moved Amendment No. 75:
Page 14, line 10, after "regard" insert—
"(i) to the need to protect academic freedom, including, in particular, the freedom of institutions to determine the criteria for the admission of students and to apply those criteria in particular cases, and (ii)"
In moving the amendment, I shall be brief. I supported the amendment tabled by the noble Baroness, Lady Perry, because we have the same aim. The matter is clearly important to the whole Committee, and I do not really need to explain my reasons for moving the amendment. I am grateful for the support of the noble Lord, Lord Dearing, and that the Minister has indicated that she is minded to accept the amendments.
If the Government are clear that OFFA is not to interfere in admissions, they need to make it explicit in the Bill. This is necessary because of the inevitable scope for confusion that arises when OFFA is, in the words of the draft guidance,
"to expect the most, in terms of outreach and financial support, from institutions whose record suggests that they have farthest to go in securing a broadly based intake of students".
Several noble Lords have made that point.
Briefly, it might be helpful to explain what I have sought to do with the amendments. First, I have been asked why I have sought to exclude only the criteria for the admission of students and their application rather than frame my amendment with reference to admissions generally.
As I mentioned earlier, the problem I see with the word "admissions" is that it is capable of both a wide and a narrow definition. A wide definition might say that everything that leads a particular student to enrol on a particular course comes under the heading "admissions". That would then include everything from the factors at play when a student first forms the idea that they might like to go to university to the point at which they sign their name for a specific course at a specific university.
Such a wide definition might include such things I have already mentioned as summer schools and outreach work. I do not think that would be right. A more narrow definition might include only the actual admissions decisions and exclude the requirements for admission and the procedures employed. That might leave the way open for OFFA to claim that although the admissions decisions are none of its business the fact that the university conducts interviews, for example, is indeed its business. That would not be right either.
I want to ensure that we exclude admissions standards, requirements, procedures, policies and decisions from the remit of OFFA, so I have sought wording that is clear and unequivocal. That is why, having sought prolonged legal advice, I chose to seek to protect an institution's right,
"to determine the criteria for the admission of students and to apply those criteria in particular cases".
I sought to do that by making it part of the director of OFFA's remit that he must have regard to the need to protect the rights of institutions and their academic freedom.
Amendment No. 90 goes further and makes it clear that OFFA may not require a plan to include provisions relating to the admission of students. I accept that this is a belt-and-braces approach, but I hope that precisely because of that it will find favour with your Lordships and with the Government. I beg to move.
I did not expect the noble Lord, Lord Dearing, to be quite so fast after dinner. I have one or two comments that I nearly made on the previous amendment but decided in the cause of getting to dinner that it would be better to do so now.
I welcome the amendment because the issue of division between access and admissions concerned us all at Second Reading. There are two issues. First, I would be grateful if the Minister would indicate and give us a reassurance as to how watertight on admissions the amendment is. It refers to having regard to the need. One can define that in any way; it is the need and not the requirement on admissions. How strong is that provision, and how likely is it to be disputed? The reference to "particular cases" may be a normal legal phrase, but does it mean that they will be only certain cases or can it apply to every case of admission? I would like reassurances on the legal firmness of the amendment.
Secondly, paragraph (b)(i) would read to "have regard to" and so on, which is the same phraseology that would be used in paragraph (b)(ii) which would read,
"have regard to . . . any guidance given to him by the Secretary of State".
I seem to recall—perhaps I was wrong—that the director does not have to follow every guidance that the Secretary of State gives. The Secretary of State gives guidance that the director has to take into account, but he does not necessarily have to follow it. Does that mean that the director does not necessarily have to follow the need to protect universities in relation to admissions either? I am a little confused and unclear on this matter, and I am concerned that it does not wholly protect universities on admissions. I should be grateful for the Minister's response.
My second point is rather more important. The amendment refers to academic freedom and uses the words "in particular" in relation to admissions. But that is academic freedom in general. Academic freedom is certainly being undermined by the role and responsibilities that the Director of Fair Access has—in particular, given that he can use sanctions and penalties. Therefore, he will be able to use sanctions and penalties against universities if, in his view, their access plans do not come up to scratch. That, to me, seems considerably to undermine academic freedom and yet the amendment refers to the importance of paying regard to academic freedom. Therefore, why select this particular area as not giving freedom to the universities?
More importantly, I find it very difficult to understand how exactly the distinction will be drawn between access and admissions, and I should be grateful for the Minister's further guidance. It seems to me to be a very thin dividing line. If, for example, the director comes to the conclusion that some of the admission criteria which a university has and is free to apply in terms of the amendment undermine the access plans, will he then be able to challenge those access plans?
The key issue is one of admissions. In a sense, the access plans are important but they are not the crux of the matter; the crux of the matter is admissions. I hope that I am making myself clear. What I mean is: is it not possible that a director who is under a great deal of pressure and who wants to establish a big reputation will be able to look at the admissions and conclude that the access plans are not being properly carried out? If that is the case, he will be able to apply the sanctions and penalties of the access plans. Therefore, I find it quite difficult to see how, in practice, that very thin dividing line can be maintained.
That leads me to two conclusions. One is the extreme importance of an amendment which we shall debate later—that relating to the right of appeal. But if there are issues here that will affect universities, it is important that those matters do not rest entirely on the discretion of the director, who can then apply the penalties and the sanctions. Therefore, I think that that amendment will be crucial in clarifying some of the very difficult issues to be resolved.
Secondly, I am led to the conclusion that it is then difficult to justify OFFA and the director in the first place because academic freedom is undermined. That is why I continue to be very concerned about this whole aspect of the Bill.
