With this we may discuss the following amendments: No. 289, in
clause 32, page 15, line 10, leave out 'may' and insert 'shall'.
Amendment No. 288, in
clause 32, page 15, line 13, leave out subsection (4).
Amendment No. 105, in
clause 32, page 15, line 15, leave out from 'may' to end of line 19 and insert
'specify matters to which the necessary authority may have regard in making any determination relating to approval.'.
Amendment No. 75, in
clause 32, page 15, leave out lines 16 and 17.
Amendment No. 76, in
clause 32, page 15, line 20, leave out 'may' and insert 'shall'.
Amendment No. 46, in
clause 32, page 15, line 24, leave out paragraph (b).
It is a pleasure to serve under your esteemed yet unscheduled and unexpected chairmanship, Mr. Gale. We look forward to seeing whether you transmogrify into your co-Chairman, Mr. Hood, with a whirr of BBC special effects worthy of the regeneration of Dr. Who.
We come to the final day of our deliberations. It is unlikely that the Government will grant us even more time, so we are grateful for the little that we have had and look forward to getting through the immense amount of material that remains. There are some 18 clauses, schedules and new clauses. The Minister will be relieved to hear that given that there is so much material for us to get through, we hope to make progress and do not intend to prolong matters unduly.
The clause is important. It is at the heart of the process by which the director of the office for fair access will impose his or her will on higher education institutions. It also introduces an important mechanism for establishing the extent to which OFFA will be answerable to the Secretary of State for the way in which the powers that the Bill allocates are exercised. Some of the amendments explore how
OFFA will use the powers that are granted to it and how sensible it is for the Secretary of State to have as much power to direct and instruct OFFA on how it should do its job as the clause provides.
The amendment is a clarifying amendment. We are uncertain why ''if it thinks fit'' is necessary in subsection (2), which states:
''The relevant authority may, if it thinks fit, approve the plan.''
As the word ''may'' implies that approval of the plan is not automatic, and as clause 32 and other clauses in part 3 give OFFA some discretion, we are uncertain why it is necessary to specify ''if it thinks fit''. Those words are redundant and we are interested to hear the Minister's technical explanation of them.
My hon. Friend is aware that I am under a time restraint, owing to other duties. Does he agree that it is also interesting that the clause does not appear to have any time signature on what is a reasonable time in which to consider and approve a plan, and that a constant process of niggling queries and responses to them may be tantamount to failing to approve the plan at all?
I am sure that members of the Committee are aware both that, sadly, my hon. Friend must attend another Committee to deliberate on another piece of legislation and that we shall be the poorer for the absence of his learned contributions. For many of us, our knowledge of classical times and military tactics of the ancient Greeks will be all the more lacking if he is not here.
My hon. Friend makes an important point. The clause not does not specify any limit on the time that OFFA may need to consider the approval of a plan. I suspect he would agree that the Minister is likely to say that approval will take place within a framework that has been previously established, that it will be done academic year by academic year, and that it is unlikely that the procedure will drag on for month after month. I am sure that the Minister will also reassure us, as he has done previously, that he expects that most of the time for approval will simply amount to rubber-stamping plans that are already in place in many, if not all, higher education institutions.
We must be careful when legislating to think of the difficult cases that could arise. I dare say that the Government expect the Bill to be on the statute book for some years; we are confident that it will be removed within 18 months. None the less, they must legislate on the basis that it will be in place for a long time, so we have to think of the difficulties that could arise. I am sure that many higher education institutions would have welcomed something to limit the time that can be spent considering the plans, and we will discover whether the Minister can address that point.
Amendment No. 289 is designed to broaden the discretion of the director of OFFA. Instead of the Bill stating that the relevant authority ''may'' issue guidance to institutions, it should state ''shall''. That allows us to explore the problem of higher education institutions being left in limbo as a result of the Bill's wording. We contend that we would be much better off without a director of access to higher education. We do
not want that institution to be created because it will create the possibility for conflict and interference with academic freedom, and for heavy-handed, heavy-booted interventionism.
If we are, however, to have such an institution, it is logical for universities to know the ground on which they stand. Being in a state of not knowing whether they are to be issued with guidance or given a framework, or whether at any time they will be subject to intervention or interference, is the worst of all possible worlds. Uncertainty in such circumstances begets problems and worries. We are interested in exploring why the Bill provides that OFFA merely ''may'' rather than ''shall'' issue guidance.
At the heart of the group are amendments Nos. 288 and 105. In amendment No. 288, we propose to delete subsection (4), which prescribes:
''The relevant authority's functions under this section''— that is OFFA's function—
''are to be exercised in accordance with regulations.''
