Higher Education Bill

Public Bill Committee, 12 February 2004.

Standing Committee H

Higher Education Bill

Roger Gale (Conservative, North Thanet)

Good morning, ladies and gentlemen. The Programming Sub-Committee met at five past 9 and agreed a slight alteration to the time at which we shall terminate this morning's proceedings, and I must now put that change formally to the Committee.

Ordered,

That the Programming Order of 10th February be amended, in paragraph (3), by leaving out ''11.25 am'' and inserting ''11.20 am''.—[Alan Johnson.]

Tim Collins (Conservative, Westmorland and Lonsdale)

On a point of order, Mr. Gale. I want to put on record an apology to the hon. Member for Harrogate and Knaresborough (Mr. Willis). At the end of Tuesday's deliberations, we had an interesting discussion about a Liberal Democrat amendment. I quoted a letter that had been sent to all members of the Committee by the Association of Colleges. The hon. Gentleman will accept that the association did not support the amendment and that I quoted the letter verbatim. However, having looked at the matter again at the request of the hon. Member for Newbury (Mr. Rendel), I accept that the words that I quoted were not a valid criticism of the amendment. Given that we shall have plenty of opportunity to raise clear and legitimate disagreements, I want to place on record the fact that I regret any inadvertent misinterpretation that I may have made on this occasion.

Roger Gale (Conservative, North Thanet)

Happily, that and any issues arising from it are not matters for me, but they are now a matter of record.Clause 12 Qualifying complaints

Clause 12 - Qualifying complaints

Tim Collins (Conservative, Westmorland and Lonsdale)

I beg to move amendment No. 130, in

clause 12, page 5, line 15, after 'institution', insert

'except in the case of a nursing student where the complaint is in relation to a nursing placement'.

The amendment reflects a request made to us by the Royal College of Nursing. The Under-Secretary will be pleased to know that the royal college is broadly supportive of the Bill, but it is concerned about the handling of student complaints. In a letter that it has, I imagine, sent to all members of the Committee, it says that it is concerned that there may be a lack of clarity—[Interruption.]

Roger Gale (Conservative, North Thanet)

Order. Will the Committee please settle down. I wish to hear the argument, even if no one else does.

Tim Collins (Conservative, Westmorland and Lonsdale)

Thank you, Mr. Gale.

In its submission to the Committee, the royal college states that the Bill's wording leaves it

''unclear whether complaints relating to nursing placements, which are carried out as part of a nursing course, should be taken to the newly created 'designated operator' or to the NHS establishment where the placement is completed. Placements are integral to the teaching and practical development of nursing students . . . In the light of this it is imperative that students have absolute clarity about where to direct a complaint should they have one.''

I am sure that the Under-Secretary recognises the case that is being made for clarity.

The amendment may or may not be the perfect way to tackle that concern, but it seeks to clarify on which side of the divide a nursing student would find themselves if they were in dispute with the institution at which they had taken up a placement. It suggests that they should not go to the newly designated body, although we would probably meet the royal college's point if we came down on the other side and said that students should automatically go to that body. However, the royal college and many nursing students would welcome greater clarity, and the Committee has been asked to provide it. The Government could accept the amendment or table an alternative later. Equally, the Under-Secretary could give the royal college the clarification that it seeks in his remarks, and I hope, indeed, that he will now do so.

Ivan Lewis (Labour, Bury South)

This is my first opportunity to serve under your chairmanship, Mr. Gale, and I look forward to it very much. In the light of our first sitting, I hope that I can contribute to some light entertainment during our proceedings.

I congratulate the hon. Member for Westmorland and Lonsdale (Mr. Collins) on his point of order. Such things rarely happen in this House, and I congratulate him on feeling that that was the right thing to do.

The key issue in the amendment is clarity. It is clear that in any situation where a higher education student is on a work placement, it is the responsibility of the institution to explain clearly to that student the grievances and complaints procedure, and any student on a work placement would have the opportunity to submit a complaint if it were not.

In the case of a nurse, for example, there might not be clarity in circumstances where the higher education institution would be susceptible to criticism or grievance, but the NHS trust may be equally susceptible. It is the responsibility of the higher education institution to deal with that, and it would be a legitimate complaint. If a student were to say that a higher education institution had failed to make the responsibilities absolutely clear, that would be a legitimate source of complaint. The Quality Assurance Agency for Higher Education has a code of practice on placement learning that clearly advises institutions to have procedures in place for dealing with complaints. Those procedures should be made clear to students

and if a student cannot resolve a complaint through the institution's procedures, he or she will be able to access the Office of the Independent Adjudicator for Higher Education to have the complaint reviewed.

There is a clear need for clarity and a lack of ambiguity. However, in view of the description that I have given of the respective responsibilities of the higher education institution and of the placement provider, I ask the hon. Gentleman to consider withdrawing his amendment.

Tim Boswell (Conservative, Daventry)

I do not wish to delay the Committee on this small point and above all I do not want to confuse it with any concern on tuition fees, which we will deal with in later clauses, but I should be grateful if the Under-Secretary, who has given an entirely satisfactory response to the points raised by the royal college, would also clarify another point. In nursing, and maybe in other sectors as well, there is some degree of private sector involvement—even at the training and placement level. People may be outplaced in institutions that are not paid for by the NHS. Professions allied to medicine, such as chiropractics, have specialist institutions. I want the Under-Secretary to clarify to the Committee—if not now, by later correspondence—that private sector outplace students would also have recourse to the office, provided that their courses were in the overall ambit of an approved higher education institution.

Ivan Lewis (Labour, Bury South)

I can confirm that that would be the case. It is the responsibility of the higher education institution to have a clear relationship with any placement provider, whether the provider is in the public or private sector. The issue is whether the complaint relates to actions taken by the employer or by the higher education institution.

Tim Collins (Conservative, Westmorland and Lonsdale)

I am grateful to the Under-Secretary. He has provided precisely the clarification sought by the royal college, as my hon. Friend the Member for Daventry (Mr. Boswell) has said. I am sure that the college can take the comfort that it seeks from the text of the Committee proceedings. On that note, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I beg to move amendment No. 52, in

clause 12, page 5, line 19, at end insert

'; or

(c) as a member of staff or former member of staff at that institution'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment No. 250, in

clause 12, page 5, line 21, at end insert—

'(3) A complaint which falls within subsection (1) is not a qualifying complaint to the extent that it relates to the management of teaching where the complainant is a postgraduate student who also undertakes teaching on behalf of the qualifying institution.'.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I, too, put on record my thanks to the hon. Member for Westmorland and Lonsdale for his remarks; it was very courteous of him indeed.

Amendment No. 52 is a probing amendment, and certainly one to which the Under-Secretary needs to respond. There appears to be a significant anomaly with the removal of the visitor system for students, when it will remain for staff in a number of situations where the visitor system is in place.

Part of the rationale for removing the visitor system is that it does not satisfy the Human Rights Act 1998, particularly article 6 of the human rights convention, which refers to the right to a fair and public hearing in disputes. On Second Reading, the Secretary of State commented that the Bill

''provides a common and transparent means of redress for student complaints, in place of the often archaic arrangements with so-called visitors and other mechanisms—more appropriate to the novels of C.P. Snow than to modern university life.''—[Official Report, 27 January 2004; Vol. 417, c. 167.]

It seems strange. If that applies to students, why should the visitor system continue to apply to staff?

Secondly, an anomaly is created by the 1993 House of Lords ruling that so long as a visitor does not act outside his jurisdiction, his decisions cannot be subject to judicial review. In universities that have a visitor system, there is no recourse to judicial review, whereas where there is no visitor system, there is recourse to judicial review. That is grossly unfair, but is it a major issue? As I said on Tuesday, the usual complaints procedures of most institutions are perfectly adequate to deal with the majority of complaints about both employment law and academic freedom. However, some issues fall outside them. When the Nolan committee took evidence on the issue, the University and College Lecturers Union presented evidence about the visitor system on behalf of teaching staff in universities, and it was agreed that that would be examined. To be fair to the Government, that has been done in respect of students and, while we might prefer a different system of adjudication, the response within the Bill is legitimate. However, it is possible for a complaint to affect both students and staff. In our major research universities, students and staff often work on the same research projects—they are not separate entities. Surely, in that situation, it is nonsense for qualifying complaints to be able to be made by students but not by staff.

Tim Boswell (Conservative, Daventry)

I was following the hon. Gentleman's argument with interest and a good deal of sympathy. Would he not agree that—as is acknowledged in other amendments—a person can be simultaneously a student, for example, a postgraduate student, and a member of staff delivering services on behalf of the institution?

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I thank the hon. Gentleman for raising that; he is absolutely right. While we welcome the broad thrust of the new complaints process, this is an opportunity for the Under-Secretary to consider whether that issue needs to be addressed.

We do not seek to broaden the powers of the adjudicator. People who work in universities are covered by employment law and it should not be part

of the adjudicator's role to deal with that; Universities UK can be assured on that point. However, the current visitor system has jurisdiction over academic freedom and it is important to consider a system that enshrines that practice but also gives staff protection. It also deals with academic and professional malpractice within the university sector. That is another issue that the adjudicator might well address. There is also the important matter of public interest disclosure complaints. That is enshrined in law elsewhere, but its application is different in the context of universities and the academic freedom that is at the heart of our system.

We acknowledge that the visitor system is outdated and unsuitable for the resolution of student complaints, so is strange that is should be left in place to deal with staff complaints. The aim of the amendment is to obtain clarification as to how the Government think that they might resolve the anomaly and give staff the sort of protection that students will have under the new system.

Jonathan R Shaw (Labour, Chatham and Aylesford)

Does the hon. Gentleman agree that it is important for staff and students that there should be clarity about academic judgment, its meanings and its extent? When a student makes a complaint, particularly if they are working alongside a member of staff in the way that the hon. Gentleman describes, what are the parameters? Is curriculum design the issue? How far does academic judgment go?

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

The hon. Gentleman is right. The issue draws us into an area that is unclear. Under the current regime, every university deals with the problem with its own system, but some of those systems are loose and unchallengeable. Only appeal to the court of a university might bring a change, but anyone who has tried to take a complaint to the court of a university will know full well what happens to it—not very much.

We must strike a balance between vigorously protecting academic freedom and the need for academics in institutions to be able to self-regulate, and giving academic staff the opportunity to receive redress for complaints. I would hope that complaints made under such a framework would not have to go to law, but they would be able to if necessary. With the amendment I am trying to ensure that, where a university still has a visitor system in place, provided that it does not act ultra vires within its rules, it would not be possible to go to the courts over the head of the visitor. I hope that the Under-Secretary can satisfy us on some of those issues.

Tim Collins (Conservative, Westmorland and Lonsdale)

I should like to follow up some of the comments of the hon. Member for Harrogate and Knaresborough and to speak to amendment No. 250. The hon. Gentleman rightly pointed to the need for the Government to clarify their thinking behind the decision to distinguish the handling of complaints for students and the handling of those for academic staff. However, I do not intend to repeat his comments, because he set out the case for clarity admirably.

Amendment No. 250 seeks to probe the Government further on an issue over which potential confusion is inevitable. Some people are, in different capacities, both students and teachers. Amendment No. 250 refers to people who, perhaps, act as teachers on behalf the same institutions at which they study as postgraduate students. There are obviously not large numbers of such people when compared with the overall numbers of students and teachers in institutions of higher education, but there are quite a few. Such cases do not happen only once in a blue moon and, at any given time, there will always be some people who fall in that category. It is important that the Under-Secretary should clarify what the Government's intentions are on the handling of such individuals. Should they be treated primarily as students or primarily as teachers? Should that depend solely on the nature of the complaint or should it be left to the judgment of the regulators, as and when a case comes before them? We need clarification on that.

We suggest that, although assurances from Ministers—and this one in particular—are always welcome and studied with great interest, the virtue and value of any clarification would be even greater were it to be written into the Bill. I make the offer that I made on the previous amendment: if amendment No. 250 is technically defective for whatever reason, we would broadly support any Government undertaking to reflect on the idea and return later with a different amendment that would clarify the matter.

I hope that the Under-Secretary can address the issue, which is not theoretical—it is not a debate about the number of angels who can fit on the end of the pin. There are practical considerations that will increasingly arise as higher and postgraduate education expands. Can the Under-Secretary clarify which side of the line he would expect people who are both students and teachers to fall when complaints are made on their behalf or about their behaviour? That would be very much welcomed by many of those people who are following these debates with great interest.

Ivan Lewis (Labour, Bury South)

Although I will not apologise to the hon. Member for Harrogate and Knaresborough for upsetting him towards the end of our sitting on Tuesday, I am sorry that he got so distressed. I shall try to ensure that we do not repeat that experience this sitting.

Our debate on this issue is important. The Government do not contend that the system is perfect. I am pleased that the hon. Gentleman acknowledged that a relatively small number of complaints made by staff would be covered by the concern vis-a-vis the visitor. Although he made it clear that he does not seek to interfere with employment law issues, it is important to note that, in most cases, when employees of higher education institutes have exhausted all the procedures within their institution, they have access to employment tribunals and courts, and are protected by the Public Interest Disclosure Act 1998, which the Labour Government introduced to support staff—

particularly those working in public sector environments—who expose wrongdoing in public service institutions.

Tim Boswell (Conservative, Daventry)

The Under-Secretary says that all staff in universities have access to employment law, but the point occurs to me—it is a cause celebre in employment law, which may well be changed—that the clergy are not covered by employment law because their employer is deemed to be God. If that is the case—and I know that Ministers are considering the issue—what is the position of college chaplains? They may be fellows of their colleges, but they appear to have two different and important allegiances.

Ivan Lewis (Labour, Bury South)

May I write to the hon. Gentleman to clarify the position of university chaplains—and all matters relating to God? I believe that the House is currently dealing with similar questions about Church of England ministers in the Employment Relations Bill. He will be pleased to hear that I am not going to get into a debate about that.

