§ 3.11 p.m.
§ The Minister of State, Department for Education (Baroness Blatch)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Judd moved Amendment No. 84A:
Before Clause 20, insert the following new clause:
("Exemption for the Open University
Nothing in this Part shall apply to the Open University.").
§ The noble Lord said: In introducing the amendment, I should like to make it very clear that, as I understand it, the Open University strongly favours democracy and sensible administrative controls, but that at the same time it is understandably unhappy about the prospect of being caught up in expensive arrangements which are quite unnecessary and which are obviously designed for very different kinds of institutions, with ever present student communities throughout the academic year.
§ The realities and dynamics—the involvements both domestically and professionally—of 130,000 students in the Open University Students Association are totally different, although they do in some ways relate to all higher educational institutions providing distance 590 learning. The points in that respect which I imagine the noble Lord, Lord Flowers, will want to raise later this afternoon are, I suspect, highly relevant.
§ The Open University already operates the kind of financial controls which the Government seek to introduce in their new clause. The governing body does indeed monitor the financial affairs of the student union. Therefore, there seems little point in forcing the provisions of the Bill on such a well-regulated institution. But it is the prospect of a secret ballot for all of the 130,000 students at a cost in the region of £52,000 which is the greatest bone of contention. It seems to be a pretty ludicrous waste of scarce resources in an institution characterised by mature students who are all very much part of the communities where they live and work rather than of a self-contained student community on campus. Further, as I understand it, no one in the student community has so far even raised the issue of the need for such a ballot. Indeed, by contrast, the Open University students seem to be very happy with the existing arrangements for indirect election.
§ I know that the Minister has been in consultation with the Open University about its special position and about how that might be covered. I know how much her concern has been appreciated by all those involved. Therefore, in the course of what I imagine will be quite a brief following exchange, I hope that the Minister will be able to say something to reassure the Committee on the issue of the special position of the Open University. Perhaps at the same time she may also be able to indicate whether she proposes to do something about distance learning in general. I beg to move.
§ Baroness Carnegy of Lour
I am a little mystified by the noble Lord's amendment. A few weeks ago I would have agreed with him that the matter needs to be looked into. At one time the Open University saw itself as being quite separate from the university system as a whole. It was funded directly by central government and not through the funding council. It has now opted—in my view, quite rightly—to be part of the mainstream university system which is funded through the funding council, as are other universities. I do not think that the OU would want to be exempted from the whole of Part II which, as I understand it, is the aim of the noble Lord's amendment.
On the question of the ballot, as it happens I was present at the council of the Open University this very morning when the Bill was discussed as an item on the agenda. Representatives of the students' association were also present and I spoke to them after the meeting. I believe that the Open University has accepted—although the noble Lord may be right in what he says —that it would perhaps be very nice for a union (a students' association as is the case with the OU) to be free of all regulation under the Bill. However, those concerned realise that in the real world, and if they are to be part of the mainstream, they should be subject to the clause. In fact, the proposed new clause which we shall shortly be discussing meets almost all of the points upon which the Open University took issue with the Government. Indeed, the OU is quite satisfied with that new clause, except for the point about ballots.
591 The noble Lord is quite right. I know that the Minister wrote to the Open University on 17th March (the letter was referred to during the council meeting this morning) to give an undertaking that she would try to meet the point about ballots, not only for the Open University but also for any other university which might have a preponderance of distance learning students. Ballots can be difficult to organise if you have students living all over the place and they cannot, therefore, take part except by post.
Doubtless my noble friend the Minister will tell the Committee what she has in mind. I believe that the amendment is quite unnecessary. Indeed, should the noble Lord decide to press the matter to a Division I hope that Members of the Committee will not support it. I do not think the amendment meets the present wishes of the Open University.
§ Earl Russell
I have also been in contact with the Open University. I have with me a letter from the office of the secretary. The Open University wishes to join in the welcome which is being universally extended to the proposals that the minister is about to bring forward. I agree that the OU has always wanted to come into the mainstream of higher education. On the academic front it has been extremely successful in doing so. However, we are discussing a system which has been designed specifically for use on residential campuses.
The Open University has requested that I ask the Minister whether she will reassure Members of the Committee that the current system of electing officers to the Open University Students' Association satisfies the requirements of the proposed legislation as it gives all the students an equal entitlement to participate in such elections, and that the amended Clause 20 will not entail an annual postal ballot of 130,000 students, which would cost £52,000.
An assurance to that effect from the Minister would be an end to the matter. However, I rather suspect that she will not be able to do so. If that is the case, perhaps the noble Baroness would consider going a little further than the suggestion in the amendment of the noble Lord, Lord Judd. In the future, there may be other institutions of open and distance learning. Therefore, would the Minister consider having an exemption for institutions of open and distance learning? If she were to consider such a form of words, the Minister might find that it would solve some of the difficulties that we have been experiencing as regards multi-site further education colleges.
We are all beating on an open door. I believe we are approaching this in a mutual and agreed and constructive desire to reach a solution. I have every faith in the ability of the noble Baroness to do so in consultation with others. I look forward to hearing her reply.
§ Lord Campbell of Alloway
I would ask the noble Lord, Lord Judd, that if it appears—that is my understanding as well as that of the noble Earl who has just spoken—that the Open University does not want to opt out totally of Part II of the Bill, would it not be appropriate to consider the specific problems arising, such as affiliation needs and others, with the Open 592 University when we come to consider the requirements of Clause 21(2) which are now, so to speak, under the new disposal open to discussion not only today but between today and Report?
§ Lord Judd
I hope I may reply to that point and to what the noble Baroness, Lady Carnegy, has said. It is certainly the case that the major anxiety in the Open University concerns the ballot. I am sure that if the Minister can say reassuring things about that—I rather hope she will be able to do that—we shall all feel glad. I must emphasise that I understand that the discussions which have been going on between the Minister's department and the Open University have been greatly appreciated. However, the difficulty is that we do not yet know whether there will be a change of clause this afternoon. It is quite clear that, were there not to he a change of clause, it would be essential to pursue this amendment with some vigour. What I am therefore seeking—I am sure the Minister understands this—are some words of reassurance in this slightly difficult situation as regards how she views this matter in terms of the future. I would say in response to the noble Baroness, Lady Carnegy of Lour, that the Open University may have come to terms with the other provisions apart from the ballot. What I am suggesting, however, is that it is really unnecessary to apply those provisions to the Open University because the OU is so different in so many ways. It is already doing virtually everything that is required of it in this respect. The provisions may also be superfluous as regards other centres of higher education but it seems quite superfluous to extend them to the Open University even though it may be able to accommodate them. However, I totally agree with the noble Baroness that the key issue here is the issue of the ballot.
§ Baroness Blatch
I share my noble friend's puzzlement on this matter. I signed a letter and sent it to the noble Lord telling him what I was going to do. Therefore it is puzzling to receive a public request across this Dispatch Box to exempt the Open University from secret ballots. If the noble Lord has not received my letter, I shall try to find out why. However, I know that other noble Lords have received that letter, as have some of my noble friends.
The noble Lord pressed the argument that the Open University is different. However, the particular distinction between the Open University and other campuses has been addressed; namely, the issue of corresponding, for secret ballot purposes, with 130,000 university members scattered all across the country and not resident on a single campus. The noble Earl, Lord Russell, referred to that matter. I have agreed to address that issue. The noble Earl, Lord Russell, asked whether the Open University's present procedures would fit with the measures in the Bill. My understanding is that they would. The Open University would be required to notify all of its members that there was to be voting for officials of the union and that could be done in the newsletter that is sent out to all members of the Open University. As long as each member of the Open 593 University knew that a ballot was to be held at a particular venue to elect officials of the union, that would meet the requirements.
I can assure the Committee that the exemption will apply to a category of institution and will not specifically name the Open University. We want to name the category; that is, institutions which predominantly serve the interests of open and distance learning students. If in the future other institutions come into that category, they would enjoy the same exemption as the Open University. The difficulty I have today with this amendment is that it disapplies the whole of Part II of the Bill. I do not accept that the students of the Open University should be treated in such a cavalier way. The objectives of our reforms—choice, democracy and accountability in relation to the student union—are essentials for Open University students no less than for other students. Again the argument pressed by the noble Lord is that the way in which the Open University conducts its affairs is exemplary. I could argue that case as regards many higher education institutions. What we want to codify on the face of the Bill is that it should be a requirement that all institutions should follow the practice of the best.
I accept that the provisions that we propose for direct balloting of the student body would be especially difficult to operate for the Open University. We shall debate in a minute the details of the Government's proposals in Amendment No. 85 for ballots in relation to election of union officers and to affiliation decisions. I shall explain then how I propose that the requirements for ballots should be disapplied in the case of the Open University in view of its particular circumstances.
However, I do not believe that the Open University should be exempted from the other requirements for best practice in student unions' conduct. Why should Open University students not have the right to choose whether to belong to their student union? Why should Open University students not have access to a complaints procedure if they have cause for complaint about their student union? Why should Open University students not have access to information about the student union's budget? Our proposal to disapply the ballot requirements in the case of the Open University is intended to accommodate its special circumstances. I therefore hope that the Committee will agree that this exemption meets the only concern that I know of which has been communicated to us by the Open University. We have been in constant communication with the Open University. I hope the Committee will reject the noble Lord's amendment.