That is the deadly part of the Bill because it states that OFFA is to be circumscribed and handcuffed. It is not to be an independent institution, but will be subject to direction in fairly specific terms from the Secretary of State.
What regulations might either the present or a future Secretary of State issue to instruct OFFA? The Minister has been kind enough to share some paperwork with us, but it is stamped with that magical word ''draft'' all the way through. At most, it is merely a reflection of what regulations Ministers might want to issue now, and certainly of what they want to say now about how they will use their legislative powers to impose things in the future. I fear we cannot be confident that, once this general and sweeping power has been granted to Ministers, all that it will be used for is simply to reflect existing regulations.
Although it is welcome that the Minister has chosen to share his thinking with the Committee in advance by issuing the regulations in draft form, they give rise to some concern. In their present form, they would be open to disagreement and lack clarity, so they could be interpreted differently. They specify some of the more controversial proceedings relating to OFFA's operations. I do not want to revisit last week's debate, and I am sure, Mr. Gale, that you would bring me sharply to order if I were to do so, but there are difficulties with differing interpretations of access, admissions policies and equality of opportunity. Specifying that regulations will be set out for OFFA does not address all those concerns, not least because there is nothing in clause 32—one would not expect it—to establish a self-denying ordinance by which Ministers cannot return to or amend a set of regulations once they have issued them. As it stands,
once that power is granted, as it is in clause 32(4), it is open to present or future Ministers to alter, reinterpret or issue new guidance on those regulations.
I reiterate that it is our view that we do not need OFFA at all, but if we are to have it, it makes sense for it to be politically neutral and independent rather than subject to detailed day-to-day ministerial intervention. However benevolent current Ministers are, they may not always be so benevolent in future or may be succeeded by others who are not so benevolent.
The general powers granted to the Secretary of State in clause 32 are too sweeping and too widespread. They must be circumscribed and limited. Amendment No. 105 would remove the requirement, cited in line 20, that
''Regulations may require the institution . . . to publish the plan in the prescribed manner'',
and replace it so that regulations
''specify matters to which the necessary authority may have regard in making any determinations relating to approval.''
The amendment explores the precise ways in which the Government anticipate that OFFA will operate on the important subject of the plan's content and the way in which it is published. Higher education institutions will be at great pains not only to address any perception of unfair access policies, but to do so in public, so that they are seen to address such problems. In an earlier debate, the Minister said that some institutions—including Oxbridge, but it may not be limited to those universities—had very good access policies, but had not been successful in publicising them. He thought that part of OFFA's role would be to require higher education institutions to devote a greater amount of their time, and possibly more resources, to providing publicity for the efforts that they already undertake as part of their access plans.
One way to partly resolve that relates to the publication of the access plan itself, which in turn relates to clause 32(6), which amendment No. 105 would amend. It will be interesting to hear the Minister's proposals for publicising access plans. If we are to have those plans, it will be a great advantage if they are widely known. We would not want them to be obscure. Some Committee members might remember the famous description in the work by Douglas Adams of a planning document that was supposedly publicly accessible but which was, in fact, at the bottom of a locked filing cabinet, in a room marked ''Beware of the tiger'', under a flight of stairs without a light bulb. It is desirable for the access plans of higher education institutions to be a little more publicly available than that, so what exactly does the Minister have in mind to achieve that? Will he, for example, require their contents to be made available on the internet or in newspaper advertisements? Will he require any changes that are made to the plans from one academic year to the next to be publicised in the same way?
Leaving aside the advantages of freedom of information, has the Minister given any thought to a possible disadvantage? If the access plans negotiated with the access regulator are to be fully effective, they may need to address issues that it is not so easy to publicise. If individual admissions tutors or others at a university or higher education institution are not
entirely signed up to the principles underlying the access plans, if might be felt necessary, in verbal discussions or even written communications between the access regulator and the institution's governing body directly, to address previous perceived failings and difficulties with certain named individuals. It would not be sensible to splash such things all over the public prints or the internet. Does the Minister envisage any part of an access plan being kept confidential or being publicised differently from other materials?
The Minister will know that there is the greatest nervousness among some in the higher education world about this very topic—the practice of individual admissions tutors—and what is envisaged for the plans. He has gone to great lengths to stress that there is a major difference between access and admission, but we do not accept that distinction. Even if we were to pretend for a moment that such a distinction could easily be drawn, it is difficult to understand how one could properly analyse the success or otherwise of access without considering the work of admissions tutors. Should they be named in relation to access plans as a matter of policy? Should there be specific provisions relating to their practices, desirable or otherwise? The matter is of particular interest to several people in the higher education world who are keen for the measures to be implemented with a light touch.