I said that most staff have access to employment law. That is an important point, because there is a problem with the role of visitors and whether that prevents people's ability ultimately to go to court. I emphasise the word ''most''. In a small number of cases, there is some ambiguity. The Government do not believe that the status quo is acceptable, or that the independent route that we are establishing for students is necessarily an appropriate route for staff complaints. There is no consensus on that in the higher education sector, whereas the rest of this part of the Bill has achieved a high level of consensus. Therefore, it would be inappropriate, at this stage, to impose on that sector the inclusion of staff complaints in the role of the OIA. There needs to be more work, reflection and thinking within the sector about appropriate vehicles with which to address staff complaints.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

The Under-Secretary is right to say that the sector is divided. It is divided because the major teaching unions—the Association of University Teachers and NATFHE—both support the proposal to extend the adjudicator's role to include staff complaints whereas the employers' organisation, Universities UK, does not. Surely, we should protect the interests of staff rather than the interests of vice-chancellors.

Ivan Lewis (Labour, Bury South)

We ought to ensure that we get the right framework, which is in the best interests of our universities—both for those who work in them and those who study at them. Under other ombudsman schemes, users of public services have the right to complain to any one of several ombudsmen, such as the local government ombudsman or the parliamentary ombudsman. It is very unusual for those schemes also to be available to employees working in public sector organisations because of the range of different issues that must be taken into account. It does not follow, therefore, that the existing system is not acceptable.

We are establishing by statute a new independent complaints procedure for students, and that independence should also be available for staff. That is the difference. The sector needs to address this issue. We acknowledge that consideration must be given to whether existing procedures for staff are fair, transparent and appropriate, and we urge the sector to take the matter seriously and to come up with proposals. We do not believe that the complaints procedure that we are establishing for students is appropriate for staff.

Amendment No. 250 deals with a situation in which a student clearly also has a role as a lecturer or member of staff. In that situation, the only complaint that the OIA would consider would be one that related to that person's status as a student, not to their activities as a member of staff. Frankly, it would be a matter for the reviewer to make that judgment. It would not be difficult to decide whether someone was attempting to exploit the system by making a complaint that was fundamentally about their role as an employee, not as a student, and the reviewer would be the appropriate person to make that judgment. I hope that that clarification helps the hon. Member for Westmorland and Lonsdale.

My hon. Friend the Member for Chatham and Aylesford (Jonathan Shaw) talked about academic judgment. This is a difficult issue. The definition of academic freedom is not straightforward, nor is it prescribed. It is largely a matter of judgment. Some decisions clearly involve academic judgment; others do not. The important point to make is that the adjudicator would have the power and the opportunity to judge whether the complaint was in or out of order depending on whether it fell within the category of academic judgment. To some extent, we have to leave that judgment to the OIA. The adjudicator would be independent, objective, and able to decide whether a complaint fell within their jurisdiction, or whether it was a matter of academic judgment. If they decided that it was a matter of academic judgment, they would judge it inappropriate for them to consider the complaint.

Jonathan R Shaw (Labour, Chatham and Aylesford)

In effect, my hon. Friend is talking about carte blanche, in that there is no beginning or end to academic judgment. One can understand the anxiety of staff that this provision may become law and that they will have no idea of the parameters of academic judgment.

Ivan Lewis (Labour, Bury South)

Any Minister who could define the parameters of academic judgment would be doing exceptionally well. The best that I can do is give examples. Academic judgment is used to decide the marks awarded in examinations or other assessments, and ultimately to decide the class of degree. Only examiners are in a position to make such decisions, and to change that would be a serious infringement of their autonomy in academic matters. However, complaints would qualify if they related to procedural matters such as whether a student had access to an academic appeals committee and whether that committee was properly constituted. The OIA could

consider a complaint when a university was attempting to hide behind the excuse that something was a matter of academic judgment and it could be proved that that was not appropriate or reasonable.

I cannot give my hon. Friend a clearer and more definitive definition of academic judgment at this stage, but I do believe that the OIA will be best placed to make that judgment.

James Clappison (Conservative, Hertsmere)

The Under-Secretary is doing an admirable job of trying to define something that is difficult to define. Would he say that the concept academic judgment went so far as to include a lecturer or tutor who plainly was not giving good lectures or was not qualified to give the lectures in question?

Ivan Lewis (Labour, Bury South)

I certainly would not. One thing that members of the Committee agree on is the need to put more resources into our universities—however it is done—in order to raise standards and quality. No student should be short-changed in the quality of his learning experience. If there was evidence to support the contention that the quality of the learning experience was not up to scratch, the student would first complain through the usual channels within the institution. However, if necessary, he would then have the opportunity to go to the new independent adjudicator. With that in mind, I ask that the Opposition to consider withdrawing the amendment.

George Mudie (Labour, Leeds East)

I support the amendment—not, I hasten to add, that it would go to a vote, but I do not want it to be brushed aside. I am not suggesting, however, that the Under-Secretary has not dealt with it gracefully and with great wisdom.

About four or five years ago, when I was an Under-Secretary for Education and Employment, student complaints were discussed with universities. The universities were given 12 months to sort out the problem. They have not sorted it out. As was suggested the other day, a number have agreed a students complaint procedure, but many have not. We are now legislating for a students complaints procedure—so much for consensus, so much for waiting for the universities and their wisdom.

I was puzzled why we had taken time to legislate on the matter. I wondered whether the provision was merely padding to widen the Bill's provisions, so that it did not deal only with variable fees. Such a cynical comment would be unworthy of me, so I shall not make it. However, when I looked at the explanatory notes, I noted that human rights were involved. I then realised that cynical people, such as myself, would know why the provision had been included. The universities could not be persuaded to act—in my time, they had no intention of acting. We let the timetable of 12 months' notice extend to five years, and only now are we legislating. I suspect that we are legislating only because of human rights issues. If we let the matter go, it would be challenged in Europe. Indeed, the explanatory notes suggest that strongly.

The hon. Member for Harrogate and Knaresborough suggests that we should also deal with the prickly issue of staff complaints. However, much as

I am sympathetic with the Under-Secretary and much as I think his argument was first- class, I suggest that the problem will not be dealt with properly. On the evidence, one cannot expect universities to regulate themselves and agree something. The slowest will always set the pace—and that is very slow. I would rather that the Under-Secretary decided to consider the matter. If he thinks that there is merit in the suggestion, I hope that he will examine whether an opportunity arises as the Bill passes through its various stages to do something about it.

The solution cannot be left to the universities, and we will not get another chance to introduce fresh legislation for a long time. We should grasp the opportunity now. The universities have had their chance and demonstrated that they do not have the will to act.

Tim Boswell (Conservative, Daventry)

I have some sympathy with the point made by the hon. Member for Leeds, East (Mr. Mudie). I had very little experience in my time as an Education Minister of the actual operation of a visitor system and, of course, could not have nobbled it had I chosen to do so. I remember one case that was drawn to my attention, which, without identifying the institution, took place outside England. There was a procedure in which the visitor was invoked. However, as I think that that was Her Majesty, somebody had to stand in and consider the complaint for her. My only comment on the process is that it was very messy and extremely prolonged. The member of staff involved was supported by their union.

I say to the Committee only that there is a potential problem. I am not disposed to challenge the Under-Secretary's judgment about the need to concentrate on student complaints. That is proper and we need to get that working, but we should not close our eyes to the fact that institutions need to have viable arrangements. They may need to think about whether those arrangements need to be updated. Above all, they need to ensure that the delivery of a resolution of those complaints is reasonably timely and proper.

Ivan Lewis (Labour, Bury South)

It feels like a Yorkshire conspiracy against a Lancastrian, with the two hon. Members joining up. May I respond to the comments from my hon. Friend the Member for Leeds, East who as usual made an important and reasonable contribution? Why he is being unfair, and the reason we are putting this on the statute book, is because the higher education sector has created a self-regulatory framework that it has asked us to underpin by statute in this Bill. The implication that the higher education sector has not acted about student complaints is very unfair. It has already established the OIA, and, although not every part of the sector has signed up to it, the majority of institutions has. The sector has then said that by putting this on the statute book all students in all institutions can be sure of access to a high quality, transparent complaints process.

While I accept my hon. Friend's point, which is the same point as that of the hon. Member for Harrogate and Knaresborough, that the status quo on staff

complaints is not good enough, I do not believe that the case has been proven that the complaints process that we are establishing for students in the Bill would necessarily be the right vehicle for an independent approach to staff complaints, and there is no significant consensus in the sector that would support that. I do not want to add more, but I would ask the hon. Gentleman to withdraw the amendment.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I thank the hon. Member for Leeds, East for his support for the amendment. The Under-Secretary is right that the universities came up with an independent system for adjudication, although not all of them did; some have opted out and refused to play ball. They came up with the system as a result of the Nolan committee and the post-Nolan inquiry that was set up by Universities UK in response. There was a process by which they were brought to this point.

I will not be pressing this to a vote, because I hope, like the hon. Gentleman, that the Under-Secretary will reflect on this and come back on Report with an appropriate amendment of the Government's making. What amazes me, and what I do not think that the Under-Secretary responded to, is that it cannot be right to argue that the current visitor system for students contravenes the Human Rights Act 1998, but that the one for staff does not. There seems to be an inherent contradiction in those two positions.

We have an opportunity in the Bill to resolve the matter. Clearly the university sector will not do it, and yet we have the staff of the universities urging the Government to do so. We cannot have a twin system for dealing with academic staff complaints, one of which depends on the old visitor system—which is archaic according to the Secretary of State—and another that will apply mostly to the redbrick and new universities. I beg to ask leave to withdraw the amendment, but I urge the Under-Secretary to look at this again.

Amendment, by leave, withdrawn.

Simon Thomas (Plaid Cymru, Ceredigion)

I beg to move amendment No. 209, in

clause 12, page 5, line 19, at end insert—

'(c) who is applying to become a student at that institution.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments: No. 248, in

clause 19, page 7, line 37, leave out '(2) or'.

No. 249, in

clause 19, page 7, line 38, leave out subsection (2).

Simon Thomas (Plaid Cymru, Ceredigion)

I hope that I need not detain the Committee long on this amendment.

We have been discussing the staff implications of the Office of the Independent Adjudicator, but it is important that we also consider another group of people at present seemingly cast outside the remit of this Bill: those who apply for places at universities and are refused. Such refusal can be given not just on academic grounds but for all sorts of complex reasons,

as we know from several famous cases in the last year or so in which the Chancellor of the Exchequer himself became involved.

We know that things can go wrong with the application process. Certain decisions can be made that are nothing to do with an applicant's academic abilities, but rather concern other qualities that a particular institution may be looking for. Before we consider this amendment, it is important that we recognise that OFFA does not deal with such situations.

OFFA, as set out in this Bill, will work with institutions at the strategic planning level only; it will have to agree their fair access plans with them, but my reading of the Bill is that it will not intervene if these plans fail in individual cases. OFFA will try to get things right, but if there is a failure on admissions, there is nothing in the Bill that says that an applicant can then turn to OFFA and say, ''Hey, this university has failed in what it said it would do.'' Of course, if there is a pattern of failure, the Higher Education Funding Council could step in and say, for example in the Welsh context, ''You have not succeeded in attracting the target of applicants from the 100 most deprived communities''. The Welsh OFFA would be able to do that with Welsh universities, but it would not intervene in individual cases.

I shall briefly tell the Committee of a constituency case that I have been dealing with in the last three weeks that has made me realise that we need to debate the matter in Committee. Hopefully the Under-Secretary can explain how such a case would be dealt with in the future, if not through this amendment.

The case concerns Mr. Cemlyn Davies, the head boy of Ysgol Penweddig, the bilingual Welsh language school in Aberystwyth. In passing I will say that Ceredigion has some of the best A-level results in England and Wales, and Penweddig is one of the best schools in Ceredigion, so there is a good academic record at this institution. Cemlyn, whose name is public and has been in the press, was studying for A-levels and wanted to study politics at the university of Nottingham. He had a successful interview and the university said that it would offer him a place. It wanted him to achieve two A's and a B, or whatever, in three of his four A-levels, but one of his subjects was Welsh and it said that it would not count that result, as Welsh itself did not count.

Cemlyn is a first language Welsh speaker studying a Welsh A-level, in the same way that any English speaker would study an English A-level. My hon. Friend the Member for Aberavon (Dr. Francis) will know that a Welsh A-level is the same as an English A-level, in which one studies history, literature and everything in the same way. We are not talking about a second language qualification. Curiously, Cemlyn was studying English as well, so this university was prepared to accept an applicant's success in an A-level in English, but not in Welsh.

Needless to say, as soon as a very able and bright pupil in one of the best schools in Ceredigion was told that his Welsh qualification would not count, the media knew about it pretty quickly, as did I. So did the

Commission of Racial Equality, which announced an inquiry into the university's decision. Within a week the university had reversed its decision and said, ''Please come to us'' and, almost, ''We will take whatever you get.'' They said that they would accept his Welsh A-level. Of course, in that time the confidence and trust between the applicant and the university had broken down, and Cemlyn decided to go elsewhere. The publicity engendered by the case led to several other people contacting my office with similar stories. Similar things had happened at Bristol university and in the past at the London School of Economics.

We cannot know how in the past those academic judgments were made. It is clear, though, that in the case of the university of Nottingham it was not an academic judgment but a prejudice against one particular subject. There is no reason on earth why an A-level in Welsh is not more or less relevant to studying politics than an A-level in English. I do not accept that it was an academic choice. Indeed, the university itself, by reversing the decision and holding up its hands, also accepted that it was not an academic choice. To be fair to its academics, they acknowledged their mistake.

That highlighted the question of to whom the applicant would have turned had the university held firm. Yes, he could have gone to the press or come to me, or involved the Commission for Racial Equality because we have the Welsh Language Act 1993 that gives equal status to Welsh and English. But in another context, involving an applicant with a different sort of A-level or approach, or with different cultural values or confidence or whatever, how would such a dispute be resolved? That is the question that I had in mind when I approached the Bill.

Jonathan R Shaw (Labour, Chatham and Aylesford)

I am listening to the hon. Gentleman with interest. He referred to other cases where people had contacted his office. Were they also issues about the Welsh language or were they about other A-levels?

