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Standing Committee H
Tuesday 9 March 2004
(Morning)
[Mr. Roger Gale in the Chair]
9.10 am
The Chairman: Mr. Hood sends his apologies. I believe that he is stuck in traffic and may join us later. In the meantime, I have the pleasure of the Committee's company. Clause 32
Approval of plans
Mr. Tim Collins (Westmorland and Lonsdale) (Con): I beg to move amendment No. 45, in
clause 32, page 15, line 9, leave out 'if it thinks fit'.
The Chairman: 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
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).
Mr. Collins: 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
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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.
Mr. Tim Boswell (Daventry) (Con): 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?
Mr. Collins: 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
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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.
Chris Grayling (Epsom and Ewell) (Con): The sinister hand of the Minister.
Mr. Collins: Splendid stuff, and the Minister is looking at his hand. We need some chilling music from the ''Hammer House of Horror'' archives.
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,
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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
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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.
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