Although the Minister already knows this, let me put it on the record again that Universities UK strongly supports the Bill. We must put all its comments in that context. None the less, it has expressed concerns about clause 32. In its briefing to the Committee, it says:
''Universities UK is concerned that the promotion of higher education and of equality of opportunity in connection with access to higher education is not achieved at the cost of some of the most important qualities that define higher education, namely academic freedom and institutional autonomy.''
It goes on to say that it is worried about the discretion given to the relevant authority. Although that discretion will, of course, be subject to judicial review, Universities UK is concerned that the clause makes no specific reference to academic freedom or institutional autonomy.
First, I thank you, Mr. Gale, for your good wishes last week. I also thank the Committee, especially the many members of the Conservative party who visited me in Harrogate.
I have much sympathy with the issues raised by the hon. Member for Westmorland and Lonsdale (Mr. Collins). However, given that the Secretary of State indicated in an article in The Sunday Times that, irrespective of their achievements, preferential treatment would be given to students from schools that are under-represented in higher education, does he not think that his comments are much more pertinent as those plans, and OFFA itself, can now be seen as instruments of social engineering rather than as tools for getting high-quality students into higher education?
I am most grateful to the hon. Gentleman. First, he enables me to put on record that all hon. Members offer him their best wishes. It is a pleasure to see him back, and I trust that all that he went through last week has been successfully concluded. As he is aware, many members of the Conservative party visited his constituency at the weekend in order to wish him well—indeed, those wishes were the centrepiece of the literature that many of us were putting through letterboxes in his constituency later on Sunday morning.
The hon. Gentleman makes a salient point. A number of Committee members—not only Conservatives—believe that academic freedom should be preserved and that there should be no possibility of political interference. It is not simply a question of whether we believe that today's Ministers would choose not to use the discretion straight away. The problem is that if clause 32 remains unamended, they or subsequent Ministers would have an ability that should be denied to Ministers of any colour.
I strongly endorse what the hon. Gentleman said about the need to avoid social engineering. That is particularly welcome, because we were a little confused about whether his objection to the creation of OFFA was purely mechanistic—in other words, he would have preferred it to be within the Higher Education Funding Council for England, but was broadly supportive of its objectives—or whether, like Conservative Members, he objects to the potential for politically inspired interference in admissions policy. I take it from his intervention that he shares some of our wider concerns.
I was referring to the opinion of Universities UK on clause 32. It will come as no surprise that it is the clause about which it has the greatest and widest concerns. Universities UK supports and welcomes the Bill overall, and it presently takes the view that accepting the provisions of this part of the Bill are a price worth paying. However, in addition to the objections that I listed earlier, it states:
''Universities UK feels that the Secretary of State reserves very wide powers to make regulations governing the work of the Office of Fair Access.''
That is why, in amendment No. 288, we seek to remove those wide powers that the Secretary of State reserves to himself. Ours is not a theoretical objection. I am prepared to be candid and admit that other amendments in the group are probing, but amendment No. 288 is not. It reflects the genuine concern, felt at the highest level in the world of higher education, that the present Secretary of State and future Secretaries of State should not be given the power, through the instruction and regulation of OFFA, to be involved in such detail in the way in which universities conduct themselves.
At the heart of the concepts of academic freedom and institutional autonomy is the right of higher education institutions to decide for themselves whom to admit. If a plan has to be imposed upon institutions by OFFA, and if, in respect of those plans, OFFA can be subject to detailed regulation by a Secretary of
State, we shall be perilously close to direct political interference in matters that should be beyond the purview of any politician. It is not a question of whether the politicians are from the red party, the blue party or the gold party; it is a question of whether any politician should have that sort of power. Our view is that they should not. Indeed,
Given my suspicion that the Minister will seek to rely on the traditional distinction that he draws between access policy and admissions procedures, it is worth quoting one final sentence from the Universities UK submission:
''Future Secretaries of State are given powerful scope by the legislation, as currently drafted, for political interference in admissions policies and decisions.''
That was not dreamt up on the Conservative Benches. We did not come up with it during our amiable discussions at Harrogate. The body that represents the higher education institutions of this land has quite specifically stated, on the record, that this is a matter of concern. The Minister has assiduously held discussions with Members of Parliament and higher educations institutions: the fact that Universities UK states its view so starkly shows it has not been wholly reassured by the language that the Minister has used so far. I therefore hope that he can offer some new assurances today, perhaps in slightly revised language, about the way in which the powers will be used. It would be highly desirable for the Government to accept amendment No. 288. Universities UK, in a specific reference to that amendment, says that it is concerned about the possibility of a Secretary of State being involved in interference with the approval of a plan.