§ Lord Judd
I am grateful for that reply. The Minister has dealt fully with the ballot point and, as we have agreed, that is the main bone of contention. Incidentally, we noted with, I believe some encouragement, what she said about distance learning in general. That is good news. I still believe that in view of the exemplary way in which the Open University has conducted its affairs, and in view of its special circumstances, there is a strong case for saying that what applies to the rest, if it must apply to the rest —we shall discuss that later—should 594 not have to apply in the area we are discussing. While I certainly accept the point that was made that we must look closely at what happens later in our proceedings today and its implications for the Open University and other institutions, I feel that the Minister has moved firmly in the right direction. In the circumstances, I would not want to pursue this amendment. Therefore I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 20 [Services supported out of public money]:
§ On Question, Whether Clause 20 shall stand part of the Bill?
§ Baroness Blatch
I rise to oppose the Question that Clause 20 stand part of the Bill. In doing so, I wish to speak also to Amendments Nos. 86A and 89A. This is the first of the two substantive changes that the Government propose to Part II of the Bill. I hope I may trespass a little on the patience of the Committee to explain how the Government now propose to implement student union reform, in the light of the Second Reading debate.
In answer to a question from my noble friend Lord Colnbrook on 24th February, I confirmed that we had taken most careful notice of the points raised in the Second Reading. After extremely helpful consultations we identified a revised approach to implementing student union reform. In considering the way forward I was greatly assisted by the amendment tabled by my noble friend Lord Campbell of Alloway supported by my noble friends Lady Young and Lady Perry. The substance of that amendment is reflected in an amendment in my name that we shall debate later; I am grateful to my noble friends for giving me a start, and for now withdrawing the amendment in favour of my Amendment No. 85. I have appreciated very much the constructive spirit of those discussions. I have also, of course, taken careful account of the important work of the Delegated Powers Scrutiny Committee, which expressed some concerns about Clause 20.
I make no apology for revising our approach. This Chamber is at its best when it probes the Government, as it did with gusto on Second Reading. But our objectives in seeking the reform of student unions are unchanged. We are committed to securing choice, democracy and accountability in the student unions.
The reforms will give all students the long overdue choice over whether to belong to the student union.
Democracy is naturally a feature of student union constitutions, and the proposals aim to build on and reinforce those provisions. We aim to ensure that all student unions meet the high standards that students have a right to expect, acting with fairness and transparency.
Financial accountability, similarly, must be maintained to the highest standards. Student unions have considerable sums of taxpayers' money at their disposal. We must be sure that it is spent on legitimate activities and is properly accounted for.
In the Second Reading debate there was widespread understanding of the need for reform, so as to maintain the highest standards of behaviour in student unions. 595 The fire —which did not lack heat—was concentrated on the method of implementing reform that we had proposed in Clause 20. We now propose to delete Clause 20 and instead, if I may express myself in shorthand, to enhance the provisions of Clause 21 in order to secure reform.
I shall not anticipate the detail of the later amendment, Amendment No. 85. The Committee will already have seen that it provides for students to be able to exercise a choice over student union membership; for the promotion of the best practices throughout the public further and higher education sectors; for democracy; and for accountability.
This revised approach to reform rests on universities and colleges defining their responsibilities in relation to their student unions. Those will be transparent and accountable. That, I believe, is where the responsibilities properly belong. I am confident that the Committee will find this approach more acceptable than the machinery that we had set out in Clause 20. The deletion of that regulation-making power in Clause 20 requires two consequential amendments—Amendments Nos. 86A and 89A—to Clause 22, where there are cross-references to it.
I hope that it has been helpful to take a little time to set in context the immediate question under debate; namely, whether Clause 20 should stand part of the Bill. Our discussions since the Second Reading debate have been most helpful and productive. Our revised approach will deliver effective reform, but without the disruption and bureaucracy that Clause 20 would have entailed. I hope that the Committee will join me in deciding that Clause 20 can be discarded.
§ Clause 20 negatived.
§ 3.30 p.m.
Baroness Blatch moved Amendment No. 85:
After Clause 20, insert the following new clause:
Requirements to be observed in relation to students' unions
(".—(1) The governing body of every establishment to which this Part applies shall take such steps as are reasonably practicable to secure that any students' union for students at the establishment operates in a fair and democratic manner and is accountable for its finances.
§ The noble Baroness said: This new clause sets out how we aim to achieve our objectives for student union reform: choice, democracy and accountability. It introduces voluntary membership. For the first time all students will be able to choose whether they wish to be members of their student unions.
§ Those are important goals. But we do not wish to interfere with current arrangements where there is no need; our proposals build on the best practice that already exists in many institutions. I do not think that the Committee will find our proposals either superfluous or excessive.
§ The new clause would replace the present Clause 21. It retains the structure of Clause 21 as originally introduced. We propose in subsection (1) that each university and college should have a duty to ensure that its student union operates in a fair and democratic manner and is financially accountable. We set out in subsection (2) a number of detailed requirements which together encapsulate fair, democratic and accountable behaviour. Subsection (3) would place each institution under a duty to set out in a code of practice how it plans to satisfy those requirements.
§ There are two significant changes from Clause 21 as introduced. First, we propose to drop the previous subsection (4) which provided for governing bodies to have regard to any guidance issued by the Secretary of State. The revised approach places responsibility for the conduct of student unions where it belongs: with the institutions themselves. The need for guidance in large part rested on the proposals for a control on the use of public money, which we have now dropped.597
§ Secondly, there are a number of changes of detail to subsection (2), which we have introduced to strengthen the requirements to be observed by student unions and to take account of points made during the consultations that we have had with members of this Chamber and with representative bodies from the universities and colleges.
§ It will be obvious to all that in these proposals we have picked up some ideas from the amendment tabled earlier by my noble friend Lord Campbell of Alloway, which has now been withdrawn. In particular, my noble friend's amendment first set down the proposal that students should be able to opt out of student union membership. As I said earlier, I am most grateful for my noble friend's help, and that of other colleagues, in finding a way to implement student union reform that avoids the drawbacks in Clause 20 as originally proposed.
§ It may be helpful if I say a little about how the detailed requirements in subsection (2) are conceived. First, choice is secured in requirement (c), which will enable students to decide whether they want to be members of their student union, or represented by it where it takes the form of a representative body.
§ Choice is an important aspect of democracy. Other requirements promoting democracy are set out in paragraphs (a) and (b). Those provide for universities and colleges to ensure that their student unions have proper written constitutions, approved by the governing body and reviewed by it at least every five years. Members will be entitled to take part in secret ballots for the president and other main student union offices under requirement (d), and under requirement (e) governing bodies will have a duty to secure that those elections are properly conducted. Ballots will also be required under requirement (j) where a union wishes to commit itself and its members to affiliation with an outside body. I shall say a little more about that in a moment.
§ Those measures will promote democracy and reduce the politicisation of student unions. They will be further reinforced be requirement (f), which restricts individuals' tenure of sabbatical officer posts to two years so as to provide no platform for the career student politician.
§ To promote the financial accountability of student unions, requirements (g), (h) and (i) set out a framework for the scrutiny of union accounts, including approval by the governing body of a union's budget and monitoring of its expenditure against that plan.
§ As a further safeguard, under subsection (4) students are to be reminded annually of the effect on the union of charity law and the legislation on freedom of speech in the 1986 Act. The restraints imposed on the political activities of charities are not well known among students. Greater awareness of those provisions among students would reduce the temptation to undertake activities that are ultra vires for a student union under charity law. And we want to be sure that students are aware of the existing legislation on freedom of speech on campus, so that democratic values are upheld. Together these provisions will help to ensure that high standards are maintained.598
§ Finally, the new clause provides for a complaints mechanism should things go wrong, in requirements (k) and (l). That provision, and particularly the requirement for an element of independence, will give students—individuals or clubs —confidence that they will be dealt with fairly by their union.
§ Having outlined the provisions of the new clause, I should add that we have continued to consult on its detailed provisions since it was drafted. As a result, we have identified a number of points to which I shall need to return on Report. I hope it will be helpful if I summarise them now.
§ First, there is the question raised by Amendments Nos. 85A and 85C in the name of the noble Lord, Lord Flowers. Those would limit the requirement that elections of student union officers should be by secret ballot. The requirement would not apply to students on courses lasting less than three months.? Let me say straightaway that I appreciate the aims of the amendment. I can see that it might not appear equitable that students who attend for, say, two hours a week over a period of six weeks should have equal voting rights with full-time students engaged in a course of study lasting several months or years. That is true of ballots for the election of union officers and also of ballots for affiliations which we propose to require.
§ Having consulted and reflected further on that question, I accept that it would not be appropriate to give those voting rights to students whose connection with the institution was minimal. The solution will be to apply the requirement for ballots only to those students who are members of the union —not to all students. The extent of union membership is of course determined by each institution in its union constitution. The Government have no plan to change or reduce institutions' discretion in this area. Each institution will be able to determine whether part-time students—the group I believe to be of concern to the noble Lord, Lord Flowers—or indeed any other group should be eligible for union membership and, consequently, to take part in those ballots. I propose to bring forward amendments on Report to amend our proposed ballot requirements in that sense.
