Clause 29 — Director of Fair Access to Higher Education

Orders of the Day — Higher Education Bill – in the House of Commons at 1:15 pm on 23rd June 2004.

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Lords amendment No. 5.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

With this it will be convenient to discuss Lords amendment No. 15 and Government motion to disagree, Lords amendment No. 16 and Government motion to disagree, Lords amendment No. 17 and Government motion to disagree, Lords amendment No. 18, Lords amendment No. 19 and Government motion to disagree, Lords amendment No. 20 and Government amendments (a) and (b) thereto, Lords amendment No. 22, Lords amendment No. 23 and Government amendment (a) thereto, and Lords amendment No. 24.

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education)

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.

Photo of Graham Allen Graham Allen Labour, Nottingham North

I hope that my right hon. Friend will give those amendments short shrift. Many Labour Members feel that the office for fair access has already had its teeth pulled, not least by some of the amendments in the other place. We are now down to the gums, and to remove further authority from the office for fair access would render it useless, so I ask my right hon. Friend to hold firm in his resistance to the Lords amendments.

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education)

Ironically, we may discuss dentistry under a later amendment. I remember the points that my hon. Friend Mr. Allen made in an important contribution in Committee, and I ask the House to stand as firm as the Government for the reasons that he set out eloquently in Committee.

I have reached the amendments that the Government believe will make a contribution and provide the necessary safeguards for those who are concerned about the introduction of the regulator. Government amendment (a) to Lords amendment No. 23 and Lords amendments Nos. 22 and 23 make a number of the Secretary of State's key regulation-making powers subject to the affirmative procedure.

In the House of Lords, we tabled amendments in Committee to make regulations on the contents of plans and on the financial penalties that might be imposed by the director if plans are breached subject to affirmative resolution. That was in response to the House of Lords Delegated Powers and Regulatory Reform Committee report, which recommended the affirmative procedure for those particular regulation-making powers. The affirmative procedure would apply to regulations made by the Secretary of State in respect of England only, because the legislation-making procedures in Wales are different.

The Government have introduced an amendment to ensure that the regulation-making power in respect of clause 32 for the approval of plans is also subject to affirmative resolution, which recognises the importance of regulations made under that clause.

We are also prepared to accept Lords amendments on the duty of the office for fair access to make decisions, especially to apply sanctions in a reasonable manner. Lords amendment No. 18 deals with that. It is a general point of law that the director of fair access is obliged to act reasonably. That includes refraining from sanctioning an institution that had done everything that it reasonably could to comply with its plan. If he failed to do that, he would be subject to judicial review, whether the amendment was accepted or not. We have always supported the principle that institutions that take all reasonable steps to comply with their access plans should not be penalised when factors beyond their control prevent them from doing what they said that they would do.

The Secretary of State's draft letter of guidance, which we published, makes it clear that

"an institution's failure to meet milestones should not in itself be grounds for any kind of sanction."

Lords amendment No. 18 enshrines the principle of reasonableness, which, as I have said, reflects a general point of law in primary legislation. I assure hon. Members that the amendment would not transform light touch into soft touch. If an institution has no good reason for not complying with its plan's provisions, two sanctions are available to a director: to direct the Higher Education Funding Council to reduce the institution's grant or to refuse to renew that institution's access plan.

The other place tried to get rid of the director's sanctioning power but we seek the House's assistance to overturn the relevant amendment. We have constantly argued that the Bill constitutes a finely balanced package, of which sanctions are an important part. The amendment does not weaken the sanctions but enshrines a general principle of law—that the director must use his or her powers in a measured and reasonable fashion—in the Bill. I therefore commend Lords amendment No. 18 to hon. Members.

Photo of Graham Allen Graham Allen Labour, Nottingham North

Does my right hon. Friend accept that, as well as the stick that he describes there is also the carrot of best practice? For example, universities such as Nottingham and Nottingham Trent already undertake a great many things that we all urge universities to do. Does he agree that, if we can spread best practice, the regulator will probably never feel the need to intervene with the stick because everyone will aspire and compete to achieve that best practice?

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education)

My hon. Friend makes his intervention at exactly the right time because I was about to move on to spreading best practice. Not only do I agree with my hon. Friend, but the other place tabled amendments to help achieve what he described.

Photo of Mr Peter Bradley Mr Peter Bradley PPS (Rt Hon Alun Michael, Minister of State), Department for Environment, Food and Rural Affairs

I am sure that my right hon. Friend agrees that, although best endeavours are an important part of the process, outcomes are the most vital aspect of broadening access to our universities. If the access plan is set for four years and it is clear after one or two years that the required outcome is not being achieved, what powers will the regulator have to try to intervene, perhaps on a mutual basis, to redirect the plan to secure the intended outcome?

