously, they will be prompted only once a year to see whether they have any looked-after children. It does not seem to be asking too much to have the amendment accepted.
Lord Hylton: My Lords, given the hour I shall say only that a distressingly large proportion of young people who have passed through care end up in conflict with the criminal justice system and very often in prisons and other custodial institutions. That is highly unsatisfactory and has been going on far too long. Therefore this is an important amendment; I urge the Government to accept it.
Baroness Ashton of Upholland: My Lords, I pay tribute to the noble Earl, Lord Listowel, for ensuring that the issue of looked-after children is brought to the forefront, certainly in all the work that I do in your Lordships' House. I am grateful to him for the time that he has spent in discussing the underlying issues with me.
In response to those who spoke on the amendment, we are discussing the means to an end, but I submit that we all seek the same outcomes. We believe firmly that a huge amount of work must be done to support looked-after children to ensure that they receive the
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kind of education that is appropriate for them and that they are successful in education, because it is such an important gateway to success in life.
The noble Baroness, Lady Sharp, was right to say that I focused on the Social Exclusion Unit report in dealing with the outcomes, and that I focused on those outcomes in the context of the corporate parent. What the report identified as lacking in the lives of looked-after young people relates very much to the role of the corporate parent. That applies especially to young people and children placed out of area, as they have additional problems. I make no apologies for placing the emphasis there, as it is very important.
I would be very upset if I had given the noble Earl any indication that I was complacent because that is not the case. I think that the work of designated teachers is going well, but that does not mean that I do not believe that we should continue to look at such teachers and consider some factors: first, the training and support that they might need; secondly, their level of seniority. We will continue to do that.
We have tried to address the question of admissions through admissions forums. We have made looked-after young people the priority in considering how schools need to support them. That has been done in terms of their arrival out of the normal turnover of children in schools and also more generally in enabling schools to identify that they have a role in ensuring that what we would consider good schools are available to support the education of looked-after children.
The difference between us is that we are moving as far as we possibly can in Every Child Matters, and in our work more generally with schools, to recognise that children arrive on a continuum of need. Looked-after children will fall into different categories of need. These children will sometimes have behavioural problems, special educational needs or disabilities, and the figures are probably understated for those children. They will also come with different reasons in their backgrounds for being in care. They will have different needs in terms of the continuation of their education and disruption of their education. In that sense, they are similar to other children who arrive in schools with different needs for different reasons.
What we are trying to say through Every Child Matters is literally that every child matters. In our education system we should be developing an individualised learning programme for children that enables them to get the best from the education system. This group of children should be able to achieve in schools, because we have put in place all of the measures that support all of our children. That includes looked-after children.
Inevitably, different schools have different communities of children. I have met with the head teachers of some schools that I have visited who have a large number of refugee children. Others, and this is my experience as a chair of governors, have a number of settled Traveller children, who come with needs of their own. Other noble Lords will have experience of

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different schools. It is important to allow governing bodies to develop the policies and strategies appropriate to the children in their care.
I hesitate to put a duty overall on schools, while recognising what has been said about making sure that schools that have children who are looked-after, and schools that may have looked-after children in the future, are able with ease to acquire the kind of support, training, advice and guidance that we have discussed in earlier stages of this Bill.
We seek the same ends, but in doing so our concern is to ensure that we recognise that looked-after children in schools need additional support; that they get the support appropriate to their needs, not their category; and that we support all of our schools in developing, for their own governing bodies, the kind of policies appropriate to the population of children that they have. I say this with no complacency. These children deserve our full support, and we hope that they will achieve it through this Bill. I hope that on that basis the noble Baroness will feel able to withdraw her amendment.
Baroness Sharp of Guildford: My Lords, I thank the Minister for her reply. Yes, I understand well that in broad terms we are all talking exactly the same language. Nevertheless, in the amendment that we put forward we were asking the governing body of a school to secure that the teachers in the school are aware of the importance of identifying and providing for these registered pupils. While recognising that there is a need for statutory force behind this, the earlier commitment to think in terms of having a specified designated teacher for children in public care is clearly there in the guidance. The reason for it is still there, and the amendment is useful. This is an opportunity for us to give that statutory force. This is a fairly mild amendment.
I would like to read what the Minister has said in Hansard. We will think about it more, and we may find that we wish to come back with this amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 [Duty of local authorities to promote educational achievement]:
Earl Howe Earl Howe moved Amendment No. 101:
Leave out Clause 43.
The noble Earl said: My Lords, this is a probing amendment, designed to glean from the Minister what she believes are the practical consequences of this clause. We are all aware how the educational attainment of looked-after children often suffers badly, and how seriously this can affect their life chances. The noble Earl, Lord Listowel, was eloquent on that point. It is a matter of deep concern to many of us on all sides of the House. Not for a minute would I wish to belittle the desire to tackle the problem, both for the benefit of the children themselves and for the benefit of society as a whole.
The difficulty comes when we try to visualise what local authorities might actually need to do. Clause 43 is short and apparently simple. It confers a duty on local authorities to promote the educational achievement of looked-after children in their own areas. I should be very grateful if the Minister could say a little bit about how they are meant to do this and what the knock-on effect might be for those children who are not looked after.
Suppose, for the sake of argument, that we have a popular school. The local authority believes that this is the right school for a particular looked-after child. That child, let us also suppose, is competing for a single available place with a non-looked-after child who lives right next door to the school. That other child should, by every right, have a claim to the vacant school place. But what will actually happen? The local authority will be bound by its duty under Clause 43, and may therefore feel it has the legal responsibility to say to the governors of the school, "Look here, we have a duty towards this looked-after child. We believe he would benefit by going to this school. There isn't an adequate alternative, and we formally request you to agree to this".
A request couched in those terms would place the school governors in a very difficult dilemma indeed. Do they accept the child being, as it were, "parachuted in" by the local authority? Or do they do their duty by the child living next door? I should be genuinely interested to know whether the Clause 43 duty has the potential to land schools and local authorities in this sort of predicament. Once you say that a local authority has a particular duty towards one group of children, it means, by implication, that another group of children will, or could, be disadvantaged.
How are we to avoid disadvantaging non-looked-after children in hard cases, once this provision becomes law? I beg to move.
9.15 p.m.
Baroness Ashton of Upholland: My Lords, I am very grateful to the noble Earl, Lord Howe, for raising this question because it allows me to talk a little bit about how we see this working.
As noble Lords know from our previous discussion, we identified, through the Social Exclusion Unit report, five key factors that underlie the poor performance of children who are looked after: instability; time out of school; lack of extra help with education; insufficient support and encouragement from home; and poor emotional, physical and mental health.
We believe that the key responsibility for tackling these issues lies with local authorities, recognising—as I hope I have in the earlier discussion—the important role played by schools and those who care for young people. Central government have an important role to play. We believe it is very important to transform the life chances of these young people and children, and implementing those recommendations is central to the plan. None the less, it is the local authority that crucially and critically takes on the role of parent on behalf of the state.

