Trade Bill

Debate between Lord Mackay of Clashfern and Lord Stevenson of Balmacara

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th March 2019 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a short but poignant and moving debate. We have reached back into history and tried to articulate fears and concerns.

[Lord Mackay of Clashfern (Con)]

If the noble Lord would allow me, I entirely agree with the difficulties associated with the border, and the need for a soft border, but I am not sure that this amendment achieves that. It would not directly affect the no-deal situation at all. It describes what I regard as a soft border; it is what I would like to see and what the Prime Minister’s deal, with the backstop and so on, is intended to do. But we are now dealing with a different situation. I would love to see a secure, soft border between Northern Ireland and Ireland, but I am not at all sure that the amendment secures that in any way whatever, although I would be glad to have help on that. It would not be as a result of an agreement between the European Union and the UK if there was no deal; no deal is the very opposite of an agreement between the EU and UK.

The other problem is that Ireland’s relationships with countries no longer in the EU would be regulated by the EU. I should be glad of some explanation from the people who know all about this of exactly how the amendment achieves the result I and they wish to achieve.

Trade Bill

Debate between Lord Mackay of Clashfern and Lord Stevenson of Balmacara

Report: 1st sitting: House of Lords
Wednesday 6th March 2019 Lords Chamber

[Lord Stevenson of Balmacara]

Yes—but I do not have it. I challenge the Minister: if she is asserting that we are as close as she says we are, would she agree to have further discussions and bring forward an amendment we could both support at Third Reading? I will give her time to seek inspiration. I am not confident that it will come in any palatable form but I make this offer genuinely. It is so important and the principles so germane to what we are doing that we should try to go the extra mile if we can.

Having said that, I think the Government are hiding behind a completely fantasised world in which everything is rolled back, as someone said, to the 19th century with the royal prerogative secure in its place. Somehow, Parliament would be consulted; it would be able to scrutinise and look at the outline approach. The clue is in the language: why outline an approach except to mandate? Why scrutinise, when what we are talking about is post hoc discussion in Committee, reports that will gather dust in libraries but not have any effect, and no chance to influence at a parliamentary level what is being decided.

There are issues of principle at stake—about who has the right to make the decisions that will literally affect the people of this country in a very material way. This is because of the way in which trade has moved away from being simply about goods. It now involves services and a whole range of socioeconomic issues that need to be addressed in the round, at the highest level, by those elected by the people they serve. We have a role, though not as an elected House. I say to the noble Viscount, Lord Hailsham, that, in any discussion about priority, of course it has to be the Commons that takes the final decision.

These proposals need to be worked through properly. I will pause for a second to allow the Minister to respond on whether she is prepared to take this up at Third Reading. I will talk until I have to sit down, but I will give way to her if she wishes to make a comment.

[Lord Mackay of Clashfern]

While my noble friend is proposing to make a comment, it is highly important that the question of whether something should be discussed at Third Reading is a matter for this House. We have become rather accustomed to attempts on the part of Ministers to decline the opportunity of a Third Reading, but it is for this House to decide. I have no doubt that this particular, very important problem, which involves a delicate balance between the Executive on the one hand and Parliament’s two Houses on the other, should be handled with the utmost care. As the noble Lord, Lord Stevenson of Balmacara, noted, this is an issue about which there is already a bit of difficulty with the detail. We must try to get this right. I have no doubt that, if it is agreed at this stage, the House will allow it to be raised at Third Reading.

[Baroness Fairhead]

My Lords, we have had very fruitful discussions and come quite a long way on this point. All I can say is that I would be happy to discuss it further but I cannot guarantee to come back at Third Reading with any changes. On that basis, the noble Lord will have to decide how he chooses to treat his amendment.

[Lord Stevenson of Balmacara]

The Minister is certainly very brave to take on a former Lord Chancellor in his pomp. I agree with the noble and learned Lord. The House has a very strong view about this and would like to see it back, but I am stuck with the procedural arrangements, as far as I understand them. I cannot amend the amendment before the House at the moment. I assume that the only way to do this would be to vote it through—if the House will agree to its view being tested—and hope that we can bring it back either through ping-pong or in some other way. I give way to the noble and learned Lord to see if he has inspiration of his own.

[Lord Mackay of Clashfern]

Inspiration is not my line but there is no doubt at all that it is for the House to decide. The mere fact that the Minister has not been able to agree that the matter should come back does not seem to be a bar to the House deciding whether or not it is right. If the noble Lord tables a new amendment for Third Reading, the clerks will have a view but, ultimately, whether it should be considered is a decision for the House.

