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Lord Renfrew of Kaimsthorn: I should like to ask the Minister a question in supporting these very necessary amendments, which I hope we shall see on the face of the Bill, whether or not we do so this evening. I am a little pessimistic about the work of the Director of Fair Access. I see that he can work with university departments to encourage them to produce plans with which he is content.

I do not understand how the director will form a judgment at the end of the day on whether the plans have been successful. What criteria does the director employ in judging whether his project is successful? I am extremely pessimistic about the whole enterprise. I do not want to go too far off the point, but if we are to have these top-up fees, which many of us warmly support, essentially they are to be paid by loans, which, as we heard in the earlier debate, is debt that students may be very concerned about. It seems to me that it will be a difficult project for the Director of Fair Access to encourage a more favourable social class mix—to use the phrase which the noble Lord, Lord Butler of Brockwell, quoted from the Minister for Higher Education.

So I think it is very possible that there will be cases where the Director of Fair Access will find that his project is not succeeding. In fact I predict that there will be many such cases. I fear that there will also be cases where he does not realise or is not willing to accept that that is a product of the Sisyphean quality of the enterprise, but when he may feel it must be a defect in the plans. So I am very concerned that the director may feel that sometimes the problem lies in the plan rather than in the project—about which I am pessimistic. That is why I find these very necessary safeguards. I shall certainly be very interested to hear from the Minister how she imagines the Director of Fair Access is going to evaluate the suitability of plans and whether the plans are in fact working.
 
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Baroness Warwick of Undercliffe: I support the amendments. In view of the lateness of the hour I shall be extremely brief. As the noble Lord, Lord Butler, said, the Minister for Higher Education when pressed on this matter in Standing Committee in another place said that in such a situation no institution would be penalised. I cannot think of any reason why the Government should not accept that.

The amendment of the noble Lord, Lord Sutherland, also has my support. I hope that in practice institutions and OFFA will be able to negotiate together and settle their differences. However, we must be ready for a worst-case scenario in which an institution and OFFA are not able to agree. I do not want to rehearse the arguments that have been made particularly about judicial review. An independent appeal mechanism, like the one that is proposed in the amendment, would be a valuable addition to the system.

Baroness Sharp of Guildford: We on these Benches also support the two amendments. In relation to the first amendment, in our earlier debate on the clause as a whole, we talked about how punitive Clause 35 is. To some extent, the amendment proposed by the noble Lord, Lord Butler, helps to ameliorate the punitive nature of the clause. I endorse the arguments put forward by noble Lords about the need for an independent appeal mechanism. It seems absurd that we should have to go to judicial review on such issues. An appeal mechanism within the framework of the system is far more satisfactory.

Baroness Blackstone: I am afraid that I shall add a little note of dissent to the debate. I am reluctant to do so because I understand the motives behind both of the amendments. However, I shall focus on the amendment that relates to appeals. I assume that my noble friend will support or accept the amendment tabled by the noble Lord, Lord Butler of Brockwell, but I do not know that she will. If she does, that will be a very substantial concession and it will lead to questions that were put very pertinently by the noble Lord, Lord Renfrew.

I am at a loss to understand quite how the Director of Fair Access will decide whether the plans that a university has made to promote access are working if he or she is not allowed to look at the outcome. If a university provides all kind of access arrangements, runs summer schools and gets more applications from a wider range of students, that is all well and good. But if it does not accept a wider range of students, that is a problem.

However, if the Government accept the amendment tabled by the noble Lord, Lord Butler of Brockwell, I cannot see how the Director of Fair Access can then pursue a situation where, in spite of all the different attempts to comply with the "reasonable steps" that have been made, there is still no change in behaviour when it comes to looking more favourably at applicants from state schools or social classes that are currently under-represented.

Let us suppose that a university is looking at a state school student who has three A grades at A-level and that student is still not accepted because there is
 
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another student from an independent school who has also got three A grades but appears to be much more fluent and articulate at interview. We know that that sort of thing happens. We have all been involved in making those kinds of difficult decisions.