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education)

The plans last for five years—I misled my hon. Friend earlier. The regulator's sanction is not to renew an access plan. It is almost inconceivable that, after five years and a university's best endeavours through its access plan, there would be no change in the milestones that the university sets. However, in those circumstances, the regulator would ask questions to discover why that had happened. He or she would not agree the next access plan and the university would be unable to charge more than the standard £1,000-odd fee. That is an important sanction that applies not only to the current round of agreements on access plans but all future renewals.

Photo of James Clappison James Clappison Conservative, Hertsmere

A few months have passed since we debated the measure in Committee. The Minister made the important point in response to the question of Peter Bradley that universities that do not achieve the milestones that are set for them will be in trouble with the regulator and could face substantial loss of fee income by not having their agreements renewed. Will the Minister remind us of the milestones? What are the hoops through which the universities have to jump?

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education) 1:45 pm, 23rd June 2004

They are not hoops but milestones that the universities set. As I explained in Committee, universities are pleased to be involved with that. The Russell group is often criticised as if its members were not interested in widening access. They set their milestones to help them achieve their ambition to improve the social class mix. The Secretary of State's letter to the regulator said that failure to achieve the milestones would not in itself lead to sanctions. The plans can be renegotiated at any time by agreement during the five years. However, if a problem remains at the end of five years and the regulator believes that the relevant university is not doing enough to tackle it, the sanction of not agreeing to the new access plan is available.

Photo of Mr Alan Howarth Mr Alan Howarth Labour, Newport East

Although I agree that it is essential that universities have access plans that should be monitored and that the role of OFFA, as the Government set it out, is reasonable and appropriate, does my right hon. Friend accept that the factors that determine how rapidly we proceed towards narrowing the social class gap in participation in higher education are largely outside universities' control and depend above all on what happens in schools?

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education)

My right hon. Friend makes a relevant point. We have repeated exhaustively since publishing our consultation document on widening participation that we are considering aspiration, attainment and application. The provision that we are discussing is intended to encourage youngsters from poorer backgrounds, who get the required level of attainment and have the right aspirations, to apply to the university that best fits their attainment and aspirations. That is the focus of clause 35 but it is by no means the panacea for resolving the problems of widening access to higher education.

Photo of Mr Peter Bradley Mr Peter Bradley PPS (Rt Hon Alun Michael, Minister of State), Department for Environment, Food and Rural Affairs

The access plans will be more onerous for the universities that are further behind in fulfilling the Government's agenda for widening access, but five years is a long time. Given that the take-up of places in Oxbridge by working-class or lower-income students is no more than 10 per cent. and that we are not setting quotas—that might be a dangerous practice—what estimate would my right hon. Friend give of that percentage at Oxford and Cambridge after five years? What is an acceptable, indicative figure in his view?

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education)

I shall resist the temptation to suggest an indicative figure. The point of appointing access regulators is for them to make such decisions. I would not want to make them for the regulators.

Let us consider Lords amendments Nos. 20 and 24 and amendments (a) and (b) to Lords amendment No. 20. Some anxieties were expressed when the measure was previously discussed in the House about the lack of a right of appeal against the director's decisions. Noble Lords in the other place shared those concerns. There was a general, cross-party concern that judicial review should not be the only recourse against the director's decision. We understand those anxieties and have been especially keen to achieve two objectives in responding to them.

First, any decision about an access plan should be the director's. We accept that the director could make a mistake, although we expect him or her to take care to avoid that. Lords amendment No. 20 would provide for the director to be asked to reconsider. However, it would not remove the director's final say on agreeing a plan. That power would not be given to a third party.

Photo of Mr Simon Thomas Mr Simon Thomas Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport)

The amendments would also apply to Wales and give the Assembly the right to appoint someone to conduct a review of a conditional decision by the office in Wales, where there is no director as such. I welcome the Government's acceptance of the amendments, which put in place the necessary checks and balances. They allow the House to continue to support the Minister's line on other Lords amendments so that OFFA and the equivalent body in Wales have the power to ensure that the access plans work.

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education)

That is our intention, and I value that contribution by the hon. Gentleman, who made an equally valuable contribution in Committee.

The first objective was to ensure that the director had the final say. The second was to avoid any process that required the setting up of a permanent, brand new tribunal or panel for what we think will be a tiny number of appeals. This amendment fits the bill in that regard, because it allows the Secretary of State to identify and appoint people who would be able to review a decision of the director, but who would be paid only for the time that they spent conducting reviews. I would expect the review process to be entirely paper-based.

Photo of Mr Alan Howarth Mr Alan Howarth Labour, Newport East

An additional important point about the appeal system that the Government are introducing is that it will be cheaper and more accessible for those who wish to use it. It will be much less cumbrous and formidable than judicial review. Is not that an important justification for it?

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education)

Yes, I think it is. Indeed, the process mirrors arrangements that already work very well with Ofsted. However, on the right to go for judicial review, once the director's provisional decision has been reviewed and if the director sticks to that decision, that option will remain for people to pursue, although it will be a rather expensive option, as Members in this House and the other place have said.

