Lords Sitting of 19 May 1988

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Southwark): The LORD CHANCELLOR on the Woolsack.
The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, before the commencement of business, I take the opportunity to inform the House that tomorrow I am to visit the judges and staff at Bow County Court and the Crown Court at Snaresbrook. Accordingly, as these arrangements were made before it was known that this would be a sitting day, I trust that the House will grant me leave of absence.

Royal Assent
3.1 p.m.
The Lord Chancellor: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Licensing Act,

Matrimonial Proceedings (Transfers) Act,

Felixstowe Dock and Railway Act.

Postal Services: Industrial Disruption
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
How many strikes and how many other cases of industrial disruption have occurred in the postal services in the current year; and how many occurred in the same period in 1987.
The Secretary of State for Trade and Industry (Lord Young of Graffham): My Lords, disruption to postal services from industrial disputes is primarily a matter for the Post Office board and I have asked the chairman of the Post Office to write to my noble friend. However, I understand that in the first quarter of the current year, 52 strikes and 13 other disputes occurred. This compares with 26 strikes and nine other disputes in the first quarter of 1987.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that Answer and fully accept that the constitutional implications of what he said are the responsibility of the Post Office. Is it not, however, the responsibility of the Government in the event of serious disruption taking place to consider taking action on suspending the Post Office's monopoly? How quickly can this be done if necessary?
Lord Young of Graffham: My Lords, the Government always have this matter under review. It must be of concern to all that in the years 1985, 1986 and 1987 some 64,000 to 65,000 man days were lost
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through industrial action. Only 1,300 days were lost at the beginning of the decade. I am sure the matter will be kept under constant review both by the chairman of the Post Office and by the Government. If the position continues to deteriorate we shall have to consider what to do then.
Baroness Ewart-Biggs: My Lords, is the Minister aware that the volume of letter traffic carried by the Post Office has increased by 25 per cent. over the past five years? In the light of that, does he agree with the statement made by the chairman of the Post Office Users' National Council that the substantial increase in mail volumes means that substantial investment in infrastructure and network will be needed in future years? Will the Minister say whether the Post Office tariffs have increased in relation to the retail prices index, and if so, by how much?
Lord Young of Graffham: My Lords, the Question before the House relates to industrial disputes. There can be no denying that the number of disputes has increased considerably during the course of this decade. It is also true that the Post Office has been reorganising its working practices and looking at methods both of new technology and new equipment in order to deliver the post. In terms of delivery of the post, in December 1987 88·5 per cent. of first-class post was delivered on the first working day after posting. That is not over the Post Office's target of 90 per cent.
Baroness Strange: My Lords, British Telecom is to reimburse people who for some reason or another do not have the services and facilities of a telephone. Can something be done for people who through wildcat strikes do not receive post for several days, as has happened?
Lord Young of Graffham: My Lords, in many ways wildcat strikes are hardly the responsibility of the Post Office board. The position with British Telecom is rather different. The Director General of Oftel has negotiated a very good arrangement with British Telecom which I am sure all would welcome. However, this is quite another matter.
Lord Ferrier: My Lords, can anything be done to persuade advertisers and commercial bodies to limit the amount of junk that they send, which goes straight into the waste-paper basket?
Lord Young of Graffham: My Lords, I heartily agree with my noble friend, but I suspect that it is that junk mail which keeps the Post Office going.

Government Lawyers: Recruitment
3.5 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich asked Her Majesty's Government:
What steps they are taking to improve the recruitment of lawyers for government departments in England and Wales.
Lord Young of Gratffham: My Lords, lawyers' pay is being increased with effect from 1st April by around 7 per cent., and in addition allowances for those working in and around London are being improved. Performance pay is being introduced for Crown prosecutors and existing performance pay arrangements are being extended for staff at grades 5–7. These improvements reflect the special recruitment and retention difficulties facing the Government legal service. The FDA has accepted the Treasury's offer for staff at grades 5–7 and is recommending acceptance of the offer for Crown prosecutors and legal officers.
The current review of Government legal services, conducted by Sir Robert Andrew, is considering within its terms of reference the changes needed in the management of legal staff, including recruitment.
Lord Harris of Greenwich: My Lords, I thank the Minister for that Answer. Is he aware that we very much welcome the review by Sir Robert Andrew? Is he also aware that the Civil Service Commission has drawn attention in the past few weeks to the fact that both in 1986 and in 1987 the Crown Prosecution Service succeeded in recruiting fewer than half the number of people it then required? Is he further aware of the growing criticism of the Crown Prosecution Service because of this chronic understaffing? What urgent action does he intend to take to deal with this problem?
Lord Young of Graffham: My Lords, I am aware that the Crown Prosecution Service has a considerable number of unfilled posts. I am also aware that last year it recruited some 202 lawyers but at the same time received the resignations of 116. For that reason the review of Government legal services is being conducted by Sir Robert Andrew. I hope that he will report well before the end of the year and I hope that the report will suggest the right action to take.
Lord Gisborough: My Lords, is my noble friend aware that while some of us may sometimes be tempted to think there are too many lawyers, in practice there is an extreme shortage? It is extremely difficult for legal firms to find young lawyers. One of the reasons is that a great number of youngsters on coming out of law school do not practise but instead go off into industry and so on. Is there anything the Government can do either to encourage people or to restrict law school to those who are prepared to practise afterwards?
Lord Young of Graffham: My Lords, it is quite apparent that the world has changed considerably since I was a young lawyer. Nevertheless, I hope very much that the review conducted by Sir Robert Andrew will make some suggestions to help remedy the position.
Lord Mishcon: My Lords, will the Minister ensure that the Government take seriously and deal urgently with the review that is now being conducted? Is he aware that the whole of our criminal justice system depends on the adequacy of the Crown Prosecution Service and, so far as concerns the defence, on the
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adequacy of criminal legal aid? Is he further aware that there is a crisis both in regard to the prosecution side and the defence side by virtue of the paucity of the number of lawyers available to deal with these matters? Is that not putting the substratum of our judicial system in jeopardy?
Lord Young of Graffham: My Lords, I am aware that those who work within the Crown Prosecution Service and indeed within the Serious Fraud Office receive specialist training which makes them most attractive to those outside Government who seek to recruit their services. It is a considerable problem and I hope that Sir Robert Andrew will come up with some of the answers.
Lord Morris: My Lords, can my noble friend say whether, during the course of the review, the somewhat centralised structure of the Crown Prosecution Service will be looked into and that as much as possible will be learnt from the great experience of the Procurator Fiscal's Department in Scotland?
Lord Young of Graffham: My Lords, the terms of reference of the review include changes needed for the management of legal staff, including recruitment. Therefore I have little doubt that the matter will be looked into.
Lord Bruce of Donington: My Lords, is the noble Lord aware that, irrespective of the reports that he is receiving or has received, and the reviews that may or may not have been made, it is the responsibility of government to make up their own mind as to the real reasons which lie behind the absence of satisfactory recruitment? Will the noble Lord give his personal attention to the matter because he has the reputation of producing solutions, not presenting problems?
Lord Young of Graffham: My Lords, I shall endeavour to ignore the blandishments of the noble Lord. I shall merely say that the Government seek to take advice before making up their mind and I am quite sure, having looked at the advice of Sir Robert Andrew, that they will do so.
Baroness Macleod of Borve: My Lords, in view of the many mistakes that are made by the Crown Prosecution Service, can my noble friend assure us that the standard of men and women who undertake the service will not only be maintained but improved?
Lord Young of Graffham: My Lords, I wish to assure all Members of your Lordships' House that I am certain that the standard of the Crown Prosecution Service is equal to that which would be expected for that particular process. Of course there are occasions when we are fallible and when mistakes arc made. The purpose of the review is to assess what changes are necessary in the management of legal staff, including recruitment. I am sure that that will deal with the points raised by my noble friend.
Lord Harris of Greenwich: My Lords, is the noble Lord aware that I am sure Sir Robert Andrew will be

