Further and Higher Education (Scotland) Bill: Stage 2
We move to agenda item 3, which is our stage 2 consideration of the Further and Higher Education (Scotland) Bill. Before we start, I have three housekeeping points to mention. The first is that we will cover up to and including section 8 of the bill this afternoon. I hope to complete our stage 2 consideration next Tuesday and anticipate no problems in that respect. The second point concerns the civil servants who are with us today. As this is a stage 2 debate, only the minister and MSPs can speak—to all intents and purposes, it is like a plenary debate in the chamber. The third point concerns the use of my casting vote. In a stage 2 debate, there is no obligation on me as to the way in which I have to use my casting vote. I will therefore base it on the strength of the arguments that I hear one way or the other.
That is quite novel, convener.
Before we move to the debate, I ask whether any member has an interest to declare.
My husband is a lecturer at Glasgow Caledonian University and also works on the Scottish wider access programme.
As I said earlier, convener, I have two interests to declare in connection with Robert Gordon University, both of which involve the giving of advice and are unpaid. I am also on the convocation of Heriot-Watt University.
I should declare that I am chairman of the Scottish Universities Association for Lifelong Learning—funnily enough, it is called SUALL.
As there are no further interests to declare, we will begin our consideration of the bill. There are no amendments to section 1.
Section 1 agreed to.
Schedule 1 agreed to.
Sections 2 to 4 agreed to.
Section 5—Fundable further and higher education
Amendment 7, in the name of the minister, is grouped with amendments 9 to 13, 16, 18 and 19.
I remember the day when I could have counted on the convener's support. I suppose that the strong merits of the arguments that I present will have to suffice.
During stage 1 there was discussion about the use of the term "learning difficulty" in the bill. When we introduced the bill we believed that the term reflected the comments of respondents to the consultation that preceded the bill, such as Skill Scotland, which obviously had an interest in the matter. The term "learning difficulty" was intended to reflect long-term and short-term difficulties and the duty on the new council and fundable bodies to consider the education and related needs of all students and potential students. However, members will recall that during stage 1 we heard comments on the matter, and the committee's stage 1 report recommended that the Executive give further consideration to the terminology used in the bill.
We considered and discounted the term "additional support needs", which was suggested by the committee. Members will be aware that the term is used elsewhere in legislation and I understand that it is not good drafting practice to use the same term in different pieces of legislation unless the meanings are identical.
The amendments therefore alter the focus of the bill by including a definition of "support needs", which will encompass difficulties in learning as well as difficulties in participating in learning, which I think was the crux of the committee's argument. They clarify that the needs referred to in sections 7 and 20 specifically include support needs, so that the new council and fundable bodies are required to have regard to support needs. That approach removes the need for section 12, which defines "learning difficulty". The duties in sections 7 and 20 will extend to all students and potential students. The amendments have been discussed with and are supported by Skill Scotland, and they address the recommendations that the committee made to us.
I move amendment 7.
I welcome the amendments. At stage 1 I raised concerns about the presentation of the bill. I acknowledge that, as the minister suggested, the term "additional support needs" has specific reference to the Education (Additional Support for Learning) (Scotland) Act 2004. However, I hope that the minister will agree that the term "additional support needs" will need to be explored in the context of further and higher education policy in future. In the meantime, the amendments represent a step in the right direction.
Do you want to wind up, minister?
I am happy to do so. The requirements that are imposed on us in relation to school children are obviously different from those that relate to students in tertiary education. That is reflected in the revised terminology that the amendments propose, but the general points of principle are not at odds.
Amendment 7 agreed to.
Amendment 8, in the name of the minister, is in a group on its own.
Members will be aware of our partnership agreement commitment to increase college opportunities for school-age pupils. The purpose of amendment 8 is to avoid potential confusion about what the council will be able to fund. Given the need for a student-centred approach to learning, the Scottish Further Education Council funds college courses for school-age pupils that comprise not a full unit but parts of different units, although a full unit is necessary for a formal award. Such courses can prepare people for participation in a further programme of learning, although they are not necessarily designed predominantly for that purpose. The study of parts of units has legitimate educational value for pupils who cannot cope with studying a full unit and can offer a better way of engaging pupils who might otherwise be disengaged from the learning process. Such activity is currently funded and we have no intention of removing that funding.