[Lord Stevenson of Balmacara]

I am grateful to the noble and learned Lord. I am getting inspiration in the form of a book from my noble friend.

Domestic Gas and Electricity (Tariff Cap) Bill

Debate between Lord Mackay of Clashfern and Lord Stevenson of Balmacara

Report stage (Hansard): House of Lords
Wednesday 27th June 2018 Lords Chamber

Amendment 4 (to Amendment 3) not moved.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I will briefly address the substantive motion and explain why we are not moving Amendment 4. It is not from any wish to exculpate us from the needs that should apply to bodies which represent consumers in relation to appeals; it is simply that, given the news that the noble and learned Lord wishes to withdraw his amendment, there seems little point in moving an amendment that will have to be withdrawn in turn.

I congratulate the noble and learned Lord again on introducing his amendment with considerable skill and clarity. He made his case comprehensively. Like him, I am completely bemused by the Government’s response to this, which seems to be more to do with protecting Ofgem than with the merits of the case he made. We are in a situation where the only appeal that will be available in this area is JR. We understand the defects in that and we think that it is probably wrong, not just because of the case that was well made by the noble and learned Lord but because it is an open invitation to seeing a greater amount of judge-made law rather than statutory law, which is a wrong thing. Nevertheless, we respect the decisions being taken by the movers of the amendment, and look forward to hearing a response from the Government.

[Lord Mackay of Clashfern]

My Lords—

Higher Education and Research Bill

Debate between Lord Mackay of Clashfern and Lord Stevenson of Balmacara

Ping Pong (Hansard): House of Lords
Thursday 27th April 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, the amendment in this Motion regarding the appeals system is greatly improved, as my noble and learned friend Lord Judge has said. I am delighted that this has happened because it is of vital importance in relation to the very serious matters that the Office for Students has the power to deal with. I thank the Ministers who have been involved. I include in this particular thanks to my noble friend Lord Young of Cookham, for reasons that I shall explain in a moment, and the Minister in the Commons for the very kind way in which various reactions of mine to this extremely important Bill have been handled.

I want to mention a particular matter that does not arise especially under this Motion but, from my point of view, is rather important. When the noble Baroness, Lady Brown, raised the issue of the new power to search the headquarters of higher education providers, she indicated that it was something that the higher education providers anticipated with a degree of apprehension. In response to that, my noble friend Lord Younger of Leckie read out from Schedule 5 the statutory requirements before such a warrant could be granted. I have listened to a lot of the Bill without particularly talking myself, but on that occasion it occurred to me that one of the assurances the academic community was entitled to get was that those restrictions, which are quite powerful and important, would definitely be the subject of consideration by the magistrate. I suggested that the magistrate should sign a document to that effect. I got a letter almost immediately, which is still on the website, to say that such a thing was unheard of.

It is 20 years since I handed over with confidence my responsibilities for this part of what is now the Ministry of Justice to my successor, the noble and learned Lord, Lord Irvine of Lairg, so it is a very long time since I dealt with this particular matter directly. Still, when I got that response, I thought, “Well, in that case the thing to do is to alter the words of the warrant to make it clear that the warrant’s signature carries that with it”. That was objected to for all sorts of reasons, as your Lordships may remember, and some of them were addressed by my noble friend Lord Young of Cookham on Report. I felt rather strongly about it, as he recognised, and he kindly said the Government would consider it further before Report, giving me an opportunity, which otherwise I would not have had, to raise the matter on Report.

I was still very insistent on this, because I could not see any objection to it. I am particularly obliged to the Minister in the Commons, Mr Johnson, for arranging at the last minute for me to have a chance to deal directly with the Ministry of Justice, from which the objections to my amendments were coming. That afternoon, I was able to meet the official in that part of the Ministry of Justice for which, as I said, long ago I had responsibility. He eventually told me that in fact, the procedure for dealing with warrants had now been altered by order of the Lord Chief Justice, particularly in criminal cases so that, at the end of the application for the warrant—strangely enough—there is a place for the magistrate to indicate whether he or she agrees that the warrant should be granted and, if so, what the reasons are for that decision. He said that he thought that this was probably general practice in relation to warrants in the magistrates’ court—because this is not a criminal warrant under the Bill. My noble friend Lord Younger of Leckie said that that was the position when the Motion was moved on Third Reading.

