Higher Education Bill

– in the House of Lords at 5:09 pm on 14th June 2004.

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Further consideration of amendments on Report resumed on Clause 31.

Photo of Lord Rix Lord Rix Crossbench

moved Amendment No. 40:

Page 15, line 2, at beginning insert "subject to the approval of the Director of Fair Access under subsection (4A) below,"

Photo of Lord Rix Lord Rix Crossbench

My Lords, my probing amendments, Amendments Nos. 40 and 43, relate to the tax and benefit implications of bursary schemes.

It was said of John Erskine, the Earl of Mar—a distant kinsman of my noble friend Lady Mar, who is certainly non-Jacobite—after he had lost the battle of Sheriffmuir, that he was a better Churchman than he was a general because his right hand knew not what his left hand was doing. I have tried to imagine our present Secretary of State for Education and Skills clad in tartan, claymore in hand, striding through the heather; on the whole, it is an exercise in the imagination best left unattempted. Yet there are concerns that the Secretary of State's policies have a passing resemblance to those of the ill-fated Jacobite general.

There is a concern that our current taxation and welfare benefit systems will take away with the Chancellor's left hand what the universities through their schemes of financial assistance provide with their right hand. There is a concern that all these arrangements will generate much churning of finances but leave few of the neediest students better off. Indeed, there is also concern that mature students and part-time students will be at particular risk of being net losers.

At the very least there needs to be an urgent ministerial statement to confirm that students will not lose benefits or be penalised through the tax credits system if they are in receipt of bursaries. I look forward to hearing the Government's response. I beg to move.

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

My Lords, noble Lords will know that I am deeply concerned about the lack of clarity about whether bursaries and government grants will be taken into account in the assessment of eligibility for means-tested benefits. It is not at all clear that the very poorest students will not have the support given to them with one hand taken away with the other, as the noble Lord has said. Furthermore, it is by no means clear that universities will not be required by OFFA to use precious resources to provide bursaries to students, only to see the Government claw back the same amount or even more by reducing the appropriate benefits. We are particularly concerned that students with children might lose tax credits.

I understand that there are complicated arguments involved but I should be grateful if the Minister could assure the House that the Government will recognise that university students from poor backgrounds will not lose benefits as a result of the Bill. After all, the Government are committed to providing a significant increase in support for students on the grounds that that will enable and encourage the poorest to participate.

Universities have agreed to offer bursaries and to submit their plans in this regard to OFFA for approval on the grounds that the poorest students may need additional financial support and incentives to apply to university. We know that, when striving to attract poor students to apply to university, the perception can be as important as the reality. The perception that students will lose income from benefits may constitute a major barrier to participation from this group. I urge the Government to consider that university students are a special case and should be treated as such by government. I look forward to the Minister's reply.

That said, I note that the amendment tabled by the noble Lord, Lord Rix, refers to OFFA having a role in approving provisions for financial assistance. That is not what OFFA will do, as I understand it. I think that it is important to hold on to the principle that OFFA will look at an institution's widening participation strategy as a whole and make a summative assessment, rather than approving individual components of it.

I am also not convinced that it should be OFFA's role to sort out the problem of eligibility for means-tested benefits. That is a matter for the Government. Having said that, I support the thrust of the presentation by the noble Lord, Lord Rix, and I look forward to the Minister's reply.

Photo of Lord Triesman Lord Triesman Lords in Waiting (Whips)

My Lords, happily devolution means that my right honourable friend Charles Clarke will not have to go to Scotland on any war-like missions. I ought to tell the House that so expert are the civil servants who are helping us on this that they have already given me a briefing note on Sheriffmuir and the battle of 1715, just in case there was any gap in your Lordships' knowledge. Apparently, there are some who say that we won, and some who say that they won, and some who say that no one won at all. I think that I have got it right.

I welcome the opportunity that these amendments provide to explore the impact of bursaries and other financial assistance on students' entitlement to welfare benefits and their tax status. I am grateful to the noble Lord, Lord Rix, for providing this chance to debate further an issue that has been raised by Universities UK and by the noble Baroness, Lady Warwick, who has played a vital role in advocating this case.

Let me deal first with the question of tax status and tax credits. Section 331 of the Income and Corporation Taxes Act 1988, the ICTA, states that income arising from a scholarship held by a person receiving full-time instruction at a university, college, school or other educational establishment shall be exempt from income tax, and no account shall be taken of any such income in computing the amount of income for income tax purposes. In this section, "scholarship" includes an exhibition, bursary or any other similar endowment. The Inland Revenue has advised us that in practice any grant of money for support of students in full-time education would qualify. As for tax credits, we have been advised that income that is exempt from income tax by virtue of Section 331 of the ICTA is disregarded in calculating a claimant's income. Therefore, it appears that bursaries and other financial assistance that institutions will offer to full-time students will not affect students' tax status or entitlement to tax credits.

The position with benefits, as was explained to noble Lords in Committee, is more dependent on the purpose for which the additional assistance is given. Assistance towards fees or course costs is normally disregarded for benefits purposes. I expect that institutions' proposals on financial assistance will be many and varied. The impact of different schemes will no doubt vary according to students' individual circumstances. For example, a student who had the option of cheap lodgings with friends or relatives might not be persuaded by cheap halls of residence, should an institution decide to offer its financial assistance in the form of subsidised accommodation. The same principle will also apply in the case of welfare benefits. In other words, students on welfare benefits can look at the bursary options available to them in deciding which best suits their needs.

We are working closely with the Department for Work and Pensions to reach an agreement on arrangements for the small proportion of full-time students who can simultaneously be eligible for benefits. Our objective, like that of the noble Lord, is to ensure that students receive real additional benefit from grants and bursaries, although I cannot give a firm commitment at this stage on the precise outcome of those discussions. However, in the interim period, I do not think it right to pass the burden of responsibility for this issue on to institutions through the Director of Fair Access. I hope that the noble Lord agrees with that point and will decide to withdraw his amendment.

I confirm that we are working actively with the DWP on this. Only a small proportion of full-time students receive benefits, but they are in the most vulnerable groups, and it is therefore right that we should pay the greatest attention to their position. I am referring to lone parents and those with disabilities. Fee support and targeted support are not set against benefits, but support for living costs is taken into account in assessing benefit entitlement.

We have reached an understanding with the DWP that the HE grant, which will be introduced for new students in 2004–05, will not be taken into account in assessing entitlement to means-tested benefits. Looking forward to 2006–07, we are working with the DWP to reach agreement about arrangements for the proportion of full-time students who are in receipt of benefits. Our objective, like that of the universities, is to ensure that students receive real additional benefit from this grant and bursary. We hope to be able to ensure that.

