My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)
My Lords, in moving Amendment No. 23 I shall speak also to Amendments Nos. 34A, 45, 47, 48, 51 and 53. This group of amendments attempts to create a rather different Office for Fair Access—OFFA—from that which is currently in the Bill while retaining all the necessary tools to ensure that every university works to widen access.
I am grateful to the Minister for her helpful letter to me on this subject. As she will see, I have changed several of the amendments to which I spoke in Committee in the light of her comments. I am grateful to her also for her Amendment No. 24.
Amendment No. 23 subjects the Secretary of State to a requirement that the principles of the Civil Service Commissioners' recruitment code should be followed in the appointment of the director of OFFA. We believe that the commissioners' code offers exemplary practice. In the words of the first commissioner, it is a way of ensuring that recruitment is impartial and that there is no political patronage. We want a director of OFFA—a very important post—who is neither a creature nor a crony of the Secretary of State.
Amendment No. 34A lays out an alternative vision of the plans that universities will have to submit, but leaves the initiative with the universities' own creative ideas and not subject to very tight regulation. It removes regulation in the detail of how the plans for widening the pool of applications will be undertaken, but it also leaves out the phrase about "groups under-represented" in higher education, which is an infelicitous phrase and needs qualifying. Are we talking about social class groups, ethnic groups, geographical or perhaps groups from the north-east? "Groups under-represented" could mean anything, such as there not being enough blondes with long hair. I am unhappy with that phrase and our amendment does not include it.
Amendment No. 45 also removes the regulation-making power of the Secretary of State and the Welsh Assembly in this regard. However, in relation to the financial detail—such as the fees to be charged and the amount of bursary the university will give—the Secretary of State will make regulations as determined under Clauses 22, 24, 25 and 26. We believe that there is no need for such regulations from the Secretary of State on the universities' broader plan for widening access.
Under Amendments Nos. 47 and 48, all universities' strategic plans would continue to be sent to the funding councils. As I said in Committee, I believe that it is wrong to ask universities to develop their plans for widening applicant pools and improving access arrangements separately from their overall strategic plans. Universities submit strategic plans across the board—for financial development, buildings development, new courses and so on—and all of them are highly relevant to access. Widening access is currently part of those plans. To expect them to take out that part which relates to how they will recruit—how they will bring in their customers, if I may use business language—seems to me a very unusual and strange way to ask universities to do their planning.
Therefore, these amendments will make it possible for universities to continue to submit one set of strategic plans which include plans for widening access and leaves the funding councils to determine the plans' format and the timing of their submission.
However, Amendment No. 47 also requires the funding councils to pass on to OFFA the parts of the plans that deal with widening access. OFFA will then comment on the plans in dialogue with the universities and, if it thinks fit—that is crucial—approve them. That gives OFFA a considerable amount of power. If it does not approve the plans, the universities cannot charge fees. So it will clearly be extremely important for universities to get their plans for widening access approved by OFFA and to get them right.
The chief executive of the Higher Education Funding Council for England, speaking on behalf of his board, told the House of Commons Select Committee that he sees no need for OFFA. He pointed out that the funding council has power to reward institutions which do well in recruiting these minority groups and that, indeed, it has already approved plans for widening access and rewarded the universities' efforts in that regard. He pointed out that the amount of money which the many institutions receive for their efforts in widening access is more than they get from the research assessment exercise.
Our amendments further require OFFA to report to Parliament on the plans and their progress. That will give further power to the director of OFFA to ensure that universities take appropriate action.
Most importantly, we believe that OFFA will be more effective as a promotional body than as one which controls by regulation and by punishment. That is why Amendments Nos. 51 and 53 take away OFFA's punitive power in respect of universities that fail to take the steps they outlined in their widening access plans. Power is left to the funding council and to OFFA, as directed by the Secretary of State, to penalise universities that do not follow their financial plans; in other words, those that do not charge the fees precisely as they said they would and do not provide the bursaries stated in their plans.
I believe that making OFFA a body that has powers of punishment is not an adequate response to the kinds of behaviour we are talking about. Institutions should be committed to widening access, not simply to doing something in order to avoid punishment. I am thinking particularly of the welfare of applicants who, for example, are from groups that do not have a family tradition of higher education. I want those groups to receive genuine encouragement from the universities to which they apply and I want their applications to receive a warm welcome. That would not happen if some universities were engaging in this activity simply because they wanted to avoid any kind of punishment.
When we discussed this matter in Committee the noble Baroness said she expected universities to develop a very positive relationship with OFFA. I cannot help but feel that if OFFA had these punitive powers, it would be rather like asking a motorist to develop a positive relationship with a traffic warden who had just slapped a fine on his car windscreen.
We believe that institutions should be helped through powers of persuasion. I am therefore delighted to see the Minister's Amendment No. 24—although we have added an additional amendment to it, which we will discuss later. We do not believe that institutions should be brought to their knees—as they could be, as the fine could entail up to a whole year's grant if it were levied towards the end of the year—simply because they failed in their efforts.
I want all institutions to address the widening access agenda, and I believe that HEFCE's current initiatives go a long way to ensuring that that becomes so. I do not believe these powers of OFFA are necessary. I think that all of these amendments go together as a total package. I beg to move.
My Lords, I shall not pursue that matter. Had the noble Baroness wanted to draw an analogy with recruitment to the Civil Service, I would have said that the civil servant is by nature one who dances to another man's tune. The last thing we want is this man to dance to the Secretary of State's tune. However, forgive me.
I move on to the diminution of the regulating power. I have for many years been a public servant and the chairman of several public bodies. As one who has on behalf of Ministers stroked the ear in private of various people in public positions, and as who has been on the receiving end of such informal encouragement to do a Minister's will, I find such a proposal worrying. I would much prefer the Secretary of State to discharge whatever he wishes to achieve through something that is on the public record; namely, a regulation.
On the changes in the job of the organisations to which we are referring, and on the particular task of widening access, I am honestly concerned that Amendment No. 34A seems to water down the vigour of what is in the Bill. Although I have them in front of me, I shall not read out the different passages. However, I must say that I was very confused by new subsection (1B), which is concerned with attracting,
"applications from as wide as possible a number of prospective students".