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I say to the noble Earl, with regard to the particular point he raises, we have real ambitions that, through the admissions forum, there will not be the kind of dilemma he quite rightly outlines. On the one hand, I think the noble Earl would agree with me that these children are probably among the most disadvantaged of children. On the other hand, in organising how best to support them, it is not the purpose of any local authority or government to disadvantage other children.
The reality is that these children have found it more difficult to find appropriate educational settings. There have been concerns that they do not get the additional support that is needed—hence, in a sense, why the noble Earl, Lord Listowel, and the noble Baroness, Lady Sharp, raised their concerns about schools.
We have tried to say that it is not for us to force the local authorities to do what the noble Earl is fearful of. The purpose of the admission forum, in everything it does, is to make sure that these issues are debated, discussed and resolved.
In a sense, part of the discussion about admissions, both inside the normal school year and outside, which is another issue, is debated within that group. It is for the schools and their local education authority to sort that out and not for it to be seen as a competing priority.
However, we shall publish guidance on what the duty means in practice. It will cover a number of specific issues, such as ensuring that a suitable school placement is available at the same time as arranging a care placement. Again, there is an important synergy between those two aspects, which is very important for those children who are placed in a different authority. It will cover ensuring that all looked-after children have a personal education plan—the noble Earl identified that as being important—which will identify needs and clarify the expectation of those caring for the child or young person about educational support and will set clear educational targets.
The guidance will also cover monitoring of the admission and exclusion of looked-after children, appealing against non-admission and exclusion where appropriate and making immediate arrangements to provide appropriate alternative full-time education where that proves necessary for those children; ensuring that all staff with responsibility for looked-after children, including designated teachers, will receive appropriate induction training and ongoing developmental support; and prioritising looked-after children in local-authority-wide strategies for improving educational achievement and promoting the inclusion of vulnerable groups of children and young people.
In that guidance, we think that we will encompass what the Social Exclusion Unit has indicated are critical factors. These are among the most vulnerable children in our society. We owe it to them to ensure that they fulfil their educational potential, which, as I have already indicated briefly, is key to their life chances more generally. It is right to put that onus on
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local authorities as the child's corporate parent—they have the prime responsibility. That should be done in a way that is clear about roles and responsibilities but does not seek to undermine the needs of other children in organising and supporting these children in particular. That is why Clause 43 is important. I hope that the noble Earl feels that I have responded to his concerns and that he can withdraw his amendment.
Earl Howe: My Lords, as so often, I am grateful to the noble Baroness. Her remarks were very helpful. I would not say that my misgivings are completely assuaged, although they have certainly partly disappeared. I am glad to hear about the guidance. The practical implementation of this clause is of crucial importance to the way in which it is understood at a local level. I beg leave to withdraw the amendment at this stage.
Amendment, by leave, withdrawn.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 101A:
After Clause 43, insert the following new clause—
"ASCERTAINING CHILDREN'S WISHES
In section 17 of the Children Act 1989 (c.41) (provision of services to children), after subsection (4) insert—
"(4A) Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—

(a) ascertain the child's wishes regarding the provision of those services; and

(b) give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain.""

