My Lords, as this is the first time I have spoken in Committee on the Bill, I should declare, as I did at Second Reading, that I am one of the founders of the New Model in Technology & Engineering university to be established in Herefordshire —and I am most grateful to the Minister for his mention of that in earlier proceedings. I am also an honorary fellow of Lincoln College, Oxford.
In view of the lateness of the hour, I shall be as quick as I can with this slightly technical set of amendments, all but one of which are concerned with the concept of legal certainty. In each case, they seek to raise the standard required. The Bill allows the OfS to take action “if it appears” to the OfS that particular circumstances have arisen. The actions are rather serious ones—imposing monetary penalties; suspending registration; deregistering; or refusing to renew an access and participation plan.
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On 9 January, the Minister mentioned this issue in responding to another group of amendments. He said:
“Intervention based on ‘if it appears’ is standard legislative drafting and is underpinned by the usual public law considerations so that the OfS cannot act irrationally. As a public body, the OfS must at all times act reasonably and proportionately in accordance with public law when exercising its powers”.—[Official Report, 9/1/17; cols. 1814-15.]
Well, yes, up to a point. “It appears” is only one of the formulations available to the drafter—it is not the only one. The lowest requirement is to “suspect” something; “it appears to” is not that much higher; and the highest requirement is to be “satisfied” that something is the case. The distinguished former parliamentary counsel Daniel Greenberg put it like this:
“To be satisfied of something is more or less synonymous with being certain of it and is a high threshold. It requires a real certainty based on strong evidence”.
These amendments do not seek to place such a high requirement on the OfS, but they do seek to raise the threshold before the OfS is entitled to take action. Serendipitously, judicial confirmation of the nature of needing grounds for belief comes from my noble and learned friend Lord Judge who, when he was Judge LJ, emphasised the need for reasonable grounds for a belief in Bright v Central Criminal Court 2001 1 WLR 662.
I hope that, in responding, the Minister will not rest on the probability that the OfS would be safe with “it appears” but will spell out for noble Lords exactly why more should not be asked of it before it takes the serious actions that would be permitted by Clauses 15, 16, 18 and 21 once enacted.
Finally, the odd one out in this group of amendments is Amendment 159, which addresses a formulation used several times in the Bill in cases where a matter is appealed to the First-tier Tribunal. In this instance, an appeal against deregistration, the tribunal may, first, withdraw the removal, secondly, confirm the removal and thirdly, vary the date on which the removal takes place—or, crucially, it may,
“remit the decision whether to confirm the removal, or any matter relating to that decision, to the OfS”.
Amendment 159 would remove that last option. As drafted, the provision could mean that the OfS, whose own action is being appealed, might be the body that took the final decision—in effect, as a judge in its own cause. So it would be very helpful if the Minister could explain why this will not be so and tell us whether any further route of appeal exists once the First-tier Tribunal remits the decision to the OfS in this way. I beg to move.