Photo of Lord Rix Lord Rix Crossbench

My Lords, before the Minister sits down, the stress of his answer, which is largely acceptable, centred on benefits accruing to full-time students. He made no mention of part-time or mature students. Will he elaborate a little on that?

Photo of Lord Triesman Lord Triesman Lords in Waiting (Whips)

My Lords, mature students could be full-time or part-time. They would not necessarily be only part-time, although I do not take that to be the imputation of the question. Our aim in discussions with the DWP, which have not reached a conclusion because of the intricacy of the issues, is to ensure that grants and bursaries of any kind should not damage the student's benefit regime.

Photo of Lord Rix Lord Rix Crossbench

My Lords, with that assurance and, like many noble Lords in the Chamber, not being totally au fait with the tax system, I am happy to accept the Minister's response. I hope that the noble Baroness, Lady Warwick, is satisfied—

Photo of Lord Rix Lord Rix Crossbench

My Lords, so far—and it is a question of so far. We will look closely at the Minister's response. I shall consult with various vice-chancellors and directors of finance at one or two local universities. If I need to return to the subject at Third Reading, I shall do so, but at the moment I am happy to withdraw my amendment. I hope that the Minister's answer will suffice.

Amendment, by leave, withdrawn.

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

moved Amendment No. 40A:

Page 15, line 2, after "assistance" insert "and high quality financial guidance"

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

My Lords, these amendments concern the broad question of how to manage money responsibly. At Second Reading, I used a shorthand expression "debt education", which was perhaps not entirely helpful. In Committee, the Minister drew a distinction between what she called "traditional debt" and "contingent repayments". I accept that they are not the same thing, but I want to return to the issue, supported by the noble Lord, Lord Puttnam, who is in his place but has asked me to speak to these amendments, and the right reverend Prelate the Bishop of Manchester, who has considerably more students in his patch than I have.

In discussion of Amendments Nos. 86A and 87A in Committee, the noble Lord, Lord Puttnam, made a good case for the need for high-quality financial advice for students. The Government need to acknowledge that they must be the default provider. The amendments before the House today take account of that discussion.

Some students, particularly those outside the qualifying thresholds, will find themselves under increasing pressure. Others who are entitled to the maximum support may find themselves in receipt of cheques for substantial amounts of money which they will have to manage. In the earlier debate, there was strong support for the amendment on the provision of financial advice and the responsibility which government and the institutions need to take. It was acknowledged that many are already doing so.

However, if the provision of advice is over-burdensome for regulatory reasons, perhaps guidance would be more acceptable. I trust that the word "advice" is not problematic in the second amendment as others will be providing it.

There are difficulties in asking universities to provide ongoing financial advice or guidance for graduates up to 25 years later. The amendment would help ensure that students were properly equipped to know where to seek support in the future.

I shall go briefly into the question of the citizens advice bureaux. The noble Lord, Lord Phillips of Sudbury, who wishes to be associated with the amendments but did not get his name to them in time, spoke to me this evening. He told me that citizens advice bureaux are sympathetic to the idea of endeavouring to supply a service to universities. There are a thousand CABs in the country, and a major commitment to debt advice is part of their remit.

In conclusion, I shall, at the risk of boring your Lordships, use the word "signal" for the third time this evening. The amendments would provide a signal. It is not just that financial support is necessary, as many of us believe, in information and guidance as well as cash if students are to have the best opportunity to thrive. The amendment will be a signal—I end on a slightly lugubrious note—that will help make the Government's higher education finance policy marginally less unacceptable to those who have been opposed to it. That is the bottom line of my enthusiasm for the amendments, but I hope that I indicated it at a rather higher level earlier. I beg to move.

Photo of Lord Shutt of Greetland Lord Shutt of Greetland Shadow Minister, Northern Ireland Affairs, Deputy Chief Whip

My Lords, I am inclined to support the amendments, although I have a reservation. Amendment No. 40A refers to "high quality financial guidance". That sounds good, and it had better be good if we make the amendment. The Bill says,

"to provide, or secure the provision of".

I suspect that it had better be the latter. We have heard about the deprivation of universities, but one wonders where the liability will lie if the advice is not very good. It would be better to have such advice given by people who are suitably qualified and who will carry the can, rather than placing another burden on the universities.

It is certainly right that people who do not have a clue how to organise themselves financially should have a clue and that such advice should be provided. However, we are talking about advice to people taking on different forms of debt or, in a minority of cases perhaps, advice on making some form of investment. There should be proper guidance, and the people who give it should be properly qualified.

Photo of Lord Puttnam Lord Puttnam Labour

My Lords, I identify entirely with the remarks made by the right reverend Prelate. Everything that I said at Second Reading and in Committee related to the quality of advice, which should come from the most expert sources that we can find. It is not a complicated matter.

I take issue to some extent with those who say that someone seeking graduate education ought to have the kind of inquiring mind that will automatically seek out advice. That just is not true. I shall not trouble the House with it, but I have any amount of anecdotal evidence that makes it clear that very bright students are perfectly capable of getting themselves into the most appalling mess in such situations. It helps neither the House nor the students to pretend otherwise.

In fairness, I must say that the Minister has been helpful. We have continued the discussion, and we will have some meetings this week with the sort of high-quality advisers to whom the noble Lord, Lord Shutt of Greetland, was referring. I have every hope that we will not have to press the issue at Third Reading. That would be unfortunate. There is no particular reason why such an issue must find its way into the Bill, but there is a feeling around the House that the Government must say something to make it clear that they are conscious of the need to ensure that some form of default provision is available to students who need it.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

My Lords, I am grateful to the right reverend Prelate the Bishop of Portsmouth and my noble friend Lord Puttnam for bringing us back to this issue. I shall not detain the House for long because, as my noble friend Lord Puttnam said, we are continuing our dialogue. This week, we are meeting others to discuss those issues further. I, too, have the ambition that my noble friend and the right reverend Prelate will not need to bring this matter back at Third Reading.

As interesting as the comments about the citizens advice bureaux were, members of the National Association of Student Money Advisers—NASMA—already provide that advice to students. Of course, they have specialist knowledge of student affairs and finances. I am not suggesting that the CAB is not an important organisation, but we just need to be aware that there are organisations in place.

Amendment No. 40A would change one of the provisions of an access plan; namely, the provision of financial assistance to students. I appreciate that in their wording of the amendment the right reverend Prelate and my noble friend have listened to what I said about advisers having to be licensed by the Office of Fair Trading. But changing the word "advice" to "guidance" does not solve the problem, although I suspect that my noble friend and the right reverend Prelate were hoping that it might; in fact, it would still be the same.

All through the Bill, we have been very careful to avoid overburdening institutions with the contents of access plans. Noble Lords will not be surprised that I am not tempted in that direction with this amendment. In Committee, we talked about how much the Government are doing in terms of the website, leaflets and so forth, as well as the work that is being done by the National Union of Students, which is critical. There is nothing like peer groups—I am not sure whether that is another pun in your Lordships' House—to put across the case.