§ I wish to let the debate run and to listen to the argument pressed by the noble Lord, Lord Flowers. I believe that there may be a case to think again about the issue between now and Report stage and perhaps to weave together the amendment that the Government have in mind with the amendment of the noble Lord. If the debate will run its course, I should like to offer that as a way forward from today.
§ Secondly, concern has been expressed about the handling of affiliation ballots in other institutions. Many unions maintain a large number of affiliations, and I recognise that to require a secret ballot on each of them every year, as the new clause does, could be onerous. I propose therefore to bring forward on Report amendments to reduce that possible burden. I shall be proposing, first, that students should receive information about their union's affiliations, and their costs. I shall also be proposing that the list of affiliations should be subject to annual approval through the union's normal democratic processes. And I shall be proposing 599 that students should be able to requisition a ballot, within the framework of a specified percentage trigger point, on any particular affiliation. By this means, annual balloting on each and every affiliation will not be required. But that vital democratic procedure will be available where it is needed, and where the students in some numbers deem it to be so.
§ Thirdly, I have considered further the particular position of the Open University, discussed this afternoon. The ballot requirements would pose special difficulties there, as the student body is of course scattered all over the country. As I said in the debate on Amendment No. 84A, I have decided that, in the special circumstances of distance learning institutions, the requirements for ballots should not apply. I propose to bring forward amendments for that purpose on Report. The other aspects of these reforms would, of course, still apply at the Open University.
§ For completeness, I should say that if the new clause is accepted, there will be some minor consequential changes to the definitions in Clause 18, to which we shall also return on Report.
§ It may be slightly unusual to introduce a substantial government amendment with an explanation of how the Government propose to amend it further. That is the fruit of our continuing consultations. We are determined to ensure that student union reform is effective, and that means being sure that the measures are workable at institutional level.
§ We pride ourselves in this country, and particularly in this Chamber, on the independence of our universities and colleges. These measures are developed from best practice that already exists. We want to be sure that best practice becomes commonplace. But we have taken care to ensure, if Parliament approves these provisions, that they do not introduce central control over institutions' activities.
§ The reforms will bring significant benefits to all students. They give students the choice to determine for themselves whether to belong to their student union. They provide assurance for students and the taxpayer that unions will be conducted fairly and in accordance with democratic principles. I commend the measures to the Committee.
§ 3.45 p.m.
Lord Flowers moved, as an amendment to Amendment No. 85, Amendment No. 85A:
After Clause 20, line 22, leave out ("all students") and insert ("students who are registered at the establishment for a course with a minimum duration of three months").
§ The noble Lord said: The amendment is a technical amendment concerning the participation of part-time students in union elections, especially those outside the higher education sector. In some ways it is the other side of the Open University coin. I am encouraged by what the Minister said to believe that I may receive a sympathetic hearing from her. However, if the Committee agrees, I shall speak as though I had not heard what she said because I believe that the Minister wishes to hear my argument so that it can be taken into account at the next stage.600
§ I recently had the honour to become president of the Association for Colleges which represents the general further education colleges, the tertiary and sixth form colleges, and various specialist institutions whose courses range from dance, art and design to domestic science and engineering maintenance. We do not hear much about those colleges in this Chamber. Even though there must be many noble Lords who are thoroughly conversant with the college sector, we tend to concentrate on the universities, and indeed, the Bill is drafted entirely in university language.
§ Yet the colleges cater for more than two million students of whom more than half are part-time, evening only, or distance learning. In certain institutions the figure is much higher than a half. The colleges are diverse in their offerings. They cater for about half of those studying for A-level examinations. They give courses leading to various vocational qualifications; and under franchise arrangements with universities they provide for the 10 per cent. of so higher education students who wish their studies to be vocational in character and who therefore choose to study within the further education colleges rather than the universities. The colleges do almost no research.
§ So the colleges differ in important respects from universities. It is not surprising that student unions within the colleges differ from those within the universities. Generally those unions work without sabbatical officers and concentrate their efforts on the provision of welfare and voluntary services. Indeed, they may often be student councils rather than unions, representative of the students to be sure but closely dependent on the college authorities and a far cry from the semi-autonomous and sometimes politically motivated bodies which inspired Part II of the Bill.
§ The colleges are as relieved as the universities that the Government have had second thoughts about controlling student unions by central regulation. They warmly welcome the new Clause 20 proposed by Amendment No. 85. However, a particular problem remains which derives from the fact that so many of their students are part-time. The requirement that all students who have not opted out should be able to participate in secret ballots presents the colleges with a difficult practical problem. It is a problem shared to any substantial extent with few universities although the Open University is certainly one.
§ Quite apart from being part-time, many college students may be taking short evening courses of only a few hours of study each—at any rate, of less than a term's duration. That is an important activity for the colleges as well as for the students but it means that the use the students make of union facilities tends to be somewhat fleeting. Statistics are sparse in the college sector. However, we know that there are at least 40,000 students countrywide whose participation can be so described, and possibly many more. Are they individually to have the same weight in elections as students whose participation, although possibly still part-time, is very much more substantial, representing a much greater commitment to the institution and to what it has to offer? Are those students to burden the 601 institution with the considerable administration and expense of secret ballots conducted at times when many of them are unlikely to be present?
That is why my amendment calls for a distinction to be made between students whose total participation in the work of the college is of short duration and those whose commitment, whether full-time or part-time, is more substantial. In subsection (2) (d) new Clause 20 states that,
appointment to major union offices should be by election in a secret ballot in which all students other than non-members are entitled to vote".
I wish to replace the phrase "all students" by the more restrictive phrase,
students who are registered at the establishment for a course with a minimum duration of three months".
Three months is about a term. That seems to me, and to the Association for Colleges, a reasonably practical balance between the democratic desire to give all students an equal vote and the complexities and ambiguities of giving the vote to students whose call upon union facilities, including representation, is rather slight.
§ It has been suggested that rather than Parliament approving a measure of such obviously undemocratic intent it should be left to the institutions themselves to decide who should be entitled to vote and who should not. That might be much less democratic and much more open to challenge. Moreover, there can be genuine concern that if some such measure is not adopted the intentions of the Bill could be quite grossly abused; for there would then be nothing to prevent a group of persons registering for a short course of half a dozen hours of study, which they had no intention whatever of attending, in order to take control of the union in a ballot in which rather few students are likely to vote in any case. It is a well-known electoral device and I have no need to explain it further.
§ That can be overcome by something akin to a minimum residence requirement. If those entitled to vote have to register for a course of not less than three months' duration there is a decent opportunity for the college, including its students, to discover whether or not they are bona fide students. Of course, it could be six months rather than three; or, indeed, six weeks. But in my judgment three months is about right.
§ My proposal is tabled as an amendment to the new Clause 20, Amendment No. 85. Since I am a pessimist in these matters I have assumed that the new clause might fail. With that possibility in mind, I have taken the liberty of proposing an identical amendment to Clause 21, which will very likely not stand part. Having spoken to Scylla, I shall not speak to Charybdis as well. I beg to move.
§ Lord Campbell of Alloway
In speaking to this amendment first I wish to thank my noble friend the Minister, as I would have wanted to do on Clause 20, for her revised approach and for her kind words. As to the revised approach, it is much appreciated and it has to be said that Part II of the Bill, as it stood and still stands, had to be opposed. The proposed exercise of Executive 602 control over governing bodies and students' unions under Clause 20 and Clause 21(4), enforceable by the courts, was wholly unacceptable.
The amendments to which the Minister referred were withdrawn, but only when the Government's proposals, as reflected in these grouped amendments, were considered to be acceptable. The amendments were acceptable not only as representing a compromise between noble Lords' objections on Second Reading and the Bill as it stands, but also acceptable to the governing bodies, the students, the CVCP and the NUS, subject to clarification and further discussion. Thus the requirements of Clause 21(2)—and this affects the amendment to which the noble Lord, Lord Flowers, spoke—may be wholly perfected before the Report stage.
It is right to say that under the aegis of the Minister the Committee stage was delayed to allow arduous and protracted negotiations to ensue. That is now so much spate water under the bridge. The resolution stands as a tribute to the wisdom, patience and sheer stamina of my noble friend the Minister. Nevertheless, but for the good offices of a former Leader of your Lordships' House on this occasion—my noble friend Lady Young—it is much to be doubted whether any such resolution which binds the Government in both Houses would ever have been achieved. The gateway to the path of discussion is now open. The seamanship of my right honourable friend the Secretary of State, in changing course to steer clear of the rocks of confrontation, is acknowledged with gratitude and relief. The Government are surely entitled to take much credit for this, the second occasion when, acting on the advice of your Lordships' House on Second Reading and on the advice of a former Leader of your Lordships' House, they have undertaken a fundamental reappraisal of the limits of Executive control. I hope that the amendments will commend themselves to the Committee.
