Clause 35 - Enforcement of plans: England

Higher Education Bill – in a Public Bill Committee at 10:45 am on 9 March 2004.

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Photo of Graham Allen Graham Allen Labour, Nottingham North 10:45, 9 March 2004

I beg to move amendment No. 231, in

clause 35, page 16, line 19, at end add—

'(3) No plan is to be enforced against the relevant institution except as provided for in this section.'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following: Amendment No. 232, in

clause 36, page 16, line 39, at end add—

'(5) No plan is to be enforced against the relevant institution except as provided for in this section.'.

Photo of Graham Allen Graham Allen Labour, Nottingham North

I hate to leave anyone with the impression that I have it in for the vice-chancellors. The fact that their connections with No. 10 Downing street almost led my party to breaking point two or three weeks ago to satisfy their requirements should not be seen as causing me to have hard feelings. Therefore, despite what I said last week about them having to be subject to Ofsted like everyone else in the education system, I want to do Universities UK a favour by moving the following amendment. I hope that I will be back in its good books because there is a great deal for us to work together on.

Universities UK seeks to ensure that, while plans are meaningful and can be enforced, they do not expose institutions to additional litigation, which would waste valuable resources. Institutions must also rely on the judgments of the relevant authorities without fear that they may be undone by litigants challenging compliance with the plan. There is an enforcement regime laid out in the Bill, and the amendments promote the idea that that regime should be made exclusive. I would be grateful if the Minister could respond to the points raised by these probing amendments.

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

This is proving to be a morning of surprises. First, the Minister accepted an amendment tabled by the Liberal Democrats, and now I am in the fairly unusual position of supporting an amendment tabled by the hon. Gentleman. I am not sure whether he will get back in the good books of the vice-chancellors after his preamble. If he had not said that preamble, he might have been the toast of the vice-chancellors this evening, but perhaps not now.

None the less, the hon. Gentleman made an important point. It is an unwelcome but unavoidable feature of today's society that we are more litigious. People are more likely than in previous decades to sue for all sorts of, sometimes apparently flippant, reasons. That can cause disruption, additional cost and worry for, in this case, vice-chancellors and others responsible for the governance of higher education institutions. It is worth reiterating that Conservative Members believe that there should be no procedure for enforcing access plans and we are not in favour of having a director. We are in favour of higher education institutions entering into voluntary access plans, but we are not in favour of an element of compulsion or direction. If there is to be an element of enforcement, it must be done, as the hon. Gentleman said, by the director or—although this goes against the grain—by the Secretary of State, but not by anybody else.

We heard from the hon. Member for Cambridge of a concern expressed by the Association of Colleges in a different context about the possibility of a law student going to court because of a concern about fee structures. If anybody will exploit a more litigious world, it will be a law student. The same could apply in this case. If an individual, whether a student, parent or potential employer, believed that an access plan had been violated or that by taking legal action they were more likely to achieve their objective of, say, admission to a particular university, it is possible that that gap might remain if the amendment is not accepted.

It would therefore be helpful if the Minister could make it clear that he is prepared to accept the amendment, which has much to commend it. He supported an Opposition amendment this morning, so it may be even easier for him to accept an amendment tabled by one of his hon. Friends, particularly one who is seeking to be so helpful today, as he is on all other days.

Photo of Phil Willis Phil Willis Shadow Secretary of State for Education and Skills, Education & Skills, Shadow Spokesperson (Education)

Is the hon. Gentleman saying that if variability is allowed to reach the point at which there are American-style fees of £30,000 or £40,000 for a course lasting a few years or more, students will be prevented from having redress against an institution for failing to provide the quality of education that such a cost determines, particularly if we got to the point where half the students pay full fees, as has happened in Australia—

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. This is an intervention, not a mini-speech. Interventions should be relatively brief.

11 am

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

The hon. Gentleman is right to be worried about a scenario in which the fees are not £3,000 but £15,000 or £20,000—I think he quoted £30,000 or £40,000. The way to prevent that from happening is not to have fees at all. The question is not whether the fees should be variable, but whether we should have them. We believe that we should not.