Simon Thomas (Plaid Cymru, Ceredigion)

I thank the hon. Gentleman for the opportunity to clarify the matter. Those cases were about the Welsh language and not any other A-level or circumstance. But, as I said at the beginning of my remarks, we also know about other cases over the past couple of years that have had a high profile in the press where there have been other issues at stake.

I have set out the example and the fact that in such cases there does not seem to be any independent body that can arbitrate or resolve disputes. It is a question for the Committee and for the Government; there needs to be an independent body, and no doubt the Under-Secretary will have something to say about it. But if we are establishing an office of an independent adjudicator to look after student issues in the realm where students have been accepted by universities, it does not stretch the principle of such an independent adjudicator to say that that office could also look at individual applicants.

Tim Boswell (Conservative, Daventry)

Before the hon. Gentleman sits down, does he agree that there may be some read-across into, for example, equal opportunities law, in that a refusal to employ on the grounds of a patent disability, for example, if inappropriate, may attract the attention of the disability legislation?

Simon Thomas (Plaid Cymru, Ceredigion)

The hon. Gentleman opens up a new avenue of argument, which I will not go down, but I agree that it is relevant and pertinent. I have concentrated on one constituency example, but we know that in the past disabled applicants have found it difficult to be accepted by colleges and universities. We do not know what goes on in people's minds in that way; we cannot legislate in that sense for discrimination.

But if OFFA—or its equivalent in Wales—is to set strategic plans and say to universities, ''You need to have these procedures in place for fair access'', and if an independent adjudicator will look after students once they have been accepted into the institutions, the question remains of whether there is a missing link regarding the applicants? How can we ensure that applicants going forward under schemes to universities overseen by OFFA are fairly treated; how can we ensure that there is no unseen discrimination of any type, whether it is against a particular A-level, disability or any other type of discrimination?

For example, when we return from the half-term break we will be discussing the Gender Recognition Bill. If a person who had changed his or her gender sought to go into a particular single-sex hall or applied for a place, how would the application be resolved? Those issues need clarifying, and I hope that the amendment will allow us to have a debate so that the Under-Secretary can respond to our concerns.

Tim Collins (Conservative, Westmorland and Lonsdale)

In addition to commenting on the remarks that the hon. Member for Ceredigion (Mr. Thomas) made in support of amendment No. 209, I shall speak to amendments Nos. 248 and 249. Like the hon. Gentleman, Conservative Members are keen for the Under-Secretary to clarify the Government's intentions.

Amendment No. 249 would delete the proposal in clause 19 that a visitor be prohibited from making a ruling on a complaint

''in respect of an application for admission to the qualifying institution as a student.''

In responding to the hon. Gentleman, the Under-Secretary may say that it is not for the new OIA to consider such complaints. However, clause 19(2) implies that the Government believe it necessary to remove an existing right for visitors to rule on such complaints.

The Under-Secretary may tell the hon. Gentleman that we can leave things as they are and that there is no need for change, but he cannot realistically use that argument to resist amendment No. 249, because the Bill suggests that the Government are seeking to prohibit a practice that would continue in the absence of clause 19(2). It would be interesting to have an

indication from the Under-Secretary as to why the Government feel the need to circumscribe any existing freedom of manoeuvre that visitors may have.

We understand that visitors do not use their powers very often, and we should put on record the fact that, overwhelmingly, universities have a good record on assessing admissions. It is not our contention that there is a fundamental problem of the sort that recently caused the Chancellor of the Exchequer to get very hot under the collar. On the contrary, broadly speaking, universities take sensible and correct decisions, and it is an important part of academic freedom that they, rather than outside bodies, should make the decisions. None the less, amendment No. 249 is an attempt to tease out from the Government why they seek to remove an existing right of appeal to visitors. In a sense, such people are part of the universities, which certainly do not regard them as a threat to their academic freedom or independence. Of course, visitors do not spend most of their time making such decisions, but it is interesting that the Government feel it necessary to prohibit them from doing so in the Bill. From time to time, people who apply to higher education institutions will make complaints, which they will want to have properly and fully considered. Although I am likely to have more, not less, sympathy with the Under-Secretary's resistance to amendment No. 209, which was moved by the hon. Member for Ceredigion, I would be interested to hear why he feels it necessary to go beyond the status quo by removing an existing right.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I rise to support amendment No. 209, which was moved by hon. Member for Ceredigion, and I hope that the Government will revisit the issue.

The Bill represents a new departure for the admissions process. I agree with comments that have been made about the process through the Universities and Colleges Admissions Service to universities with their own admissions systems. My colleagues and I would certainly not want to interfere with the decisions that those systems make about admitting people on the basis of academic merit rather than other things, and we shall return to that.

The Bill introduces a third party—OFFA. The need for OFFA to agree their plans will affect universities' admissions, because, in order to get the money from the students, they will have to satisfy OFFA that they plan to broaden access. That will lead to complaints such as the one that arose when Bristol university considered a system of preferential entry on to certain courses by certain groups of students. There will be a case for people to claim that they have been excluded from a university not because of the merit of their qualifications but because, thanks to a plan agreed by OFFA, there are insufficient places for people in their category, or from their background. I hope that that will not happen—I am sure that the Under-Secretary will say that it will not—but it is more likely to occur in the future than it was when there was a direct relationship between the university and the student admissions system.

Graham Allen (Labour, Nottingham North)

I hate to interrupt the hon. Gentleman in full flow. Is there any shred of evidence from any Minister or elsewhere—[Interruption.] I shall let the hon. Gentleman take his pager message; it could be the answer coming through, and I think that it will be no—that that is the intention, or that the Government are not wholly aware that they must ensure that it does not happen accidentally?

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I am amazed at the hon. Gentleman's faith. If he believes what he says, what is the point of OFFA? If everybody is so pure and decent—I shall not go down that route. I have made the point and I am sure that we shall come back to it.

Mark Francois (Conservative, Rayleigh)

I served with the hon. Member for Nottingham, North (Mr. Allen) on the Criminal Justice Bill for some two months. There were certainly times during that process when he lacked faith in the Government.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I rest my case.

Ivan Lewis (Labour, Bury South)

We have had an important debate, and there have been some interesting contributions. Before we go any further, we need to dispel the myth that OFFA is about admissions. It is about access to higher education. We must be clear about that; it is only Opposition members who do not understand the distinction. Some of us represent constituencies in which, for years, young people have been denied access to higher education because of low aspirations, because they reach the age of 18 without the two A levels that they need to get into higher education, or because they were turned off education at the age of 12 or 13 when they were told that academic, or even vocational, routes into higher education were not for them.

Those are the issues that are relevant in terms of higher education institutions and OFFA. It is about higher education institutions reaching out into communities in which low aspirations are culturally endemic and attacking and changing those aspirations. The role of OFFA is to achieve a university student composition that is far more representative of our society; that is the transformational change that the Government seek to make in communities in which, historically, the aspirations, educational standards and expectations of young people have been far too low.

Roger Gale (Conservative, North Thanet)

Order. This is absolutely riveting. It has a great deal to do with matters that I suspect we shall discuss next week but nothing to do with amendment No. 209. Perhaps the Under-Secretary would like to return to the point, and I extend that invitation to the rest of the Committee.

Ivan Lewis (Labour, Bury South)

Thank you, Mr. Gale, for the five minutes that you allowed me in which to put on the record what OFFA is really for.

Roger Gale (Conservative, North Thanet)

Order. The Under-Secretary should not imagine that it will not be taken off his time next week.

Ivan Lewis (Labour, Bury South)

Fortunately I shall not be contributing next week.

Alan Johnson (Labour, Kingston upon Hull West and Hessle)

You should have said the week after, Mr. Gale; we have a week off.

Ivan Lewis (Labour, Bury South)

I shall deal first with the situation that the hon. Member for Ceredigion described involving the Welsh student. That case was unacceptable. Universities UK is writing to all English higher education institutions to make it plain that, in any academic judgment, such attitudes towards A-level Welsh are completely unjustifiable. The hon. Gentleman was right to point out that the university reversed the decision. After there was a public clamour and, I presume, the person affected went to his Member of Parliament and the media, the university did the right thing.

If in such cases the university does not do the right thing, however, the young person affected or their family would be able to consider either going to judicial review or using equality legislation. I cannot determine whether a court would define what happened to the individual in question as relevant under equality legislation, but if a university admissions process has been exhausted and somebody feels aggrieved that a grave injustice has been done, the opportunity remains for that individual either to seek judicial review or to go to the courts under equality legislation. It is important that that is clear.

We do not believe that it is appropriate for the OIA to interfere with admissions decisions, just as we do not believe that it is appropriate for OFFA to do so.

David Rendel (Liberal Democrat, Newbury)

Would the Under-Secretary like to comment on whether judicial review is likely to be as cheap or quick as going to the OIA.

Ivan Lewis (Labour, Bury South)

I have no way of knowing the relative costs, but I am not sure that that should be the major factor determining our position on the issue.

Tim Boswell (Conservative, Daventry)

The Under-Secretary referred to equality legislation, on which I want to pick him up, just as the hon. Member for Newbury did. I can understand that such legislation might be relevant in cases involving ethnicity or linguistic competence, which are distinct from academic judgment. We shall in due course discuss OFFA, but does equality legislation take any account per se of socio-economic class, either of the student or their family?

Ivan Lewis (Labour, Bury South)

No, it does not.

Graham Allen (Labour, Nottingham North)

I thank my hon. Friend for making clear OFFA's position in respect of admissions. Should he not also make it clear that it is damaging that there is a perception, which is put about by people for reasons of good political banter, although it is believed by people, rather like the nonsense about student debt being aggravated by additional payments, that in fact—

Roger Gale (Conservative, North Thanet)

Order. The hon. Gentleman knows me well enough not to try my patience.

Ivan Lewis (Labour, Bury South)

Thank you, Mr. Gale. Perhaps I shall speak to my hon. Friend later to reassure him that it is difficult and dangerous when politicians perpetuate myths that affect the judgment of the population and distort reality. Such perceptions cause young people and others to make wrong choices and have wrong views about the equity of the system.

Mark Francois (Conservative, Rayleigh)

Following on directly from what the Under-Secretary said, if we want to talk about altering perceptions, what more could one do to confuse people than to breach a manifesto commitment?

Roger Gale (Conservative, North Thanet)

Order. I really must ask the Committee to address the amendment. There are matters that will be discussed, as was rightly pointed out to me, the week after next, when I am sure such issues will come up. However, now is not the moment.

Ivan Lewis (Labour, Bury South)

Thank you, Mr. Gale. I shall follow your advice.

On amendments Nos. 248 and 249, what is so ironic about the visitor, whose current role in some universities is to deal with appeals against admissions decisions, is that in many circumstances, it is effectively a Minister—either the Lord Chancellor or the Lord President. We are further reducing the Government's capacity to intervene or interfere in admissions decisions by taking the visitor out of the dynamic in terms of the consideration of students' grievances about admissions decisions. I hope that the hon. Gentleman will see that as progress.

The Government have distanced themselves even more from interfering in admissions decisions and have not taken away a right that helps students. I believe that it is appropriate to remove the role of the visitor in that context. By doing so, we shall significantly reduce Government involvement in admissions decisions. I ask the hon. Gentleman to withdraw the amendment.

Simon Thomas (Plaid Cymru, Ceredigion)

Two important issues have been raised. I cannot talk about one, because we shall talk about it in a fortnight's time. The second is the fact that my amendment and amendments Nos. 248 and 249, which were tabled by the hon. Member for Westmorland and Lonsdale, show the emergence of a partial provision for applicants through the visitor system.

We know that the visitor system is rather archaic—some would argue that it is long-winded and not easy to use. We decided to retain it just for the staff, but it will be abolished for the applicants. However, no other system is being put in its place. That is a failure. I hope that the Under-Secretary will at least spend a little time thinking about it. What is currently available for some applications to some institutions—many of them are the older more traditional institutions that have shown the sort of attitude to applicants that we want to do away with in the Bill—is being taken away, yet those

institutions may have an attitude to certain socio-economic backgrounds and so forth. Those applicants will no longer have an avenue for appeal, as nothing else is being put in its place.

I sense that I have been outgunned on the amendment, so it would serve no purpose to divide the Committee. However, I hope that the Under-Secretary will consider the situation. I hope also that other organisations, such as Universities UK and the students unions, will consider what is best for applicants and what system—both in terms of OFFA and the OIA—would best fit in the Bill. As we cannot make much more progress at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Roger Gale (Conservative, North Thanet)

Before we proceed, I must point out that one of the reasons why I am sitting here and why hon. Members are sitting where they are sitting is that my unenviable task is to try to keep the Committee not only on track but on time. We have eight clauses and four schedules to debate in rather less than one hour. I understand the temptation, but I would be grateful if hon. Members would try to confine the debates to the matters under discussion.

Tim Collins (Conservative, Westmorland and Lonsdale)

I beg to move amendment No. 184, in

clause 12, page 5, line 21, at end add—

'(3) For the purposes of this section matters of academic judgement will not include reasonable adjustments to the assessment process to meet the access needs of disabled students.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following: New clause 4—Application of limit on time for complaints relating to disability—

'For the purposes of paragraph 13(2) of Schedule 3 to the Disability Discrimination Act 1995 (c.50) a complaint referred to the body designated by the Secretary of State or the Assembly in Wales under section 13 shall be deemed to be conciliation under section 31B of that Act.'.

Tim Collins (Conservative, Westmorland and Lonsdale)

The amendment and the new clause were tabled at the specific request of the Royal National Institute of the Blind and of Skill, the National Bureau for Students with Disabilities. I am delighted to note that not only do they attract the support of my hon. Friends, but that of the hon. Member for Cambridge (Mrs. Campbell). I am genuinely hopeful that the Under-Secretary will recognise that they were not tabled in a partisan spirit, and that they are not an attempt to trap or inconvenience the Government. They reflect the legitimate lobbying of legitimate interest groups, which believe that the Bill could be improved if the Government were to accept the changes. I hope that the Under-Secretary will reflect carefully on them. The amendments seek to address the entirely understandable concern of those who lobby on behalf of people with disabilities that the Bill should provide the maximum protection for the practical circumstances that may arise.