I am not sure what,
"as wide as possible a number", looks like. Possibly it is an infinite series. But I am clear that it takes away from the emphasis on attracting students from less advantaged homes and other under-represented groups. It could even mean that they had a duty to seek to encourage applications from foreign countries that are "under-represented"—whatever that might mean—in our universities. So I would not favour the wording and the thinking that underlies that particular amendment.
We have discussed the involvement of the funding council before. It is much clearer if we have a body with a particular responsibility under statute. It should then get directly the information that it requires to discharge its responsibility and engage directly with institutions, rather than rely on another body to provide the information that it needs and then start to engage. That would mess it about.
On the reduction of powers, the noble Baroness referred to punitive powers. I think that the noble Lord, Lord Forsyth, said earlier—he will forgive me if I remember wrongly—that in politics, perception is everything. It may not be everything, but it is an important part of life. We need to carry conviction with those who are worried that aspects of the Bill may, in spite of all that the Government are doing, reduce participation by young people from disadvantaged homes. We should not remove the power that enables the director to act, if he can reasonably conclude that the institution has not taken all reasonable steps—as provided in the government amendment, which I welcome—to obtain applications. It is reasonable for us to provide conviction that we mean something by the OFFA proposals by providing those reserve powers. Of course, they will have to be used sparingly. It would be unacceptable if the director were to impose swingeing financial penalties on institutions. The regulator will have to use the powers with discretion. He will have to retain the confidence of the institutions.
If we are to get through the other place the kind of changes in funding that the universities so desperately need, we must leave the Cheshire cat visible, so that it is not just a smile on the face of those who want to see the back of the Bill.
My Lords, I shall be brief. The noble Baroness, Lady Perry, and I have a similar view of how OFFA should work. It should have no remit over admissions; it should encourage applications from a wide range of potential students; and it should not impose a bureaucratic burden on institutions. However, although we share those aims, I am not convinced that the amendments will take us there. They remove the power of the Secretary of State to issue guidance under the clause, but he or she would retain the power to issue guidance to OFFA under Clause 30. It would be less satisfactory to have OFFA steered in that non-statutory way than to have regulations subject to stakeholder consultation and parliamentary scrutiny. It is difficult to believe that the Secretary of State would have no influence over OFFA. As the noble Lord, Lord Dearing, pointed out in Committee, it is better that that influence should be in the form of public regulation rather than private pressure.
Also, through the package of amendments, the body to be set up would be very different from OFFA. In fact, it is so different that I fear that it would be viewed by another place as a replacement for, rather than an improvement of, OFFA. As your Lordships know, my aim has been to improve OFFA rather than to reject it completely. My preferred route to reach our shared aims is for the regulations on OFFA under this and other clauses to be subject to affirmative resolution and for there to be consultation with the higher education sector. That is the subject of a group of amendments in my name that we shall reach shortly.
My Lords, I do not normally disagree with the noble Baroness, Lady Perry. In fact, we have worked together on a number of areas concerning university education. But I must say that I cannot support this group of amendments. I tend to take a line more like that described by the noble Lord, Lord Dearing, and my noble friend Lady Warwick, but would perhaps go even further than them. My opposition to the amendments is because, as the noble Baroness said in her opening remarks, they would bring about a completely different set-up for OFFA—a set-up that I think would be less effective in what I feel is the fundamental thrust of the Bill: to widen access.
I know that the noble Baroness, Lady Perry, is second to none in her anxiety for access to be widened and has done much work in that respect. But we cannot just allow universities to freewheel and, at the same time, widen access. I said in Committee that access is more than just trying to ensure that state-educated young people with two or more A-levels have the same choice of university as do young people educated in the private sector, important though that is. It is much more fundamental than that.
Amendment No. 34A, which would remove the reference to under-represented groups, destroys the whole basis for widening access. To me, widening access is a question of bringing in under-represented groups in our society. Sometimes they are geographical; sometimes they are ethnic; sometimes they are based on class. There is a whole range of young people who have not had an opportunity—because of their earlier education, I accept—to enter higher education. The Bill must deal with that effectively.
Widening participation cannot be left to schools; universities, schools, the Learning and Skills Council and all the various networks of access programmes must be involved. Ultimately, it means that universities themselves must make modifications to their ethos and to the whole range of support facilities that they provide for young people. That cannot be done completely voluntarily; it needs regulation.
To take my university as an example, anyone who examined the profile of the University of Bradford as it is now and as it was 10 years ago would find that it is completely different, with much greater involvement of young people from working-class areas, ethnic groups and the regions. Many factors have contributed to that. During the past 10 years, strategies have been developed to try to involve those groups of young people, but they have been adopted by certain universities, not across the board. If we are to widen access and change the nature of the courses provided in our universities, as my university of Bradford has done, more universities must not only present but monitor programmes to ensure that they are followed through.
It is significant that in our debate on the Bill, little mention has been made of foundation courses or of the new 14 to 19 strategies, which are all aimed at bringing young people up to a standard at which they can benefit from higher education. It may not be a classical higher education; it may involve more workplace training and vocational education. Nevertheless, it can and will be of just as high a standard. I can claim for my own university, on the basis of assessments of teaching, research and student retention, that it can modify courses, change its ethos and adapt mottos to accommodate such young people without lowering standards.
Like the noble Lord, Lord Dearing, I do not think that that can be done in an unregulated way. If we are not careful, we might find ourselves giving more power to HEFCE in this area than to OFFA. Surely, under the Bill as drafted, HEFCE is much more liable to influence by government than OFFA would be.
The amendments might be counterproductive to what the noble Baroness wishes to provide, so I am afraid that I oppose them. I want some regulation in the system, as it is the only way that we will achieve the objectives and aspirations of the Bill.