However, there is potential for doubt about whether the studying of partial units is covered by the definition of "fundable further education" in the bill. Given the importance that both we and the committee ascribe to school-college partnerships in increasing pupils' curriculum choices, it is essential that we do not inadvertently limit the council's ability to fund such provision.
Amendment 8 is technical. It would remove the phrase
"is designed predominantly to prepare"
from the bill and replace it with the simple term "prepares". That should cover the study of partial units as well as complete units.
I move amendment 8.
No member has indicated that they wish to speak.
I had my hand up—you will have to get wider-angle lenses, convener.
I am pleased that the minister agrees that further education colleges have a role to play in providing suitable training for certain school pupils. I would like him to answer one or two questions. First, will the provision lead to an expansion in such courses? If so, will that expansion be funded by education authorities through contracts with local colleges, or will colleges have to fund it? Secondly, I am pleased that children will be able to build up units as they develop, as that will give them much greater opportunities. Presumably, the facility will not be limited to academic courses, but will extend to practical courses that may lead to modern apprenticeships and to attending college and so on. It would be helpful if the minister could answer those questions.
The minister should answer them when he winds up. This is a debate, rather than a question-and-answer session.
As I said in my preamble, the funding council and—by virtue of the funding council—colleges will fund the process, which may better the employment and academic prospects of the students who take part.
Amendment 8 agreed to.
Amendments 9 and 10 moved—[Allan Wilson]—and agreed to.
Section 5, as amended, agreed to.
Section 6 agreed to.
Schedule 2 agreed to.
It is funny going through the marshalled list—members are not allowed to disagree, by the way.
Section 7—Fundable bodies: further provision
Amendment 6, in the name of Michael Matheson, is in a group on its own. The amendment will be moved by Fiona Hyslop.
I apologise on behalf of Michael Matheson, who is on parliamentary business in Africa, along with Mike Pringle.
Amendment 6 reflects one of the recommendations in the Enterprise and Culture Committee's stage 1 report on the bill. The committee recommended
"that the Scottish Executive brings forward such amendments as are necessary to ensure parity of treatment in relation to academic freedom between higher education and further education institutions and the individuals employed therein."
Amendment 6 provides the opportunity for academic freedom to be extended to post-1992 universities and further education colleges, so it is very much in keeping with the committee's recommendation. The wording of the amendment reflects exactly that of section 202(2) of the Education Reform Act 1988, which enshrines academic freedom for the pre-1992 institutions.
At stage 1, the Minister for Enterprise and Lifelong Learning stated:
"I share the belief that academics in both sectors should be free to challenge received wisdom and to express controversial or unpopular opinions, and I welcome the opportunity to state in the strongest terms that that freedom of expression should exist in all institutions."—[Official Report, Enterprise and Culture Committee, 20 January 2005; c 13681.]
I do not think that we heard anything contrary to that from any witness.
However, I acknowledge that the points that were made by people who disagreed that such a provision should be in the bill were about whether the bill was the appropriate place for the provision and whether contracts of employment would be sufficient to cover the point. It was also indicated that the Scottish public services ombudsman could adjudicate in such cases but we heard from witnesses that the ombudsman's role would not extend to employment matters, so that argument falls.
The issue is therefore whether the bill is the appropriate place for the provision. I think that it is, in that we are acknowledging those principles that we believe are important when we decide whether bodies are fundable and when we decide some of the criteria that underpin that. I do not think that there is any less important a criterion than the principle of academic freedom. Bearing in mind the fact that parity of esteem between further and higher education is part of the background to the bill, including the provision would send out a strong signal from the Parliament and the Executive that they are united in support for the recommendation in the committee's stage 1 report and for the extension of academic freedom.
I move amendment 6.
Before I call the minister, does any other member want to speak to the amendment?
I support amendment 6 now that I have heard Fiona Hyslop's explanation as to the appropriateness of where the provision is placed. My party and I had some questions about that. I was not aware of the ombudsman's role, but it has been clearly stated by Ms Hyslop, and I offer my support for the amendment.
To echo that, we can only debate the appropriateness of where to place the provision because there has been unity in the committee about what should be achieved. I am interested to hear whether the minister thinks that the provision should be placed in the bill. The issue of academic freedom has been brought up by the Association of University Teachers and others during evidence sessions.