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overjoyed to hear that the Government propose to listen to advice in the way that the noble Lord. Lord Young of Graffham, has indicated they will'? We therefore very much hope that Sir Robert Andrew's report will be published so that we can look at his precise recommendations to find out whether the Government have acted in accordance with them.
Further, is the noble Lord aware that a recent staff survey conducted in the Crown Prosecution Service indicated that 80 per cent. of the staff said that their good faith had been stretched to breaking point because of the pressures of their workload? Is not that a most alarming situation? Does he not realise that many of us will be looking for the most urgent action after Sir Robert Andrew's report has been published?
Lord Young of Graffham: My Lords, I have been long enough in this world to be somewhat wary of such surveys. I have yet to see a survey that shows that the majority of people in any occupation feel that they have been understretched in their particular job; just as rarely as I have seen a survey showing that the majority of people consider that they have been overpaid. However, we shall look at the review and I am sure that we shall take action thereon.
Lord Harris of Greenwich: My Lords, will the noble Lord answer the question I asked: will the report be published?
Lord Young of Graffham: My Lords, I cannot undertake that we shall publish the report. However, I can undertake that we shall consider it and act upon it.

Wandsworth Prison: Conditions
3.14 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton asked Her Majesty's Government:
What is their reaction to the recently published report of the board of visitors of Wandsworth prison.
The Minister of State, Home Office (Earl Ferrers): My Lords, a number of matters which were raised in the report require detailed consideration. We shall be writing to the chairman about them.
Lord Graham of Edmonton: My Lords, while I am grateful to the Minister for his reply, does he acknowledge that when the board described conditions inside Wandsworth prison as insanitary, humiliating, disgusting, degrading and inhuman, it was in fact a condemnation of government policy, especially as it was the second year that they had spoken in such terms? Given that neither the visitors, nor prison officers, nor the Government want a perpetuation of those conditions, why do the Government persist in trying to force more prisoners inside prisons like Wandsworth, thereby making conditions even worse?
Earl Ferrers: My Lords, the Government do not wish for perpetuation of such conditions. Indeed,
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an investment of some £5 million has already been undertaken, or is planned, including total refurbishment of the kitchen and the construction of a new reception and staff mess. A pilot scheme will also begin shortly to see whether integral sanitation can be introduced in advance of general refurbishment.
Lord Mishcon: My Lords, in view of this most disturbing report, is the Minister able to tell the House when such improvements are likely to be effected'? Is he not in agreement with the theory that if people are treated like animals, they may emerge as animals'? Is not that a sign of the recidivist rates that we have to face?
Earl Ferrers: My Lords, I cannot tell the noble Lord when the alterations will be completed. However, I can tell him that the Government are most concerned about the state of prisons and that we have involved ourselves in the biggest programme of new building and refurbishment this century. Indeed, since 1978 prison building and redevelopment has been increased by 117 per cent. in real terms. Further, by the mid-1990s the estate will have been virtually doubled with an increase of 22,000 places. That is in addition to the large number of places which by that time will have been refurbished.
Baroness Masham of Ilton: My Lords, can I ask the Minister whether it is true that difficult prisoners from other prisons are sent to Wandsworth? If so, does that not make the problems even worse?
Earl Ferrers: My Lords, there are cases where difficult prisoners are sent to Wandsworth. There are of course the Rule 43 prisoners. The average number in the South-East region is 716. Sixty-seven of those are in a regional unit at Albany Prison, 57 at Grendon and approximately 400 at Wandsworth.
Lord Mishcon: My Lords, I hope that the noble Earl will forgive me if I press him on the matter. The report describes insanitary squalour and completely uncivilised conditions. Is he really saying to the House that he cannot tell us at what stage improvements to make such conditions sanitary will be completed'? Is it impossible for his department to give such a date or, at least, an approximate date?
Earl Ferrers: My Lords, no; it is not. I have already told the noble Lord that £5 million has been invested, some of which has already been spent. Various schemes are being undertaken, but I cannot tell him when they will be completed.
Lord Hunt: My Lords, can the Minister assure the House that there are no longer any young offenders aged between 17 and 21 (sentenced to youth custody) who, because of the lack of accommodation in youth custody centres, are serving their sentences in Wandsworth or any other of our local prisons in the disgraceful conditions that have been described?
Earl Ferrers: My Lords, I am afraid I cannot give the noble Lord the information he requires. However, I undertake to look into the matter and I shall write to him upon it.
Lord Harris of Greenwich: My Lords, I return to the question asked by the noble Lord, Lord Mishcon, which was specifically about the conditions at Wandsworth prison. The noble Earl has told the House that £5 million is going to be spent. He has been asked one specific question: when is the scheme going to start, and when will it finish? Surely the noble Earl has that information.
Earl Ferrers: My Lords, perhaps I did not make myself clear. I said that £5 million has been invested in this connection. Some of the work has been undertaken, or is in the process of being done; in other words, some of it has already been started. If the noble Lord requires a detailed breakdown as to how much has been started, and on what particular projects, I shall of course endeavour to find that out. However, I can only furnish him with the broad generalities.
Lord Hutchinson of Lullington: My Lords, is the Minister aware that the Chief Inspector's report on the 1986 disturbances and riots in no less than 44 institutions highlighted the impoverished state of the regime in prisons as being a precipitating factor and advocated that minimum standards should be laid down to deal with the situation? Can the Minister tell the House what steps the Government have taken, since the report was published, to lay down those minimum standards to cope with conditions which the inspector described as bordering on the intolerable.
Earl Ferrers: My Lords, I have explained that the Government are acutely concerned about the state of the prisons, which is why we have undertaken the biggest prison building programme this century. By the mid-1990s there will be 22,000 additional places, which will case the problem in the prisons. In addition, prison refurbishment is taking place. We are at one with the noble Lord in trying to improve the prisons; but he will know as well as I do that it is a difficult problem which needs a vast amount of money spent on it. It cannot be done overnight.
Lord Mishcon: My Lords, will the Minister accept that, while we are grateful for the courtesy of his replies, we are apprehensive about their lack of completeness or clarity? Will he please accept that, as I understand it, the House feels it impossible for conditions such as those described at Wandsworth to continue in a civilised country? If he cannot tell us now, will he come back at a later date and tell us when those conditions will at least be turned into civilised conditions at Wandsworth prison?
Earl Ferrers: My Lords, perhaps I may give the noble Lord, Lord Mishcon, an indication of the problem. For instance, if he wishes to see a total improvement in sanitation that would mean closing down a wing. To close down a wing merely overcrowds everyone else. As he knows, at this time
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that is a difficult problem. We are dealing with it as best we can and as quickly as possible.
Lord Graham of Edmonton: My Lords, does the Minister accept that many people appreciate the practice started last year of publishing the reports of boards of visitors? It enables a great many more people than hitherto to know about conditions inside prisons. Bearing in mind that the Wandsworth hoard of visitors reported in similar terms last year and has seen very little happening, does he accept that that not only breeds cynicism but adds to the conditions in which industrial unrest occurs?
Earl Ferrers: My Lords, I understand the concern felt by the noble Lord, Lord Graham of Edmonton, over this problem. I am sure he will accept that in undertaking this considerable prison reform and building programme the Government are doing a great deal to improve those conditions. The noble Lord wants to see the conditions altered overnight. With the best will in the world, that cannot be done, but we are doing things as quickly as possible.
Lord Hylton: My Lords, does not the Question underline once again the vital need for the greater use of non-custodial sentences?
Earl Ferrers: My Lords, I do not believe that that is the correct conclusion. It means that here is a highly regrettable increase in crime. Much of that increase in crime results in prison sentences. Those can only be carried out properly and effectively when the prisons are in a good condition. Far the best course is for us to conduct our lives and our society so that people do not offend and therefore go to prison.
Lord Elwyn-Jones: My Lords, in the meantime, do not those prison conditions produce more criminals, and more determined criminals—those who have been through these experiences?
Earl Ferrers: My Lords, that is one of the problems that we are trying to address by increasing prison building.
Lord Hailsham of Saint Marylebone: My Lords, does my noble friend recollect that when, 30 years ago, as chief Opposition spokesman on home affairs, I drew attention to the disgusting state of our prisons, I was treated with almost universal execration by the party then in power?
Earl Ferrers: My Lords, I remember many of my noble and learned friend's utterances, but not that one. Doubtless it has embedded itself in his mind as well as those of other people.