I therefore express my gratitude to the Minister and the Bill team from the Department for Education for their kind treatment of me in connection with this and other matters. It is important that where a Ministry other than that directly responsible for a Bill gives advice to block an amendment from someone who, after all, was thought of as a government supporter, it should be blocked in a way that depends on Ministers’ expertise. With respect to Mr Johnson’s great variety of eminence, he would not be particularly interested in the magistrates’ courts procedure for warrants, so it is really nothing to do with him. Similarly, for my noble friends Lord Young of Cookham and Lord Younger of Leckie, it is a damaging way of damaging your colleagues without much apparent responsibility. I therefore qualify my thanks for the work that has been done behind the scenes here, modified by that matter, for which the Ministers responsible for the Bill have the right for me to make it clear that it was nothing to do with them; it was from a source for which they have only the responsibility of being in the one Government.

[Lord Stevenson of Balmacara]

My Lords, I was not going to intervene on this point because the case for accepting the amendments in lieu has been made very strongly by both the noble and learned Lord, Lord Judge, and my noble friend Lady Royall, but that little vignette from the noble and learned Lord, Lord Mackay, put me in mind of two things that I thought it might be useful to share with the House. First, the noble Lord, Lord Lisvane, has been very active on the Bill on a particular narrow issue. As a result, I have got to know him a bit better. He kindly shared with me a speech that he gave recently at a meeting of a rather arcane group of people who seem to be interested in administrative law—the noble and learned Lord probably goes to their meetings every week, but it is the first time I had ever heard of it. They obviously debate serious and important issues. His address was about the quality of legislation going through your Lordships’ House. I recommend it to all noble Lords who been involved in this process, because I observe a little of what the noble and learned Lord described. When the annals of this Parliament are written up, I hope that there will be space for this little vignette of persistence over every other aspect of life, which has resulted in a terrific result. He did not quite give the nuance that I thought that he was going to end up with—and I wanted to share that with the House. There were not many of us there late at night at Third Reading when this matter was finally resolved, but it is worth bearing in mind.

The noble Lord, Lord Lisvane, makes the point that, very often in considering legislation, a mentality sets in in the Bill team that is called the “tyranny of the Bill”—an article of faith that the Bill must be right, because the people who have put it together have spent most of their professional lives working on this piece of legislation. In the case of higher education, they have probably waited a generation to get a higher education Bill together. They are not going to give up a comma, let alone a word or a phrase, without considerable resistance. He praised avidly legislators in both Houses getting round that. I mention that point only because, as we have found a lot of times, the results that we are seeing today were not always there; it did not always feel as if we were working in a spirit of co-operation, trying to get the best legislation. Perhaps I should not have said it, but I meant it at the time. It certainly did not feel like that on day 1 in Committee, when there was every opportunity to compromise on a particular issue and the Minister, when offered the chance to take away an issue and look at it again, spent about three-quarters of an hour, it seemed to me, finding every conceivable reason for saying no. I do not think that that was to the benefit of the Bill in the long run—but we have got over that.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, in relation to what the noble Lord, Lord Bilimoria, said about the Prime Minister’s remarks on calling the election, I am relying only on my memory but I do not think that she said “the unelected House of Lords”. She referred to unelected Lords who had made it clear that everything they could do to stop Brexit would be done—it was something like that. I do not think that she was referring to the House of Lords as a whole, because apart from anything else it would not fit the description.

I also support what my noble friend Lord Willetts said. He knows much more about the atmosphere in Whitehall now than I do, and he said he hoped that the research promoted in this might well have a good effect in that direction.

Finally, I agree with what has been said about the noble Lord, Lord Stevenson of Balmacara. I hope that he will enjoy the freedom of not being on the Front Bench. I want to thank all his colleagues on the Front Bench and those on the Front Bench of the liberal party and on the Cross Benches for their help with some of my efforts. I have enjoyed their co-operation and for that I am very grateful.

[Lord Stevenson of Balmacara]

My Lords, the Prime Minister referred to us all as saboteurs more than anything else, which might be a compliment in some ways. We might reflect on that as we go forward.

We must accept that we have made no progress at all on this section of the Bill. It would probably be wrong of me to give too much detail about what happens in a wash-up session. Very few people are privileged to attend them, and I was there only for a small part of it. The rest of the time I was left hanging on a mobile phone in a remote area in which it did not work very well, and I got more and more frustrated about my inability to have any influence in some of the debates. However, one would have hoped that a majority of 94, and the arguments that we have heard rehearsed again today, would have led at least to a discussion about the way forward on this complex and rather annoying area that we seem unable to bring into focus.

