Higher Education Bill

HL Deb 10 May 2004 vol 661 cc103-36

House again in Committee.

Clause 12 [Qualifying complaints]:

Baroness Sharp of Guildford moved Amendment No. 16: Page 5, line 19, at end insert ", or () as a member of staff or former member of staff of that institution

The noble Baroness said: The purpose of Amendment No. 16 is to extend the remit of the Office of the Independent Adjudicator to cover staff complaints as well as student complaints. This amendment is supported by both the AUT and the NATHFE, but not by Universities UK.

The key issue that is acknowledged on all sides is that the visitor system that pertains is archaic and needs to be brought up to date. The office of the independent adjudicator is to provide a modern framework for students which meets the requirements of Article 6 of the Human Rights Act 1998, which grants the right to "fair and public hearing" of disputes.

Staff disputes have also been subject to the visitor system, yet as far as they are concerned nothing has changed. Why should it be expedient to remove the visitor system from the students and yet not from the staff?

Let me make clear at the outset that we do not seek to broaden the adjudicator system. Those working at universities—both academic and non-academic staff—are covered by employment law and have rights of appeal under the employment tribunal system for issues that relate to employment. They are also protected in making complaints by the Public Interest Disclosure Act.

We do not seek to overturn those rights, but there are issues—such as those relating to academic freedom—that are covered by the current visitor system but are outside the employment area where the right of appeal to some independent arbitrator is necessary.

This was acknowledged in discussion in Committee in another place when the Parliamentary Under-Secretary of State stated, there is a problem with the role of visitors and whether that prevents people's ability ultimately to go to court … In a small number of cases, there is some ambiguity. The Government do not believe that the status quo is acceptable, or that the independent route that we are establishing for students is necessarily an appropriate route for staff complaints".—[Official Report, Commons Standing Committee H, 12/2/04; col. 93.]

I shall quote from an intervention in the same debate by the Member of Parliament for Leeds East, Mr George Mudie. He recalled how, when he was Parliamentary Under-Secretary of State in the then Department for Education and Employment in 1998, the issue of how best to deal with student complaints had arisen and the universities were given 12 months to sort it out. He said: We let the timetable of 12 months' notice extend to five years, and only now we are legislating. I suspect that we are legislating only because of human rights issues. If we let the matter go, it would be challenged in Europe. Indeed, the explanatory notes suggest that strongly. Mr Mudie went on to urge the Secretary of State to act now on staff complaints. He said: The solution cannot be left to the universities, and we will not get another chance to introduce fresh legislation for a long time. We should grasp the opportunity now. The universities have had their chance and demonstrated that they do not have the will to act".— [Official Report, Commons, Standing Committee H, 12/4/04; cols. 95–96.]

Let me conclude by saying that it cannot be right that the current visitor system contravenes the Human Rights Act for students and not for staff. Mr Phil Willis, my honourable friend in the other place, withdrew his Motion in the hope that the Government would do as Mr Mudie suggested, and take the opportunity to come forward with some positive ideas. As far as I know, no further proposals have been forthcoming from either the Government or Universities UK or other parts of the university sector since that debate.

I raise the issue again because I believe Mr Mudie to be right: it is high time that reforms were on the table. Universities have been dragging their feet for too long.

It will be a long time before we have another opportunity to legislate on these issues. If the Office of the Independent Adjudicator is not the appropriate vehicle, let us have some other positive suggestions that we may get on to the statute book. I beg to move.

Baroness Warwick of Undercliffe

The amendment proposed by the noble Baroness, Lady Sharp, which would bring staff within the operation of the Office of the Independent Adjudicator, would very much broaden the scope of that office, as I believe she has recognised. I cannot support that, as I do not believe that it would be helpful to extend the OIA's remit so radically, and certainly not at this stage.

The Office of the Independent Adjudicator was created in response to a need identified by the Committee on Standards in Public Life and subsequently by the committee chaired by the noble Lord, Lord Dearing, demanding an independent element in student complaints procedures. That is what the proposal delivers. I am of course aware of the concerns raised by the Association of University Teachers that in some areas, outside employment-related issues, university visitors will retain exclusive jurisdiction for staff complaints—for example, in matters when it is alleged that an institution has failed to follow up on its own internal rules.

It has been argued that the exclusivity of the visitors' jurisdiction is contrary to Article 6 of the Human Rights Act, which specifies that a hearing should be conducted by someone who is independent. The problem here is the exclusivity, and it may be helpful to discuss that issue further, but to react to it by making all staff complaints subject to the jurisdiction of the adjudicator seems to take rather a large sledgehammer to crack a nut.

Most forms of university staff complaint were removed from the jurisdiction of the visitor by the Education Reform Act 1988, which also established the university commissioner's model statute. That provides for an appeal to an independent third party when internal complaints procedures have been exhausted—although that is of course restricted to academic and academic-related staff.

Notwithstanding the areas in which the visitor retains exclusive jurisdiction in pre-1992 universities, we should not lose sight of the fact that staff and students are in essence and in law very different categories. The relationship between higher education institutions and their students is distinct from the relationship between those institutions and their staff. All staff have the same legal rights and protections available to any other employee under existing employment law. If there is any dissatisfaction with the outcome of internal complaints procedures, these can be deployed so that staff have recourse to the Employment Tribunal Service to get independent, binding and, indeed, financial redress. For these reasons, I cannot agree that all staff complaints should be brought within the jurisdiction of the adjudicator, or indeed that the adjudicator is the appropriate forum for those complaints. Therefore, while I welcome the opportunity to debate this issue, I oppose the amendment.

I wonder if, while I am on my feet, I could briefly touch upon Amendments Nos. 17 and 18, both of which deal with the issue of—

Lord Lucas

I would really prefer it if the noble Baroness would wait until I have moved those amendments.

Lord Forsyth of Drumlean

I long for the moment when Universities UK has a disagreement with the Government on any issue. I am bound to say that I found these remarks quite inexplicable. There was a long debate in the House of Commons Standing Committee about this. The Minister admitted that there was confusion and a former Education Minister indicated that he had thought that this would be sorted out in 12 months, as the noble Baroness, Lady Sharp, has pointed out.

As I understand it, it is not uncommon for people to be both staff and students in the university sector. Reading the proceedings in the Commons, it was not clear into which category they would fall. If someone was a member of staff and also a student he would presumably have access, although it was not clear to me what the position was. Perhaps in her response the Minister will say what the position is for the admittedly small number of people in this hybrid category.

What I understood to be the genesis of this was the Government's decision to incorporate the European convention in the 1998 Act and the need to act in respect of students. For the life of me, I do not see why that should not apply to staff. This seems to me to be an eminently sensible amendment and, as the noble Baroness, Lady Sharp, has indicated, a very considerable period of time has elapsed in which people could have thought about some of the difficulties. I find it quite extraordinary that we are told that the university visitor system is anachronistic and does not stand the tests required by the European convention so that it is necessary to make a change in respect of student complaints, but that it is not necessary in respect of staff complaints. I hope that in her response the Minister will give us some indication that at a later stage in the Bill the Government will get their act together and come forward with proposals.

Things may have changed in government since my day, but we would not have been allowed to present a Bill to the House of Commons by L Committee without these matters having been resolved. We used to sit in the Star Chamber and cross-examine on the details of a Bill. Quite honestly, I think that it is quite unacceptable for the Bill to have got to this stage, despite the proceedings in the Committee stage of the House of Commons, and for the matter to be unresolved. It is very disappointing that Universities UK is taking such a laid back view of an absurd anomaly, particularly in the light of the representations that are being made by other bodies that represent the interests of staff in the universities.

More to the point, several people on the other side of the House in the other place, with experience as Ministers in the department, also felt uneasy about it.

Baroness Sharp of Guildford

Perhaps I should thank the noble Lord, Lord Forsyth, for his intervention here. Although I framed my amendment in terms of adding staff to the office of the independent adjudicator, I expressly said that this situation is not satisfactory. Four months ago in Committee in the other place it was agreed that the situation was not satisfactory and that new ideas needed to be put forward. I do not think that either Universities UK or the Government have moved an inch on this one since that time.

9 p.m.

Lord Triesman

Let me start by trying to set out where I think most of the routes to redress lie and then see whether we have a pattern that would be acceptable in the legislation as it is described.