The noble Baroness said: My Lords, I beg to move Amendment No. 101 A, which would have the effect of amending Section 17 of the Children Act 1989. If the amendment is agreed, a local authority, in considering what services to provide for a child in need, will be required to ascertain and to take account of the wishes of the child, so far as is reasonably practicable and consistent with the child's welfare. The effect would be to extend what local authorities in England and Wales already must do in relation to the children for whom they are providing accommodation into a more general obligation in relation to children in need to whom they are providing services.
The need to listen to children and to take account of their wishes in making decisions about them is a fundamental element of the Children Act. It is already explicitly recognised in several places. Section 1 places a duty on the court in making decisions relating to the upbringing of a child. Section 20(6) requires that, before providing accommodation to a child in need, the local authority, so far as is reasonably practical and consistent with the child's welfare, should ascertain his or her wishes and give them due consideration having regard to the child's age and understanding. Section 22(5) imposes a similar obligation in relation to decisions about children who are looked after by the local authority.
Although there is no express requirement in Section 17 that concerns children in need, the guidance issued under Section 7 of the Local Authority Social Services Act 1970 in relation to Section 17 places considerable emphasis on listening to children and taking account of their wishes. That is good practice which we would all expect to occur, which I believe is followed.
The need to listen to children is at the heart of Every Child Matters and the present Bill. In Committee, the noble Baroness, Lady Walmsley, recognised the role of the statutory guidance, but nevertheless expressed her concern that without a statutory expression of the need to take account of children's wishes there was a risk of inconsistent response by different local social services departments, and other noble Lords supported that view.
I have reflected on this and I believe that the importance of the issue, along with the need for consistency with the other provisions to which I have already referred, are persuasive arguments. The government amendment now before the House will strengthen the statutory backing to the approach we already regard as good practice and re-emphasise that children really are at the heart of what we are trying to do. I beg to move.
Earl Howe Earl Howe moved, as an amendment to Amendment No. 101A, Amendment No. 101B:
Line 9, after "ascertain" insert "and record"
The noble Earl said: My Lords, I begin by expressing a warm welcome to government Amendment No. 101A and thanking the Minister for having listened so constructively to the concerns expressed in Committee on the very important point it addresses. We left the Committee debate at the point at which I said I was unconvinced that the aim of my amendment at the time could be satisfactorily achieved by means of flexible guidance, but I said so in the belief that the Minister's resolve was firmly fixed. I am delighted that this belief has proved to be mistaken. It is very much to her credit that she felt able to have second thoughts on this important issue. Indeed, I would go so far as to say that this is one of the four or five most important issues of principle raised in the whole of the Committee stage.
So, against that backdrop, it probably seems the height of churlishness to suggest that the government amendment is not quite good enough, but I hope that the Minister will not mind considering the remaining point at issue one more time. The point is very simple. If a child's views and wishes are ascertained, they should be formally noted. This is not, as the Minister suggested in Committee, a bureaucratic burden or a recipe for delay. It is merely to transpose the current requirements of good practice into a legal requirement.
Recording a child's views is critical for several reasons: it is critical for professional accountability; it is critical because without it the child's preferences and views may be lost sight of, should there subsequently be, for example, a change of personnel. It is also
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particularly critical in order to improve practice with disabled and younger children who are the most vulnerable. Ascertaining the wishes of a disabled child can take time, but once that point is successfully reached, the result should be clearly logged for the benefit of all concerned. Equally, if for any reason it has not proved practicable to consult a child, the reason for that needs to be recorded, if only briefly. Local authorities will then be able to monitor the extent to which children are being included in decision making, allowing them to address any staff training needs that are identified.
On the last occasion the noble Baroness acknowledged how important proper recording was and mentioned the new resourcing materials and training packages available to social workers in that context, which ought to make the requirement to record second nature to the professional in the field. I do think it is reasonable to say to a social worker that if it proves reasonably practicable for him or her to ascertain the wishes of a child, those wishes should be formally noted on the file. It is a simple thing, but very important.
I turn briefly to Amendment No. 103. Having conceded the principle in relation to Section 17 of the Children Act 1989, the Government have no conceivable case for not making the same concession in relation to Section 47. The purpose of my amendment is to say that a child's wishes and feelings should be an integral part of any child protection inquiry. I believe and would hope that after the Climbié inquiry, we have moved past the stage of thinking that guidance alone is sufficient to ensure that children are listened to. It is not.
In Committee the Minister objected to this amendment by arguing that sometimes children's wishes can conflict with their safeguarding. I hope that she will not deploy the same argument today. Ascertaining the child's wishes and feelings and giving them due consideration does not mean that the child's views should override all other considerations, such as their immediate safety. Every day of the week professionals have to balance the child's right to have his views taken into account with his right to protection; but, at the same time, there is no doubt that listening to children is a vital part of making them feel safe. The guidance already lays great emphasis on this; all the amendment seeks to do is to transpose good practice requirements into a legal one.
This is not only my idea. The amendment is supported by the Association of Directors of Social Services and by the Local Government Association, the very bodies that represent those who have to carry out child protection investigations. Neither of those bodies believes that the amendment would fetter the discretion of social workers in a detrimental way. On the contrary, they regard it as a way of plugging a serious loophole in the law.
The TCS and the CRAE have particularly requested a meeting with the Minister before Third Reading. It would be very helpful if she felt able to open her door to them.
I hope that the Minister will do with this amendment as she did with the Section 17 amendment and agree that it should be accepted. I beg to move.
9.30 p.m.
Baroness David: My Lords, I support most strongly Amendment No. 103, which stands in the name of the noble Earl. I also welcome very strongly the Government's new clause at Amendment No. 101A, which requires respect for the views of the child in relation to the provision of services. But I believe that the principle of gaining direct access to children and ascertaining their views is of far greater importance in the context of child protection.
In any case, here we are talking about a right which is clearly set out in Article 12 of the Convention on the Rights of the Child. This makes it a legal obligation. It is not enough to hear reassurance that this is a matter of good practice, or a matter that is or can be covered in guidance. Surely we have all learnt enough from the many tragic investigations into child deaths from violence to know that gaining access to the children themselves and listening to them is completely fundamental to protection. The report of the noble Lord, Lord Laming, is just the latest of many to document adult failure to see and hear from the children who become tragedies.
We know that many children—a majority—who suffer serious abuse do so in silence because they fear that interventions will take no account of their views and will be out of their control. We have to create a child protection system that children have the confidence to use, and reflecting the obligation to hear their views in the law is a necessary part of that. Of course, sometimes children's views will have to be over-ridden in the interests of their safety, but they need to know that their views will be heard and carefully considered.
I very much hope the Minister will reassure us that she can accept the new clause. It is a very small step from where she has gone already and it would be quite simple to accept. The clause may need technical attention but it would be of great help. I hope that the Minister will accept it.
Baroness Walmsley: My Lords, I am sure that no one in the House would ever consider the noble Earl, Lord Howe, to be churlish. Certainly he was not churlish in the way in which he introduced his two amendments, which I absolutely support. I also welcome the Government's amendment and thank the Minister for it. I hope that she will not take offence when I say "More please" because it does not go quite far enough.
I shall not go through all the arguments again because they have been very ably laid out for your Lordships today. The noble Baroness, Lady David, made a very good point when she said that the UN Convention on the Rights of the Child requires signatories to do something about their laws, not only their best practice and guidance. That is what the
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amendments seek to do by amending and adding to the Government's welcome amendment. I support all three amendments.
Baroness Howe of Idlicote: My Lords, I also want to add my considerable thanks to the Government and the Minister for bringing forward this clause. I do not think that many of us were expecting it as a result of our conversation last time, so it is all the more welcome. However, I also support the welcome for the amendment to the amendment which was moved by the noble Earl, Lord Howe, and I support what the noble Baroness, Lady David, said. It is a very small step to add the word "record" and I cannot see any reason why the Minister should not accept that. I hope that she will.
The Lord Bishop of Liverpool: My Lords, I support both the government amendment and that moved by the noble Earl, Lord Howe, for two reasons. First, there is often a change of personnel. As personnel change, it is important that children are assured that the sentiments that they express at a given moment abide even when that person, who will have built a good relationship with them, has moved on. I draw attention to the Audit Commission report, Misspent Youth, which shows that, when it came to young offenders, the single most important aspect in restoring a young person to civil society was for an adult to believe them.
I know that great emphasis is laid on the building of a relationship. However, as we all know, there comes a time when a person moves on and the young person can then feel betrayed. They do not understand the niceties of a professional service. Therefore, it is important that there is consistency in the understanding of the young person's position.
Secondly, from my own experience of working with looked-after children, I know that low self-esteem is a real issue for them. It is difficult to get them to believe in themselves. One way of enabling young people to believe in themselves is that, when they speak, what they say is written down and recorded. For the sake of affirmation, to record is important, as well as for all the other good reasons that noble Lords have advanced this evening. I support both amendments.
Baroness Ashton of Upholland: My Lords, I am very grateful for the remarks made about the amendment in my name. We are united in our aims of putting the needs of children first and placing a real importance on listening to children in everything we do. In the government amendment we have sought to reinforce the good practice that exists and also send a clear message that ascertaining the child's wishes whenever we can is not an optional extra. That is important. I am grateful for what has been said. Having been told by the noble Baroness, Lady Walmsley, that more is required and being talked to by the noble Baroness, Lady David, about the UNCRC, I am aware that I must respond as carefully as I can to those comments.
On Amendment No. 101B, noble Lords know that the statutory guidance that we have issued is comprehensive. I believe that practitioners at the sharp