Nuclear Disarmament: Verification
3.26 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they envisage discussions between NATO and the Warsaw Pact to determine principles of verification to apply to any proposals for nuclear disarmament.
The Minister of State, Foreign and Commonwealth Office (Lord Glenarthur): My Lords, no. Current discussions on nuclear disarmament are bilateral and Her Majesty's Government fully support the goal of a US/Soviet agreement to reduce strategic nuclear weapons. It is NATO's policy that any arms control agreement must have effective verification arrangements. But verification regimes must be tailored to suit each agreement.
Lord Molloy: My Lords, is the Minister saying that the INF treaty verification agreement arrived at by Mr. Shultz and Mr. Shevardnadze is only between the United States and the Soviet Union? I should have thought that it was fundamental not just to the United Kingdom but to all of NATO. Should not the Government insist that they and the rest of NATO should be involved in the verification of nuclear weapons? What role can British seismologists play in any future examination of nuclear deterrent verification?
Lord Glenarthur: My Lords, the INF agreement is bilateral. That is a fact. The details of the inspection arrangements are set out in an inspection protocol appended to the INF treaty. In addition, a basing-country agreement was signed on 11th December by the United States, the United Kingdom, the Federal Republic of Germany, Belgium, the Netherlands and Italy. When that comes into force it will establish the practical procedures and provisions necessary in order that the United States can discharge its obligations under the treaty in respect of facilities not on United States territory.
Lord Cledwyn of Penrhos: My Lords, while we welcome the resolution of the verification difficulties in relation to INF, does the Minister agree that the difficulties in relation to START are much more complex and acute? Are Her Majesty's Government confident that some progress can be made on that point when the leaders meet? Will the Minister confirm that there has been consultation with Her Majesty's Government on that and other matters?
Lord Glenarthur: My Lords, naturally Her Majesty's Government are closely associated with what develops. I am sure the noble Lord appreciates that there are complex issues to be resolved—for example, mobile missiles, SLCMs, sub-limits and all types of things—when it comes to verification. As I said earlier, we support the goal of the 50 per cent. strategic arms reduction.
Lord Kennet: My Lords, will the Minister comment on the fact that in this weeks Defence White Paper there is a passage in which the Government take modest and justified pride in the fact that they are properly associated with Soviet inspection of the removal of American weapons from this country? There is no passage describing our association with American inspection of the removal of the Soviet weapons which threaten us. Why do the Government deem it sufficient to be sure that American weapons have been removed—to most of us that does not seem to be the main danger in the world— but are not doing anything to be assured of the removal of Soviet weapons?
Lord Glenarthur: My Lords, for the simple reason that the agreement is one between the United States and the Soviet Union.
Lord Molloy: My Lords, does the Minister agree that distrust is disarmament's greatest opponent? Many NATO countries and many people in this country are alarmed because United States nuclear weapons are based in this country, not 100 miles from the House. Should we not be taken much more into consideration in any bilateral agreement involving the verification of any nuclear weapon stationed anywhere?
Lord Glenarthur: My Lords, verification is important, but, as I have said, it is important to tailor the verification arrangements to the agreement concerned. The noble Lord should be under no illusions. Soviet modernisation continues at full speed. There are longer-range missiles. They are more accurate missiles. It would be as well for the noble Lord to study those facts.
Lord Gisborough: My Lords, is my noble friend aware that I am much more alarmed at the prospect of inefficient Russian nuclear stations such as Chernobyl going off again and about the mad sputnik with a nuclear engine which is going around and which could end up anywhere than I am about weapons under American control in this country?
Lord Glenarthur: My Lords, that is an interesting view, but verification of those points may be rather difficult to achieve.
Lord Molloy: My Lords, it is terribly important. Can the Minister assure the House that he knows the difference between massive nuclear weapons and the power station at Chernobyl?
Lord Glenarthur: My Lords, of course.

Business
3.30 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Education Reform Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Control of Misleading Advertisements Regulations 1988 and the Second Reading of the Malicious Communications Bill will be taken.
I should also like to say a word about this afternoon's business. As your Lordships are aware, the House will sit tomorrow at 11 a.m. In the circumstances, the House would normally wish to rise tonight by 11 p.m. While I do not wish to constrict in any way the proper consideration of the House, I know that noble Lords will bear this in mind in judging the length of the contributions to the debate on this, our final day in Committee on the Education Reform Bill.

British Steel Bill
Brought from the Commons; read a first time, and to be printed.

Education Reform Bill
3.31 p.m.
The Parliamentary Under-Secretary of State, Department of Education and Science (Baroness Hooper): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Hooper.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 168 agreed to.
Baroness Warnock Baroness Warnock moved Amendment No. 274A:
Before Clause 169, insert the following new clause:
("Statements of special educational needs.
. In section 7 of the 1981 Act (which imposes duties on local education authorities in relation to statements of special educational needs) and section 8 of the same Act (which sets out arrangements for appeals)—

(a) in subsection (2) and subsection (9)(b) of section 7 the words 'special educational' shall be omitted:

(b) in subsections (1), (4)(a), (6)(a), (7)(a) and (7)(b) of section 8, the words 'special educational' shall be omitted.").