My noble friend Lord Puttnam, in particular, knows that Amendment No. 40B would create a difficulty of interpretation—I am not really sure of what the wording would become. I know that my noble friend is interested in looking at what more can be done as regards national helplines, what the Government might do and so forth. I have already indicated that NASMA does important work.

I am not tempted by the access plans. I am continuing to have meetings with my noble friend Lord Puttnam—the right reverend Prelate is always welcome to join us—in order to determine what we can do between now and Third Reading to ensure that we do not have to debate this matter again. On that basis, I hope that the right reverend Prelate will feel able to withdraw the amendment.

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

My Lords, it is always a pleasure to watch the Minister like an angel dancing on the pinhead. I am ready to enter into dialogue and future non-claymore battle over this. I graciously beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 40B not moved.]

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

moved Amendment No. 42:

Page 15, line 12, at end insert—

"( ) Regulations made under subsection (2) may not require a plan to include provisions relating to the criteria for the admission of students."

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

My Lords, in Committee, the Minister indicated that she was willing to accept my amendment, which would prevent OFFA requiring institutions to include in their plans matters relating to admissions. I am grateful for that. However, I must confess to the House that in Committee I failed to move the amendment in the appropriate place. With apologies, I therefore wish to move it now.

On Question, amendment agreed to.

[Amendment No. 43 not moved.]

[Amendment No. 45 not moved.]

Clause 32 [Approval of plans]:

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

moved Amendment No. 46:

Page 15, line 43, at end insert—

"( ) The Secretary of State may not make regulations under this section unless a draft of the statutory instrument containing them has been laid before Parliament and approved by a resolution of each House."

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

My Lords, in Committee, I made it clear that I welcomed the Government's decision to bring forward amendments that accept the recommendations made by the Delegated Powers and Regulatory Reform Committee and subject regulations under Clauses 31 and 35 to the affirmative resolution procedure. That was a very positive move. However, I also indicated that I thought that regulations under Clauses 32, 33 and 34 should be similarly subject to the affirmative procedure. The Government did not accept my argument, although the Minister did agree that they would consult with the sector on changes to the regulations. That is also welcome. However, since I feel strongly about this point, I want to return to it.

A great deal of what OFFA will do is to be set out in regulations. The Government will have significant power to make OFFA more interventionist or bureaucratic by means of regulations, which will make it much harder for institutions to work constructively with it. For example, the powers in Clause 32 cover the approval of plans. These regulations may specify matters to which the relevant authority is or is not to have regard in making any determination relating to approval.

Universities UK—as I have done on each occasion, I declare my interest as chief executive—never much liked this provision, and the noble Baroness, Lady Sharp, will recall that we strongly supported the Liberal Democrat amendment accepted by the Government in Committee in another place which sought to narrow the scope of the Secretary of State to dictate the terms by prescribing in regulations cases in which the relevant authority must or may not approve a plan. That provision was removed by the Liberal Democrat amendment and was an important victory.

But the fact that the Secretary of State retains the powers contained in Clause 32(5) means that it is vital for Parliament and the sector to have some opportunity to influence what the regulations dictate. Clauses 33 and 34 also contain significant regulation-making powers. For example, Clause 33 relates to the duration of plans, currently expected to be five years, which we think strikes the right balance between keeping them current without them becoming overly burdensome. But what if a future Secretary of State were to specify that plans have to be renewed every year? That would constitute a very significant increase in the bureaucratic burden on institutions.

I hope that my noble friend will accept that the regulations under these clauses ought to be subject to the affirmative resolution procedure and I look forward to hearing what she has to say. I beg to move.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, I think I am right in saying that it was claimed in Committee that because the Delegated Powers and Regulatory Reform Committee had not said that this should be dealt with by affirmative resolution, it meant that it thought it should not.

Speaking in general about the committee, of which I am a member, I should make it clear that the committee advises the House when it feels strongly about something, but it does not always consider matters very carefully. I have forgotten whether the committee considered this in detail. However, clearly it did not feel strongly or it would have said that this should be under the affirmative resolution procedure.

However, it is for the House to do what it wants—always. The committee merely advises the House. I hope, therefore, that the Minister will not feel that she has to take the line of resisting the amendment because the committee expressed the opposite view. I think that it expressed no view. I contribute these words in the hope that they are helpful.

Photo of Baroness Sharp of Guildford Baroness Sharp of Guildford Shadow Minister, Education & Skills

My Lords, I added my name to the amendment because the noble Baroness, Lady Warwick, is quite right to point out that much of what is to be done in this Bill will be by regulation. It is therefore appropriate that the House should keep an eye on what is happening. I think it is part of open government that we should not only know but should also take a positive view on such matters when they come before the House. Therefore I endorse the amendment moved by the noble Baroness.

Photo of Baroness Lockwood Baroness Lockwood Labour

My Lords, I hope that my noble friend on the Front Bench will be able to accept these amendments. They relate to some very important clauses in the Bill about which concern has been expressed. It would be in the interests of the success of the Bill as a whole if these regulations were dealt with under the affirmative procedure and could therefore be automatically debated before coming into effect.

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

My Lords, the amendment has a great deal of sense to it and I hope that it will receive support from the Minister.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

My Lords, I have listened carefully to the debate on these issues. I appreciate the concern that there should be robust safeguards and I recognise the importance of having them. We have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee that regulations made under Clauses 31(2) and 35(2)(c) should be subject to the affirmative resolution procedure. Noble Lords will know that we tabled two government amendments to that effect in Committee.

I should say to the noble Baroness, Lady Carnegy, that I always assume that the Delegated Powers and Regulatory Reform Committee considers these matters very carefully. I hope that members of that committee will recognise that, with respect to the Bills for which I am responsible, I take great note of what it recommends. Therefore, when it tells us not to do something, it is not that we ignore it; it is simply that we anticipate that it does not have the same strength of feeling about it. I think that that is the only basis on which I can proceed.

I know that my noble friend has great concerns about this issue. However, we have said that the first regulations—which in a sense, from my noble friend's point of view, and that of other Members of your Lordships' House, are the most critical—will be laid as one set of regulations and they will all be subject to affirmative resolution. I hope that that will allay noble Lords' concerns that something might slip through under the negative procedure. It is critical that the House should understand what will happen.

In my experience of your Lordships' House, there is no suggestion that regulations introduced under the negative procedure are not subject to parliamentary scrutiny. Noble Lords have prayed—and I am sure that they will continue to pray—against regulations and other measures about which they have concerns.