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end will want to consult the guidance in their daily work rather than look for details in statute. The framework for the assessment of children in need and their families is very clear on the importance of recording information ascertained in the referral and throughout the initial and the core assessments. It includes standard forms for practitioners to use to record information. As I have said before, the guidance issued under Section 7 of the Local Authority Social Services Act 1970 is mandatory, so the amendment does not add to that requirement.
I believe that we have captured the spirit of what the noble Earl is looking for in his amendment. I am happy to clarify that further with the noble Earl, but we have statutory guidance that requires information to be recorded and the forms that allow that. I hope that the noble Earl will recognise that guidance for the front line is potentially of more benefit than asking them to look in statute. We are not far apart from the noble Earl in this matter and hope we have covered that point.
On Amendment No. 103, there are two reasons why we have not introduced an amendment of the type sought by noble Lords in terms of Section 47. I have already mentioned the first reason. Where there are urgent concerns we believe that the child's safety must remain the overriding and absolute consideration and social services, or whoever, need to act and act swiftly. We are concerned to ensure that that is paramount. Secondly, it is likely that many children in those situations will be found to meet the Children Act 1989 definition of "children in need", so the amended Section 17 would be applied to them in any case when immediate safety issues had been addressed.
Amendment No. 103 would remove a discretion in the existing Section 47(4) of the Act for local authorities not to seek access to a child if they are satisfied that they already have sufficient information with respect to that child. The two circumstances that we need to consider and pause on are, first, that when a child is in danger, going in to talk to that child may alert inappropriately those who are placing the child in danger. We need to be cautious in that regard. Secondly, occasionally and unfortunately there are those who make malicious allegations, which are quickly proved to be unfounded. In that situation, it might be more distressing to talk to a child when it is clear that the allegation is unfounded.
For those reasons and those reasons alone, we decided not to put the proposed responsibility into Section 47. In a case in which a child is made safe, we should clearly ascertain that child's wishes, as we would under Section 17. I am clear about that. As I said, most children would immediately be covered by that section anyway. But we need flexibility in such cases when it is clear that a malicious allegation has been made, which is dealt with by another professional who says that the allegation is not appropriate or true. It is clear that a child should not be bothered in such a case. Equally, we believe firmly that when a child is in danger, having to go in and talk to that child could alert those placing the child in danger. The danger must be addressed first.
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I do not believe that we are in different places on this matter. It is only the impact of the way in which the amendment would work that seems to put us in different places. As I told the noble Earl, I would be happy to meet any organisation or noble Lord who would like to pursue this issue between now and Third Reading. On that basis, I hope that the amendment will be withdrawn.
Earl Howe: My Lords, that was a very helpful and sympathetic reply for which I am grateful. I was particularly grateful for the powerful points made by the noble Baroness, Lady David, and for the support given by the noble Baroness, Lady Walmsley. The remarks of the right reverend Prelate on continuity and trust were extremely wise and helpful.
Nevertheless, as regards Amendment No. 101B within the context of statutory guidance, I recognise that the Minister has moved in my direction. In fact, I suspect that she may not have moved at all, and that the guidance would have contained the provision in any case. But I recognise the force of the point that she made—that the proposal is as near to being a legal requirement as it is possible for it to be, while remaining in the scope of some flexibility.
As for Amendment No. 103, my fear is that when a child protection process is under way, a Section 17 assessment is quite often not done—it is bypassed. In those circumstances, it would not be incumbent on a local authority to ascertain the wishes and views of a child. However, I shall reflect carefully on the Minister's remarks about malicious allegations, as it seems to me that she has a real point in that regard. I shall think the matter through. If need be, I may return to Amendment No. 103 on Third Reading. I beg leave to withdraw the amendment.
Amendment No. 101B, as an amendment to Amendment No. 101A, by leave, withdrawn.
On Question, Amendment No. 101A agreed to.
9.45 p.m.
Baroness Walmsley Baroness Walmsley: moved Amendment No. 102:
After Clause 43, insert the following new Clause—
"Duty of prison service to promote educational achievement
In section 562 of the Education Act 1996 at the end of subsection (1) insert "which includes a duty to promote the child's educational achievement"."
The noble Baroness said: My Lords, Amendment No. 102, is supported by Barnardo's, the Children's Society, the Howard League for Penal Reform, NACRO and the National Association for Youth Justice. The purpose of the amendment is two-fold. First, it is to ensure that the Prison Service is under a duty to provide education to children in the secure estate and, secondly, to ensure that the Prison Service is under a duty to promote the educational attainment of children in the secure estate.
Throughout the Bill, there is a very welcome emphasis on including children in the secure estate through the membership of the governor of any prison or secure training centre on the local safeguarding