The noble Baroness said: This amendment may seem to sit rather uneasily among those that have been considered so far, since it is in effect an amendment to the Education Act 1981. Its purpose is to ensure that when a child gets a statement of special needs, the local education authority has a duty and has the powers to make provision for all the child's needs according to the statement.
Local education authorities vary very much between themselves as to the number of statements they make and the degree to which they make provision under them. But part of the difficulty of provision lies in the 1981 Act itself and could be remedied comparatively easily. Now seems a very good opportunity to put this right. I shall explain the present position as briefly as possible.
Section 7(2) of the Act provides that where a local education authority maintains a statement:
"it shall be the duty of the authority to arrange that the special educational provision specified in the statement is made for him unless his parent has made suitable arrangements".
However, a recent judgment, the Oxfordshire judgment of 1986, has ruled that speech and other therapies count not as educational provision but as health provision. Thus an education authority has a limited duty to provide such so-called therapies. Moreover—and this is an important point—by the same judgment it was found that local education authorities do not have the power to provide or pay for such therapies if the health authorities fail to provide them.
The situation is particularly acute in the case of speech therapy with which specifically the
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Oxfordshire judgment was concerned. There is simply no logical reason to separate speech therapy from other aspects of education. The title "speech therapy" is extraordinarily misleading. Speech therapists may be partly concerned with physiological problems of word and voice production, but much more fundmentally, they are concerned with language. They have to teach people to be articulate in every sense of the word. To regard their task as more properly medical than educational is a complete misunderstanding based on an outmoded distinction between education, supposedly concerned with thought and language, and health, supposedly directed towards the purely physiological. But in reality speech and language go together. For children without speech, or with only very rudimentary speech, education is totally impossible. The tool of articulate language must be given to these children to use before their education can properly begin and while it is continuing.
Since speech therapy has traditionally been provided by health services, it is essential that local authorities should be able to provide speech therapy and physiotherapy and any other therapies as well, where this is an essential and continuing power and a prerequisite of the child's education. Collaboration between health authorities and education authorities is always very difficult, but nevertheless it is nearly always essential to the education of a child with physical, sensory or mental handicaps.
The purpose of this amendment is to make such cross-over provision possible. It is timely to make this change when many local education authorities are reconsidering their provision for children with special needs and when all the London boroughs will be taking over education once again.
It would be extremely satisfactory if Ministers who have claimed to have the interests of the least able and the disadvantaged at heart could accept this practical improvement on the 1981 Act at this stage, thus bringing to an end considerable suffering and a great deal of frustration for a very large number of children up and down the country. I beg to move.
Baroness Darcy (de Knayth): I should like to support my noble friend Lady Warnock. I do not think we could have a more appropriate person to move this amendment to close the loophole in the 1981 Act. The situation, as she says, is confused and needs clarifying. Some local education authorities such as Berkshire, Somerset and St. Helens have brought in speech therapy but they are not clear as to what the legal position is.
I echo what my noble friend said about the nature of speech therapy. It is an essential element to give access to the curriculum, but it is also an on-going and vital component of a child's education and development. Some children end up going to residential special boarding schools in order to obtain speech therapy, which is an extra expense, and the boarding provision may not be what the parents wanted for their children.
Equally there are cases of children being sent to special day schools even though their statements of special needs say that the most suitable provision

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would be for mainstream education with a speech therapy input. So I hope that the Minister will look kindly on this amendment which could transform the educational prospects and indeed the lives of children with special educational needs by enabling them to be met as the 1981 Act intended.
Lord Renton: Althought the noble Baronesses have undoubtedly drawn attention to the difficulty with regard to speech therapists and others—a difficulty which ought to be overcome in some way or another—with respect to them, I do not consider that this amendment would be a good solution to the problem. I find it somewhat ironic that the noble Baroness, Lady Warnock, should be moving it, because the 1981 Act which she seeks to amend so radically is based upon the Warnock Report, for which we were all so grateful at the time.
The expression "special educational" attached to the word "needs"—"special educational needs" is the phrase that we have in mind—has become not only a term of art in our statute law and in the administration which has followed from it; it has become a working formula for all people involved in education and in providing services for people who have various handicaps. Also it is something well understood by those working all over the country in voluntary societies like MENCAP who try to help people suffering from various handicaps. Having checked these amendments against the 1981 Act which they seek to amend—it is one amendment but it contains two textual amendments—I fear that the result of removing the concept of special education would cause doubt and confusion. Some other way of dealing with this matter should be found.
Lord Campbell of Alloway: I support the spirit of the amendment. It raises an extremely important point where the state of the law is wholly unsatisfactory. I declare an interest having been counsel in a recent case in the Court of Appeal in which the Oxfordshire decision was challenged.
It is right to say that in that case by virtue of undertakings given under the pressure of the members of the Court of Appeal the DHSS and the LEA agreed together to provide the speech therapy. As that provision was adequate and as it was a legally aided case, my client got what was required and the case was discontinued. The impression that I and all of us at the Bar obtained was that the Court of Appeal would not have upheld the Oxfordshire judgment. But the matter, as has been said, is extremely important. It requires totally objective and in a sense leisurely consideration.
There was no reference to speech therapy in the Act of 1944—the principal Act—or in the implementing regulations. But by judicial decision—again, this was a case with which I was concerned—it was held in the case of Chance that speech therapy was a requisite statutory provision where a child could not benefit from education without it and that there was a duty to provide it. It is open to serious doubt whether the case of Chance was cited to the court which came to the conclusion in the Oxfordshire case although it must be said that it came to that conclusion on slightly different statutory provisions. It is also
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doubtful whether it could ever truly be said that speech therapy under the 1981 Act would not be a special educational provision in circumstances where the child simply cannot benefit from normal education without it.
The statement under Section 7(1) presupposes special educational provision which could well include speech therapy. The statutory duty to provide comes under Section 7(2). There is no need, strictly speaking, with the greatest of respect to my noble friend Lord Renton, to repeat the words "special educational" because that is inherent in the formation of Section 7(1) and (2).
But the reason why it could be relevant to accept this amendment is to close a very serious gap in the implementation of these provisions between various local authorities. That applies in particular to speech therapy; there is total disparity of treatment. Somerset, for example, regards itself as under a statutory obligation to provide speech therapy for pupils who cannot receive normal education benefit without it. Oxfordshire takes precisely the opposite view.
This is not an easy problem. I respectfully agree with my noble friend Lord Renton in questioning whether the amendment seizes the fundamental issue and whether it resolves it. The fundamental issue is simple to state. But, like most fundamental issues, it is not so easy to resolve. There is a terrible shortage of speech therapists. Their pay and conditions are settled by the DHSS. And they are employed by the DHSS. But the DHSS is under no statutory obligation whatever to provide their services to meet statutory requirements under the Act of 1981 or any other statute in the context to which I have referred. This aspect is fundamental and I would respectfully suggest warrants attention.
The obligation upon the local authority to pay the DHSS for the services of the speech therapists also warrants attention, as does the obligation upon the LEA as implemented by Somerset among others to provide speech therapists in each of its schools. That should be incorporated in a statute.
I support the spirit of the amendment and thank the noble Baroness for having moved it. I hope that my noble friend the Minister takes on board the broader spectrum of the problem which I have sought to explain. If that could be done my hope is that the Committee would not have to divide on the amendment but instead wait to hear what constructive proposals my noble friend the Minister might be able to produce on Report.
3.45 p.m.
Baroness David: My name is also down to this amendment and I should like to support it. I think everyone would agree that there is a problem. It may be, as the noble Lord, Lord Renton, said, that this amendment is not the best way of dealing with it. I hope however that the Minister will agree that there is a problem and that it should be solved. I hope that if she is not satisfied with this amendment she will at least take it away and come back with her own proposals on Report.
The Earl of Swinton: I go along with what has been suggested by my noble friend Lord Campbell of Alloway and by the noble Baroness, Lady David. There is obviously a difficulty here. As I understand it some local authorities may well be breaking the law at the moment by providing speech therapists. There has been no mention today of physiotherapists, who are also involved, or of occupational therapists.
Even had my noble friend Lord Renton not pointed out the technical difficulties of this amendment, I could not have supported it as it imposes a duty on local authorities. I should like my noble friend the Minister to look at the possibility of inserting the word "might" instead of the word "shall" at some stage into the Act so that local authorities providing this facility can continue to do so. Those who would like to but feel that they would be breaking the law if they did would be encouraged while those authorities not providing this facility would see that their neighbours were and, following good practice, might do so themselves. I hope that my noble friend the Minister who has been so good at looking at so many of these problems of special needs will also consider this one.
Baroness Masham of Ilton: I too wish to support the spirit of the amendment. I wish to inform the Minister that recently at a Save the Children meeting I spoke with a professor from Manchester University who studies the special needs of children. When we were discussing the matter of therapists in schools he said that there was a great problem of lack of speech therapists and physiotherapists which we all know about. He said that it was important that their skills should be passed on to care attendants and to parents who could then help with the repetitive work which speech therapy entails. Teaching such children is a long process and some care attendants are very good at it. They are employed by local education authorities. Therefore it is sensible to bring such services together and make them more flexible so that they can be provided by the local education authorities and perhaps by the health authorities, if that is thought necessary.
Perhaps I may also mention the problems of the physically disabled people who have growing spines and limbs. They sometimes sit for long hours at desks. It is easy for the physically disabled to get into bad habits of posture. With children, bad posture can deform limbs. It takes a long time to undo the results.
Just before Christmas I went to give the prizes at a comprehensive school in Ware. There were eight severely handicapped children in a mainstream school. I asked whether the children were having physiotherapy. The headmaster said that they were not. The problem is very serious and we must make an investment in the future by protecting children. I hope that the Minister will listen to the many people who understand and know about such problems. We have been told by the noble Lord, Lord Young, that the Government listen. I hope that the Minister will also listen today.
Lord Parry: Perhaps I may be allowed to underline what has been said. As regards services provided to the handicapped in schools it is essential that it is seen
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to be the duty of the local authority to provide them. Furthermore, as changes take place, which are largely welcomed by people working in the field, to reassimilate people into the mainstream of education, those services should be kept up and made available. I associate myself most strongly with the amendment.
Lord Hylton: I am old enough to recall the 1969 Act, which I believe was an education Act, which transferred responsibility for special schools from social service departments and the DHSS to education authorities and therefore to the ministry of the noble Baroness.
Lord Renton: Perhaps I may intervene briefly. It was not 1969. It was when the present Prime Minister was Secretary of State for Education. I believe that that was 1972 or 1973.
Lord Hylton: I stand corrected. However, the point is the same. A similar administrative change was very successful in that context. I hope that an administrative change will produce an improvement in the situation which we are discussing.
Lady Kinloss: I support the amendment. It seems from the arguments that have been put forward that it is trying to ensure that children who are already disadvantaged do not fall between two stools—the local authorities and the health authorities. Surely the legal muddle should be sorted out now while we have the Education Reform Bill before us.
Baroness Hooper: I have listened with interest to the debate and the views which have been expressed. I should like to make clear to the Committee both the aims of the amendment and its impact. The aim has been stated with fervour and sincere feeling by the proposers of the amendment. It is to ensure that non-education provision in the statement of special educational needs has the same status as educational provision. Non-educational provision includes not only speech therapy, occupational therapy and physiotherapy, but also other services provided by district health authorities, social services departments and voluntary organisations. These services may include equipment, care, respite care and counselling. As a consequence of the amendment, LEAs would be under a duty to make all such non-educational provision or to be answerable to parents through appeal committees if they failed to do so. The impact of the amendment would therefore be to place LEAs under a duty to make non-educational provision which it is not their province to provide.
I note the suggestion made by my noble friend Lord Swinton, when he said that the provision should be permissive rather than obligatory. I shall look at the implications of that suggestion. However, just as the amendment goes beyond educational powers, so it goes beyond what education Ministers and education law can deliver, and for good reasons.
The provision of speech and other therapies in schools are component parts of the School Health Service. I must correct both noble Lords when I say that responsibility for that service passed from the