§ Baroness Young
As I have attached my name to Amendment No. 85, perhaps I may say a few words on the matter. I too wish to thank my noble friend the Minister for bringing the amendment forward. I am only too well aware how much she has contributed to its drafting and to what I think and hope will be a happy resolution of the matter. I should like to thank her and my noble friend Lord Campbell of Alloway for their kind remarks.
Since the Bill was first introduced I have always believed that what the Government wished to see in student unions—the principles of democracy and accountability and the proper use of public funds and freedom—was shared by the university world. I do not think there was ever—at any rate in my discussions with vice-chancellors—any disagreement on the main principles. The argument—and it was a considerable one—was how to achieve that objective with the agreement and co-operation of the Government, the Committee of Vice-Chancellors and Principals, and the NUS. All those bodies were involved in one way or another in the matter.
I am very pleased indeed to hope and believe that we now have something which we can all accept, both for 603 the main principles which are spelt out in the amendment and, equally important, because it is a solution which is workable and which has the support of the university world and of the NUS. I was delighted to learn that from a letter which I received today from the union.
I can see that in the course of this afternoon and on Report we may look at details. Speaking for myself, I have considerable sympathy with the amendment moved by the noble Lord, Lord Flowers. I have every reason for thinking that the Minister will look at it because it clarifies an important point. If it is not clear, then it should be. I have no doubt that there may be other small points like that.
However, it is important that we have found a solution to the problem. It is a good example of your Lordships' House doing what it has frequently done —that is, exercising its constitutional function as a revising Chamber and improving a piece of legislation. I hope that it will now be acceptable to the whole Committee. I also hope that the CVCP will feel that it is a workable solution and one on which we can now all agree and go forward.
§ Baroness Perry of Southwark
My name is also attached to the amendment and I wish to add my thanks to my noble friend the Minister for the hard work which she has put in on the revision of the clause. I should say how fortunate we are on all sides of the Committee to have a Minister who not only listens carefully to what is said within the Chamber but who also has a genuine concern to make sure that what is passed in legislation will work in the system outside. I believe that she has genuinely put the interests of the universities and the young people within them at the front of her concerns.
As my noble friend Lady Young said, the amendment as it stands ensures democracy in student unions, which is a very important principle for young people to learn, and also accountability. I am happy to quote from what the NUS has said about the Government's amendment that has now been put forward in revision of the clause. In its own words the union suggests that,Part II of the Bill should [now] form the bed-rock of a fair, democratic and workable system".That is an extraordinarily mature remark.
I should also like to align myself with the concerns expressed by the noble Lord, Lord Flowers, about the position of students who are on short courses or are studying only part-time for a short period. I very much share the noble Lord's concerns. I am pleased to hear that my noble friend the Minister is willing to take them on board. I should like to raise just one caveat; namely, that, as those concerns are taken on board, we look very carefully at the position of adult education institutes, where there can be a majority of students who study for very short periods and part-time. Clearly, their interests will have to be looked at in any revision of the clause. I commend Amendment No. 85 very warmly to the Committee.
§ 4 p.m.
§ Lord Renfrew of Kaimsthorn
My name also stands to this amendment. I should like to join with those who have welcomed the position of the Government. The 604 amendment now commands a wide consensus. I am happy to say that, like my noble friend Lady Perry of Southwark, in using the expression "wide consensus" I am again quoting the National Union of Students. The concern that some of us expressed at Second Reading was not against the broad intentions of the Government, which were indeed to ensure that democratic processes operate within the student world, including student unions. The concern was that, as proposed, the Bill we are about to amend would have restricted the range of student activities. I pay tribute to my noble friend the Minister and to my right honourable friend the Secretary of State. They were quick to take that point after the Second Reading debate. As we have heard, intensive discussions led to the formulation and putting down of the amendment now before the Committee which commands very wide support.
One or two points of detail may be of concern. Certainly, I know that student bodies welcome the operation of the block grant system and would be concerned if those students opting out of student unions were in some way to gain financial benefit themselves or diminish the income to student unions by so doing. As I understand it, there is no suggestion that the block grant system will be varied—I hope that my noble friend the Minister may be able to give some assurance on that point—and therefore there will be no financial benefit to those student individuals who wish to opt out. It is very important that student unions should not be diminished. I am happy to say that I believe that the amendment safeguards the position of a very wide range of student activities, including extra-curricular activities, which we all believe play an important role in our education system. I am very happy to support the amendment.
§ Lord Judd
In speaking to the amendment I too pay tribute to those involved in what were obviously exhaustive and detailed discussions to try to knit this agreement together. I hope that I shall not be regarded as churlish for making the observation, but it seems to me an extraordinary way to approach public policy and legislation to bring out detailed proposals in a Bill that cause maximum anxiety among all concerned and then to undertake, almost under duress, a process of consultation. That does not seem to me the hallmark of a mature and balanced democracy. I am sorry that it happened. Without in any way wanting to be mischievous—and I am genuine about this—I believe that the Minister of State has played a very responsible and constructive part in trying to reach a solution.
It seems to me that too often in our affairs the unacceptable is proposed. All sorts of people affected by the unacceptable then try to limit the damage and to civilise the propositions being put forward, and so become involved in a process of making the unacceptable acceptable. While I would certainly not want to unpick the compromise, as it has been called, that has been put together, I want very firmly to put on record that on the Labour Benches it is our view that the Government should never have been on this territory. We believe that the matter should have been left to the law of charity, as recently strengthened, with all the 605 provisions for a more rigorous application of charity law, with perhaps some legislation of the requirement for a code of conduct.
That position was not one that the Government were prepared to countenance. They pursued their determination to interfere in university affairs. In those circumstances I, too, accept that what has been put forward now is an improvement on what was there before. Again, I have a certain amount of respect for the Minister in this context. She specifically said this afternoon that the Government set great store by the independence and freedom of our universities and centres of higher education. It is precisely for those reasons that this becomes so lamentable a story in which many people have been caught up in trying to find at least a workable way forward.
It is significant that the propositions have been put forward at the very time when the Government are making a centre plank of their policy of deregulation. The tobacco industry is already regarded as quite responsible enough to handle its own advertising affairs so far as, for example, targeting the young is concerned. The banks are considered quite adequate to handle their own affairs in terms of bank charges. Water companies are regarded as quite adequate to handle their own affairs in terms of disconnecting consumers. The Government supports them in that. But the universities are not regarded as mature or reliable enough to handle their own affairs. I find that a ludicrous proposition.
Perhaps I may now turn briefly to one or two of the detailed points. We must not forget that this is the Committee stage and we therefore need to look at some of the detail. It would be helpful if the Minister could give us some thoughts on these points.
I turn first to paragraphs (a), (b) and (c) of subsection (2) and particularly paragraph (c). I wonder what the Minister has to say about the anxiety that has been expressed that it would be unfortunate if the Bill were to lead to students opting out on political grounds—not in the sense in which the word "politics" is more narrowly used —from the students' unions; for example, on political sectarian grounds. I wonder what the Minister's feelings would be if, for example, students in Northern Ireland were to feel that they wanted to opt out and form their own sectarian union. I am sure that she has given that matter thought. It would be good to hear her observations.
There is also the anxiety expressed by the vice-chancellors that opting out is a concept alien to the whole notion of a community of scholars; that in a university or a centre of higher education, people belong. They do not opt out. I should be interested to hear the Minister's reflections on that criticism.
There is also the whole issue of what services are to be rendered to non-members of student unions, and how that should be determined. The Minister's thinking on that point would also be helpful. I know that she has written to various Members, but I think it important to hear her reflections in the Chamber.
There is then the whole issue of the cost of ballots. There are the possibly exorbitant costs in the case of the Open University but Vice-Chancellors and others are 606 worried about the costs in more typical universities, where a ballot may cost well in excess of £1,500 at a time when funds are desperately short. It is important to hear the Minister's observations on that point.
The noble Lord, Lord Flowers, told us about centres of further education. We are deeply indebted to his insight on these matters. My attention has been drawn to two examples as regards which it would be good to hear how the Minister would suggest that balloting might be handled. At Sheffield City College there are 47,000 students on six totally different sites. That will raise quite significant issues of organisation. I am sure that the Department for Education has thought the problem through. It would be interesting to hear the kind of detailed propositions that it is making for how that situation should be handled. At Liverpool Community College there are 50,000 students on various sites. How is balloting to be properly arranged in that kind of context? It is important to hear the Minister's views.
There is also the issue of the major union offices for which ballots are to take place. It would be useful to have some more detailed thinking in specific terms as to which offices the Minister has in mind.
There is the observation in paragraph (e) that:the governing body should satisfy themselves that the elections are fairly and properly conducted".I take it—it would be good to have the Minister's assurance on the point—that she is talking about supervision of elections rather than about conducting them. I should like to hear her observations.
I am interested too in paragraph (f) and wonder whether there is some loose drafting there. It states:a person should not hold sabbatical union office for more than two years in total during the time he [or she] is a student at the establishment".What happens if a person is elected at the time that he, or she, graduates? Is that person regarded as still being a student at the university?