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children board, the arrangements to safeguard and promote welfare and inspection, and now the inclusion of youth offending teams in Clauses 6 and 9, thanks to the Government's concession, which is most welcome. This new clause extends this to cover the education of children in the secure estate.
Children in the secure estate have very low levels of educational attainment. Recent research shows that children of school age had literacy and numeracy levels below the age of 11 and over a quarter of them had levels equivalent to or lower than those of the average 7 year-old. We also know that educational standards have an impact on rates of reoffending. Children who offend are often those who are truanting because they are totally disengaged from their schooling. Young offender institutions are required to provide 30 hours of purposeful activity a week, of which 15 must be education if the child is under school-leaving age. However, this is not enshrined in any legislation and does not have to conform to the national curriculum. A joint report by HM Chief Inspector of Prisons for England and Wales and the Office for Standards in Education, A Second Chance—A Review of Education and Supporting Arrangements within Units for Juveniles managed by HM Prison Service, found:
"There is still a long way to go before the Prison Service is able to deliver effective education and training for the 3,000 children held in its care".
Let me also mention the Audit Commission report, Youth Justice 2004. This review of the reformed youth justice system found that the educational problems of serious and persistent young offenders are significant. Over half of the young people entering custody, most of whom are over 15, have a reading age of below the level of an average 11 year-old. Nine out of 10 young offenders in one particular secure training centre were found to have missed significant periods of education. The report also found that returning to full-time education can help young people to stop reoffending. According to one study, none of those who had full-time education immediately after they were released back into the community on a detention training order were reconvicted whereas one-third of those without such immediate provision were reconvicted. So this is obviously a very welcome development.
A Second Chance found that the establishments were struggling to meet even the bare minimum standards in education. My own conversations with prison education officers confirm this. The report particularly noted that tailored education plans and special educational provision were poor, although some patches of excellent practice showed that a huge difference can be made in the lives of these children through effective education. There are indeed many inspiring education officers in our prisons, to whom I pay great tribute. Over a quarter of the observed teaching sessions were deemed to be less than satisfactory. One in four is a very large proportion. Vocational training and so-called "friendly behaviour courses" were particularly poor and education staff rarely attended initial training plan conferences so,
"As a consequence, recorded educational objectives were so general that they were almost meaningless".
Dyslexia screening was carried out in some, but not all, of the establishments. There was little other special educational input. We all know how commonplace dyslexia is. Years ago, nobody knew what it was. Now we know that a very large number of children suffer from it to some extent. Noble Lords will know how many young offenders have special needs or have been excluded from school.
Children have very limited opportunities to pursue higher level qualifications. The inspectorate was particularly concerned about the impoverished education of unsentenced children on remand and of those who are serving short sentences. The report found that the average spent on education for an under 18 year-old in a young offender institution was £1,810, compared with £16,000 for a child in a secure training centre. It is an enormous difference. In a survey conducted as part of the study, it was found that 73 per cent of surveyed children in custody described their educational achievements as nil, and that 42 and 36 per cent of the very large sample had, respectively, numeracy and reading abilities of a seven year-old child or younger. There is an enormous amount of evidence.
The report drew attention to a number of key issues including the need to ensure that, on sentence, young people are offered a regime of comparable quality to that of the sentenced population; the need to improve the quality of information on the asset form relating to educational background and prior attainment; and the need to improve the quality of initial educational needs assessment, to ensure that learners are placed in suitable provision. The report made six other very important and major recommendations but I shall not go into them at this late hour.
I conclude by mentioning the report on the application of the Children Act 1989 to children in young offender institutions—a report by the Association of Directors of Social Services, the Local Government Association and the Youth Justice Board backed up with the findings of the other reports I mentioned about poor levels of literacy and numeracy. It also found that between one quarter and one third of juvenile prisoners had no educational training available to them immediately prior to custody. In another survey, 84 per cent of young people interviewed claimed to have had periods of exclusion from school and 86 per cent to have truanted.
None of your Lordships will find any of those statistics new; they are all very common knowledge. But it is for those reasons that I recommend our amendment to your Lordships. I think that this amendment is vitally important for the sake of each young life that is ruined by finding itself in the secure estate. It is important, too, for the future life chances of these youngsters; and, of course, for those against whom they may commit more crimes in future if their educational attainment is not addressed. I think that this is a most important amendment. This Bill is a very suitable vehicle for it. I hope that the amendment will receive a fair wind by the Government. I beg to move.
Lord Hylton: My Lords, I congratulate the noble Baroness, Lady Walmsley, and the noble Lord,