First, it is worth recalling—this point came up on Second Reading—that legal protections in relation to academic freedom have been expressed in legislation introduced by the previous government and by the present Government. The present Government are a signatory to the UNESCO normative instrument on academic freedom and the rights of academic staff—indeed, the rights of academic staff form part of the title of the relevant UNESCO convention. I do not think it can be said that there is neither a right that is operable nor a means of dealing with that right. Having represented people who had issues of academic freedom that they wished to present to their universities, I always believed that the trick was to try to do so in a way which also protected the independence and the autonomy of the universities under their charter or act of government. Broadly speaking, one of the great protections of academic freedom is that the institutions themselves are protected from governments of whatever kind, and from interventions of governments to direct them to do things which might be politically expedient when they might wish to take a course of action which was unpopular, not politically expedient or whatever.

The visitor system, which no doubt has its defects and is based in antiquity, was none the less a rather interesting historic compromise which produced that balance. I can say from first-hand experience that many of the cases where issues of academic freedom were to be tested were tested in that rather odd environment of the visitor, and tested extremely vigorously. For the most part, I believe that that resulted in the protection of academic freedom. Another scheme is not necessary for that purpose.

I do not believe—although I believe that one or two trade unions do believe it—that protection is needed in the sense that this amendment suggests in relation to whistleblowing. There is perfectly competent legislation on whistleblowing. The way of judging that is to see whether people blow the whistle from time to time in universities, and get a hearing, and get the issues that they have raised resolved. I would be interested to hear of examples where someone has been a whistleblower but has failed to get the issue resolved. Many of the other kinds of complaints are routinely brought to the trade unions of members of staff. Those unions represent them on those questions, particularly on procedural matters.

But having said all of that, I entirely understand the arguments that there may be procedural matters, or defects in procedural matters, which are not fully covered by any of the mechanisms that I have described, or, in employment law, by the right of going to the employment tribunals, or, indeed, to the courts. I want to try to look at the matter with that as a background sketch of the processes that exist because I want to start from the point that we are not living in a world quite so defective as perhaps has been suggested.

The noble Baroness, Lady Sharp, and I would agree that the current position regarding some complaints is not wholly satisfactory and that there are other issues which need to be resolved in that area. If there are to be other forms of resolution, should they override all the existing arrangements and, indeed, the arrangement for the adjudicator in relation to student complaints? In the previous discussion we considered whether further education students should have the same right of access to certain provision. I imagine that not everyone was agreed about the outcomes of that discussion but none the less we had a very non-partisan discussion. We weighed the merits of doing one thing or another.

I made the point, which not all noble Lords agreed with, that changing the parameters in which the adjudicator worked to include vastly more people in the many different types of institutions would not be a satisfactory way of launching the adjudicator's role. I suspect that trying now to introduce the adjudicator's role into this narrow area, in which I can understand that staff may feel that they do not have adequate redress, would hardly improve the position. I put that point to the noble Lord, Lord Forsyth, who has supported the amendment, in what I hope he will accept are objective terms. I am simply asking whether this is the right way to achieve that objective.

Universities UK and the standing committee of principals consulted widely on the establishment of an independent reviewer to deal with unresolved complaints of all kinds. Across the higher education sector there has not been, as yet, a clear agreement about what should and should not be done about an unusual and narrow set of examples that may have fallen through the lattice work that I have described.

I shall not continue at much greater length about the matter, because a number of the points about the other areas in which people may seek redress have already been made. However, I wish to answer a specific question on the issue of where the jurisdiction lies when a student is also teaching or conducting research as an academic. The situation is perhaps clearer than noble Lords have suggested. When someone brings a complaint about the handling of their position as a student, there is no doubt that the independent adjudicator is the appropriate person to address. Where someone brings a complaint as a member of staff, I hope that I have suggested that there is a set of well established places to which that objection can be taken. I have been trying hard to think of any cases that I knew about, or know about, which might not have fitted that description. that might have given rise to ambiguity. Although my imagination can be fanciful on occasions, I really cannot recall any.

Lord Forsyth of Drumlean

I am grateful to the Minister for giving way and I am sorry that he cannot think of an example. Perhaps I am being slow, but could he explain why he thinks that it is acceptable that someone who is both a student and a member of staff has to sit down and work out, "Am I making this complaint as a student or as a member or staff?". If he decides, "I am making the complaint as a member of staff", he then goes to a visitor—and the visitor system is one which the Government consider to be anachronistic and not effective, which is why the change is being made. Can the Minister not see that it seems a rather odd position for the Government to take? I agree that there may not be consensus, but the had news about being in government is that one has to take a decision and work out what is best. Are the Government not guilty of taking the easy way out and leaving something of a muddle?

Lord Triesman

That is a strange characterisation of events and I shall try to say why, because I have, plainly, not been able to describe adequately thus far the different propositions that are involved in this matter. For the most part, those students who are also teaching or involved in research tend to be people who are at least postgraduates and, in many cases, are taking their PhDs or taking a course of study which is, at least, at that level. I have yet to encounter such a student who was unable to work out objectively the circumstances about which they were complaining. They tend to be quite bright. The distinction which I believe that they will find easy to make is that if one is giving a lecture and one feels that there is something about the conditions of one's employment that is fundamentally wrong, it is clear that that is not a problem that arises because one is a student.

If one has process issues that are wrong, or other significant issues that have arisen in the course of one's postgraduate study or one's doctoral research, then it is clear that they are wrong as a result of being a student. It would be very hard to mistake the two sets of conditions.

I apologise if I have not already said that there are known remedies in almost all the classes of cases that one might face as a member of staff. In the case of employment issues there is a remedy through employment law and the tribunals. There are remedies relating to academic freedom, which, for good historic reason, have involved visitors and continue to do so. As I indicated, there is a class of cases that may not fall into either category and that may give rise to the difficulties that, I accepted, could occur, particularly with regard to human rights legislation.

In that light we certainly will be prepared to look at that area, where there may be a lack of definition that is precise enough to meet the objections made.

Lord Baker of Dorking

I was rather encouraged by the Minister's observation that he could think of no examples that did not betray a degree of ambiguity in this area. Two such cases occurred to me. One arose during my watch as Secretary of State. At one university there was a don who had no students. His courses were advertised—I think it might have been philosophy, but I would not want to put a slur on the subject.

Baroness O'Neill of Bengarve

That is unlikely; it is a rather well subscribed subject.

Lord Baker of Dorking

I do not want to insult any subject, particularly those of the humanities. Let us forget the subject. The don had no students. He was always photographed lounging against pillars as if he was waiting for his students to arrive. There was no redress. That is one reason that led me to try to do something to limit academic tenure. The university could not dismiss him, yet he was using resources that other academics felt should be spent on their courses of philosophy—or whatever it may be. I do not know whether such an issue would ever arise today. No employment tribunal would be involved in such a situation, because the don would have certain rights.

The other example is a little older. It occurred at my own college, Magdalen, at the turn of the last century. The clerical dean at college, Dean Thompson, who was immensely popular with the other college dons, wrote a pamphlet questioning the existence of miracles. The other dons liked him so much that they overlooked it. When he wrote another pamphlet questioning the virgin birth, the dons liked him so much that they kept him still in post. Then he turned to the resurrection. It was only after he had published a pamphlet questioning the resurrection that the visitor appeared—the Bishop of Winchester. He suggested in the mildest terms that it was a little irregular for a clerical dean of Magdalen College not to believe in miracles, the virgin birth or the resurrection, whereupon the dons of the college liked him so much that they kept him on as a history don. He became the most famous historian of the French Revolution. During my time at Oxford the key book was The French Revolution by Thompson.

I do not know whether the adjudicator would deal with such a case; all I know is that the visitor dealt with it marvellously.

Lord Triesman

I never had the opportunity to represent anybody before the Bishop of Winchester, but having heard the noble Lord's account, I greatly regret it. I would probably have won more cases.

I shall say a few words on the two sorts of cases. In the case of the lecturer who had no students, I shall deal with the absence of the students rather than the question of whether anyone took exception to his lounging wherever he lounged. I imagine that after a period he would have been thought to be redundant had it been any other line of work. However, this is not so much a staff complaint as an absence of work. The noble Lord, Lord Baker of Dorking, will recall that it was his government who introduced redundancy as a reason for which academics could be dismissed, even if they had tenure. That was contested hotly for some years but was resolved in the direction that the then government wanted. With great respect, I feel that, with the noble Lord's example, we are looking through the opposite end of the telescope.

