The power and the possible sorry story

Alan Thomson explains the powers given to the education secretary under the Teaching and Higher Education Bill as it stands and gives examples of what this could mean

AN unamended Teaching and Higher Education Bill would undermine existing statutory protections for universities, leaving them vulnerable to widespread government interference.

Part 1 of the bill concerns the teaching profession.

It establishes a General Teaching Council for England and Wales.

State school teachers can be required to register with the GTC subject to them meeting certain criteria and possibly paying a fee.

New teachers must pass an induction period before starting a job, and it requires professional qualifications for new headteachers.

The GTC has a role in advising the secretary of state on a range of matters related to teaching.

Part 1 also allows for the inspection of higher education teacher training institutions by the Office for Standards in Education.

Peers debating amendments to the bill, all but one of which were withdrawn or not moved, argued that the GTC would be what Tory peer Baroness Blatch described as a: "rather toothless poodle of the secretary of state". They fear that the GTC will have a purely consultative role when, as Lord Glenamara said: "That power should be in the hands of the teachers themselves." Many peers want to see more detail, describing the powers and functions of the GTC, on the face of the bill. As the bill stands much of this detail will be set out in regulations "made by the secretary of state".

Part 2 of the bill concerns the new student loans system and tuition fees.

Clause 16:

Sets up the new loans system for students attending higher or further education courses and abolishes state maintenance grants.

It gives the education secretary power to make a series of regulations, not included in the bill, which would determine who is eligible, how much they receive, which types of attendance qualify, how loans will be repaid, what interest rate will be charged on repayments and under what circumstances loans can be cancelled.

It allows him to make regulations on the collection of debts which would include powers to order employers or government departments to collect money owed and pass it to his department.

It pegs increases in the total amount of grants available to cover fees to any index of prices chosen by the secretary of state. The only way real-term increases in grants can be made is by affirmative procedure in both Houses of Parliament.

Peers focused their attacks on the "skeletal" nature of the bill. They were worried that it conferred too much power on the secretary of state to specify regulations. Earl Russell said he was worried about what could, hypothetically, be done under the powers. Peers want more detail on the precise nature and scope of the intended legislation.

The government intends to publish the regulations in July. Baroness Blackstone acknowledged that the powers in clause 16 are drafted in fairly general terms to allow flexibility to respond to changing circumstances. She accepted that a future secretary of state could reduce the amount of loan provided for students. Baroness Blackstone said that the government intended to amend the bill to limit the rates of interest charged on loans.

What this could mean:

Janet Doe begins repaying her Pounds 15,000 student loan in 2002 with a zero real rate of interest. Seven years later, with a new government in power, the interest rate is increased to 7 per cent. Either the length of time she takes to repay the debt or the size of the repayments increase accordingly. If the then mother-of-two Janet defaults, and fails to satisfy the authorities that she has good enough reason to, the bill as it stands would allow "collection by other means" meaning the bailiffs could be called in.

Clause 17

Repeals "relative enactments" contained in the Education Act 1962, section three of the Education Act 1973 or Education (student Loans) Act 1990. This is designed to allow transitional arrangements between the new and existing legislation which enabled local authorities to provide grants for tuition and set up of the existing student loans system.

Clause 18

Contains broad powers limiting and otherwise controlling tuition fees.

The secretary of state has powers to compel the further and higher education funding councils for England and Wales to impose conditions on college and university governing bodies as a condition of receiving grant.

The condition for further education is that no fees are charged.

The condition for higher education is that fees are charged "equal to the prescribed amount".

The prescribed amount is that prescribed by the secretary of state "from time to time".

The secretary of state has powers to compel the funding council to force specified financial requirements on governing bodies which may include repayment, with or without interest, of whole or part of any money they have received in respect of grant, loan or other payment.

It includes fees payable to any college, hall or other institution connected with the institution.

It allows for the overriding of any parts of the Further and Higher Education Act 1992 as required for the introduction of clause 18.

Many peers see clause 18 as potentially the most insidious in the bill. This is because, on the face of it and in the absence of any clarifying clauses, it gives the secretary of state wide powers to intervene in university finances. Earl Russell, who moved and later withdrew an amendment to have the entire clause removed, fears that giving so much power to the government to control costs will result in dominance by the Treasury. He said: "It means the absolute power of the Treasury. If we get to that situation, I believe that the relationship between universities and the state, however slow and painful in its death, will receive a blow from which it will not recover."

Liberal Democrat spokesman Lord Tope said that if student tuition fees were introduced, and his party opposes them, then the state should pay students a grant of equivalent value. He said: "One of the effects of this will be that through that method the universities will receive a little more money If all else fails I we will be seeking to ensure that all revenue from fees is hypothecated back to the higher education sector and not to the tertiary sector as a whole."

What this could mean:

The University of Uttoxeter is being overwhelmed by applicants for its new golf studies degree. The problem is that 75 per cent of those applying are from rich families and the university wants a student mix reflecting society. It decides therefore to increase annual tuition fees to Pounds 4,000. These will be used to cross-subsidise places on the course to people from poorer backgrounds. The bill allows the minister to intervene to stop Uttoxeter from doing this. The funding council could impose a financial penalty, including withholding all or part of the institution's entire recurrent grant.

or perhaps this...

Plumton University wants to recruit more students to its beef farming and human nutrition BSc. Senior managers halve annual tuition fees from Pounds 1,000 to Pounds 500, undercutting the competition. The present wording of the bill would prevent this as universities must charge fees equal to the "prescribed amount". Despite this the government has said that universities can charge less.

or perhaps this

In 2003 the new government decides that the new degree in trade unionism and working-class militancy being run at Slapton University is at odds with their new vision for Britain. Fortunately for the new administration, clause 18 of the act allows the secretary of state to prescribe the courses which receive funding.

or perhaps this

Pat Blank starts university in 2001 paying Pounds 1,000 a year towards her tuition. A new government takes office in 2002 and finds that because nothing specific is written into the act it can increase tuition fees with affirmation of both Houses of Parliament. A large majority in both houses ensures this is accomplished and Pat is faced with higher tuition costs for the remainder of her course.

Clause 20 defines fees as "tuition, enrolment or other fees payable in respect of, or in connection with, attendance on a course".

What this could mean:

Drumclog University needs to boost its income in the face of a rising deficit. It decides to increase parking charges for students, hall fees, library charges, photocopying fees and fees for field trips. All are relatively small amounts on their own but cumulatively they amount to a considerable extra charge on students. As it stands clause 20 covers all these fees and would allow the secretary of state to demand repayment of these fees as they exceed the prescribed amount.

or perhaps this

Drumclog University is anxious to increase its income by levying other charges. It is wary of the catch-all nature of clause 20 and refers to the funding council for guidance. The council consults and eventually approves certain charges. Word spreads and soon similar claims from every institution in the land have landed on the desks of funding council officials. The bureaucracy increases with every additional claim.