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Lord Dholakia, on devising and bringing forward this amendment. Experience clearly shows that the reason why a large proportion of young people become involved in crime is that they are virtually unemployable. They have missed out totally on the benefit they should have derived from the school system.
The noble Baroness mentioned special needs in this particular group of people and I am glad that she did. It seems to me that remedial education is what is needed while people are in custody rather than the national curriculum. There is also a real need for continuity of educational provision after people have served their sentences and been released. Could the Minister draw that to the attention of her department, and could she also encourage her department to be in touch with the Home Office so that educational provision, particularly for young people, is not the first thing to suffer when there is a financial shortage?
Baroness Howe of Idlicote: My Lords, I congratulate the noble Baroness, Lady Walmsley, on the way in which she has presented the amendment; a more wide-ranging review of the inadequacies of current provision would be very hard to find. All the reports of which we have become aware over the years indicate how few of the resources that are needed in this area are available.
The right reverend Prelate mentioned self-esteem. If there is one thing that helps to improve the self-esteem of a young person in this situation it is acquiring an extra skill or attainment that he did not have before he attended the relevant institution. I well remember the many times I visited children's institutions and children's homes—but I am thinking more of the secure institutions, the Borstals of my day—and was struck by the children's talent. You have only to look at their paintings and drawings to see what is waiting to emerge in a rather more structured environment when they return to the community.
This is a very mild amendment. It does not attempt to do what I should like it to do; namely, to make it a positive requirement that the appropriate form of education is provided, particularly for those awaiting trial. I warmly support the amendment.
Earl Howe: My Lords, I add a few words of support from these Benches to the very powerful points put forward by the noble Baroness, Lady Walmsley, and others. I very much share her concern for this group of children. I have no doubt that the Minister will feel the same way. I hope that she will warm to the amendment and, if she is not able to accept it, will find some way of delivering its intent by another means.
The Earl of Listowel: My Lords, I, too, support the amendment. I remind your Lordships that half of the children we are discussing will have experienced life in care before entering the criminal justice system. Only some 10 per cent will have been involved with the criminal justice system before being taken into care. This evening I heard Margaret Hodge talk of the
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success of SureStart. When one intervenes in an adequate manner, one can make such a difference to children's lives. One needs to take every opportunity when they fall through the net to try to catch them and turn them round. The amendment holds out better hope that those children and young people will be turned round. As I say, I support the amendment.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Baroness, Lady Walmsley, for bringing forward the amendment. The noble Lord, Lord Hylton, is right to point to the need for good working relationships between the Home Office and the Department for Education and Skills regarding children's issues. I am pleased to say that those relationships are working well. I have talked to officials in the Home Office who are very supportive of the work that we are trying to do.
I am also grateful to noble Lords who have made clear the link between the potential of education and what happens to young people when things go wrong. We all know that educational outcomes in terms of achievement are not just about economic opportunities but also mental and physical health and life chances in the broadest sense. I recognise completely what noble Lords have said about that.
Unfortunately, I have to point out—this is one of my purposes in life—that the amendment is technically defective because it places a duty upon a local education authority and not the Prison Service to promote the educational achievement of those in custody. I am always cautious when I explain why an amendment is technically defective, as I tell noble Lords how to change their amendments in order to bring them back. However, it is right and proper that I do so.
We accept the evidence put forward by the noble Baroness, Lady Walmsley. The work on that matter is now under way. I have a long brief which I intend to cull due to the lateness of the hour. However, I do not want noble Lords to consider that I have not addressed the matter properly. I therefore intend to expand my remarks, perhaps in correspondence with noble Lords, so that they have time to consider them.
My contention is primarily that we are in a process in which we have invested about £40 million over the past three years through the Youth Justice Board, and are making the kind of changes that will, we hope, enhance opportunities for young people. We want to make sure that they have a chance to work.
10 p.m.
I checked, and there is already a statutory duty for arrangements for the participation of young people of compulsory school age through the Prison Service for at least 15 hours a week within the normal working week. The Youth Justice Board has developed a national specification for learning and skills that requires the Prison Service to deliver a full educational and vocational training programme, with a broad and balanced curriculum appropriate to the age of the young person. That has enabled additional resources