As for the miracle of getting away with not believing in miracles, the virgin birth or the resurrection, I do not feel that I could properly comment. It is really not for me. However, people enjoy the right to academic freedom in the United Kingdom because we have sought to protect people in the academic world who have unpopular or unfashionable views. We have tended to think that, on occasion, they will turn out to be an exceptional history don, make a breakthrough in science or whatever else that academic freedom could lead to. That is why we protected it in law, and that is why the system for protecting it was bound to be rather strange. It is such a strange entity, but it is none the less of real importance to the university world. I would be surprised if, in general, people outside in some other form of review were able to deal with the situation as easily as somebody who was content to understand the core of the issue and defend the right of individuals to hold unpopular, unfashionable or anticlerical views.

9.15 p.m.

Baroness Sharp of Guildford

I am not sure whether the dean whom the noble Lord, Lord Baker of Dorking, mentioned was the same historian who persisted throughout the 1930s, as women's colleges expanded, in starting every lecture with "Gentlemen, … ". During the war, he was confronted by a lecture theatre composed almost entirely of women. He spied one gentleman at the back and began, "Gentleman, … ".

I do not suggest that such problems are likely to arise in many cases. As I suggested, a small number of ambiguities could arise where employment law is not appropriate. As I said, we are worried that, although the visitor system is seen as archaic with regard to students, it is not seen as archaic with regard to staff.

As the Minister recognises, I was trying to prod the Government and Universities UK to do something about the matter. In the other place, the Minister said clearly: The Government do not believe that the status quo is acceptable … There needs to be more work, reflection and thinking within the sector about appropriate vehicles with which to address staff complaints".—[Official Report, Commons Standing Committee H, 12/2/04; col. 93.] I moved the amendment to kick the Government into taking action on the issue. I hope that they will take the message. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Baroness Cox)

If Amendment No. 17 is agreed to, I cannot call Amendment No. 18 because of pre-emption.

Lord Lucas moved Amendment No. 17: Page 5, line 21, leave out "matters of academic judgment" and insert "judgments reasonably made as to the academic performance of a student

The noble Lord said: The amendment explores the meaning of the words "academic judgment" in subsection (2). I like my reinterpretation, but, as ever, the amendment is probing, and I do not want to be hung for the exact words that I have chosen. I hope that it is what is meant by academic judgment, although I failed to find the meaning set out anywhere.

Perhaps, for the convenience of the Committee and because it will apply to all the amendments relating to this part of the Bill to which I speak, I should give the Committee a little background. I come fresh from what I found to be the extremely bruising experience of taking a student whom I helped to mentor through an appeal against dismissal from an undergraduate course. Looking back, I feel that I failed, that the student was failed and that the university concerned behaved abominably. Everybody has ended up bruised and unhappy.

That affair is in the past. I am not trying to revive it and I shall not mention the institution or the course concerned. However, I want to do my best to ensure that the faults that occurred in this procedure or which I see in this procedure would be unlikely in the new system that we are putting in place.

The particular problem that relates to these words is that, on the part of the course concerned, marks had been given. The university appeal procedure clearly said that you were not allowed to question the marks. You were allowed to question only the procedure that had been used to arrive at the marks. But absolutely no information was available to anyone—not to the student or to me—despite repeatedly asking what the procedure was and despite going to lawyers. So it was extremely difficult—I repeat, extremely difficult—to challenge.

In the end, it was necessary to employ a blunderbuss and to hope that one of the bits would hit a vulnerable target. At the very end of the process, we began to get some sort of an answer. Ultimately, it was unchallengeable. The basis on which the marks were given was so obscure that there was no way to establish on what basis they had been given. Under ordinary circumstances, because of those rules, one would just have to admit defeat.

However, the particular circumstances of the student were that she was disabled in a way that made various bits of the course impossible for her to do in the form in which the university required her to do it. Rather than being given something else to do or some way in which she could half complete what she was being asked to do, she was required to sit out in those particular sessions. She was marked zero, but that zero mark counted towards her failure. No deduction was made from the score that she was supposed to have to meet.

Under those circumstances, to say that the mark is "academic judgment" is not right. There are other aspects of that judgment that do not properly count as "academic judgment". To say that a student has scored "x" in a particular paper must in the bare words "academic judgment" bear that meaning. It does not seem to me that that is what it should mean in this Bill. To my mind, in this Bill it should mean what I have put in the amendment. What should be protected is the, judgments reasonably made as to the academic performance of a student". To my mind, other aspects of that judgment were deeply unjust and should not be protected against review by the creature that we are creating in this Bill. I beg to move.

Lord Shutt of Greetland

In speaking to Amendment No. 17, I shall speak also to Amendment No. 18. I believe that the words "academic freedom" are liberating, but I am fearful that the words "academic judgment" are a hiding place. The noble Lord, Lord Lucas, has carefully crafted his amendment in order to get the right turn of phrase by referring to, judgments reasonably made as to the academic performance of a student". As regards this Bill and the whole issue of fees and loans, we will be in the business of value for money. More and more people will be saying, "Am I getting value for money for this course? Is it working out?" I, too, can recall circumstances where a goodly number of people embarked on a course at a certain university.

Three years later, a handful remained on the course and did not get very good degrees. Perhaps something was wrong with the course and the teaching. That would be something appropriate to complain about. The complaint would not necessarily concern one individual with a specific degree at the end, but something is wrong if one sees an abundance of students at one end of the course, but only a handful at the other. Given that, I worry about making the point about one particular student rather than about matters of academic judgment which, as I have said, is some form of hiding place.

In speaking to Amendment No. 18, I repeat my concern about academic judgment acting as a hiding place. As the noble Lord, Lord Lucas, has mentioned, there are disabled students for whom the reason to make the complaint is not made in terms of the academic result; it is not about the work that they may or may not have produced, but about the circumstances in which they are able to perform not being correct. We believe that Amendment No. 18 would flush that out. There would be no hiding place behind academic judgment.

It has been suggested to us that there may be ways in which the Minister can indicate how, perhaps in terms of a code of conduct, the adjudicator will be able to perform when considering disabled students. If that is the case, it would be helpful to have it.

Lord Dearing

I thank the noble Lord, Lord Lucas, for raising the issue of interpretation in his probing amendment. Several noble Lords may have had experience of students in distress over decisions reached by an institution. I am concerned that the term could be used by a university as a refuge when it did not want to investigate a matter. It would be helpful if the Government could guide the adjudicator into an interpretation which would admit rather than shut out the consideration of a complaint.

I shall give one or two borderline cases. Two concern a course where academics had defined the work. On the basis of that definition of the academic content of the course, two students came at very considerable expense from foreign lands to take the programme. I recall that, at the end of the first term, one found it so distant from what he thought it would be that he went home to South Africa. That cost him a great deal of money. Another student, having travelled from Australia, abandoned a different course.

There was also a case of a student who complained that the lecturer had taken it into his head to say that, given the kind of work on the course, he did not need to turn up. That was put to the student as a matter of the lecturer's academic judgment. In another case, it was alleged that the lecturer told the students the questions that they would face in their final examination. One student did not think that was quite right, but his complaint was not sustained.

It is rather important for the adjudicator, in his interpretation, to be able to take a broad rather than a narrow view of what the term means.

Baroness Perry of Southwark

I too should like to record my support for both of these amendments. Perhaps I should declare an interest, having just completed a six-year term serving on the appeals committee at the University of Cambridge. The committee, the Septemviri, is rather misnamed as it includes at least two women rather than seven men.

There is a very real danger that the phrase "academic judgment" could become a secret garden embracing so many areas that it would be impossible for a student to query a judgment. The phrase suggested by my noble friend Lord Lucas is a much better provision that covers what a student may need to complain against; that is, the judgment that is made—it has to be a reasonable judgment—about the performance of the student rather than an overarching academic judgment.

In subjects such as English it is all too easy for a lecturer to retreat into safe territory by saying, "It is simply my judgment that the answer was not satisfactory. I cannot give the criteria or reasons for my decision. I made an academic judgment". If the original lecturer simply stands on this magic academic judgment, it makes it extremely difficult for a student to prove his case, even though he may have got three or four other perfectly competent English specialists to say that his paper was worth a very different mark. Of course, the same is true for the provisions to alter the assessment process for students who have particular handicaps. I hope the Minister will consider carefully my noble friend's suggestion of much more precise wording of what will, and will not, be safe territory for the person against whom the complaint is lodged.

9.30 p.m.

Baroness O'Neill of Bengarve

We must all have some sympathy with the purposes behind this amendment, but it is fatally flawed. It suggests we replace matters of academic judgment with, judgments reasonably made as to the academic performance of a student". Anybody may make a "reasonable judgment of performance", and it is very important in any complaint or appeal procedure that the independence of those who judge the case be secured—but not at the expense of their being informed about what they are judging. You can see the difficulty that can arise, when you consider that a student may feel extremely disappointed that he or she does not get the class of degree to which they aspired.