We have accepted what the Delegated Powers and Regulatory Reform Committee said. In addition, we will introduce the first regulations under the affirmative procedure; we have left the negative procedure for subsequent regulations. I believe that that fits very well with the normal parliamentary procedures of your Lordships' House. I hope that the noble Baroness will be satisfied with that.

Finally, I should say to my noble friend that we have already shown our willingness to be open by publishing draft regulations far in advance of the need to lay them. It is our policy to do so. I hope that in the light of those reassurances my noble friend will feel able to withdraw the amendment.

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

My Lords, I thank the Minister for her thoughtful reply, which I shall obviously consider. I shall need to look at the constitutional consequences and think about the matter before deciding whether to return to it at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Perry of Southwark Baroness Perry of Southwark Conservative

moved Amendment No. 47:

Leave out Clause 32 and insert the following new Clause—

"APPROVAL OF PLANS (NO. 2) (1) The Funding Councils shall provide to the relevant authority copies of that part of 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. (2) The relevant authority shall require each institution to provide an account of the financial assistance it has provided to students. (3) The relevant authority shall report to Parliament each year on progress on the plans and on the financial assistance which has been provided to students under the plans."

On Question, amendment agreed to.

Clause 33 [Duration of plans]:

Photo of Baroness Perry of Southwark Baroness Perry of Southwark Conservative

moved Amendment No. 48:

Page 16, line 4, leave out from "made" to end of line 6 and insert "by the Funding Councils"

On Question, amendment agreed to.

[Amendment No. 49 not moved.]

Clause 34 [Variation of plans]:

[Amendment No. 50 not moved.]

Clause 35 [Enforcement of plans: England]:

Photo of Baroness Perry of Southwark Baroness Perry of Southwark Conservative

moved Amendment No. 51:

Page 16, line 18, leave out "or (c)"

On Question, amendment agreed to.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

moved Amendment No. 52:

Page 16, line 25, at end insert—

"( ) The governing body of an institution is not to be regarded for the purposes of subsection (1) as having failed to comply with the requirement specified in section 23(1)(c) by reason of its failure to comply with any of the general provisions of an English approved plan, if the governing body shows that it has taken all reasonable steps to comply with that provision."

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

My Lords, in response to an amendment tabled in Committee by the noble Lord, Lord Butler—whom I am delighted to see in his place—I explained that I fully support the principle that institutions that take all reasonable steps to comply with the provisions in their access plan should not be penalised when factors beyond their control prevent them from doing what they said they would do. I could not accept the noble Lord's amendment for technical reasons but I promised to take the matter away and consider it, and the amendment is the result.

I have always believed that the director's decisions must be reasonable and the draft letter of guidance to the director makes it clear that an institution's failure to meet milestones should not in itself be grounds for any kind of sanctions. Furthermore the draft regulations require the director to enter into a dialogue with institutions before turning down an access plan or applying a sanction. The director can never reject an access plan outright in the first instance or impose a sanction without giving an institution the opportunity to make its case. He must say if he is minded to reject it and give reasons. The institution will then have an opportunity to make further representations to the director before any final decision is made. Nevertheless, I accept the case for enshrining the principle of reasonableness in primary legislation. It is right that the director must make fair and reasonable decisions and must justify them.

I hope that noble Lords will welcome this amendment, which provides an important reassurance for institutions about how the director will go about widening participation. I beg to move.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, I thank the Minister very warmly for being as good as her word in Committee. I recognise the elegance and the greater rigour of the drafting of this provision compared with the one that I offered in Committee. I stand a corrected and improved man.

I have only one question for the Minister in respect of the amendment. Would it be right, in the interests of consistency, for a similar provision to be included in respect of the provisions for Wales?

Photo of Lord MacGregor of Pulham Market Lord MacGregor of Pulham Market Conservative

My Lords, I wish to speak to Amendment No. 52A, which is grouped with this amendment. As my noble friend Lord Forsyth said earlier, the noble Lord, Lord Sutherland, is not able to be here owing to a prior and unavoidable commitment. Therefore, I will speak to Amendment No. 52A. Having discussed the amendment with him, I hope that the noble Lord will agree with everything I have to say.

We had a good debate on this in Committee, so I can summarise the main points very briefly. The director is a regulator: he has very substantial powers with considerable potential impact on universities. In particular, he has the power to fine universities and prevent them introducing variable fees. It is entirely at his discretion to judge the access plans and there are no opportunities for appeal.

This runs against the spirit of the way in which regulators are now being introduced or, alternatively, the way in which existing regulators are now being amended in legislation. In most cases, there is the opportunity for appeal. It also runs against the principles of the Better Regulation Task Force and, in particular, transparency, accountability and fairness.

The Select Committee on the Constitution, of which my noble friend Lord Norton is the chairman, recently produced a report on the regulatory state, with particular reference to who regulates the regulators. We spent a great deal of time and developed a mass of evidence on all these issues. One of the strongest refrains, as I said in Committee, was the lack of independent appeal against a regulator's decision—not an internal system within the regulator's own ambit of reconsidering a decision but an independent appeal. We recommended that in every case where there is a regulator there should be an independent appeals system.

This also runs against what is happening elsewhere in government at present. We are currently considering the Pensions Bill, which, in relation to the pensions regulator, has not only an internal determination panel but an independent pensions regulator tribunal. Moreover, Clause 6 of the draft Charities Bill makes provision for a charities appeal tribunal. So in most areas of government now, quite rightly, an independent appeal tribunal system is being introduced.

Some have said that judicial review provides that appeal. Frankly, it is not an alternative or a reasonable substitute. There are three problems: on the whole, judicial review deals with the process and not the merits of a regulator's decision; it costs a great deal because lawyers are always involved; and it takes a great deal of time. So it is not really a proper alternative.

It is interesting to reflect that in the case of pensions there would be the alternative of going to judicial review, but the pensions tribunal has also been provided, as a quicker way of dealing with issues. So in most cases now, judicial review is not regarded as a satisfactory way of dealing with appeals.

In our debate in Committee on 25 May, the Minister raised a number of points. She said that the Government have looked at having a separate appeal tribunal and decided that it would be,

"potentially costly, lengthy, complex and of doubtful value".—[Hansard, 25/5/04; col. 1271.]

I hope that I have dealt with "doubtful value" in terms of the general principle.

I would like to make two further points. First, I know that it has been argued—in front of our Select Committee, for example—that independent appeal tribunals can sometimes be seen as weapons of delay or ways of putting forward frivolous appeals. Frivolous appeals are unlikely with universities, but there are other related points. I hope that the need for appeals will not arise on many occasions. I believe that universities would act responsibly. Universities are not the type of organisation to make frivolous appeals. However, most important of all is the 12-week process in the amendment before us, which deals with the arguments about cost, length and complexity. If the process has to be completed in 12 weeks, appeals have to be solved quickly. That short time scale is a helpful way of dealing with those arguments.

