THE House of Lords could still strike down a fundamental element in the Teaching and Higher Education Bill.
The opposition parties believe they may have the votes necessary to remove Clause 18, the section giving the secretary of state power to prevent universities charging fees. The bill will reach its Lords' report stage later this month or in early March - the timing depends on whether the opposition parties push for a rerun of parts of the committee stage, which would push the timetable back by a week. If defeated, the government would almost certainly seek to reverse the defeat in the Commons. But the issue would have to go back to the Lords. Liberal Democrat education spokesman Lord Tope said: "I don't think it's likely that the Lords would risk a constitutional crisis by defeating the government again. But it would almost certainly stop the introduction of tuition fees in 1998 and we would welcome that."
Whether the opposition parties will launch a direct challenge to Clause 18 is another matter. In any Lords v Commons punch-up the government can point to a still-fresh electoral mandate. With Lords' reform already on the government agenda, the Upper House may choose to tread carefully to avoid adding an edge of righteous wrath to the reformers' motivation.
There is also the issue of likely cross-bench reaction. Non-party peers carry serious weight in any government/Lords confrontation - not only by virtue of their voting strength, but because their adherence in significant numbers to any challenge can absolve it from charges of partisan obstructionism.
With these considerations in mind, the respective frontbenches find themselves in a poker game. Launching a frontal challenge of the kind implied by the Liberal Democrat amendment striking down Clause 18 might be counter-productive. But concessions might be extracted by threatening it.
The difficulty for Lord Tope, and Baroness Blatch, his Conservative counterpart, is that they want different things from their resistance. Ever since the publication of the Dearing report, the Conservatives in both houses have hammered away on the issue of the abolition of maintenance grants - citing Dearing's admitted change of mind on the issue. Their stance has the advantage of being consistent with their policies when in government and carries the considerable bonus of allowing them to pose as the low-income students' friend in the face of attack by a hard-faced and uncaring government. A concession on this issue would make them happy.
But the Liberals, on the other hand, accept the abolition of grants and are set against the introduction of fees - which the Conservatives, in turn, are prepared to accept. The one area where the two party agendas appear to coincide is on the demand that money from fees should go directly to the university system, a deeply unpopular proposition with the Treasury.
The consequence of these apparently incompatible party agendas could be that, in spite of having the government in some difficulties, neither opposition party gets what it wants.