1229
to be provided. We recognise that the provision is not what it should be in all circumstances, although I accept what the noble Baroness said in paying tribute to many individuals' work. It is now improving, which is critical.
Our goal is increasingly to introduce national approaches and standards of learning into prisons and young offender institutions. We are developing a new integrated delivery service. Work is about to begin on testing new approaches to the delivery of education provision to those held in custody in the north-east, north-west and south-west of England, as pilot areas. Each of those regions includes an establishment holding juvenile offenders.
I indicated that we are working across government between our two departments, and we have announced our intention to replace existing prison education contracts with a new delivery partnership between the Learning and Skills Council, the Prison Service and, in time, the National Offender Management Service, together with other key players such as Jobcentre Plus that play an important role. Under those proposed new arrangements, in which the Learning and Skills Council will take responsibility for offender education, a new juvenile specification has been developed. The Government have published that specification in draft, and are currently consulting our partners. The outcomes will inform the delivery of the new service, in partnership with the Learning and Skills Council, from next year.
We believe that that will provide a much better basis for the delivery of education and training for juveniles in custody, and improve links between provision in custody and in the community. Shared accountability is envisaged between the Prison Service and the Learning and Skills Council for the provision made available, with prison governors having responsibility to ensure access to available educational provision.
I have briefly described what I think is a new system. I will expand on that. Our ambition is that the developing picture has a chance to work. We think that it will address the concerns rightly raised by the noble Baroness and echoed in the House for those young people. It is about working across government, as the noble Lord, Lord Hylton, indicated, and I am very happy to correspond on the subject and meet any noble Lord who wishes to address it. However, on the basis that we have addressed a number of points and want the system to have a chance to work, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Walmsley: My Lords, I thank the Minister for her reply. When she writes to those of us who contributed to this short debate, will she let us know how much of the amount that she mentioned near the beginning of her response—I am afraid that I do not recall the figure—is new money? Part of the problem is resources, as has been made very clear to me in my correspondence with prison education officers. I was very encouraged by the new arrangements that she outlined, particularly by the fact that the prison education contracts are to be revised, as they have been
1230
part of the problem. I look forward to hearing more about that. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 103 not moved.]
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 104:
After Clause 45, insert the following new clause—
"ROLE OF TEACHER TRAINING AGENCY

(1) The Education Act 1994 (c. 30) is amended as follows.

(2) In section 1(4) (the teacher training agency), at end insert "and having regard to the functions to be performed by children's services authorities in their capacity as local education authorities by or under the Children Act 2004.""

The noble Baroness said: My Lords, the problem with tail-end amendments is that they are always tail-end amendments. On the previous occasion when we debated the matter, the Minister said:
"I wish that we were having an hour-long debate".—[Official Report, 27/5/04; col. 1512.]
The amendment is probing and not really suitable for discussion at this hour. Perhaps the sensible thing is to explain to the Minister my two questions and ask that she write to me at greater length.
The reason that we have tabled the amendment again is because the issues around training and teacher training are extremely important and, thus far, we have not had sufficient time to debate them in the Chamber and we would like to know a little more about what is happening. The briefing provided by the General Teaching Council says:
"The Bill has implications for the initial teacher training and continuing professional development for teachers. Programmes leading to the award of Qualified Teacher Status are already extensive, and so it is most appropriate for trainee teachers to be expected to have an awareness of their contribution to multi-agency working and to begin to develop the skills and knowledge base to support this role. The induction period should provide the opportunity to develop and demonstrate this capacity in practice. Thereafter, it will be important to consider expectations of teachers' general expertise in this area of their work, and to reflect those expectations in the general standards framework for teachers".
In her reply in Committee, the Minister said:
"I should make it clear that if because of the TTA's new remit it becomes desirable to make any changes to the 1994 Act, we would bring them forward to Parliament at a suitable time".—[Official Report, 27/5/04; co1.1513.1]
In many senses the Bill provides a suitable time. Does the Minister yet know whether it will be necessary to make such changes and, if so, how the Government propose to bring them forward?
Secondly, we are concerned about continuing professional development. With school budgets as tight as they are, CPD is often—again—a casualty. Too often it is seen as something that can be sacrificed to more urgent needs. Carol Adams, the chief executive of the GTC, in an article last October, wrote:
"At a time when the Government is advocating new approaches to pupils' learning, tailored to meet the needs of the individual, it is striking that access to continuous learning and professional development for all teachers continues to be a lottery, determined to an even greater extent by the vagaries of school budgets Why?".

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Can the Minister outline the role that the TTA will play in the professional development programmes that will be needed across all services to ensure that frontline professionals can more effectively meet the needs of the children?
Therefore, the issues are: what changes does the Minister envisage in the TTA's induction programmes and so on; what about continuing professional development; and can we be assured that the developments that are needed to train teachers to accept the new integrated service will be there? I beg to move.
Baroness Ashton of Upholland: My Lords, I shall take the noble Baroness at her word. I should add that I have enormous respect for Carol Adams. She deserves a copy of the response. We are not quite clear yet about what changes will be needed. I stand by my comments in Committee that we would bring them forward at a suitable occasion. The noble Baroness knows that I cannot herald any more than that and I do not know when that suitable occasion will arise. I am clear that it is not now, because the matter needs further development.
As I said earlier, the TTA has rightly risen to the challenge and is looking at its broader remit regarding continuing professional development. However, the noble Baroness is seeking a written answer, detailing these matters properly, in addition to a meeting if she wishes, rather than discussing this matter at the tail end of the day. The noble Baroness is right—the matter is important. I shall address the matter properly and ensure that in doing so we discuss this with Carol Adams as well to allay any of her concerns. I hope that is what the noble Baroness seeks and that on that basis she will withdraw the amendment.
Baroness Sharp of Guildford: My Lords, I thank the Minister. That would be an excellent response and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 104 A had been withdrawn from the Marshalled List.]
Baroness Walmsley Baroness Walmsley moved Amendment No. 105:
After Clause 48, insert the following new clause—
"PARENTAL, CARER AND SIBLING CONTACT WITH LOOKED AFTER CHILDREN
(1) The Children Act 1989 is amended as follows.
(2) After section 22 insert—
"22A PARENTAL, CARER AND SIBLING CONTACT WITH LOOKED AFTER CHILDREN
Where a child is looked after by a local authority, the authority shall allow the child reasonable contact with—

(a) his parents;

(b) any guardian of his;

(c) any sibling of his."