I also support the amendment. It is important that the provision is included in the bill and I am interested to hear the minister's response to what has been said so far.
As a member of the committee, and not as its convener, I obviously support what Fiona Hyslop has said. If the provision is not to be in the bill and if guidelines are to be issued, I hope that they will have statutory backing and not just be ministerial guidelines. That is the key point that we are trying to make.
As no other member wants to speak, I ask the minister to respond.
I hope that what I have to say will satisfy the committee's objectives as well as my own. The one point of dispute that I have with the mover of the amendment and its external supporters is that it is a simple amendment. My investigations have shown that it is anything but.
However, to address the crux of the matter, I point out that there is already provision in the bill in section 7(2)(a), which refers to
"the governance and management of the body"
concerned. Scottish ministers' powers are thereafter better defined in section 7(5), which states:
"The Scottish Ministers may issue guidance in relation to any of the matters referred to in paragraphs (a) to (i) of subsection (2)."
In order to expedite the committee's consideration of the amendment, I intend, subject to the committee's approval, to issue guidance to the funding council for reference to all fundable bodies, including those in whichever sector of the higher and further education field, that they should have regard to the wording in amendment 6. That would obviate both the necessity of amending the bill in this way and the need to consult more generally and widely within the sector in advance of inserting such a provision in the bill.
Given the nature of the issues involved, and as the Deputy First Minister said in response to the stage 1 debate, we intend to enter into discussions with all parties in the sector to examine better the case—or otherwise—for explicit guidance in this matter. Where there is agreement across the sector that such guidance is necessary, it is our intention to provide it, and there is provision within the bill for us to do so. I hope that those assurances and my commitment to issue guidance to the funding council as necessary, following consultation, obviate the necessity to amend the bill.
I am interested in the minister's response and pleased to hear his commitment to consider guidance. My only concern relates to the argument about the degree of complexity in amendment 6, which, unfortunately, the minister did not explain. I assume that the argument is probably to do with the need to consult on such a provision, which means that it would be difficult to put it in the bill at this stage. However, I will press amendment 6, on the basis that we can reflect at stage 3 whether consultation is required. I hope that the minister appreciates my concern. If it can be argued that it may not be necessary to consult widely about the change, we should not miss the opportunity to take the step now. I am assured that if the amendment is not successful, the guidance would underpin some of what it attempts to achieve, but I would prefer to have the provision in the bill, if at all possible. I will press amendment 6 to a vote.
The question is, that amendment 6 be agreed to. Are we agreed?
No.
There will be a division.
For
Ballance, Chris (South of Scotland) (Green)
Davidson, Mr David (North East Scotland) (Con)
Hyslop, Fiona (Lothians) (SNP)
Neil, Alex (Central Scotland) (SNP)
Against
Baker, Mr Richard (North East Scotland) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Lyon, George (Argyll and Bute) (LD)
May, Christine (Central Fife) (Lab)
Abstentions
Watson, Mike (Glasgow Cathcart) (Lab)
The result of the division is: For 4, Against 4, Abstentions 1. As I said earlier, I will use my casting vote to vote for what I consider to be the right way forward, so my casting vote is for amendment 6.
Amendment 6 agreed to.
Amendments 11 and 12 moved—[Allan Wilson]—and agreed to.
Section 7, as amended, agreed to.
After section 7
Amendment 13 moved—[Allan Wilson]—and agreed to.
Section 8—Funding of the Council
Amendment 1, in the name of Fiona Hyslop, is grouped with amendments 2, 3, 14, 14A, 4, 5 and 29.
The issue that is raised by amendment 1 was the subject of a great deal of discussion during stage 1 in the committee and during the stage 1 debate in Parliament; it is one main focus of what is otherwise an uncontroversial bill. We must address the issues that are raised by the imposition of a system of variable fees in section 8, which of course was not in the draft bill and was introduced latterly.
My primary argument is that variable top-up fees are wrong in principle in a system of education in which we believe that access should be based on ability to learn, not on ability to pay. That is a fundamental principle, but practical issues also need to be addressed. For example, we must decide whether the bill is the appropriate place in which to introduce such a provision, even if we want it to be imposed. We must also question the Executive's policy thinking that lies behind the measure.