Amendment No. 184 would allow the OIA to hear complaints against a university or other higher education institution about its failure to make a reasonable adjustment to the assessment process to meet the needs of disabled students. Such students want to ensure that a university's legitimate and desirable defence that a matter falls within the sphere of academic freedom should not excuse it from making proper facilities available to disabled students so that they have as equal a chance of succeeding as other students.

The RNIB entirely accepts, as I am sure we all would, that a student who turns in a very poor piece of work, who does not apply themselves properly or who does not turn up to lectures should be censured and marked down whatever their background and circumstances. If, however, a student is visually impaired and cannot complete an exam because the university has failed to provide them with the appropriate materials to enable them to read the question properly and to reply to it properly, the RNIB argues that the university should not be able to say that the matter falls within the sphere of academic freedom and that the adjudicator should not consider the complaint. I am delighted to say that many hon. Members on both sides of the Committee believe that to be an entirely reasonable point.

I know that the RNIB and Skill have corresponded with the Minister of State. In the material that they circulated widely to all members of the Committee, they explicitly state that they very much welcome the spirit in which he has replied. They do not question the sincerity of his wish to address their concerns, but they note that he concludes in his correspondence with them that the reviewer who works for the OIA should ultimately decide the merits of the case. They believe that it would help to provide proper and appropriate guidance to the reviewer if the Bill made it clear that the needs of disabled students must properly be taken into account within the sphere of academic freedom.

No one on either side of the Committee wants to limit artificially or unreasonably the sphere of academic freedom. We are all signed up in principle to the idea of academic freedom, and the Opposition will want to table amendments to later clauses that are designed to increase academic freedom. We do not believe that universities are malicious, malevolent or incapable of taking reasonable decisions, but we do believe that organisations that lobby for disabled people have identified a possible loophole in the legislation that could unfortunately be exploited in certain circumstances and could injure the interests of disabled students.

New clause 4 was tabled in the terms requested by the RNIB and by Skill. It refers to the disabilities legislation passed in 1995 and to the Special Educational Needs Disability Act 2001. It is intended to ensure that a disabled student has sufficient time to enter an appeal to enter a register of complaint.

Simon Thomas (Plaid Cymru, Ceredigion)

I strongly support the hon. Gentleman's argument. However, we should point out that new clause 4 seeks to apply the Disability Discrimination Act 1995 to the body set up by the

Welsh Assembly that his amendments to clause 13, particularly amendment No. 33, seek to abolish. Does that not undermine his case?

Tim Collins (Conservative, Westmorland and Lonsdale)

It is very kind of the hon. Gentleman to assume that not only that one of my amendments would be accepted by the Committee, but that we would reach a slew of amendments tabled by me that would be accepted. On these matters, he is slightly more optimistic than I am, and we will consider each group of amendments as we come to them.

I am slightly more hopeful than normal here because this amendment has cross-party support and has been tabled in precisely the terms advanced by a legitimate, well respected and well supported set of disability groups. I am optimistic that it may be possible to persuade the Under-Secretary to accept it. I am rather less optimistic about the latter group, but we will deal with it in due course, Mr. Gale, otherwise you might rebuke me for straying out of order.

Roger Gale (Conservative, North Thanet)

Correct.

Tim Collins (Conservative, Westmorland and Lonsdale)

I was trying to explain the details of new clause 4, which seeks to extend by an additional two months the six-month appeal period provided under the Special Educational Needs and Disability Act 2001. The organisations that asked us to table and consider these amendments in Committee make it clear that they welcome the new complaints procedure. They feel that it offers an additional route outside the costs, complications and various other difficulties associated with taking matters to court. They stress that they would prefer not to advise people to go to court because of the problems that often result when they do so, which is a sensible proposition for us all.

The groups explain, however, that there is a slight inconsistency in the way that the procedures might work. At the moment, students have only six months to take cases of disability discrimination to court, so that by the time they have exhausted both the university's internal complaints mechanism and the independent students complaint mechanism, the six months allowed for making appeals might have passed. If new clause 4 were to be written into the Bill, the same two-month extension would be added to the time limit that is already available to students who take a complaint to conciliation through the Disability Rights Commission.

In other words, Parliament has already legislated to reflect the fact that there should be, as it were, penalty time—additional time added so that one does not lose the right to go to court because one has chosen to go through a conciliation mechanism instead. All of us want to avoid overburdening the courts and to spare a group of people—because of their nature, they are necessarily disadvantaged and unlikely in most cases to be particularly well-off—the costs and difficulties of going to court. If they choose to go through a route that is an alternative to a court case, surely they should not be penalised for doing so, but given an extra two months. That is a reasonable request, which reflects what is already in place under existing legislation in a similar context. They are not asking for a 12-month extension, merely two months.

It is my hope that the Under-Secretary will, on reflection—and, I am sure, having taken considerable advice—be able to conclude that although the amendments happen to be tabled in my name and that of the official Opposition, they are not tabled as a party political matter; they have the support of the hon. Member for Cambridge and we have heard that they are likely to attract the support of a number of other parties here. It would be to the Government's credit if, having reflected on the purpose behind the amendments, they were able to say that although their original view was that the legislation as first drafted was fine in all its respects, they were prepared to listen on the matter.

I would be delighted if the Under-Secretary could accept the amendments as they are. If we cannot quite persuade him, I hope that he will undertake to reconsider the matter and consider tabling similar amendments at a later stage. Many vulnerable people outside would welcome that and believe that the legislation would be improved if the Government could move in the direction that I have suggested.

Anne Campbell (Labour, Cambridge)

As this is my first contribution to the Committee may I welcome you, Mr. Gale, and say how much I look forward to working with you? I do not want to add much to what the hon. Member for Westmorland and Lonsdale said, but it is worth pointing out, as he remarked, that the amendments were requested by the Royal National Institute of the Blind and by Skill, the organisation that deals with students with disabilities.

As I was reading the example provided by the Royal National Institute of the Blind—of a blind student not being able to complete an examination properly because of the failure of the university to supply appropriate materials—it occurred to me that a far more common case is probably of that of a student suffering from dyslexia. In my experience it is very common for students with dyslexia not to have their disability recognised and also for institutions on occasions to fail to provide either the extra time that a dyslexic student needs or some facility to enable them to complete their examination. It would be very useful to have some kind of clarification from the Under-Secretary on this issue. Would the whole process of academic judgment preclude that kind of complaint from a student who failed the examination because of the university's failure to provide proper materials, time or facilities to cater for that disability?

On new clause 4, one of my experiences of helping students with a complaint about their academic institution—it was not related to disabilities in this case—dragged on for months and months. I know that the internal university complaints procedures are often not as efficient as they might be and if added to the independent complaints procedure could take a great deal longer than six months. Therefore, this is a sensible amendment. It is sensible to add at least two months to the time before which a student can go to the special educational needs and disability tribunal and take action under the Disability Discrimination Act

1995. I hope the Under-Secretary will support these amendments or at least clarify what the situation is and how the law should be interpreted.

Tim Boswell (Conservative, Daventry)

I rise briefly in support of these amendments and am grateful for the hon. Lady's contribution, as well as to my hon. Friends for moving them. The background for my doing so is that I was the only Member who spoke on Second Reading who flagged up the particular sensitivities of disabled students. I do not claim to have done more than any other Member might have done, but I then received a briefing from Skill and the RNIB. Beyond that I can claim the credibility of having led for our party in relation to the Special Educational Needs and Disability Act 2001. I have had an interest in this area for some time and a huge respect for both Skill and the RNIB and for the other leading disability institutions in their work for disabled students.

I need not return to the point, but individual disabled students have particular difficulties. The interface between their disability and academic judgement is one of the most sensitive of all. I would like to put on record that many institutions are sensitive to the interests of their students with a particular need—be it continuing or chronic conditions, including some such as dyslexia that are more difficult to tie down than a physical condition, or it may be a particular acute problem, such as migraine. They generally seek to meet those. The essence is that there should be proper address if they do not.

Above all, in cases where there is any suspicion—it has happened in the past and may happen from time to time in the future—that an institution has tried to dress up dealing with the inconvenience or expense of a disabled student under some kind of academic guise, it is entirely right that disabled students should have their rights observed like everyone else. It is equally desirable that they should not rush into court at the first drop of trouble. All reasonable opportunities to conciliate, to mediate and to use the internal and adjudicator procedures should be the preferred route.

My experience of the 2001 Act raises a particular problem, which the RNIB has drawn attention to in a wider context. It concerns the operation of the Act in further and higher—post-compulsory—education compared with its operation in statutory age education, where the special educational needs and disability tribunal, as my hon. Friend the Member for Epping Forest (Mrs. Laing) will well remember, has its remit. If there is a tribunal, people will use it. If they have to go to the courts to enforce their rights it is much more difficult, even with the assistance of Skill or the Disability Rights Commission.

I hope that the Under-Secretary can respond positively to the amendments: in respect of the issue of the interface with academic freedom and in particular the entirely reasonable point that there should be more time to exhaust the process. We are not asking for the time limit to be extended indefinitely, but a reasonable amount of time should be given for everything to be done before it is necessary to press the legal trigger.

Ivan Lewis (Labour, Bury South)

May I welcome the contribution of my hon. Friend the Member for Cambridge to the debate? It has been some time since we worked together. I think that there was a time when she, my hon. Friend the Member for Halton (Derek Twigg) and I ran the Department of Trade and Industry—at least, we were Parliamentary Private Secretaries in that Department, but my hon. Friend the Member for Cambridge knows what I mean.

I would also like to pay tribute to the work done over many years for students with special needs by the hon. Member for Daventry. He genuinely cares about protecting their interests at every opportunity. I think that every member of the Committee feels strongly that individual institutions and the higher education sector as a whole have a responsibility to ensure that disabled people do not experience any discrimination in those institutions and, further, have the equality of opportunity to demonstrate their talent and potential. It is important that we consider the amendments in that context.

The hon. Member for Westmorland and Lonsdale made some important, salient points on amendment No. 184. The difficulty is that we have debated a range of specific and tangible examples where judgments will have to be made about the difference between cases of academic freedom and academic judgment and legitimate sources for consideration by the independent complaints process. It is therefore difficult, even on an issue such as this on which we all agree, to make specific provisions in the Bill to single out the issue. Where does one draw the parameters? In each example, the ambiguity might cause some confusion and lack of clarity.

The Government are sympathetic to considering the issue in order to ensure that disabled students are not discriminated against and that it is not possible to hide the discrimination of disabled students behind the fig leaf of academic judgment. In asking the hon. Gentleman to withdraw amendment No. 184, I also ask him to accept that the Government are willing to go away and consider the objective and purpose behind it.

I move on to new clause 4. Anything called clause 4 is always a difficult one for us; I might not be able to accept new clause 4 and continue to have a career in this Government. The serious point is that there is perhaps a need for clarification rather than a need to accept the new clause. First, the six-month time limit under the Disability Discrimination Act 1995 starts once the institution's internal procedure has been totally exhausted. Secondly, it is not generally understood that paragraph 3 of schedule 2 makes it clear that when students have lost a case with a court but asked for proceedings to be stayed, it does not prevent access to the scheme. In other words, the six-month period for submitting a case to court will not be exhausted while the OIA considers the student's complaint. That should give the organisations that are concerned, and hon. Members too, the guarantee and protection that if the individual makes it absolutely clear to the court that the matter is being considered by the OIA, the court has the capacity to hold on to the

case and not to say that the complaint under the Disability Discrimination Act should fall because the time period has lapsed.

Tim Boswell (Conservative, Daventry)

I am asking for this issue to be clarified in schematic terms. If the alleged offence takes place, or is apparent, at a certain time, the student complainant has six months to take it through the academic institution's internal procedures, and then must have filed suit with a court in order to obtain redress. However, that can be stayed while, at the same time, he is pursuing the parallel issue of an investigation by the student adjudicator. Is that broadly what the Under-Secretary is arguing?

Ivan Lewis (Labour, Bury South)

No, not really. This is complex, but it is important that we get it right. I do not know how long it takes to exhaust university internal procedures, although obviously we hope that it will be as short a length of time as possible. It is only at the point when all of those processes have been exhausted that the six-month period begins and, having gone to court, the student can make it clear that the OIA is considering the matter. Until the adjudicator has adjudicated, the court will not say that the six-month limit to the DDA legislation has begun.

Tim Collins (Conservative, Westmorland and Lonsdale)

I recognise that the Under-Secretary is genuinely trying to help here, but I wonder if I may tease out from him the potentially significant difference between the provisions of new clause 4 and what he is saying. As I understand it, he is saying that a disabled student, who therefore has an awful lot of other things to worry about, needs to flag up that they are going to the OIA right at the beginning when they first go to court, in order for the court to stay the start of the stopwatch. If for whatever reason the student does not do so, then the stopwatch starts and runs to the normal six-month timetable. Surely that is inferior to the automatic two-month extension provided by new clause 4.

Ivan Lewis (Labour, Bury South)

As long as the court is informed at any stage within the six-month period that the OIA is considering the matter, the court will suspend its consideration and will not be able to argue that the time period has elapsed.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

That is not clear.

Ivan Lewis (Labour, Bury South)

I am trying to clarify the position, which I hope offers reassurances to disabled students, their representative organisations and hon. Members, and addresses the anxieties they have outlined.

Tim Boswell (Conservative, Daventry)

I am grateful, and if I may say—as I did not earlier, and it would be most churlish not to—I am most grateful for the Under-Secretary's remarks personally.

Will he make it clear to the Committee that there is no handle within the Bill in any sense regulating or constraining the operation of the university's internal procedures? I do not want to debate that now, but if the university is carrying out an internal inquiry there

is no time limit on that. There is no way of reducing it to a reasonable time if it is clearly unreasonable for the student who has made the complaint.

Ivan Lewis (Labour, Bury South)

There will be a debate later on in this Committee about time scales and clarity of parameters in respect of the OIA, but this Bill does not deal with institutions' complaints processes and procedures. With that, I respectfully request that the amendment be withdrawn.