I had hoped that this would be a rather happy debate. However, I am grateful to the noble Lord, Lord MacGregor, for raising his concerns on this issue. The noble Lord, my noble friend Lady Warwick and the noble Lord, Lord Dearing, have put their arguments very succinctly this evening. As noble Lords will be aware, there has been a huge amount of debate and discussion around this issue. I hope that, in accepting the amendments, we have made clear that we have understood the critical importance that this matter has in your Lordships' House and beyond in terms of the universities.
I can say to the noble Lord, Lord MacGregor, that, as I understand it, it is a watertight case. The effect of the amendment—that is, removing admissions from the director's remit and preventing the Secretary of State making any regulations under Clause 31(2)—would require a plan to include provisions on the criteria for admissions for students.
In talking to the universities, in particular, we have been very clear that this is about inputs and not outputs. We shall be looking at the work that universities do in drawing up their access plans and the kind of work that they will do in respect of bursaries and outreach programmes. We recognise that some of the work that they do may have no impact on what happens in an individual institution, but it might have a broader impact on a group of universities as the university sector works with students. Therefore, for example, it is possible that if a university such as Cambridge—if I may quote the noble Lord, Lord Wilson—were to carry out outreach work in the north-east, that might have an impact on the number of applications to the University of Newcastle. That is why we are very clear that the director should recognise that this is about inputs and not outputs. That is a critical part of the freedom. We are very clear that it is for universities to determine their own admissions. That is a fundamental part of the agreement between us.
These amendments put on the face of the Bill the reassurances that noble Lords have sought. I pay tribute to the noble Baroness, Lady Perry, and to the noble Lord, Lord Forsyth, who have pushed very hard on this matter; I would not want them to feel that they have not played an important role in this matter. These two amendments work in terms of the Bill, and on that basis I accept the amendment.
I thank the Minister for listening to the representations. I know that she will have further discussions to consider the wording, but at the risk of appearing slightly churlish, I am concerned about two aspects in addition to the points made by my noble friend Lord MacGregor. First, the Minister's preferred amendment from the noble Baroness, Lady Warwick, does not contain the definition of "academic freedom" which is contained in the previous amendment in the name of my noble friend Lady Perry.
Secondly, the ability of the Secretary of State to provide guidance to the director was removed by the previous set of amendments. That has been mentioned at various times throughout the afternoon. It has been suggested that if the Secretary of State is to retain the right to give guidance to the director of OFFA, it should at least be made public so that the direction given to OFFA is transparent. I believe that point was made earlier by the noble Lord, Lord Dearing. While not detracting from the positive response that we have had from the Minister, I want to ask her, while reflecting on the matter, to bear those matters in mind before she returns to this at a later stage of the Bill.
I thank the Minister for what she has said. I also thank all who have spoken in the debate, not merely on this amendment. Many in the university world who will read Hansard tomorrow morning will be very relieved. This has been a long, hard-fought battle and we have had many discussions. The Minister will know that I am not yet done, but I am enormously pleased with this outcome.
moved Amendment No. 78:
Page 14, line 11, at end insert—
"( ) in the performance of those functions, have a duty to consult with those stakeholders who have an interest in ensuring fair access to higher education"
The purpose of the amendment is to add to the duties of the director of OFFA in Clause 30 a duty to consult relevant stakeholders on the overall higher education access policies as monitored by OFFA. That would better inform its ability to ensure best practice in universities' access plans. OFFA is set to become the lead body in terms of spreading best practice in widening access and monitoring universities' attempts to achieve that.
The genesis of the amendment was discussions that the AUT had with the other unions on the Higher Education Bill. The original idea was to set up an OFFA board which would oversee its work. Board membership would have included representatives, for example, from the TUC, the CRE and the Equal Opportunities Commission. However, partly because of the cost of such a board, and partly because of the inevitable bureaucracy involved, that idea was dropped in favour of a duty to consult. That would allow those organisations with an interest in seeing broader access to have an input into OFFA. The duty to consult need not necessarily be a burden on OFFA and that is certainly not the intention behind the amendment.
Such a duty would help to strengthen OFFA and over time ensure that it is seen as credible and effective. Without a duty to consult it would be entirely possible for OFFA to talk to nobody apart from the higher education institutions. That could only be damaging over the long term to the cause of widening access, which, we all agree, is important. I beg to move.
In speaking to Amendment No. 78A, I wish to place on record my gratitude to the Minister for making available in draft the guidance that the Secretary of State intends to issue to the director of OFFA when the Bill receives Royal Assent.
I, together with representatives of Universities UK, have had the opportunity to discuss the draft guidance with the Minister and her officials, for which I am very grateful. As the Minister will be aware, there are a number of points in the guidance with which I am not entirely content. For example, the phrase:
"I would expect that OFFA would expect the most . . . from institutions whose record suggests they have furthest to go" is unhelpful, given the sensitivities about admissions.
However, I appreciate that in that wording the Secretary of State is trying to do something that I requested: to ensure that OFFA recognises the excellent track record of many institutions. Indeed, I would like him to go further on that point. I want to see the guidance changed to make it more explicit that OFFA is intended to act in a light-touch, non-bureaucratic way. I know that the Minister does not intend OFFA to micro-manage institutions' widening participation strategies, and that could be a little clearer in the guidance.
That illustrates the reasons for the amendment. It is said that many heads are better than one. I think, quite simply, that consultation produces better legislation. Incidentally, the guidance ought to make clear that the director of OFFA should consult regularly with key stakeholders in developing his or her modus operandi. I hope that the Minister will agree.