It is not desirable for us to promote the means whereby individuals can sue many of our public institutions. That is a problem not only in higher education, but in the health service and state education as a whole. It is also a problem in the police service. There is much too much suing and Governments of both parties must accept responsibility for having helped to create that climate. The ambulance chasing and the fact that so many people in the public services spend their time looking over their shoulder, worried about what might happen if someone were to bring legal action against them, is the parallel with America that concerns me. That is why I support the amendment, not because it is desirable to have heavy-handed enforcement of the plans, but because if someone is to enforce them, that should be done in a predicable way by an organ of the state. We do not want a large number of other people running around, acting unpredictably, while trying to find a sympathetic judge to make a ruling that could cost an enormous amount of money. That would create complexity and difficulty, not only for the institution against which the case was brought, but for all the other institutions that would have to be worried about the precedent that had been set.

I hope that the Minister will accept the spirit, if not the terms, of the amendment. For all I know, it may be technically flawed. Those of us who do not have the benefit of the superb civil service that the Minister rightly has at his disposal understand that we may draft technically flawed amendments for one reason or another. I hope that he will be prepared to consider ensuring that only the director or, if push came to shove, the Secretary of State can enforce the plans. The sector would welcome clarification of that. If he cannot accept the amendment and thus provide that clarification, will he address, perhaps in correspondence, the way in which that could be achieved? I think he will acknowledge that this is a genuine concern.

Photo of Phil Willis Phil Willis Shadow Secretary of State for Education and Skills, Education & Skills, Shadow Spokesperson (Education)

I accept what the hon. Gentleman said about the ambulance-chasing culture. The reality is that students will pay an increasing amount towards their higher education and it is possible that the sums involved will be significant. If OFFA agrees a plan under regulations set by the Secretary of State through HEFCE, will the Minister assure us that the Government, as the controller of the plan, rather than the institution, will indemnify any action taken by an individual student against a university in relation to the plan?

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

I hope that I can give the Committee the assurance that it seeks. My hon. Friend's amendment would make it explicit that the director in

England and the designated authority in Wales could enforce plans only in accordance with the powers in clauses 35 and 36 respectively. I am in a kindly, giving mood today, but, unfortunately, I cannot accept the amendment, even though I accept much of his advice on such issues, because the Bill provides for no enforcement powers other than those in clauses 35 and 36. I do not oppose the principle behind the amendment, but it is unnecessary. Let me reassure the Committee by setting out in some detail why that is the case.

Access plans in England will be enforced by the director, who will direct HEFCE or the Teacher Training Agency to impose a financial sanction on the institution and/or director who refuses to renew an institution's access plan. Those—and only those—are the sanctions that the director can apply if institutions breach their access plans. The director will have to comply with provisions in regulations on enforcing plans.

Let me clarify the concern that institutions might be exposed to enforcement on two fronts—from the director or from a student issuing a complaint. I assure my hon. Friend that, although the plan will benefit students considerably and will rightly be a public document, it will not give students or prospective students additional legal rights. Enforcing the plan is a matter between the director and the institution. Student complaints will be based on their contract with the institution, and the plans will not give students or prospective students new legal rights. Nor do they relate to the quality of the student experience, to take up the point raised by the hon. Member for Harrogate and Knaresborough. In fact, part of the White Paper process is the issuing of the new, comprehensive student guide, which will make clear the quality of each course at each institution, as judged by final-year students the year before the applicants apply. There will, therefore, be measures of quality, but the issue of quality will lie outside the access plan and students will be able to complain about quality in the way that they do now.

Photo of Phil Willis Phil Willis Shadow Secretary of State for Education and Skills, Education & Skills, Shadow Spokesperson (Education)

The Minister makes an important point, but part of the access plan may relate to the quality of support that the university offers students from less traditional backgrounds. Therefore, the contract between the student and the university—I accept that this is much broader than the plan—would include that element. Would a university that offered a daily tutorial that did not take place be breaking the contract and be subject to a sanction other than through the relevant funding council?

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

I want specifically to explore such examples. That is why I need to take a little time over this important amendment.

In the unlikely event that matters such as those that the hon. Gentleman raised came to court under procedures other than those in the Bill, we have every expectation that the court would take account of any enforcement action that the director had already taken and judge accordingly. Let us imagine that an institution does not provide the bursaries that it said it

would in its plan. That would be a breach of the plan and would be a matter for the director to consider. One sanction open to the director would be to withhold the grant until he was satisfied that the institution had made good, or substantially good, its breach of the plan. Once it had done that, the grant would be restored, so restitution to the student is an important part of the process. Likewise, in deciding about enforcement action, the director would have to take account of any court judgment that may have been made.

Let me give the Committee an example of how sanctions could work in practice. I appreciate that it does not relate to the specific point about the tutorial, but it deals with the area in which disputes are likely to arise. If an institution had an access plan that allowed it to charge its students £2,300 and then charged £3,000 without varying its plan, the director of fair access, having advised the institution of his intentions, would have the following sanctions available to him. These are all set out in either the regulations or the draft guidance from the Secretary of State.