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DES to the DHSS in 1974. Parliament thought then that it was best that provision of all health services, including services to children, should be centralised. That remains the Government's view. Certainly the introduction of new procedures under the 1981 Education Act has identified an increased need for some services, particularly speech therapy, that health authorities are not always immediately able to provide.
But today we are concerned about children. We must remember that we do not have infinite resources; nor do we have an infinite supply of trained practitioners, as my noble friend Lord Campbell said. Let us be very clear about one thing. Were we to say that children with special educational needs in need of such treatment should have first call on all such services, we would be denying access to stroke victims, to accident cases and to many other people with good medical reasons for requiring such provision.
Having said that, I must point out that since 1979 the numbers of speech therapists and physiotherapists employed in the NHS have risen by 66 per cent. and 35 per cent. respectively. That is not a record of a government who are complacent about demand for these services. The Government and the DHSS have given a high priority to meeting this need. However, needs, demand and expectations continue to rise in this area.
The Government recognise the problem. We have listened to the arguments. My right honourable friend is fully aware of the importance of speech and other therapies to certain children with special educational needs. In asking the Committee to reject the amendment, I do so not because its objective is ill-founded but because in law the terms of the amendment simply cannot achieve that objective.
Baroness Young: Before my noble friend sits down, perhaps she can clarify one point. A gap appears to have been identified between the DHSS and the Department of Education and Science. We are all agreed that the amendment on the Marshalled List is not correctly drafted. However, my noble friend Lord Swinton made a suggestion and the Minister has agreed to look at it. I believe that it will meet the needs of the Committee if the Minister agrees to look at it positively and perhaps brings back an amendment at a later stage of the Bill.
Baroness Hooper: I can give that assurance. In fact in doing that I believe that we shall perhaps be in the position we thought we were in before the Oxfordshire judgment.
Lord Campbell of Alloway: Perhaps my noble friend will take on board and bring into the statute the simple concept that in an appropriate case on the facts speech therapy is an educational provision. In other words, we should set aside by statute what I believe the Court of Appeal would have done if it had proceeded on the basis of the Oxfordshire judgment. We should get the matter straight by statutory means. That would not bind the authority, other than to say that in an appropriate case on the facts if a child cannot benefit from education without speech
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therapy, then speech therapy is a special educational need and there is a statutory obligation on the local authority to provide it under Section 7(2) of the Act. We must make that plain.
Baroness Hooper: It is a little difficult for me to give a firm commitment on that point at this stage but obviously I shall look into the matter.
Baroness Warnock: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 169 [Education Assets Board]:
4 p.m.
Baroness Hooper Baroness Hooper moved Amendment No. 274ZZA:
Page 156, line 15, at end insert—
("(6A) Any local education authority shall give the Board such information as the Board may require for the purposes of the exercise of any of their functions under this Act.").
The noble Baroness said: This is an essential amendment to ensure that the Education Assets Board is fully able to carry out the functions prescribed by the Bill. While we are confident the local authorities will co-operate with the board in identifying the property, rights and liabilities to transfer by virtue of the Bill to the new higher education corporations and grant-maintained schools, we must ensure that it has a right to obtain from local authorities whatever information it judges necessary to complete its task. I trust, therefore, that the Committee will agree to this amendment.
On Question, amendment agreed to.
Clause 169, as amended, agreed to.
Before Schedule 6:
[Amendment No. 274ZZB not moved.]
Schedule 6 [The Funding Councils and the Assets Board]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 274AA:
Page 189, leave out line 35 and insert—
("(a) to acquire land and other property, and subject always to the terms and conditions on which such land and other property is held, whether heritably, on trust or otherwise, to dispose of the same.").
The noble Lord said: This is the first of a number of amendments which appear on today's Marshalled List which have been suggested by the Church of Scotland. The amendment deletes paragraph (a) which reads:
"to acquire and dispose of land and other property".
and substitutes the words printed on the Marshalled List.
The position is somewhat difficult because consideration of Schedule 6 comes before the discussion of Clauses 173 and 174. There is a particular problem in Edinburgh University where the faculty of divinity operates in New College which is owned by the university under a deed which provides that if the property ceases to be used as a