We strongly agree that consultation is absolutely vital. I am very surprised not to find it in the Bill already. However, I question the scope of the duties that the two amendments would impose.
Amendment No. 78 argues that OFFA must consult those,
"who have an interest in ensuring fair access to higher education".
Does that include every student's parent, for example, who will want to guarantee that his or her child has a fair and just system of entry into higher education? Who is to decide what is fair: the Secretary of State, the director or someone else? I do not know.
Amendment No. 78A states that,
"the Secretary of State or the Assembly must consult bodies appearing to him or it"— interesting wording; none the less, we know what it means—
"to be representative of institutions likely to be affected by guidance".
If the guidance under this clause is, as I think is intended, to dictate to the director how he should carry out his duties in relation to widening access, should businesses be consulted? I made that point recently in connection with a health matter. Should businesses be consulted, given that this year's students are next year's workforce? That may be particularly significant if the director ends up, for example, with a role in vocational training, which I have talked about before in these debates.
There are no set periods within which the consultation must happen. More importantly, neither amendment provides that the results of such consultation must be taken into account or adhered to by the Secretary of State or the Assembly before the guidelines are implemented or before the director takes steps to ensure fair access. It is normal for a consultation requirement to appear in such Bills. I hope that the Minister will give us some comfort in that regard.
Consultation is a vitally important factor in all policy-making. Ministers and officials have been actively engaged in consulting stakeholders in developing the policy framework surrounding the director. We have consulted widely on the Secretary of State's guidance to the director, and I am confident that such a consultative approach will be carried on by the director himself once appointed.
I ought to say immediately in response to my noble friend Lady Warwick that the intention is precisely that OFFA would have a light touch. That has always been intended to be a feature of OFFA. We have always believed that OFFA should be happy to discuss details in its operation, just as there will be further discussions on the details of the notes of guidance themselves in the way that has been sought. There is no intention of getting into micromanagement.
Amendment No. 78 requires the director, in the performance of his functions, to consult with those stakeholders who have an interest in ensuring fair access to higher education. I have already mentioned the draft letter of guidance from the Secretary of State to the director of fair access. We have said that the director will need to talk to the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission and work with them to help institutions understand best practice in the area of outreach. We have also said that HEFCE and the director will need to work closely together and exchange data freely. The director will also engage in a consultative process with individual institutions when making decisions on approval of access plans. In discussions, it has already been suggested to us that we should include specific references to other bodies in the guidance letter to the director, and we are reflecting carefully on that. We are committed to adequate, full and appropriate consultation.
As the noble Lord, Lord Skelmersdale, mentioned a moment ago, the first amendment is drawn very broadly, and the list of people with an interest in protecting fair access would be a very long one. Businesses, certainly; parents and young people self-evidently have an interest; as well as universities and colleges, schools and training providers and many others. We would expect OFFA to consult organisations representing those groups under-represented in higher education, but all of the groups that I have mentioned, and business was a good example, have a genuine interest in fair access if it is to deliver the most able graduates for industry and commerce. The point was well made.
As individual citizens, we all have an interest, because this is a question of fairness. If for some reason a single stakeholder were missed out, it is unclear what the legal effect of the amendment would be. We entirely recognise their concern, and suggest that a possible solution would be to revise the Secretary of State's letter of guidance to the director of fair access, as my noble friend Lady Warwick has already suggested, and to attach greater prominence to the issue of consultation. That seems to be a sensible way through the absence of other references to the point. I give an undertaking that we will pursue that course of action and discuss, with anyone who wishes to discuss it further, the details of how that might be achieved.
The noble Baroness, Lady Warwick, moved Amendment No. 78A, which deals with consultation on the Secretary of State's guidance to the director. It is precisely because we value such consultation that we have published a draft letter of guidance from the Secretary of State to the director in advance, which should allow ample time for scrutiny by universities and many others who might have an interest. The draft guidance has been discussed in detail with Universities UK—we have been grateful for its thinking—and also with a number of other bodies. Of course, it has been shared with noble Lords and with Members in another place.
Consultation is at the heart of the way in which the director will carry out his functions. For example, there must be discussion between relevant institutions and the director if the director were minded not to approve an access plan or was considering applying a sanction. We have agreed to make regulations under Clauses 31 and 35 subject to affirmative resolution, ensuring detailed scrutiny by Parliament. I assure noble Lords that we would not expect ordinarily to issue guidance to the director without first discussing it with those most likely to be affected. We support the principle.
There are three reasons why the amendment would not work. First, there would be circumstances in which we would need to issue revised or supplementary guidance very quickly. A statutory requirement to consult would, under current Cabinet Office guidelines, imply a standard 12-week consultation period, with a further time to consider the responses. That would delay the publication of urgent guidance where that guidance could be helpful to the director and the institution.
Secondly, a statutory requirement to consult would make the guidance letter from the Secretary of State over-elaborate and would imply a detailed level of emphasis that would be unnecessary and burdensome. I remind the Committee that the guidance is not a legal direction: it is simply meant to convey the spirit in which, we hope, the director will operate.
Thirdly, if we were to engage in more formal consultation, it would seem appropriate to consult a wider range of bodies than the noble Baroness's amendment would require. The amendment would require the Secretary or State or the Welsh Assembly to consult only bodies representing institutions before issuing guidance. I understand that that would be a major concern to the noble Baroness, as she has important responsibilities for institutions. I am concerned that it would exclude other sectoral organisations with a legitimate interest. The problem is that such formal consultation would create a major delay in the process. I know that many institutions—probably all—are keen to finalise their access plans, including their fees, as soon as possible. Regrettably, the amendment would frustrate that process.