(3) In section 34(1) insert—
"(e) any sibling of his"."
The noble Baroness said: My Lords, this is a revised version of an amendment, tabled as Amendment No. 246A in Committee, proposed to us by the NSPCC. On that occasion, the Minister said:
"The difficulty with the amendment is that it creates a different legal position for contact between siblings depending upon whether the child is looked after under a care order or under a voluntary agreement … We think that that is a problem and would create confusion in practice".—[Official Report, 27/5/04; col. 1521.]
Therefore, in retabling the amendment, we have tried to address the problem that the Minister has with it. I agree with the Minister that the assumption of contact with siblings should apply to looked-after children as well. There is currently a different legal position in relation to contact, depending on whether the child is looked after under a care order or under a voluntary agreement. Section 34 of the Children Act 1989 deals with parental contact, and so on, with children in care. We have dealt with that in the second part of our Amendment No. 105. But Sections 22 and 23 of the Act do not even mention contact with children who are looked after. That is why we have dealt with it in the first part of the amendment.
The NSPCC research, Your Shout, to which I referred in Committee, deals only with children in care, but the NSPCC working group has concluded that Section 22 of the Children Act 1989 should be amended at the same time as Section 34 to include looked-after children.
In Committee, the Minister said that the existing guidelines already stress the need to maintain contact between siblings. However, it is clear that the guidance is not always being followed. Given the number of children—735—who have expressed their distress on this point, there is a mandate, which comes from the children themselves, for explicit legislation rather than strengthened guidance to ensure that those children are not further isolated from the comfort they may receive from contact with their siblings.
This evening the Minister has already shown her understanding of the importance of listening to children. There are 735 children from whom I can quote, and I hope that she will be in a position to listen to them. I beg to move.
Baroness Ashton of Upholland: My Lords, as I explained when we considered these issues in Committee, I am hugely sympathetic to what the noble Baroness is seeking to do. The question that remains is simply: how do we best achieve what the noble Baroness seeks?
I agree completely that, for the majority of looked-after children, maintaining family links through contact with parents, siblings, relatives and other people with whom they are connected will be terribly important. Some children will want to have, and should have, regular contact with all those people, while others will want to be more selective. Given the sad circumstances facing many of the children who become looked after, contact with some, or indeed sometimes all, of their family members may not be appropriate—at least, in the short term and possibly, for some, altogether.

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We believe it is important that local authorities actively support contact between all looked-after children and their siblings where that is in their best interests. We believe that the existing legal framework achieves that, but we recognise the need for practice in this area to improve.
Through paragraph 15 of Schedule 2 to the Children Act 1989, local authorities already have a duty to promote contact between a looked-after child and his parents, friends and relatives. Of course, that includes siblings. Proposed Section 22A in the amendment mirrors Section 34(1) of the Children Act 1989 but without the safeguard of that section which allows the local authority to refuse to allow contact with the permission of the court. There is some overlap because Section 34(1) applies where a child is subject to a care order. It also cuts across the provision in paragraph 15 of Schedule 2.
I am not clear how this new duty would work alongside the two existing duties in practice. Therefore, the words which will inevitably be uttered by me this evening are that the amendment is defective. But I am sure that the noble Baroness will recognise that.
As I said, Section 34 already requires the local authority to allow reasonable contact between a child and his parent or guardian or someone in whose favour a residence order has been made, unless the authority has the permission of the court to refuse contact. Under that section, the child or other persons who have the leave of the court can apply to make an order for contact with any named person. That would allow the child to apply for contact with a sibling or for the sibling to apply for contact if the authority would not allow it.
While we agree wholeheartedly with the importance of contact between siblings, we are not sure that siblings should be treated differently from other relatives. We think that the consequence of the amendment would be to create a different legal position for contact between looked-after children and their siblings than exists, for example, with their grandparents, aunts and uncles.
So we recognise the need for practice to improve this area. Volume 3 of the Children Act 1989 guidance states that,
"contact arrangements should include those made in respect of relatives, sibling, grandparents and unmarried father; all those people with whom the child's contact should be preserved".
I can say to the noble Baroness that when we revise the Children Act guidance we will consider whether we can strengthen the messages given about the importance of contact. We will also think further about what can be done to improve practice in this vital area. On the basis that we think it is important to do that rather than perhaps to go down the route the noble Baroness suggests, I hope she will feel able to withdraw her amendment.
Baroness Walmsley: My Lords, I thank the Minister for her commitment to review the guidelines and to look at practice to see that it measures up to our expectations.
Siblings are different. Young people get a certain kind of support from their own generation which they will never get from parents, guardians, other relatives or even grandparents. They obtain support from people whose language they speak. When we listen to younger generations, we do not always understand a word they say because they speak their own language. That is why I think siblings are different and should be specified.
On the idea of a child having to go to court to obtain the right to be in contact with siblings, it is inconceivable that most children in such a situation would have the strength to do such a thing. So I think that we need to make it a lot easier for them.
However, I was very encouraged by what the Minister said. I shall watch very carefully. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Andrews: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Gambling (Regional Casinos)
A message was brought from the Commons that they concur with the Lords that it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on the Government's response to Recommendations 79, 80, 81, 83, 84 and 85 of the report of the Joint Committee on the Draft Gambling Bill (Cm. 6253), which focus upon the definition, location and economic and other implications of the largest casinos, and on the further statement of Government policy on casinos published with Cm. 6253, and have ordered:
That a Select Committee of eight honourable Members be appointed to join with the committee appointed by the Lords for this purpose.
That the committee shall have power—

(i) to send for persons, papers and records;

(ii) to sit notwithstanding any adjournment of the House;

(iii) to report from time to time;

(iv) to appoint specialist advisers;

(v) to adjourn from place to place within the United Kingdom; and

That the committee shall report by 22 July 2004;
And that the committee do meet with the committee appointed by the Lords on Wednesday 23 June at half-past nine o'clock in Committee Room 8 as proposed by the Lords.
House adjourned at eighteen minutes past ten o' clock.