In fact, I understand that it was made clear at the very start that the Minister concerned was unable to discuss any concessions in this area: it was ruled off the table from the beginning. In that sense, it plays a little into the conversation that we had earlier: that there is something dysfunctional about Whitehall on cross-cutting issues. We all know the wicket issues that are difficult and that nobody wants to play on. No Minister will take full responsibility for them and unless they get prime ministerial push—and a lot more besides, because Prime Ministers are not always as powerful as public misconceptions would have it—they will not make the progress necessary to achieve something that is genuinely about the whole of government. A hole has been created in this area and we have, I am afraid, fallen into it. Added to that is what appears to be an uncanny ability of the current Prime Minister to exercise control in a fairly remote part of the Government.

I have two other things to say before we hear from the Minister as he winds this Bill up. The first concerns a little of what the noble Lord, Lord Willetts, said and what was said around the House. We need to use the fact that we have been rebuffed again on this issue to try to get the case right. That would be a good thing to do. Although the statistics are important, I will focus not just on them, because it might be a little ambitious to think that we will get a counting-in and counting-out method just because there is a problem in this area. The real issue is: who actually controls the entry of students to our universities? The noble Lord, Lord Willetts, said that at the end of the Bill we would probably have the best-regulated sector in the UK and possibly in the world. But should we not be trusting our higher education institutions to get on with the job and to recruit the best people they think can benefit from an education here?

The truth is that this is all second-guessed by the Home Office, which has its own teams of people who interview the students nominated by the institutions. They set the quota levels, which are said to be unlimited but are in practice set and increased only on application, and they change the quotas available to every institution if they feel that an institution is making mistakes in the people it recruits. This is not just about the point of entry. What happens to these students after they have left the responsibility of the institutions? When they go out into the wider world if they are able to get a job, or even if they disappear from the statistics, somehow the original institution that brought them in is responsible for them. That seems a double penalty, both for what they are doing and for future recruitment issues. All this has to be picked up and looked at. It is not a good system.

A pilot scheme is ongoing that affects masters courses, not undergraduate courses—deliberately chosen so that the results will be available earlier. Therefore, there is some hope that we might use that system to drive through a different approach to this, so that trusted institutions that are well regulated under a new system that has the support of both Houses can make the decisions necessary to recruit the right students. Those students will benefit from our system and can then fulfil their soft power responsibilities, duties and activities before going back, creating economic activity before they do so and being good citizens here and in the world. Currently, we have failed completely. I really regret that. I have bitterness and regret as much as the noble Lord, Lord Hannay, and I share his pain, but we must move on from here. The issue must not go away; it is too important for the economic future of our country, for the institutions concerned which need these students if they are to be successful and make progress, and for the individuals who are getting the benefit of the education here. I hope we will make progress urgently on the disaster that we now face.

Higher Education and Research Bill

Debate between Lord Mackay of Clashfern and Lord Stevenson of Balmacara

Report: 2nd sitting (Hansard): House of Lords
Wednesday 8th March 2017 Lords Chamber

[Lord Stevenson of Balmacara]

I was expecting the noble and learned Lord, Lord Mackay, to speak to Amendment 118 in the group, if he wishes to do so.

[Lord Mackay of Clashfern]

My Lords, I did not understand why this provision is in the Bill. I was rather surprised when I first saw it, and when I raised the point at a meeting, those promoting the Bill seemed to be almost equally surprised. However, I have now found out exactly what it is for. It is intended to deal with situations where someone has gained a degree through various nefarious practices and that is discovered. Once you understand that, it is quite normal and certainly not unexpected that the same provision should apply to other arrangements. However, this is a special one for this particular situation. I am happy with the explanation and I shall not press my amendment.

[Lord Stevenson of Balmacara]

My Lords, given that elucidation, I shall say much the same thing but in different words in relation to Amendment 119.

My name was attached to Amendment 117A and I have listened carefully to the comments of the noble Baroness, Lady Wolf. It is an offer to the Government to tidy up an area that needs more attention.

I turn first to a letter we received by email today just before we got into the Chamber. The Minister may have something to say on this point which may resolve the issue. I am grateful to the noble Baroness for her support on Amendment 119. It was spoken to when we tried to link it to an earlier group of amendments in case, as has happened, the Bill was amended to reflect a situation where validation routes are twofold. One route involves working with another institution or provider for at least four years—some courses are longer than four years—and then applying for the powers at that time. The other route is by having a tougher assessment arrangement, which is done through the Quality Assessment Committee of the Office for Students and the designated body appointed in this area. In those circumstances, it does not seem necessary that there would be a requirement at any stage in the future for the OfS also to be a validator.