My Lords, we support this group of amendments. In speaking in support of the amendments, I should like also to answer some of the questions that have arisen. It seems, for example, that the noble Baroness, Lady Lockwood, is wrong in suggesting that there is no regulation in the proposal. As noble Lords know, we originally argued that we did not need OFFA and that HEFCE already had the necessary powers. The aim of the amendments that we tabled in Committee was to subsume OFFA within the powers of HEFCE. There was a lot of dissension on that based on the argument that it would bring funding and regulation together into one body.
I was much influenced in what I said then, and am influenced in what I say now, by the evidence given by the chief executive of HEFCE, Sir Howard Newby, to the House of Commons Education and Skills Committee last March. As the noble Baroness, Lady Perry, mentioned, he made it clear that, so far as he was concerned, HEFCE already monitored what was happening on access, and regulated it to some extent, because it already punished those who did not have access plans by withholding funds from them. Therefore, there was already mixing of the regulation and funding functions.
The extent to which extra moneys have now been given to HEFCE to promote the access agenda indicates that it has yet further power to promote that agenda. The notion of what I call "OFFA within HEFCE" did not meet with favour in Committee. I concluded that this group of amendments was a good substitute for our proposal. The amendments contain many very sensible ideas. Rather than OFFA being a punitive, vindictive organisation, it becomes one concerned to help to promote, encourage and develop best practice in access. That is its main function; it is what the director of OFFA will do. It will do it separately from HEFCE but alongside it. The access plans are to be conceived within universities' overall strategic plans, which must be submitted to HEFCE.
During our previous discussions on Report, the noble Baroness, Lady O'Neill, told us about the sets of plans that universities must produce constantly for HEFCE—in some senses, HEFCE's bureaucracy. Now we suggest that the proposal will not create extra bureaucracy, because the access plans will be produced within the context of the broad strategic plans for HEFCE. They will place real emphasis on access. Perhaps the noble Baroness, Lady Perry, would like to speak for herself, but I do not believe that she wishes in any way to diminish the emphasis on widening participation in this agenda.
Originally, I hesitated to back this group because of the two little amendments at the very end, Amendments Nos. 51 and 53—the "or (c)" amendments. I argued that, if you have plans for access, it is very important that there is some sanction. What would you do if a university developed an access plan and then did nothing about it? One must recognise that two aspects are retained in this group of amendments. The first goes back to Clause 23(1)(a). Any university that does not have an approved plan will not be able to charge higher fees and will be stuck with the lower, basic Dearing fee, as I call it. If any university wants to charge a higher fee, it must have developed an access plan. That provision remains.
What happens if a university just ignores the access plan and does nothing about it? What sanction is there? Amendment No. 47 has brought me round to backing this whole series of amendments, including Amendments Nos. 51 and 53. Subsection (1) of Amendment No. 47 states:
"The Funding Councils shall provide to the relevant authority copies of that part of the Institutions Strategic Plans relating to Fair Access arrangements, which will then comment to each institution on the content of its plan and may, if it thinks fit, approve the plan".
In other words, the process of approval of plans is still written into the amendments. The one thing lost is OFFA's ability to suggest to HEFCE that it eliminates grants and moneys other than those gained through raising fees. When we discussed the matter in Committee, we were generally agreed that there was a degree of vindictiveness in taking away other grants and loans, which was a sanction available to the Secretary of State. This proposal limits the sanctions to not being able to charge higher fees, which, in the circumstances, is probably fair and reasonable and would hit universities very hard. They are all looking forward to being able to charge higher fees, regret it though I may from these Benches.
The noble Baroness, Lady Perry, will bear witness to the fact that I have not been won over that easily, because I was not convinced initially that this was what I wanted. I am now convinced, because we have changed the wording to provide that plans must be approved, otherwise universities may not charge higher fees. That seems a very sensible way forward. I thoroughly support the amendments.
My Lords, in supporting the amendments in the name of my noble friend Lady Perry, I congratulate her on the dogged determination and persistence with which she has pursued these matters. Perhaps the Minister will surprise me by accepting all the amendments, but I am genuinely puzzled about why the Government should have any difficulties with them. The exposition of the amendments by the noble Baroness, Lady Sharp, was masterful and set out the case. I do not propose to detain the House by going over the details.
However, one thing, which is perhaps a little harsh, must be said. Having listened to the speeches by the noble Lord, Lord Dearing, the noble Baroness, Lady Lockwood, and even the noble Baroness, Lady Warwick, who told us that she was with us in spirit but could not quite bring herself to support the amendments, and that she had similar views but felt the remedy lay elsewhere, I feel that we are witnessing people making speeches in support of a deal that they made many months ago.
The deal was that the Government would produce a Bill that would provide for the introduction of fees; and the price was an attack on the independence of the universities by the establishment of OFFA. At the beginning of the discussions on this, I was influenced by the arguments made by the noble Baroness, Lady Sharp, that perhaps the best thing would be to get rid of OFFA altogether and to leave it with HEFCE. That appealed to my radical instincts.
There is considerable concern in universities about the role of OFFA. I spent the weekend with the noble Lord, Lord Baker, who arranged for endless academics to come and talk to me about this Bill. There is indeed a great deal of concern about OFFA. My noble friend's amendments put in the Bill, and give substance to, the assurances that the Government have been giving us. The Government keep telling us that OFFA will operate with a light touch. My noble friend has gone with the spirit of what was part of that deal, without actually encroaching on the autonomy of the universities. That is an important principle. We must see these amendments as a package.
Since starting this exercise, the Government have published the Schwartz report, which talks about creating a central source of expertise and advice on admissions while adhering to the principle that autonomy on admissions should remain with the universities. That is what my noble friend's amendments seek to achieve. If there is general support for this amendment—and perhaps we will have to test the opinion of the House—but the Minister is not able to support it, I hope that she might go away and think about how she can respond to the real efforts that have been made by the noble Baronesses, Lady Sharp and Lady Perry, to find a way through this difficulty that meets the legitimate concerns of universities.
