Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

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

[Baroness Garden of Frognal]

Having been a staunch supporter of the amendment from the noble Baroness, Lady Royall, and indeed of trying to engage young people in the importance of voting in elections—I think this is a valuable step in enabling them to get involved at university level—I am grateful for the amendment that has come in from the Government. As we are trying to involve young people in voting, would it not be wonderful if we could now think of lowering the voting age to 16 to enable more of them to do so?

[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 ---

[Baroness Garden of Frognal]

My Lords, from these Benches we strongly support the amendment of the noble Lord, Lord Hannay, and endorse everything that the noble Lord, Lord Cormack, just said. The noble Lord, Lord Willetts, reminded us of the heady days of coalition when I was his opposite number in this House. I remember the debates that went on between the Secretary of State for BIS and the Home Secretary on this topic: the noble Lord could never get any movement on seeing the illogicality.

What baffles many of us is that the Government reiterate that there is no cap on genuine international students, but then they say, “But we will count them as migrants and we are determined to reduce the number of migrants”. It is incomprehensible that the Government cannot see how very unwelcoming it is to put those things together in sequence. We find it completely baffling that we are not getting any movement on this. We recognise that this issue is probably outside the departmental brief of the Minister, but I echo what has been said already: we hope that very soon there will be movement on this. Of course, the noble Lord, Lord Bilimoria, always speaks with great passion and eloquence on this topic, backed with evidence and facts.

This is probably the last time that I shall speak on the Bill, so I reiterate the very sincere thanks to the Minister, the noble Viscount, Lord Younger, and Minister Jo Johnson, to the Bill team and to other colleagues who have been so helpful to us on what has turned out to be a very long and drawn-out discussion on the Bill. The amendments that have come through today have already improved it again. As I said before, it would obviously have been lovely if all our amendments had been accepted, but we recognise that we have actually done a very good job in making this Bill a whole lot better than it was before.

I echo the thanks to the noble Lord, Lord Stevenson, who led a collaboration of the engaged on these issues, made up of Members from these Benches, his Benches, the Cross Benches and occasionally some noble Lords on the Conservative Benches, to try to ensure that we could get the very best possible out of this Bill. I also thank my noble friend Lord Storey, who has been a tower of strength throughout. We have made this Bill much better than when it reached us and I am grateful to the Minister for helping that to happen.

[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.