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The Earl of Limerick: I have a simpler and far less erudite view of the amendment. I listened to the case made by my noble friend Lady Blatch. Earlier my noble friend Lord Renfew and I were probably rightly rebuked for coming in prematurely on this point. When looking at what is intended under the Bill, and how it will affect us all in the future, the Committee does not have the advantage of knowledge of the regulations which will put the framework provisions into effect. The concept contained in the amendment is modest, proper and irresistible. As Members will not have had the advantage of that knowledge when considering the Bill, they should be given the opportunity to comment under the affirmative procedure when the regulations are produced. That is the simple and unanswerable argument.

Lord Whitty: Despite the temptation offered by the noble Earl, I shall not re-rehearse the arguments about the regulations. I shall try to address his latter remarks. First I shall try to dispose of three other issues that have been raised. I am as happy as anyone to take a side-swipe at lawyers from time to time, but the noble Earl must recognise that departments take competent legal advice.

With regard to the power to introduce tuition fees, the 1962 Act clearly allows local authorities and others to pay awards for students' fees. Section 1(5) enables students' resources to be taken into account and so enables the award and the means testing of that award to be introduced. There is no dubiety about that. We are confident about our legal advice on that. I fail to see the hilarity.

Earl Russell: The Minister will recall what I said a few moments ago about Ministers who say that they are confident of their legal advice.

Lord Whitty: If in addition to having a side-swipe at lawyers the noble Earl wishes to have a side-swipe at the colleagues of the noble Baroness, Lady Blatch, I am happy.

Baroness Blatch: Will the Minister point us to the precise place in the 1962 Act which provides not just that LEAs can pay fees on behalf of a student, but that the student is expected to pay tuition fees?

Lord Whitty: I referred to it just now. It is Section 1 (5).

Lord Pilkington of Oxenford: May I offer the Minister a copy of the Act?

Lord Whitty: No. I referred to Section 1(5) of the Act which provides for students' own resources to be

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taken into account, and therefore allows a contribution from the student to be made. As interesting exchanges are apparently going on between the two Front Benches, I shall move rapidly on to the next point.

The noble Baroness, Lady Blatch, asked about the repeal of the 1962 Act. As she will be aware, that Act has been amended several times. We had the same argument about the repeal of the student loans Act. When the Act is repealed in total, as the schedule provides, that will make it no longer possible for the Secretary of State to make loans to new students, but there will be reserve powers to deal with students in the existing system until those students pass through the system. The principle that applies to the student loans Act 1990 will apply to the 1962 Act, as several times amended. I hope that that partially clarifies the legal position.

10.15 p.m.

Baroness Blatch: Where are the reserve powers, or where will they be? Point me to the statute showing the reserve powers when the Education Act 1962 is repealed in its entirety.

Lord Whitty: I thought that we had explained the matter. We dealt with it in the student loans debate. When the Act is repealed, the powers which apply to students remaining within the system will continue to apply until those students who started the process have finished. Thereafter, the Act will be repealed in total. I am advised that that is the normal practice. I am surprised that the noble Baroness, and the noble Earl even more so, are not familiar with the practice. It has been the practice and will be so, in the area of education as elsewhere.

Earl Russell: Tell us where in the Bill that is stated.

Lord Whitty: The point is that the Bill does not have to state it, any more than it did in the case raised by the noble Lord, Lord Tope, relating to student loans.

Baroness Blatch: Is the noble Lord saying in lay language that the 1962 Act will not be repealed in its entirety? Is he saying that it will be repealed, first, partially and eventually in its entirety? If that is the case, I understand him. However, I understand that it will be repealed in its entirety and that there will be some reserve powers somewhere to continue the old system and to underpin the new system. Where will those reserve powers lie?

Lord Whitty: Those are saving powers--

Baroness Blatch: Where are they?

Lord Whitty: The Act will be totally repealed in that the Secretary of State and the department will no longer be able to start new processes with new students. There will be reserve powers--

Noble Lords: Where are they?

Lord Whitty: People who are more experienced of parliamentary procedure than I must have come across such a case several times--

Lord Pilkington of Oxenford: The situation is most perplexing for Members on this side of the Committee.

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I remind the Minister that we are dealing with legislation. Letters are going backwards and forwards to the Box where there are four civil servants. As an Opposition debating a Bill going through Parliament, we are asking where the powers lie. If the Minister cannot answer that we are most concerned.

This is not a debating society and, quite honestly, this situation is ridiculous! The Minister has civil servants and a whole department behind him. We are puzzled because we are asking a question about an Act. The Bill before us does not appear to have the necessary powers. All the Minister can offer is a vague explanation saying, "I know this happens". I am not a lawyer, but I am responsible for this matter and I believe that we deserve a better answer.

Lord Whitty: We have explained the principle in three or four letters between my noble friend Lady Blackstone and the noble Baroness, Lady Blatch. The requirement will be met when we reach Clause 17(1) on page 13. It deals with transitional arrangements, which are the reserve powers. It does not explicitly relate to the section of the Act to which reference has been made, but it is there in the Bill which is what the noble Lord was pressing me to say--

Baroness Blatch: Where?

Lord Whitty: If it is in order, I shall pass the piece of paper to the noble Baroness. No, I cannot do so. In that case, I ask the noble Baroness to forgive me for a moment--

Lord Pilkington of Oxenford: May we take an adjournment for a while?

Lord Whitty: Clause 17(1) refers to transitional arrangements which cover the situation. Similar provisions exist in similar circumstances.

Baroness Blatch: I read out the whole of Clause 17 when I made my first presentation and I referred to the clause in my letter. I say simply that when the Bill is passed we shall repeal the whole of the 1962 Act. Regulations under Clause 17 provide that the Secretary of State can re-enact any part of the 1962 Act. Why repeal that Act if in Clause 17 we are giving the Secretary of State the power to re-enact it? Clause 17(2) states:

    "In this section 'relevant enactment' means any enactment contained in ... the Education Act 1962".

Why should we repeal it only to re-enact it?

Earl Russell: Perhaps I may take this matter a little further. I wish to follow up a point made by the noble Baroness Blatch, a few moments ago. She asked where, in the 1962 Act, there are any powers to impose a fee or a payment from a student. I have been looking at the Long Title of that Act which is a fair guide to what the Act is intended to cover. It states:

    "An Act to make further provision with respect to awards and grants by local education authorities and the Minister of Education in England and Wales, and by education authorities and the

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    Secretary of State in Scotland, and to enable the General Grant Order, 1960, and the General Grant (Scotland) Order, 1960, to be varied so as to take account of additional or reduced expenditure resulting from action (including anticipatory action) taken in accordance with that provision; to make further provision as to school leaving dates; and for purposes connected with the matters aforesaid".

I presume that the Government are relying on the words,

    "purposes connected with the matters aforesaid".

I do not believe that there was any such connection in the mind of the legislator in 1962, although I admit that there may be such a connection in the mind of the present Minister.

But the courts clearly construe legislation according to the intention of Parliament at the time the Act was made. It passes my imagination to understand how any raising of a fee of any sort from a student can be brought within the intention of Parliament in this 1962 Act as governed by the Long Title. Therefore, I shall be very interested to hear expert opinion on the vires which the Government are claiming.

I do not believe that we shall solve this question tonight, however hard we try, but I hope that we can all agree that we need to take expert advice and return to this subject on another occasion and at rather greater leisure. Meanwhile, we should all agree not to be more certain than the nature of the matter and our own knowledge permits. I have merely asked questions to which I do not know the answers. I should like answers to those questions. I believe that we should adjourn this matter and discuss it on another occasion.

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