I ask the noble Baroness to withdraw the amendment. I hope that we have given some serious indication of the way in which we would like to pursue the consultation question. We take it very seriously.
I am delighted that business is one of the sectors with which consultation is already going on and will go on in the future. However, I would like to press the Minister a fraction. He accepted that plans would need to be changed from time to time, but can he give an instance—a hypothetical instance, I accept—in which it would need to be changed so quickly that guidance would not be appropriate?
I am loath to speculate about specific instances, but I observe that institutions want a high level of flexibility to respond to the demand for courses that, they perceive, will come from students. Often, they work rapidly in such circumstances. I suspect that, for some of the courses that will come up rapidly, the notion of the importance of access will be a feature.
We must make sure that the whole sector can respond in good time. One of the criticisms that is sometimes made is that the sector takes a long time to do things and sometimes misses the boat.
I thank the Minister for his reply and take on board the strictures about the phrasing of the amendment. I should have started by saying that it was a probing amendment. There is ambiguity in the term "stakeholders", and it is unclear whom one wants to consult and whom one does not.
It would be helpful if the letter of guidance were rephrased and there were greater emphasis in it on the concept of consulting. Given that the amendment was tabled on behalf of the AUT, I must make it clear that representatives of academic and other staff at universities should be among those who are consulted.
moved Amendment No. 80:
Page 14, line 21, leave out subsections (2) to (4) and insert—
"(2) A plan under this section relating to any institution must include provisions relating to— (a) the promotion of higher education, and (b) the promotion of equality of opportunity in connection with access to higher education. (3) The provisions referred to in subsection (2) shall include measures which the governing body will take to— (a) attract applications from prospective students, (b) provide, or secure the provision of, financial assistance to students, (c) make available to students and prospective students information about financial assistance available to students from any source. (4) The plan shall include the governing body's objectives in relation to the matters covered by subsections (2) and (3), and its arrangements for monitoring the achievement of those objectives."
In moving Amendment No. 80 I shall speak also to Amendments Nos. 91, 92 and 93. Amendment No. 80 addresses the nature of the plans which the institutions will be required to submit to OFFA. Amendment No. 80A, tabled by the noble Baroness, Lady Warwick, seeks to leave out subsection (2)(a). I am inclined to support it and wish that I had not included the proposal in my own amendment. I agree entirely that giving OFFA the right to approve a plan on the "promotion of higher education" gives it rather wide-ranging powers. My amendment would substitute the word "and" for "or", but that has been picked up by the noble Baroness, Lady Sharp and, I suspect, was a government drafting error in the first place.
My proposed subsections (3) and (4) would change the nature of the kind of information institutions would be required to give to OFFA. Rather than having regulations which we have discovered are to come from the Secretary of State rather than OFFA covering how the plans should be drawn up, we think it would be much more sensible to ask governing bodies to submit plans setting out how they intend to attract applications from all prospective students. It is limiting to provide that governing bodies should submit plans for one kind of student. Surely their overall strategy for recruitment, how they intend to attract students from all walks of life, would be of the most interest to OFFA.
I have a personal objection to the phrase,
"members of groups which . . . are under-represented in higher education".
It is too vague. Someone said that stockbrokers are under-represented in higher education. Should governing bodies submit a plan for how they will recruit more stockbrokers? It is an infelicitous phrase. Perhaps the Government could think of a form of words that focuses more closely on what they wish to say.
Amendment No. 91 again seeks to take out the provision allowing the Secretary of State to make regulations and provides for OFFA to give guidance to institutions on what kind of content the director would like their plans to include.
Amendments Nos. 92 and 93 comprise the last plank in our vision of a different kind of structure and framework for OFFA's functions. The amendments propose that institutions should submit their plans for widening access as part of the overall triennial strategic plans submitted to their funding councils. I have managed a fairly large university in my time and it seems quite absurd to pick out what is a very key part of a university strategy—that is, the strategy for recruitment—from the rest of the plans covering the mission of the university, its financing, student numbers over the coming three years, new buildings, the adaptation of classrooms and so forth. Universities are required to include all this information in their triennial strategic plans. Surely plans for widening access, as now, should remain part of the overall strategy rather than be picked out as a separate element.
I do not know whether representatives from NATFHE have had discussions with the Minister, but their briefing states as a fact that the section on widening access is to be taken out of the triennial plan to HEFCE and submitted separately to OFFA. I think that is wrong. It seems to be bad management practice to pick out one central part of the university strategy—how the customers are recruited—from the rest of the plans for finance, buildings and so forth.
The amendments would ensure that the plans for OFFA are originally part of the overall plan submitted to the funding councils. The councils would then pass on the relevant elements of the plan to OFFA for its consideration. I beg to move.
I support all that my colleague, the noble Baroness, Lady Perry, has said. I underline also the point that she made about subsection (2)(a), which is the subject of Amendment No. 80A. I certainly agree with that. I simply stress the importance of looking at the universities' overall strategic plan. We have been drilled, dragooned, cajoled, steered and pushed towards having overall strategic plans, and that is the right direction to go. Therefore it would be sensible to leave consideration of this part of the strategic plan as part of the larger whole.
Amendment No. 81 stands in my name and that of my noble friend Lord Shutt. It is a little amendment and relates to subsection (2) of Clause 31. It is really a probing amendment, as to why it is "or" and whether the "promotion of higher education" is part of the access plan or whether that is not part of the plan as a whole.