In conclusion, I address the description given by the noble Lord, Lord Dearing, of civil servants as people who dance to another man's tune. Even he is finding it difficult to keep a straight face now. Next Christmas, I shall send him a copy of the collected works of "Yes, Minister" and "Yes, Prime Minister". One of the great values of civil servants is that they tell Ministers what their options are; Ministers then decide what to do. One of the great strengths of our Civil Service has always been its independence. With the amendment in respect of the appointment of the director, my noble friend seeks to give that imprimatur of independence that is always taken for granted as part of the Civil Service.
I was concerned by the noble Lord's suggestion. Of course, civil servants act finally on the instructions of Ministers, but in giving advice and ensuring that the functions of government take place, they operate in an impartial way. That is what we would expect of the director of OFFA, and that is what my noble friend's amendment seeks to achieve. I support the amendment, and I hope that the Minister will feel able to do so, or at least offer us the prospect of being able to do so at a later stage.
My Lords, I begin by saying that I was thrilled to hear about the noble Lord's weekend. Perhaps he might have taken the academics fishing with him? Sadly, no. Those of us watching the football perhaps had less of an enjoyable time.
I recognise completely the work done by the noble Baroness, Lady Perry, in supporting widening access. I will address my remarks in that context. It is important to reiterate to the House that we see the creation of access plans, and their approval and enforcement, as absolutely fundamental to our package of proposals in this Bill. The real, widespread concerns are not to be underestimated. They have been expressed in another place and elsewhere, and in our debate by my noble friend Lady Lockwood in relation to the implications for and the potential impact on those from particular backgrounds who may feel that this is a deterrent. This is not about making deals or packages. It is about saying that if we wish to move to the kind of variable fees that have been described, and which are fundamental to this Bill, hand in hand—side by side—goes OFFA. That is a clear Government position.
I have said all along that I am happy to clarify the director's role; his independence and his non-interference with admissions and academic freedom. We have already accepted some specific amendments on these subjects, and I am happy to continue to listen to arguments about how these could be improved. Perhaps noble Lords will see later that I have indeed listened carefully with regard to the way in which the director works, his role in relation to good practice and part-time students and similar issues. What must remain unchanged is the basic model of the director's existence and core functions; approving, monitoring and, if necessary, enforcing access plans. We have had months of discussion with universities about our approach, and they understand that this Bill comes as a package. The vast majority of universities recognise it as reasonable. The director, as we have proposed his role, is part of that package, and it would not be right to unpick it.
I will now address the individual amendments in this group. As the noble Baroness, Lady Perry, said, Amendment No. 23 concerns the appointment of the director. I am well aware that in debating these issues in Committee, the noble Baroness focused on the need for the independence of the director. She felt strongly then, as did the noble Lord, Lord Forsyth, that for independence to be secure the director needed to be a civil servant recruited through the Civil Service Commission.
As I said in Committee, an executive non-departmental public body, headed by an independent office holder appointed in accordance with Commissioner for Public Appointments Code of Practice for Ministerial Appointments to Public Bodies is the most satisfactory solution. It would be odd for the director to be appointed subject to the principles of the Civil Service Commission when he is not a civil servant. There is another mandatory set of guidance for ministerial appointments to public bodies which achieves the same fundamental principle of selection for appointment on merit on the basis of fair and open competition.
I was strengthened in my view when I studied the sixth report to your Lordships' House of the Select Committee on the Constitution, with its most distinguished membership, representatives of which are present in the House today. I am sure that they will correct me if I misquote. That report, The Regulatory State: Ensuring its Accountability was published on
"We recommend that Ministers should remain responsible for appointing regulators, subject to Nolan rules, to ensure proper responsibility and accountability".
The Select Committee did not offer a view as to whether an NDPB or a non-ministerial government department was the better solution. The committee did, however, say that whatever level of independence has been granted by Parliament, Ministers have generally sought to maintain that independence, and commented that if a regulatory body's role is clear, its independence is better secured. That precisely summarises the principle that we have tried to bear in mind in creating the director, and it is the reason why we have resisted amendments elsewhere that would widen the director's remit and blur his responsibilities. We have also spoken to the Office of the Civil Service Commissioners who have confirmed and agreed to be quoted as saying that the Commissioner for Public Appointments code is the correct code to follow for this particular appointment and not their own recruitment code, which applies only to civil servants. Of course, the Civil Service Commissioners' code and the OCPA code support the fundamental principle of selection for appointment on merit on the basis of fair and open competition. On the OCPA guidance, Dame Rennie Fritchie said:
"My task is to ensure that all government departments have systems for public appointments which are visible, fair and open. Further, that all appointments within my remit are made on merit and contribute to the development of strong and balanced boards and public bodies".
But the code is for ministerial appointments to public bodies and the other is for civil servants. The Office for Fair Access will be an NDPB, and the noble Baroness, Lady Perry of Southwark, has accepted in her amendments that the director will not be a civil servant. So, it is self-evident that the OCPA code of practice should apply.
Amendment No. 34A would remove regulation-making powers and put details of the content of plans in the Bill. I understand the desire to take a cautious approach to regulation-making powers in any Bill. That is why we have produced draft regulations that, I hope, make it clear how we propose to use the power that we are taking. It is for institutions to determine the detail of the content of their plans, but it is reasonable for them to do so within a regulatory framework. Regulations are a legal constraint on the director that Parliament must, in that instance, approve. Lack of regulation-making powers leads to greater uncertainty and the risk of a more arbitrary approach.
Concern was expressed that the Secretary of State might have too much power. Any regulations laid in respect of this or any other clause will be subject to the scrutiny of Parliament. As noble Lords will know and my noble friend Lady Warwick of Undercliffe will acknowledge, we amended the Bill in Committee to make the regulation-making powers in respect of the content of plans, which the amendment would remove, subject to affirmative resolution.
Regulation-making powers also give greater flexibility. Without regulations, the requirement that plans should include measures to attract applications, provide financial support and provide financial information will be fixed in the Bill without any opportunity to qualify that requirement or even remove it in due course. The amendment would also pre-empt any decision that the National Assembly for Wales might take on the contents of plans, should it decide to introduce variable fees.