During the stage 1 debate, the minister argued that the prime reason to introduce variable fees was to address issues of cross-border flows, pending the imposition of top-up fees in England. Interestingly, we saw last week that applications from English students have increased by 18 per cent. However, when presented with that fact, Universities Scotland indicated that that would probably equate to an extra 200 to 300 students only. The question is whether we need to provide this legal mechanism, which could be extended. We know from the legal advice that we received in answers from Executive officials that it is the legislation, once passed, that matters, not the intent behind that legislation, and section 8 would introduce the opportunity for variable fees across the board.
If we are dealing with only 200 to 300 students, if it is medical students who are particularly problematic and if we recognise that one of the Calman report's recommendations was the introduction of 100 extra medical places to address a health issue, why are we introducing this fairly major student finance measure into the bill? We must question whether that approach is appropriate and whether the measure would be deliverable in practice.
In addressing the minister's argument that the measure was intended to tackle cross-border flows, I refer the committee to the statement made by Jim Wallace on 24 June 2004. He said that the top-up fees that he intends to charge English students will be used to pay for the costs of larger loans to cover fees charged to Scottish students by English universities.
However, the argument is not that the measure is about prevention and deterrence of cross-border flows but that it is more of a revenue-raising provision. On the same day, Mr Wallace said:
"Murdo Fraser makes the point that if an English student was sitting next to a Scottish student in the University of Edinburgh, one of them would be paying a fee and one would not be. That is the position at present and, given that there has been a 12 per cent increase in applications from English students this year"—
by which he obviously meant 2004—
"it does not seem to have put them off."—[Official Report, 24 June 2004; c 9492.]
I contend that the minister made it quite clear in his statement last June that the purpose of the measure was not necessarily to deter cross-border flow among students, but was to do with revenue. That being the case, the policy memorandum and financial memorandum accompanying the bill should have addressed that issue.
The general issue is whether, in a country that has population problems, we should be sending out the message that we want to put up barriers at the border to deter students, and I do not think that we should. We should recognise that we are introducing into law a broad-brush provision. I recognise the contributions made during the stage 1 debate by members of all parties who said that, even if we agreed with concerns about addressing the situation of medical students, the sheer breadth of the scope of the measure is inappropriate. I think that the best thing to do is to ask the minister to support the deletion of parts of section 8. I argue that as a point of principle, but I recognise that there is support from other members who think that there are issues of a practical nature involved.
If the working party, which has not reported yet, were to recognise at some point in the future that there was a problem, another piece of legislation specifically about student finance—or, preferably, about health recruitment and retention—would be a more appropriate place for the provisions in section 8. It is unfortunate that an otherwise supportable bill has been hijacked by those provisions, which damage the unity that we want to present to the sector that the rest of the bill aims to support. I ask the minister to reconsider, and I ask colleagues to support the arguments made not only by me but by students that this is not the appropriate bill for such a measure.
I move amendment 1.
Before I call the minister, I point out that, if amendment 5 is agreed to, amendment 29 would be pre-empted. I ask the minister to speak to amendment 14 and the other amendments in the group.
Section 8 sets out the conditions relating to the funding of the council. The National Union of Students and others have recently expressed concern about the section, as they believe that it allows for the introduction of variable top-up fees. We have stated repeatedly—and I do so again on the record today—that there will be no top-up fees in Scotland for Scotland-domiciled students. Unlike the English arrangements, our proposals do not envisage institutions setting their own fees or retaining the income generated over and above the current level of tuition fees.
Top-up fees are being introduced in England and it is vital that we in Scotland are able to act to counter any threat that could prevent Scotland-domiciled students from getting places at Scottish universities. All the key stakeholders, including the National Union of Students, accept that that is the position, although there are different views about how countering it is best achieved.
Having considered how best to respond to what everybody agrees is a genuine threat, we created the implementation advisory group, which has been considering the principle and the practicalities underpinning our intention to review the level of tuition fees from 2006-07. The committee has now seen a progress report on the work of that group, and I understand that members have had the opportunity to read the notes of its meetings.
The problem appears to be particularly acute in medicine. The Calman report found that non-Scotland-domiciled graduates tend to work outside Scotland, which results in problems in recruiting for the national health service here, and the Minister for Health and Community Care and the Deputy Minister for Health and Community Care are considering how best to address that.