I come to paragraph (j), which is about affiliation to external organisations and the fact that it:should be decided upon by secret ballot in which all students other than non-members are entitled to vote".I know that the Minister has consulted quite widely on this point. It would be helpful if she could say more today about how she sees that issue. Does she see it as an opportunity for students to insist on a ballot when they feel that a ballot should take place, or should it be a requirement that a ballot shall invariably take place, which would seem to be excessive, not least in cost?
The Minister's remark today about the political activity of students' unions was interesting. The law of charity clearly precludes political campaigning. But I wonder whether she could confirm that the Government stand by the judgment of Mr. Justice Scott, in the case of The Attorney General v. Ross in 1986, when he said:I can see nothing the matter with an educational charity, in the furtherance of its educational purposes, encouraging students to develop their political awareness or to acquire knowledge of, and to debate, and to form views on, political issues … the proposition that an educational charity, be it a school, polytechnic or university, cannot consistently with its charitable status promote and encourage the development of political ideas among its students has only to be stated to be seen to be untenable".It would be good to have an assurance from the Minister this afternoon that she stands by that interpretation of the law.
607 It would be particularly good to have that assurance because of our general anxiety that, in this whole initiative, the Government have trespassed onto territory on which they should never have gone. In the name of academic freedom, which is one of the finest traditions of the United Kingdom at its best, and the independence of our academic institutions, why should there be such intrusion? We have never heard it satisfactorily argued.
What we have now is a patchwork solution which is endeavouring to make the best of a totally bad situation. I do not want the situation to be made even worse and therefore I am afraid that I shall have to support this proposition.
§ 4.15 p.m.
§ Lord Beloff
I should like to join everyone else in thanking the Minister for the attention that she has given to the Bill and for the degree to which she has been prepared to accept views which were not originally those that she put forward. However, I am afraid that at that point I part from my noble friends in regarding the proposed amendment with some regret. It seems to me that what the Government legitimately required and the Chamber generally supported is completely covered by the first subsection, which states:The governing body of every establishment to which this Part applies shall take such steps as are reasonably practicable to secure that any students' union for students at the establishment operates in a fair and democratic manner and is accountable for its finances".Why does one need anything else? Surely that gives the universities the authority to monitor those desirable ends. One is bound to ask: why add to it with a whole list of details which are encompassed in the original subsection?
One might say that it did not matter very much, were it not for the fact—as this debate, the amendment of the noble Lord, Lord Flowers, and some of the remarks made by the noble Lord, Lord Judd, have already shown—that once one starts prescribing details, one runs into problems arising from the fact that the resemblances between the University of Cambridge and the colleges in Sheffield and Liverpool, let alone the Open University, are quite considerable. So for each of the subsections one is bound to ask: how will this operate in relation to a particular institution? If the Government had confined themselves to the first subsection, each institution could have had its own particularities looked after by its governing body. Surely that would have been much more agreeable and much less likely to lead to future controversies
We already know that even this amendment, upon which much work has been done and on which many consultations have taken place, is not the final version. The Minister has already said that she will be bringing forward further amendments to it at Report stage. I suspect that after the Report stage something else will be spotted which will not work in some particular context, and another amendment will be tabled at Third Reading.
I do not propose to go through every item and illustrate my point from each particular instance. A number of the difficulties were listed by the noble Lord, Lord Judd. I should like to take only one item to which he did not refer; namely, paragraph (k) about the 608 complaints procedure. I know that the National Union of Students, although generally pleased with the way things have gone, has made a proposal that the person who is appointed to examine a complaint should be someone from the institution itself, presumably some senior academic or administrative figure. The noble Baroness, who was good enough to send me a copy of her reply, rejected that proposal.
I should like her to reconsider it for one particular reason. Students are the very devil. We cannot tell what complaints will arise, and how serious or how trivial they will be. Suppose the chess club complains that week after week its room is occupied by the tiddlywinks club; is the university disposed to ask Lord Justice Scott, with his usual entourage of distinguished QCs, to examine the complaint regarding the tiddlywinks club? Furthermore, the university must satisfy itself that the complaint has been dealt with. It can only do so by exercising its own authority. Mr. Justice Scott, or his equivalent, will have disappeared. Surely it is better that the complaint be investigated by the body which must put it right.
One must not forget that the student union—that all-embracing term which arises in the affiliations question, on which I do not propose to go into detail—embodies or provides for a large number of separate societies. The figures that have been given vary between 50 and 100. With 100 different student bodies one or other will be complaining a great deal of the time. If the matter had been left to the universities and we had been asked to deal with only the first sub-section, it would not have occupied so much legislative and administrative time nor led to what is the main point in regard to the other questions raised; that is additional expenditure by the universities which they could much better spend on their proper tasks.
§ Earl Russell
I have not taken part in the negotiations which led to this settlement. That gives me an advantage. I have only one thing against the body of speeches from the Benches opposite; that is, that they have not praised the settlement highly enough. That is because of their natural modesty since they have been involved in the detail of making it. As I have no such inhibitions, I can say that the settlement is not merely good, it is excellent.
We owe thanks to the House as a whole. We owe great thanks to the noble Baroness. The noble Baroness will forgive me for saying, but she is not generally regarded on this side of the Chamber as the easiest Minister to persuade. On the other hand, once she is persuaded, she is the most useful Minister. Things happen. Once the noble Baroness is persuaded then her energy and determination, her attention to detail and care in working out the exact wording are unrivalled. She has shown all those skills on this Bill and I thank her very warmly indeed.
I should like to join in the thanks to the Delegated Powers Scrutiny Committee which has won its spurs on this Bill. Clause 20, in its old form—I shall look back no further than is necessary—was as much a threat to this House as it was to student unions. I hope we can now take it as recognised practice, as was said by the 609 legislative commission of the Hansard Society in its memorandum to the Delegated Powers Scrutiny Committee:We emphasise that statutory delegation should never leave an Act bare of everything except a framework of ministerial powers, with all real substances being left to ministerial regulations, etc.".That is a point for the future as well as the past. I have listened to a good many settlements in this Chamber. One can star them as one can star hotels. A one-star settlement is in fact a ceasefire. A two or three-star settlement is an honourable compromise. But it is like a Neapolitan ice cream; one looks at the amendment and one can see where the concession to one side stops and the concession to the other side begins. Very occasionally we get a four or five-star settlement in which the scrum has wheeled; the objectives have been redefined and each side can take the victories of the other side as triumphs of its own. In my opinion this is, at worst, a four-star settlement and if I probe it in detail, as I must, I hope and believe that it will become a five-star settlement and be capable of lasting with loyalty and affection for a generation.
Both sides learnt a great deal during the debates on the amendment. The Government understood more than ever before what student unions are. They have the same sort of relationship to student life that the facilities of this House do to parliamentary life. It is in that light that the Government learnt to understand much better than before what is meant by "opting out". In particular, in that context, they have no effect on the funding mechanism.
The Government originally talked of abolishing the closed shop. One of the reasons why they ran into difficulties in drafting is that it is difficult to draft a Bill to abolish what does not exist. That idea, as I understand it, has been abandoned. Those of us who were on the other side of the argument have learnt, as that agenda has been removed, that there was not in fact a hidden agenda. We understood that the Government's concern with free speech and fair play is perfectly genuine. It represents values which are shared by us and by those in charge of the National Union of Students. With that understanding we have seen how to put together a clause which embodies best practice and I and the National Union of Students entirely agree with the Minister that it does embody best practice. Therefore, we will be able to approach the job of preserving free speech and fair play with a consensus of support all round the spectrum and have much more chance of success than we ever would have with anything resembling the original Bill.
We must also record our debt to Lorna Fitzsimons of the National Union of Students, for it was she who two years ago began the move to bring the National Union of Students in this direction. I heard her arguing it to the Liberal Democratic youth and student fringe meeting at our Harrogate Conference two days before Black Wednesday. It was an extremely able performance. What we have now is what she wanted as much as it is what the Minister wanted.
There are a few points of detail about which it is necessary to ask. We must ask about the rights of non-members and of opting out. In particular, we must 610 ask whether it is understood that they can only use student union facilities with the consent of the student union. There is an opinion from my noble friend Lord Lester of Herne Hill which argues that it would infringe the European Convention on Human Rights if that were not so. The National Union of Students, on that understanding, is perfectly ready to be co-operative on this, but that point is legally as well as practically vital. I am sure that we will have reassurance on it.
The noble Lord, Lord Judd, touched on the vital issue of Northern Ireland. Those of us who have read our newspapers this morning have been reminded of quite how vital it may be.
The point about all students other than non-members being entitled to vote extends the vote to part-timers. The National Union of Students welcomes that change. It gives rise to a certain number of complications. I have every confidence in the way the Minister is addressing it, though giving institutions the task of defining eligibility may on occasion cause problems. We will need to talk about the details of that, and I am sure that we will do it successfully.
What the noble Baroness said about affiliation I found extremely encouraging. She is doing what the college president of my own student union said was the best thing that she could possibly do. I agree with his judgment and with hers. I think that she has found the right way forward.
There is just one remark the noble Baroness made with which I do not agree. She said that students generally are not aware of charity law. Those who work in the student unions in general know a great deal about the requirements of charity law, and the ultra vires requirements bite a great deal more than she suggests. But that is a reason for believing that the settlement she has put forward is even better than she thought. It is in that spirit that I put the point forward.