Another effect of the amendment would be to remove the reference to the promotion of higher education. In Committee, I explained that we had no intention that plans in England should be related to the promotion of higher education; they should be related solely to fair access. However, in recognition of the concerns that noble Lords expressed in Committee, which are reflected in the noble Baroness's amendment, we have tabled Amendment No. 33, which will ensure that the phrase "promotion of higher education" does not apply to English plans. I hope that that reassures noble Lords, as far as England is concerned.
There would be two other effects. First, the reference to under-represented groups would be removed and instead institutions would have to take measures to attract applications from,
"as wide as possible a number of prospective students".
That changes the focus from widening access to general recruitment, which is not the purpose of the director. Also, it is far from clear what a wide number—as opposed to, for example, a wide range—of prospective students means.
Another effect would be to remove the requirement to provide information to the director. We have made it clear that that is not intended to be a bureaucratic burden and will not involve onerous reporting requirements. However, it is vital that it happens. If the director cannot seek information where necessary, he cannot make informed judgments. They could be bad decisions: bad for students and bad for institutions. For those reasons, I must continue to resist the amendments.
Amendment No. 47 would create some difficulties, not least for institutions. One problem is that it would delete the power for the director to issue guidance. We are giving the director that power to ensure that universities are clear about what will be expected of their access plans. I am sure that noble Lords will agree that institutions need certainty about the expectations of the director; otherwise, they will draw up plans on the basis of guesswork. That would not be helpful. The institutions need to know where the goalposts are, an appropriate analogy at the moment. I cannot see how removing the ability of the director to issue guidance would help anyone, let alone the institutions.
The amendment would also delete the regulation-making power in Clause 32 and create a requirement that institutions produce a strategic plan for HEFCE in perpetuity. I am sure that that goes beyond what institutions or the funding council would expect. Noble Lords referred to Sir Howard Newby's comments to the Select Committee. They were made some months ago, and I can say that HEFCE has been closely involved in our discussions and planning and accepts the Government's view that OFFA should be a separate and independent non-departmental public body.
I reiterate what I said as early as Second Reading: of course, we said that HEFCE could regulate fees, but we do not believe that it is the best body to do so. HEFCE is a funding body. It is much closer to the Government and has a specific remit to fulfil with regard to the institutions. Here, we are creating a regulator, and that is different.
The amendment would delete the regulation-making power and place a duty on the director to require institutions to supply him with details of the financial assistance provided to students. That would be a separate return in addition to the widening participation strategy. The noble Baroness is concerned that picking out part of an institution's strategy—widening access—is the wrong approach, so I want to explain the distinction.
In England, institutions are required by HEFCE to produce a range of strategies covering different areas, such as teaching and learning, human resources and so on. We believe that they serve a useful purpose, but they are different from access plans. They are intended to be strategies, as their name suggests. They are general statements of aims and purpose. They may well contain details of what universities hope to do and their expected direction of travel. Access plans are different. They are a commitment by an institution, on the basis of which the director agrees that the institution can raise its fees above the standard level. They may have some of the same elements, but we expect them to be more specific. They are firm commitments.
To ensure that the institutions need not provide returns to the director and to HEFCE, we have, I suggest to the noble Baroness, Lady Sharp of Guildford, made it clear that we expect that access plans will subsume widening participation strategies after 2006. That position has been discussed with the sector and with the Higher Education Funding Council for England. It has also been discussed with, agreed with and welcomed by the Better Regulation Task Force, which has been concerned to minimise the cost of producing plans and avoid unnecessary bureaucracy. The amendment would create uncertainty for institutions in preparing and producing their access plans. It would add to, rather than reduce, bureaucracy.
Amendment No. 48 is an unusual amendment. The idea that a funding council might make regulations is probably unprecedented. Its spirit is consistent with Amendment No. 47, in that it would give the funding councils the right to decide how long an access plan should last. I do not agree that that is the right way forward. I have explained why access plans should not be coterminous with other plans or strategies, and I do not believe that responsibility for determining the duration of access plans should rest with the funding councils. It is right that the Secretary of State or the National Assembly for Wales should make the regulations, which will, of course, be subject to parliamentary scrutiny, as I have already said.
Through Amendments Nos. 51 and 53, the noble Baroness seeks to prevent the director or the relevant authority in Wales imposing any sanctions for breaches, other than those relating to fee levels. It is not unreasonable that an institution's plan should be looked at and monitored as a whole. Approval of a plan confers on an institution the right to charge higher fees, providing a significant stream of income. We have always made it clear, in England, that that should come with a responsibility to ensure that access is protected and broadened, a responsibility that we envisage being enshrined in the commitments that universities will make as part of their access plans. It is a something-for-something arrangement.
It is important that universities and students should know that those are real commitments. The existence of possible sanctions is a part of that. I have said on several occasions that I do not expect the sanctions to be used other than rarely, if ever, not least because I recognise the sincere desire of the sector to ensure fair access based solely on merit and ability. In the Bill and in our draft regulations, we provide a framework that constrains the relevant authority's action on sanctions, but they are still an important part of making a reality of access plans. They are not simply a commitment to stick to the fee level; they should be considered as a whole. It is the measures that an institution proposes to protect and widen access that the director will consider when making a decision to approve a plan.
Such commitments are important—if an institution unreasonably breaks or ignores them, some sanctions may follow. It may be that traffic wardens do not go down well with the people to whom they give penalty notices, but the principle that there should be consequences for parking in the wrong place is not a bad one. It is important that we are clear about that; otherwise, the commitments will be just aspirations, when they need to be firm commitments.
I recognise the need to provide safeguards and to avoid sanctions being applied unreasonably, which is also a concern that was expressed by noble Lords. For that reason, we have brought forward a government amendment to achieve the intentions expressed so eloquently in Committee by the noble Lord, Lord Butler, who, sadly, is not in his place. Amendment No. 52, which stands in my name, will ensure that sanctions cannot be imposed on any institution that can demonstrate that it has taken all reasonable steps to comply with the provisions of the plan.
In summary, the amendments create a great deal of uncertainty and bureaucracy. I have not even begun to look at issues such as what would happen if the director and HEFCE disagreed about a component that was common to plans and widening participation. That would simply be unworkable. The director needs to be appointed in the way that we have said. I have given reassurances from all those who are involved, on which I hope the noble Baroness will reflect.