Photo of Mr Tim Collins Mr Tim Collins Shadow Secretary of State for Education, Public Services, Health & Education

The Minister said that he expected the review process to be "entirely paper-based". The amendment simply provides a power for measures to be specified in regulations. Is he saying, therefore, that he expects the regulations to specify that there would be no possibility of oral hearings, even if those holding the appeal and those appealing to the panel thought that such hearings would be appropriate?

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education)

I do not think that I would go that far. It is an expectation that, generally, we would deal with these matters in an inexpensive and non-time-consuming way. I have not thought as far ahead as the framing of the regulations, but I think that it would probably be wrong if we insisted that every single case had to be paper-based. I hope that, in saying that, I am not making a rod for my own back when the regulations come before the House.

Lords amendment No. 24 simply puts the provisions into the commencement clause of the Bill. We also want to take this opportunity to do a little tidying up of the amendments. Amendments (a) and (b) to Lords amendment No.20 make it clear that the appeals process should extend to decisions to approve a plan. That was always the intention, but amendments tabled in another place made it rather hard to achieve by removing the whole section involved. This is a sensible system—as I have said, it is similar to the one that works successfully for Ofsted—and I commend the amendments to the House.

Photo of Mr Tim Collins Mr Tim Collins Shadow Secretary of State for Education, Public Services, Health & Education

The bulk of the comments to be made from this Dispatch Box this afternoon will be made by my estimable hon. Friend Chris Grayling, but I did not want to miss an opportunity to reunite the happy band of brothers and sisters who served on the Committee—that was a very convivial time—and to exchange views once again with the Minister. I hope that he will forgive me when I say that I am confident that he will be in the Cabinet after the next reshuffle. I can think of no member of Her Majesty's Administration more deserving of being in the Cabinet, after the way in which he has handled our deliberations on the Bill. I promise him that I do not intend to ruin his career by saying that, and I am sorry if I just have.

The amendments tackle a number of issues, and I shall begin as the Minister closed by considering those that deal with the provision of an appeals procedure against decisions reached by the director for access. We welcome the proposals for the appeals procedure that were introduced in another place, and the fact that the Government have been gracious, both here and in another place, in conceding the need for such a procedure.

I should like to place on record that our preference would have been to have a procedure that was wholly independent of the Secretary of State rather than one involving people appointed by him, and we would like to ensure that the procedure will be robust. None the less, the Government have made a concession on this, and it has been welcomed by the universities. The Government are to be commended for listening to the arguments that were advanced on that issue both here and in the other place.

Generally, the Bill has come back from the other place a better Bill than it was when it departed from here. I hope that that will still be the case even after we have voted on various issues, because the Government have accepted some amendments but not others. The Bill is better than it was, but, lest anyone should be concerned, we remain opposed to its fundamental underlying principles. We are merely seeking to ameliorate provisions that would otherwise be damaging.

I smiled wryly to myself when the Minister referred to the undesirability of one of the amendments introduced in another place, which he said would lie "in perpetuity" on the face of the Bill. We shall disagree on whether this legislation is going to last even 12 months beyond the next general election, and, even though I am sure that it will be regarded in future years as the Johnson memorial Act, I am not sure that it will lie "in perpetuity", whether amended or not.

Photo of Graham Allen Graham Allen Labour, Nottingham North

I share the hon. Gentleman's remarks about the conduct in Committee. It was an extremely helpful and rational exercise. Since he occupies the position that he does for his party, however, and having raised the spectre of abolition if his party were to come to power, it is incumbent on him to make it clear to my constituents, many of whom will benefit from a £3,000 a year grant, whether that grant would then have a question mark over it. Will he make it absolutely clear what his policy is on that?

Photo of Mr Tim Collins Mr Tim Collins Shadow Secretary of State for Education, Public Services, Health & Education

I was merely making it clear that the position has not altered. The hon. Gentleman will remember what was said from this side of the House in previous stages of our deliberations, which was that we would publish our full alternative proposals later this year, and that they would provide clear answers to every question that the hon. Gentleman might have. In parenthesis, I would like to point out that, while it is true that his Government are giving some of his constituents £3,000 a year in grants, they are also requiring them to pay £3,000 a year in fees. Some people would regard that package as not entirely generous, overall.

Photo of James Clappison James Clappison Conservative, Hertsmere

Would my hon. Friend also find it helpful to remind the constituents of the right hon. Gentleman—I mean the hon. Gentleman; he should be a right hon. Gentleman—that the £3,000 grant to which they are entitled will taper out at a family income of the grand total of £22,000. Beyond that level, families will still have the £3,000 in fees to find?

