Clause 29 — Director of Fair Access to Higher Education
Orders of the Day — Higher Education Bill
Mr Alan Johnson (Minister of State (Lifelong Learning, Further and Higher Education), Department for Education and Skills; Kingston upon Hull West and Hessle, Labour)
The group of amendments is a mixed bag. It contains a number of important amendments clarifying how the director of fair access will operate and providing for greater parliamentary scrutiny of regulations relating to their role. It also contains Lords amendments that would do great damage to the cause of fair access.
Lords amendment No. 5 is the first damaging amendment. It would make the Secretary of State subject to the Civil Service Commission's code of practice when appointing the director of fair access. That code of practice is splendid—for civil servants—but we are appointing the head of a public body, and it is therefore the wrong code.
The understandable concern was raised in the other place that the appointment should be fair and should be made on the basis of merit. We agree with that concern and gave firm assurances in the other place, which I am happy to repeat, that the director of fair access will be appointed in accordance with the Nolan principles, which are enshrined in the code of practice of the Commissioner for Public Appointments. The director will be a public appointment made by the Secretary of State, and the code of practice for public appointments is mandatory in those circumstances.
The Lords amendment does not make sense. The Office of the Civil Service Commissioners says that its code is not the right code for that appointment. In its report, "The Regulatory State: Ensuring its Accountability", which was published in May, the Lords Constitution Committee stated:
"Ministers should remain responsible for appointing regulators, subject to Nolan rules, to ensure proper responsibility and accountability."
I am sorry that the other place saw fit to ignore its own advice, and I hope that this House can rectify the situation.
Lords amendment No. 15 would create a host of problems. One problem is that it deletes the power of the director of fair access to issue guidance to institutions, and I cannot see the benefit of denying institutions such help and assistance. The amendment gets worse in that it also delegates the regulation-making power on the approval of plans. In the draft regulations, hon. Members will have seen how we intend to use those powers to ensure dialogue between the director and the institution before any decision is made, and we want to reinstate that regulation-making power. The power is important, and it will also enable us to introduce the review procedure, which we agreed in principle in the other place and about which I shall say more.
Those aspects of Lords amendment No. 15 are bad enough, but it is particularly strange in that it implies a duty on institutions to provide a strategic plan to the funding councils. I presume, although it is not defined, that that means the Higher Education Funding Council for England, the Higher Education Funding Council for Wales and the Teacher Training Agency. That implied duty would lie on the face of the Bill in perpetuity.
Lords amendment No. 15 also places a duty on the director to require institutions to supply details of the financial assistance offered to students. That is in addition to the strategic plan, which would mean duplicate reporting. In drawing up our policy for access plans, we have tried hard to make sure that access plans do not create unnecessary burdens for institutions, which is why we have consistently said that access plans will subsume the widening participation strategies that institutions currently provide to HEFC, and we have discussed those strategies with both the sector and HEFC itself. Lords amendment No. 15 is confused and confusing. It would increase bureaucracy, and this House should reject it.
Lords amendment No. 16 is also faintly peculiar, in that it gives a regulation-making power to the funding councils on the duration of plans, presumably to make the access plans coterminous with the strategic plans, which would be bound to lead to the focus of access plans being lost in the swathe of documentation that the funding councils would require. Although it is not unknown, it is hardly conventional for organisations such as funding councils to make regulations, and it does not make sense for them to have the power to decide the length of plans. Our draft regulations provide for a length of up to five years, which seemed acceptable when we scrutinised the Bill in this House, and I therefore believe that Lords amendment No. 16 should be rejected.
Lords amendments Nos. 17 and 19 cover England and Wales respectively, and they strike at the very heart of our proposals for protecting access. In England, we have made it clear that in return for the freedom to charge higher variable fees, institutions must plough back some of that extra income into outreach and financial support for students. That will make a difference, because universities will make more contacts with under-represented groups, and more bursaries will be available for poor students.
The Lords amendments remove the power of the relevant authority—in England, the director of fair access—to sanction an institution if it reneges on that commitment. I am sure that most institutions will stick to their plans, but it is essential that the relevant authority has the power to sanction them if they do not do so. I hope that the House will reject those damaging Lords amendments, particularly in view of the safeguards inserted in the other place, which we are prepared to accept and which I shall now outline.