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faculty of divinity or if the faculty of divinity provides teaching which is not in accordance with the faith and doctrines of the Church of Scotland the property reverts to the Church of Scotland and is taken away from the university.
It is to deal with that type of situation—which may well occur elsewhere than at Edinburgh University—that this amendment is suggested. It would allow land and property which is bequeathed or transferred to universities under specified conditions to be dealt with taking account of those conditions. I commend the amendment to the Committee.
The Lord Chancellor: In moving the amendment the noble Lord, Lord Morton of Shuna, illustrated at least one difficulty which may arise in defining the idea of academic freedom in the faculty of divinity in the University of Edinburgh. However, that is not the main purpose of the amendment.
The amendment relates to Schedule 6 which describes the powers, not of the university, but of the funding council. Accordingly the problem to which the noble Lord has directed attention is one of land belonging to Edinburgh University. It is not a question of land which will belong to the funding council.
Perhaps I should make it clear in case there is any misunderstanding that there is no suggestion that the Universities Funding Council will own the land belonging to the universities. The council may need land for itself because it may need a small office or accommodation of that kind, but there is no question of the Universities Funding Council taking over the estates of the universities and colleges. Therefore there is no question of the land presently occupied by the faculty of divinity of the University of Edinburgh ever coming under the powers of the funding council laid down in this provision.
The university will continue to be bound by the terms of the trust under which it holds the land. In the event of any of the events occurring to which the noble Lord referred the land would revert to the Church of Scotland.
While I appreciate the problem, I do not think that it is a problem which arises within the terms of this particular schedule or indeed the terms of the Bill.
Lord Morton of Shuna: I am obliged to the noble and learned Lord for what he has said. I shall withdraw the amendment and consider what he has said in more detail and perhaps obtain some advice. There are difficulties in the Bill itself in relation to this kind of problem which arise under Clause 174 which we shall come to later. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 274AB:
Page 189, line 46, at end insert—
("( ) The chief officer of the Corporation shall be appointed as such by the Secretary of State and shall hold and vacate office in accordance with the terms of his appointment.").
The noble Lord said: This amendment is grouped with Amendments Nos. 274AC and 274AD. The amendments relate to the appointment of the chief officer of the corporation. The idea behind these three amendments is that, rather than having the situation as described in the schedule whereby the first chief officer shall be appointed by the Secretary of State and each subsequent chief officer shall be appointed by the corporation with the approval of the Secretary of State, each chief officer shall be appointed by the Secretary of State, no doubt after consultation. This is a fairly simple trio of amendments but that would appear to be a more straightforward way of dealing with the situation. I beg to move.
Baroness Hooper: Schedule 6 sets out the details of the structure and operation of the two funding councils for higher education and the Education Assets Board. For simplicity we have drawn together the common factors in each case into one schedule to govern all three corporations.
I recognise the arguments of the noble Lord, Lord Morton, in favour of simplicity. However, it may be best for me to explain our thinking on the position of the chief officer by referring to the Universities Funding Council. This is because this part of the structure for the three corporations arose out of the review of the University Grants Committee carried out by a committee under the chairmanship of the noble Lord, Lord Croham.
The Croham report recommended that the chief officer (referred to in the report as the director general) should be a member of the council and should be appointed by the council with the Secretary of State's approval. It further recommended that the first chief officer should be appointed directly by the Secretary of State. The Government announced in the consultation paper on the UFC published last May that they intended to accept those recommendations. Those are precisely the provisions which appear in paragraph 3 of Schedule 6.
It is easy to understand that the first appointment has to be made by the Secretary of State. The councils have to be set up in shadow form, before their incorporation, as important work has to be started. Consequently a chief executive designate is needed, often before the group of people who will eventually become the council members have been brought together. But beyond that it is important that subsequent appointments should enjoy the confidence of the corporation.
However, it is also important that the appointment should enjoy the confidence of the Secretary of State. The chief officer will be the accounting officer of the corporation, responsible for the money that Parliament has voted for it at the Secretary of State's behest.
We believe that the Croham recommendations concerning the chief officer achieved a suitable balance, and we consequently adopted the same model for the PCFC and the EAB.
The noble Lord's amendment would have the Secretary of State alone appointing the chief officer. But we believe that it is important for the council also to take an active part in the decision. I believe that

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our provision requiring the Secretary of State and the corporation to agree on the appointment is the correct one. I do not think that it would be right for the Secretary of State to make the appointment in isolation and I hope that the noble Lord will withdraw his amendment.
Lord Morton of Shuna: I was not suggesting that he should do it in isolation; I was suggesting that he should do it after consultation. However, it is not a very important matter and I do not wish to delay the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 274AC and 274AD not moved.]
Baroness Darcy (de Knayth)Baroness Darcy (de Knayth) moved Amendment No. 274ADA:
Page 190, leave out line 28.
The noble Baroness said: I beg to move.
The Earl of Arran: We have already explained that the Government agree with the points made by the noble Baroness in these and her other similar amendments. We are therefore happy to accept both her
amendments.
On Question, amendment agreed to.
Baroness Darcy (de Knayth)Baroness Darcy (de Knayth) moved Amendment No. 274ADB:
Page 190, line 29, leave out ("otherwise").
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 274ADC:
Page 190, line 35, leave out from ("may") to end of line and insert ("determine; and
(b) shall pay, or make such payments towards the provision of, such pension to or in respect of any member of the Corporation as the Secretary of State may determine.
(2) If a person ceases to be a member of the Corporation and it appears to the Secretary of State that there are special circumstances which make it right that he should receive compensation, the Secretary of State may direct the Corporation to make to that person a payment of such amount as the Secretary of State may determine.
(3) A determination or direction of the Secretary of State under sub-paragraph (1) or (2) above requires the approval of the Treasury.").
The noble Earl said: In moving Amendment No. 274ADC I should also like to speak to Amendment No. 274ADD. These are well precedented technical amendments relating to the terms and conditions of service of members of the UFC, PCFC and EAB. These contingency provisions supplement those already in the Bill relating to these bodies' employees. I commend them to the Committee and I beg to move.
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 274ADD:
Page 191, line 14, at end insert—
("(6) The Corporation shall pay to the Treasury, at such times as the Treasury may direct, such sums as the Treasury may determine in respect of the increase attributable to sub-paragraph (5) above in the sums payable out of money provided by Parliament under that Act.
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(7) Where an employee of the Corporation is, by reference to that employment, a participant in a scheme under section 1 of that Act and is also a member of the Corporation the Treasury may determine that his service as such a member shall be treated for the purposes of the scheme as service as an employee of the Corporation (whether or not any benefits are payable to or in respect of him by virtue of paragraph 6 above).").
On Question, amendment agreed to.
[Amendment No. 274AF not moved.]
Schedule 6, as amended, agreed to.
Clauses Nos. 170 to 172 agreed to.
4.15 p.m.
Clause 173 [The University Commissioners]:
Lord Jenkins of Hillhead Lord Jenkins of Hillhead moved Amendment No. 274AF:
Page 159, line 10, after ("exercise") insert ("in accordance with subsection (2) below").
The noble Lord said: In moving this amendment, I believe that, for the convenience of the Committee, we can also unlock the discussion on Amendments Nos. 274BA, 275, 275A, 276, 277, 279B and 280.
I am glad to mention that those amendments will be discussed with Amendment No. 274AF because my noble friend Lady Seear and I claim no exclusivity of wisdom for the words that we have chosen in our amendment. Indeed they were not originally ours but were taken from a speech made by the Secretary of State for Education and Science to the Vice Chancellors on 30th October last year. We hoped that that would make them acceptable to the Government. However, if it is argued that one of the other amendments would do the job equally well and more neatly I shall be quite content. I have no pride of authorship; merely a desire to see the result achieved.
However, the job must be done and it must be done in statutory form. Words in Hansard are no substitute for sections and subsections of an Act of Parliament. I hope that the noble and learned Lord the Lord Chancellor will not try to suggest otherwise.
That such a declaration would be desirable I hope is not in dispute. It arises both from appearance and reality. The noble Lord, Lord Blake, in the debate on Second Reading, spoke with great authority and persuasiveness about the importance of reassuring the academic community, whose morale, he said, was badly shaken. He used the words "depression" and "resentment", which were strong words coming from the noble Lord who speaks with habitual restraint. But it is not just a question of the need for psychological balm. The abolition of tenure leaves a dangerous hole which needs to be plugged.
Broadly speaking, it is true to say that university opinion has not strongly resisted that abolition. I believe the restraint has sprung from a desire not to be too concerned with material self-interest and with claiming for university teachers financial and job security not enjoyed by most other sections of the community. It may be that this self-abnegation has been carried too far for two reasons. First, there will be most undesirable anomalies between those who move to new jobs without protection and those who stay in old ones with protection. There is far more of