Tim Collins (Conservative, Westmorland and Lonsdale)

I welcome the fact that the Under-Secretary has recognised that there are serious issues here. However, there is a distinction on this matter between his response to amendment No. 184 and his response to new clause 4. His response on amendment no. 184 was extremely welcome because he indicated that, although he could not accept the amendment at the moment, the Government would undertake to look at these matters again. He asked us to withdraw the amendment on that basis, and we would be happy to do so. However, I look to you, Mr. Gale, for guidance on this point. Given that I was not entirely satisfied by what the Under-Secretary was able to say about new clause 4, may we have a Division on that?

Roger Gale (Conservative, North Thanet)

It will be possible to divide on clause 4, but not at this point in the Bill. We will reach the appropriate point later in our proceedings, and I am sure that I will consider the matter then if I am given notice.

Tim Collins (Conservative, Westmorland and Lonsdale)

I am grateful to you, Mr. Gale. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Thomas (Plaid Cymru, Ceredigion)

I beg to move amendment No. 210, in

clause 12, page 5, line 21, at end add—

'(3) In this Part ''complaint'' means an expression of dissatisfaction with services provided or actions taken.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment No. 211, in

clause 20, page 8, line 4, at end insert—

'''complaint'' has the meaning given in section 12;'.

Simon Thomas (Plaid Cymru, Ceredigion)

Such Bills are usually stuffed full of definitions, but the definition of a qualifying complaint is not terribly convincing. I was more taken with that proposed by the Quality Assurance Agency for Higher Education, which is set out in amendment No. 210. We could argue for a long time about the definition of a complaint, but it might be a bit more useful if the Under-Secretary could give us an assurance that the Bill adequately defines a qualifying complaint and that those who feel aggrieved have sufficient grounds to make a complaint. The purpose of the amendment is to probe the arguments behind the definition in the Bill.

Ivan Lewis (Labour, Bury South)

Hon. Members will be pleased to know that I am not going to get into a long debate the definition of a complaint—[Interruption.] Some are disappointed, and I am sorry about that.

The problem with amendment No. 210 is the principle. When defining a complaint or a grievance, it is sometimes better not to be too prescriptive. Otherwise, we may end up trying to achieve something that is simply not possible. The hon. Gentleman says that the amendment would capture

''dissatisfaction with services provided or actions taken.''

That is perfectly reasonable, but it would rule out other matters that might form the basis of a valid complaint. To take just one example, the amendment would not capture an institution's failure to take action. We would, therefore, find ourselves in great difficulties if we sought to prescribe the definition of a complaint too clearly, too closely and too narrowly. We would also give lawyers yet more excuses to make lots of money, although I am very fond of some of the lawyers on the Committee.

Anne Campbell (Labour, Cambridge)

Will my hon. Friend clarify whether the definition of a qualifying complaint would include a complaint about discriminatory questions or attitudes during the interview process? He will be aware that several complaints have been made against universities whose interview processes students have judged not to be completely fair.

Ivan Lewis (Labour, Bury South)

That is a very fair question, but the answer is no, because those circumstances relate to admission. The student would have the option of going to the courts to seek judicial review or of turning to discrimination legislation.

Jonathan R Shaw (Labour, Chatham and Aylesford)

On a point of further clarification, will my hon. Friend clarify whether the clause would cover a student who complained about inappropriate comments that a lecturer may or may not have made?

Ivan Lewis (Labour, Bury South)

I assume that my hon. Friend means inappropriate comments made during the student's time at the institution rather than during the process of applying to that institution.

Jonathan R Shaw (Labour, Chatham and Aylesford)

Yes.

Ivan Lewis (Labour, Bury South)

That would be a legitimate source of complaint. If a lecturer made an inappropriate comment or asked inappropriate questions, the student would be able to make a complaint under the institution's procedures. If they were not satisfied with the outcome, they could go to the OIA.

Tim Boswell (Conservative, Daventry)

Given that the clause also relates to former students, will it bind institutions that provide such students with academic references?

Ivan Lewis (Labour, Bury South)

I doubt it, but I will seek clarification on that and write to the hon. Gentlemen.

Simon Thomas (Plaid Cymru, Ceredigion)

I want to clarify one thing. The Under-Secretary has explained why the clause is worded as it is. Does he expect the OIA to develop its own guidelines on what constitutes a complaint?

Ivan Lewis (Labour, Bury South)

Yes, and it is important that the process is, as far as possible, transparent and clear. The OIA should make the bounds of its jurisdiction clear to

potential complainants, but there will always be areas of ambiguity; that is where we must be clear about the role of the reviewer, or adjudicator.

Jonathan R Shaw (Labour, Chatham and Aylesford)

I wish to press my hon. Friend on a point that I made earlier, which I am grateful to him for allowing me to make, to which he replied that a complaint made by a student about an inappropriate comment in a lecture would qualify. If a student were to make an allegation that a lecturer made a sexist or racist comment, surely it would not fall within the remit of academic judgment?

Ivan Lewis (Labour, Bury South)

Absolutely not. If that kind of remark or comment were made, it would first be a matter for the institution's complaints process. If the student were not satisfied with that process, it would definitely be a matter for the independent adjudicator. There is no doubt whatever about that. With that, I ask that the amendment be withdrawn.

Simon Thomas (Plaid Cymru, Ceredigion)

I thank the Under-Secretary for clarifying what constitutes a complaint. That was my purpose in tabling the amendment. However, his response to the hon. Member for Cambridge introduced another issue: the whole aspect of what the independent adjudicator will do, and the remit of that job. We will need to return to that issue, probably on Report, to discuss whether complaints made by university applicants should also be covered by the OIA. Following the Under-Secretary's explanation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 12 ordered to stand part of the Bill.

Clause 13 - Designation of operator of student complaints scheme

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I beg to move amendment No. 151, in

clause 13, page 5, line 23, leave out 'body corporate' and insert 'person'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments: No. 32, in

clause 13, page 5, line 24, leave out 'corporate'.

No. 174, in

clause 13, page 5, line 28, after 'a', insert 'person or'.

No. 175, in

clause 13, page 5, line 29, after second 'the', insert 'person or'.

No. 176, in

clause 13, page 5, line 37, after 'a', insert 'person or'.

No. 177, in

clause 13, page 5, line 39, after first 'the', insert 'person or'.

No. 178, in

clause 13, page 5, line 43, after 'a', insert 'person or'.

No. 179, in

clause 13, page 5, line 45, after 'the', insert 'person or'.

No. 180, in

clause 13, page 6, line 2, after 'the', insert 'person or'.

No. 155, in

schedule 1, page 24, line 8, leave out 'body corporate' and insert 'person'.

No. 133, in

schedule 1, page 24, line 8, leave out 'corporate'.

No. 156, in

schedule 1, page 24, line 9, at end insert

'and is appointed Higher Education Ombudsman'.

No. 157, in

schedule 1, page 24, line 11, leave out 'body corporate' and insert 'person'.

No. 134, in

schedule 1, page 24, line 11, leave out 'corporate'.

No. 251, in

clause 18, page 7, line 12, leave out 'specified person' and insert 'body corporate'.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

You will be delighted to hear, Mr. Gale, that I am not going to speak to every amendment individually. [Interruption.] Well, if the Under-Secretary insists, I can do.

With these amendments, I seek to know why the Government are to introduce an Office of the Independent Adjudicator, rather than an ombudsman service. I have the support of the National Unions of Students, NATFHE and the Association of University Teachers, all of which are interested in exploring the idea of having an ombudsman for education services, rather than simply an Office of the Independent Adjudicator. Our discussions on clause 12, particularly those about applications, clearly lead us toward the introduction of an ombudsman service rather than the very limited OIA. I am sorry that the hon. Member for Nottingham, North is not in his place, because the debate will deal with the issue that he raises in amendment No. 186, which would amend clause 14.

The advantages of introducing an ombudsman service are simple. First, it would be provided outside the university system, and would be financed by the Government rather than the universities. Secondly, it would be in line with other ombudsman services in local government, Parliament, and the financial services. Thirdly, it would have widespread support from the public, students and academic staff.

I want to explore why the Under-Secretary refuses to go down that road and why the Government have turned themselves against it. Whether we like it or not, higher education is entering a ''commercial market''. I did not invent that phrase; it was first used by the right hon. Member for Barking (Margaret Hodge) when she was Minister for Lifelong Learning and Higher Education. She proudly announced that she wanted to see a market in higher education. She also said that some universities would go to the wall. That is what happens in a market—and the services provided by those universities disappear. It seems strange that we should have an independent ombudsman for financial services who deals with a complicated market

reasonably well. We are now moving to an educational services market, and I suggest that we ought to go down the same road. Admissions problems would clearly fit neatly into an ombudsman service.

A potential undergraduate contacted me recently to say that Cambridge university would not offer her a place to read medicine because she could not find the £50,000 necessary to guarantee her a place. It is appalling that a person who is entitled to student support funding and dependent on it should be turned away at the door because of her poverty. Allegedly, the master of the college said that he could not risk having students from a poor background reading medicine in case they were distracted by their poverty and because they might ask the college for financial assistance.

I cannot say whether that is a realistic position, or whether it is borne out by the facts. As a result of the Bill, however, that person will have no recourse other than to go to court or to apply for judicial review. By definition, if she is not on a course because she is poor and does not have the resources to do so, how on earth can she afford to go to court? An ombudsman service would be able to deal with that complaint easily and without cost to the individual or to the institution, and the result would be satisfactory for both parties.

Anne Campbell (Labour, Cambridge)

Without questioning the veracity of the hon. Gentleman's statement, I wonder what attempts he has made to check the information with the college. In defence of the university, which I represent, it probably has one of the best student support schemes for deprived students. Those from a low-income background who want to go to Cambridge university will be extremely well supported. It is a myth that Cambridge is an expensive university for such people; I find it difficult to accept what the hon. Gentleman says.

Roger Gale (Conservative, North Thanet)

Order. The Committee will know that it is my custom always to allow a reasonably wide-ranging debate, but even by my generous standards the debate is beginning to get a little wider than this large group of amendments.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

The hon. Lady will remember that I made the specific comment that we cannot do anything unless we have all the facts. The purpose of raising that example was to explore the idea of having an ombudsman rather than an independent adjudicator. I look forward to the Under-Secretary's response.

Tim Collins (Conservative, Westmorland and Lonsdale)

This is an important group of amendments. The point made by the hon. Member for Harrogate and Knaresborough deserves a considered ministerial response. Why have the Government decided to create an Office of the Independent Adjudicator rather than an ombudsman? We all deal with local government ombudsmen and the parliamentary ombudsman. I am sure that there will be no party political difference on the matter; the ombudsmen are regarded as having operated successfully.

Jonathan R Shaw (Labour, Chatham and Aylesford)

Does the hon. Gentleman agree that, in making his case, the hon. Member for Harrogate and Knaresborough took the example of the £50,000 for Cambridge at face value? We all like to use examples to advance our causes, but there is no evidence that there is any truth in that case.

Tim Collins (Conservative, Westmorland and Lonsdale)

I am extremely keen to stay in order, Mr. Gale, so all that I shall say is that there will be discussions and possibly an exchange of correspondence between the hon. Members for Harrogate and Knaresborough and for Cambridge. I would welcome the provision of that correspondence, when it is completed, to all Committee members. We should like to know the facts.

To return to the amendment, I was trying to build on the comments of the hon. Member for Harrogate and Knaresborough about the case for an ombudsman model rather than the model that the Government have chosen. There may be detailed, sensible and thought-through reasons for the Government having chosen the latter. I suspect that, in part, they will relate to their legitimate wish to build upon the arrangements that are being put in place by the university sector. This might be an example of their genuinely seeking not to be over-prescriptive and over-interventionist, but to put on to a statutory basis the arrangements that the universities have established.

The model that the Under-Secretary advances has the warm support of Universities UK but, as the hon. Member for Harrogate and Knaresborough rightly pointed out, other groups and organisations with a great deal of involvement in higher education would prefer a different model. It would be welcome if the Under-Secretary could explain why the Government have gone for one model rather than the other. Could he go beyond that and indicate that they are prepared to keep the matter under review?

The Government are understandably unlikely to introduce a new higher education Bill in the next six months or so—I suspect that that would not commend itself to the Cabinet or to Education Ministers—so we can safely assume that this will be their only piece of higher education legislation for some time. Therefore, I suggest that they review the matter not after six or 12 months, but in the short period beyond 12 months and before the next election. After that, they will not have to worry about such matters.

If, during that short period, the Government were able to assess whether their model were working successfully or whether the ombudsman model would have proved superior, that would be welcome. We know that, to an extent, we are legislating on the basis of hope rather than of knowledge. I hope that, if the model is put in place, it will work. It is not in anybody's interest for there to be a period, however brief, in which something relating to higher education is less than wholly successful. If the provisions do not work, it would be helpful for the Under-Secretary to say at this stage that the Government would keep matters under review and would be prepared, should they want to introduce further legislation, to amend anything that might prove—however surprisingly—unsuccessful.

Finally, I want to refer our amendments, which are along the same lines but not identical to those tabled by the hon. Member for Harrogate and Knaresborough. Our amendments would delete the word ''corporate'' from ''body corporate''. That is in part designed to tease out why the Under-Secretary has decided to go for the corporate body model.

There are a number of respects in which it is sensible for the OIA to be an organisation with several people working for it. We understand that it is therefore likely to be a body as opposed to an individual, although the ombudsman model demonstrates that it is possible to have an individual with named responsibility with researchers and others working for him. However, if it is to be a body, why do the Government feel so strongly that it needs to be a body corporate? What are the implications of that phraseology, with its well established role in commercial and practical law?

What do the Government expect the office to do initially or down the line? Do they have proposals that would enable or expect the OIA to get involved in other activities over a period of years? In other words, is the provision intended to leave the door open for other measures in due time, is it being introduced because it is standard phraseology, or has it been specifically requested by the existing voluntary arrangements set up by the universities? It would be helpful if the Under-Secretary could clarify that point.

Our amendments are largely intended to be probing amendments. It would be interesting, however, to see whether the hon. Member for Harrogate and Knaresborough wishes to press his amendment to a vote. We shall wait and see. I am sure that he and other members of the Committee will wait with anticipation for the Under-Secretary's reply.

