My Lords, so far as the concepts which are in issue in these amendments are concerned, I am entirely in favour of the autonomy of our higher education institutions, but autonomy does not mean they can do what they like. There is a severe restriction on that autonomy in the provisions for academic freedom, because they prevent universities from trenching on the freedom of their academic staff in the way described.
This question of academic freedom is grounded on my heart. As a new Lord Chancellor I had been given the rather unpleasant responsibility of taking the universities section of the 1988 Bill through this House. There were about as many chancellors of universities then in the House as there are now. It was rather a difficult task. One of the things I was determined to have was protection for academic freedom in view of the provisions relating to university tenure. I therefore promoted in government an amendment to deal with academic freedom. When the Bill came to Committee, at a very early stage Lord Jenkins decided he had a good definition of academic freedom, which he put to the vote. From my point of view, it had the great effect of not requiring further consultation in the Government.
Academic freedom became a statutory provision then and remains, but it is an innovation on the complete idea of autonomy. One of the other things we have to remember relating to autonomy is a matter raised in the debate this afternoon on the governance of universities and higher education establishments. The form of the governance can be extremely important.
I was involved long ago in litigation about the governance of Scottish universities where they have a rector. For the first time in the history of Scottish universities, a certain student was nominated to be a rector of Edinburgh University—it does not take a lot of guessing to know who that was. He graduated to be the rector of Edinburgh University notwithstanding the judicial proceedings and later became the Prime Minister, so he had excellent preparation for that office. It has therefore to be borne in mind that autonomy does not necessarily mean that you can do exactly what you like, but it means that there is considerable freedom in how you do what you are there to do.
One issue raised by the first amendment in the name of the noble Lord, Lord Stevenson, was that of profit. As he said, every institution that wants to be ongoing has to ensure that its income is at least somewhat greater than its expenditure—as Mr Micawber pointed out to us long ago. Every institution that is a university or a higher education establishment has to have that. Why should it make all the difference that the people who set that establishment up want a return on the capital that they put into it? I agree with the noble Baroness who said that exploitation is quite wrong—nobody, I think, could dispute that—but it
does not necessarily follow that because you run an establishment for profit you will exploit those who come to it. In a free-market situation, which is what we had until fees were controlled by the Government, universities were free to charge what they thought appropriate. I imagine that if a university is fee-paying, as is one of the institutions of which the noble Baroness, Lady Cohen, is chancellor, it must have some effect on the fees that are charged to the students.
I think that the law is that the purpose of education is a charitable one, but it does not follow that every institution set up as educational is itself a charity, because to be a charity you have to be established for charitable purposes only. One purpose that is not charitable is distributing profits to those who set the establishment up, so that university and any others that might follow in the same pattern would not be charities. I do not think that that matters too much; what matters is whether you can guarantee the quality of the teaching and research—if it does research—that such an establishment can bring forward. I do not feel that the provision that was made by a previous Government is necessarily incorrect. We have had a good example of what such an establishment can achieve. I think I am right in saying—I am depending very much on my recollection—that at least some of the examining boards are now set up by organisations that are for profit.
Protection from government of the autonomy of an institution strikes me as fundamental. I do not think that the Bill infringes on that directly, but I can see the advantage of making sure by way of negative provisions that it does not happen in the future, because we never know who may come along after the present Government. Proper protection for autonomy strikes me as highly appropriate, although there may be some dispute with my noble friend the Minister about the extent to which it is necessary. Such principles seem fundamental and I hope that they will be followed in consideration of these amendments and many later amendments.