My second point of detail is in relation to the composition of the tribunal, and I do not think that the amendment necessarily offers the right answer. The amendment is different from the one in Committee, but I suspect that there is still room for discussion about the composition. One of the best ways would be to follow what the Government have set out in the Pensions Bill for the composition of the pensions tribunal, where it is suggested that the Lord Chancellor—perhaps it will now be the Secretary of State for Constitutional Affairs—appoints the chairman and the members of the panel. The members of the panel are not a permanent group, so no cost is involved. However, if there is an appeal, the Lord Chancellor can select the members of the panel to hear the appeal with the chairman. That seems to be a sensible method.

The Pensions Bill has rather a lot of detailed clauses about the pensions tribunal itself. I am not sure that we need such detail in this case, but if we follow the precedent in terms of the composition, most of the problems will be dealt with. I acknowledge that this amendment is not perfect and probably needs further adjustment, but I think that that can be done.

In Committee, the Minister kindly offered the opportunity of further discussions, which the noble Lords, Lord Sutherland and Lord Norton, and I have had with the Minister. We are extremely grateful for those. I hope that she now understands the type of argument that we are putting forward and our willingness to be flexible in order to reach the right solution. I look forward to hearing what she has to say. I am grateful for the meetings, but what is important is the principle that is now being applied to many other regulators. Therefore, I beg to move.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

My Lords, I know that there is pressure to be brief. I have to catch a train back to Hull this evening, so I do not intend to detain the House for too long. I made clear some of my reservations about OFFA in Committee. Following that debate, I came to the view that, if we are to have a Director of Fair Access, two amendments to the Bill are essential. I am pleased to say that those two amendments are the ones before us.

I am very pleased that the Minister moved Amendment No. 52, following the amendment moved in Committee by the noble Lord, Lord Butler. In Committee, the Minister pointed out quite rightly that a visit to a university campus may make a pupil aware for the first time of the potential of going to university. It may prompt an application for university entry. The problem for the university arranging such campus visits, is that the application may be to another university. It may be doing the hard work to attract students, but that does not necessarily deliver the students. It may do, but one must recognise that it may not.

As my noble friend Lord Renfrew said earlier today—and this point was also made in Committee—it may be difficult to overcome a culture of not going to university. However hard universities and schools work together, there is no guarantee of success, although I fully recognise the value of the efforts made. The noble Lord, Lord Dearing, referred earlier to the work of my own university, the University of Hull, and I can confirm the tremendous work being done by that university. In response to the comments of the noble Baroness, Lady Blackstone, earlier, such work is carried out most effectively at departmental level, and I speak from experience.

For those reasons, the amendment moved by the Minister is extraordinarily important. It ensures a degree of equity and will go a long way to assuage many of the doubts held by universities. It will not in any way reduce the efforts made by universities to widen access but it will reduce the worries that otherwise would exist. I therefore welcome the Government's response to the discussion at Committee stage in tabling this amendment.

The other amendment that I think is essential is Amendment No. 52A, to which my noble friend Lord MacGregor has already spoken. The Office for Fair Access is being established to deal with what the Government see as a particular problem. The director, however, will join an ever-growing body of regulators, as my noble friend said. The new office needs to be seen in that context. Regulators are created in order to take decisions independent of government. Independence of government, however, does not mean that regulators are not accountable for their decisions.

My noble friend Lord MacGregor referred to the recent report of the Constitution Committee on regulators, to which the Minister referred earlier in our deliberations. In that report, we drew attention to the extent to which regulators should be, and to some extent are, accountable to different bodies. These include the bodies that are subject to regulation. It is important that the decisions of regulators are open to the possibility of independent review. There should be some means of challenging decisions through an appeals procedure.

The value of an appeals procedure is generally accepted. That is clear from the evidence presented to the committee. Sir Christopher Bellamy, chairman of the Competition Appeal Tribunal, drew attention to the value of an appeals procedure in improving the quality of decision making and in improving confidence in the process as a whole. The case for having an appeals procedure is compelling; the problem is with the appeals mechanisms that exist.

The decisions of regulators are subject to judicial review. The problem with that, as my noble friend said, is that the scope for review is narrow. Unless regulators have acted ultra vires or irrationally, or against the principles of administrative law, their decisions are not open to challenge. Judicial review is expensive and time consuming, and delay can cause major problems. Many regulated bodies are therefore reluctant to go down that path.

There is no right of appeal on the merits of the case unless Parliament has specifically provided for it. Parliament, however, has variously provided for it. It has not done so in a vacuum. Legislation has been influenced by Article 6 of the European Convention and by developments in the Court of First Instance in Luxembourg, which hears appeals from the European Commission and which has adopted procedures closer to appeals on the merits or a rehearing than just judicial review.

The Competition Act 1998 provides for the OFT and the sector-specific regulators in their own areas to be subject to appeal broadly on the merits of the case. The Communications Act 2003 incorporates a directive allowing for appeals to an independent tribunal and appeals on the merits of the case. The Act, as the report of the Constitution Committee notes, sets a generic precedent. My noble friend has outlined the other legislation under consideration, which extends the scope for an independent appeals mechanism. The Constitution Committee considers that there should be greater coherence and that we should move towards appeals based on the merits of the case. It is important that such appeals do not emulate judicial review in terms of time and cost. We favour fast-track procedures; we also recognise that there needs to be some mechanism to prevent vexatious appeals.

I therefore support the amendment moved by my noble friend. It provides for appeals on the merits of the case and builds in an important and reasonable time constraint. It may be necessary for some tweaking to sift out appeals which are vexatious and designed simply to frustrate the process. However, as my noble friend said, in any case we are not likely to be talking about a large number of appeals.

The case for appeals on the merits of the case is powerful on grounds of equity. It is also something that is likely to become more pervasive, not least because of Article 6 of the European Convention. The Constitution Committee recommends that we should provide for such an appeals mechanism. I hope, therefore, that in the light of the committee's report the amendment will receive a positive response from the Minister.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, looking back to our debate on Clause 31 regarding the contents of the plan for Wales and as the Bill now stands, I should have thought that a means of appeal was absolutely essential. I support Amendment No. 52A on those grounds alone.

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

My Lords, I found the interventions of the noble Lords, Lord MacGregor and Lord Norton, extremely impressive and I shall look forward to reading the detail. I very much supported these two amendments in Committee and I would like to do so again. The amendment tabled by the Minister clarifying that an institution will not be punished if an access agreement agreed with OFFA has no impact on the student body will certainly reassure universities. As the noble Lord, Lord Renfrew, has reminded us in our debates, there are many factors that make up the student body; for example, prior attainment, performance at school or the performance of schools themselves. Some of these are beyond the power of universities to influence, so this amendment is very welcome.