Tim Boswell (Conservative, Daventry)

I shall not detain the Committee and prevent it from hearing the Under-Secretary's response, except to say that I am attracted by what might be termed an evolutionary approach. I do not in principle bristle at the way in which the Government are handling the matter. I am mindful of the phrase of the Chinese political leader who said that he did not mind what colour cat it was so long as it caught mice. We want this body to work and to be as effective as possible.

I simply flag up to the Under-Secretary—he may not be able to respond in detail to all the concerns, and I sense that time means that he will not be able to respond at all in a few minutes—my strong wish that the OIA should be adequately resourced for the work load that is undertaken and that it should be timely in its conclusions. To return to the previous debate, if it is necessary to sling out a complaint because it is not within scope, that should be made clear to the student as soon as possible.

May I add a further point that in a sense hangs on the schedules? Deliberations and explanations should be given in writing, but there should also be an account of the step process that has been taken so that—for example, in relation to our debate on whether the issue regarding disability involved an academic or another

kind of judgment—it should be made clear in the adjudicator's thought process why he reached his conclusion.

Tim Collins (Conservative, Westmorland and Lonsdale)

My hon. Friend has made an important point. It is just conceivable in the remaining 11 minutes that we may not get through all the remaining clauses and schedules before the Government's knife comes down. He has made it clear that it would be helpful to all members of the Committee and to many others outside if on this point—and I think he would join me in saying that it would also be helpful on the other points that we may not get to—the Government could publish and circulate the guidance that they would have been able to make available had there been sufficient time for the debate.

Tim Boswell (Conservative, Daventry)

May I conclude my remarks by endorsing what my hon. Friend said? I think there is a consensus in the Committee that we should proceed with the body and give it a fair wind, but that it should work effectively. The last thing we want is to be messing about in 12 months' or two years' time because there are doubts about its ability to discharge the role that the Government have given it.

James Clappison (Conservative, Hertsmere)

This is my first substantive contribution to the debate. Like others before me, I should like to welcome you to the Chair, Mr. Gale, and say what a great pleasure it will be to serve under you.

This is going to be a brief contribution, because the Committee wants to hear the Under-Secretary's response, but I should like to add my voice in support of what has been said so far. I also support the spirit of the amendment tabled by the hon. Member for Harrogate and Knaresborough, which, as he put it, would have the merit of clearing up a lot of the current misperceptions.

We shall discuss cost and expense in due course, but I can endorse and add to the hon. Gentleman's example from Cambridge university, with an example from the Royal Veterinary college. Its students in my constituency face considerable debts as a result of undertaking a five-year course and are worried that poorer students will be deterred.

Ivan Lewis (Labour, Bury South)

It is probably helpful if I make a commitment to ensure that all members of the Committee have a copy of the guidance relating to the scheme. Because of the time factor, we shall not be able to cover all the clauses.

In response to the hon. Member for Harrogate and Knaresborough, I would ask him to provide evidence when he cites individual cases, so that we can investigate the veracity of the allegations. That is important, because people might otherwise be unreasonably deterred from going to university, which is not what he wants. Such claims should be supported by evidence.

The hon. Gentleman referred to marketisation and suggested that the fact that we are establishing a body corporate to act as the body considering complaints is an illustration of the marketisation of higher education. Not only is that nonsense, but the OIA or any successor organisation would not be able to make

any profit on its activities, and would have the capacity only to recover costs for performing its role. His claim about markestisation is extremely wide of the mark.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

The Under-Secretary is proceeding under a total misapprehension, as that is not what I said. My point is that we are having a market in higher education, not that the adjudicator will be marketed, which would be ridiculous.

Ivan Lewis (Labour, Bury South)

We were discussing the adjudicator and the nature of the body corporate when the hon. Gentleman went on about marketisation, so I am entitled to draw the conclusion that he was trying to make that link, which he often does, and not always with justification. He also alluded to the National Union of Students and its views on the proposals, but the NUS is part of the board, has significant representation on it and actively supports the model that we are seeking to enshrine in legislation.

The hon. Member for Westmorland and Lonsdale asked why we have chosen the route that we have, but in a sense we have not done so. The Government have responded to the higher education sector's reaction to the pressure that has been applied and to the reports that have been produced by establishing a self-regulatory framework. I would have thought that the Opposition, with their ''I believe'' stuff, would welcome the fact that the Government seek to build on a self-regulatory framework that the entire sector supports, rather than intervening to create a different model that the Government might regard as more appropriate. We simply seek to reflect the progress that the sector has made.

The hon. Member for Westmorland and Lonsdale referred to my commitment and that of my hon. Friends to a future higher education Bill. I have had a positive and pleasurable experience over the last few days, so I am sure that we would be delighted to consider such a Bill. However, it is all very well for him to talk about that, since his party would not be able to introduce such a Bill because it does not even have a policy on higher education, other than to abolish all fees, cut public expenditure and spend more than us on the national health service. Now there's a credible manifesto for the next election from the Conservative party.

Tim Collins (Conservative, Westmorland and Lonsdale)

I want to stay in order, Mr. Gale, so I ask through you whether the Under-Secretary believes that it was entirely wise for him to talk about manifesto commitments when discussing the amendments.

Ivan Lewis (Labour, Bury South)

Yes, Mr. Gale. I have every confidence that when the people of this country make the choice that they will have to make in the next 18 months, that choice will be clearer than ever. [Interruption.] I am told by sources close to the Prime Minister that it is likely to be in the next two years.

The choice of model builds on the choice that the sector has established. I want to make it clear that the Bill contains powers to enable us to ask the designated operator to review the existing model to see whether it

is still appropriate if the processes that we seek to establish are not working satisfactorily. However, we do not expect that to be a problem. Given the calibre of the board and its representative nature, as the hon. Member for Daventry confirmed, as well as the splendid choice of adjudicator, members of the Committee should express their confidence that this is the appropriate structure at this stage to handle complaints.

Importantly, the board has the power to choose the adjudicator, and the operator will decide membership of the board. Therefore, day-to-day interference by the Secretary of State in the activities of the organisation will be minimal. A considerable amount of work has been done across the sector to ensure that this model is appropriate. The Bill contains provisions to enable us to revisit the issue if hon. Members or others become extremely dissatisfied with the way in which the model is working, but we do not believe that there will be any need to change the model in the foreseeable future. I therefore ask the hon. Member for Harrogate and Knaresborough to withdraw the amendment.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I thank the Under-Secretary for his response. Sadly, he did not explain why there should not be an ombudsman service. He gave reasons for setting up this service, so why not set up an ombudsman service? Not to do so is a pity. This is the last time that we can speak on part 2, and Members will leave the Committee rather dissatisfied with the Under-Secretary's responses to concerns about the complaints system. Many types of student and staff complaint will go totally unnoticed as a result of this Bill. I am sure that we will revisit these issues on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Collins (Conservative, Westmorland and Lonsdale)

I beg to move amendment No. 33, in

clause 13, page 5, line 26, leave out subsection (2).

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments: No. 34, in

clause 13, page 5, line 28, leave out 'or the Assembly'.

No. 35, in

clause 13, page 5, line 29, leave out 'or the Assembly'.

No. 36, in

clause 13, page 5, line 37, leave out 'or the Assembly'.

No. 37, in

clause 13, page 5, line 40, leave out 'or the Assembly'.

Tim Collins (Conservative, Westmorland and Lonsdale)

The amendments relate to matters that we debated when my hon. Friend the Member for Epsom and Ewell (Chris Grayling) was present at our sittings earlier this week. They deal with issues such as including in the Bill provisions relating to the transfer of responsibilities to the Welsh Assembly. The arguments advanced then are still worthy of the Government's consideration.

In passing, I must say that I am concerned that we are unlikely to have the time, however briefly I speak now, to consider seven more clauses and two schedules. That reiterates the wisdom of our concern about the Government's decision to timetable only 12 sittings.

Simon Thomas (Plaid Cymru, Ceredigion)

Can the hon. Gentleman name one organisation that supports his amendment?

Tim Collins (Conservative, Westmorland and Lonsdale)

I take it from the hon. Gentleman's intervention that Plaid Cymru does not support our amendment. I suspect, however, that there will be a growing momentum of support for many other amendments tabled from time to time in this and other Committees as the arguments are advanced. Indeed, had it been possible for me to speak for more than another 30 seconds—

It being twenty minutes past Eleven o'clock, The Chairman put the Question necessary under the terms of the programme resolution to complete the business.

Tim Collins (Conservative, Westmorland and Lonsdale)

Can we take the clauses and schedules individually, Mr. Gale?

Roger Gale (Conservative, North Thanet)

No. Perhaps I should have explained that this is one question. It may be voted against in its entirety, but not in part.

Clause 13 ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

Clause 14 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clauses 15 and 16 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clauses 17 to 20 ordered to stand part of the Bill.

Further consideration adjourned.—[Derek Twigg.]

Adjourned accordingly at twenty-one minutes past Eleven o'clock till this day at half-past Two o'clock.

Standing Committee H

Clause 21 - Meaning of ''plan'' etc.

Eleanor Laing (Conservative, Epping Forest)

I beg to move amendment No. 255, in

clause 21, page 8, line 27, leave out

'or a Welsh approved plan'.

Jimmy Hood (Labour, Clydesdale)

With this it will be convenient to discuss amendment No. 256, in

clause 21, page 8, leave out line 29.

Eleanor Laing (Conservative, Epping Forest)

May I say in the traditional way, as it is my first opportunity to do so, what a pleasure it is to serve on a Committee under your excellent chairmanship, Mr. Hood? I will say from the outset for the avoidance of doubt that, if one reads clause 21 as amended by amendments Nos. 255 and 256 it does not quite hang together. Therefore let me explain that these are probing amendments.

My concern is that in clause 31, to which clause 21 refers, the wording clearly—and rightly—states that it is the clause's intention to promote,

''equality of opportunity in connection with access to higher education''.

Everyone on the Committee and concerned with the Bill would agree that that is an important and honourable intention. However, it seems to my hon. Friends and I that clauses 21 and 22 take us away from that. Clearly, there is to be a difference between the way that matters are administered in England and in Wales. [Interruption.] I hear Labour members from sedentary positions muttering ''devolution''. I am well aware of the effects of devolution.

Jimmy Hood (Labour, Clydesdale)

Order. I would say to hon. Members that I do not want to hear any whispering when a Member is moving an amendment. I hope that the Member speaking will be given the best attention.

Eleanor Laing (Conservative, Epping Forest)

Thank you, Mr. Hood. We are all aware of the effects of devolution and it would not be in order for me to discuss them here. But I am concerned, as are my hon. Friends, about the fact that these matters are to be treated differently in Wales from in England. Indeed, already a consequence of devolution is that students in Scotland and students from England, Wales and other places who attend universities in Scotland are treated differently from students who attend universities in England and Wales.

I suppose I should declare a retrospective interest as a graduate of Edinburgh university, which I still support. [Interruption.] Actually, it runs a rather good alumni scheme and manages to squeeze money out of us; it does so very well. Of course I am totally in favour

of free enterprise in the raising of funds for universities in so far as alumni schemes go, if not in other ways, and that is why I support mine. But that is not the point; the point is that it is clearly unfair that matters are dealt with differently in Scotland and England. That is an accepted fact, but I appreciate that it is not one for debate here. Before you call me to order, Mr. Hood, I shall not go further down that line. I accept unreservedly that it is a consequence of devolution that matters should be different in Scotland from in England. But it need not be a wrongful consequence if we are to consider that this important issue in clause 21 and, later, clause 22, can separate people in Wales from those in England. It cannot do what clause 31, to which clause 21 inherently refers, says that it intends to do in promoting equality of access.

Therefore, we suggest that the Minister should reconsider the matter. I am sure that there must be a technical explanation—which of course I accept—for why some matters are dealt with in relation to Wales and some in relation to England, and that they should be different from one another.

Chris Grayling (Conservative, Epsom and Ewell)

Is my hon. Friend aware that my reading of the relevant parts of the Bill pertaining to the issue she addresses is that in reality the Welsh Assembly would have the power to set a higher level than the Secretary of State in London, so on that basis, the issue she is addressing of the differential structure for plans for England and Wales—

Jimmy Hood (Labour, Clydesdale)

Order. We are not discussing the levels of fees at present; we are discussing the plans. I ask the hon. Gentleman to stay in order.

Eleanor Laing (Conservative, Epping Forest)

Thank you, Mr. Hood. I am aware of the point that my hon. Friend makes so well. I shall be careful not to stray on to the issue of fees, but the plan itself paves the way for the difference to which my hon. Friend refers. Therefore, when we come to discuss fees, we shall not be discussing that issue on the right foundation if we have not thoroughly explored this issue first.

Chris Grayling (Conservative, Epsom and Ewell)

I note your guidance, Mr. Hood. In the case of the establishment of plans I refer to the flow of students across borders, which I am sure my hon. Friend would recognise. For example, 74 per cent. of the university of Aberystwyth's students are from England. I am certain that that would cause great complications were we to have differential plans between England and Wales for the targeting of those who are sought for the goal of levelling and equalling access to university.

Eleanor Laing (Conservative, Epping Forest)

My hon. Friend is correct. As a general principle, if we are talking about equality, and especially equality of opportunity, throughout our country, to create artificial boundaries between England and Wales, England and Scotland and across the water into Ireland also, is not the right way forward. That is why my hon. Friends and I have tabled the amendments.

It does not make sense to treat those two groups of potential students so differently. It is possible, while still honouring the spirit of devolution and recognising

the power of the Welsh Assembly, to ensure that there is no anomaly, if we construct the Bill correctly. That way we would not have to deal in future with the complaints that will undoubtedly come to the Minister if it turns out that the equality of opportunity he seeks is destroyed by the provisions in his own Bill.