There remains the real threat that top-up fees in England will make studying in Scotland more attractive for students in other parts of the UK. It is necessary for us to address that threat. The bill does not itself set any fee levels, but it provides ministers with powers to set a general fee level and, where necessary, a separate, higher fee for a specific subject.
Much of the focus of the debate, including today's discussion, has been on the new power to differentiate fees for different subjects, but very little attention—and none this afternoon—has been given to the fact that the powers under the bill make the process of setting fees much more rigorous and transparent than has hitherto been the case. Under the bill, fee levels must be set by secondary legislation. Critically, that allows for scrutiny by the Parliament before the fee is set—it is a question that Parliament and the parliamentary process will determine.
We have listened to the concerns that were expressed during the committee's evidence gathering and in its stage 1 report. Taken together, the Executive amendments will ensure that there is full consultation before any change and that both the orders—the one for a specific programme or course and the one setting the fee level—are subject to the affirmative procedure. That is an important change in the process, and it will ensure that the appropriate parliamentary scrutiny of any prospective change is undertaken.
We are due to consider the bill up to section 8 today. Amendment 14 covers the point about consultation and amendment 29, which the committee will not vote on today but to which I must still speak, makes both of the orders subject to the affirmative procedure. Amendment 14 will include the new Scottish further and higher education funding council as a statutory consultee. In any consultation that takes place before the establishment of the new council, we will consult the existing councils.
Here is an interesting point for the committee to consider, although I am sure that it was not envisaged by the member who moved amendment 1. Amendments 1 to 5 would in fact remove any scrutiny from the setting of fee levels. They would certainly remove the ability of ministers to set different fee levels for specific courses. As I said earlier, that would potentially leave us unable to respond should top-up fees in the rest of the UK make certain courses in Scottish universities more attractive, leading to Scotland-domiciled students being unable to get places on courses at Scottish universities—that would be too bad.
I suspect that it was not envisaged that amendments 1 to 5 would remove the controls that we have proposed for ministers when setting general fee levels. However, if the amendments were agreed to, ministers would be free, under section 8(2), to set such terms and conditions as they considered appropriate, without any form of parliamentary scrutiny: we would have untrammelled power so to do without any consultation.
Amendment 14A specifies NUS Scotland as the student body that should be consulted prior to making an order under section 8(6) or section 8(7). When we drafted amendment 14, we carefully considered whether we should include an explicit reference to the NUS in Scotland, but we decided against that as we felt that it would restrict flexibility now and in the future, specifically with regard to any prospective name or constitutional change that might or might not take place in the NUS here in Scotland and whether any legal liability would be imposed on its successors. As members will be aware, NUS-affiliated bodies do not include all student unions within fundable bodies and the proposed mandatory reference to NUS Scotland might not be appropriate for unaffiliated bodies. Although such instances would be rare, they could occur.
Having said that, I am sympathetic to the aims and objective of amendment 14A, which as I understand it is to include a statutory reference to the NUS in the process and not necessarily to exclude anybody else we might want to consult in addition to the NUS. If Richard Baker considers it acceptable, I suggest that we lodge an amendment at stage 3 that makes specific reference to the NUS Scotland and/or their legal successors as a statutory consultee in this context. We would ensure that the terminology that is used reflects any prospect of constitutional or name change that might or might not feature on NUS Scotland's agenda—I do not know about that.
Notwithstanding the differences of opinion between us on the relative size of the threat or otherwise of Scotland-domiciled students being displaced from Scottish courses of their choosing by virtue of our inability to set differential fees, I ask Fiona Hyslop to withdraw amendment 1 and to not move amendments 2, 3, 4 and 5, not least because they would remove any parliamentary scrutiny of the process of setting general fee levels. The effect of agreeing to the amendments would be to undo all the good work that the committee has done in ensuring that levels are not set unilaterally by ministers and that, prior to any change being effected, the processes are subject to the affirmative procedure and so to parliamentary scrutiny and approval by this and future Parliaments.
I ask Richard Baker to speak to amendment 14A and other amendments in the group.
I will speak to amendment 14A first, but I will also speak to the other amendments, as I also have views on them.