The amendment of the noble Lord, Lord Sutherland, also has my support. Although I hope that institutions and OFFA will be able to resolve their differences through negotiation, it is always possible that this route will fail. An independent appeal mechanism would therefore be a valuable addition to the system. We must ensure that such a mechanism would be cheaper and quicker for institutions than the current proposal of judicial review. If this can be assured, I hope that we will see this amendment on the face of the Bill.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I thank the Minister for Amendment No. 52. At an earlier stage, the noble Lord, Lord Butler, made a very persuasive case for it. I shall not reiterate the arguments: there is no point in arguing for something that we now have. I thank the Minister for that.

On Amendment No. 52A, my noble friend Lord MacGregor has given several examples. In the discussions that I have had with the Minister, she has asked me to point to a possible mechanism. Many have been mentioned. I do not know what she is going to say tonight in response but, in the friendliest possible way, I say to her that the Bill is not going to reach the statute book without this matter coming up again and again. There is clearly strong feeling on the matter. But it is not beyond the wit of the Civil Service, as we were reminded, to be the servants of Ministers and to be flexible and ingenious in finding a solution to difficult problems. With such a good Minister, I am sure that between them they can resolve this and we can stop endlessly discussing these issues and can reach a resolution.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

My Lords, I say to the noble Lord, Lord Butler, that there is a power in the Bill at Clause 28(3) that would enable the Assembly to replicate this clause for Wales in regulations and to designate the relevant authority. I shall have discussions with my colleagues in Wales and formally respond to the noble Lord on the point that he raised about Wales before Third Reading.

I congratulate and thank the noble Lord, Lord Sutherland—who I am sure we all wish a speedy recovery from his operation—and the noble Lords, Lord MacGregor and Lord Norton, for the work that they have put in to bring forward this amendment and for taking the time and trouble to have a discussion with me last week, which I found extremely valuable. I think that the noble Lord, Lord Norton, said that he is now able to vote for OFFA and I am very pleased. We will see when the matter returns.

As noble Lords will know, when we discussed an earlier amendment I expressed concern about the membership of appeal panels and the limiting of access to the courts. The amendment now before us has been changed to avoid those problems and I appreciate the creative thinking that has gone into that. As the noble Lord, Lord MacGregor, said, in Committee he referred to the report of the Select Committee on the Constitution chaired by the noble Lord, Lord Norton, and in particular to Chapter 11 on improving appeal mechanisms. I have now studied that and noted its concerns as both noble Lords have indicated that regulatory decisions should be subject to proper review and that judicial review has sometimes proved expensive and time-consuming.

We propose that the discretion whether to approve an access plan should lie with the director but I accept that it should be possible for some independent person or panel to invite the director to think again. I would find it more difficult if an appeal panel and not the director decided the terms on which an access plan would be approved. That would simply substitute the discretion of the director for the appeal panel. From my discussions with the noble Lords, I think that it is possible for us to propose a solution that meets all our concerns.

The House will not be surprised that I cannot accept the amendment as it stands. There are a number of matters about which I am concerned. However, I undertake to discuss this matter further with the noble Lords concerned and to return at Third Reading with a proposed way forward. On that understanding, I hope noble Lords will not press their amendment.

On Question, amendment agreed to.

Photo of Lord MacGregor of Pulham Market Lord MacGregor of Pulham Market Conservative

had given notice of his intention to move Amendment No. 52A:

After Clause 35, insert the following new clause—

"RIGHT OF APPEAL (1) There will be a right of appeal against the decision of the Director of Fair Access to Higher Education. (2) The Appeal and any supporting evidence must be submitted within twelve weeks of notification of the governing body. (3) The appeal will be heard by a panel of three, appointed by the Secretary of State under Nolan rules. (4) The decision of the panel, which may be by majority, should be delivered within twelve weeks of the receipt of the appeal."

Photo of Lord MacGregor of Pulham Market Lord MacGregor of Pulham Market Conservative

My Lords, I am very grateful for the Minister's response. We look forward to seeing what she brings forward at Third Reading. On that basis I am happy not to move the amendment.

[Amendment No. 52A not moved.]

Clause 36 [Enforcement of plans: Wales]:

Photo of Baroness Perry of Southwark Baroness Perry of Southwark Conservative

moved Amendment No. 53:

Page 16, line 37, leave out "or (c)"

On Question, amendment agreed to.

Clause 38 [Interpretation of Part 3]:

[Amendment No. 54 not moved.]

Clause 40 [Other amendments of section 22 of Teaching and Higher Education Act 1998]:

[Amendment No. 55 not moved.]

Photo of Baroness Greengross Baroness Greengross Crossbench

moved Amendment No. 55A:

After Clause 40, insert the following new clause—

"ACCESS TO STUDENT LOANS The age of a student may not be included in regulations as an eligibility criterion for access to student loans."

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, perhaps it is inevitable but regrettable that issues concerning the later stage of life are considered at a later hour. However, I shall be brief as many of the points were discussed in Committee in some detail. I should like to thank noble Lords for their support.

Having now had the chance to consider more fully what the Minister said in Committee last month, there are still a couple of matters to which I should like to return. That is why I have retabled the proposed new clause.

First, I remain of the view that the Government are rather strangely fixated on the age of 65 as a cut-off point for student loans. Such a cut-off point will be increasingly anachronistic in our changing society. That point was echoed very well in the report on the economics of an ageing population produced by the Economic Affairs Select Committee chaired by the noble Lord, Lord Peston.

In my view the 25-year write-off provision is sufficient. A student would have to be over 40 before the age 65 cut-off superseded the 25-year write-off period. Can the Minister tell the House what percentage of students complete their courses after the age of 40? Even with our changing demography, it will be many years before it is the norm to retrain or begin education in one's fifties, or even older.

I hope that the Government can at least commit to reconsider the age 65 cut-off point as it lies at the root of the ageism regarding student loans. Such a review would also have to consider the impact of the death of a student before the 25-year repayment period is complete, and should take account of the implications of our rising longevity, as the Cabinet Office report, Winning the Generation Game, highlighted in 2000. That was four years ago. It is now time for action to be taken.

Secondly, with respect, the Minister seems to be burying her head in the sand regarding the impact of the EU directive on equal treatment in employment and training after October 2006. The courts may indeed have found in the Government's favour so far, but it seems a great shame for government to be forced to do something by the courts after 2006 when they could, and should, begin to tackle this now.

In Committee the Minister mentioned costs but without being specific. I understand that it is a question of priorities—it always is for any government. However, can she at least give me an indication of the potential and realistic costs of my proposed new clause?

In conclusion, I hope that my proposed new clause will be a way of getting joined-up government. The DWP is trying to remove barriers to continued employment for older people. The DfES should do likewise in education and training, which would help to make that a reality. I beg to move.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I support the amendment of my noble friend Lady Greengross, as, indeed, I did in Committee. Like the unfair treatment of part-time students and their institutions, this is another issue on which I feel strongly.