The amendment would remove the infelicitous possibility that the body which is now called a regulator, the Office for Students—I wish it had another name—would not only ensure that validation arrangements operated throughout the sector but would also be a validator and the regulator of those two processes. That does not seem appropriate. However, in the letter today there is an announcement, which I am foreshadowing, which deals with the fact that there will be a process of consultation on the precise way in which the OfS will provide a validation service. That seems to covers the point very well, so we will not press the amendment.

Higher Education and Research Bill

Debate between Lord Mackay of Clashfern and Lord Stevenson of Balmacara

Committee: 7th sitting (Hansard - continued): House of Lords
Monday 30th January 2017 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, this is a short but important point. Schedule 9 paragraph 8(1) states:

“UKRI may … appoint employees, and … make such other arrangements for the staffing of UKRI as it considers appropriate.


Sub-paragraph (2) states:

“The terms and conditions of appointment as employees are to be determined by UKRI with the approval of the Secretary of State”.


That is the general provision. However, there is an extraordinary provision in Clause 89. After listing the research councils—it is interesting that the arts and humanities are separate although the arts include humanities, although that does not matter too much—subsection (2) states:

“Arrangements under this section may, in particular, provide for the exercise by the Council concerned of UKRI’s functions under paragraph 8(1) and (2) of Schedule 9”—


those are the paragraphs I have just read—

“in relation to relevant specialist employees”.

In other words, the council is going to get, possibly, a chance to make arrangements in regard to relevant specialist employees. Who are these?

“A ‘relevant specialist employee’, in relation to a Council, means a researcher or scientist employed by UKRI to work in the field of activity of that Council”.


It is quite obvious that the term “scientist” is fairly ambiguous. For example, would it include a specialist doctor working for the MRC?

The other obvious question is whether this applies to technicians in laboratories. Is a technician a scientist? I would think they certainly are, but it cannot be taken as a certainty that the construction of the term “scientist” in this Bill would necessarily include a technician because sometimes we distinguish between them in the terminology. So far as researchers are concerned it is, vague in the extreme. Is a person who organises research but does not do any himself or herself qualify as a researcher? I thought that there must be some principle behind the selection of the terms “researcher” and “scientist”, and that is what my amendment ventures to suggest. It provides that, for a specialist employee,

“after ‘scientist’ insert ‘, or other person whose knowledge or experience is important to the operation of that Council”.

That is the only way to avoid ambiguity.

I have the impression from my discussions with the department that the general view is much in accordance with mine, but the officials seem to think that the terms “scientist” and “researcher” would include them all. I would like to say that they do not, but it is certainly not clear at all and I see no reason why it should not be. The easiest way to put it clearly is not to set out a list of all the people we can think of, because there would quite a number; rather, it is to set out the principle on which the relevant specialist employee as a characteristic is determined. That is what I have tried to do in my amendment, and I am happy to seek a better formulation if the Minister wishes it. I raised this point when I wrote to my noble friend’s predecessor and to the Minister in the Commons. I hope that we might be able to get an answer to this question tonight and I beg to move.

[Lord Stevenson of Balmacara]

My Lords, this is an interesting amendment and it has been well trailed since the noble and learned Lord made it clear in a couple of our Committee sittings that he intended to speak on this issue. We are glad finally to get the benefit of his words expressing concern about the current drafting and the need to unpick it. I think the Minister will be at a slight disadvantage because we have been making this point throughout the six days of our deliberations in Committee. We have tried to draw the attention of the noble Viscount to the fact that wherever there is an opportunity, in our view, for the Bill to inflect a sensibility within the structures and operations of the various bodies being established under the new architecture, towards an inclusive way of treating those employed within these structures, it has always been rebuffed. That might be too strong a word, but although it has been played back to us as something the noble Viscount would think about, we have not even managed to get him to reflect on it.

So the Minister is not able to take responsibility for the omissions of the earlier sittings of the Committee, but this is a great opportunity to pick up the point. Given that he has come from a department which must have responsibility for employees—indeed, in his last outing he was dealing with trade union reform and related issues—he will be well aware of the sensitivities that these matters can give rise to. He might want to reflect on the need to respond positively to the noble and learned Lord, who has made such a fine point.