As the minister said, the intention of amendment 14A is not to preclude consulting any other student body as part of the process. I very much welcome there being more consultation before fees are varied, as has been indicated could happen for medicine. The aim of the amendment is to ensure that NUS Scotland is consulted, which I feel needs to be specified, and I welcome the minister saying that the Executive will come back at stage 3 with a statutory requirement. I feel that way because, although NUS Scotland does not represent every institution, it is the only national representative organisation with a clear democratic policy-making process, which includes its membership in 57 affiliated colleges and universities. That membership covers 85 per cent of higher education students and 94 per cent of further education students, which indicates how important it is that NUS Scotland should be consulted. Unfortunately, despite that, in its 30-year history, Governments have at times chosen not to consult it, so it is important that there is a statutory obligation.
Based on the assurances that I have received from the minister that we will return to the issue at stage 3, I will not move amendment 14A. Of course, it was not my intention to bind the Executive to consult an organisation that does not exist or that changes its name or structure. I look forward to seeing the Executive amendment at stage 3.
I would like to speak to the other amendments in the group. Is this the right time to do so, convener?
Are you talking about Fiona Hyslop's amendments?
Yes.
At the moment, you have the opportunity to speak only to your amendment. I will bring you in first when I open up the debate on the group. At the right stage in proceedings, I will also ask you whether you wish to press amendment 14A.
Thank you.
As the minister mentioned in his speech, because some of the amendments in the group relate to sections beyond section 8, we will vote on them at our meeting next week. I am sure that everything is absolutely clear to everybody.
I open the debate on all the amendments in the group. I call Richard Baker.
Back to me; splendid.
I speak in opposition to Fiona Hyslop's amendments 1 to 5. I have stated my position in previous debates. When we talk about Universities Scotland's comments on recent increases in admissions from applicants south of the border, it is important to say that Universities Scotland is not opposed to inclusion of the mechanism in the bill. It is possible that the mechanism will serve an important purpose. It is also important to say that the new level of consultation that I propose in amendment 14A could add important safeguards. It would add an important level of dialogue with stakeholders about the level of fees that should be set before any decision is made.
The committee needs to recognise that the Executive amendments in the group are an important development. Certainly, they signify progress and allay some of my fears about the way in which fees will be set. I am much more comfortable with things as they stand now that the Executive amendments in the group, which I intend to support, have been lodged.
It is also important to reiterate what the minister said about fees. What we are talking about is neither a top-fee up by any understanding of the term nor discriminatory. Not only will Scotland-domiciled students not pay any more, but—and this is particularly important given the new level of consultation on what the fees should be—England-domiciled students should not be discriminated against, as they will not pay any greater level of fees to study in Scotland than they would at an English institution. That parity is important.
Although we have asked the Executive to consider other options, the option on the table is important and should remain in legislation. I am not persuaded that some of the other mechanisms that have been proposed are better than the one that is in the bill. The mechanism is a valuable addition to the legislation and should remain in the bill. If it does not remain in the bill, there would be a real threat to the important balance that has been created in the system. The mechanism is not discriminatory; it is a practical way in which to deal with the difficult problem that has been set for us by another part of the union.
I will not go over the points that Richard Baker made because, by and large, I agree with them. I speak in opposition to Fiona Hyslop amendments in the group, largely because of the assurances that the minister has given.
When the Subordinate Legislation Committee, of which I am the sole representative on this committee, examined the subordinate legislation provisions in the bill, it was clear that the affirmative procedure would give the necessary degree of scrutiny. The Subordinate Legislation Committee was pleased that the Executive came back and agreed the point.
Neither I nor the Subordinate Legislation Committee would ever want to give ministers untrammelled powers—the thought fills me with horror. If Fiona Hyslop's amendments in the group were to be accepted, the door to that possibility could be opened and that would worry me greatly. For that reason, as well as for the reasons that I outlined earlier, I cannot support her amendments.
I am not in favour of Fiona Hyslop's amendments in the group. My only concern on the question of fees is one on which the minister did not comment and concerns an issue that was drawn to our attention by, I think, the University of Strathclyde's student association, during our stage 1 consideration of the bill.
The point was made that Scotland-domiciled students might still be required to pay fees because either they are doing—I think I am right in saying this—a second degree or they have started one course, dropped out after a year for whatever reason and then tried to study another course. Such students could be caught in a loophole that would involve only a small number of people, but would be a loophole nonetheless. I would be interested to hear the minister's response on that.
