Clause 34 - Variation of plans

Higher Education Bill – in a Public Bill Committee at 10:15 am on 9th March 2004.

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Photo of Jonathan R Shaw Jonathan R Shaw Labour, Chatham and Aylesford 10:15 am, 9th March 2004

I beg to move amendment No. 270, in

clause 34, page 15, line 35, after 'varied', insert 'by the relevant institution'.

I welcome you to the Chair, Mr. Stevenson. This is a probing amendment to seek some clarification from my right hon. Friend. It would be helpful for universities to understand the extent to which a plan may be varied. Would OFFA intervene and vary a plan before the access period was over? It is important for the new plans to settle down, but the institution may want to introduce a variation. For example, it may want to increase the bursaries to students who are in difficulties. We would not want fees to be increased, as that would be a huge departure, but subtle changes—they may be to do with bursaries, for example, or with outreach programmes in communities linking up with the local further education college—may need to be made, and plans varied in the light of experience. Will the institutions have the powers to do that?

It has been suggested that the OFFA's extending powers may mean the evil hand of a sinister Minister wandering all over admissions, which would not be the case under a Labour Government. It will not necessarily be the evil hand of a Labour Minister—[Interruption.] I should say a helping hand, perhaps with a backdrop of Joe Cocker, rather than the Hammer House of Horrors, to which the hon. Member for Westmorland and Lonsdale referred, but the personality of the director of OFFA will set the mood and affect the atmosphere. Although I have every confidence in Labour Ministers, the people who are appointed do not always turn out to be what one might expect. That also happens in the case of former Ministers, as we have seen too often recently.

I would appreciate clarification of the extent to which OFFA could vary plans within the set period. Will the universities be allowed to make variations in accordance with their experience, especially early on, as institutions and students get used to the new regime?

Photo of Mr Tim Collins Mr Tim Collins Conservative, Westmorland and Lonsdale

This is a genuinely important amendment and I commend the hon. Gentleman for tabling it. I was disappointed that he said it was largely a probing amendment, because although it is not perfect, if he were to press it to a Division we would support it.

If there is to be a vestige of academic freedom and institutional autonomy after the Bill is enacted, it is crucial that once a plan has been perhaps laboriously negotiated between the director and the university, and during the time frame of the plan which, as the Minister said, may be as long as five years, the university should know exactly where it stands. It should know that once agreements have been reached it will be left to get on with implementing them.

The difficulty with clause 34 is that it puts in place a procedure whereby a negotiated and agreed access plan can be overturned or varied. There is no limitation on the extent of variation, so conceivably it could be changed almost in its entirety at any point in its lifetime. That does not give higher education institutions the certainties that they require.

The amendment goes only some way towards ameliorating the position, as it would retain the phrase

''with the approval of the relevant authority'', which we object to. An access plan that is negotiated ought to be a contract: it should be reached by mutual consent, having been negotiated equally, implemented properly and subsequently respected by both parties. The clause clearly implies that this is not a contract within that term's widely understood interpretation: if one party to a contract can unilaterally, at any time, vary any part of the terms of that contract, it is not a contract of the sort with which people will be familiar within other contexts. That is the problem.

The amendment at least requires that the act of variation be made by the university or higher education institution. However, by retaining the need for that variation to have the approval of the relevant authority, we believe that it would give far too much discretion to the director of fair access to rip up freely negotiated agreements and to go down pathways that would be deeply injurious to the principles of university independence. Our view is that the Bill would be better without the clause. We think that there should be enforced access plans, and that there should not be a director at all. However, if we are to have such plans and a director, it must surely be a matter of common sense that everyone can see, that if the negotiations are to have value once a plan has been agreed, that there should not be the constant prospect of its being reorganised.

Photo of Mr David Rendel Mr David Rendel Shadow Minister (Higher Education), Education & Skills 10:30 am, 9th March 2004

I am genuinely confused what by what the hon. Gentleman is saying, so I hope that he can clarify it. He seems to be saying that these are matters

that have to do with a contract between two parties, so it is important that it should not be varied on either side, just unilaterally. I should have thought that the removal of the words

''with the approval of the relevant authority'' would mean the removal of one of the parties to the contract. I can understand why he wants to insert the other words—to ensure that the other party has a chance to have a say—but removing the second part removes the second party to the contract, does it not?