Having said that, I have a great deal of sympathy both for Amendment No. 80A—which eliminates paragraph (a) altogether—and for the whole run of amendments that have just been proposed by the noble Baroness, Lady Perry. It seems to me that what the noble Lord, Lord Sutherland, has just said in relation to the development of strategic plans—and of the access plan being an element that is integral within those strategic plans—is the right way to look at it. To separate them out and create separate plans is somewhat absurd. It goes back to my general wish not to see OFFA there at all.
It is always extremely helpful to debate one group of amendments while thinking about the next group. I will confine myself to these amendments, but I will bear in mind what noble Lords have said about the next group of amendments—Amendment No. 80A in particular, which picks up the theme that noble Lords have identified. I will try to work through them reasonably speedily and address the concerns raised.
As the noble Baroness, Lady Perry, said, Amendments Nos. 80, 91, 92 and 93 all seek to remove the regulation-making power relating to the content of access plans, the approval of plans and the maximum length of time a plan may be in force.
We considered very carefully what was most appropriately enshrined in primary legislation and what we felt best left to secondary legislation. We need a degree of flexibility, within the bounds of the remit of the director, as to the content of access plans. That said, I accept the need for clear boundaries within which the director can operate, and within which regulations can be made. There also needs to be appropriate levels of parliamentary scrutiny.
As noble Lords will see from the Marshalled List, I have brought forward Amendments Nos. 110 and 111, which make the regulation-making power in Clauses 31(2) and 35(2)—covering the content of access plans and the enforcement of plans—subject to the affirmative procedure. That is the recommendation of the Delegated Powers and Regulatory Reform Committee, as noble Lords will be aware. But I do not agree that we should have no regulations at all. They are a well-travelled and recognised route for enacting provisions which may need some changes and adjustments to be made without primary legislation.
For example, a provision about the financial information that institutions could be required to provide to students: in time it is quite possible that we may be able to remove that requirement in regulations if information were available through another route. Under this amendment we would be unable to do so.
Amendment No. 80 would prevent institutions being required to include in their plans commitments to running outreach activities to raise aspirations and attract applications from under-represented groups. There is no mention of under-represented groups in this amendment. I know that the noble Baroness, Lady Perry, and the noble Lord, Lord Forsyth, have said that the term is insufficiently clear, but it remains the best way of expressing in legal terms what widening participation is about. I am happy to discuss whether there is a better term, but we have checked and that is the best term. We do not, as I have made absolutely clear, wish to interfere with admissions, but improving the number of applications from under-represented groups is to be encouraged, as we have deliberated this afternoon.
The amendment would also, of course, remove from the face of the Bill any reference to the provision of information to the director. We believe that it is important that the director can ask for and receive relevant information where necessary. This would not be onerous. The director would simply ask institutions to confirm on an annual basis that they have met the commitments in their plan. It would be important that the director could ask for any information needed to check that this was the case were it ever called into question. Clause 37 provides that the director may exchange information with HEFCE and with the Teacher Training Agency. This means that he would not need to seek information from institutions which had already supplied it to these bodies.
Amendment No. 91 is a consequential amendment to Amendment No. 80 and seeks to remove reference to our regulation-making power, which I have already discussed.
Amendment No. 81 does not relate to a drafting issue, as some noble Lords may have felt. As the noble Baroness, Lady Sharp, said, it would require that the provisions in the plans should relate to both the promotion of higher education "and" the promotion of equality of opportunity in connection with access to higher education. The Bill currently states "or", recognising that in England we intend the focus of plans to be clearly about the latter.
Let me explain briefly but slightly further. The clause covers both England and Wales. While in England we want our plans to be focused solely on the promotion of equality of opportunity in connection with access to higher education, the National Assembly for Wales has yet to make a decision on whether to introduce variable fees and, if so, what arrangements it will make for plans. It may want to focus more generally on the promotion of higher education.
"I do not envisage defining the contents of fee plans, whether in relation to access or to the promotion of HE, in such tight terms to allow institutions no flexibility or in such tight terms as to interfere with their autonomy. I am firmly of the opinion that institutions must be given the space to respond to their local circumstances. Rather, I envisage a process whereby essentially institutions propose what additional contribution they will make to higher education in Wales as a result of their fee income".
I hope that gives some assurances on how the Assembly envisages its plans operating in Wales.
I know that concerns have been expressed by organisations such as SKILL and the Royal National Institute for the Blind, but I can assure the Committee that we have absolutely no intention of causing difficulties for them in England with these clauses. I hope I have reassured the noble Baroness, Lady Sharp, that that is not what we intend. We shall return to this issue with the next group of amendments. I am of course willing to reflect on the matter if that will help.
I was going to say that I have some sympathy with the amendment of the noble Lord, Lord Lucas, but he is not in his place and his amendment will not be moved by anyone on his behalf. I shall swiftly move on to my conclusion.
I should say to the noble Baroness, Lady Perry, in regard to Amendment No. 92 that, under our proposals, access plans will subsume the widening participation strategies which institutions currently submit to the funding council. No institution will have to produce both. We therefore believe that the plans will generate negligible additional burden. This is particularly true given the closeness of the working relationship between the director and HEFCE in that context. I know the noble Baroness was very worried at Second Reading about that issue.
We believe that it is very important to reject these amendments. Amendment No. 92 would delete all the regulation powers in Clause 32 and instead would produce a strategic plan in perpetuity. We do not believe that is the right way to go. There would also be technical difficulties with the amendment.
Amendment No. 93 seeks that the institutions' first action plan should last no longer than three years. There is nothing in the Bill to prevent an institution from proposing an action plan that lasts only three years. The flexibility we have built in enables institutions to align their action plans in a range of different ways, tying in with their financial cycle, their financial strategy, their business planning cycle and so on. The Bill provides a power to specify the maximum period that a plan may be in force, and the Committee will see from the draft regulations that we have indicated that that period should be five years.