I am sure that the Minister will say that he hopes that OFFA will operate with a light touch and that he forswears any likelihood that the Secretary of State would want to use regulations to interfere directly in individual decisions. I therefore suggest, in a genuinely helpful spirit, that he give the following categorical assurance: that if OFFA reaches an agreement with a higher education institution and is content with the terms of the access plan that has been negotiated with that institution, and if the institution has accepted in full and without qualification all the obligations that OFFA has suggested as part of that negotiation process, there would be no question of a Secretary of State interfering to instruct OFFA not to accept that plan or to instruct OFFA to reopen negotiations on one or more individual points?
I think that the Minister would recognise that that would be welcome assurance and I make my request in a genuinely helpful spirit. The legislation as it stands does not prevent a Secretary of State from interfering at that point. Universities UK is undoubtedly worried that there might be, for whatever reason, good or bad, political interference in a process which at that stage had already reached agreement. If the Minister could give that clear and categorical assurance, it would not answer all our concerns, but would go a considerable way towards removing some of them.
I said, Mr. Gale, that I did not want to prolong matters unduly. These are genuinely important issues. At this point I am happy to see whether other hon. Members wish to speak and to leave the Minister plenty of time in which to respond.
Before we proceed with the debate, we have received a message to say that Mr. Hood's wife is unwell, which is why he is not with us this morning. I am sure that the Committee will wish to send him and his wife our good wishes. Mr. Stevenson has kindly agreed to take over at 10 am to allow me to carry out some prior engagements.
I, too, do not wish to speak at great length, but we have tabled two amendments in this group. I should like to speak to them briefly, but first I should like to respond to the remarks made by the hon. Member for Westmorland and Lonsdale about the Conservative amendments. We have some sympathy with amendment No. 45, as we, too, cannot see any reason why the words ''if it thinks fit'' are included. I do not think that it will make much difference whether or not they are included, as the meaning of the clause will probably be the same either way, but it will be interesting to hear why Ministers feel that they are necessary.
We are not sure that amendment No. 289 is necessary. It would provide that the relevant authority ''shall'' issue guidance to institutions, but that would be odd if the relevant authority had no guidance to give. The words ''may'' and ''shall'' are more or less equivalent in this case, although it is important that the Secretary of State issue guidance when it is needed.
Amendment No. 288, about which the hon. Gentleman spoke at some length, is interesting. We have some sympathy with it, but our response depends on the Minister's reply. If we are to have the procedure under which the plans are published, we are in favour of regulation. However, there seems to be a lot of power in the hands of the Minister to change the way in which the plans work; in particular, there is a concern, as there has been throughout the Committee stage, that regulations may, in effect, alter admissions rather than just applications. We want the Minister to make it clear that the regulations and plans will have nothing to do with admissions. He has tried to make that clear that already, but I hope that he will reiterate it in relation to this part of the Bill. It is an important point when considering amendment No. 288.
It is important to have plans that safeguard public money properly, so I do not think that amendment No. 105 is sensible. We have never objected to plans as such; what we have objected to is the use of OFFA, which we regard as unnecessarily bureaucratic, and we would object to any attempt to make plans for admissions rather than applications.
I might have missed it, but I am not sure whether the hon. Gentleman mentioned amendment No. 46. It is clearly an attempt to get rid of devolution. We are in favour of devolution in general, so we would not support him if he pressed it to a vote. I doubt that he will.
We tabled amendments Nos. 75 and 76. There is not much point in having plans and OFFA or, as we would prefer, HEFCE and the Teacher Training Agency, if the Secretary of State is going to make all the decisions. Amendment No. 75 is an attempt to ensure that some decision-making powers are left in the hands of the regulatory authority rather than simply those of the Secretary of State. As it stands, subsection (5)(a) appears to allow the Secretary of State to make decisions about plans and how they should be agreed, which would allow him and any future Secretaries of State to make decisions on a party political basis or for the purposes of social engineering. As my hon. Friend the Member for Harrogate and Knaresborough (Mr. Willis) said, we do not want that.
Although there are good reasons to remove subsection (5)(a), there is a lot of sense in keeping paragraph (b), so we do not propose to remove the whole subsection. The relevant authorities need some guidance about the matters that they should take into account.
There is not a lot to distinguish our parties on this group of amendments. As the hon. Gentleman rightly says, amendment No. 75 would remove subsection (5)(a) but keep paragraph (b). However, does he believe that it would be sensible for the Secretary of State to have the power to
''specify matters to which the relevant authority is . . . to have regard''?
He is rightly saying that institutions need to know where they stand, but is it desirable for the Secretary of State to be the final arbiter?
There is a point to the Secretary of State giving some sort of guidance to the relevant authority—otherwise the relevant authority will be left entirely on its own to decide what the plans are about. My party approves of higher education institutions having a plan to ensure that they treat applications fairly and receive them from people from all sorts of groups, including those that are not well represented.