Higher Education and Research Bill

Debate between Lord Mackay of Clashfern and Lord Stevenson of Balmacara

Committee: 7th sitting (Hansard): House of Lords
Monday 30th January 2017 Lords Chamber

[Lord Mackay of Clashfern]

I support the amendments proposed by the noble Lord, Lord Patel. I agree that consideration needs to be given to the points raised by the noble Lord, Lord Liddle, but one must not forget that there are regions of the United Kingdom south of the Scottish border which may require special attention.

I am hopeful that the reflection, which I am sure that we will have on these amendments, may result in good outcomes. Officials in the department have given me a copy of the application invitation to non-executive members of UKRI, which says:

“We welcome applicants with a range of experience from within the different nations of the UK, the charity sector, and with international experience”.

[Lord Stevenson of Balmacara]

My Lords, this has been a very interesting debate, and I am grateful to the noble Lord, Lord Patel, for introducing it so well, because he covered all the nuances. We have one amendment in this group, Amendment 500A, which complements the points that he was making. It reflects the need to make sure that Research England, in its functions, which would be very narrowly focused on England—including, of course, the north of England—could have the capacity to consult other bodies that perform the same functions in Scotland, Wales and Northern Ireland. That goes with the general grain of what is being discussed.

I have a fantasy that this area was probably dreamed up in the good old days before Brexit was on the horizon, in the confident assumption that there would be no separate Scotland—and certainly no separate Wales and Northern Ireland, if these issues are still in play, as I am sure they are. That reflects a relatively straightforward analysis of what had to be done to pay lip service to the need to ensure that those people not physically located in England were seen to have some influence on the levers that generated the money. But that is such a naive view of what is now such a complicated world that I wonder whether what is in the Bill is sufficient to take that trick. It is one area in which reflection will be required, as the noble and learned Lord hinted, because I do not think that what we have here will do.

I take it as axiomatic that UKRI is not a representative body and that there would be no advantage in making it so—so we are not talking about ensuring that the representation on it is in some way reflective of the various agencies and constituencies that need to be served by it. However, there are optical issues—it has to be seen to be representative in a way that would not have been the case two or three years ago. The idea that, as we heard from the letter of invitation, it has an acknowledgment of the need to recruit from people with obvious experience in an area will probably will not be sufficient. We are talking about the allocation of resources getting scarcer as we go forward, despite the Government’s reasonable largesse, in an environment where it would be very difficult for those bodies that have been funded to seek alternative matching funding. The institutions we are talking about are not all universities, because research is carried out outside the universities—although much less than in other European countries—in research institutes and similar places. Up until now these have been very reliant on external funding and, as we will hear in later amendments, they are feeling a cold wind coming. In this very complicated area we have to ensure that the funds will reach the institutions which are best able to provide the research services which UK plc is looking for and in a way that is seen to be fair.

We have not touched on the fairness issue. The noble Lord, Lord Patel, talked about the need for firewalls to make sure that the funding streams were not absorbed by other pressures and under other arrangements. That is probably a necessary but not sufficient condition and does not need to be in the Bill. However, the idea exists that England, because of the golden triangle effect, has a pre-eminent chance of getting all the funding and that, despite the way in which these funds will be allocated—through the Haldane principle and others—there will be enough room left for those who wish to make trouble about this in, say, Scotland or other places. This is a worry and it will need to be looked at very carefully before the Minister comes back. I do not have a solution to it, but we are not necessarily in the right place at the moment.

Higher Education and Research Bill

Debate between Lord Mackay of Clashfern and Lord Stevenson of Balmacara

Committee: 3rd sitting (Hansard): House of Lords
Monday 16th January 2017 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, I think we are all slightly struck dumb by the flow of information that has come out about this. I must say I had not fully appreciated, until the Minister started speaking, exactly where she was going on this. I am still slightly confused and I shall ask three questions at the end for her to come back to if she can. As I understand it, representation has been made sufficient for the Ministers to decide that a body will be created, separate from the OfS and not dissimilar to HESA, which will carry out the functions that the noble Baroness talked about and hold data in addition, as long as that is within the purview of the OfS. There is obviously a little detail missing, because I could not find in the Bill, in the short time I had to look at it, exactly where are the powers, the bodies, the functions or the establishment of HESA—or, rather, the quasi-HESA, if it is to be that body. If I have not found it by the time we get to the end of this short debate I would be grateful if the Minister could say exactly where I will find it, so that we can check it when we compare it with Hansard.

