5 Page 12, line 42, at end insert:
'and students who exercise that right should not be unfairly disadvantaged, with regard to the provision of services or otherwise, by reason of their having done so;'.
§ 5A The Earl Russell to move that this House do disagree with the Commons in their amendment 5
§ The noble Earl said: My Lords, my purpose in moving this Motion is interrogative in the first instance. I should like to speak also to Amendment No. 9, which is grouped with it, in which the wording is similar85
§ The provisions state that a student who chooses to opt out of a student union should not be "unfairly disadvantaged". Since none of us wishes to be unfair, the amendment states only that people should not be disadvantaged in ways in which they should not be disadvantaged. The sentiment is so unexceptionable that it seems important to find out exactly what the provisions mean. The wording concedes—this is vital— that if one chooses not to belong to a body, one suffers some fair disadvantages. First, I should like to ask the Minister in what ways it is fair for a person to be disadvantaged if he or she agrees to opt out. I await her reply to that with a certain degree of cautious optimism.
§ That is not my only question, although on that question I should be very grateful if the Minister could indicate that she was speaking to us under the ruling in Pepper v. Hart because that might clarify the matter considerably. Although our intentions may very well agree, the trouble that we have is that even since Pepper v. Hart the courts do not rely exclusively on the intention of the legislator. That is a very long-standing rule of law. So, however much we may agree on our intentions in the rule that people shall not be unfairly disadvantaged, that will not be the only thing that governs us.
§ I should also like to ask the Minister how this amendment from another place is to be reconciled with the points that she made to us about the European Convention on Human Rights when we debated the matter on Report. I understand that the effect of the European convention is that we may not restrict freedom of association. How does the amendment sit with that requirement? There may well be an answer, but I should very much like to hear what it means.
§ Before we reach any decision on this, we need to understand, first, what the amendment actually means and, secondly, how it will work. I shall listen to the Minister's replies with a great deal of interest. I beg to move.
§ Moved, That this House do disagree with the Commons in their Amendment No. 5.—(Earl Russell.)
§ Baroness Blatch
My Lords, I think it will be most convenient if I say, first, a little about the amendments in this group brought from the other place before responding to the points that the noble Earl has raised on them.
After a stormy start to our debates on the student union reforms, with your Lordships' help we succeeded in putting together a robust and coherent package. This met with broad approval and I was grateful for the supportive remarks many of your Lordships made.
It may help if I remind your Lordships briefly of the purpose of these reforms and what we intend to achieve. We are determined to ensure that choice, fairness, democracy and accountability flourish in all our student unions. There is, I think, no dispute over the relevance of these principles to student unions.
The amendments made in another place do not affect the principles or structure of the Bill, which remain as when it left this House. The amendments clarify two points already agreed by this House: the choice of whether to belong to the union and the provision of 86 information to students. These principles of choice and information were approved in this House; the amendments simply provide further detail on implementation.
Amendments Nos. 5, 8 and 9 are concerned with the choice of whether to belong to the union. That choice is not available currently: it was provided in this House. It is essential that the choice should be real. In our earlier debates many of your Lordships were rightly concerned that students who exercised this choice should not thereby lose access to important services. Up to a point, I agree. A choice not to join the union, if it simultaneously cut a student off from all welfare or sports facilities, would be no choice at all. That is why we tabled amendments to ensure that students who choose not to belong to their student union are not thereby unfairly disadvantaged and to extend the complaints procedure to cover claims where students feel they have suffered unfair disadvantage in exercising this right.
But at the same time students must expect opting out to have some consequences or it is meaningless. That is what choice is about: weighing up the pros and cons of alternative courses of action; but the options must be fairly balanced. That is what these amendments are intended to achieve. I know that the noble Earl, Lord Russell, is concerned about that and I shall refer to the advantages and disadvantages of that in a moment.
Amendments Nos. 6, 13 and 14 enhance the information requirements of the Bill. Amendment No. 6 requires student unions to include details of all donations to outside bodies in their annual financial reports. Amendment No. 11 ensures that students have full details about their right not to belong to the union. Amendment No. 14 is a technical amendment which removes a potential ambiguity so as to put it beyond doubt that the information provided on services for non-members describes any services parallel to those provided by the union, not just the services provided by the union itself.
The right to choose whether to belong to the union is central to our student union reforms. Amendments Nos. 5, 6, 8, 9, 13 and 14 ensure that all students are informed about the right to choose, and provide further protection for students who decide to exercise that choice. The principle of choice, with its corollary of information, was first agreed in this House. The amendments brought from the other place do no more than enable this principle to become a reality. I believe th:3t we in this House should accept them.
Students who opt out of a union are not in the same position as those who stay in. That is self-evident. They must expect to lose something—for example, they cannot expect to stand for union president—and the Bill requires that the decks should not be stacked so heavily that students who want to opt out do not have a genuine choice. In some cases disadvantage may be fair; for example, where students who opt out cannot stand in elections. In other cases, disadvantage may be unfair; for example, where a student union provides the only catering service for students it could be an unfair disadvantage if opted-out students were denied access. 87 But if there were alternative catering facilities, it might not be unfair if student unions denied access to opted-out students.
The question is where the line falls between what the student expects to lose on opting-out and what is disproportionate. For example, it could be unfair if opting-out of the union meant that students could not thereby play rugby, but it might not be unfair if opted-out students had to pay a higher subscription to join the rugby club. It is not possible to give hard and fast examples. Each case will have to be judged on its merits and it will be for institutions to decide at what point disadvantage becomes unfair in the light of local circumstances which may vary. I go back to the principle established by your Lordships in this House before we sent the Bill to our colleagues in another place; that is to say, it will be a matter of judgment on the part of institutions themselves, and it will be for students to make a claim that they have been treated fairly or unfairly. The judgment would have to be made if that issue was not resolved within the institution itself.
§ 6.30 p.m.
§ Earl Russell
My Lords, I thank the Minister for that careful and thorough reply. There is a broad measure of agreement between us upon how the matter should be implemented. I am sure that that extends to institutions as well. I still feel a certain amount of anxiety about how the provision will be interpreted when it comes to the courts, as I have no doubt on some occasion or other it will come to the courts. But in the absence of any really substantial disagreement between us, it would be churlish of me to do anything but to beg leave to withdraw the Motion, and hope that the matter is interpreted by the courts in the way that the Minister and I both wish.
§ Motion, by leave, withdrawn.
§ Baroness Blatch
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.
§ Moved, That the House do agree with the Commons in their Amendment No. 5.—(Baroness Blatch.)
§ On Question, Motion agreed to.