Photo of Mr Tim Collins Mr Tim Collins Shadow Secretary of State for Education, Public Services, Health & Education

My hon. Friend, as ever, makes an extremely powerful case. I am not sure that he and I will immediately be leafleting the constituency of Mr. Allen to make that point, although there might be an opportunity to do so at some point. By the way, I do understand his other point. Without seeking to prejudice decisions that are in the hands of the Prime Minister, I cannot think of an hon. Gentleman on the Labour Benches who would more befit the title of right hon. Gentleman than the hon. Member for Nottingham, North, and perhaps that will be corrected in due course.

Photo of Mr Tim Collins Mr Tim Collins Shadow Secretary of State for Education, Public Services, Health & Education

We are having such a love-in here this afternoon that there are clearly other volunteers eager to see whether they receive my commendation. I give way to the hon. Gentleman.

Photo of Mr Peter Bradley Mr Peter Bradley PPS (Rt Hon Alun Michael, Minister of State), Department for Environment, Food and Rural Affairs

I want to correct the impression that Mr. Clappison just created. It is not the families who will be required to pay back the £3,000 a year in fees, but the graduate, once they are earning above a certain threshold, and on an interest-free basis. That is a fairly generous settlement. Perhaps when the hon. Gentleman and his hon. Friend understand that, they will agree.

Photo of Mr Tim Collins Mr Tim Collins Shadow Secretary of State for Education, Public Services, Health & Education

I am sure that that is what the hon. Gentleman believes, but we shall see, at the time of the next election, whether that is what students, parents and others believe. He might find that his view, which is held by only a narrow majority in his parliamentary party, is not held by a majority in the country as a whole.

I want to discuss Lords amendment No. 5. One reason for my praising the Minister earlier is that he is good at departing from an official brief, putting points in his own way, listening to debates and answering responsibly, so this failing on his part is uncharacteristic. He advanced what sounded like a bureaucratic argument against the amendment, which is, in effect, "It's not that we think there is anything in the civil service code that should not apply to the appointment of the director of OFFA. It's just that, since he is not technically a civil servant, we don't think that that is the right code to apply to him. It should be another code."

In addition to the welcome general sentiments expressed in the other place and by the Minister this afternoon in terms of the appointment being made on the basis of merit and proper access—it would be rather ironic if the director for fair access was appointed following a procedure that did not involve fair access—it would be helpful if the Minister explained whether there are any specific requirements in the civil service code that he would not want to apply to the Secretary of State's appointment in this instance?

I leave aside the question whether the post is purely that of a civil servant or that of a regulator. Are there any specific points that the Minister thinks it would be damaging, unwise or unacceptable to the Government to apply? If he clarifies whether this is simply a bureaucratic point, we can argue about whether it is an important bureaucratic point. It would be helpful to delve below the surface to see whether there is more to be found there.

The meat of the debate—in fairness to the Minister, the meat of his remarks—relates to Lords amendments Nos. 15, 16 and 17. We had an interesting debate involving a number of the Minister's Back Benchers. It struck me that a review of proceedings in the other place shows a reverse of the pressure being put on Ministers there compared with that being put on the Minister here. In the other place, not only Conservatives and Liberal Democrats, but Cross-Benchers and, indeed, the majority of Labour Back Benchers who spoke around the subject of the powers, functions and role of the regulator, put overwhelming pressure on the Government to recognise the need for academic freedom and the need to reduce the burdensome nature of what many in higher education fear will come from OFFA.

As a result of that, a very significant and welcome concession was made—the Minister did not refer to it, but it is certainly welcome on this side of the House, although it may not be universally welcome on his—that the Government should write into the Bill specifically a requirement that the director of OFFA will not have a role in the criteria for admissions.

We talked around that issue during debates in Committee, and the Minister would go only so far as saying that admissions policies would not be a matter on which the director could intervene. Moving beyond that to say that admissions criteria shall not be a matter for the director is a welcome concession. I hope that we have an opportunity to talk about it, although I am not sure that we will.

The point about Lords amendments Nos. 15, 16 and 17 from the other place is that they pushed the Government a little further in that direction. What became clear from our debate earlier is that the majority of those who intervened from the Government side of the House—there was one exception—are arguing that the director of OFFA should have more teeth, be more interventionist, be more activist and deploy, to use terminology used earlier, sticks as well as carrots. It was also suggested that there should be no question of any further removal of tooth or gum. I think that that was another analogy that was used.

I do not envy the Minister in this respect. He is trying to balance not only the interests of higher education and the interests of those of his Back Benchers who are concerned to try to persuade higher education that its primary duty is to get people in on some basis other than academic merit, but what Labour Back Benchers are saying in one House of this Parliament and what they are saying in the other.

The point about Lords amendments Nos. 15, 16 and 17 is that they would not have the damaging effects that the Minister set out. I understand why he does not like them, but he is slightly overstating the case, if I may say so, in saying that they are as absurd as he suggests. They would further put in place some protections for higher education institutions against the director of OFFA. That is explicitly the intention of the other place.