Tim Collins (Conservative, Westmorland and Lonsdale)

My hon. Friend the Member for Epping Forest (Mrs. Laing) made her case clearly and powerfully. I am asking the Minister to say whether he believes that there could or should be a difference between England and Wales in the application of the principle of equality of opportunity in access to higher education, in theory or in practice. I hope that it is common ground between all Members of this Committee that equality of opportunity of access is a universal principle that should be interpreted in the same way in all circumstances across the United Kingdom. If that is the case, though, it is difficult, as my hon. Friend says, to see why there should be a difference between plans for institutions of higher education in England and those in Wales.

If, on the other hand, the Minister expects these provisions, which my hon. Friend's amendments would remove, to have bite and to have any effect, presumably he thinks that there should be different interpretations of ''equality of opportunity'' in different parts of the United Kingdom. If the Minister will clarify this issue, it will be widely welcomed because—to pick up a comment from earlier proceedings regarding who outside these Committee Rooms might be interested in establishing uniformity on these matters between England and Wales—I have not heard any organisation or any individual outside our Committee arguing that ''equality of opportunity'' should be interpreted differently on different sides of the border between the Principality and England.

Graham Allen (Labour, Nottingham North)

Does the hon. Gentleman think people in Wales are capable of making a decision in their own interests in this matter?

Tim Collins (Conservative, Westmorland and Lonsdale)

Of course, they are perfectly capable of making those decisions. What I am trying to say to the hon. Gentleman is that if the principles are universal, they should be interpreted and applied universally. I hope that he takes the view that equality of opportunity ought to apply in all parts of the United Kingdom, not just on these matters but across the board. I am not suggesting that either the English or Welsh interpretation would be superior, but agreeing with my hon. Friend's point—that the interpretation ought to be the same. That is the issue on which I am seeking clarification from the Minister: why does he think there may be circumstances in which the interpretation would be different?

Graham Allen (Labour, Nottingham North)

So, the hon. Gentleman would be quite happy if these powers were vested in the Welsh Assembly, and they could tell all the English what they should be doing in these circumstances? Surely he must have some faith that they can interpret the

universal principles he is talking about for their own benefit and in their interest?

Tim Collins (Conservative, Westmorland and Lonsdale)

The hon. Gentleman is quite right, the logic of my position is indeed that it would be equally as acceptable for the Welsh Assembly to apply these principles universally in England as it is for the Secretary of State to apply them in Wales. However, the hon. Gentleman's position is that there has to be a distinction on either side of the border in England and Wales as a matter of principle, and so logically he thinks there could be a significant difference of interpretation of the principle of equality of opportunity.

Hywel Francis (Labour, Aberavon)

Is the hon. Gentleman aware of the discussions recently in the Welsh Assembly concerning this matter, and that the Welsh Assembly Government have invited a distinguished academic, Professor Theresa Rees, to lead an inquiry into the consequences of tuition fees in Wales? If that is the case, should he not await the results of that inquiry?

Tim Collins (Conservative, Westmorland and Lonsdale)

The only honest answer is: no, I was not aware of that. However, it does not materially change my argument. There are many other measures in this Bill involving the transfer of responsibility to the Welsh Assembly on a whole range of matters, including those to which the hon. Gentleman referred. In anticipating the possibility—it is a little too early to say ''likelihood''—that this legislation may reach the statute book, it is right that the Welsh Assembly should be making provisional arrangements to conduct analysis and research into the impact of, for example, the variability of top-up fees in Wales, should the new measures come into force. That is an entirely responsible step to take.

My point is rather different and narrower, and relates only to the amendment and the provisions to which it relates, rather than to the entire Bill. Although we have had two welcome interventions from the Government Benches, I am yet to hear the argument that equality of opportunity for access should be interpreted differently in different parts of the United Kingdom.

Hywel Francis (Labour, Aberavon)

Does the hon. Gentleman recognise the manifesto commitment by the Welsh Conservatives during the last Assembly elections to

''Lobby the UK government to devolve the power to determine policy on tuition fees to the National Assembly and ensure that Welsh universities are not disadvantaged financially''?

Tim Collins (Conservative, Westmorland and Lonsdale)

I am always intrigued when Labour Members quote from manifesto commitments on that topic, because I would not have thought that to be the strongest ground on which to propose their arguments. However, I am happy to do the hon. Gentleman a deal: if he stands by the manifesto on which he stood at the last general election to this institution, I shall be happy to comply with the provisions to which he referred, which my colleagues set out when they stood for election to an entirely different institution.

As I said, we are not having a debate across the board on whether it is sensible to devolve

responsibility for top-up fee policy to the Welsh Assembly. Rather, we are having a narrow debate about equality of opportunity. The hon. Member for Aberavon has intervened twice, while the hon. Member for Nottingham, North (Mr. Allen) has done so once, but I am yet to hear an argument from the Government Benches—perhaps the Minister will give one—for why equality of opportunity for access should be interpreted differently in different parts of the United Kingdom. I do not think that that case can be made, but of course the hon. Gentleman might be about to make it.

Graham Allen (Labour, Nottingham North)

Is the question not whether people should be allowed to interpret things as they wish—they may choose to interpret things in exactly the same way as anyone else—but whether they have the choice to interpret under their own lights and their own values, rather than being given an interpretation by other people?

Tim Collins (Conservative, Westmorland and Lonsdale)

Now we are beginning to make some progress. The hon. Gentleman referred to people making decisions under their own values, which is an important and interesting turn of phrase. Of course there are distinctions between Welsh and English circumstances: there are distinctions between the Welsh and English political climates, which are reflected by the different structure of parties. However, the key point is, as he said, about values—principles or adherence to political beliefs. I do not believe that anybody in any mainstream political party in either England or Wales has a different interpretation of what equality of opportunity to higher education means. That is a shared universal value, not a national value that differs from England to Wales. That is the point that we are trying to address and on which Labour Members have now made four attempts.

Simon Thomas (Plaid Cymru, Ceredigion)

The hon. Gentleman has chosen to dance on the head of a pin for this debate about the principle of equality, which he rightly said is a universal principle. In England, as in Wales, the plans will vary from university to university. He should bear in mind that in Wales we have only two universities: the university of Wales, which is a collegiate university, and the university of Glamorgan. He should understand that the ways in which the plans will work out in detail will differ. It is right and proper that the National Assembly should control that process in Wales, in line with the process of devolution, which I hope the hon. Gentleman's party now supports.

Tim Collins (Conservative, Westmorland and Lonsdale)

I am grateful to the hon. Gentleman for his intervention because, by saying that I was dancing on the head of pin, he was, I think, suggesting that I am an angel. That was sweet of him and much the nicest thing that anyone has said to me in Parliament for a long time. Indeed, it is probably the nicest thing anyone ever will say to me here. His other point was also interesting. Of course I agree with him that the individual plans, whether they are for universities or otherwise, must reflect the differing circumstances for each higher education institution. We will come later when we debate those matters to a

number of amendments tabled by different parties that would seek to maximise the extent of the discretion.

Mr. Phil Willis (Harrogate and Knaresborough) (LD) rose—

Tim Collins (Conservative, Westmorland and Lonsdale)

I shall finish my response on that point after taking the hon. Gentleman's intervention.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I, too, accept the principle that the hon. Gentleman has established, although I do not understand his amendment. If we take into account amendments Nos. 255 and 256, clause 21(b) would simply read:

''any reference to an English approved plan is a reference to a plan approved under section 32 in relation to England''.

So what happens to Wales?

Tim Collins (Conservative, Westmorland and Lonsdale)

I am happy to take that intervention. When my hon. Friend the Member for Epping Forest introduced the amendments, she explained that they were technically defective. They are probing amendments, and the hon. Gentleman may be reassured that we do not intend to press them to a vote for precisely that reason. He is correct that as drafted they are technically unsatisfactory.

I return to the point made by the hon. Member for Ceredigion (Mr. Thomas), who was arguing that there are effectively two universities in Wales, and any plans produced under the Government's proposals by the Welsh Assembly or under our proposals by a united English and Welsh decision-making process should reflect the different circumstances in those two universities. I entirely agree, but I hope that his starting point of our principles, values and guiding lights—to use the phrase of the hon. Member for Nottingham, North—of the importance of equality of opportunity for access would not differ, either between those two universities or between those universities and universities in England. So I think that the hon. Gentleman's argument helps rather than hinders me, but I am happy for him to intervene and show me how he is trying to hinder me.

Simon Thomas (Plaid Cymru, Ceredigion)

The hon. Gentleman is slipping down from angel status. [Interruption.] He is indeed a fallen angel. He needs to bear in mind that the part of the Bill he is seeking to amend refers not to the principles, but only to the plans. Therefore, the Bill devolves control over the plans to the National Assembly for Wales, but not over the principles. Therefore the architecture of the Bill is not devolved. As a devolutionist and Welsh nationalist, perhaps I would want it devolved even more, but on this occasion the Government have got it about right.

The principles remain the same for students in both England and Wales, because, as the hon. Gentleman rightly makes out, students study in both countries and there is a lot of exchange over the border, but the detail of the plan will be worked out by the National Assembly, the Higher Education Funding Council in Wales, the universities in Wales and by OFFA in Wales to meet needs in Wales and also the needs of English students coming into Wales. Surely that is the best way forward.

Tim Collins (Conservative, Westmorland and Lonsdale)

We are debating amendments to the earlier part of clause 21 which directly refers to

clause 31, which, as my hon. Friend the Member for Epping Forest pointed out, contains the language relating to equality of opportunity for access that we have been debating. Therefore, by debating references to a plan it is relevant—particularly when a clause refers specifically to another clause—to consider what the other clause describes the plan as being about. But it has been an interesting debate—

Eleanor Laing (Conservative, Epping Forest)

Just to clarify a matter, the hon. Member for Nottingham, North asked why ''they''—referring to the Welsh Assembly—cannot make up their minds for themselves how they do things in Wales, as if people in Wales are not part of our decision-making process; whereas the very presence here of the hon. Member for Ceredigion who has put his case so well and eloquently in speaking up for Welsh interests shows that the hon. Gentleman is wrong in his nomenclature. We should not use ''we'' and ''they'' and ''us'' and ''them''. It is all ''we''; we are the Parliament of the United Kingdom.

Tim Collins (Conservative, Westmorland and Lonsdale)

My hon. Friend makes, as ever, a powerful case. Of course, each hon. Member must be responsible for the language that they choose to use, but given that—as my hon. Friend will know—on Second Reading there was such a strong argument that Scottish MPs should vote because this is the Parliament of the United Kingdom, it seems rather odd that when we come to Committee we are told that there is a distinction between different parts of the United Kingdom and it is implied that certain people are not represented here at all.

I do not intend to prolong the debate. Having heard four attempts from Labour Back Benchers and a couple of amusing attempts from the Plaid Cymru Benches, we are interested in whether the Minister can say whether a case can be made for interpreting equality of opportunity of access to higher education differently between England and Wales.

Simon Thomas (Plaid Cymru, Ceredigion)

I am pleased to have the opportunity to make a short contribution. I apologise to the hon. Member for Epping Forest for missing her opening remarks. That was partly because I was writing down from the internet an interesting quote on the provision by a Conservative Assembly Member.

The amendments must not be taken out of context. They are part of a series of Conservative amendments, all of which would remove Wales and the devolution of powers from the Bill. The present amendment removes the devolution of powers over plans for fair access to higher educational institutions.

To be fair, Conservative Members have already admitted that the amendments are technically flawed, but they are even more flawed than they have said. If they were to be accepted—I hope that the Government will resist them—there would be no relation between the amount of tuition fees that may be charged in Wales and the fair access policy. In other words, if the amendment were to be acceded to, the link between tuition fees—I am opposed to them, and I intend to stick to my manifesto commitment—and fair access, a link that has been much discussed in the House

particularly on Second Reading and which is a core part of the Bill, would be broken in Wales but not in England. That is more than technically flawed. It is philosophically and politically inept.

Chris Grayling (Conservative, Epsom and Ewell)

Could the hon. Gentleman explain how the university of Wales in Aberystwyth, which takes 74 per cent. of its students from England, can put together a Welsh plan for widening access—unless the intention is to cut the number of English students and increase the number of Welsh students?

Simon Thomas (Plaid Cymru, Ceredigion)

Cutting the number of English students will not widen access, and I would not support it. I look forward to English students coming to Aberystwyth, as a great number vote for me. They have the opportunity to vote for Plaid Cymru for the first and perhaps the only time in their lives.

The plans for each of the constituent parts of the universities of Wales and of Glamorgan take account of the whole range of access, not just for students domiciled in Wales but for students from elsewhere. The specific answer is that the National Assembly and the funding council has already decided that a certain proportion of students applying for places in higher education institutions should come from the Communities First 100 poorest and most deprived wards in Wales. That causes pragmatic and practical problems, but the principle is obvious and can be read across. It will inform the plans differently in Wales from in England. That, in itself, does not change the fundamental principle referred to by the hon. Gentleman about equality of access. That is about detail, not principle. The hon. Gentleman is mixing them together.

Eleanor Laing (Conservative, Epping Forest)

I appreciate that the hon. Gentleman was not here for the first few minutes of our debate. I said for the avoidance of doubt that if one reads clause 21 as amended by amendments Nos. 255 and 256, it suggests that nothing should happen in Wales and that the process should occur only in England. The amendments are technically deficient, but they are probing amendments. My hon. Friends and I have no wish to put people in the universities of Wales in a worse position than those in England—quite the opposite.

Jimmy Hood (Labour, Clydesdale)

Order. Interventions should be a little shorter than that.

Simon Thomas (Plaid Cymru, Ceredigion)

Thank you, Mr. Hood. Again, I acknowledge what the hon. Lady said. I accept the technical flawedness of the amendments—all the amendments that I have ever put to Committee have been technically flawed or at least that is what the Government always told me—but in moving these amendments the hon. Lady and her colleagues have failed to address the gap that is left. It is fair enough to say that these are probing amendments, but these are serious matters that deserve some explanation. If one part of the United Kingdom is to be treated differently from another part, that might lead to a rise in the Plaid Cymru vote, but I suggest it is not something in which this Standing Committee wants to get involved.