Photo of Mr Tim Collins Mr Tim Collins Conservative, Westmorland and Lonsdale

As the hon. Gentleman rightly says, it would be desirable to ensure that any variation can occur only by mutual consent. That is the point on which he and I would agree. The amendment does not specify the need for the approval of the relevant institution: it simply says that the variation would be made ''by the relevant institution''. In a sense, that is natural, because the institution that implements the access plan is the relevant institution—in this case, a university. Our point is that it would be preferable for the legislation to make it clear that it requires the mutual consent of both parties to the plan before variations can be made. We believe that that objective would be achieved with the removal of the clause. I am not convinced that doing so with the amendment would meet the exact equality that we should like, but it would be more balanced than the clause as it stands. It would be better to have clause 34 amended by amendment No. 270 than to have it as it is now, although frankly, it would be better not to have it at all.

We know that the universities, in their guidance to this Committee, did not specify that they support the amendment, but they said:

''Universities UK believes that it should be clear that institutions will have the freedom to vary their plans if the need arises. We do not, however, think that OFFA should have the power to require them to vary their plans within the period of the access agreement.''

That is the point on which we rest our case. If the universities believe, for whatever reason, within the spirit of the access plan—in order, perhaps, to ensure that the objectives are better delivered in the light of changing circumstances—that they should have the right to consider changes and make recommendations to OFFA, leading to further negotiation and a new agreement, it should not be within the scope of the director unilaterally to alter plans.

Government Members—who may be more attached to the principle of the plans and to the director than Opposition Members—may take the view that there would be concern if the access plan was not implemented. That is covered by clauses 35 and 36, to which we will, I hope, turn our attention later.

There are already procedures within the Bill to enforce the plans. This is a different point: it is about varying the plans after they have been agreed, independent of any assessment of whether they have been properly implemented. We are concerned about the matter, and we hope that the Minister will be in a position to give a clear assurance that he would not expect that the Secretary of State would use the powers of regulation to interfere with the implementation of

plans or to exact a political penalty on an institution that had, for any particular reason, offended the Government of the day.

It is easy for Governments, of whatever colour—this is not a point about the present Administration at all—to take offence at the actions of higher education institutions. It will be within your recollection, Mr. Stevenson, and that of other members of the Committee, how Lady Thatcher, when she was Prime Minister, was not exactly bowled over with joy and delight about Oxford when it denied her an honorary degree. It will be within the more recent memory of members of the Committee that the Chancellor has expressed fairly firm views about Oxford's admissions procedures.

If an instrument such as that provided under clause 34 allows that OFFA—which, as we have established, is very much the creature, indeed the plaything, of the Secretary of State—can intervene to change unilaterally the terms of an agreement on an access plan, even when such an agreement has already been reached between an institution and OFFA, there will be a real temptation in the hands of a future Secretary of State or Prime Minister to use that instrument as a weapon against a higher education institution if, for whatever reason, they happen to have a falling out.

I urge the Minister, if he insists on retaining the clause, at least to give the higher education world an assurance that the power of unilateral variation would be used rarely. I hope that he would be able to explain any of the circumstances in which he would think that such a variation would be appropriate. Will he also seek to make it clear that his general expectation would be that in all but the most exceptional circumstances, once an agreement had been reached—although proper attention would be paid to whether the agreement was being properly implemented—there would not be a constant process of reopening, renegotiation and renewed discussion? If that were to be the case, it would only create anxiety in the world of higher education, as people would genuinely not know at any given time what they were expected to do.

Certainty is essential in higher education, and I am sure that members of that world would much welcome any assurances that the Minister can give that he does not expect the clause to be used often. I hope that he will be able to say that he would not expect clause 34 to be used at all, in which case we can save ourselves a lot of bother by getting rid of it.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Before I call the Minister, let me say that a pretty wide-ranging discussion is taking place on the amendment, and I shall take that fully into account in any debate on clause stand part. I do not want simply to rehearse the arguments that have already been put before the Committee.

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

The amendment is designed to ensure that the plan can be varied only by the institution whose plan it is. I agree that that must be the case. My argument is that the legislation already provides for that, so I must resist the amendment.

Before I come on to the reassurances sought on both sides of the Committee, I want to note briefly that the amendment is technically defective, since it refers to variation by the institution. However, it is the governing body that is responsible for the plan and for any variation of it. That is a minor technical point. This is a good point in the proceedings at which to discuss the mechanisms provided by the legislation for varying access plans. I am grateful to my hon. Friend the Member for Chatham and Aylesford (Jonathan Shaw) for raising the point and allowing me to clarify the position.