§ 4.30 p.m.
§ Lord Rippon of Hexham
Perhaps I may follow the point that has been raised by the noble Earl, Lord Russell. I join him in everything that he said about the Minister, and I also thank her and the noble Earl for the kindly words that they had to say about the scrutiny committee. We appreciate the way in which the Government responded to our suggestion that in this particular case the House should look carefully at the proposal to delegate the power to regulate student unions.
There is something which follows generally from this; namely, that on the whole the Committee has been concerned with whether or not a Henry VIII clause is sufficiently narrow in its scope to be permitted, and whether there ought to be affirmative or negative resolutions in dealing with regulations. That alone is not necessarily enough in every case because what this has shown is that even if there is an affirmative instead of a negative resolution you never really get the opportunity to debate what is often the fundamental principle of the Bill. It is all very well saying that we agreed in principle that something should be done, for example, about students unions, but if that is to be contained in regulations which this House can only deal with either 611 by affirmative resolution or negative resolution, and in neither case take a vote and in neither case be able to make an amendment, it is clear that there must be circumstances in which your Lordships should have to consider from time to time whether the power should be delegated at all or whether the power should be clearly defined on the face of the Bill. I am glad to say that that is being done on this occasion, which gives not only one opportunity for consultation but two or three if necessary.
§ The Earl of Limerick
I am one of the few, it seems, whose name was not on this amendment. As long ago as 7th December, on Second Reading, I was less than complimentary about the approach then in Part II of this Bill, and was even so disobliging as to say with some force that if the Secretary of State was listening it was not apparent that he was hearing. I am very happy to revise that judgment and to welcome the evidence brought forward by my noble friend Lady Blatch this afternoon that not only was she listening but she was hearing, and she went on to get her department to act on the weight of the argument.
As my noble friend foreshadowed, there will be some tidying up to be done on this matter on Report, but it is not necessary to dwell on that. I merely mention in passing just two areas, both of which are included in the commentary from the CVCP. The first is the definition of services which may or may not be provided by non-members; the second is what one might term the policing of affiliations. I am sure that those can indeed be dealt with.
Listening to other speakers, it occurred to me that the noble Lord, Lord Judd, found fault in the name of those on the Benches behind him—and from where I sit that was not very apparent—that universities were singled out, it seemed uniquely, as bodies not entrusted to regulate their own affairs. He then went on to find fault with an amendment designed to facilitate that very self-regulation.
I reflected, in listening to my noble friend Lord Beloff, that if one adopted his approach a one-clause Bill in this House saying that sin is wicked and would be punished would be all that we need do from this time henceforward. I therefore suggest to those, like me, who opposed the approach of Clause 20 on Second Reading but saw merit in the development of the code of conduct as hinted in the old Clause 21, that this revised approach is entirely welcome. I believe that the Government now, with the benefit of the consultations that have taken place, and with due acknowledgement to all who participated, have got it right.
§ Lord Walton of Detchant
I propose to speak very briefly. Before doing so I must declare an interest—not so much as a former dean of a medical school or even as a former head of an Oxford college, but because 50 years ago I was president of a medical students' representative council and also for a brief period a member of the executive of the NUS.
May I say how much I welcome the work that has been done behind the scenes in relation to this Bill? I echo the warm congratulations which the whole House owes to the Minister for the work that she, and others 612 with her, have done in formulating this amendment, which strikes us as being wholly acceptable, with one or two minor points of detail requiring clarification.
It has been warmly welcomed by the Committee of Vice-Chancellors and Principals, and it has also been warmly welcomed by the National Union of Students. Several points have been raised by other Members of the Committee where issues still require a little clarification. The noble Baroness referred to some of these in her speech, indicating that she would be coming forward with certain further amendments at Report stage. We look forward to seeing those amendments.
The Committee of Vice-Chancellors and Principals is anxious about the question of affiliation and believes that it is a matter on which local interpretation and implementation must operate. While annual review of affiliations would be entirely acceptable, the committee takes the view that there is no need for annual ballots. Perhaps an affiliation ballot every three years would suffice so that each cohort of students would have the opportunity to express a view; and of course the points made by the noble Lord, Lord Flowers, about part-time students and those on short courses must surely be taken into account. It is important that ballots should not be triggered at the whim of a tiny handful of students. The institutional code of practice could indicate a simple procedure and a minimum number or percentage of students required for the calling of such a ballot.
The only other point to which I wish to refer is that mentioned by the noble Lord, Lord Beloff, relating to the complaints procedure. Those of us familiar with higher education institutions believe that within the bodies that serve the university, whether councils or courts or other comparable organisations, there will be a sufficient number of independent lay members who are familiar with the workings of the institution so that from the governing body one could readily select such an individual to take account of the complaints procedure as laid down. I hope that the Bill will not exclude that possibility and decide on having somebody totally independent of the institutions.
§ Baroness Carnegy of Lour
I tried to enter the debate right at the beginning—perhaps inappropriately —because I wanted to follow what the noble Lord, Lord Flowers, said when he referred to further education colleges. There is a view in another place among some honourable Members that this House tends to act as a mouthpiece for the university vice-chancellors. That is an unfortunate view. Of course there are many in this House who know what is going on in universities; we discuss it with a lot of knowledge, and we have done so on this occasion. If I may say so, it is very good to hear a noble Lord putting forward the case that particularly affects further education colleges and who involves himself in higher education. We must never forget that. I am very grateful to him for bringing forward that point. It seems to me to have a great deal of sense about it.
By the same token, in thanking the Minister for her extremely hard-working, tolerant and receptive approach to the whole matter, I should like to thank students all over the country who have helped noble Lords to understand the details of the problems of 613 regulating student unions by legislation. They have certainly helped me, and I am sure they have helped other noble Lords. They have done it responsibly and have been very careful about it. We should mention them, because we are in a sense speaking for them as well when we talk about student unions. I hope that as time goes on we shall carefully balance our discussions about further education to make sure that we look at all points of view and are not seen by the country at large and honourable Members of another place as simply paying attention to vice-chancellors. We feel that that is a danger.
§ Lord Pearson of Rannoch
I join with others in welcoming new Clause 20. In doing so I seek clarification of the right of non-members, briefly touched upon by the noble Earl, Lord Russell, and my noble friend Lord Limerick. Under subsection (2) (c) a student has the right not to be a member of a union or indeed of an association. I appreciate that under paragraph (k) there will be a new complaints procedure and that under subsection (3) the governing body will have to prepare and issue a code of practice.
My question for clarification was inspired by a briefing document from the Committee of Vice-Chancellors and Principals which I received today. In touching on student union membership, it says that student unions cannot by law be required to provide services for non-members. The CVCP believes it important that the provision of services to non-members must be left to local agreement between the institution and the union and that clear guidance must be given to incoming members about their rights of participating in union affairs, and so on. My question concerns their rights of participation in other activities, such as my noble friend Lord Beloff's tiddlywinks club, chess club or indeed the rugger club. My understanding is that the finance for those activities comes through the block grant to the institution. I therefore trust it will be possible for the institution to arrange matters in such a way with the union that non-members are not in any way disadvantaged as regards the activities they wish to pursue.
Baroness Darcy (de Knayth)
I, too, welcome the new clause most warmly, although I feel that anything I say may be slight bathos after the splendid welcome by the noble Earl, Lord Russell. It is certainly a great improvement for all students and, as the noble Baroness, Lady Young, said, a workable solution. I too thank the Minister for being willing to reflect upon and discuss this matter. For students with disabilities there are two particularly welcome aspects. The clause means that unions can continue to provide essential welfare services and their valuable campaigning work. Many institutions have improved their facilities as a result of that.
I was slightly worried about one point in relation to subsection (2) (j): affiliation to external organisations. I hope that the Minister can reassure me. The letter that I received today, together with what she said in the Chamber when she introduced the clause, almost does so, but I would be grateful if she would respond to my 614 point. I am thinking of Skill (the National Bureau for Students with Disabilities), of which I have the honour to be president. That charity provides information and advice to disabled students. It has 46 student unions affiliated to it at the moment. In a sense, it is a symbiotic relationship, because the unions benefit from Skill's expertise and Skill needs the union membership to be sure that its work is focused upon students. It is a very important service for those who need it but it serves only a very small proportion of all students who may not appreciate the need to affiliate. Skill fears that a secret ballot may mean that fewer unions are affiliated. I look forward to hearing the Minister's reply, and I hope for a firm assurance on that point. I do not believe it will be necessary to go to another stage in order to sort it out. Meanwhile, I echo my warm support for the new clause as a whole.
§ Lord Addington
I thank the Minister and all noble Lords who have helped in reaching this compromise. I give special thanks to the Minister who was, I believe, under considerable pressure from other quarters not to change the original plan. I thank her very much for having listened to her colleagues and the rest of the Chamber.