I hope that I have answered some of the queries that the noble Baroness, Lady Perry, had in putting forward her amendments. We believe that we would need the flexibility of secondary legislation and regulations. I also hope that I have given enough reassurance to enable the noble Baroness to withdraw her amendment.
I thank the Minister for her careful reply and noble Lords who have spoken in support in this debate. I am a little surprised that the Minister felt that Amendment No. 80 would prevent institutions from submitting plans about how they would attract applications from the type of students about whom we are all concerned. Subsection (2)(b) in my amendment requires institutions to include,
"the promotion of equality of opportunity in connection with access".
Also, my argument for subsection (3)(a) was that it would of course include not only students who are currently under-represented—if that is the phrase that we are using—but all students. The provision has to fit in with an overall plan. It cannot be right to single out certain groups and say, "This is what we are going to do for them", without including that as part of the institution's overall recruitment strategy. Higher education is just not like that. There is a total recruitment strategy, not bits and pieces of what one is going to do.
I am happy that the Minister agrees with some of the thinking behind my Amendment No. 92. In her answer to Amendment No. 93, she said that it would be important to have institutions thinking of their access plans alongside all their other plans for finance, buildings and so forth, which is exactly the point that I was making. However, we shall doubtless return to the matter at a later stage. In the mean time, I beg leave to withdraw the amendment.
In moving the amendment, I will also speak to Amendment No. 84A. I will not detain the Committee for long. Amendment No. 80A makes a very simple point, although it appears to be in almost direct contradiction with Amendment No. 82 tabled by the noble Lord, Lord Forsyth.
Clause 31(2) states that a plan must include provisions,
"relating to . . . the promotion of equality of opportunity in connection with access to higher education".
That is fine. That is what I understand OFFA to be about. That is what I thought the plans would contain. However, what is the need for paragraph (a), which states that plans must include,
"provisions relating to the promotion of higher education"?
I do not understand what that means in this context. When I first looked at the provision, I thought that there was no problem. If the plan fulfils condition (b), by definition, it fulfils condition (a). However, does it? Some more cynical than I have pointed out—and the Minister referred to this—that the provision appears to give the Secretary of State and the Director of Fair Access, or the relevant authority in Wales, the power to require that all sorts of things are included in the plan, whether or not they have any connection with access.
Although the Minister sought to reassure the House on that point, I was not at all reassured by the quote from the letter from the Assembly Minister, which raised a lot more questions than I had imagined. I confess that I am genuinely puzzled. I do not intend to press this amendment to a vote, but I give fair warning that, if the Minister is not able to provide a convincing argument, I shall return to the issue on Report. I beg to move.
Our Amendment No. 82 is grouped with these amendments. It is a probing amendment and it has almost probed successfully. Both the Minister and the noble Lord on the Government Front Bench referred to the Government accepting the recommendations of your Lordships' Select Committee on Delegated Powers and Regulatory Reform. In fact, as I understand it, Amendment No. 111, which is the acceptance amendment mentioned by the noble Lord and the Minister, does that only in part. My problem is that Clause 31 is a bit of a mish-mash. It refers to,
"the promotion of higher education", and the finance conditions attached. I will come on to the point raised by the noble Baroness, Lady Warwick, in a minute.
The Select Committee on Delegated Powers—as it then was—published its first report on
"The Committee is not likely to think it appropriate to delegate powers to impose or to increase taxation or other charges, except to take account of inflation or increased costs; to create criminal offences unless the general scope of the offences and the maximum penalties are contained in the primary legislation; or to remove or reduce benefits conferred in primary legislation unless that legislation lays down clear criteria for determining how the power is to be exercised".
The report went on to say that it was concerned with financial powers which would always be affirmative—and, indeed, the current report of your Lordships' Select Committee has backed this up. As I said, Clause 31 is a bit of a mixture. I would even describe it as a mish-mash.
I am therefore surprised that Amendment No. 111 refers only to Clause 31(2) and not to the whole clause, which the later amendment of the noble Baroness, Lady Warwick, does. She will know what number that is. That refers to the whole clause, plus a whole string of four other clauses. I am not going to debate the four other clauses, but I am certainly debating that one. That was the purpose of our tabling Amendment No. 82.
As far as the other two amendments are concerned, surely there is a valid argument that the promotion of higher education as aspects of the equality of opportunity in connection with access should be looked at as part of the whole picture surrounding higher education. The links between finance, fees and access plans shows in the clause that it already could have a wide-ranging implication under the Bill, touching areas such as research funding and more general funding for the universities.
Amendment No.84A removes the words,
"relating to either of those matters".
In doing this, the noble Baroness, Lady Warwick, allows regulations relating to the equality of opportunity in connection with access and the promotion of higher education to include what I suggest are some rather vague "further provisions". That is a quotation from the amendment. The use of these words could leave it open to wide interpretation. If we are to have regulations at all, surely they should be limited to relating to the matter in hand.
Those are general comments on the other two amendments in this group. I would like to know why the Government's acceptance of the ideas of the Select Committee on Deregulated Powers and Regulatory Reform has been limited to Clause 31(2).
I say to the noble Lord, Lord Skelmersdale, that when we come to debate the next group of amendments that I put forward on delegated powers I hope to answer his question completely.
My understanding from the 14th report of the Delegated Powers Committee on
The noble Lord said that these seem to be diametrically opposed amendments but I believe that they are searching for the same issue, which is to look at why we have drafted the clauses in the way that they appear on the face of the Bill. I hope to be able to offer some clarity.
