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Baroness Blackstone: I am grateful to the noble Lord, Lord Tope, for agreeing that he will wait until I have had the opportunity to write to him to set out all the arguments and the whole legal basis on which we are proceeding

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before moving for a re-committal. That will be helpful because this is an extremely complex area and I would like the opportunity to set it out in writing. I will of course place my letter in the Library and also send a copy to the noble Baroness, Lady Blatch.

Meanwhile, it will be helpful if I begin by trying to respond to the concerns. I did not want to be critical when the noble Baroness, Lady Blatch, spoke earlier; I thought it would be helpful if I said a few words about these issues, including the saving provisions which she also referred to.

I am aware that the noble Earl, Lord Russell, has taken legal advice on the issue since we discussed Clause 16 last Thursday and we now agree on the legal basis of the Government's powers to introduce contributions to tuition fees under the 1962 Act. However, it would be helpful for the record if I set out the position, which I will then confirm in writing.

The Government will not be legislating to require students to pay tuition fees because they have no need to do so. It is individual universities and colleges which charge tuition fees for students. As the Committee is aware, they are quite free to do so. If they were not, there would be no need to include in the Bill Clause 18, which provides a reserve power to control top-up fees in certain circumstances.

What the 1962 Act does is require local education authorities to make mandatory awards to certain types of student to help them with the costs of attending their courses--that is the fees charged by their university and their maintenance costs. In practice the position in recent years has been that universities have charged fees at precisely the level of the fee element of the mandatory award so that students have not been expected to contribute personally. Legally speaking, the university has still been charging a fee to the student but that fee has been met by the local authority through the mechanism of the mandatory award.

What we are proposing to do in 1998 is provide for maximum support of £1,000 towards fees and then means test that support so that the full £1,000 is available only to students from lower income families. It will remain for universities and colleges to set their own fee levels, though they will need to do so in the knowledge that no student will receive more than £1,000 in financial support for fees from public funds. It is precisely because the Government do not set university fees that we are seeking reserve powers in Clause 18 to prevent universities from charging more than the maximum level of support available to students if necessary. If the Government set university fee levels there would be no need for Clause 18.

In legal terms, what our proposals mean is that the fee element of the mandatory award will be means tested, just as the maintenance grant is now. The power to do this is set out in Section 1(5) of the 1962 Act, which provides that regulations shall,

    "prescribe the circumstances in which [the award] is to be payable, and the amount of the payment or the scales or other provisions by reference to which that amount is to be determined".

That is the provision under which maintenance grants have been means tested since 1962. There is no reason why the means test cannot also apply to the fee element of

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the award. This is precisely what was done between September 1962, when mandatory awards were introduced, and August 1977. The powers in Clause 16 replace those in the 1962 Act and allow us to make regulations to the same effect.

It is regrettable if noble Lords feel that they have been misled by what is said in paragraph 22(f) of the department's memorandum to the Delegated Powers Scrutiny Committee. This is a misunderstanding about the legal basis for the charging of fees to students rather than any failing in the memorandum.

This power to make regulations is the power under which the mandatory award regulations are made. Students have received an indemnity for university fees through awards made through these regulations. They will not do so in the future and will be liable to pay up to £1,000 a year in respect of fees. This change in the law will be achieved by amending the mandatory awards regulations so that they provide for only a partial reimbursement of fees. This is the existing legislation referred to at paragraph 22(f) of the Delegated Powers Scrutiny Committee report.

I hope that the Committee will, now that I have explained the legal background, accept that paragraph 22(f) is not misleading and accurately reflects the true position. As I said, I shall follow this up with a letter which I hope will further clarify the matter. Members of the Committee will also have the opportunity to read what I have said in Hansard.

Turning to the savings issues which the noble Baroness, Lady Blatch, is concerned about, it will be helpful if I again try to explain the matter. There seems to be continuing misunderstanding over the repeal of the 1962 Act, the current student loans legislation and the introduction of the savings provisions. Our policy is quite clear: from 1998-99 we will be introducing a new system of student support for new entrants to higher education. Existing students, and exceptionally new students such as those who fall within the gap in the scheme announced last August, will continue to receive mandatory awards and student loans for the duration of their course.

The powers to make those awards and loans are contained in the 1962 Act and the Education (Student Loans) Act 1990 respectively. This is not just a matter of a gap; it is all existing students. Next year there will be second year students, third year students and some fourth year students. It is important that those existing students should be adequately looked after.

However, those existing students will not be students for ever. Once the last of them has left the system, the powers in the 1962 and the 1990 Acts will no longer be needed. The Bill therefore requires for them to be repealed in full. If it did not, we would have to come back to the House in due course to seek powers to repeal legislation which no longer served any purpose. That would not be a sensible way to use your Lordships' time.

In the meantime the 1962 and 1990 Acts need to continue to have effect in relation to existing students. It is essential that they do not have effect in relation to new students. For those students, regulations will be made under the new powers in Clause 16 of the current Bill. If the 1962 and 1990 Acts remained in force in relation to

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new students, we would have a legislative muddle. For example, local authorities would be obliged to continue making awards under the 1962 Act to new students even though alternative arrangements have been put in place for them. Our intention is to repeal the 1962 and 1990 Acts so they no longer have prospective effects in relation to new students. At the same time, however, we will be putting in place saving provisions under Clause 17 of the current Bill which will provide for the relevant parts of those Acts to continue to have effect in relation to existing students.

I hope that that helps to clarify the matters that the noble Baroness, Lady Blatch, has been concerned about. I also hope that what I have said on the issues raised by the noble Earl, Lord Russell, helps. It would be helpful to everybody if we now waited until I am able to write to the noble Lords and follow this up in further detail so that everybody should have the chance to study what I have said. On that basis, there would not be a good case for recommitting the Bill at this stage.

Baroness Carnegy of Lour: In relation to the first part of the Minister's reply to the noble Earl, I wonder whether everything she said about English law applies in Scotland. I wonder whether the noble Earl would like her to include in her letter to him the legal base in Scotland. It cannot be the same, because local authorities are not involved with mandatory awards. I imagine that there is a variation. Could I, at least, have a copy of that letter?

Earl Russell: I second what the noble Baroness, Lady Carnegy, said about Scotland. It would be helpful to us also.

Lord Peston: I speak for those of us who are trying to understand anything that has been said, let alone everything. I had understood that universities could charge fees. I am amazed that anyone should think that they cannot. The reason they did not charge them above the levels mentioned by my noble friend is that any government would have immediately introduced legislation if they had tried to do other than what they wanted.

I found what the noble Earl said confusing. He seemed to be saying that a number of things that universities do are not legal; for example, universities do not reveal degree results to students from overseas who have not paid their fees. He seemed to imply that they had no legal foundation for doing that, which rather frightens me. My main reason for rising is different. I look forward to receiving my noble friend's information. Are we to be given all the legal information that the noble Earl and the noble Lord, Lord Tope, have, because some of us will probably be asked what we think, and I should, as usual, rather say what I think on the basis of information than on no information. If we could generally all be fully informed, it would be of assistance.

Earl Russell: Of course I know what is the present legal situation. I wanted to know whether the Government propose to change it under any of their many regulation-making powers.

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