I join the noble Baroness who has just spoken in commenting on subsection (2) (j). As the Minister spoke rather quickly, perhaps she can clear up the position of what happens when one is about to join outside bodies, particularly sporting bodies, because of the huge numbers involved. There are dozens of such bodies—everything from athletic associations to rugby clubs. Perhaps she can give the Committee a slightly more comprehensive idea of the criteria for joining those bodies and what would be the sort of threat to their membership, if that is not too combative an expression, or what pressure would have to be applied before this would be challenged. If we have to hold annual ballots and the sporting bodies will have to be affiliated to a body to take part in outside competitions that effectively means they will be able to participate only against opposition other than in their own university about one year in three.
I should like to add one small gloss to the amendment proposed by the noble Lord, Lord Flowers. I am the governor of a sixth-form college which has 1,500 16 to 19 year-olds studying full time and 3,000 adults studying part-time, mostly in the evenings. I do not see any immediate prospect of the two student bodies being at war over who controls the students' union. I do not see any immediate prospect of our being given any funds to run a students' union, but since we are required under this legislation to set up the structures I would appreciate having the flexibility to keep the interests of the two very different student bodies separate. Indeed, if one goes on to consider the further education and tertiary colleges that the noble Lord, Lord Flowers, talked about, there are at least three different student bodies within those organisations. We need to be able to provide separately for them and to balance their interests, not let one group dominate the others.
§ Baroness Blatch
I am deeply appreciative of the comments that have been made, but I have not done it on my own. I have had a great deal of support from others. However, I am most grateful for what has been said.
I say to the noble Lord, Lord Flowers, who spoke after me in the debate—it seems some time ago—that I will read what he had to say and consider the whole issue in the light of his remarks and those of other noble Lords and indeed of my own views on the issue. I should just like to flag up one particular difficulty that I am advised may be a problem. The European Convention on Human Rights may prevent our giving or denying the student a right to vote by reference to course length. The imposition of this measure may interfere with the student's right to associate or not associate with a body. I also have to take that into account, but I will take advice on that matter between now and the next stage. I know that concern about the whole issue is shared by my noble friends Lady Perry and Lord Lucas.
The noble Lord, Lord Judd, asked how unions operating on many different sites would be able to handle the complex balloting procedures. I rather hope that if they claim to be efficient they know where all their students are, wherever they are located. For example, although students may be scattered all around Sheffield—and I have visited that establishment—I know that the union can be in touch with all its students.
I wish to put into context what we are considering here. Whatever the costs of a ballot, set against, for example, Leeds University passing over £72,000 of its funds to the National Union of Students, I think that if members wish to have a ballot and query whether £72,000 should pass to an outside body—whether it be the National Union of Students or any other external body—that seems to me highly appropriate. Therefore, the costs of a secret ballot would be quite insignificant set against the sums of public money that are being spent in the name of an institution.
My noble friend Lord Beloff asked, "Why add to the preamble?"—that is, subsection (1). There are a number of principles that we believe it is important for all institutions to address. If institutions want to address other principles, it will be for them to do so, but I think that it is important that we set out the framework on the face of the Bill.
My noble friend Lord Beloff also asked, "Why prescribe at all in law because different institutions operate in different ways?" That is precisely the point addressed in the amendment. The responsibility for putting the requirements into action will lie with the particular institution concerned. It will be for the institution to introduce those requirements in its own way. The provisions offer flexibility to operate and address specific points of principle in a way that makes sense. That is where the words,take such steps as are reasonably practicable",come into play as they relate to each institution.
My noble friend Lord Beloff was also concerned about the complaints procedure. He used a flippant example of being subjected to an elaborate complaints procedure. We expect most campuses to deal with most of their problems in the way that they have always dealt 616 with them—on a day-to-day basis. However, there will be times when a matter cannot be resolved at campus level. It is sometimes in the interests of the governing body of the campus that an independent arbiter be brought in to help in the resolution of a problem. Not all problems are trivial; some are extremely serious. Therefore, it is no bad thing to have an external element.
My noble friend also said that it is possible that even at the next stage we will find little things wrong with the Bill and that we will resort to more changes. I make no apologies for that. We shall go on talking about the Bill until it receives its final blessing from your Lordships' House and moves on to another place. That is what we are about; we are a revising Chamber. Where we recognise that there is an issue to be investigated or explored further, we shall, where possible, continue to explore it. We hope to pass the Bill on to another place in the best possible shape.
The noble Lord, Lord Judd, was concerned about political campaigning. I should say first that the example that the noble Lord gave falls entirely within charitable rights. Any activity that is undertaken by any student or body of students which furthers their education or interests would be entirely consistent with charitable law. However, if in the course of that activity the students caused damage to people or property, the activity that had been entirely legitimate to start with could turn out to be ultra vires and outside the law. It is important, therefore, that students understand the limitations of acting within the charitable law. The idea that we can pass laws in this House to prevent students from campaigning is forlorn.
§ Baroness Blatch
I shall come to the Scott judgment in a moment. That judgment, which was referred to by the noble Lord and others, was helpful in clarifying the extent to which unions which are charities may engage in political activities. It is not for Ministers to agree or disagree with the judgment. That was the judgment and we simply accept that it is the latest clarification of the issue. The essential point is that unions should engage in political activity only to further the interests of their members. They should not spend public funds in pursuing causes which have no such connection. Therefore, if there was another case which raised that question it would be a matter of challenge. We have brought to the notice of students the fact that if they are unhappy about particular activities they can exercise a challenge.
The question "Why regulate for students?" has been posed. The noble Lord, Lord Judd, gave three examples: tobacco companies, water companies and banks. I am not sure whether the noble Lord gave any great thought to what he was saying because the water companies are subject to regulation. There is a regulator specifically for the water companies. The banks are subject to financial regulations and the tobacco companies are subject to advertising standards regulations. But all those bodies 617 are dealing with their own money. They are not dealing with taxpayers' money, so the noble Lord has not put forward a correct analogy.
I was asked about our feelings on opting out on either political or other grounds. We shall not make judgments about the reasons a student prays in aid for opting out. We believe that it should be a matter for the student and his or her conscience. I happen to believe—this is a personal view—that with this framework (which protects the rights of students and makes the system more transparent) the case and requirement for opting out will be minimised substantially. I do not expect it to be a common occurrence, but that is purely a personal view. Students have that right.
The question of Northern Ireland was raised, but these measures do not apply to Northern Ireland.
There are people who, on the grounds of conscience, do not join anything. The Plymouth Brethren are one such group. It is important that unions and governing bodies recognise those conscientious reasons. The framework provides a number of safeguards for students, and we have made accountability explicit on the face of the Bill.
The noble Lord, Lord Judd, asked to which offices the ballots apply. He raised an important question about what happens when the sabbatical officer is not on campus. If I may, I should like to return to that question later. I would expect the requirement to apply to the union president and to others with a significant role in running the union. I think that it is obvious that appointments to the main positions in a student union (for which there is normally a ballot which at present takes place at that one meeting a year) will be subject to the main ballot. I am sure that noble Lords would not want me to be over-pedantic and over-prescriptive in the Bill. What we have laid down is the framework. As I said, I take note of the noble Lord's other points about the sabbatical officer not being on campus.
I think that I have put the cost of ballots into context. We are talking about large sums of money passing from one institution to external bodies. I think that it is entirely appropriate that the costs of the ballot should be seen in that light.
The noble Lord, Lord Judd, was concerned about elections. It will be for the governing bodies to decide how to satisfy themselves that union elections are fairly and properly conducted either directly or through delegation to an appropriate official, such as the returning officer. It is important to ensure that that is not delegated to the union itself. That would not satisfy the democratic principle.
The noble Lord, Lord Judd, asked for my views on opting out of a student community. I think that I have addressed the points about opting out. It must be a matter for students themselves. The reforms are not about opting out of the student community. All students are automatically part of an institution's community of students. Is it right, however, that a student should be forced to belong to a student union which may carry out political activities with which that student disagrees? I think not. Our reforms are intended to provide choice and, where students decide to belong to their union, to 618 ensure that that union operates to the highest possible standards in achieving democracy and accountability in its affairs.
The noble Earl, Lord Russell, and my noble friend Lord Pearson were concerned about the rights of non-members. Students may lose privileges through opting out of student membership. That is their right and their choice. As the noble Lord said, non-members may not have access to all the rights that are conferred on members. However, I believe that institutions and unions can work together to ensure that, by exercising their democratic rights to opt out, students do not lose access to vital services, such as welfare services. We lay a moral obligation on institutions to think about this matter. It is important to note that it will be for institutions to decide how to provide for opted-out students either directly or through the student union.
I hope that institutions will make clear to young people, as they become members of an institution, just what opting out will mean, and the services available for non-union members as well as union members so that young people will know what they are opting out from, and will not take a subjective judgment depending on who is opting out from the union. I have to repeat that we are up against the European Convention on Human Rights. We are not allowed to impose upon a governing body or students' union a requirement that they make particular provision for any particular students.
The noble Lord, Lord Walton, referred to affiliation ballots being held only every three years. As I have said, I shall be bringing forward detailed provisions for ballots on Report. I believe that students should be able to ballot annually, if they wish. Three years does not coincide with course length in all cases, but requirements for ballots should be triggered by students. I take the point made by the noble Lord. We need to make it a reasonable number of students so that we do not have the nonsense of ballots being triggered for no good reason. Therefore I shall take that point into account when I come forward with the amendment.