Amendment No. 80A and the consequential amendment, Amendment No. 84A would, as my noble friend Lady Warwick said, remove paragraph (a), relating to the promotion of higher education, from the Bill. I covered this matter in part in my remarks on the previous group. We are quite clear in England that it is our intention that access plans should be related to the equality of opportunity in connection with fair access. I understand the concern expressed by my noble friend Lady Warwick that access plans may suffer from "mission creep", which is new terminology to me. The amendment would remove from the Bill the reference to the promotion of higher education.
In the first instance, I assure Members of the Committee straightaway that in England we have no intention that access plans should cover anything other than the equality of opportunity in connection with fair access. We have always been clear that that would be the case—that has been the entire foundation of our policy. Teaching, research or business links have not been a part of our thinking as far as access plans are concerned.
We have given clear signals of that in the Bill. The title of the director is the Director of Fair Access, and Clause 30(1) says that he must perform his functions in such a way as to promote and safeguard fair access to higher education. As Members of the Committee will have seen from our draft regulations, we intend that the contents of access plans should follow very closely indeed the specific provisions set out in Clause 31(4).
The position in Wales is rather different. I shall say only that there are only 13 higher education institutions in Wales and, from August, there will be 12. Wales outperforms the UK average on widening participation. The position is different, and the Assembly might wish for plans that cover a different scope. The term "promotion of higher education" is a wide one, as my noble friend has recognised. It is there specifically to give the National Assembly sufficient flexibility and freedom.
I am clear that higher education institutions are autonomous bodies, and the provisions in Clause 31 are in no way intended to undermine that long-established principle. I am reluctant to take away from the National Assembly the freedom to make those decisions by removing the term "promotion of higher education" from the Bill, but I recognise the concerns that my noble friend has expressed. We shall reflect on the matter and have further discussions with Universities UK on the basis of this evening's debate.
Amendment No. 82 seeks to remove the reference to,
"promotion of equality of opportunity", from the Bill. We recognise that the main key to widening access to higher education is improved attainment at all levels of a child's education. We have also debated the role of both/and, not either/or, which I have tried to suggest is relevant to the role played by universities. We need to ensure that we have established that opportunity fully within Clause 31.
On the basis that I shall return to the issues referred to by the Delegated Powers and Regulatory Reform Committee under the next group of amendments and on the understanding that I shall reflect further on the issues raised by my noble friend about the breadth of concerns in relation to the meaning of the clause, while recognising the importance of giving the National Assembly the right to have that flexibility, I hope she will feel able to withdraw the amendment.
I am grateful to the Minister for her response. However, I must confess that, especially on the Wales front, I am not much comforted—and neither, I suspect, will be the vice-chancellors of Welsh universities. I shall consider what the Minister said carefully and discuss it with Welsh universities, but I am rather alarmed at the degree of flexibility and freedom that seems to have been introduced suddenly into the Bill. I beg leave to withdraw the amendment.
I have just been criticised by the Minister for jumping ahead and asking my question on this group of amendments under the last group. In response, I might quote from the report of Delegated Powers and Regulatory Reform Committee.
Clause 31 concerns plans, which are essentially financial. The Bill does not specifically exclude from the scope of regulations under the clause, measures which are not wholly financial, such as those relating to admissions policy. That is why I described the clause during the debate on the previous amendment as a "mishmash".
As regards the regulations referring to Clause 43 in Amendment No. 109, as described in Clause 43(2), this covers,
"an order made by the Secretary of State under section 18"— and—
"regulations made by the Secretary of State under any provision of this Act".
Obviously, that would mean that there would need to be consequential changes to Clause 43(3).
Amendments Nos. 92A, 93A, 93B and 111A in the name of the noble Baroness, Lady Warwick, aim to insert the affirmative parliamentary procedure into Clauses 32, 33, 34 and 43. As we have discussed previously, we support the amendments in the name of my noble friend Lady Perry and thus feel that the changes made to the plans under OFFA would mean that regulations under these clauses would not be needed.
If the clauses are to remain as they are, we welcome the application of the affirmative parliamentary procedure. However, we feel that our Amendment No. 109 would also achieve that. I beg to move.
I have Amendments Nos. 92A, 93A, 93B, 109A and 111A in the group. I was delighted when the Delegated Powers Committee recommended that the regulations under Clauses 31 and 35 should be subject to affirmative resolution. Universities UK has called for that since the publication of the Bill. I am delighted that the Government have decided to bring forward Amendments Nos. 110 and 111 accepting the recommendations of that committee.
Unfortunately, I do not think that the committee went far enough. The powers contained in Clauses 32, 33 and 34 are also very significant. I shall concentrate my remarks on Amendment No. 92A because that is in my view the most significant.
"matters to which the relevant authority is, or is not, to have regard in making any determination relating to approval".
I am no lawyer, but I have taken advice. I know that among your Lordships there are those who can imagine just how wide that power might be. It is important to remember that the Secretary of State is also responsible for appointing the director of OFFA and may issue guidance to which the director must have regard. I think these powers are very wide. It is not much to ask the Minister to accept that they should be constrained at least by a little parliamentary scrutiny.
Amendment No. 93A subjects regulations under Clause 33 to an affirmative procedure. I understand that the current duration of plan is intended to be five years. I am content with that. What if the Secretary of State changes his mind once the Bill receives Royal Assent and makes regulations which require plans to be renewed every year? That would impose a significant additional burden on institutions and would be inconsistent with the Minister's avowed intention that OFFA should be light-touch and non-bureaucratic. Again, Parliament should have some say and institutions should have some opportunity to influence the legislation.