In England, an institution's access plan is the responsibility of that institution. It is quite clear that it is the institution and only the institution that can seek the approval of the director to vary a plan, just as it is only the institution that can propose a plan in the first place. The Bill will permit the director not to vary a plan but to approve a proposal from an institution. Subsection (1) states:

''Regulations may make provision enabling an English approved plan or a Welsh approved plan to be varied with the approval of the relevant authority''

It does not say ''by'' the relevant authority.

Paragraph 7 of the Secretary of State's letter to the director sets out the specific arrangements for changing access plans, and regulation 9, which we have published in draft, sets out the arrangements for the variation of plans. In all cases, it is the institution alone that can propose to vary a plan. Changing circumstances may mean that institutions will want to change their plans. For example, an institution might wish to vary its access plan in respect of outreach arrangements. It may wish to pursue those activities in a new area or try a new approach such as mentoring, or it may wish to change its fee levels and bursaries. It is right that institutions should have the option to apply to the director to make such changes, rather than have the plan frozen in aspic for five years irrespective of the circumstances. An institution might start by thinking that summer schools are a better idea than mentoring, then think, ''Actually, the summer schools haven't attracted enough applicants, let's move to a different arrangement.''

Photo of Chris Grayling Chris Grayling Shadow Minister (Education)

Surely, the Minister is not suggesting that a university that decides to vary its activities within the confines of an overall plan—for example, by introducing a new scholarship—would have to go back to the regulator to seek permission to do so. That would be ludicrous.

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

I do not think that that would be ludicrous. Once a plan is agreed, any proposed variation must go back to the regulator. That would be a simple process. In the circumstances that I have described, it would be a very simple process.

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

The hon. Gentleman may think it mad, but what is the point of setting up arrangements to ensure that the access plan meets the approval of the regulator and is in accordance with the regulations and the widening participation agenda, if we then tell institutions that they need not come back to the regulator if they want to change any aspect of it in next five years? That would be rather mad. I appreciate the fact that Opposition Members do not want the plans or the regulator, but if an institution has a plan, which is to be in force for five years, we must be flexible enough to allow it to propose changes to that plan, but we cannot allow it to make changes in isolation without informing the regulator that the plan that they had agreed openly is being changed. I simply cannot understand an opposite point of view.

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

If, as the Minister has said all along, these plans would be light-touch regulation, surely they should be drawn up in such a way as not to specify the precise detail of which scholarships will be given—whether there will be three of £500 and six of £600, for example—but to give a more general idea, thus allowing some variation between the exact number and value of the scholarships as time went on, without having to go back to the regulator.

Photo of Alan Johnson Alan Johnson Minister of State (Education and Skills) (Lifelong Learning, Further and Higher Education) 10:45 am, 9th March 2004

I think that common sense will prevail. That is the kind of arrangement that will apply in such circumstances, but both parties to the agreement have to know what it is. If the agreement changes—Members on both sides of the Committee seek assurance that only one party will be able to change it—both parties must know that it has changed.

Photo of Chris Grayling Chris Grayling Shadow Minister (Education)

I will press the Minister on this point, which is hugely important for the universities. Does he believe that the plans will set out broad parameters for action by a university, such as by its saying, ''We've identified within our region certain social groups that are under-represented, and we will take steps through better marketing, and so forth, to attract applications from those groups'', or is it his intention that they will say, ''We will run these nine specific activities, timetabled and set out in a detailed structure''? Which of those two models is the plan supposed to be? If it is the second, does the Minister accept that the burden of bureaucracy on universities seems to be extraordinarily onerous and inflexible?

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

As we said in a debate last week, the Bill provides a light touch, but not a soft touch. Paragraph 7 of the guidance says:

''It will be for you''— the director—

''to decide, depending on the scale or extent of the change . . . whether to call in the whole access agreement for reconsideration.''

People must be informed of changes to the plan, which might mean a simple exchange of correspondence thanking someone for saying that a part of the plan has changed—end of story. Increasing the fee cannot apply to students already in the system, but if, for

instance, it is decided after three years that the fee should be increased from £2,000 to £2,500 or to £3,000, the regulator will want to assure himself or herself that the additional money going back into bursaries and grants is properly reflected.

Universities and higher education institutions can put more into a plan than is necessary. We are looking for a light-touch approach, but the whole point of our debate is who has the authority to change the plan.