The process of judging whether the examinations were competently done and executed is one that requires a certain expertise, as well as independence. I do not dispute that we need the independence, but I think it will be fatal if we remove the expertise. I have served as external examiner in a number of universities—the University of Ulster, the University of London, the University of Bristol—and in each case it was a very long process of judging quality. That is, after all, why there is an external eye there, all the way from the initial stage of discussion of examination questions in the light of opportunity afforded, to the final judgment of degree class. If we open this to the thought that it is a reasonable judgment of academic matters, I believe that in the attempt to get an independent eye on it, we lose the question of getting the appropriate level of information and expertise where it is required.

Many of the examples we have heard come from a bygone age. I live in a world in which the amount of information available to students about their courses—how and by whom they will be assessed—is not deficient, but arguably quite excessive, and extremely burdensome to the students concerned. We have to beware adding yet more appeals procedures to the appeals procedures of one sort or another that are already all round the shop. There may be a deft way to do it, but I do not believe that substituting the notion of reasonable judgment for academic judgment will play fair by the people in the business of maintaining quality control in our universities.

We only have one true system of maintaining quality control: the external examiner system. It has been eroded and underfunded for a long time. We have substituted other systems for it, like the late and unlamented TQA, which did not secure quality of teaching. We need to think much more carefully before we move in the direction that this amendment suggests.

Baroness Warwick of Undercliffe

I indicated that I would like to comment on Amendments Nos. 17 and 18. The debate so far has demonstrated how thorny this issue of academic judgment is. The noble Lord, Lord Lucas, proposes to replace matters of academic judgment with, judgments reasonably made as to the academic performance of a student". Ironically, it seemed to me that the very case to which the noble Lord referred might not be affected by this change. There are many cases where it would be legitimate to take into account extenuating circumstances and their effect on performance. For example, it may be necessary to make the very kind of judgment that he was hoping to achieve about a student's probable performance in parts of an assessment where the student was, for example, prevented from competing by either illness or accident. Another example might be where an exam is disrupted by fire or flood or some other event and it would be unreasonable to ask the student to resit. Those are actual examples. I think that to restrict this to actual performance would be potentially to burden adjudicators with matters on which they could not reasonably expect to be able to adjudicate.

I also find myself in disagreement with the noble Lord, Lord Shutt of Greetland, whose amendment seems to me to fail to distinguish between the assistance a student might need to take an assessment and the need to undertake the assessment or complete a task which is necessary if that student is to gain an award. For example, a student who is not physically able to undertake a chemistry practical assessment might be aided by an amanuensis, but would have to be able to instruct the assistant precisely in the setting up of the experiment and its conduct. A dyslexic student might be asked to prepare an essay but allowed some aid such as a keyboard or spell-checker or might be given extra time.

In short, I think we have raised several problems that I do not think are addressed by either of the two amendments. There clearly are, as I think the noble Lord, Lord Dearing, said, examples that are slipping through the net. But I do not think that either of the two propositions are going to help us in those cases.

Lord Baker of Dorking

This is a very interesting debate. My noble friend Lord Lucas has raised an issue that, if the amendment succeeded, would considerably extend the role of the adjudicator of complaints. At the moment, under Clause 12, the adjudicator deals with, an act or omission of a qualifying institution". This issue takes us into the area of academic judgment, and that, as the noble Baroness said, is a Pandora's box.

I am by no means clear about what is the best solution. However, I remember a case that I had as an MP, more than 20 years ago, which has remained with me. A young woman came to see me who had been studying as a post-graduate for a DPhil. Her subject was the novels of Fanny Burney, an 18th century writer. She did not get a DPhil; she got a BLitt. She was very hurt by that. She claimed that she knew more than the examiner did about the novels of Fanny Burney and asked whether I could help her. I went to the university and put the complaint. It may well be that complaints procedures are better now than they were 20 or 25 years ago. I got absolutely nowhere. The ranks of the profession absolutely closed. I even read a few of the novels of Fanny Burney to see whether I could understand my constituent's case better. I got absolutely nowhere with the vice-chancellor. I was not allowed to meet the examiner or to question the matter at all. That has always rankled with me as I have always felt that I had let down my constituent. I was never satisfied that she had justice, but I could never prove it one way or the other.

All I can say is that, in the future, as the years roll on, once one sets up an adjudication of this sort, that sort of problem will become more and more of an issue for the adjudicator. I think that students will say, "We have an adjudicator. Why cannot we extend it further?", in the way that certain Peers have suggested today. As I said, I have no answer to that, but I think that the Government should think about it quite carefully.

It would be interesting if the Government could collate some statistics on it. In how many cases do university students claim they do not have the right level of degree? I do not know whether such statistics exist. Will this be a huge extra burden? Will more people be excited to do it? It comes down to academic judgment, which is a very fine matter. The claims might be meretricious in most cases, but in some cases they will not be. It is a very difficult and interesting issue and I hope that the Government will reflect on it.

Lord Skelmersdale

It seems to me that this group of two amendments is rather like Gaul. Noble Lords will remember, Gallia est omnis divisa in partes tres". The three parts into which this group is divided is the operator under Clause 13 behaving reasonably, academic judgment and disabled rights. They have all been lumped together in the discussion that we have just had.

Therefore, my first question is on reasonableness—what a horrible word, but it will do for this time of night. The department and the Secretary of State are subject, if they behave unreasonably, to judicial review and therefore the Wednesbury test applies. Will the operator, when he or she is created, be subject to the same regime? Also on reasonableness, I am unsure, even after the discussion, what criteria will be used to consider the matter and by whom it will be considered? Will it be the operator again or someone else? Perhaps my noble friend has given this some thought or even the noble Lord, Lord Shutt.

I also have a problem with academic judgment and the complaints thereon. For example, recently I have done a certain amount of work with student nurse placements, which involve the integral teaching and practical development tools of what will become, loosely speaking, their trade. Should complaints on the issue, should they have them, be taken to the new designated operator, as provided for in the Bill, or to the NHS establishment where the placement is completed?

On a similar note, my son undertook a four-year course at university, one year of which was a year in industry. If he had problems, or if another student in the future has problems, where should they raise their complaints in relation to the placement or to treatment while on placement? The Government and myself are keen on the Erasmus scheme which is even worse because that takes us into the far reaches, certainly these days, of eastern Europe. That is a problem.

I am no expert on disability rights, but I believe that the Special Educational Needs and Disability Act 2001 covers disabled students in higher education institutions to a greater or lesser extent. I understand that their ultimate recourse is to the courts. One of my noble friends who is not in his place at the moment has a research assistant who came out of a four-year course at university totally unsupported by parents, grandparents or anyone else and ended up with a debt of £30,000. That is under the current system. We shall come to what may happen under the system envisaged in the Bill possibly on Thursday and possibly later on in the month. However, I cannot imagine a student who is already in debt finding the finance to take an institution of higher education, further education or whatever to court.

I accept that many of these matters are likely to be matters of process rather than academic judgment, but even so, surely the Minister of State's comment that they are likely to be qualifying complaints is germane. Of course, ultimately, the reviewer would have to judge the merits of the case. None the less, I believe that SKILL and the RNIB—lobby groups as they are—have a very good point as regards Amendment No. 18. I would accept with them, and indeed the noble Baroness, Lady O'Neill, that a student should not be able to complain when he or she has received a low mark for a poor piece of work. But they posit the case that a visually impaired student might have failed an exam because of the university's failure to provide papers in, say, Braille or some other suitable format. I believe that that should be a qualifying complaint.

That leaves me with support for the noble Lord, Lord Shutt, and, as I said at the beginning, with questions about the amendment tabled by my noble friend Lord Lucas.

9.45 p.m.

Lord Triesman

I thank all noble Lords who have so far spoken in this debate for their contributions. I am deeply impressed by the way in which people have brought to the debate their very real experience or knowledge of what has happened to particular students. It is difficult not to be moved by many of the accounts that have been given, and I share that feeling. I therefore welcome the discussion and hope that I shall be able to do justice to it.

As we are all aware, the issue concerns what constitutes academic judgment and how it is to be dealt with. I begin first with Amendment No. 17, tabled by the noble Lord, Lord Lucas. I shall then develop some of the issues that have been raised to discover whether we can see through to the heart of the matter.

