Higher Education and Research Bill

Debate between Lord Mackay of Clashfern and Lord Hannay of Chiswick

Monday 9th January 2017 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, when the noble Viscount winds up will he address a question I will put to him in supporting my noble friend Lord Kerslake’s Amendment 65 and Amendment 71 in the name of the noble Baroness, Lady Garden, which are about autonomy? The Government say very firmly, which I do not dispute, that they support the idea of institutional autonomy, but will the noble Viscount address how that squares with the consultation the Home Secretary is currently undertaking, which seems to me, on the face of it, to be designed possibly to interfere with the right of universities to decide what courses they will offer and what subjects they will teach? It would be a very serious intervention if the Government were, in granting visas to overseas students, to take account of restrictive views of their own about which courses universities ought to be teaching. Will he address that? It is germane to Amendments 65 and 71.

[Lord Mackay of Clashfern (Con)]

My Lords, so far as the concepts which are in issue in these amendments are concerned, I am entirely in favour of the autonomy of our higher education institutions, but autonomy does not mean they can do what they like. There is a severe restriction on that autonomy in the provisions for academic freedom, because they prevent universities trenching on the freedom of their academic staff in the way described.

This question of academic freedom is grounded on my heart. As a new Lord Chancellor I had been given the rather unpleasant responsibility of taking the universities section of the 1988 Bill through this House. There were about as many chancellors of universities then in the House as there are now. It was rather a difficult task. One of the things I was determined to have was protection for academic freedom in view of the provisions relating to university tenure. I therefore promoted in government an amendment to deal with academic freedom. When the Bill came to Committee, at a very early stage Lord Jenkins decided he had a good definition of academic freedom, which he put to the vote. From my point of view, it had the great effect of not requiring further consultation in the Government.

Academic freedom became a statutory provision then and remains, but it is an innovation on the complete idea of autonomy. One of the other things we have to remember relating to autonomy is a matter raised in the debate this afternoon on the governance of universities and higher education establishments. The form of the governance can be extremely important.

I was involved long ago in litigation about the governance of Scottish universities where they have a rector. For the first time in the history of Scottish universities, a certain student was nominated to be a rector of Edinburgh University—it does not take a lot of guessing to know who that was. He graduated to be the rector of Edinburgh University notwithstanding the judicial proceedings and later became the Prime Minister, so he had excellent preparation for that office. It has therefore to be borne in mind that autonomy does not necessarily mean that you can do exactly what you like, but it means that there is considerable freedom in how you do what you are there to do.

One issue raised by the first amendment in the name of the noble Lord, Lord Stevenson, was that of profit. As he said, every institution that wants to be ongoing has to ensure that its income is at least somewhat greater than its expenditure—as Mr Micawber pointed out to us long ago. Every institution that is a university or a higher education establishment has to have that. Why should it make all the difference that the people who set that establishment up want a return on the capital that they put into it? I agree with the noble Baroness who said that exploitation is quite wrong—nobody, I think, could dispute that—but it does not necessarily follow that because you run an establishment for profit you will exploit those who come to it. In a free-market situation, which is what we had until fees were controlled by the Government, universities were free to charge what they thought appropriate. I imagine that if a university is fee-paying, as is one of the institutions of which the noble Baroness, Lady Cohen, is chancellor, it must have some effect on the fees that are charged to the students.

I think that the law is that the purpose of education is a charitable one, but it does not follow that every institution set up as educational is itself a charity, because to be a charity you have to be established for charitable purposes only. One purpose that is not charitable is distributing profits to those who set the establishment up, so that university and any others that might follow in the same pattern would not be charities. I do not think that that matters too much; what matters is whether you can guarantee the quality of the teaching and research—if it does research—that such an establishment can bring forward. I do not feel that the provision that was made by a previous Government is necessarily incorrect. We have had a good example of what such an establishment can achieve. I think I am right in saying—I am depending very much on my recollection—that at least some of the examining boards are now set up by organisations that are for profit.

Protection from government of the autonomy of an institution strikes me as fundamental. I do not think that the Bill infringes on that directly, but I can see the advantage of making sure by way of negative provisions that it does not happen in the future, because we never know who may come along after the present Government. Proper protection for autonomy strikes me as highly appropriate, although there may be some dispute with my noble friend the Minister about the extent to which it is necessary. Such principles seem fundamental and I hope that they will be followed in consideration of these amendments and many later amendments.