Photo of Patrick Hall Patrick Hall Labour, Bedford

Does my right hon. Friend not agree that the institution in question will want to improve its agreement to widen access, given the likely circumstances? Having secured the agreement of OFFA and publicised agreement of the overall plan, the institution will be pleased to publicise the relevant information. In the context of a light touch, that would mean a letter or perhaps a few phone calls. The institution would have the opportunity to say, ''We're putting forward these amendments, but they are wider than just this institution. They are being introduced in the context of which OFFA approves.'' That would therefore be seen as a positive thing to say.

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

My hon. Friend is absolutely right. The major concern is, as he and the hon. Member for Westmorland and Lonsdale rightly said, who has the authority to change the plan. Provided that there is a sensible system, there should be no problems whatever. The institution may wish to change its fee levels or bursaries. We think that it is right that the institutions should have the option to apply to the director, so that they can make such changes and the director will have to be satisfied with the access arrangements in the plan.

Some changes, as we have discussed, will be relatively small, such as outreach to a new area or a small requirement to the bursary scheme, and therefore will not cause the director any great concern. However, the director may want to examine in more detail with the institutions variations such a significant rise in fee levels—within the cap, obviously—or a wholesale change to a bursary scheme. It will be for the director to decide how light touch he or she should be, depending on the circumstances.

Photo of Mr Tim Collins Mr Tim Collins Conservative, Westmorland and Lonsdale

The Minister is right that the sector is concerned about who has the final authority and he has given some helpful clarification on that point. However, the clause says that regulations about how the system operates may be made. The sector would therefore further welcome a guarantee from the Minister that the relevant decision would indeed be up to the director and that no regulations either now or in the future would give the Secretary of State a right to overturn a director's decision relating to approval of a variation.

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

I can give that assurance. The task in question is the job of the regulator. Incidentally, the hon. Gentleman asked me in a previous debate whether I would reassure the Committee that OFFA would not interfere in individual cases. I can give that

reassurance. Provided an agreement is in line with the legislation, we do not intend the Secretary of State to be involved in any individual case.

The draft regulations provide more detail about the process to be followed by an institution and by the director if an institution wishes to vary its plan. Institutions may allow some variation in their initial access plan, such as building in at the outset changes to the fee and bursary levels over the lifetime of an access plan, so that a student is fully aware, when they go to that university, of what the arrangements will be over the three years—if it is a three-year degree course. In deciding whether an institution can vary its access plan, the interests of its current and prospective students will be paramount.

I draw the attention of hon. Members to paragraph 7 of the draft guidance from the Secretary of State, which makes it clear that a key principle of varying access plans

''should be that students should know, before committing to a course, what fees they can expect to be paying. Students should be protected against institutions changing fee levels where the possibility of that change has not been notified to the student cohort before they committed themselves to the course.''

Having clarified the position, I hope that my hon. Friend the Member for Chatham and Aylesford will withdraw his amendment in the knowledge that what he seeks to achieve is already provided for in the Bill. The firm assurances that I have put on the record mean that there can no longer be any doubt about who is responsible for changes to the access plans.

Photo of Jonathan R Shaw Jonathan R Shaw Labour, Chatham and Aylesford

I am grateful for the comments made by my right hon. Friend the Minister. He has provided the reassurance that Universities UK and I sought—that is that institutions alone can vary the plan. If there is a departure from the agreed plan, it is reasonable that the institution should then return to the regulator to seek permission for that change. As the Minister said, such a change might be minor or major. As my hon. Friend the Member for Bedford (Mr. Hall) said, recourse to the regulator should be seen in a positive way, because one of the purposes of the regulator is to spread good practice. The Minister is not sinister in this context—[Interruption.] Or in any other context, despite what was implied by the usual assortment of highly emotive words used by the hon. Member for Westmorland and Lonsdale. We heard from him that the Secretary of State might take offence, might engage in a vendetta, or that if OFFA was his plaything, he might use it as a weapon. That is the weird world of Westmorland.

I hope that the Committee was reassured by the sound words from my right hon. Friend the Minister and that the debate has been useful in providing clarification. It is important that we get OFFA right, and that the universities understand both what we mean by OFFA and what the expectations of institutions' relationships with it are. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Motion made, and Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 19, Noes 2.

Division number 13 Adults Abused in Childhood — Clause 34 - Variation of plans

Aye: 19 MPs

No: 2 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 34 ordered to stand part of the Bill.