I am delighted that my hon. Friend has reinforced a point I made about an earlier amendment. Given that we are discussing the spending of public funds—if we had our way, all the funds spent in this respect would be public—it is important that the Secretary of State has some control over they way in which they are spent. That is what government is all about.
I turn to amendment No. 76. Plans should be public, because they can affect the decisions that potential students make about which universities to apply to. A plan might contain nothing about how admissions are decided, but if the university—or higher education institution of any sort—was going out of its way to
ensure that it attracted applications from a particular group which might be under-represented at that institution, that information, in itself, would serve as an important piece of guidance to potential students about how that university was working and the sort of people that it was trying to attract. It is important that such information is made public to the student, because they will then be able to choose whether to make it part of their decision-making process.
[Mr. George Stevenson in the Chair]In general terms, transparency is always worth aiming at. It appears that there is at least the potential for plans to remain hidden and for students, if not to be actively misled, at least not to be given as much information as they would have if we changed subsection (6) by replacing ''may'' with ''shall'' and ensured that all the plans were published in full.
Has the hon. Gentleman realised the implications of the amendment? A requirement to make a plan public would be an implicit acknowledgement that the plan might have an impact on the admissions process. If the plan is simply about seeking applications from a broader range of students, there is no need to make it public, whereas if the plan will have an impact on the admissions process, his points are valid.
That is not entirely fair. Universities' plans are made public now, and I do not see any reason why they should not be in future.
I listened carefully to what the hon. Member for Westmorland and Lonsdale said about the potential for the plan to contain specific information about an individual who had not performed well in the past. That is unlikely to happen. I am not sure that I would want that to be included, but if it was I would not want it to be hidden, as that would imply that the university had guilty secret that it did not want to release but felt that it had to have in its plan. If universities are going to take any decisions about how they work to attract applications based on what one individual in the institution is or is not doing or had or had not done, that will be unfortunate, but if something is important, it should be a matter of public record.
There are good reasons to aim for transparency in this case to ensure that everyone knows precisely what the situation is, and I hope that the Government will support the amendment.
Amendment No. 46 would remove the provisions that relate to Wales and the National Assembly. Although I resist it on the grounds that it is an anti-devolution amendment, as the hon. Member for Newbury (Mr. Rendel) said, I also resist it because it is flawed. It
would establish a scheme in Wales whereby plans with contents, durations and variations could not be approved. Removing subsection (7)(b), which states:
''in relation to Wales, by the Assembly'',
would leave subsection (7)(a), which states:
''in relation to England, by the Secretary of State''.
That would leave no way to approve plans in Wales. The Secretary of State could approve the plans for England, but no one could do that for Wales. The amendment would leave Wales in limbo, which is what Tory Members have generally sought to do.
I am sure that you had everything planned in your diary, Mr. Stevenson, but welcome, as we round the last bend and on to the straight for the home—or rather, the home straight. [Laughter.] I will move on rapidly.
Opposition Members have raised some relevant points in this important debate and I hope that I can allay some of their concerns and demonstrate how seriously we take them. The amendment, which the hon. Member for Westmorland and Lonsdale rightly said is a probing amendment, would remove ''if it thinks fit'' from subsection (2), which says:
''The relevant authority may, if it thinks fit, approve the plan.''
The hon. Member for Newbury said that the amendment would have a minimal effect, in that it would not prevent the director from approving an access plan. However, it would leave uncertainty about the scope of the director's discretion. Removing ''if it thinks fit'' would make subsection (2) less clear. It is a simple matter of terminology in a piece of legislation in which it is important to be as clear as possible. I can give no more clever an answer than that. The words are correct.
Amendment No. 289 is one of two amendments in the group on which we can have either the famous debate, which we have in all Committees, about whether ''shall'' should replace ''may'' or the less frequent debate of whether ''may'' should replace ''shall''. The amendment would require the relevant authority to issue guidance, yet it would have no discretion. I appreciate the intention behind the amendment and it raises a relevant consideration. We do issue guidance and we intend it to be issued in future. However, my simple point is that our provisions repeat the arrangements that are well known elsewhere. Similar arrangements apply to the Countryside Agency and the Disability Rights Commission. In those cases, legislation says that guidance may be provided.
I am happy to do that. We expect guidance to be issued and we envisage no circumstances in which it will not be issued, although we are keen to hang on to the word ''may''.