As a former mature student when I graduated from LSE in 1985, aged 53, I am acutely aware that I was not far from the cut-off point at which, had I needed it, I would have been ineligible for a loan. Some 20 years later I feel even more strongly that no such cut-off point should exist. We should also not forget that in those days higher education fees were considerably lower than they are today and will be in future.

I shall not repeat the details of points made previously in Committee, but there are three points that I wish to reinforce as to why having a cut-off point is wrong. First, the lifelong, ladder learning approach is increasingly part of our embedded culture and is warmly supported by the Government. If, as a citizen, a student is entitled to take an undergraduate university degree, the age at which that person takes such a degree is immaterial if he has been accepted by his chosen university. Any government grant, loan, or other kind of financial support that goes with the course should be available regardless of when the student wishes to take up that option.

Secondly, we have already heard that age discrimination will be outlawed by 2006, so how do the Government justify what they are doing in the light of that law? I believe that I alerted the Minister a few weeks ago to the existence of the report by the Select Committee on Economic Affairs, chaired by the noble Lord, Lord Peston, which was published some seven months ago and has still not been debated on the Floor of this House. It is not just a question of equal opportunities. Our life expectancy increases daily, there are clear signs that a retirement age for the purposes of any pension will have to be moved increasingly upwards and, therefore, the need—not just the wish—to continue in employment will increase. A degree, even at such a later age, might be just the thing to help one gain the new skills that will enable one to start a second or third career or set up a new business.

Thirdly, taking a degree course in one's latter years for the first time, even if it is purely for self- gratification and enjoyment, is an acknowledged way of keeping the brain active and engaged. That point was made earlier from the Benches opposite. The individual would, therefore, be less likely to be an early NHS user or an early entrant to a long-stay hospital or an old people's home.

The Select Committee's report, to which I referred, concluded that the restriction of student loans to people below the age of 54 was blatant discrimination. I should be grateful to hear the Minister's reaction to that.

Photo of Baroness Sharp of Guildford Baroness Sharp of Guildford Shadow Minister, Education & Skills

My Lords, we on these Benches support the amendment. The noble Baroness, Lady Howe, is correct to say that keeping the mind active helps to keep the body healthy and there is every reason to encourage people to continue their education as long as they wish to. We mouth the concept of lifelong learning and we often talk about how, with an ageing population, all of us shall have to carry on working longer. Yet it is incredible that we are writing into legislation discrimination that by 2006 will be outlawed by European legislation.

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

My Lords, the noble Baroness is the youngest person here.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

My Lords, I am getting older by the minute. In Committee, I paid tribute to the work of the noble Baroness, Lady Greengross, in promoting a culture of lifelong learning, and I emphasised my commitment and that of the Government to that objective. I am happy to repeat that here. I also said that we accepted that there was further dialogue to be had on the subject of age limits, and we shall continue to listen to representations. Whatever the time of day or night when it is debated in your Lordships' House, it is an important issue, and I am mindful of the passion with which noble Lords have spoken.

It is worth saying that the age limits apply only to loans. All students, including those aged 55 and over, are eligible for the full range of non-repayable higher education grants. Of course, elements of the student support package specifically help older students. Notably, under our proposals, eligible students of any age will be eligible for the maintenance grant of £2,700. Therefore, as I said, the only element of financial support that older students cannot receive is loans.

We have discussed—I shall not reiterate them—the issues which come down to a question of financial resources. If the age limit were to be abolished, the cost to public funds would be significant. As I indicated, it is an issue of resources.

I shall not say much more, other than that I recognise that we make difficult choices in our efforts to provide funding to a wide range of people who are in need. We believe that the current limit is set so as to ensure that the great majority of loans are repaid. That, of course, is necessary for the sake of public finances. I say to the noble Baroness, Lady Greengross, that the costs involved depend on the implications of a change, and those are difficult to quantify.

Having said all that—I have cut my response considerably—I know that my right honourable friend the Minister with responsibility for higher education understands the depth of feeling on this issue and that he is determined to keep an open mind on the possibility of change. He has agreed to the establishment of a joint working group to consider proposals in this area. I cannot guarantee the outcome, but I expect that the process will facilitate at least a shared understanding of the issues and that it will be helpful in underpinning further consideration of these issues. It will look precisely at the issues of cost, and so on, which the noble Baroness indicated needed to be considered in greater detail.

Through your Lordships' House, I shall ask that the noble Baroness, Lady Greengross, joins that working group. We also have it in mind to invite representatives from Age Concern, NIACE and other bodies which have a particular concern for older students. I shall be very happy to take any views from your Lordships on future, and further, membership of such a group, and especially from the noble Baronesses, Lady Greengross and Lady Howe.

I shall be happy to discuss with the noble Baroness how the working group will operate with the representation that I have indicated. I am also happy to consider who else might participate in it. On the basis that the working group will be set up, I hope that the noble Baroness will feel able to withdraw her amendment.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, before the Minister sits down, I wonder whether she can answer the question that I specifically asked about the recommendations contained in the Select Committee report, which has been published but not yet debated.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Education and Skills, Parliamentary Under-Secretary (Sure Start, Early Years and Childcare), Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) (Sure Start, Early Years and Childcare) (also Department for Education and Science), Parliamentary Under-Secretary (Department for Education and Skills) (Sure Start, Early Years and Childcare) (also Department for Work and Pensions)

My Lords, as I indicated, the reason that I am suggesting a working group is that not only can it consider this question but it can also take on board the recommendations put forward. Noble Lords will know that the Government's position has been taken through the Court of Appeal. It has been accepted that, as a financial, and scarce, resource, education loans can be treated in the way that I have indicated. I am mindful of the report of my noble friend Lord Peston. However, I think that, in order to progress on these issues, what I have suggested to the noble Baroness and to my right honourable friend will take us further and will enable us to have the kind of detailed discussions that we clearly need to undertake.

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, I welcome the Minister's commitment that her department will undertake further work on this issue in the coming months. I know that NIACE, Age Concern and others, including myself, will be delighted by that commitment and will want to be involved. I thank the noble Baroness and her right honourable friend in the other place for the attention that they have given to this issue. I understand that we need to know the facts before changes are made to the law, and I accept that this is a very welcome step forward, for which I thank the Minister most sincerely. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Triesman Lord Triesman Lords in Waiting (Whips)

moved Amendment No. 55B:

Before Clause 43, insert the following new clause—

"EXCLUSION OF VISITOR'S JURISDICTION IN RELATION TO STAFF DISPUTES (1) The visitor of a qualifying institution has no jurisdiction in respect of— (a) any dispute relating to a member of staff which concerns his appointment or employment or the termination of his appointment or employment, (b) any other dispute between a member of staff and the qualifying institution in respect of which proceedings could be brought before any court or tribunal, or (c) any dispute as to the application of the statutes or other internal laws of the institution in relation to a matter falling within paragraph (a) or (b). (2) In subsection (1) "qualifying institution" has the meaning given by section 11. (3) In determining whether a dispute falls within subsection (1)(b) it is to be assumed that the visitor does not have jurisdiction to determine the dispute. (4) Section 206 of the Education Reform Act 1988 (c. 40) (which is superseded by subsection (1)) shall cease to have effect."

