17 December 1997
By the Select Committee
appointed to report whether the provisions of any bill inappropriately
delegate legislative power, or whether they subject the exercise
of legislative power to an inappropriate degree of parliamentary
scrutiny; to report on documents laid before Parliament under
section 3(3) of the Deregulation and Contracting Out Act 1994
and on draft orders laid under section 1(4) of that Act; and to
perform, in respect of such documents and orders, the functions
performed in respect of other instruments by the Joint Committee
on Statutory Instruments.
TEACHING AND HIGHER
EDUCATION BILL [HL]
1. Part I of
this bill is concerned with the teaching profession, Part II with
financial provision for higher and further education and Part
III creates a new right to time off from work for study or training.
The bill creates many delegated powers and extends existing powers.
With the exception of the affirmative provision in clause 16(5)
and the commencement power, all powers are subject to negative
2. The Department's
helpful memorandum (printed in the Annex to this report) explains
the powers and specifies the relevant Parliamentary control. The
Committee can, therefore, confine its comments to the Henry VIII
clauses and other aspects of the bill which have caused us concern.
Henry VIII clauses
3. Clause 6(2)
allows an order establishing the General Teaching Council for
Wales to modify the English provisions in clause 1 and Schedule
1 to make them appropriate for Wales. Negative procedure seems
right for this modest power.
4. Clause 16
establishes new arrangements for giving financial support to students.
Whether a student or a course qualifies for support and, if so,
whether that support will be by way of a grant or a loan and the
amount will all be determined by regulations made by the Secretary
of State. The regulations will include provision requiring repayment
and imposing interest (at rates to be prescribed from time to
time by regulation). They may also impose duties on employers
to collect sums due under the regulations and transmit them to
the Secretary of State (subsection (4)(9)) and for this purpose
the regulations may apply or extend with or without modification
any of the provisions of the Income Tax Acts or of regulations
about Pay As You Earn (PAYE) made under the Income and Corporation
Taxes Act 1988.
provisions of clause 16 establish the framework but everything
of importance will be in the regulations. These will be subject
to negative procedure unless subsection (5) applies. We were at
first puzzled by a provision which appears to be a brake on generosity
- it applies affirmative procedure when regulations increase the
maximum grant in respect of fees by more than the rate of inflation
- but we understand that fees are likely to be linked to the maximum
grant and an increase in that will lead to an increase in fees
so increasing the burden on those who have no grant or less than
the maximum. Subsection (5) is thus intended to protect students
and their families.
invite the House to consider whether the subject matter of the
regulations under section 16 is so important that the bill should
be amended to require affirmative procedure for the first regulations,
but to allow Ministers the option of using either the affirmative
or the negative resolution procedure for subsequent regulations,
thereby enabling the negative procedure to be used for amending
regulations unless they included new matter of significance. If
this approach were to be adopted, subsection (5) would not be
corresponding to clause 16 is made for Scotland in clause 21.
Although there are differences of substance between the two systems,
our comments on the case for affirmative procedure apply here
8. The Committee
looked carefully at clause 18, which gives the Secretary of State
further power to impose conditions as to fees at further or higher
education institutions. The Committee is aware that this clause
is controversial, and considered the possibility that the imposition
of conditions might be regarded as the exercise of secondary power.
But bearing in mind that the power is an extension of those granted
in the Further and Higher Education Act 1992, the Committee does
not think it right to comment. It is for the House to consider
this issue on its merits when debating the primary legislation.
9. The Committee
wishes to draw the attention of the House to clause 16 and the
corresponding Scottish provisions. There is nothing else in the
bill to which we draw the House's attention.