Amendments Nos. 288 and 105 get to the nub of the issue. I was, however, curious about the emphasis that the hon. Member for Westmorland and Lonsdale placed on amendment No. 288, which would delete subsection (4). That subsection states:
''The relevant authority's functions under this section are to be exercised in accordance with regulations'', and its contents caused hon. Members to see the sinister hand of the Minister at work, with the dark music from the Hammer horror films playing in the background. It is usual for us to issue regulations so that we do not have to put everything into primary legislation. Those regulations are, of course, approved by Parliament. I accept that they are accepted under the negative procedure. Nevertheless, Parliament can pray in aid and the regulations are placed before both Houses of Parliament. I accept that the draft regulations may not be the final version, but we produced them precisely because we wanted the Committee to have an idea of what they would look like.
The hon. Member for Westmorland and Lonsdale quoted Universities UK, but subsection (5), not subsection (4), is the key issue. We are offered two solutions: one by the hon. Gentleman for Westmoreland and Lonsdale and one by the hon. Member for Newbury. The problem with the solution proposed by the hon. Member for Westmorland and Lonsdale in his amendment No. 105 is the very clear anomaly in the wording. It would remove subsection (5) after the words ''Regulations may.'' I was confused because he went on to talk about subsection (6). So far as I can see, however, the amendment would remove paragraphs (a) and (b) and replace them with another form of words after ''Regulations may,'' so that the subsection would read,
''Regulations may specify matters to which the necessary authority may have regard in making any determination relating to approval.''
The nub of my argument is that the amendment would introduce a serious technical fault. The term ''necessary authority'' is not defined and it is not used anywhere else, but the term ''relevant authority'' is. It is a serious error to introduce a new term that is not defined anywhere in the Bill, especially as it would be introduced into a clause to which similar amendments have not been tabled and in which the words ''relevant authority'' appear over and over again. It would draw people's attention to something that is extremely strange.
Conservative Members are playing on our wicket by removing paragraph (b). As the hon. Member for Newbury rightly pointed out, they do not want a regulator or fees, but if there were a regulator, a combination of their amendments Nos. 288 and 105 would mean that there would be no regulations or guidance to guide that regulator.
The Minister makes a perfectly valid point about the technical drafting error of introducing the word ''necessary'' as opposed to ''relevant''. On the philosophical point, however, we do not think that there should be a regulator, as he rightly says. Does he accept that if we are to have one, he should be transparently politically independent and not subject to regulation by the Secretary of State?
No, I do not accept that. The regulator should be subject to guidance. Last week we debated whether that guidance should be statutory or non-statutory, and an amendment was tabled about not issuing guidance. We believe that there should be guidance. The regulator has the power to ignore it, as is the case with any legislation, but we should be absolutely clear about what the measures in the Bill mean, for the very reasons cited by the hon. Gentleman and Universities UK. There should be no ambiguity.
I really would welcome clarification from the Minister. He just said that that the authority may ignore the guidance, but subsection (4) states:
''The relevant authority's functions under this section are to be exercised in accordance with regulations.''
There is no discretion. The regulator cannot ignore those regulations.
The regulator cannot ignore the regulations, which are approved by Parliament, but he can ignore the guidance, whether it is statutory or non-statutory. Subsection (4) is designed purely to avoid primary legislation being overloaded with issues that should, quite properly, be subject to change in Committee. Amendment No. 105 is not the answer, but I want to make it clear that there is no attempt to interfere with academic freedom, as the hon. Gentleman suggested.
The hon. Member for Harrogate and Knaresborough, who I am delighted to see fit and well and back in the Committee—we would have come to Harrogate but all the trains were full—referred to an article in The Sunday Times. That article was about the Schwartz committee. The hon. Gentleman was not present last Thursday when we had a long discussion about admissions and access. We set up the Schwartz committee, with the full support of the higher education sector, to examine admissions, and it is considering issues such as post-qualification applications. The reference in The Sunday Times article was not to the Secretary of State's views, but to what the journalist predicts will come from the Schwartz committee. There is no attempt to interfere with academic freedom and, in response to a point made by the hon. Member for Newbury (Mr. Rendel), I repeat that there is no question of admissions being part of the regulator's role; that role covers access.
Amendment No. 105, however, is not the answer to the problem, but we think that amendment No. 75 is. We can now replace the sinister music with the Hallelujah chorus, because we are prepared to accept amendment No. 75, and I may as well give a reason for
that. An important point, which was made by the hon. Member for Westmorland and Lonsdale, is that the amendment would delete clause 32(5)(a), which could be misread and regarded as sinister. That paragraph prescribes
''cases in which the relevant authority must, or may not, approve a plan''.
Subsection (5)(a) was included in the Bill because of regulation 6 in the draft regulations, which states:
''If the Director does not approve a plan, he must not approve a further plan submitted by the governing body in respect of the first academic year covered by the plan which was not approved.''