Chris Grayling (Conservative, Epsom and Ewell)

Let me then ask the hon. Gentleman a specific point. He has talked about different plans for England and for Wales. Take the example of the north-east Wales institute of higher education and the college of higher education based in Chester, which are relatively close to each other and both of which will be focusing, in a similar area, on people in the category of those to whom we need to widen social access. Does he therefore accept that they could be operating to different plans and different rules in trying to attract those same students?

Simon Thomas (Plaid Cymru, Ceredigion)

Even if the amendments were agreed that would be the case. It is not different plans for England and for Wales, it is different plans for each higher education institution.

Graham Allen (Labour, Nottingham North)

They do not want that.

Simon Thomas (Plaid Cymru, Ceredigion)

That is the architecture of the Bill that we are discussing and that is what we are amending here.

Jimmy Hood (Labour, Clydesdale)

Order. The hon. Gentleman should be addressing the Chair and not having a conversation across the Floor of the Committee. Twice I have had to ask Members to remember that.

Simon Thomas (Plaid Cymru, Ceredigion)

I shall be very careful not to be tempted down Nottingham way in future.

James Clappison (Conservative, Hertsmere)

The hon. Gentleman has brought me back to the point in which I was originally interested. From his knowledge of these matters—which unfortunately I do not share to the same extent—can he give us some indication of the proportion of students who will be coming from the scheme he referred to, Community First?

Simon Thomas (Plaid Cymru, Ceredigion)

If I can be of any help, from the top of my head, the figure is something like 8 per cent. I think the National Assembly have set a target of something like 11.5 per cent. That is a rough figure, but when we get to the relevant part of the Bill I will want to talk in more detail and hope to have more precise figures, which may be illuminating.

In conclusion on this part of the Bill, it is perfectly honourable to oppose the imposition of variable tuition fees, whether it is in Wales or in England. It is perfectly honourable to be opposed to tuition fees, but I note that the Conservatives have not tabled amendments addressing that issue. What they have tried to do instead, in a curious way, is to take Wales out of the Bill. That leaves the impression that for the Conservative party it is more about stopping Wales having more power than about making sure that this Bill does not impose variable tuition fees in Wales.

Graham Allen (Labour, Nottingham North)

Will the hon. Gentleman give way?

Simon Thomas (Plaid Cymru, Ceredigion)

In a moment. If I can just quote from what I heard earlier on, because the view in the National Assembly has been somewhat different. There the Conservative AM, David Davies, has said very clearly that the Conservatives are opposed to the devolution of powers on tuition fees. He said that they were opposed to them and, what is more, they wanted to keep the powers in Westminster in order to enable a future Tory Government to scrap fees in England and

Wales. For a start that suggests that the Conservatives recognise that they will never be in power in Wales, so will never have the opportunity to use those powers if they have been devolved to Wales. Secondly, I would not want to put all my eggs in that particular basket. I want to make sure that this Bill does not bring variable tuition fees into Wales. That is my standpoint. I do not want to do that by not devolving the powers. Let the people of Wales decide these matters.

Don Touhig (Labour/Co-operative, Islwyn)

I agree with the hon. Gentleman. Perhaps I can help him. In his diary, the BBC Wales correspondent says,

''Shadow Welsh Secretary Bill Wiggin has been in touch to explain the Conservatives' latest cunning plan. The Tories have tabled amendments to the Higher Education Bill, the effect of which would be to wreck UK Government plans to allow the Assembly to scrap university tuition fees. This is not anti-devolution at all, Mr. Wiggin tells me.''

I do not know whether that helps.

Simon Thomas (Plaid Cymru, Ceredigion)

It does not necessarily help, but it brings to mind a previous Conservative faux pas over higher education. Hon. Members may recall an earlier Conservative proposal to privatise Channel 4 in order to pay for higher education. Unfortunately, they did not consider what that meant for S4C, the public service broadcaster in Wales, which we do not want privatised, thank you very much.

Graham Allen (Labour, Nottingham North)

The hon. Gentleman speaks eloquently from the Welsh viewpoint. However, this is not only an attempt to prevent the people of Wales from deciding on their own futures, this whole seam of Conservative amendments would prevent every university from deciding on its future.

Jimmy Hood (Labour, Clydesdale)

Order. Mr. Thomas.

Simon Thomas (Plaid Cymru, Ceredigion)

Thank you, Mr. Hood. I sense that I should not go too far down that avenue now. However, I accept the principle of what the hon. Gentleman said.

I accept that the Conservatives have genuine concerns about the workings of the Bill. I remember that, on Second Reading, some of those concerns were spread across Opposition parties and, indeed, throughout the House. It is right for any of us to seek to amend the Bill in order to highlight such concerns and to drive forward the arguments around them. However, I find it curious that the way in which Conservative Members have chosen to do it seems always to take Wales out of the equation—that starts here but continues through a series of amendments. One is left with the impression that they are driven by a lack of support for the devolution process, rather than by questioning what the Bill is about. On this matter, the Conservatives should concentrate on the principles lying behind the clauses rather than on the devolution detail. It is the principles with which I have problems, and I should think that they should do so too.

Chris Grayling (Conservative, Epsom and Ewell)

Does the hon. Gentleman not accept that there are times when duplication of bureaucracy, organisation and process between England and Wales represents bad value for the Welsh taxpayer?

Simon Thomas (Plaid Cymru, Ceredigion)

No, I do not accept that. What the hon. Gentleman calls duplication, I would prefer to call specialisation—[Interruption.]—devolution even. If that delivers a public policy that is more acceptable to the people of Wales and better meets their needs, then if there is a price to it—we can argue about that—the price is worth paying. For example, in the context of transport in Wales, we have devolved free public transport for the over-60s. It could be argued that that was a duplication. Why should transport be devolved; why should it not be—

Jimmy Hood (Labour, Clydesdale)

Order. The hon. Gentleman tempts me to bring him to order.

Simon Thomas (Plaid Cymru, Ceredigion)

I do not want to tempt you too much, Mr. Hood. I shall leave the point there. It is a matter of principle. Devolution attracts costs on occasion, but the benefits have to be weighed as well. I do not think that the Conservatives do a cost-benefit analysis on every occasion.

Don Touhig (Labour/Co-operative, Islwyn)

I am disappointed that Conservative Members feel it necessary to table these amendments, although, when the hon. Member for Epping Forest refers to devolution as a technicality, perhaps I should not be disappointed. We have already referred to the importance that we place on the devolution settlement. It is a pity that there have been yet more amendments that can be interpreted only as an attack on the devolution settlement that has been agreed by Parliament and by the people in a referendum. It is entirely right that if we are taking new powers in primary legislation for England, we should give parallel powers to the National Assembly for Wales.

David Rendel (Liberal Democrat, Newbury)

Am I right in saying that the Under-Secretary of State for Wales believes that if all the devolution powers are included in the Bill, as he and I would like to see, the National Assembly for Wales could decide not to have any fees or top-up fees in future, even if they were imposed in England?

Don Touhig (Labour/Co-operative, Islwyn)

That is precisely the power that the Bill, if it goes through, will give to the National Assembly. The Assembly will have the right to make that decision.

Eleanor Laing (Conservative, Epping Forest)

I hear what the Under-Secretary says about devolution. However, if different rules are applied in different parts of the country and people are treated differently because of where they live or where they come from, how can he ensure the equality of opportunity that is the essential part of clause 31? We thoroughly support equality of opportunity. Will he ensure it?

Don Touhig (Labour/Co-operative, Islwyn)

I shall come to that point in a moment. There is a great distinction between Labour Members and the hon. Lady's party. We believe that going to university is an opportunity that can benefit people. They believe that it is a privilege for the privileged.

Eleanor Laing (Conservative, Epping Forest)

I thank the hon. Gentleman for giving way so that I can utterly and totally refute that. We believe in equality of opportunity. That is why access to university education is so important for everyone in every part of this country, applied with equality. We do not believe in privilege—I certainly do not.

Don Touhig (Labour/Co-operative, Islwyn)

I am grateful to the hon. Lady for clarifying that point. She may care to pass that on to the shadow Secretary of State for Wales who, in the Welsh Grand Committee on 16 December said that

''Opposition Members''

—meaning the Tories—

''believe that the number of available places should be reduced.''—[Official Report, Welsh Grand Committee, 16 December 2003; c. 49.]

The Government of Wales Act 1998 allows the National Assembly to make secondary legislation. It is, of course, for the Assembly to determine how it wants to use the powers that it is given by Parliament in that context. It is essential and appropriate that the framework that we set here should be available for the National Assembly.

Members will be aware that the Assembly has not yet decided whether to introduce variable fees. In this place we are charged with a duty to determine primary legislation for Wales. If the Assembly were to decide to introduce variable fees in the future, we have a responsibility to ensure that it could do so sensibly and in a regulated way: in the way that the Bill allows for England. That means that institutions would be required to produce plans before they are allowed to charge more than the basic amount for any course. The Bill, as drafted, provides the Assembly with the flexibility to do that in an appropriate way for Wales. The hon. Member for Ceredigion made a point on this: I do not know whether the National Assembly will decide to have variable fees at the end of the day. However, as Parliament legislates for Wales, it is right that a Bill providing further devolvement of responsibility for education policy in Wales should provide the Assembly with the freedom to act within the borders of that policy in determining its own policy.

I do not oppose the amendments simply on principle. In practice, the amendments are unworkable. Without a definition of a ''Welsh approved plan'', as provided under clause 21, future references in the Bill make complete nonsense. For instance, let us take clause 26, which would give the Higher Education Funding Council for Wales powers to impose conditions on the governing body of an institution that require it to comply with the provisions of any Welsh approved plan. However, what is a Welsh approved plan and how do we have one if we remove the provisions in clause 21?

Clause 34 would give the Assembly powers to make regulations enabling

''a Welsh approved plan to be varied''.

What would a Welsh approved plan be, if we do not have a Welsh approved plan as agreed in clause 21? Under clause 36, the relevant authority may notify a governing body that they will refuse to approve new plans for Wales. Again, if we do not define an approved plan, what is it? The answer comes in clause 38, which states that a

'' 'Welsh approved plan' has the meaning given to it by section 21''.

That section is clause 21, which the hon. Member for Epping Forest is now trying to remove from the Bill.

Simon Thomas (Plaid Cymru, Ceredigion)

In July 2003, in its submission to the Richard Commission, the Assembly's Education and Lifelong Learning Committee recommended, and requested, that more powers be devolved to the Assembly in the areas of student grants, teachers' performance pay and the strategic planning of post-16 education. Did the Conservative members of that Committee oppose those recommendations?

Don Touhig (Labour/Co-operative, Islwyn)

I cannot really say for sure, as I do not know the answer. Perhaps the hon. Gentleman does—I would not be surprised.

Tim Boswell (Conservative, Daventry)

I am grateful to the Under-Secretary for giving way, not least because it enables me to recall my chagrin at having missed some of the debate, having come to it late. As he knows, I have an interest in the Principality through my family connections.

Will the Under-Secretary tell us about ambiguous situations involving institutions that might be said to have a foot in both camps? I am thinking about a past situation, in which Gwent—alias Monmouthshire—was not defined as being part of the Principality. Of course, it is now, and I do not intend to reopen that debate. More particularly, if an institution were to have an interest over the border, would it be in one plan only? I take it that it could not possibly be in two plans simultaneously.

Don Touhig (Labour/Co-operative, Islwyn)

I think that that would be the case. We are talking about plans in Wales; the rest of the Bill deals with plans in England.

I do not wish to prolong this debate, Mr. Hood, as we have devoted a considerable length of time to discussing opportunity, yet nothing in the amendments relates to opportunity. The hon. Member for Epping Forest said that the clause treats plans in England and Wales differently. It does not: English and Welsh plans will both have to comply with clause 31 and be approved under clause 32. I am at a loss to understand how the hon. Lady has developed that argument.

The hon. Member for Westmorland and Lonsdale said that the principles should be the same in England and Wales. They are: the principles are set out in clauses 31, 32 and 34, which we will debate later. Of course, it is for the National Assembly to decide how that policy will be applied, as that power has been devolved to Wales.

Chris Grayling (Conservative, Epsom and Ewell)

I have a question about hypothetical, would-be students living in a council house, perhaps, with relatively deprived means, just over the bridge to the west of Chester, which the Minister will know well, just over the border with Wales. Would they be subject to a Welsh-approved plan in Wales or an English-approved plan in England?

Don Touhig (Labour/Co-operative, Islwyn)

This is an education Bill; I suppose that God has given Labour Members a mission to educate. The answer is that it would depend on which institution they wish to attend, not on where they live—that would not apply at all. I do not wish to prolong this any further, Mr. Hood.

Chris Grayling (Conservative, Epsom and Ewell)

I thank the Under-Secretary for that clarification. Is not he saying, therefore, that the Welsh Assembly will set parameters whereby Welsh universities will seek out would-be students in England? Does not that make a nonsense of the whole thing?

Don Touhig (Labour/Co-operative, Islwyn)

That question has nothing to do with the amendments that we are debating. We are talking about the meaning of a plan. We have had our levity on this subject. In the interests of supporting devolution—God help us and protect my sanity—I hope that the amendment will be withdrawn.

Eleanor Laing (Conservative, Epping Forest)

I have listened carefully to the Under-Secretary, and the lawyer in me agrees entirely with everything that he says about the Bill. As I have said, the amendment is technically deficient. In tabling these amendments, my colleagues and I did not intend to disadvantage universities in Wales—far from it. We wanted merely to probe this issue, and to ensure that the Government have considered all aspects of maintaining and encouraging equality of opportunity in access to universities. The Under-Secretary has answered some of our serious questions on that issue; he answered our technical questions on Wales very well. I have no wish to press a provision that I know to be technically deficient, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.

Clause 22 - Power of Secretary of State to impose condition as to student fees, etc.

Chris Grayling (Conservative, Epsom and Ewell)

I beg to move amendment No. 247, in

clause 22, page 8, line 35, leave out 'loans or other payments'.

Jimmy Hood (Labour, Clydesdale)

With this it will be convenient to discuss amendment No. 257, in

clause 22, page 8, line 35, leave out 'loans or other payments' and insert 'or loans'.

The rest of the debate is in Hansard.