The noble Earl, Lord Russell, commented that students' unions know what the charitable law is about. While many officers in students' unions may know what the charitable law is about, many students at large do not. Our proposals are intended to bring the restrictions of the charitable law to the attention of all students so that they have the information they need to decide whether the students' union is spending taxpayers' money on legitimate activities. I hope that the students receive the information in an intelligible form and that the Plain English Society will have something to do with the prose that is given to students.
I thank my noble friend Lord Limerick for his comments. My noble friend is not in his place. I was going to apologise for being rather late in replying to a letter that he sent me. He asked how we were going to monitor affiliation. From the way in which we are setting up the framework, it seems to me that it is a matter for students. First, the students' unions will affiliate to outside bodies. The information will need to be made available to students, but if they do not like what they see—whatever the percentage trigger point is—it will be for them to trigger the need for a ballot.
619 I can give the noble Lord, Lord Addington, an assurance on the point he raises about clubs and societies on the campus. The affiliations with which the Bill is concerned are those which are made by the students' union in the name of the generality of students. All the small clubs and societies —the rugger club, the tennis club, or whatever, affiliating to the national society—will not be affected by the measures contained in the Bill.
There is no risk to the affiliation about which the noble Baroness, Lady Darcy (de Knayth) was speaking. It is inconceivable that, whatever the trigger point is, a number of students will come together to vote that there should not be affiliation to a body representing the interests of students with disabilities. I believe that that is an unfounded fear.
We have put in place a framework with maximum delegation for the operation within that framework to the institutions themselves. I hope that it meets with the Committee's approval.
§ 5 p.m.
§ Lord Flowers
I have one comment about Amendment No. 85A upon which the Committee was good enough to listen to me. I should like to thank Members of the Committee who have supported me on this general matter. I should like especially to thank the Minister for understanding so clearly the importance of the issue that the amendment addresses, and for promising to look at it further. The Minister warned the Committee that we may have to take into account the European Convention on Human Rights on limiting to a small extent the students who can take part in elections. We shall clearly have to think about that point. When she takes the matter back, will she be good enough to regard it as applying to subsection (2) (j) as well as to subsection (2) (d)—the secret ballot affecting affiliation?
In view of the Minister's generous undertaking to take the matter back, I beg leave to withdraw the amendment.
§ Amendment No. 85A, as an amendment to Amendment No. 85, by leave, withdrawn.
§ On Question, Amendment No. 85 agreed to.
§ [Amendment No. 85B not moved.]
§ Clause 21 [General conduct of students' unions]: [Amendment No. 85C not moved.]
§ Clause 21 negatived.
§ Clause 22 [Orders, regulations and directions]: [Amendment No. 86 had been withdrawn from the Marshalled List.]
Baroness Blatch moved Amendment No. 86A:
Page 12, line 29, leave out ("or regulations").
§ On Question, amendment agreed to.
§ [Amendment No. 87 not moved.]
The Lord Bishop of Guildford moved Amendment No. 88
Page 12, line 32, at end insert ("save that no order shall be made under section 8(4) above unless a draft of the order has been laid before and approved by a resolution of each House of Parliament").
§ The right reverend Prelate said: Perhaps I may crave the indulgence of the Committee to raise this matter briefly. I recognise that it was grouped with the other amendments, but they came up well past midnight on the first Committee day. Just at that time of night when my powers of resilience and concentration were beginning to diminish I gained the impression that the Minister was becoming more robust and vigorous. She romped home while I was still fumbling for the starting line.
§ This is a matter of some importance because it touches upon an issue brought before us by the Delegated Powers Scrutiny Committee. So we should not, on the brief debate that took place at midnight, just allow the matter to go by. Perhaps I may put my concerns to the Minister in the form of questions. The amendment of course suggests that the Secretary of State should have to use the affirmative procedure for giving directions to the Teacher Training Agency.
§ Under Clause 8, he can give directions of a general kind or of a much more particular kind. My concern is that if he can give general directions is it, for instance, possible for him, under Clause 8, to give a general direction to the Teacher Training Agency that the balance referred to in Clause 6 between school-centred courses and other courses should be of a particular proportion? If that is so, it is a major policy decision, and I am rather anxious to know whether that can be done without Parliament having any power to look at the proposal.
§ Again, under the general direction, is it possible for a future Secretary of State to indicate to the Teacher Training Agency that it should not fund, or not fund completely, the voluntary colleges? That again would be a major shift of policy, and I am not at all sure that he should have the power to do that without the scrutiny of Parliament.
§ Under the more particular provisions of Clause 8, it seems to me that the Secretary of State would have power to name a particular institution and to indicate that he is not satisfied with its financial management, and so to direct that it should not be funded any further. Again, that would appear to me to give him power to withdraw all funding from one of the voluntary colleges. I must of course say that I am speaking in particular on behalf of the voluntary colleges. It is for that reason that I have some anxiety about the power.
§ We are not likely to run into that kind of difficulty with the present Administration and the present Ministers, but we are providing legislation for the future. We have to come to terms therefore with what a future Secretary of State might do when the situation is different. In its memorandum to the Delegated Powers Scrutiny Committee, the Department for Education claims that that is a fallback power which is not to be used under any circumstances. It further states of course that all it does is to replicate a power which already exists in the Further and Higher Education Act 1992. I accept that. The department says that that power has not been used under that Act, but the Act has only been up and running for 18 months. So that is no clear guide to us.621
§ If the power is a fallback one and to be used only under extreme circumstances, surely the argument is all the stronger that it should be subject to the affirmative procedure. We have here, if I may dare to suggest it to the Committee, a much more serious point which in the small hours of the morning of the first Committee day we did not have the chance to look at as seriously as we should have done. It is for that reason that I thought it right to take the liberty of bringing it before the Committee again this afternoon. I beg to move.
§ Earl Russell
I shall not gild the right reverend Prelate's lily but I shall support his amendment.
§ Baroness Blatch
Although I take the point about the lateness of the hour, it is unfortunate that we had a discussion on Amendment No. 57, with which this amendment was coupled. Even at that late hour I should have been more than pleased to have heard what the right reverend Prelate had to say. The amendment has the same effect as Amendment No. 57, which we debated on the first day of the Committee. Nonetheless, it is important that we discuss the matter today.
The Secretary of State's direction-making powers under Clause 8 are exactly analogous to those that he already has under the Further and Higher Education Act 1992 in respect of the existing funding councils. I recognise that this does not alone justify the powers, as I am sure the noble Earl will warn me. However, I mention it to clarify that there is nothing new or sinister in Clause 8.
The Secretary of State has two direction-making powers under this clause. First, he can make general directions to the agency and to Welsh Higher Education Funding Council about the exercise of their functions. It is unlikely that we should ever need to use this in practice since we expect the agencies to use their funds effectively and prudently. There has been no occasion remotely to consider using them. But since the Secretary of State is ultimately accountable to Parliament for the use of the agencies' funds it would be improper for him to have no such power when in practice he could one day face a real need for action. And if that need did arise— following attempts to persuade the agency by non-statutory means—it would almost certainly require speed, which the affirmative resolution procedure does not allow.
Secondly, the Secretary of State may also make specific directions to the agencies about their support for individual institutions where he has evidence of financial mismanagement at those institutions. He may, for example, need to direct that the institution's funding should be stopped in whole or in part until the matter can be investigated, in particular if there has been serious misappropriation of public funds. Again, this is a power which a prudent Parliament should expect him to have and in the event of this procedure being needed speed will be of the essence.
I recognise that the right reverend Prelate is concerned about the position of the Church colleges under a future Secretary of State. But the exercise of his powers under Clause 8 would have to be reasonable. That is a charge he would have to defend. They could 622 also be negatived by Parliament as we have made directions under this clause subject to the negative resolution procedure. Nor must this clause be seen in isolation. The Teacher Training Agency is placed by Clause 6(4) under a duty to have regard to the desirability of maintaining a balance between the support given to denominational and to other institutions. That is an important extra safeguard which is there because of the high value we place on the Church colleges. The balance between school-centred courses and non-school-centred courses means that these measures cannot cut across the discretion under the Bill. The answer is the same in respect of denominational colleges. Again, this discretion would not be affected.
§ The Lord Bishop of Guildford
I am grateful to the Minister. I accept her rebuke that I should have raised these points in the middle of the night, whenever it was. However, I nodded because I fell between two other amendments for which I was wholly responsible and I did not leap to my feet in time to support the noble Lord, Lord Judd. I am, in a measure—but only in a measure—reassured by what the Minister said. However, I recognise that I should have raised the matter earlier and I do not believe that it is right to press it further at this stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 89 had been withdrawn from the Marshalled List.]
Baroness Blatch moved Amendment No. 89A:
Page 12, line 33, leave out ("or regulations").
§ On Question, amendment agreed to.
§ [Amendment No. 90 not moved.]
§ Clause 22, as amended, agreed to.
§ Clause 23 agreed to.
§ Schedule 2 [Consequential amendments]: [Amendments Nos. 91 to 96 not moved.]
§ Schedule 2 agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported with amendments.