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Lord Whitty: The noble Earl is making something of a meal of this matter. The noble Earl may regard this as hilarious but I regard it as an example of prudent government to take serious legal advice before coming before this House. We are confident in that. I undertake to obtain detailed advice as regards the 1962 Act and to write to the noble Earl in accordance with that advice.
As regards the transitional arrangements--and I am now comforted by the presence of one of the Law Officers sitting with me--those are normal arrangements. We are effectively repealing the prospective effect of the Act; that is, the Secretary of State cannot take any new measures under the Act. However, we are saving its effect on existing students. Leaving aside all the legal jargon, that is the obvious intention. I am strongly advised that those transitional arrangements, as in Clause 17(1), are normal and will be sufficient for these purposes. I hope that we can perhaps now move on to the amendment which the noble Baroness is proposing.
I now refer briefly to the noble Lord, Lord Renfrew, because I am concerned that he is rather uncertain about the information that has been provided. We do not yet have the regulations. It would be unusual for us to have regulations at this stage in the passage of the Bill. However, even prior to the submissions in the Library during the past few days, back in July the department provided information regarding our policy not only to this Chamber but also to the student population and the prospective student population. I do not really think that
Lord Renfrew of Kaimsthorn: I apologise to the Minister, but I should like to intervene briefly. If material relevant to a Bill is provided, I believe that there should be an indication on the front of the legislation stating that it is relevant to the specific Bill. As I have already made clear, I asked both in the PPO and in the Library earlier today for such information and they were not able to provide it simply because they did not know that they had been provided with material which was specifically relevant to this Bill. I make no criticism of that fact, and I do not wish to take the matter any further. However, I respectfully suggest that it is perhaps a lesson for the future.
Lord Whitty: There are those who did understand what the information was for, but I take the noble Lord's point. We will discuss with the relevant authorities how we might provide such information in the future.
I turn now to the question of the affirmative resolution in the recommendations of the Delegated Powers Scrutiny Committee. We have a serious respect for the committee's recommendations in this area. However, the recommendations that it has made on this occasion give us some difficulty. First, the scrutiny committee suggested that it might be appropriate for the first set of regulations under Clauses 16 and 21 to be subject to the affirmative resolution procedure. Secondly, it suggested that the Bill might leave open for the future the possibility of either affirmative or negative resolutions beyond that first stage. That is quite an unusual recommendation.
On the first substantive set of regulations, I understand the committee's concern and that of many noble Lords that Parliament should have an opportunity to scrutinise the recommendations made under those clauses. Indeed, those regulations will include a very substantial amount of material, much of which we judge not to be appropriate to place on the face of the Bill.
In principle, we are happy to accept that first recommendation in relation to Clauses 16 and 21. However, in this case, it would appear to be appropriate not to target the first set of regulations--that is, those dealing with the academic year 1998-99--because, in essence, they are transitional arrangements. Indeed, some of the factors that we have just been discussing relate to the 1998-99 regulations which will deal with fees and residual grants under the 1962 Act. Moreover, we are not making any substantive changes on the
The second suggestion which relates to regulation changes beyond that--namely, the suggestion that we should have a choice between an affirmative or a negative resolution--seems to us somewhat difficult. It is perhaps also difficult for Members of the Committee. Of course, it was an approach which we accepted in relation to the particular circumstances of the Northern Ireland processions Bill. However, as I am sure Members of the Committee will accept, that Bill falls within a particular, volatile political context and applies to a situation which can change from year to year. I do not really believe that educational regulations fall into the same category. They are no different from any other regulations governing the normal course of government business which are re-made every year, at least in detail. The complexity of the regulations means that we shall probably wish to change them at least in minor detail each year.
If we were left with the committee's recommendation that this House and another place would have an obligation to consider exercising their discretion whether to use the affirmative procedure every year, that would leave the Government and perhaps this House subject to challenge in the courts involving my noble friend. I am not convinced that putting the House and the Government in that position would be sensible.
However, we shall consider the matter further, albeit that regulations on student support have been made annually using the negative resolution procedure for the past 35 years. The amendment that we shall bring forward at Report stage will relate therefore to the affirmative resolution on the first substantive change; that is, the year 1999-2000.
Baroness Blatch: I am grateful for the constructive way in which the Minister has approached the matter. However, I am not fully satisfied, first, because of the enormous concern and confusion there has been over the use of the 1962 Act--the repeal of it, partial repeal, savings provisions--and our concern about the intake of students in 1998-99. That is the last year of the old scheme and the introduction of the new scheme. There are also the hybrid arrangements for students who should be in the new scheme but have been given special exemption to be part of the old scheme. For all those reasons I wish to include 1998-99 as well as 1999 and beyond.
There is no policy in this Bill. The policy is in the Labour Party's manifesto and other documents. The Bill is a framework Henry VIII Bill. It will be followed by secondary legislation. That is why we take such a rigorous view about the nature of secondary legislation.
I am conscious of a question asked by the noble Earl, Lord Russell, on, I think, the first day in Committee. He asked a straight question about the extent of the Secretary of State's powers under the regulations. The noble Baroness said that it was impossible to say: these were powers to be used in the future. We do not know the extent or the scope of those powers. We have asked for examples to give some idea of the outer limits of the powers. We have had no indication whatsoever of the extent to which they can be used. For that reason, I believe it is important that the amendment is accepted.
The Minister referred to the dilemma of the department as to whether some provision should come through on the negative or affirmative resolution procedure. Frankly, looking across the Chamber to some of the officials I recognise from former days (and some new ones), it is not beyond the wit of any person I see to make a decision about a normal uprating, a minor technical amendment to which none of us would take exception, and a provision which makes a substantial change. If tuition fees can be introduced by secondary legislation, in the future one could do something equally dramatic by secondary legislation that would have an impact on students.
When a Bill is produced in such a skeletal form, secondary legislation takes on a very different complexion. On the basis that half a loaf is better none, I should like to pocket what the Minister has offered so far, but I am not satisfied. In the context of this Bill, secondary legislation is essential. Therefore I believe that it should come through this House through the affirmative parliamentary procedure. I shall press for that at later stages of the Bill. I beg leave to withdraw the amendment.