We expect the director to operate independently within a clearly defined framework. He or she will be appointed fairly, in accordance with the Commissioner for Public Appointments' Code of Practice. Regulations will be open to scrutiny by Parliament. On the basis of everything that I have put on the record, I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, I thank the Minister for that careful reply. I think that she has some misconceptions about what the amendments would do. She has not reassured me at all about the appointment of the director. Recently, we have had too many examples of appointments to public bodies that have not demonstrated complete independence and have led to widespread criticisms of "cronyism" or "creatures of government".
I find it surprising that the Minister resists so strongly what seems to us to be a fairly reasonable and mild amendment. The processes should be widely recognised as exemplary practice of the Civil Service Commissioners' recruitment code. It was a carefully conceived code to ensure that there is impartial recruitment and that no political patronage is possible. The Minister has acknowledged that we have withdrawn any suggestion that this person is a civil servant, although I believe that civil servants are independent in their mind and in their advice, exactly as my noble friend said. Nevertheless, this is an appointment to a public body: it is right that the most exemplary practice should be used.
Briefly, I turn now to three points made by the Minister. First, I am surprised she said that our amendment excludes from the plan a way for universities to describe how they will improve access to higher education for those groups that, currently, are poorly inclined to apply. That is an aspiration which we share. Amendment No. 34A clearly states that the plans of the institutions,
"must include provisions relating to the promotion of equality of opportunity in connection with access to higher education".
That clearly states that the plans must include the steps that will be taken in order to provide access. I simply find the phrase "groups under-represented in higher education" ambiguous. It is simply a linguistic matter that we have put much more clearly and in a much more straightforward way.
Secondly, I turn to the Minister's reservations about whether OFFA has any suitable powers left. The noble Baroness, Lady Sharp, powerfully said that the power to approve the plan is extremely important. If a plan is not approved, fees cannot be charged and a great deal of money will be lost. In addition, if a plan is approved but the university is not up to scratch, the fact that every year the director of OFFA will report to Parliament on progress is a very powerful incentive. What university wants Parliament to be told that it has not been pulling its weight in respect of promises that it has made?
Finally, the Minister said that she thinks that we have left the universities "freewheeling"—a phrase that I think was used by the noble Baroness, Lady Lockwood. Of course, the funding councils already issue quite precise guidance about the format and timing of university strategic plans, which they will continue to do. Therefore, universities will not be freewheeling. They will, however, be able to be creative.
I am sorry but I am not convinced by what the Minister has said. I wish to test the opinion of the House.
moved Amendment No. 24:
Page 14, line 6, at end insert—
2 (2A) The Director is to have such functions relating to plans as are conferred on him by or under this Part. (2B) In addition, the Director may, where he considers it appropriate to do so— (a) identify good practice relating to the promotion of equality of opportunity in connection with access to higher education, and 7 (b) give advice about such practice to publicly-funded institutions. (2C) In subsection (2B)(a), "publicly-funded institution" means any institution receiving grants, loans or other payments from the Higher Education Funding Council for England under section 65 of the 1992 Act or from the Teacher Training Agency under section 5 of the 1994 Act."
My Lords, we debated in Committee whether the Director of Fair Access should have a role in promoting best practice in fair access and I said then that I was willing to accept in principle the amendment tabled by the noble Baroness, Lady Perry, but was unable to do so because it was technically defective.
The director's main role is to regulate fees, but through his overview of access plans he will also be well placed to see what interventions are most successful, and to make institutions aware of one another's successes. To that extent, he is likely to have a view on good practice and would certainly be able to offer further guidance to any institution that sought it. Certainly we would hope that there would be regular dialogue between the director and organisations such as HEFCE and its Action on Access co-ordinators to ensure that best practice is shared widely.
I have therefore tabled my own amendment, as promised, which I believe embraces the spirit of the amendment moved by the noble Baroness, Lady Perry, giving the director a power to identify and promote good practice. I beg to move.
My Lords, a number of the concerns which most of those involved in higher education have expressed in relation to OFFA and the Director of Fair Access have been mitigated by amendments already accepted and others which we hope will continue to be considered and perhaps passed today.
However, I would still like to understand precisely what the Director of Fair Access will achieve in practice. We are assured that he or she will not be involved in admissions. Amendment No. 24 usefully clarifies that he has to have functions relating to plans. That we already knew and the focus, as we have just discussed, is on those plans. Clause 31 indicates that every university charging top-up fees must have a plan for every course, to promote higher education and equality of opportunity in connection with access. Reference is made to groups that are under-represented in higher education. That was the phrase questioned by my noble friend Lady Perry, but I have incorporated it in my amendment.
I take it that it is the Minister's understanding that these plans will include grants or bursaries for under-privileged students, and that these will vary within a given university from subject to subject. Presumably these grants or bursaries refer to the costs of student maintenance. However, I am still uncertain as to whether they will include remission of fees and, if so, to what extent they will duplicate the loan provisions already planned for.
My main point, however, and the reason that I felt it appropriate to table this modest amendment, is that the central problem with access to higher education is that of encouraging applications; it is not a question of what happens to the applications once they have been received by the universities. To that extent, the nub of the problem does not lie within the universities themselves; the under-representation lies in the applications, not in the admissions. If prospective students will not apply, they cannot be admitted. I remain doubtful about the efficacy of all these plans and modifications of plans in achieving that objective.
In Committee, I tabled an amendment drawing attention to the circumstance that all the key decisions are, in practice, made in the schools by the pupils, who decide whether to apply for a particular course at a particular university or whether to apply to university at all. It is there that pupils decide whether to apply.
In a recent letter the Minister kindly provided me with some figures, for which I thank her. They simply underline the case that this is an area of deep concern. I shall not quote extensively from the figures, which are well known and refer to participation in higher education by social class. I note that in the most recent year for which the Minister sent me figures—2001—class one, the professional class, had a representation of 79 per cent; then, as you go down through the classes, the percentage reduces until you come to class five, the unskilled class, which had a representation of 15 per cent.