The reason for being slightly tentative about this is not that I object to the principle—I think the principle is absolutely right. Indeed, there is a bit of a trend developing whereby the functions that were previously within HEFCE, broadly, and within a set of bodies which were set up specifically for the purpose but without statutory backing, have been merged into a single body under the Office for Students. However, we are now realising, as we begin to unpick this, that separate institutions will probably be established. Certainly, I have a later amendment which proposes that the body responsible for quality assessment—the standard of the institution as it approaches and is made into a higher education provider in England and therefore eligible to be appointed to the register—will be independent of the Office for Students. That is because I take the point made earlier by the noble Baroness, that the regulator should not be too close to the other institutions. That is a point we made about the last amendment, but we should also make sure that the regulator is not also a validator or a cheerleader for the sector. It would not be possible for a body appointed as a regulator also to be responsible for carrying out the work which it is regulating. I think we need to think again about the Office for Students. I thought this debate would come a little later in the considerations of the Committee, but we now have an opportunity to pick up at least one area of that.

If I am right that that is where we are coming from, where does this take us on the journey? It is clearly vital to the long-term guidance and the policy directions we need to take in higher education to have a clearer understanding of what the statistical background and basis of that will be. It is conventional in other areas to have separate bodies responsible for information gathering and dissemination, therefore it would be slightly odd if higher education did not follow down this track. To that extent I am absolutely on all fours with Ministers on this; we are not on a good position on that. What I lack is information about how this body is to be established and how certain it will be about its future. HESA is a creature of HEFCE, as I understand it, and therefore does not have its independent funding or constitution. If this is to create that, then we need a little more information before we can tie it off. In terms of where we are coming from, of the 24 amendments that are down in the name of the noble Viscount the Minister, I think that this is a good start and I hope that it will be endorsed as we move forward.

[Lord Mackay of Clashfern (Con)]

I want to be sure that I understand. The designated body will be able to perform some of the duties which the Office for Students has, under the Bill, if that option is taken up, but the designated body will also have responsibilities which the Office for Students does not have under the Bill at the present time. Am I right in that? If so, are the extra responsibilities that the new designated body has in relation particularly to the fixing and consideration of standards?

[Lord Stevenson of Balmacara]

I am sorry to come back so quickly but I am prompted by the noble and learned Lord to make a point. The reference he makes to the responsibilities of the OfS is not, of course, in Part 1 of the Bill as we have considered it—I think he has picked up that point. There is a schedule which contains further information, but a quick reading, which is what I was trying to do while the noble Baroness was speaking, does not seem to pick up exactly the point he has made, so I endorse it and look forward to hearing the response.

Deregulation Bill

Debate between Lord Mackay of Clashfern and Lord Stevenson of Balmacara

Thursday 5th February 2015 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank all speakers for contributing to this debate and make special mention of the noble Baroness, Lady Howe, for all her campaigns, but particularly on this issue, which she has pursued with considerable vigour over the past few months. I also thank the noble BBC pensioner, the noble Lord, Lord Grade, for his support. It might be of interest to the House that he has had to change long-standing family arrangements to be here today, and we are grateful to him for that. The fourth spear carrier, the noble Lord, Lord Clement-Jones, has joined the charge and made a valuable contribution.

We have heard little vigorous debate about this issue because just about everybody is in favour, with the exception of the impassioned speech from my noble friend Lady Corston. Like other noble Lords, I share her concerns and regret that we did not tackle this issue earlier, because it is clearly causing considerable dismay.

When issues of public policy need to be resolved, there is no better place to do it than in your Lordships’ House, and this debate has lived up to its highest reputation. I should like to make three points.

First, this is an important matter. The BBC is the gold standard of our broadcasting system, which is one of the best in the world. We should never forget that. We take for granted the information, education and culture that the BBC produces hour after hour, day after day, and never really question how it has adapted to and survived so many changes over the decades, and how the system has evolved to make sure that that happens.

At a time when the very nature of the British state is under question, we should be very careful about tinkering with the long-established procedures under which it operates. I do not need to remind your Lordships’ House that, in survey after survey, the BBC ranks as one of the most important signifiers of the United Kingdom in all four countries. Recent experience in Scotland demonstrates what happens if that becomes an issue of debate in a referendum.

Over time, we have established appropriate procedures for exercising effective but arm’s-length oversight of the BBC, involving, as we have heard, periodic reviews of the charter and licence fee and the regular fixing of budgets. Previous charter reviews have taken two or three years of consultation and debate—although I understand that the timescale for the 2010 licence fee settlement was perhaps weeks, if not days. However, that does not depart from my general point.