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a promotion trap here than anything arising out of the banding amendment to the poll tax Bill about which the Government have been so concerned. Secondly, there is some mounting evidence that the new arrangement will militate against foreigners, particularly Americans, accepting British university appointments. If that proves to be the case, cross-fertilisation (which is desirable) will turn increasingly into a one-way brain drain (which would be highly undesirable).
In any event, it looks as though tenure will go and that there will be certain inevitable and undesirable consequences. But surely it cannot be intended that academic freedom should be imperilled with it in a kind of sidewind. That would be a remarkable example of throwing the baby out with the bath water. The issue of academic freedom therefore becomes a major test of the Government's intentions. I cannot believe that, if the good intention is there, satisfactory words cannot be found. There are many precedents: Article 10 of the European Potocol; the Government's own previous Bill to protect free speech on university campuses; the use of the words "justice" and "freedom" rather freely elsewhere in this Bill; the Canadian experience (to which attention was drawn in a powerful letter in The Times earlier this week).
I therefore strongly urge the noble and learned Lord the Lord Chancellor, in whose authority, goodwill and intellectual sympathy we place great hope, either to accept one of the amendments on the Marshalled List or to indicate quite clearly that he has an equally effective one of his own in preparation which he will bring forward at Report stage. I beg to move.
Lord Morton of Shuna: This group of amendments includes Amendment No. 275A in my name and those of the noble Lord, Lord Grimond, and the noble Earl, Lord Russell. It is an amendment seeking to add the words:
"to promote the University as a free and independent community of scholars in a wide range of subjects".
The whole issue of academic freedom, as we have heard from the noble Lord, Lord Jenkins, raises the issue of tenure. However I do not wish to deal with that matter because I have no real connection with universities. I wish to speak about another aspect which is more important to me, and I think to a large section of society; namely, academic freedom—the provision of a community of scholars who are free and independent to investigate and teach a wide range of subjects. I suggest that this is a matter of vital importance to the development and existence of freedom of expression in the country generally. We must encourage this to grow and not restrain it in any way. We must retain places where the development of ideas is positively encouraged even if the particular ideas may be temporarily unpopular or unexpected.
In my profession, practising the law, it is quite obvious that those of us in practice do not have the time, and may have the inclination driven out of us, to think out new ideas. We have become constrained in our habits of fitting the existing law to the needs of clients and do not have the time or inclination to look
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at wide-ranging new ideas on how the law may be reformed. For such ideas we look to the academic lawyer. It is that approach that we must encourage in all the various sciences.
Of course it is important that there should be freedom of speech. On this side of the Chamber we are wholly in favour of freedom of speech. This entails that anyone, however unpopular, must be protected and allowed to address meetings, even in universities. Recent legislation has provided, apparently successfully, for that. We take the view very strongly that even if somebody is propounding an unpopular idea—if someone like M. Le Pen were to come to adddress a university or other institution because he was asked to do so—it is his right to do so. It is the right and duty of other people to listen to him and that right must be protected. We would therefore wholly dissociate ourselves from any idea of preventing such freedom of speech. We regard that approach as wrongheaded because silly ideas are best met and countered by listening to them and demolishing them in argument. Therefore we would be wholly in favour of freedom of speech, and we hope that this debate will not be sullied by references to previous occasions where there has been trouble at universities, as of course there has been trouble on occasions elsewhere.
Lord Thomas of Swynnerton: I should like to draw attention to Amendments Nos. 275 and 276 which stand in my name and those of my noble friend Lord Blake, the noble Lord, Lord Adrian, and the noble Earl, Lord Halsbury. The form of words which we have put forward derives from the speech of my noble friend Lord Blake on the Second Reading of this Bill to which the noble Lord, Lord Jenkins of Hillhead, has already drawn attention. My noble friend unfortunately is at the moment in West Canada lecturing to branches of the Sir Winston Churchill Society. Otherwise he would be here today to support this amendment to which he has his name.
I do not disagree with anything that has been said about these amendments or believe that any of them has a superiority to the others, although I think that ours is more pithy than the others. The aim of the amendments essentially is to establish, as I see it, that when tenure is abolished and the academic world has its employments on the same terms as the rest of the community—actions with which I am in general sympathy—academic freedom should be guaranteed.
With regard to "academic freedom" those of us who put forward these amendments are thinking in terms, for example, of freedom of study, thought and expression, both in public and in private, and freedom of publication. In practical terms this would mean that in the statutes of every university there would be a statement to which an aggrieved academic could if necessary turn if he thought his dismissal was due to considerations of his work, what he had said or what he was teaching rather than to disorderly conduct or negligence or because the university had run out of money.
My noble and learned friend the Lord Chancellor in his eloquent speech at Second Reading implied that he thought an amendment along these lines was not necessary on the ground that the aim was covered

