Higher Education and Research Bill

Lord Lisvane Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Monday 23rd January 2017 Lords Chamber

Moved by

[Lord Lisvane]

265: Clause 40, page 24, line 11, after “instrument” insert “with the approval of the Secretary of State”

[Lord Lisvane (CB)]

My Lords, the amendments in this group which stand in my name and the names of my noble and learned friend Lord Judge, my noble friend Lady O’Neill of Bengarve and the noble Lord, Lord Norton of Louth, do three things. Amendment 265 would require the Secretary of State’s approval before the OfS could make an order authorising the grant of degrees. What is proposed in the Bill would replace the powers conferred upon the Privy Council by Section 76 of the Further and Higher Education Act 1992. Indeed, I like Amendment 266, tabled by the noble Lord, Lord Stevenson of Balmacara, even more than I like mine, as his would maintain the status quo. I do not like the idea of delegating law-making powers to bodies other than Ministers. The Delegated Powers Committee noted that such delegations were not unprecedented. For example, I am aware of a delegation under Section 42 of the Wildlife and Countryside Act 1981, and under the Communications Act 2003. However, the existence of precedents does not necessarily make the principle acceptable. When powers are delegated to Ministers, those Ministers are within the reach of Parliament. Under the Bill, the OfS will be, for practical purposes, beyond Parliament’s reach.

The series of amendments starting with Amendment 277 and ending with Amendment 298 deal with the power to vary or revoke authorisations. They take this power away from the OfS and would give it to the Secretary of State. Amendment 511 would make any SI made by the Secretary of State subject to the affirmative procedure. Those would still be Henry VIII powers, and unwelcome on that account, but they would at least be exercised by Ministers. The Delegated Powers Committee, of which I am a member, said in its 10th report of this Session that:

“There is nothing on the face of Clause 43 which limits the way in which the OfS is able to exercise the powers, leaving it wholly to the discretion of the OfS when and in what circumstances the powers should be exercised”.


The committee recommended that the powers should be subject to parliamentary scrutiny and that the affirmative procedure should apply. That would be achieved by these amendments.

Amendment 301 would remove the possibility of a decision on appeal being remitted to the OfS by the First-tier Tribunal, and this issue arose in the group of amendments led by Amendment 142 which we considered last Wednesday, when I argued that such a provision could allow the OfS to be in effect a judge in its own cause. The Minister promised me a written explanation of a similar power in Clause 20, which he has now provided with his letter today. The heart of his explanation is that this power to remit allows the OfS to remake its decision with the benefit of the tribunal’s judgment. He also confirmed that remitting a decision does not rule out a further appeal. I am very grateful for this explanation, which entirely meets the points that I made on that specific provision.

The second clutch of amendments in this group begins with Amendment 344 to Clause 53 and ends with Amendment 360 to Clause 55. The purpose of these mirrors those to Clause 43 but here the subject is the revocation of authorisation to use the title of university, which would no doubt follow the withdrawal of degree-awarding powers as provided for in Clause 43. Once again, the issue is the ability of the OfS to revoke such an authorisation by order, even if it was provided for in an Act or a royal charter. As with Clause 43, this is—if I may employ the expression—Henry VIII on stilts, however improbable a mental picture that may conjure up. As with Clause 43, I do not believe it is acceptable to delegate to the OfS such significant law-making powers in the sector which it is to regulate.

In two of his now growing series of helpful letters—those of 21 December and 11 January—the Minister told us that the Bill does not allow the OfS to take away royal charters. However, it seems to me that the powers given to Ministers by Clause 110, to amend or revoke provisions of a royal charter, are merely consequential upon a decision taken by the OfS. So if the OfS is the prime mover, the fact that it is the Minister who has to exercise that power is a distinction which may not be a practical difference. To complete the picture, Amendment 512 would make Clause 53 SIs made by the Secretary of State subject to the affirmative procedure, again as recommended by the Delegated Powers Committee. I beg to move Amendment 265.

--- Later in debate ---

[Viscount Younger of Leckie]

My noble friend is very adroit at raising some complicated issues. I should answer the question but also go into some detail as to the different scenarios that might occur. I respect the quality of advice that he gives.

[Lord Lisvane]

I am very grateful to the Minister for his careful and detailed reply. The noble Lord, Lord Norton, is on to a good point there. If it is an SI Act 1946 statutory instrument, the Act contains the praying procedure. It would indeed put a Minister perhaps in rather a difficult position, having to defend the case, while having, as it were, abrogated responsibility. That is no doubt something about which we will hear, perhaps in a further edition of these exciting letters.

I do not quarrel with the proposition that the OfS will be best placed to make the assessment, but that does not necessarily mean that the OfS should be able to engage in the law-making process. I fancy that we have once again encountered what we encountered last Wednesday: two reasonable people can disagree about something without either of them being unreasonable. Issues of policy and principle arise in this group of amendments which might well benefit from being reconsidered on Report, but in the meantime I am very happy to beg leave to withdraw the amendment.

Amendment 265 withdrawn.