I support Fiona Hyslop's amendments. I feel that the proposed mechanism is not appropriate for the bill. Originally, the committee was entirely consensual. The mechanism that amendment 1 seeks to address was put on top of the original draft bill and it does not belong there. It has the potential to introduce top-up fees by the back door.
I hear the minister's assertion that the Executive does not intend to use the mechanism as such, but we are not voting on the Executive's doubtless good intentions; we are voting on the exact wording in the bill. My reading of the wording as it stands is that it clearly would enable such fees to be introduced. That is not necessary at the moment and it would have been far better to wait and see what happens after the changes south of the border. If legislation were required to make further changes specifically designed to address any problem, it could have been introduced at that stage.
Christine May commented on the affirmative procedure, which represents one of the founding principles of this Parliament in that it ensures scrutiny. That aside, Mike Watson's comment about loopholes and delays for whatever reason—be it through ill health, family bereavement or whatever else—is important and I give him credit for making that point at this stage.
I will support Fiona Hyslop's amendment 1 because the Executive has not proposed satisfactory amendments that meet the committee's recommendations set out in paragraphs 56, 57, 59, 60 and 61 of the stage 1 report.
We do not feel that amendment 14 goes far enough and there is nothing in it that gives an undertaking to use the response to any consultation in making fee adjustments. It simply says that the Executive will consult and then do its own thing. That is quite wrong. I understand that Richard Baker might not move his amendment 14A, but as we will not support amendment 14, we will not support amendment 14A.
Before I call Fiona Hyslop to wind up, I say to the minister that if he wants to participate in the general debate, he is perfectly entitled to do so. That would give him the opportunity to respond to some of the points made by Mike Watson and others.
I would like to respond to Mike Watson's point because it is a concern shared by me and my minister colleagues. We await the report of the implementation advisory group to address not just the University of Strathclyde example of repeat-year students, to which Mike Watson referred, but the position of repeat-year higher national students and second-degree students. There are a couple of categories. Mike Watson referred to loopholes and it is certainly our intention to close them following our receipt of the implementation advisory group's report, subject to consideration of its more general implications for student funding. I hope that I have given the assurance that Mike Watson seeks.
David Davidson started by saying that he supported the Subordinate Legislation Committee's position on using affirmative resolution to impose changes in general fee levels, then he said that he would support amendment 1, which seeks to remove that affirmative process.
On the duty to consult, which we intend to introduce by virtue of amendment 14, it is of course implicit that we will take on board the outcomes of the consultation process.
I have responded generally to the points that Fiona Hyslop made, but on the question of there being a financial incentive, I totally refute the proposition that any revenue raised would be used to supplement loan revenues to students studying in England. There is no financial incentive involved.
I have a brief comment to make. I am sorry, but I felt moved to say something in the light of David Davidson's comments. David is absolutely within his rights to be present as the substitute member and to express a view, which I respect. However, as somebody who has sat on the committee throughout its deliberations, I am bound to say that I do not agree with his point that what the minister is proposing does not accord with the aims and intentions of what the committee set out. The comment about the Executive not including a commitment to do absolutely everything that might come out of the consultation is utterly spurious, partly because of what the minister has said about how these things are enshrined in legislation and partly because, by definition, a range of views are expressed in consultations and it is for the Government to act accordingly.
I refer first to the debate on amendments 14 and 14A. We should acknowledge that there is more than one representative body of students in Scotland. There is the National Union of Students Scotland—of which Richard Baker is a former president so that he no doubt has an interest in lodging amendment 14A—the coalition of higher education students in Scotland and others. I am sure that if the Executive was going to consult, it would take on board those bodies' views. I support amendment 14, but I suggest that, at stage 3, the first line of paragraph (b) could be amended to say "bodies" rather than "at least one body". That might keep Richard Baker, CHESS, the NUS and other organisations happy. Perhaps we can address that later.
On the substantive point about the fees, I remind members what we are talking about. Section 8(6) is clear that the fees are not general fees but variable fees. Section 8(6)(a) states that the fees are payable
"by such class of persons as the Scottish Ministers may by order specify".
That is a general provision. Section 8(6)(b)(i) refers to "such programmes" and section 8(6)(b)(ii) refers to "such courses" as ministers may specify, so the fee is variable by course. Members might agree that top-up fees variable by course are a good thing. The minister's main argument was that if we were going to have such fees, there should be an affirmative instrument. I would not be lulled into a false sense of security by the arguments about how good and generous affirmative instruments can be. They are only good insurance if we believe that fees variable by course are good in themselves.