The reason for that provision is that there must be closure, and that must be when the prospectus goes out to students applying to attend that university. What must not happen is that a plan is rejected and students think that they are entering university with a fee of £1,200 a year, only to find out later that the fee is now £2,000 because an access plan has been agreed with a higher rate attached. That is the only reason for subsection (5)(a) being in the Bill. However, we think that we can deal with the problem in a different way, such as through guidance.
I accept the points made by hon. Members that the paragraph could be used to suggest that a future Secretary of State will use the power to prescribe that a plan must not be approved because it comes from London Metropolitan university, Cambridge university or wherever. That would be a wide-ranging power to take—a sledgehammer to crack a fairly small nut. Therefore, amendment No. 75, which is aimed purely at subsection (5)(a), should be accepted. We urge the Committee to vote for that, and those are words that I did not think I would hear myself say.
Amendment No. 76 is another that deals with the difference between ''shall'' and ''may''. It refers to subsection (6), which the hon. Member for Westmorland and Lonsdale mentioned earlier. We want to retain the word ''may'' because of the reasons that I laid out when discussing the previous amendment that sought to replace ''may'' with ''shall''. We are, of course, asking for the plans to be published. Draft regulation 7 states:
''Where the Director has approved a plan, the governing body must publish it in a manner which makes it conveniently accessible to students and prospective students.''
The hon. Gentleman asked how that would be done, and the answer is via a website, e-mail, or through the media. We do not expect individuals to be named—an important point that he raised—but what he said about sensitive information would be a good reason for keeping the word ''may''. Some sections of a plan should remain discreet, but the major elements, particularly letting students know about bursaries, will be set out in the access plan. It is therefore important that the plan should be published and made widely accessible. There is nothing between us on that, and I give the same assurance that I gave on the previous amendment. We expect agreements to be publicised.
The hon. Member for Daventry (Mr. Boswell) is not with us, but he asked about time scales. We have used the usual terminology. Draft regulation 5(a) states that the director
''must inform the governing body within a reasonable time'', and draft regulation 5(b) states that the governing body
''may, within a reasonable time''.
Rather than specifying days or weeks, we have used the accepted terminology. It makes it clear that the university and the director must publish the prospectus, so that students will know of the arrangements before they apply.
Perhaps after the weekend the Conservative party is warming to devolution, because the hon. Member for Westmorland and Lonsdale did not say anything about amendment No. 46. However, the hon. Member for Ceredigion (Mr. Thomas) was correct. It is not just that the amendment would interfere with devolution; it would put the Committee in the strange situation of allowing a regulator to operate in Wales without direction or guidance. That would be a serious flaw.
I hope that the hon. Gentleman will withdraw the amendment, but I hope that the Committee will support amendment No. 75.
As I said earlier, amendment No. 45 is a probing amendment. I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 75, in
clause 32, page 15, leave out lines 16 and 17.—[Mr. Rendel.]
Question proposed, That the clause, as amended, stand part of the Bill.
Approving the plans means also approving the level of fee that a university or college wishes to levy. I wish to probe a little more the degree to which collaboration between colleges and universities on fees is acceptable. The question was raised with me late last night by the Association of Colleges. I apologise for not giving the Minister private notice of it: he may need to write to me.
The question arises from the Office of Fair Trading's action against schools in the independent sector that have collaborated over fee setting. The Department for Education and Skills is not involved in that action; it is being brought by the OFT. The Association of Colleges would like to investigate whether the chapter 1 prohibition in the Competition Act 1998—the Minister may be familiar with it from one of his previous roles—would prohibit colleges from exchanging information about price co-ordination. The advice from the Department for Education and Skills suggests that it could. In general, the exchange of price information may lead to price co-ordination, which could be said to eliminate the competition that would otherwise occur between undertakings. That
would be the case whether the information exchanged related directly to the prices charged or to elements of the pricing policy.
The Association of Colleges is concerned because colleges and universities have been encouraged to deliver higher education programmes in partnership. Ministers have said that they hope that all institutions will use the power to vary fees. They could, for example, use low fees to attract foundation degree students but have higher fees elsewhere. However, a disgruntled law student or a litigious parent, who was unhappy about the blanket £3,000 that a university charged for a law degree course to cross-subsidise foundation degree courses, might take a complaint to a solicitor. They might then make a complaint to the Office of Fair Trading under the Competition Act 1998 or the Enterprise Act 2002, and there may be a threat of judicial review if action is not taken. There would then be a big investigation into university price fixing, involving great legal costs and the even greater cost of providing documents for the investigation and possibly for a parallel civil suit. The most likely risk is that there would be lots of unnecessary cost and disruption. Many people out there would appreciate the Minister's advice on the issue, because it is not clear from the clause whether such price fixing would be allowed.