The same applies to regulations under Clause 34, which deals with the variation of plans. I know from my experience of trying to secure changes to the secondary legislation under the Export Control Act that negative instruments are nigh-on impossible to change once they have been made. I want to ensure that in future universities have some say in the way the regime develops. The Secretary of State should consult on changes to the regulatory framework—hence my Amendment No. 109A. If the Government see fit to accept my other amendments, I assume that consultation will be part of the affirmative procedure, but I would welcome clarification on this point. I beg to move.
I begin by saying to the noble Lord, Lord Skelmersdale, that I was not being critical of him. I was merely conscious that in this group I was going to talk about delegated powers. As he was particularly interested in clarifying the scope of Clause 31, it is my understanding that Amendment No. 90, which we have accepted, does clarify this point. If that does not satisfy the noble Lord on that particular point, perhaps he and I can have a word outside the Committee.
As I have made clear through Amendments Nos. 110 and 111, we have accepted the recommendations of the Delegated Powers and Regulatory Reform Committee and will be very pleased to publish our regulations and consider the comments of noble Lords before they are formally laid. These amendments also have the advantage of allowing for other regulations, still subject to negative procedure, to be laid together with those now subject to the affirmative procedure. In other words, for the first set of regulations we can lay a single set of regulations of both negative and affirmative, and use the affirmative procedure. I hope that that will go some way to addressing the concerns of noble Lords as we go through these amendments.
Amendment No. 85 is in line with the recommendations of the Delegated Powers and Regulatory Reform Committee but actually creates a difficulty in the wording because of the position of Wales. As I think I have explained in your Lordships' House before, the National Assembly has a different regulation-making procedure, much more akin to the affirmative procedure in this Parliament. Therefore I hope the noble Lord will accept that my own amendment seeks to achieve the same outcome, but taking on board the issue in Wales.
Amendment No. 92A, on which my noble friend has focused, concerns the approval of access plans. We have listened very carefully to some of the concerns expressed about the clause by Universities UK. An amendment was made in another place to Clause 32, restricting our regulation-making powers in respect to the approval of plans. This followed from representations from Universities UK. However, I do not believe the nature of these regulations justifies the high level of scrutiny provided for by the affirmative resolution procedure. As I mentioned earlier, in the first instance they would be made as part of a single set of regulations which in any event would be subject to the affirmative procedure. In the first set it will be very clear what the position is.
Amendment Nos. 93A and 93B would make regulations under Clauses 33 and 34 subject to affirmative resolution. Again, while we intend in the first set of regulations for the director to be approved by the affirmative procedure, we do not believe that subsequent changes would, in themselves, justify an affirmative approach.
Amendment No. 102 goes beyond the recommendations of the Delegated Powers and Regulatory Reform Committee, which were that regulations under Clause 35(2)(c) be by affirmative resolution. Amendment No. 102 would extend this to the whole of Clause 35(2). Again, I reassure noble Lords that the first set of regulations will all be through the affirmative process, but again we believe that it is appropriate to leave the provisions for the future to be by the negative procedure.
Amendment No. 109 seeks to make every single regulation made under this Bill subject to the affirmative procedure, which I suggest is a rather unusual departure from parliamentary procedure. I understand the desire to make Parliament play a very active role in scrutiny and I support that desire. However, I believe it is appropriate to have different forms of scrutiny, and that there are occasions when the negative resolution procedure is more appropriate. I know the noble Lord's concern mostly involves regulations related to variable fees and the director of fair access, but there are other issues in the Bill—supply of information, a number of technical matters relating to student fees and so on. As we said, the first group of regulations will all be by the affirmative procedure, and I hope that being able to see the process in action will put noble Lords' minds at rest.
In Amendment No. 109A, I too agree on the importance of consultation, and I assure the Committee that we will consult on any regulations made under Clauses 31 to 35. I am happy to place that on record, but I do not believe that this needs to be included as a statutory requirement in primary legislation. It follows existing practice under Section 22 of the 1988 Act. When we do consult, we will not only wish to consult the institutions. There are a number of bodies who have a legitimate interest in this area, and I believe it is important to have the flexibility to do that.
Amendment No. 111A would make regulations under Clauses 31 to 35 subject to affirmative resolution. As I have already indicated, I do not believe that the high level of scrutiny is appropriate for the affirmative resolution procedure when considering the kind of change that we would expect to those regulations.
I have welcomed the report of the Delegated Powers Committee, and we have tabled amendments to implement it. In the light of the technical flaws of Amendments Nos. 85 and 102, the assurances that I have given on the other amendments, and the more important difficulties of principle with Amendment No. 109, I hope that the noble Lord will withdraw the amendment and support those in my name.
I think that I am the only member of the Committee on Delegated Powers in the Chamber this evening. We are gratified that the Government should have acceded to various suggestions that we drew to the attention of the House. I am conscious that the noble Baroness, Lady Warwick, is unhappy that we did not go further. I may be speaking out of turn in the absence of any of my colleagues, but we rather pride ourselves on living to a regularity of precedent, in terms of our recommendations. We concentrate entirely on procedure and not on policy. It is always gratifying when, almost invariably, the Government accept our recommendations. That may be in part because of the manner in which we conduct ourselves. Were we constantly to go further, we might find more of our recommendations rejected.
The Committee will be grateful to my noble friend Lord Brooke for his speech as the only member of the Delegated Powers Committee currently in the Chamber. However, my argument was that the Government had accepted the recommendations of that committee only in part. I will read very carefully what the noble Baroness has said; no doubt she and others will read what I have said, in conjunction with the report of the Select Committee. At this time of night, I have no option but to beg leave to withdraw the amendment.