First, the director could direct the relevant funding council to reduce the institution's grant by 110 per cent. of the total amount by which fees were overcharged. That would be restored to the institution when it had made good the breach. Secondly, the director could direct the funding body to impose a financial sanction by reducing the institution's grant by up to £500,000. Thirdly, the director could refuse to renew the institution's access plan.

We appreciate the need for clarity and transparency in describing how plans will be enforced by the director of fair access in England and the designated authority in Wales. Although amendment No. 231 is well intentioned, it would not add to the clarity already provided by the Bill and our draft regulations 10 to 15, which should be read in conjunction with it.

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

The Minister set out a particular example, which I want to extend. He described circumstances in which a higher education institution had breached its plan, and he talked about the options that would be available to the director to enforce the plan and bring the institution back into compliance with it. Does he not accept that the director would be subject, as many other organisations and institutions are, to the process of judicial review? If the director chose not to use one or more of the options, it would be open to a student who felt himself to have been disadvantaged to go to court to seek an instruction against the director to act. Is there not such a route for the individual student, irrespective of what the Minister said about the role of the director?

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

I do not agree. We have been careful to ensure that the access plan is an agreement between the institution and director. We considered judicial review in deciding whether there should be an appeals process between the institution and director if the access plan was rejected, but we decided that it would build in delay and bureaucracy and that, in any case,

the institution had access to judicial review if it felt so strongly about the issue. I cannot predict what individuals will try to do through the courts, but we can be assured that the Bill is clear about who has the power of enforcement: the director.

If we kept the regulator out of Wales, we could give Offa's dyke a completely new meaning—I have been waiting to use that one, Mr. Stevenson. However, on amendment No. 232, I repeat that the Welsh Assembly has not decided whether it will introduce variable fees after 2007. It is important to say that because we may not have time to discuss related issues. Should variable fees be introduced in Wales, however, the Bill provides a framework for the Assembly to implement variable fees. That includes powers to designate an authority to agree fee plans and undertake a similar role to that of the director in England. The exact mechanisms for agreeing and monitoring the plans have not been determined and will be tailored to meet specifically Welsh circumstances, and the Bill allows the Assembly the flexibility to determine the appropriate authority to approve and monitor plans.

In practice, the relevant authority in Wales could refuse to renew a plan in respect of an institution that had, for example, charged fees that were higher than the permitted amount. Additionally, financial sanctions set out under the enforcement measures in clause 36 could be applied. The same argument applies: we do not believe that in England or Wales there is any chink in the armour as far as this legislation is concerned, and we are clear that enforcement lies with the director. We think that the amendments are unnecessary, and I urge my hon. Friend not to insist on them.

Photo of Phil Willis Phil Willis Shadow Secretary of State for Education and Skills, Education & Skills, Shadow Spokesperson (Education) 11:15, 9 March 2004

Will the Minister clarify that the only enforcement that the Government are putting into the Bill is where the fee or bursary structure is not part and parcel of the agreed plan? The other elements of the access plan, which are to ensure not only access to but, we hope, retention within universities, have nothing to do with the enforcement plans, and no student would have redress in that case.

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

I want to be helpful. The hon. Gentleman was not here, but we discussed the fact that the regulator has the power to issue sanctions where the access plan is breached. HEFCE has the power to issue sanctions, having worked closely with the regulator, where the fee cap is breached. That is a matter of degree, so I guess that the heinous crime would be the sort of situation to which the hon. Gentleman referred: if a university decided that it would introduce what he, and everybody else, understood in 1998 to be the definition of top-up fees. We are not proposing that here. The Government have set a maximum fee of £3,000, but if the university decides that it will not receive any student support, but will top it up to whatever level that it likes, that will be a serious breach, in which circumstances the regulator and HEFCE will have a serious punishment reserved to them.

Circumstances such as the hon. Gentleman described, for instance if an institution said that it would have a summer school in June, but did not do so—possibly for some perfectly valid reason—would not be treated as seriously. That would be a breach of the access plan, but would be in a completely different ballpark to breaching the fee level. I hope that that is helpful; we have certainly discussed the matter at great length in relation to other amendments.

Photo of Graham Allen Graham Allen Labour, Nottingham North

The Minister is clearly determined to make us an offer that we cannot refuse, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 ordered to stand part of the Bill.