The Minister slightly gave the game away when he said that the Government want to move away from the current situation in which wider participation agreements are made between universities and the Higher Education Funding Council. The amendments would take things back much closer to the current system in which HEFC, acting as something of a barrier between the politicians in Whitehall and universities, can try to ensure that proper participation strategies are pursued, but in a way that does not interfere with universities' freedoms.

Although it is pretty clear from what the Minister said that the Government are not minded to accept the amendments on this occasion, I hope that they may be prepared to be persuaded to look again at the matter, were the other place to return to it in similar vein. They have made welcome concessions on OFFA, and the logic of those concessions is that we ought to have a genuinely light-touch OFFA regime.

The Minister said—this, again, is the balancing act that he is trying to preserve—that he wants a light touch, not a soft touch. It almost goes without saying that we on the Conservative Benches want an OFFA with no touch, because we do not want an OFFA at all. However, if we are to have an OFFA, it should be as non-interventionist as possible.

It is important to leave time for others to contribute to this important debate, so, in conclusion, I hope that the Minister recognises the fact that the Government's attitude in the other place was very welcome as they were prepared to concede ground on a number of points. They will do themselves even more favours, with the higher education world in particular, if they are prepared to reconsider the spirit behind amendments that they have said this afternoon that they cannot accept.

Photo of Mr David Rendel Mr David Rendel Shadow Minister (Higher Education), Education & Skills 2:00 pm, 23rd June 2004

I, too, want to start by commending the Minister on how he conducted the Government's affairs in Committee. That is probably no commendation as far as he is concerned, in that the Prime Minister will not want him to be supported more on some occasions by Members on this side of the House than by Members on his own side. Nevertheless, it is sensible and right to put on record our gratitude for how he handled things, not least his acceptance of significant changes to the Bill.

It is important that we in the House are used sensibly and that we try to make good amendments, even if we disagree with a Bill as a whole. We sadly failed on Second Reading to have the Bill taken out altogether—although by a very small margin, I remind the Minister—so it is good news that he was prepared to accept an amendment in Committee. My hon. Friend Mr. Willis and I could have been knocked down with a feather when we suddenly found out that one of our proposals was being accepted by the Government. We certainly had not expected that, but it was very welcome and it is also welcome that the Government have now agreed to accept at least some amendments from the other place, which have undoubtedly improved the Bill.

In the spirit of conciliation and as I am praising the Minister, may I say that, despite our earlier efforts to change how the regulator is to be appointed through insisting on the civil service regulations, we see that there are merits in the Government's arguments on this point? I am therefore prepared to concede that perhaps their arguments in favour of the Nolan proposals should now be accepted. I would no longer wish to argue against that part of the Bill.

The amendments made in the other place are worthwhile in general, however. They come close to the proposals that we made in Committee and in this place in arguing that there is little point in setting up a new regulator outside HEFC and that all the functions to be fulfilled by OFFA could equally well be fulfilled within HEFC. That, I remind the Minister, would be a much less bureaucratic way of dealing with ensuring fair access to universities. After all, HEFC will, I understand, provide a lot of the personnel for OFFA through secondment, and it will provide all the funding that will go through OFFA and all the offices. It appears that most of the functions of OFFA will be dealt with through HEFC, so setting it up as an entirely separate body seems rather unnecessary. However, that argument has perhaps been lost. Let us at least accept that the amendments get as close as we are now going to be allowed to get, given that the matter has now gone through the other place.

We all recognise, of course, that the whole point about OFFA was originally to be a sort of sop to the Chancellor and some of his supporters, who were worried about access. It is still there, I guess, because the Government insist on having this sop. That is a pity, but let us make it as good as we can meanwhile.

Photo of Graham Allen Graham Allen Labour, Nottingham North

In terms of making education a continuum, the hon. Gentleman will know as well as the rest of us that people often miss out and fail at the transition point in education—on entering school at five, and at the transitions between primary and secondary school, secondary and further education and secondary and higher education. Would not a more consistent approach be for Ofsted to do the whole structural analysis and review, throughout the whole education system, rather than having bits and pieces of regulatory bodies here and there? Would that not help everyone to come to terms with the system as a comprehensive whole?

Photo of Mr David Rendel Mr David Rendel Shadow Minister (Higher Education), Education & Skills

I may have misunderstood the hon. Gentleman, but he seems to be making an entirely new suggestion that did not come before the Committee at all. Perhaps the Committee stage of the Bill would have been the moment to make that suggestion if he had really intended to do so. Certainly, I have not thought about it—it comes to me entirely new. I hesitate to answer him directly, but I would have thought that starting to introduce Ofsted to the university sector would be going further than his Government, let alone us, would want.