Most people in the UK feel that there would have to be a very pressing reason for the Government of the day to depart from long-established procedures for settling the governance and funding of the BBC. I think it would be very unwise for any political party to play around with the BBC for short-term political advantage.

Secondly, I turn to the review. We support the review being undertaken by David Perry QC. We do not know what the review will recommend on the important question of decriminalising penalties. As I said, my noble friend Lady Corston made some very good points that need to be considered. Having said that, this is complicated and, as has been said, is as much to do with the courts and social services as how the BBC operates. This issue has not passed the test of being a pressing reason to depart from normal governance procedures. We think that it is right to wait for the outcome of the review before any decisions are taken. We must consider whether there is any reason for intervening in advance of the licence fee settlement, and we do not think the case has been made. In all the reasons that have been given today, I have not heard one to suggest that that needs to be departed from.

Thirdly, we need to probe deeply into what the Government are saying. As the noble Baroness, Lady Howe, and my noble friend Lord Watson said, when the 2010 licence fee settlement was announced, the letters that went out at the time said that the settlement would,

“provide a full financial settlement to the end of the year 2016/17”—

the end of the year 2016-17—

“with no new financial requirements or fresh obligations of any kind being placed on the BBC and/or license fee revenues in this period”.

I call on the Government today to honour that commitment on certainty and security, which they can do in part by accepting this amendment.

As my noble friend Lord Rooker said, we need to recall that this clause was not in the Bill when it was first introduced to Parliament, and therefore not subject to pre-legislative scrutiny. It came late in the process, when the Government rather unexpectedly accepted a Back-Bench amendment from their own side in the other place. It has never been properly considered or scrutinised; the only discussion has been in Committee in this House. In that Committee, the Minister said:

“The findings of the review … should be considered in the context of the charter review”,

a statement to which we could not object. However, he went on to say:

“It will be for the Government of the day to take forward any further actions as they see fit”.

Further, he said that the argument in favour of that action was that if the review were to find,

“an issue with the current regime, it can be of benefit to no one to delay the review or to prevent its findings informing any required change to the existing system”.—[Official Report, 11/11/14; col. GC 31.]

This is specious, and sophistry. If the review was to recommend a change in process, there could, as we have heard, be a gap of some £200 million a year for the BBC in the last year of an already very punishing settlement. As the noble Lord, Lord Fowler, suggested, the Government are trying to have it both ways. They are trying to persuade us that they are indeed with the angels on the charter review, requiring it to be a full and proper process, but at the same time wishing to reserve their position in case there is an opportunity for them to cut funding to the BBC in 2016-17. This is wrong.

I put it to the Minister that by resisting this simple and principled amendment today, he will be fuelling a sense that this Government are doing what they can, when they can, to weaken the BBC. As the noble Lords, Lord Grade and Lord Fowler, warned, it opens the door for darker forces in favour of a different funding model for the BBC. It is not just a simple reform of the penal system. The reaction to this issue today, from right across your Lordships’ House, which I aver is echoed across the country, shows that it would be completely wrong for the Government to introduce a significant change in funding for the BBC before the start of the next licence fee period on 1 April 2017. If the noble Baroness, Lady Howe, wishes to test the opinion of the House, we will support her.

[Lord Mackay of Clashfern (Con)]

Before the noble Lord sits down, is there any reason why, in the mean time, an amendment to the arrangements for the problem raised by the noble Baroness, Lady Corston, could not take effect? This amendment appears to cut that out also, until the 2017 deadline. It strikes me that the problem, which the noble Baroness explained fully, has a very serious and unnecessary effect on families. I should like to see the possibility of that being dealt with. I do not agree that it would be all that difficult because the civil sanction would remain, so I find it difficult to agree that that should be cut out. I understand all the rest with reasonable clarity but I do not understand why this particular aspect should be cut out, as I understand it would be by this amendment.

[Lord Stevenson of Balmacara]

I am very flattered to be invited by the noble and learned Lord to reflect on what he has said, which makes a great deal of sense. I suggest that it is for the Government to say whether they could take forward the sensibility of my noble friend Lady Corston’s points because it seems that they might require additional funding, which could of course be provided by the Government, should they wish to do so. It is not my position to say that. However, I think the noble and learned Lord is saying that if one could, with equity, deal with my noble friend’s arrangements then we would have solved one problem. I put it to him that it would not solve the greater problem: that there should be a self-denying ordinance from any Government, and not a willingness to interfere with long-established procedures for making sure that the BBC has the funding it needs to do the job that it is required to do. I hope that he would accept that.