I totally agree with the Government, Universities UK, HEFCE and everyone present that it is a sad reflection on our current system that that low figure of 15 per cent is to be compared with 79 per cent for professionals. The question, however, is how to modify the situation.
Does the Minister really imagine that every department in every university in the land busily writing plans at the behest of the Director of Fair Access is going to greatly change matters? The lack of ambition lies in the schools; the ignorance of opportunities lies in the schools; and sometimes the prejudice against some of our best universities lies in the schools. As we all recall, that prejudice has been promoted rather than countered by some senior Ministers in the Government. If the noble Baroness wishes me to be more explicit, I shall be happy to oblige; otherwise, I shall not trouble the House with a familiar story. It is that kind of prejudice that leads to low applications and low ambitions.
That is the motivation behind my very modest amendment. I have taken the point eloquently made in Committee by the noble Baroness that extra obligations imposed upon schools may be unwelcome, so there are none in the amendment. I have taken her point that data will be available elsewhere, so I have not put any obligation upon the director to publish data. I note, too, the anxiety of the noble Baroness, Lady Warwick, that the powers of the Director of Fair Access should not be unduly widened, and I share her concerns.
I have come to the conclusion that fiddling around with plans is unlikely to be enough. My prediction is that the introduction of top-up fees—albeit met by student loans—will have a negative impact upon access which all manner of plans will do little to counter. I believe that the effects of the Bill will be to diminish fair access. That is my concern, of which the amendment is but a pale reflection. I fear that the participation of members of groups who are under-represented in higher education will not significantly increase as a result of the Bill. I shall not go over that ground again.
Students in the lower financial groups, particularly group five, are debt averse. Although noble Lords have made clear how very fair, in a sense, are the provisions for loans to meet the fees, it is also clear that students from families in group five are much less likely than students from families in group one to take up such loans and their parents are much less likely to pay those loans off for them.
The unfortunate director does not even have a clear mission other than adjudicating upon these possibly irrelevant plans. The issue is applications—applications by people who are at school when they make them. Unless we give at least some recognition to this factor, I predict that the entire process will be counter-productive. That is the purpose of my modest amendment. I realise that if it is carried it will not significantly change the situation. My fear about the Bill is that in two or three years we shall be lamenting its negative effects because students—particularly students from poor families—are debt averse. Although the plans are no doubt intended to counter this, the real problems lie in the schools, and the Bill does nothing at all to address that factor. I beg to move.
My Lords, I rise to speak to Amendment No. 25 in the group. I thank the Minister for bringing forward Amendment No. 24 in response to our discussions in Committee. It gives the director the duty of identifying good practice and giving advice about it.
Amendment No. 25 seeks to add to that, not the original duty of providing appropriate training—which previously the Minister had said would be inappropriate—but simply the duty of promoting appropriate training. There are very good precedents for this; many other government departments promote training for matters in which they have an interest. For example, when I chaired the Chartermark Judges Panel, we promoted training around the country to help people who wished to apply for a Chartermark. There are many examples of this kind.
Secondly, I believe that training will be urgently needed for the reasons so powerfully given by the noble Baroness, Lady Lockwood, when she spoke to an earlier group of amendments. Reaching out to inner city schools, further education colleges and people in their twenties who are tucked away in jobs or in their homes, is very difficult. There will be a need for a great deal of expertise to be shared with the universities which have not yet made much inroad into widening access by those which have.
I hope the Minister will feel able to accept Amendment No. 25, which is very much along the lines of what she said in her response to the earlier amendment in Committee.
My Lords, I am a little puzzled by the speech of the noble Lord, Lord Renfrew, in support of his amendment. I do not have too much difficulty with the amendment, but some of his statements in support of it puzzled me.
I am particularly worried by his suggestion that every department in every university would be writing plans. That does not seem to me to be a likely consequence of what is being proposed. It might be true of the research assessment exercise, under which universities are being assessed department by department, but in this case a central plan would be produced by that part of the university concerned with dealing with applications from students, with the marketing of the university and with the outreach of the university. It would not require every department to write a plan. Surely the noble Lord would agree with that.
I also wish to comment on one other matter that he raised. He said that it is entirely up to the schools to improve the range of students applying to our universities. I accept that the schools have an enormously important part to play, as do parents and others who influence young people, but I think that the universities have a part as well. It is a partnership between the student, their family, friends and those who influence them, schools, further education institutions and employers. We must not keep thinking that everybody who goes to university these days comes from schools. We know that huge numbers of mature students study in our system, many part time, and it is employers who count.
In dealing with schools, FE colleges or employers, the universities have to be proactive. They have to play a role; they cannot simply sit there and wait for people to come, as happened 30 or 40 years ago. Therefore, I want to emphasise something that I did not think was emphasised by the noble Lord, Lord Renfrew. There is a part that universities have to play in supporting wider applications. The way in which universities do this can put people off; it can lead to fewer rather than more people from a wider range of backgrounds going to university.
If I may be anecdotal for a moment, I remember, when I was at Birkbeck, being worried by the very small number of ethnic minority students who were coming to study in an institution which was, after all, giving a second chance to a wide range of Londoners and people from beyond London. I found that we had not done anything to go out and encourage them to come and they did not see it as a place to which they could go. When we did so, however, a large number of students from black and Asian communities in London went there to study.
I support what the Government are doing here because it encourages everybody who works in universities to try harder by a whole variety of different policies to work with employers and educational institutions which support young people, and older, mature, people who want to continue their studies in higher education.
My Lords, in supporting the amendment of the noble Lord, Lord Renfrew, I feel I must respond to the comments of the noble Baroness, Lady Blackstone, on two counts. First, in a number of universities, individual departments will have to make their own plans or at least contribute very heavily to those of the university. Part of what makes it difficult to attract applicants from some schools is the immense gap between what they have done at school and what they will be expected to do at university, and they are very conscious of that. There are particular difficulties in attracting applications to study modern languages, to say nothing of the classics, and mathematics. Special courses have been laid on for years in Cambridge—this would be part of the plan—to introduce candidates who have scraped through their A-level mathematics but no more to concepts that they would never have heard of if they had not had at least a month of special teaching when they came to Cambridge.