After Second Reading, my noble friend Lady Ashton wrote to Lord Lucas about his particular concerns relating to cases of discrimination. I am glad to be able to place on record for Members of the Committee our views of complaints that fall within the remit of the scheme. I believe that that is the best starting point. However, I add an immediate observation of my own. It seems to me that any attempt by any institution to say that its procedures were secret and could not in any circumstances be questioned must inevitably fall within the remit of the scheme. Were that to be the case, it would be impossible for anyone to proceed in any kind of process, which would have to be sufficiently transparent for people to become involved in it.

The amendment tabled by the noble Lord, Lord Lucas, has two effects. First, it seeks to narrow the exclusion of academic judgment complaints to those relating to, "the academic performance of a student". Secondly, it introduces the notion of judgments having to be made reasonably. I shall deal with the issue of academic judgment head on. Taking first the concept of academic judgment, compared with academic performance, the noble Lord will be aware that traditionally the visitors and the courts have not intervened in matters of academic judgment. This legislation would continue that practice. As matters stand, it would not change the practice. Academic judgment is genuinely difficult to define. I understand why the noble Lord seeks to define the exclusion more narrowly. However, I believe that it risks drawing into the remit of the reviewer matters that are unsuitable.

Before any noble Lord draws the conclusion that I, too, simply for these purposes would choose to hide behind words that are difficult to define, I should say that I strongly agree with the noble Baroness, Lady O'Neill, about the fundamentals of the way in which the system currently works. I know of no institutions that are immune from multiple scrutiny of the marks that are awarded for completed coursework in achieving a degree. If in any particular case, whether or not with a disabled student, there was no mechanism to provide a rigorous check of that matter, I would be deeply alarmed about what had happened in that institution.

I wholly accept the point made by the noble Baroness, Lady O'Neill, that the external examiner system is probably not as strong or as well staffed as it once was. However, it was and should remain fundamental to the best practice. On examiners' boards, double or multiple marking were the norm in my working experience. As the noble Baroness, Lady O'Neill, quite rightly says, external examiners have an expertise which is vital—even if one goes away and reads the novels oneself later—born of many years of study, reflection, writing and being criticised by one's peers and having to argue one's case. Those are the ways in which we try to ensure that the notion of academic judgment is more sustainable than it would be if a single individual were simply expressing an opinion upon a matter. Indeed, in many cases where the external examiner system was the fundamental basis, there were also moderator systems, in which the external examiners routinely met to make sure that their view across a range of universities in which they were external examiners bore comparison with one another. All those factors are fundamental.

Although judgments about a student's academic performance is what is usually meant by academic judgment, there are occasions on which academic judgments are made which are not directly related to the student's academic performance. For example, a student and a lecturer might quite genuinely have a difference of opinion over an academic issue such as a scientific hypothesis, and the student seeks to complain about the lecturer's academic opinions. The amendment of the noble Lord, Lord Lucas, would bring such issues within the remit of the scheme. I do not think that that is what he intends, and I think he would accept that it would not be desirable.

I would add one final point, which arose from the very telling account given by the noble Lord about the experience he had and that a student had. I am sure that he would accept that that is the student's account, not the institution's. It would be extremely important in such circumstances to know whether the course content as described in the prospectus would have led someone to conceive of any circumstances in which they might be excluded from a module which was being marked, and awarded a zero mark because they had some difficulty which made it impossible for them to take that module. If they were put in a position where they had a reasonable expectation that they could do the course and they were denied that opportunity, that would plainly be grounds for a complaint. It could not be covered up in any way.

With regard to a lecturer's non-attendance, when students had been led to expect that they would be taught and would have access to teaching—which is, in my view, the norm—I believe that that must be covered by issues of the provision of the service. An institution which was negligent on that matter would be found to be negligent and would have to be found to be negligent.

The judgments must, however, be reasonably made. That is why I can confirm to the noble Lord, Lord Skelmersdale, that they would be subject to judicial review.

The noble Lord, Lord Lucas, asked whether unreasonable judgments, made unfairly, on a discriminatory basis, would be open to challenge. They certainly would be under the scheme in the Bill. Were that to fail, they could potentially go through to judicial review.

I can reassure noble Lords that students who believe that procedural errors have resulted in unfair decisions would and must have access to the scheme. When students are unhappy with the way in which decisions have been made in relation to their academic performance, institutions should have their own internal procedures for appeals to be made. It is the job of the institution's academic or examination appeals panel to ensure that decisions are made reasonably and in accordance with the institution's procedures. Robust systems within an institution, far more than anything that exists outside, will always be the cornerstone when it comes to ensuring quality in the first instance.

The independent reviewer will be able to review complaints where such procedures were faulty or the outcome of the appeal was clearly unreasonable. Where students' complaints are about the academic or examination appeals panel, examples of the type of complaint that will be admitted to the reviewer include where the panel is improperly constituted; where it fails to take account of relevant information provided by the student; where, as my noble friend Lady Warwick has said, some calamity has occurred in the course of the examination which has meant it is very hard for a student to do as well as she or he could; or where it fails to give the student the opportunity to make appropriate representations on his or her behalf. These are complaints that the independent reviewer can consider.

In addition. I know that the noble Lord, Lord Lucas, was concerned at Second Reading—

Baroness Sharp of Guildford

Can the Minister tell us in whose judgment it would be whether it is a question of academic judgment?

Lord Triesman

I will come to that point in a few sentences and I hope that that will lend some coherence to what I have said.

I know that the noble Lord, Lord Lucas, was concerned at Second Reading that some institutions may not have adequate procedures for dealing with student complaints and appeals. I can reassure your Lordships that such issues are also capable of being referred to the reviewer.

I turn now to the question raised by the noble Baroness, Lady Sharp. Dame Ruth Deech, who as we all know has been appointed as the independent adjudicator is an academic of enormous experience and an administrator of superb experience. We could have hardly dared hope to have somebody better in the position and more able to make the judgments about how things fall in and out within the guidance that is provided. Along with Michael Reddy, who has been appointed as the deputy adjudicator, she will be in a position to do exactly that.

I will deal briefly with the question raised by the noble Lord, Lord Skelmersdale. The operator of the students complaint system which we believe will be the office of the independent adjudicator will consider unresolved complaints against HE sector institutions. Any complaint should relate to the responsibilities of the institution, so for HE students on placements the respective responsibilities of the institution and the placement provider—which might be an NHS trust for a nursing student, an example that was given earlier—should be set out as clearly as possible in the standard part of the placement arrangements.

These responsibilities will determine the route taken in pursuing the complaint. If it relates to something which the provider is responsible for, then they should complain to the provider. If their complaint is against the HE institution, then that is where they should lodge their complaint if it is not resolved. The student will have recourse to the student complaint scheme, the OIA. The intention is that the guidance documents and the forms that would be available and the publicity that we touched on in an earlier part of our discussion should make those routes very clear and help to guide people through them, as I believe they must.

Turning now to Amendment No. 18, I welcome the opportunity to respond to the important issue of the arrangements that institutions make to meet the needs of disabled students and whether complaints about these arrangements will fall within the scheme.

By way of background, I should first mention that the Minister of State for Lifelong Learning, Further and Higher Education, the right honourable Alan Johnson, wrote to the Royal National Institute of the Blind confirming that complaints relating to examination procedures—such as whether an institution has complied with its policy on exam arrangements for disabled students—would be matters of process rather than academic judgment and therefore will fall within the scheme. I hope this gives a degree of reassurance to those who have raised similar points.

In debate on a similar amendment in another place, the Government also committed to look further at this issue. Officials from the Department for Education and Skills subsequently met with RNIB and Skill and confirmed that the Government would be happy to put on the record, through an exchange of correspondence, any particular services, arrangements and adjustments for disabled students that they wanted confirmed as being within the scheme's coverage. I am happy to repeat that commitment to noble Lords today and to commit to write to the noble Baroness, Lady Sharp, on these issues.

Institutions should have clear procedures setting out the adjustments disabled students can expect to meet their needs. If a student has an unresolved complaint about their institution's compliance with the procedure, it will fall within the remit of the reviewer. That is a reassurance which should give some comfort. No doubt everybody will study the text to make sure if it does or does not.

In that spirit I ask noble Lords to withdraw their amendments.

10 p.m.

Lord Shutt of Greetland

I thank the Minister for responding as he did. We shall have to consider his statement. It is quite interesting that the clause that we are amending is 22 words in length. I dare say that the Minister has taken up a fair amount of Hansard in his remarks, and I wonder whether there is sufficient in the Bill or whether we should fold Hansard into the Bill. We shall think on these matters and may or may not return to them later.

Lord Lucas

I am grateful to all who have spoken and particularly to the Minister for that explanation. The noble Baroness, Lady O'Neill, was right in saying that the drafting of my amendment strays too far—and the Minister confirmed that.

I am comforted by some of the things that the Minister said would be included. In the case that I had to deal with, the only written evidence of the student's performance was the marks. There were no backing documents, there was nothing on which to base a judgment and no willingness to discuss the matter. I imagine, under those circumstances, that the independent adjudicator would be happy to have a conversation about the process, and we would not be blocked by a statement that the academic judgment of the institution or the people concerned was that it was unnecessary to provide the student with any information as to how she had done on any particular occasion or the basis on which the marks had been awarded. That is my understanding.

I heard the Minister in his remarks mention the words "judicial review". To my mind, a debt of £30,000 is quite enough for a student, without taking on the same again to run a judicial review. I shall look very carefully at Hansard at the place where the Minister mentions that, because I do not believe that that is a satisfactory road down which to push a student. Let the independent adjudicator be the one who decides whether or not a matter comes under his rubric. That would be helpful.

I shall need to read carefully what has been said, rather than take up more time tonight speculating on what I might decide to do once I have read it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 [Designation of operator of student complaints scheme]:

Baroness Sharp of Guildford moved Amendment No. 19: Page 5, line 23, leave out "body corporate" and insert "person

The noble Baroness said: In moving Amendment No. 19, I shall also speak to Amendments Nos. 20 to 27 and Amendments Nos. 29 and 30. Of the batch of amendments, the key one is Amendment No. 29, which would insert in Schedule 1, is appointed Higher Education Ombudsman".

The purpose of the group of amendments is to discover why the Government have chosen to introduce an independent adjudicator rather than a fully fledged ombudsman for the higher education sector. We are supported in the amendment by NATFHE and the AUT, and I understand that the NUS have also given its support for the amendment.

We have already touched on the issues under the amendments that I tabled to Clause 12, which suggested the reasons why we favour an ombudsman with a wider remit than the more limited remit of the independent adjudicator. The model being established was proposed as a self-regulating one, to be financed by the university sector itself. It was proposed by the UUK, the employers' voice in the universities, after considerable prodding from the Government, and the question is why the Government have simply backed them in their choice rather than exploring other models.

The advantages of introducing an ombudsman system are straightforward. First, it would be provided outside the university system and financed by the Government, not the universities and, secondly, it would be in line with other ombudsman services in local government, health, financial services and Parliament. Thirdly, the tertiary education sector is already large and is expanding fast, and the FE sector is already using the Parliamentary ombudsman as an arbiter of last resort. Here we are setting up legislation to set up an arbitration system of last resort for universities, but it deals only with student complaints and does not cover the whole sector, because a number of large and influential universities have not signed up to it. That leaves some students still subject to the archaic procedures of the visitor system, and it leaves, as we have seen, the whole problem of staff complaints which are not appropriately handled by employment legislation. Discussion on this issue in Committee in the other place was cut short by time. In his response, the Parliamentary Under-Secretary of State explained his confidence in the procedures that had been established and paid tribute, as I do, to the board's choice of adjudicator, Ruth Deech. But he did not explain why it was that the Government opted for this limited self-regulating service, rather than for the broader-based ombudsman service. The proposal for an ombudsman model had the widespread support of the general public, students and academic staff. We have a right to know, if I may say so, why the Government prefer this more limited model. I beg to move.

Lord Forsyth of Drumlean

This seems to be a very sensible set of amendments. I have nothing to add to what the noble Baroness has said, except that the only explanation that I can see for not moving towards an ombudsman is that perhaps somebody in the Treasury thought it was a very clever way to avoid paying half a million pounds. If that was the case, then I urge the Minister to stand up to the Treasury.

Baroness Warwick of Undercliffe

The noble Baroness, Lady Sharp, has rightly said that the National Union of Students, as well as NATFHE and the Association of University Teachers, support a proposal for an ombudsman. Perhaps I should also point out that the NUS worked very closely with Universities UK in creating the office of the independent adjudicator and establishing it on a voluntary basis.

Perhaps I can remind the Committee that the proposal for an independent forum for reviewing those student complaints that have exhausted an institution's internal complaints procedures emerged from the recommendations of the Nolan report and were supported by the 1997 report by the noble Lord, Lord Dearing. Universities UK and the Standing Conference of Principals consulted extremely widely on these proposals so I warmly welcome the Government's decision to legislate to build on the self-regulatory framework that the sector had already established and which is operating with great success. The Office of the Independent Adjudicator has won the wide support of the sector. It seems preferable that the Government should choose to build on something that has established a successful track record rather than to bring forward an entirely different scheme that would need to seek wide support. The Office of the Independent Adjudicator will be a real benefit to students and to institutions.

Perhaps I can correct a point that was made by both noble Lords. It was in fact Universities UK that pressed the Government to put a statutory framework onto the voluntary scheme in order to address the very real problems that have been identified in this House in relation to the role of the visitor and to establish a more consistent approach, which several noble Lords have urged. Universities UK very much pressed the Government and I am delighted that they moved swiftly to incorporate in the Bill the means of introducing this scheme. The statutory framework requiring all higher education institutions in England and Wales to participate will ensure a much greater degree of equality for all students. Although the OIA is not a regulator, it can make recommendations about how HEIs might handle complaints internally. I think that this is the right approach and that it is the right tool for the job. I commend the amendment.

Lord Triesman

The amendments suggest that the Secretary of State should appoint a person, which could be either an individual or a company, rather than a body corporate as the operator. As we have said, and as my noble friend Lady Warwick has just said, the operator that we intend to designate is the Office of the Independent Adjudicator. The OIA has been set up as a private not-for-profit company limited by guarantee and it is a corporate body. Its board consists of representatives from the higher education sector and the National Union of Students as well as a number of independent members.

During debate in another place, and as proposed by Amendment No. 29, there were calls for an alternative approach: an individual higher education ombudsman who would be appointed by the Secretary of State. There are two reasons why we favour our approach to that of an individual ombudsman. First, the Secretary of State is not involved in the appointment of members of the OIA board. Before the operator is designated, we will require that its board of directors should have a majority of independent members. In Schedule 1 we have said in the conditions to be met by the operator of the scheme that the body corporate is a suitable person to be designated the operator. This would include the majority of independent members. This ensures both independence from the Secretary of State and that sector interests do not dominate. Secondly, the Secretary of State will have no say in the independent reviewer who looks at cases. We believe that these arrangements will give greater confidence to institutions and students regarding the independence of the scheme than a Secretary of State appointed ombudsman.

However, that is not to say that the OIA and the reviewers will not operate in a manner similar to other ombudsman schemes. No doubt there will be much common practice. Indeed, organisations such as the National Union of Students have previously used the term "ombudsman" as a general characterisation of the arrangements that we are proposing—of which they are also fully supportive—and which this legislation is designed to underpin. They have supported it in the sense that they took part in establishing it. I congratulated them on that earlier.

I hope Members of the Committee will accept that we share a commitment to ensure the independence of the student complaints scheme and will feel able to withdraw the amendments. As the noble Baroness, Lady Warwick, said, it is a case of building on something that works and to which we should give a real chance.

Baroness Sharp of Guildford

I thank the Minister for his reply. I accept that the office is newly established so we have yet to see how well it works, but we have every expectation that it will work very well. I repeat my tribute to Dame Ruth Deech, who has been appointed as the independent adjudicator. I certainly have much faith in her acting in that position.

I shall withdraw the amendment, but in doing so I suspect that in the course of time we may well find that we need to have a broader ombudsman working in this sector. I come back to the points that I made earlier; namely, that the borderline between what is further education and higher education will become increasingly blurred. We shall have to find some sort of system to cover staff complaints as well as student complaints. It may be appropriate, as in the health service and local government, that we have a broad office of ombudsman to deal with these matters. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 20 to 26 not moved. ]

Clause 13 agreed to.

Schedule 1 [Conditions to be met by operator of student complaints scheme]:

[Amendment No. 27 not moved. ]

Lord Lucas moved Amendment No. 28: Page 24, line 9, at end insert ", and shall not in any way be connected with an institution subject to the student complaint scheme

The noble Lord said: This amendment is extremely badly drafted so I hope that I can briefly say what I mean by it, which is that the independent adjudicator, or rather the body corporate, should not be a creature of the universities that it sets out to sit in judgment over.

The Minister said that the board should have a majority of non-university people. That is not enough. Control, in terms of control of a public company, is generally reckoned to be 30 per cent of the shares. In the ordinary dynamic of the hoard, I reckon that control is about the same. If you have a board of nine people, four of whom are university appointees, you will very rarely find the five going against the four. This needs to be a board that can stand up screaming to the universities when the adjudicator has dealt them a painful blow or two. If we have a board which is in hock to the universities, my fear is that that will not happen. A simple majority is just not enough. It needs to be a board which is properly independent of universities. I beg to move

10.15 p.m.

Baroness O'Neill of Bengarve

It is necessary that the board is wholly independent of any institution in which it is investigating a complaint. That goes without saying, but it would be a somewhat different matter to say that it should be wholly independent of the entire sector. Even if we move away from the contentious area where academic judgment may be involved, much more routine and more common matters that require no academic judgment—for example, complaints that student residences were not adequately heated or that security on campus was not up to what it might have been—may, nevertheless, reasonably need people who have some experience of what campus life is like nowadays, what is normally provided in student residences and the like. So, I am slightly puzzled at the suggestion that the board should be wholly independent of the HE sector, as opposed to the institution against which a complaint is brought—with which I fully agree.

Baroness Sharp of Guildford

I have put my name to the amendment and I endorse the arguments made by the noble Lord. It is important that the adjudicator's office should be independent of the institution. The noble Lord has admitted that the exact phraseology that he has used may not necessarily be exactly correct, but the amendment states that the adjudicators, shall not in any way be connected with an institution subject to the student complaint scheme". That degree of independence is necessary.

Baroness Seccombe

We support the principle of the amendment which is important for two reasons—that we have both knowledge and lack of bias. What criteria would be used in the selection of adjudicators under this provision and would they receive any specific training?

Lord Triesman

I was intrigued by the idea that if there was a board of nine, of which four were from the universities, those four would be likely to agree with each other. That falls wholly outside my experience.

Thus far, we have covered the first steps that have been taken in setting up the current arrangements. However the OIA is now up and running and we believe that it has to be independent and that its board of directors is vital to the credibility of the scheme. The Secretary of State will have the power to designate a body corporate as the operator, which must be "a suitable person". In order to be judged suitable, I can assure noble Lords that the Secretary of State will require that the operator can demonstrate full independence. We would expect the operator seeking designation to have a majority of independent members on its board. It is probably true that as long as there is a genuine majority—and it is often unlikely that everyone else will stick together in one position—the body is unlikely to be towed around as an individual group by the universities.

I can understand the concern that the OIA's current board does not meet that requirement and that one might wonder why it has been designated as the operator. However, I can reassure the Committee that the OIA board has agreed that it will move to the new position before it seeks designation from the Secretary of State. The change will have been made. The board is currently in the process of increasing the number of independent members and is considering reducing the number of representative members so that an independent majority is fully achieved. I hope that that will encourage the noble Lord to withdraw his amendment.

I do not agree with the argument that no members of the body corporate should have connections with qualifying institutions. It is important that the sector has a degree of representation on the board, which implies connections to higher education institutions. What is crucial is that they do not dominate; I fully understand the feeling behind that view. The process for appointment will be independent; it will meet the criteria that we would now expect of independent appointment processes, of which there are a good many that are routinely discussed in the Chamber, to which the Nolan principles have been applied.

I have probably already made all the points that I should about Dame Ruth Deech and her immediate colleague Mike Reddy. Those are good initial independent appointments. They show the tenor in which everyone intends to proceed. With those assurances, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Lucas

What the Government intend is certainly in the direction for which I was hoping and I am happy to bow to their greater judgment as to the exact structure. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 29 and 30 not moved. ]

Schedule 1 agreed to.

Schedule 2 [Conditions to be met by student complaints scheme]:

Lord Lucas moved Amendment No. 31: Page 25, line 21, at end insert—

Guidance

Condition B(1) is that the scheme shall include guidance for the conduct of internal procedures for the review of complaints, and for the terms of such procedures, and shall prohibit the placing by such procedures of any limitations on access to the scheme."

The noble Lord said: I shall speak also to Amendment No. 32. Amendment No. 31 arises from the requirement that students should have been through the procedures laid down for the individual institution before they can have access to the independent adjudicator. Under those circumstances, there should be some degree of connection between the two sets of procedures. To start with the back end of the amendment, there should be nothing about an institution's internal procedures that make it difficult to reach the independent adjudicator.

So far as the first part of the amendment is concerned, I hope that we will have an independent adjudicator who feels able to spread good practice among universities.

One problem I had with the case to which I referred was that the university concerned, immediately on telling the student concerned that it intended to dismiss her from her course, banned all her tutors from talking to her and said that they could not help her in any way to understand what had gone wrong or to make a reasonable judgment of what she should therefore do next by way of her career or otherwise, unless and until she abandoned all appeal procedures. In fact, having now reached the point where she has abandoned all appeal procedures, it still will not let her talk to any of her tutors.

As I said, that ended extremely unhappily. One reason for that is that the course that she was on is one where her tutors are likely to have an effect on her future career. She should have been studying something sensible, such as history, where all the students go off to be merchant bankers. Unfortunately, the academics on the course that she chose are in close contact with the people who are likely to employ her afterwards. Being a talented individual, she wishes to pursue that course.

So I am very concerned that we should have some mechanism to deal with such bad practice. It seems to me that the best way is to have someone who understands good practice able to pass that good practice down to the institutions—especially, of course, when a complaint comes through and it is clear that something has been wrong with the institutional practices below.

I have expressed that in the language of guidance; it should probably not be that formal. I want to ensure that the independent adjudicator feels that he has the power and position to make suggestions and do whatever is necessary in the context of university structures to spread good practice and indicate that unless individual institutions' complaints procedures comply with a reasonable set of criteria, the complaints that reach the adjudicator are more likely than not to fail because the student has been badly dealt with beforehand. As I said, that goes back to the difficult experiences through which I have been.

Amendment No. 32 is simply a suggestion. It is based on the ordinary experience: if you go to court and lose, you pay more than if you win. I do not see why institutions that neither lose cases nor produce students who have been badly done by should pay as much as those that produce a stream of students with complaints that are upheld. I certainly would not dream of pressing the amendment if it did not appeal to the Minister. I beg to move.

Lord Dearing

Perhaps I may take the opportunity to raise a matter on Amendment No. 31. so that peradventure I could return to it on Report. I am particularly concerned not to limit severely access to the adjudicator by a complainant at an institution where there is no access to a visitor, or where it is very limited, and where internal procedures having been exhausted the only resort is to the courts. A student simply cannot afford to take a case to the courts.

In dealing with such a case, the noble Baroness, Lady Amos, said to a Member of the other place in a letter of 5 February this year that the Government agree that it is inequitable that there should be access from some institutions but not for others. That is particularly so when the institution has no provision, not only for a visitor, but for any external person whatever, and all cases are handled in-house.

I hope that as a matter of practice rather than through legislation the adjudicator will be encouraged to take a lenient attitude to considering cases where it seems that perhaps the procedures have not been entirely fair, and where a case, although it is out of time, has been rumbling on—the one that I have in mind has done so for several years and has still not gone away from my e-mail. Perhaps the adjudicator would be prepared, provided that a case was supported by one, or perhaps two, Members of Parliament or the National Assembly for Wales, exceptionally to consider the matter.

Baroness O'Neill of Bengarve

I have enormous sympathy with the aims of the amendment tabled by the noble Lord, Lord Lucas, in that all universities should have student complaints procedures. However, I would like to know whether the intention of the amendment is that all the procedures that universities have been required to construct over a number of years must now be revisited.

I had taken it that in this construction we aimed to create the apex of a system whose infrastructure was already in place. Who is to say that every bit of that infrastructure is as good as it should be? However, in my experience, student complaints procedures are now ubiquitous and elaborate, possibly over-elaborate. If the Office of the Independent Adjudicator is there, any procedure constructed under existing guidance and requirements will be found out if inadequate. I do not believe that we need to rebuild the whole infrastructure.

The same goes for the handling of student disability, where, in my experience, for 25 years universities have used the sorts of procedures that have been discussed. They are now very much in the hands of disability advisers. Negotiations are conducted with students who declare a disability before they come on campus, so that one knows what adjustments are needed, and so that they can be provided. There is a problem about undeclared disability. I do not think that institutions can prepare themselves to deal with a disability if it is not disclosed either upon application or, quite often, until a late stage. So far as I am aware, where a student is disabled and discloses it at the admissions process, every institution is required to build that in. That includes time allowances on assessment. Similarly, complaints procedures are now there.

10.30 p.m.