Photo of Lord Triesman Lord Triesman Lords in Waiting (Whips)

My Lords, in moving Amendment No. 55B I shall speak also to consequential Amendments Nos. 57A and 60. The noble Baroness, Lady Sharp, and the noble Lord, Lord Forsyth, were both concerned about the continuing jurisdiction of a visitor in relation to staff complaints. We have always accepted that the current position is not ideal and noble Lords' arguments have confirmed our view. The amendment, therefore, addresses the concerns raised about the continuing role of the visitor in staff complaints.

Section 206 of the Education Reform Act 1988 removed the visitor's jurisdiction in disputes relating to academic staff which concerned appointment or employment. There has been debate as to the extent of this exclusion and whether it covers disputes indirectly related to employment matters, such as whether an institution's internal rules have been followed in relation to a staff complaint.

The amendment seeks to address noble Lords' concerns by placing beyond doubt the extent of the removal of the exclusive jurisdiction of the visitor. It provides for the widest possible exclusion in relation to appointment and employment related matters. The exclusion also covers the internal powers and discretions that derive from the internal laws where they relate to staff complaints.

Whereas the 1988 Act relates to academic staff, we believe that all staff should be covered by the new amendment. The amendment also addresses the principled objection to the jurisdiction of the visitor: that where a visitor acts when access to the courts is limited. We believe that it is wrong to deny access to the courts and so the amendment excludes the visitor's jurisdiction from all staff disputes where there is a possible redress through any court or tribunal whether by an action for damages or judicial review in appropriate circumstance, for example, where a member of staff has a complaint about a matter that relates to their employment contract or where they have had an accident at work.

In that context, the noble Lord, Lord Forsyth, and the noble Baroness, Lady Sharp, were concerned in Committee that the existing situation raises human rights issues. Our amendment removes any such concerns as there will not be any possibility of access to the courts being denied to a member of staff because of the visitor's exclusive jurisdiction.

The amendment also puts the rights of staff in chartered and new universities on a more equal footing and addresses the inconsistencies between the exclusion of the visitor's jurisdiction over student and staff complaints. Of course, where a person who is a visitor is assigned a role in relation to student or staff complaints, he or she may continue to perform that role in a personal capacity, for example, by acting as an independent person considering an appeal as part of the institution's internal dismissal or disciplinary or grievance procedures. This would be on a non-visitorial basis and would not, therefore, restrict access to the courts.

Once again, I thank noble Lords for raising these issues. The amendment, together with the Universities UK offer of discussions with the staff unions, to which we made reference in the first day on Report, moves us forward in addressing the anomalies in the present arrangements. I beg to move.

Photo of Baroness Sharp of Guildford Baroness Sharp of Guildford Shadow Minister, Education & Skills

My Lords, I thank the Minister for bringing forward the amendment which, as he says, follows the discussions we had on the extension of staff to the independent office of the adjudicator, and proposes different mechanisms. We welcome very much the fact that the Government have recognised that the visitor system falls foul of human rights legislation and that these proposals seek ways of ensuring compliance with that legislation.

We also welcome very much the offer of assistance made by the DfES to facilitate discussions between UUK and the AUT to set up a new appeals mechanism of one sort or another. There is slight concern on the part of the union about the position in the interregnum. Once the Bill is passed there is no procedure in place until the AUT and UUK have some sort of new scheme set up. Therefore, it is important that the UUK and AUT set about agreeing a new robust scheme as quickly as possible.

It is vital that a mechanism is also in place which ensures on behalf of Parliament and the public that the universities follow their own internal statutes—the rules by which they operate—and allows that to be remedied where an institution has failed to do so.

There are two specific issues of clarification which I ask the Minister to respond to. First, what will be the commencement date for this section of the Bill? Secondly, what are the transitional arrangements for petitions already received and being dealt with by the visitor at that commencement date?

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

My Lords, the office of visitor dates from a time long before the kind of complex professional and personal disputes that are part of today's scene. The only body to which I am visitor is a group of nuns and clearly the regulations do not apply. But several of my episcopal colleagues are visitors to academic institutions. They will, I am sure, greet these proposals with some measure of relief and I hope they are accepted.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I join in the thanks given to the Minister for bringing forward the amendment, which largely meets concerns. Also, perhaps I may thank the Minister and his officials who took quite a long time to explain to me how it would operate. I think that I now understand it and am very pleased that the Minister has brought forward the amendment.

Photo of Lord Triesman Lord Triesman Lords in Waiting (Whips)

My Lords, perhaps I may respond to the questions asked. The first was what would happen in the interregnum to staff cases that are currently before the visitor—to paraphrase the question the noble Baroness, Lady Sharp, asked. We envisage that when these provisions are commenced many staff provisions already with a visitor will remain within the visitor's jurisdiction to be resolved.

However, like the noble Baroness, I also hope that a robust scheme will be agreed as soon as possible for the new arrangements. That will be very important.

Photo of Baroness Sharp of Guildford Baroness Sharp of Guildford Shadow Minister, Education & Skills

My Lords, I ask the Minister one further point. In so far as the new scheme is agreed, is it proposed to incorporate that in legislation at some point, just as the student appeal scheme has been incorporated in legislation? We recognise that this particular opportunity has been lost, but is it envisaged that perhaps it should be incorporated at some point in a legislative framework?

Photo of Lord Triesman Lord Triesman Lords in Waiting (Whips)

My Lords, we want to see the outcome of the discussions between the institutions and the staff unions before committing to any future legislation. To make a commitment in advance of seeing those discussions and understanding the character of the agreement which might be struck would probably not be the best way of proceeding.

The other question which I was asked was about when the Government will commence these provisions. We think it is best to ensure consistency. For that reason it would make sense to commence these provisions at a similar time to the jurisdiction of the visitor over the student complaints system being removed under Clause 19. Obviously, I cannot give a precise date. We will of course discuss the matter with Universities UK, the Association of University Teachers and with interested parties. As soon as I am in possession of any further information I will be most happy to write to the noble Baroness and make sure that the answer is also in the Library of the House.

On Question, amendment agreed to.

Clause 43 [Orders and regulations]:

[Amendments Nos. 56 and 57 not moved.]

Schedule 7 [Repeals]: