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Column Number: 03
First Standing Committee
on Delegated Legislation
Monday 13 September 2004
[Mr. Roger Gale in the Chair]
Draft Student Fees (Approved Plans)
(England) Regulations 2004
4.30 pm
The Chairman: Order. Good afternoon and welcome back to the joys of the Committee Room. Summer seems to have returned. If hon. Gentlemen wish to remove their jackets, they may do so.
The Minister for Lifelong Learning, Further and Higher Education (Dr. Kim Howells): I beg to move,
That the Committee has considered the draft Student Fees (Approved Plans) (England) Regulations 2004.
As ever, it is a great pleasure to serve in Committee under your chairmanship, Mr. Gale. I have served on many such Committees as a representative of many Departments. Many of the regulations will already be familiar to members of the Committee; indeed, they will be much more familiar to hon. Members than they are to me.
A first illustrative draft of the regulations was made available in February. It informed the discussions about the director of fair access as the Higher Education Bill was debated in the House. The Government laid draft regulations in July and revised regulations earlier this month to reflect the comments that were made by members of the Joint Committee on Statutory Instruments. I wish to place on record my thanks to that Committee for its careful scrutiny of the draft regulations.
During the Bill's passage through the House, good debates took place about the role of the director, and I am grateful to have had the opportunity to read some of the thoughtful contributions made by many hon. Members. The role of the director is now clearly established in the Higher Education Act 2004, with the principle that no institution can charge higher variable fees unless the director has first approved its access plan. Following the passing of the Act by Parliament, we laid revised draft regulations that are now before the House.
The regulations set out the content of access plans, the procedure for approval and variation and how the director may enforce the plans. They also outline a review procedure that can be followed if an institution disagrees with a provisional decision made by the director. The affirmative procedure applies to regulations on the content of access plans, on the procedure for approval and on the financial penalty for enforcement. However, we have gone beyond that requirement and laid the regulations as a single set, so that the House can debate them together, and I am delighted that we have the opportunity to do so now.
I turn first to the contents of the plans set out under regulations 3 and 4. They mainly reflect the wording of the examples cited in the Act. The purpose of access plans is to ensure that fair access is safeguarded, so it is
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only right that they include the measures that the institution plans to take to attract more applications from under-represented groups, the bursaries or other financial assistance that the institution will offer to students and its arrangements for giving financial information to students and prospective students. Access plans will result in more important activities to make sure that the introduction of higher variable fees does not have a detrimental effect on those from disadvantaged backgrounds.
A new addition to the regulations will not be so familiar to members of the Committee: an institution must also undertake to inform prospective students of the aggregate amount of fees that it will charge to complete the course before they commit themselves to it. That will give prospective students added security, ensuring that they know beyond any doubt what they are signing up for financially. Access plans must also set out the institution's own objectives or milestones, and how it will monitor progress towards those objectives in compliance with its plan and undertake to provide the director with information that he reasonably requires.
As we said from the outset, access plans are about encouraging applications. We have not been overly prescriptive about the detailed content of the plans, but I hope that members of the Committee agree that it is essential to set a framework to ensure that that important work is carried out. Dialogue between the director and an institution is a key feature of the approval process under regulation 5. The regulations ensure that, when a plan has been approved, the institution must publish it as set out in regulation 6. It is right that those plans are public documents to be read by anyone with a legitimate interest, particularly, of course, students and prospective students. Regulation 7 provides that plans may be in force for up to five years. That is a sensible period, as permission to charge higher variable fees should not be given in perpetuity, but we want to provide stability and an opportunity for progress over a significant but limited time.
Regulation 8 allows institutions to vary their plans, once published, by the same process as that for approval, although the level of scrutiny will clearly differ from case to case.
Regulations 9 to 14 cover the enforcement of plans; I can assure hon. Members that the procedure is not quite as complicated as it may first appear. I expect institutions to uphold their access plans positively, and I expect sanctions to be rare, if used at all. My right hon. and hon. Friends argued during the passage of the Bill that it was essential to give the director the power to enforce plans, and these regulations put more flesh on the bones of that principle. As with the approval of plans, dialogue is a vital feature of that process. Institutions will have the opportunity to make representations to the director at various stages, and the regulations place limits on the sanctions that the director can impose.
If the director believes that an institution has breached its access plan, he must tell the institution and give it an opportunity to make representations. The director must then make a decision about whether
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the institution has breached its plan and, if he is satisfied that it has, he may tell the institution that he is minded to impose one or both of the following sanctions: he may direct the Higher Education Funding Council or the Teacher Training Agency to impose financial requirements, or he may refuse to approve a new plan when the current plan expires. If sanctions are to be imposed, the institution has another opportunity to make representations about their specific financial consequences. Having considered those representations, the director must then make a decision, although that will be provisional and dependent on any review.
Regulation 10 covers the financial requirements: the reduction of grant, which includes grant that has been awarded but not yet paid or grant that has not yet been awarded. The focus is on making things right for the students or prospective students. For example, if the institution has charged too much in fees within the £3,000 cap, it can be fined 110 per cent. of the amount it has overcharged. If it refunds all or substantially all of the students it has overcharged, the amount withheld is restored to the institution, as set out in regulation 12.
Regulation 13 sets out a similar principle, which applies when the institution has breached the general provisions of a plan, such as outreach or bursaries. The director can also direct HEFCE or the TTA to reduce an institution's grant by up to £500,000 at his discretion. That is not repayable, and one might say that it is a slap on the wrist. It will not break any bones, but it is a clear signal of the director's disapproval. Regulation 14 gives the director the option to provide—according to the circumstances—that that particular sanction will take effect only when he is satisfied that the institution has not made good its breach. Those sanctions are sensible, and the focus is clearly on protecting the interests of students and prospective students.
Section 39 of the Act provides for a review of the director's decisions. Institutions can seek a review of the director's decision about whether to approve a plan or the variation of a plan or of any enforcement decision. The director's decision will be provisional in the first instance, becoming final if the institution accepts it, as set out in regulations 15 and 17. If an institution asks for a review after the review body has made its recommendation, the director must reconsider his provisional decision in light of the review, as set out in regulation 18. An institution can seek a review if it considers that there is new evidence or evidence that the director disregarded and should not have, or if it believes that the director's decision was disproportionate, as regulation 19 explains. The review process is designed to ensure that in such circumstances the decision is looked at again with the benefit of input from a review body that is able to bring fresh eyes to the situation. It would not add value to the process to set up a review that merely offers a second judgment that overrides the director's judgment with its own. The director must reconsider his provisional decision in light of the review, as set out in regulation 18.
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The regulations leave open the question whether a panel or an individual undertakes the review. We will be consulting key partners on that and on other details later this month. The regulations specify that an appointment of the review body must be made in accordance with the seven principles set out in the guidance from the Office of the Commissioner for Public Appointments. They are ministerial responsibility, merit, independent scrutiny, equal opportunities, probity, openness and transparency, and proportionality. We believe that those Nolan principles are necessary for such an important role. My friend the Baroness Ashton of Upholland gave an undertaking on that in another place.
The regulations give effect to what we have always said access agreements will achieve: more outreach and better financial support for students. They will be enforced sensibly and effectively. I hope that hon. Members agree that these are the right principles and that they will support them. I urge the Committee to accept the regulations.
4.42 pm
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