However, my real concern is the proposal for an appeal system that was made by the noble Lord, Lord Sutherland, which has been widely supported. If we are to go down that road, we must be very much clearer than we have been so far in this debate about the grounds of appeal. Otherwise, why should not any university automatically appeal if it gets a judgment that goes against it? As a vice-chancellor, I would certainly do that. We must be much clearer about the processes and the costs.

I am not very happy about the proposal in the amendment that there should be a panel of three people; that is, one person proposed by the Secretary of State, one proposed by Universities UK and a senior judge. If I were to be proposed by Universities UK—heaven forbid, I am sure that I never will be—I would feel, in a sense of tribal loyalty, that I would have to support my colleagues who were appealing. As currently proposed, the whole mechanism is flawed. We should not go down this road without a lot more thought about the costs and effects and what the actual sensible process of introducing an appeals procedure should involve.

Baroness Howe of Idlicote: I was very much encouraged by what the noble Baroness, Lady Blackstone, said earlier when she indicated that perhaps the amendment moved by my noble friend Lord Butler of Brockwell would be accepted. I certainly want to support that amendment for all the eminently sensible reasons that have been given, which merely make it clear that if all reasonable steps had been complied with, the penalty would not be enforced.

I see the point about appeals. Perhaps that amendment will have to be redrawn. I was extremely surprised to hear the noble Baroness, Lady Blackstone, make those comments. Surely, the judgment will have already been accepted by the director of OFFA. If the outcome is not quite what is expected, there should be some method by which a test of reasonableness is employed.

Baroness Carnegy of Lour: The noble Baroness, Lady Blackstone, seemed to think that if the amendment put forward by the noble Lord, Lord Butler, was accepted, that would make everything all right. But, again, it is a subjective judgment whether "all reasonable steps to comply" have been taken. It is wrong that a university might lose the ability to raise its fees, which are so crucial, or be fined £500,000 on a subjective judgment, even if the amendment put forward by the noble Lord, Lord Butler, is in place.

The noble Baroness thinks that everyone will appeal. I expect that would be true if the amendment is as simple as Amendment No. 103A tabled by my noble friend. But if the amendment is more precise, it would be quite possible to put that in. I cannot see how the system can operate without some sort of appeals
 
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system. If the Government are not prepared to accept this, I hope that the Committee will make that decision and that it will stand. Otherwise, the system will be grossly unfair. I should have thought that the noble Baroness, Lady Blackstone, would be feeling herself suffering already for the lack of appeal.

Baroness Blackstone: I should like to respond to the noble Baroness, Lady Carnegy. I very much hope that if we have OFFA, it will not be just subjective and will make its judgments on the basis of all the objective evidence that the Director of Fair Access will be collecting.

Lord MacGregor of Pulham Market: If we suppose that the director feels that the institution has not "taken all reasonable steps" and the institution feels that it has, is it not right to have a right of appeal on that point and have an independent judgment, which is not one made within the organisation itself?

Baroness Blackstone: I like to think that if the Director of Fair Access is doing his or her job properly, he or she will make only very considered judgments. I hope that universities will not be over-defensive about the work of OFFA and will try to respond in a positive way in the spirit of being given a view about an objective outside organisation about what that university is doing. We should not be over-defensive about this.

Perhaps I may come back to the issue of the RAE, which was appropriately mentioned by the noble Lord, Lord Sutherland. There is not an appeal mechanism there. Judgments are made as far as possible on an objective basis. Those judgments may sometimes involve some subjectivity. Certainly, very often universities are extremely disappointed with those judgments and they do not agree with them. But they accept them.

The universities lose a great deal of money if they have a big department in, say, the sciences which moves down a grade. They lose even more money if they move down two grades. So the same principle operates there. It has been operating for a very long time. It is widely accepted by the universities, although individual decisions are taken that they may not like. They do not resort to an appeal system. If they did, we would never have a system of selectivity in allocating research funding that would work. It would be clogged up with endless appeals. That is my slight concern about moving down this route in relation to the work of OFFA.

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