I also remind members that, at stage 1, in response to the question whether we needed to have legislation to set general fee levels, Jim Wallace replied that it could be done by letter. If my amendments are agreed to, in effect we will return to the status quo, whereby the minister can set general fee levels. What we have in the bill is not the ability to scrutinise an affirmative instrument in relation to general fee setting; the provision is about setting variable top-up fees, as specified in section 8(6) onwards. The key words are "such programmes" and "such courses", which reflect the variable element.
Richard Baker talked about new levels of consultation, but there will be new levels of consultation only if the introduction of variable fees is agreed in principle. I point out that Scottish students will also be liable for fees; only the administration of those fees will be different from the administration of fees for students from south of the border. It will be done by the Student Awards Agency for Scotland, by the traditional methods and by letter.
There is a difference of opinion about the scale of the problem. I understand that the number of Universities and Colleges Admissions Service applications in Scotland is running at 29,000. In 1999, there were 36,000 applications. We are addressing the possibility that we will suddenly get a flood of students from England, but I ask members to reflect on, first, the population level in Scotland and, secondly, the fact that we do not have evidence that a substantial number of students will come to Scotland and, in so doing, remove Scottish students' places. If that did happen, our job would be to expand the higher education sector rather than to put up barriers.
It seems to me that the Executive is presenting an insurance policy but does not know the scale of the problem or whether it will occur. It is prepared to introduce a large, wide-ranging swathe of provisions to open the door to comprehensive fee-setting that is variable between courses and will deter people. Rather than welcoming people to Scotland, the Executive wants to deter them. I question the Executive's rationale also because we have heard Jim Wallace acknowledge that finance has not been a deterrent so far. Therefore, why is the Executive introducing a financial deterrent to resolve a problem that does not exist?
There is a difference between the comments that the minister has made today and the comments that Jim Wallace made on 24 June. Either there is a financial deterrent or there is not. The Deputy Minister for Enterprise and Lifelong Learning seems to argue that the Executive wants the position to be neutral, but in that case why has it sought to make such major amendments to the legislation? Why do we not wait for the results of the implementation advisory group? If ministers still thought that there was a problem that needed to be addressed, provisions could be introduced via the most appropriate vehicle.
I hope that members will listen to the argument that the provision in the bill is good neither in principle nor in practice. It does not address the problem that the Executive thinks exists. On that basis, I press amendment 1 and ask that we vote on it.
The question is, that amendment 1 be agreed to. Are we agreed?
No.
There will be a division.
For
Ballance, Chris (South of Scotland) (Green)
Davidson, Mr David (North East Scotland) (Con)
Hyslop, Fiona (Lothians) (SNP)
Neil, Alex (Central Scotland) (SNP)
Against
Baker, Mr Richard (North East Scotland) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Lyon, George (Argyll and Bute) (LD)
May, Christine (Central Fife) (Lab)
Watson, Mike (Glasgow Cathcart) (Lab)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 1 disagreed to.
Does Fiona Hyslop want to move amendment 2?
I will on the basis that it is a substantive amendment, which would delete sections 8(5) to 8(10).
I move amendment 2.
The question is, that amendment 2 be agreed to. Are we agreed?
No.
There will be a division.
For
Ballance, Chris (South of Scotland) (Green)
Davidson, Mr David (North East Scotland) (Con)
Hyslop, Fiona (Lothians) (SNP)
Neil, Alex (Central Scotland) (SNP)
Against
Baker, Mr Richard (North East Scotland) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Lyon, George (Argyll and Bute) (LD)
May, Christine (Central Fife) (Lab)
Watson, Mike (Glasgow Cathcart) (Lab)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 2 disagreed to.
Does Fiona Hyslop intend to move amendment 3?
As the substantive amendments have been lost, I will not move amendment 3.
Amendment 3 not moved.
Amendment 14 moved—[Allan Wilson].
Amendment 14A not moved.
Amendment 14 agreed to.
Amendment 4 not moved.
Section 8, as amended, agreed to.
That concludes consideration of amendments for today. We move into private session for agenda item 4.
Meeting continued in private until 17:03.