On the second point about universities being inactive, I am sure that some have been. However, in 1971, when my husband became principal of Hertford College, Oxford, a very energetic project was already ongoing, which was supported by undergraduates and by a specially appointed Fellow of the college, to talk to pupils in schools in inner cities and try to persuade them to apply to Oxford. So I do not think it is true that universities have been doing nothing for 30 or 40 years. As for the plans, I am afraid they would involve a good deal of work by the university, department by department.
My Lords, I welcome the Government's proposal, even though I am something of a minimalist regarding OFFA's role. I agree with the noble Lord, Lord Renfrew, that if we are to solve the problem of access, the main solution must lie in schools improving achievement at GSCE, achieving increased staying-on rates and achieving increased numbers of students getting at least two decent A-levels. However, I am not with the noble Lord in undervaluing or underestimating the contribution that individual universities can and should make.
I know something of the University of Hull, my own university. I have been engaged with it in taking very determined action in a city which for years had the poorest GCSE results in the country. We went out to young people to get them to raise their aspirations by guaranteeing them a place at the university if they attended a course and did reasonably well. The University of Dundee does the same in summer schools, as does the University of Glamorgan—the University of the Valleys. Universities can do a great deal. In addition, generous bursary schemes will be very influential.
I believe that the essence of the thinking here is to get each university to take personal responsibility for going out to and encouraging those from disadvantaged backgrounds to raise their aspirations and help them to see their opportunities. I am a little doubtful about what OFFA, sitting somewhere with, it is to be hoped, a very small number of people, can do with regard to this. I am not sure that those kids would be very influenced by worthy pieces of paper sent out from some central body. I think it requires personal contact and the people, in great numbers, who can make those personal contacts are the institutions.
On training, I am very glad that the noble Baroness, Lady Perry, has changed the wording of her proposal to "promote". However, I have a problem about the word. I took the trouble to look it up in my dictionaries and I was not much wiser. I am in favour if it means to encourage. In sport, it means taking financial responsibility for; does it mean removing responsibility from universities or minimising it in their decision to train their staff in good practice, as is necessary? I am in favour of encouraging them but not of telling them what to do. I have some reservations about the word.
My Lords, unlike the noble Lord, Lord Dearing, I have no difficulty with Amendment No. 25. It would give the Director of Fair Access the responsibility and duty to promote training. To my way of thinking, to promote training will ensure that appropriate training takes place. Where it is not taking place, there will be a power for OFFA to ensure that or to work through other institutions to ensure that.
Like the noble Baroness, Lady Perry, I think there is a great need for training in this area. The more organisations that are aware of that, the better that will be, so long as their efforts can be co-ordinated. I see that as part of the duty to promote that OFFA would have.
My Lords, I was much taken with what the noble Lord, Lord Renfrew, said about the importance of raising aspirations. I shall not go over ground that has already been covered in terms of the need for this to be a "both/and" provision, not an "either/or" one. It is about all those who have the ability to empower young people or help them make the right decisions to act in their various different ways to achieve that. There is a great deal of unanimity among noble Lords about that.
There is an important distinction to make between the role of the Director of Fair Access and the role of the institutions. We have said that the role of the director is, in principle, to approve and monitor the access plans, which set out the measures that the institutions are taking. In return, as we described—this is the something for something—they will be able to raise their fees.
I believe that the director's role in overseeing access plans will result in more applications from under-represented groups. But it is important that it is the institutions themselves that do the outreach and provide the bursaries. It is they, not the director, that will be directly involved in encouraging applications from under-represented groups, building on—as has been indicated many times—the good work already being done in this area. The director's role is that of regulator. It is important that this is in the context of all the other players who help young people strive for greater opportunities in their lives.
The director will have a role in identifying and disseminating good practice. However, it is the good practice of institutions that the director will be identifying rather than his own. Therefore, although I share the noble Lord's concern for fair access, I cannot agree that the duty to encourage applications should lie directly with the director. It should be a duty placed on institutions by the commitments they make in their plans, should they decide to charge higher variable fees. On that basis, I hope that the noble Lord is able to withdraw his amendment.
Amendment No. 25 would add a duty for the director to promote appropriate training to the power to identify and advise on good practice proposed by my amendment. The noble Baroness will not be surprised to hear that there is a technical defect with the amendment because "may . . . have a duty" is not correct. However, I recognise what the noble Baroness seeks to achieve. I am grateful for her explanation of the change that she has made from Committee by asking the director to promote such training. However, I assure the noble Baroness that an amendment is not necessary to achieve that aim because the director would be empowered, through the government amendment that I put forward, to promote opportunities for training and encourage institutions to take them up, although it would be for the institution to decide whether to do so.
I acknowledge the importance of training and development. As the noble Baroness will know, probably better than me, a lot of informal training is already available through individual institutions—Aimhigher Partnerships, Action on Access, the National Disability Team and the Learning and Teaching Support Network—a great deal of which is shared at conferences and workshops held by different bodies. I have every expectation that the director will use these opportunities to promote good practice.
I do not feel that it would be right to place a legal duty on the director to promote appropriate training. He is empowered to promote good practice through the government amendment, and on the basis that he is likely to become aware of a great deal of such practice, including training, I am sure that the director will, over time, play a significant role. I am not sure that giving him an explicit duty adds anything in that context. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, I have no wish to trouble the House with a Division on my amendment, so I shall withdraw it in a moment. I agree with much of what has been said and with many of the remarks of the noble Baroness, Lady Blackstone. I fully accept that it is important that universities continue to make every effort to attract applicants to their courses in very much the manner described by the noble Lord, Lord Dearing. The problem is that I feel that, although all these multiple efforts such as university lecturers rushing round the country on buses and talking in schools are worthy, they will not really get to the heart of the problem. However, I have already indicated that in my speech and I do not wish to detain the House, so I beg leave to withdraw the amendment.