The hon. Member for Cambridge has made an interesting contribution and she raises a significant point. As she rightly said, there is a need for clarification, and I want to press the Minister on one issue. Is he confident that any advice that he may give the hon. Lady and the Association of Colleges will stand up to scrutiny in the UK and European courts? It has been a common theme of our deliberations that higher education institutions are independent, and although their public role is hugely significant, they are not formal parts of the public sector.
The hon. Lady correctly identified some of the association's concerns, which are perhaps understandable, and I am sure that the Minister will be mindful of the fact that, sadly, this is not a matter on which any Minister can issue a firm guarantee that no action will be taken, because autonomous or, indeed, independent institutions are subject to UK and EU competition regulation. I would be grateful if he could deal with that point.
First, let me put on record what clause 32 is about. It covers the approval of plans, specifying that an institution will need to apply to the relevant authority to have its plan approved and giving that authority the power to approve it. The clause also empowers the relevant authority to issue guidance to institutions and puts a duty on the authority to carry out its functions in accordance with regulations. It allows for regulations to set out any matter to which the authority may or may not have regard in deciding to approve a plan. Under the clause, regulations may also place a duty on institutions to publish any approved plans.
We have made the draft regulations for England available in draft form to the Committee. They allow for discussion, if necessary between the director and institutions, before a final decision is made. It is under this clause that we could introduce a minimum percentage of additional fee income that institutions should spend on outreach and bursaries through their access plans. We are not planning to use that at present, but it is a reserve power.
I have to tread cautiously on the question raised by my hon. Friend the Member for Cambridge (Mrs. Campbell) about guidance on the Competition Act 1998. The hon. Member for Westmorland and Lonsdale touched on the point as well. The advice to universities should come from the Office of Fair Trading. It publishes a booklet, and the universities should be au fait with it. I do not know for how long they have been, but they are governed by the Competition Act. A point that I made as a back-handed compliment to the sector is that I do not think that the institutions are capable of forming a cartel, but if they formed one, that would breach the Competition Act.
I will not offer any guidance other than to look at that from the OFT. We have always envisaged higher education institutions—my hon. Friend the Member for Cambridge referred to university colleges—being able to reach joint plans, and in particular joint access plans, when they cover a specific region. It would make sense for institutions in Leeds, Harlow or Nottinghamshire to reach a joint access plan for getting youngsters from poorer backgrounds throughout the region into higher education. That may include charging a similar fee, as long as it does not breach the OFT rules.
The answer is no to the question whether we are ruling out joint access plans. We have made it clear in everything that we have published that universities could collaborate on that, but they will have to be careful that collaboration does not stray into a cartel or price fixing, because the Competition Act would then take effect. I am willing to write to hon. Members about that, although I do not think that there will be much more than that statement in the letter. It might be a bit longer once it has filtered through 17 solicitors, but it will contain essentially the same message.
I welcome you to the Chair, Mr. Stevenson.
The hon. Member for Cambridge has raised an important point. In addition to the letter, will the Minister get an official ruling from the OFT before Report? If not, will he consider including provisions in the Bill in the same way as has been done in clause 39, which is designed to overcome the Enterprise Act 2002 provisions on bankruptcy? I do not want to go into it too much, but the Government are clearly trying to overturn a previous piece of legislation with clause 39. Considering other legislation, in particular the Competition Act 1998, it is possible to include in the Bill provisions to give universities the safeguards that
they need to go about the legitimate business of co-operating to attract students, especially from lower socio-economic groups.
I want to add to what the hon. Gentleman has just said. It would make the situation clear once and for all if the Government included in the Bill a provision that specifically excluded groups of institutions operating legitimately and with the Government's best wishes to achieve the effect that my right hon. Friend has mentioned. It will be difficult for colleges to achieve that effect unless they can be sure that they will not fall foul of the Office of Fair Trading. I hope that he will discuss the matter with his advisers and consider carefully whether a specific provision could be included in the Bill to exclude colleges that are co-operating legitimately from the Competition Act.
The essential element is that the institutions would be working together at the Government's behest. It is an instruction from the Government, through OFFA, that they should co-operate to provide a product. That is significantly different from organisations themselves deciding, as the private schools have allegedly done, to fix prices within their market.
I will consider the point that my hon. Friend and the hon. Member for Harrogate and Knaresborough make. I do not see this as being in the legislation, but I will reflect on it further. We have thought about this a lot. I do not think that the Office of Fair Trading would be willing to write a letter unless it had details about a specific case. I will write to the Committee next week. Once the Bill receives Royal Assent we plan to issue substantial advice in conjunction with HEFCE and the Office of Fair Trading so that colleges, universities and higher education institutes understand the issues here. I will reflect on what hon. Members said, but we are keen to ensure that we overcome the difficulties.
Question put and agreed to.
Clause 32, as amended, ordered to stand part of the Bill.