Our problem with the way in which OFFA is being set up, and the reason we would prefer the powers to remain with HEFC, is that it seems punitive and almost vindictive in terms of the universities. The powers of OFFA seem to be there to punish universities for doing the wrong thing, rather than to encourage them to do the right thing. The idea of fining universities seems unnecessary, as HEFC should already have the power to refuse the right to charge top-up fees, which should be sufficient to ensure that access plans are worth while, and that they provide better access for those who come from less traditional backgrounds and from some of the poorer communities in our country. If we are to have OFFA, surely it would be better were it about promoting, encouraging and helping to install best practice throughout universities, rather than fining those universities that fail to comply properly.

Photo of Mr Peter Bradley Mr Peter Bradley PPS (Rt Hon Alun Michael, Minister of State), Department for Environment, Food and Rural Affairs

A few minutes ago, the hon. Gentleman talked about the Chancellor of the Exchequer and those who are concerned about access as if they were a small minority. I would hope that his party, like Labour Members, was concerned about broadening access. What does he mean by a traditional background?

Photo of Mr David Rendel Mr David Rendel Shadow Minister (Higher Education), Education & Skills

First, of course, we are worried about access, which is why we have made various suggestions, not least that top-up fees should not be introduced at all. That is one of the reasons why access will be restricted for certain groups in our community, particularly those who come from non-traditional backgrounds. I apologise if I said traditional when I meant non-traditional. To be honest, I cannot remember—I may have misused the word, and I apologise if I did. Certainly, I was talking about those who come from backgrounds in which family members have not traditionally been sent to university.

The Minister claimed that there would be a lot of extra bureaucracy as a result of the amendments from the other place. My view is that asking universities to include access plans in their overall strategic plans is not a matter of great extra bureaucracy. Indeed, it is really common sense. It seems to me natural that any university that tries to provide an overall strategic plan for its future is bound to want to include in such a strategic plan some sort of plan for access, which should be part of its evolution strategy. I would have thought that it was obvious that that would happen anyway. Simply allowing that to be used as the access plan that can then be examined by HEFC or OFFA, whichever of them ultimately has the power to do so, would not introduce extra bureaucracy; indeed, it would be easier than the Government's plans.

The amendments from the other place do all that is necessary to ensure fair access. As I mentioned a moment ago, we are as keen as anyone else that there should be fair access. A number of statements and speeches that we have made on this subject over the last year have proved that time and again. We are keen to see fair access and widening access to those who come from non-traditional backgrounds. We believe that the Lords amendments ensure fair access and that the House should leave them as they are.

Photo of James Clappison James Clappison Conservative, Hertsmere 2:15 pm, 23rd June 2004

May I endorse the remarks made by my hon. Friend Mr. Collins regarding the Minister and the way in which he has taken this Bill through the House, which, in addition to my earlier, sincerely meant remarks about Mr. Allen, continues the spirit of friendship expressed during consideration of the Bill?

I am afraid that the same spirit does not extend to the Bill itself. Welcome though the concessions made in the other place are, I remain concerned about the effects of the Bill and the way in which those will be reinforced by what the Government are asking us to do this afternoon, as far as the amendments are concerned. I apologise to the Minister for missing his opening remarks about Lords amendment No. 5. Were it to increase bureaucracy, that would be very worrying, because the Bill is already bureaucratic enough. In relation to Lords amendment No. 17, and the other amendments concerning OFFA, I am really concerned. As I put it to the Minister in my intervention, I have been and remain concerned about what will happen in practice when OFFA gets up and running, and the approach that universities will be compelled to take. The Minister said that universities are keen to improve access and set milestones—well, my goodness me, they will have to be, if we consider the apparatus that the Government have put in place.

Of course, universities do a great deal to broaden access. As has been mentioned, the Russell group universities—particularly Oxford and Cambridge—already do a great deal to increase access and to promote themselves as widely as possible. As Alan Howarth implied in his intervention, however, there is a limit to how much universities can achieve in determining their admissions through trying to generate extra applications, if admissions are genuinely decided on merit. There is a limit to what they can do to change, in some cases, deep-rooted cultural factors and a lack of aspiration, which we would all agree needs to be increased.

At the end of the day, universities will be judged on admissions. That much was implicit in some of the interventions that we heard from Labour Members on whether universities have complied with milestones. That is what worries me in relation to Lords amendment No. 17 and the Government's insistence that the regulator will have powers to enforce his will on universities and to enforce the milestones. My goodness me, the universities will certainly be concerned about that. They face fines, as Mr. Rendel mentioned, but on top of that, they fear that they will not be allowed to charge the variable fee at all. That establishes a clear nexus between the financial pressure on universities and the university admissions system. That is unhealthy, and, in the long run, inconsistent—and will prove to be so—with admissions purely on merit.

The amendments and the whole bureaucratic apparatus being put in place form an amazing edifice. The Government, through the charging of fees, are putting the strongest possible economic disincentive on the very families that they propose they want to help. Families on moderate incomes will find themselves facing for the first time substantial fees. I do not want to go too far down that road but it is relevant to the amendment because it calls into question—

Photo of James Clappison James Clappison Conservative, Hertsmere

The hon. Gentleman thinks that the answer is that the fees will be repaid by students only on graduation. He can try to sell that as a deal to families in his constituency on an average income of, say, £20,000 or £25,000. At the moment, families on a combined income of £25,000 do not have to pay the variable fee. Therefore he is creating a debt for those students that they will have to pay. Under present arrangements, apart from the standard fee, they do not have to pay that.

Photo of Mr Peter Bradley Mr Peter Bradley PPS (Rt Hon Alun Michael, Minister of State), Department for Environment, Food and Rural Affairs

Does not the hon. Gentleman acknowledge that, for school leavers with ability from low-income backgrounds, one of the most difficult barriers to accessing university is the up-front costs that they face—the student living costs? Does he acknowledge the contribution that the reinstatement of the maintenance grant will make to removing that barrier from that very large body of school leavers?

Photo of James Clappison James Clappison Conservative, Hertsmere

I suggest that the hon. Gentleman take the case of the family on a combined income of £25,000 and look in a little more detail at the matter. I do not think that he served on the Committee, so he will not have gone through the Bill in detail, and I can understand that. Such families are simply not eligible under the new maintenance grant arrangements. He may look puzzled, but if he looks at the Government's figures, and the Minister will confirm this, the new maintenance grant tapers out at about £22,000.

Photo of James Clappison James Clappison Conservative, Hertsmere

I am afraid that it does. On the Government's own figures, the new maintenance grant tapers out at above £22,000. Students will continue to get some remission of fees, as they do at present, but they will not be eligible above that level. A debt is being created. For the first time, they will have to pay the variable element of fees.

I find it amazing that students from households that the hon. Gentleman mentioned will be given that tremendous disincentive. He mentions what those students look at. One of the biggest disincentives for students from families on low incomes is how much it will cost and how much indebtedness they will incur. Through these proposals, for a family on an income of £25,000, he is quadrupling the amount—albeit paid back on graduation—that will have to be paid back for the cost of education.

Photo of Graham Allen Graham Allen Labour, Nottingham North

I am sure that an accurate figure will be put on the record by the Minister but, from memory, the taper does not run out until about £32,000. I am sure that the hon. Gentleman, like all of us, wants the people who will be eligible for a grant to understand their full eligibility, and that he is not intending to scare some of the very families whom we are trying to persuade that their youngsters should take up higher education. I am sure that he will be grateful to get a definitive correction from the Minister when he replies to the debate.

Photo of James Clappison James Clappison Conservative, Hertsmere

I was talking about the new maintenance grant that the Government are putting in place. It is right that students will continue to receive some help with remission up to £33,000—I think that that is the figure. They get that at present, but above £22,000 they will not be entitled to any of the new maintenance grant.

Photo of James Clappison James Clappison Conservative, Hertsmere

The Minister can shake his head but it is there in the Government's own figures. The new maintenance grant will taper out at about £22,000. Above that, students will still get the help that they get at the moment for fee remission; that help is there at the moment.

We were told that the new maintenance grant was the unique selling point of the Government's proposals. That tapers out at about £22,000. Above that level, the only help that the families will get will be the help that they get at present, based on fee remission of £1,200. Therefore the amount that a student from a family on an income of £25,000 will have to pay will be quadrupled. It is fair to say that that will be upon graduation.

I remember all those years when the Labour party campaigned against tuition fees in general and variable fees in particular. It campaigned against the previous Government on that basis, even when they were not proposing to bring in variable fees or tuition fees. The Labour party campaigned consistently against that. I do not remember a distinction being made at the time between up-front fees and fees payable on graduation. That was never mentioned. The Labour party was concerned about the effect on students.

Photo of Mr Peter Bradley Mr Peter Bradley PPS (Rt Hon Alun Michael, Minister of State), Department for Environment, Food and Rural Affairs

I am keen to correct another misapprehension under which the hon. Gentleman is labouring. The fee is not repayable on graduation. It is repayable on an income-contingent basis. That is a crucial issue. It is repayable when the graduate begins to reap the income dividend of the degree that he or she has achieved.

Photo of James Clappison James Clappison Conservative, Hertsmere

If the previous Government had introduced such fees upon an income-contingent basis, I do not think that the Labour party, which was then in opposition, would have said that that was the solution. It was the principle of paying for education that it was concerned about, whether the payment was up front or through extra indebtedness.

It is amazing that the Government should put in place a bureaucratic edifice after creating strong economic pressure entirely in the opposite direction. There can be nothing more likely to put off students from families on low incomes who do not traditionally send their youngsters to university than the prospect of vast debt. I do not think that the Government edifice that the amendments put in place will succeed in counteracting that pressure. We will see some serious distortions in university admissions, from which a very large number of families will be the loser. They will have the opportunity to pass their judgment shortly.

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education)

I thank Mr. Collins for his gracious comments. He put me in the Cabinet and then on to the Opposition Back Benches all in about one minute. It was a bit of a career change but, at the risk of turning the Chamber into a mutual admiration society, I congratulate him on his well-deserved promotion and I am sure that he will rise further through the ranks of the shadow Cabinet over the years to come.

The hon. Gentleman rightly said that the Bill has come back in better shape from the other place. May I place it on record that that was due to a number of factors, the most significant of which was the role played by my noble Friend Baroness Ashton, who led the debate in the other place superbly and with great distinction?

I have a short time left to me. The hon. Gentleman, almost in passing, talked about Lords amendment No. 5 and said that I gave a bureaucratic reply. He asked whether there were any points within the civil service code that I would question. The whole point of the Lords amendment, I presume, was the one significant part of that code that I do object to, the part that removes the role of the Secretary of State in appointing the regulator. While it was a bureaucratic point—I accept that—it is significant that the civil service commissioners themselves believe that it is the wrong process to use in relation to the regulator that we are setting up, which is a non-departmental Government body.

The hon. Gentleman raised concerns about Lords amendments Nos. 15, 16 and 17. We have tried hard. He mentioned the acceptance of Lords amendment No. 13, which puts the fact that the regulator will not be involved in admissions in the Bill, but the amendments that he referred to would completely destroy the office of the regulator. That is why he supports those amendments. They would mean that the regulator had no sanctions, even if the university said that it was going to charge £2,000 and decided to charge £3,000—even, I presume, although I am not absolutely sure, if it charged more than the £3,000 cap. There would be no method for the regulator to apply any sanctions if we accepted Lords amendment No. 15. It is also technically deficient. It goes to the heart of everything we have attempted to do in relation to the regulator.

I appreciate the gracious comments of Mr. Rendel, too. I also appreciate his support for Lords amendment No. 5. He presented two arguments, one of which was presented by Liberal Democrats in Committee, which was about the Higher Education Funding Council for England taking over the role of the regulator, so that we did not need to set up the Office for Fair Access. I said at the time, in Committee, that that was not a completely outrageous suggestion, and it was one that we considered. However, we thought that it would mix up a funding body with a regulator, and on balance we felt that that was the wrong route to take. The hon. Gentleman's second argument, however, on the access regulator and the issues that he perceived to be involved, was—

It being one hour after the commencement of proceedings, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Lords amendment No. 5 disagreed to.

Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

Government amendments (a) and (b) to Lords amendment No. 20 agreed to [Special Entry.].

Lords amendment No. 20, as amended, agreed to.

Government amendment (a) to Lords amendment No. 23 agreed to.

Lords amendment No. 23, as amended, agreed to.

Lords amendment No. 15.

Motion made, and Question put, That this House disagrees with the Lords in the said amendment.—[Alan Johnson.]

The House divided: Ayes 309, Noes 149.

Division number 202

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Question accordingly agreed to.

Lords amendment disagreed to.

Photo of Simon Hughes Simon Hughes Liberal Democrat, North Southwark and Bermondsey

On a point of order, Mr. Deputy Speaker. Can you help colleagues and I—

Photo of Simon Hughes Simon Hughes Liberal Democrat, North Southwark and Bermondsey

Colleagues and me, correct. We came to vote, but by the time we arrived, the Tellers had disappeared. There were four Opposition Members whose votes were not counted. Can you advise us, Mr. Deputy Speaker? [Interruption.]

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I can probably help the House on this matter. I obviously express my regret to the hon. Member and others who were deprived of having their vote counted. However, the Chair has to accept the Tellers' report. There is a system in operation whereby the Tellers are informed whether the Lobby has been emptied of all those who were willing to come out and be counted. [Interruption.] If an honest mistake has been made, it has been made, but the result must stand as it is.

Photo of Simon Hughes Simon Hughes Liberal Democrat, North Southwark and Bermondsey

I understand, Mr. Deputy Speaker, that honest mistakes can be made, but let me make it absolutely clear that my hon. Friend Sandra Gidley, other colleagues and I were not only ready, but very willing to vote—and in the right place at the right time.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

It therefore becomes even more a matter of mystery why, within the time available, everyone had not exited from the Lobby. I really do not think that I can add anything more to that. [Interruption.]

Order. There will be more opportunities for hon. Members to vote.

Lords amendment No. 16 disagreed to.

Lords amendment No. 17.

Motion made, and Question put, That this House disagrees with the Lords in the said amendment.—[Gillian Merron.]

The House divided: Ayes 312, Noes 164.

Division number 203

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Question accordingly agreed to.

Lords amendment disagreed to.