Lord Triesman

I start with the question raised by the noble Lord, Lord Dearing. It can be dealt with relatively rapidly. It will up to the scheme to decide when it wants to lift the time limit. There will be exceptional cases in which it may wish to do so, but, by definition, exceptions are exceptional, and it is hard to build the legislation to reflect that. The OIA can do that. Anything or everything can be put to the OIA, and it is for the OIA to decide whether to exclude it, even if it is clouded in history and e-mails

The amendments would add another three conditions to the minimum conditions that would apply. I shall deal with guidance first. I agree that getting the internal complaints procedures of universities and other institutions up to standard in the first place would alleviate many of the problems that we are trying to deal with and reduce the need for appeals. In some circumstances, we could probably avoid the problems altogether. So, I understand the noble Lord's desire for a scheme that includes guidance about the conduct of internal complaints procedures. However, it is for individual institutions to determine their own procedures for handling student complaints. We have recognised in other contexts and emphasised that they are independent, autonomous institutions. In devising their own procedures, they need to take account—most of them already do—of guidance issued by sectoral representative bodies and the Quality Assurance Agency for Higher Education.

The noble Lord, Lord Lucas, may wish to note that the QAA has issued a code of practice on student complaints and academic appeals. I would be happy to send it to him, so that he can see whether it deals with the issues that he has raised. The code sets out clear guidance to institutions on handling student complaints and, although there may be a case for the experience of the OIA informing future development of that guidance, it does not seem sensible to duplicate the QAA guidance.

When dealing with a student's complaint, the independent reviewer can also make specific recommendations to the higher education institution about the effectiveness of its internal procedures. Where appropriate, we would expect the reviewer to set out aspects of the procedures that were flawed and say how they might be improved. That would be useful guidance. The reviewer may also make general observations about the institutions' complaints procedures in the annual report, and that will be useful guidance to the sector as a whole because it will be available to the sector as a whole.

The noble Lord, Lord Lucas, also suggests that the scheme should ensure that institutions do not prohibit students from accessing the operator's scheme for reviewing student complaints. I assure the noble Lord that it will do so. Clause 15(1) requires the institution to comply with any obligation imposed upon it by the scheme. Paragraph 2 of Schedule 3 requires that the operator must provide a scheme for the review of qualifying complaints that meets all of the conditions in Schedule 2. In order to comply with that requirement, the operator of the scheme will have to ensure that all qualifying complaints are capable of being referred to it. That is also in Schedule 2. The operator will need to place an obligation on the institutions to that effect, and we anticipate that that would be in the rules of the scheme. In the unlikely event that higher education institutions made it a contractual term that students were not to refer complaints to the OIA, they would be in breach of their duty. They cannot do that.

The noble Lord should also be reassured that, under the voluntary arrangements currently operated by the OIA, participating institutions are required to issue a completion letter to students when the institution's procedures have been exhausted. The letter must provide information on how to get access to the OIA, if the student remains dissatisfied with the handling of the complaint. The student will know when the process has come to an end and what steps can be taken beyond it. That ensures that students are clear about the routes of redress.

Amendment No. 32 would mean that the operator should charge fees in relation to the outcome of the case. I can understand the amendment. The Bill does not prescribe how fees payable by institutions will be apportioned. That gives flexibility to the operators to decide on a fair and reasonable fee structure while preventing the operator charging excessive fees above the costs that are incurred. It is not a profit-making organisation. That kind of flexibility is already there.

We understand that the OIA is also considering a fee structure that might be introduced at a later point, which includes a mixture of a fee based on the size of institutions plus a fee per complaint referred from the institution. That is another flexibility in the charging system. So those kinds of options are open. I suspect that, in due course, the scheme will be able to codify them in a way that should be helpful.

Lord Lucas

I am grateful for that explanation, which, again, I shall read carefully. As usual, the noble Baroness, Lady O'Neill, is right. Most institutions—certainly all my academic colleagues to whom I talked in this place when I was having difficulties—said that the schemes that they operate would not run into those difficulties. None the less, it is extremely difficult to know what to do when you run into something where the documentation is all there, but what is happening in practice is a travesty. There does not seem to be any way in which this can be made to work better at the moment.

The Minister has made it clear that there will be enough feedback from the independent adjudicator. Should such problems occur in the future, there is some hope that they will get picked up and cleared up. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 32 not moved.]

Schedule 2 agreed to.

Clause 14 agreed to.

Schedule 3 [Duties of designated operator of student complaints scheme]:

Baroness Sharp of Guildford moved Amendment No. 33: Page 27, line 32, at end insert — () In relation to the requirements set out in sub-paragraph (2), the identities of the individual parties involved must be anonymised.

The noble Baroness said: At this hour I shall not detain Members of the Committee for long. I apologise for the wording of Amendment No. 33. I had asked for the wording to be changed from "rather must be anonymised"—I am not sure that anonymised is a word that appears in any English dictionary—to "should not be revealed". Somehow, the gremlins got in and I am afraid that the amendment appeared as it was originally sent to me.

I am moving this amendment on behalf of the Association of University Teachers. Its main purpose is to amend Schedule 3, which relates to the duties of the adjudicator in relation to requirements of the annual report. The amendment would ensure that in the annual report the names of all individuals involved in any arbitration procedure should not be revealed.

University staff and the AUT have very strong concerns at the apparent lack of thought in the Bill about the impact on and implications for those staff who are directly affected by or implicated in cases that are referred to the adjudicator. Whether we like it or no, in any such adjudication the full facts of the complaint will inevitably be aired. We assume that the adjudication will therefore involve hearings, written evidence and other details of the original complaint, including the names of those involved.

That will mean that the annual report, which has to include information about the complaint itself and the decisions and recommendations made, will also potentially include details of named individuals. That provides considerable scope for someone's reputation to be damaged and for potentially groundless complaints to be repeated in an important public document.

We are asking therefore that the names of the individual staff involved should not be revealed in the annual report so as to protect their reputations, professional credibility and employment rights. Parliament will still be able to hold the adjudicator to account, but without damaging the staff involved. I beg to move.

Lord Skelmersdale

Over recent weeks, we have had quite a lot of exchanges on this subject in regard to the medical profession, which I am sure that the noble Lord, Lord Winston, will recall. I cannot see any good reason why an annual report—or, indeed, any report—of this particular organisation should name and shame, so to speak. The noble Baroness, Lady Sharp, is absolutely right. It could get into the press and could do great damage, not only to staff, as she mentioned, but also to students.

Baroness O'Neill of Bengarve

I strongly support this amendment. Indeed, it may not go quite far enough. I think that I am more aware of the possible damage caused to students than to staff. If names of either party were revealed, it would lead to immediate attention of the sort that will spread an account of the case that may not cover all the nuances. However, one has to recognise that where a case is thought to be lurid or interesting, because they imagine that they have an unqualifiedly good case, there will be a temptation on the part of one or both parties to reveal the name of the other party. In addition to anonymity in the report, it may be as well to consider whether those who bring complaints should not have to agree not to reveal the name of the other party or the details of the case.

Lord Triesman

The amendment proposes that individual parties should not be named in the designated operator's annual report. Of course the parties concerned are students and the governing bodies are the institutions. I can assure noble Lords that we agree that the operator should not name individual students in its annual report. However, we do believe that the reviewer should be able to comment on the extent to which the governing body of an institution has followed the reviewer's recommendation. This would involve naming an institution. The amendment would prevent the reviewer from, for example, highlighting in its annual report an institution which has not complied with its rulings. We do not want to limit the reviewer in that way.

I am sure that noble Lords will agree that a degree of public accountability for their response to decisions is important to the success of a non-binding scheme of this kind. I can also assure noble Lords that such practice is common in other ombudsman-type schemes. For example, the Local Government Ombudsman names individual local authorities and councils, but does not name individuals. The Office of the Independent Adjudicator for Higher Education has made it clear in its guidance that it will only ever publish cases in an anonymised form—I believe that the word does exist, and I am now the second person to use it. All correspondence between the OIA and the parties to a complaint will be treated in confidence and only shared between the parties involved.

I hope that that explanation gives a reassurance about the way the reviewer will treat individuals involved in complaints, and makes clear the importance of the reviewer being able to report on institutions not complying with the scheme. In that light, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Sharp of Guildford

I thank all noble Lords who have supported me on this amendment and I also thank the Minister for his response. It was a cheering response and made it clear that in these particular instances, the names of individuals will not be revealed. Obviously we agree that it is absolutely right that institutions should be named. Given those assurances, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Schedule 3 agreed to.

Clauses 15 and 16 agreed to.

Schedule 4 agreed to.

Clauses 17 to 19 agreed to.

Lord Grocott

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at fifteen minutes before eleven o'clock.