European Union (Referendum) Bill

Debate between Lord Mackay of Clashfern and Lord Hannay of Chiswick

Friday 24th January 2014 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Armstrong of Ilminster. I am all the more willing to do so because, in its four proposers, it has support from all the main parties in the House and from the Cross Benches. In a debate which has already shown a tendency to become partisan, it is important to move ahead on that kind of cross-party basis.

I support the amendment because if and when there is a referendum, there will be a huge amount of partisan speaking, writing and so on—and quite right, too—on both sides and there will be much that is confusing. However, surely we all ought to be able to agree that the question on the paper we vote on should be a genuinely level playing field. That is critical. Everything else about the campaign will not be a level playing field—and that is right because we live in a democracy—but the question should be.

We have before us two questions. The one in the Bill of the noble Lord, Lord Dobbs, has been considered by the body set up under Parliament’s authority to give advice on these matters and found to be defective. We have heard why it is defective. I will be interested to hear from the noble Lord, Lord Dobbs, when he replies to this debate, why he thinks that, despite it being defective, it should be persevered with. I hope that he will not persevere with it; I hope he will accept the amendment.

The other question, which has been put forward by the Electoral Commission and which we are now considering, is, as has been said by everyone who has spoken today, a genuinely level playing field. It is important that if and when this referendum takes place it is perceived to be on a question that everyone can recognise as being a level playing field. How on earth are they going to think that if the Electoral Commission’s advice has been junked on a form of words whose origin appears to be obscure at the moment? Perhaps the noble Lord, Lord Dobbs, can tell us whom Mr Wharton consulted before he put this on the Order Paper. Whose opinion did he take? He is, after all, a freshman Member and I doubt that he has done a great deal of drafting of referendum questions in his life. Whom did he consult?

I hope that the noble Lord, Lord Dobbs, will surprise us all by accepting the amendment, because the issue of a level playing field in the question to be asked is absolutely fundamental.

[Lord Mackay of Clashfern (Con)]

My Lords, your Lordships will not be surprised that I am extremely concerned about this Bill, its implications and the time at which it has reached your Lordships’ House.

As I understand the Bill, it does nothing more than confer on the electorate of this country the right to an “in or out” referendum on our membership of the European Union—nothing more and nothing less. Further action is required from the Government and both Houses of Parliament before a referendum can take place under the Bill. It is clear from the present situation that no referendum is likely to take place before the next general election, the date of which we know—or at least at the moment we know—because of the excellent system of fixed Parliaments that has now been put in place.

It is clear that action by the incoming Government will certainly be required. I have reached the conclusion that any incoming Government holding a referendum during their term of office will wish to be in charge of all the details of that referendum and will put them in place through a public general statute. This will be put in place by the Government and run by the Government, with both Houses of Parliament—I hope more or less in their present forms—having a full opportunity to consider the details.

I am not a prophet—I do not know how many of us are—and I do not know exactly what the conditions will be in 2016-17. For all I know, the eurozone may be a distinct body from the European Union and a change of name may occur—as, for example, happened in connection with Maastricht when the name changed from the European Economic Community to the European Union. So the question will have to be decided ultimately in the light of the circumstances prevailing at the time of the referendum. That is absolutely essential.

--- Later in debate ---

[Lord Mackay of Clashfern]

I do not say that the question does not matter—not at all. I perfectly understand that the question at the time the referendum is taken has to be fair, excellent and take full account of the circumstances. In response to the second question asked by the noble Baroness, there is quite a lot of work to be done, but I know of no way other than this Bill that gives an assurance to the British people, going into the next election, that they will have an “in or out” referendum.

[Lord Hannay of Chiswick]

Would I be wrong in saying that the whole trend of the noble and learned Lord’s reasoning, which I have been following with great care, is that the wording for the referendum should not be in the Bill at all but should be determined by statute in the new Parliament? If that is the case, would it not be better to at least follow the amendment of the noble Lord, Lord Armstrong, and have a decent wording in the Bill? There is of course no Motion on the Order Paper to dispense totally with the wording.

[Lord Mackay of Clashfern]

My Lords, in order to have an enforceable entitlement, it is essential, as I see it, to have a question that is related to the issue that you want to raise. Essentially, the Bill is legislating to say, “There shall be a referendum”. However, in order to be enforceable and to create a real entitlement, it has to state the time within which the referendum must happen, the question that must be raised, the mechanisms by which a system can be set and who the electorate are. That is all necessary in order to create an entitlement, but the entitlement does not mean that the referendum is going to take place only in accordance with the Bill. There is no question that this Bill binds any other Parliament any more than any other Bill with a sunset clause in it. This Bill does nothing except give that entitlement to the British people. If the Bill passes, I shall be interested in the number of manifestos that contain an undertaking to repeal it.