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by the inclusion of the words "justice and fairness". My noble friend Lord Blake hinted that he thought in most cases that would be so. That is something to bear in mind. On the other hand, those words are very general and it is important for the Committee to realise that the universities have made known that they want a clause of this kind introduced into the Bill, and want it very strongly. I am sure that the Government in general share the opinion, as I do, that these institutions are sufficiently important, and make a substantial enough contribution to the national life, that if they want something strongly they should have it unless there are very good reasons why they should not. I cannot believe that the difficulty of defining academic freedom can represent a very good reason.
As the noble Lord, Lord Jenkins of Hillhead, reminded us, other countries have formulated these definitions. If the Department of Education and Science does not have adequate legal advice on this question I have no doubt whatever that many universities can give effective advice.
However, there is another reason why we should think about these amendments very seriously. As my noble friend Lord Blake said in his speech on Second Reading, there is no doubt that relations between the Government and universities are not good. I do not agree with the noble Earl, Lord Russell, in his fine, uncontroversial maiden speech at Second Reading that these matters are entirely the fault of the Government. In any good quarrel—and this is one—both sides have some responsibilities. I have no doubt whatever that universities, for example, have underestimated the outrage which has been widely caused by their apparent inability to guarantee freedom of expression to visiting speakers such as my noble friend Lord Joseph or others on other occasions. The noble Lord, Lord Morton of Shuna, mentioned this. It is a very important point. It is one reason why universities have suffered in the public estimation. I dare say that we could all think of other ways in which they have contributed at least to these bad feelings.
At the same time, any fair-minded person—and the Government are full of fair-minded persons, as we in this Chamber know very well—would recognize that there are some things which the Government have done in relation to universities which have exacerbated bad relations. In many ways the very inclusion of these university clauses at the tail end of a long Bill dealing primarily with education in schools must seem rather a humiliation to universities. After all, universities do many things other than educate, and even if they dealt only with education they are large enough institutions to deserve a Bill of their own if it were thought necessary.
This is not the occasion to make a speech which might have been better made on Second Reading. It is obvious that the background of bad relations is something that the Government will want to bear in mind when considering how to implicate these proposed amendments in the Bill.
I do not know whether the Government can afford to be permanently on bad terms with the universities.
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I suppose that probably in the abstract they could, but they must want to be on good terms with the universities. I can think of no better way of showing that desire than by accepting an amendment such as my noble friends and I have put down which would certainly be very much in the spirit of the paragraph in the Croham Committee's report, where it reminded us that the autonomy of universities and government funding are two separate principles whose co-existence must make for compromise. If they accept one of these amendments in the terms I suggest, I have no doubt that they will also be going a long way towards restoring between the Government and the universities that state of harmony and affection—I am quoting from Thomas Jefferson's inaugural address—
"without which life and indeed liberty itself are but dreary things".
4.30 p.m.
Lord Hatch of Lusby: I speak on this issue with personal experience. In 1953 the head of my department at Glasgow University found a clause which nobody else in the university knew about and which enabled him to terminate my contract after five years, when it was believed that all members of the senior staff had tenure. I was lucky. The vice-chancellor of that time was a very great man, Sir Hector Hetherington. He saw what was happening and set up a university commission of which he himself was chairman. Within a few weeks I was offered my post back. I did not take it, but I was offered it. This was solely on the grounds that the head of my department did not like some of the activities in which I had been engaging. I have no doubt that many noble Lords dislike many of the activities in which I engage, but that, with one exception, has never led them to try to silence me.
If I had been less lucky than having that very fine vice-chancellor as an employee of the university I would have lost my post. I believe with the noble Lord, Lord Jenkins of Hillhead, that this is the central issue of academic freedom. The Government have made some concessions to their relationship with the individual academic, but they are not sufficient because as the Bill reads the academic is not protected against his employer. Unless he is protected against his employer we cannot claim that the academics of this country have academic freedom.
I wish to quote from a speech made by the noble Baroness, Lady Hooper, in November last year in this Chamber when she said that the Government took the view that academic staff should have freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy of losing their jobs or the privileges that they may have at their institutions. She went on later to say that the Government recognised the relevance of academic freedom to the legislation that they would be bringing forward shortly to modify the tenure of academic staff; the relevant provisions would be framed so as to take the issue into account. I simply suggest to the noble Baroness that this is precisely what she is being given the opportunity to do this afternoon, by putting provisions into the Bill to safeguard the individual

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rights of academics not against the Government solely but against the dangers that can arise and sometimes do arise from the employers and the institutions themselves.
I suggest that it is important that when the Bill is passed the commissioners are given directions that whenever they alter the statutes, the charters or in some cases the law they should be vigilant in safeguarding the principles of academic freedom for the individual. That is the kernel of academic freedom.
I beg the Government to put their own words into practice by accepting one of these amendments to protect the right of the individual academic to engage in that form of work which seems to him or her to be most useful and most constructive and in which he or she may be going against the received view and may be unpopular. It may create administrative difficulties for vice-chancellors but they recognise those difficulties and have said that they are prepared to accept them.
I urge the Governnment to put those words into the Bill which will protect the individual rights of academics and by so doing protect and continue the very fine history of the universities in this country in safeguarding academic freedom and freedom of thought.
Lord Allen of Abbeydale: As Amendment No. 277 has been grouped with the others, perhaps I could say a word about it. It is aimed at the same goal as the amendment moved by the noble Lord, Lord Jenkins of Hillhead, but I should like to put on record that it tries to reach it by a different route. It would put an obligation on the university to satisfy the commissioners that it had made provision which ensured that academic freedom within the law was secured for members of that university. In adopting that approach the amendment follows the precedent of Section 43 of the Education (No. 2) Act 1986, which provided:
"Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees … and for visiting speakers".
While I am on my feet perhaps I could say that, as has been pointed out, other countries, including Canada as we now know, have managed to evolve satisfactory working definitions of "academic freedom". There are strong feelings on this topic held in the universities and there will be great puzzlement if the Bill emerges without a safeguard of some kind being written on this point. I very much hope that the noble and learned Lord will be able to give some reassurance to us when he replies to the debate.
Lord Grimond: I have put my name to an amendment which is grouped with the amendment under discussion. Therefore I should like to say a few words about it and about academic freedom in general. I do not intend to cover the arguments which have been deployed. I wholly adopt what has been said by the noble Lords, Lord Jenkins and Lord Thomas, and others. They have adequately covered
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the essential needs for those in universities to be able to express unpopular or alarming opinions yet not be persecuted because they are unorthodox.
I should like to turn to one or two other points, although I fully admit that that is the real core of the matter. First, what is the real mischief about tenure? How many cases are there in which tenure has done great harm? I have no doubt that some academics have presumed on tenure and possibly have not pulled their full weight. However, there is a danger in attacking tenure.
In America, for instance, attacks on tenure have led to those who do not have it being left unprotected against a form of persecution. There is a danger that we may encourage universities not to go for excellence, which has its dangers, but for the safe second rate. I do not believe that that would be at all desirable in the case of British universities. Therefore unless there are strong reasons of which I have not heard against a general attack on tenure, I have an open mind. I agree that no one can claim a right for ever to a certain job but I believe that we must carefully consider the results of totally abolishing it.
The present situation has led to the frustration of some movements which I understand the Government want. For instance, at the University of Kent, with which I have the honour to have an amateur connection, we are most hampered in arranging for an exchange of departments with another university because that will mean the end of tenure. I understand that promotion means the end of tenure. This is not working out exactly in the way the Government hope because it is preventing the movement and collaboration among universities which they seek.
The second point that I wish to stress arises from my amendment. It has already been eloquently mentioned by my co-signatory, the noble Lord, Lord Morton. The noble Lord, the noble Earl, Lord Russell, and myself have drawn attention to the need for a university with a free and independent community of scholars in a wide range of subjects. I believe that that is also under attack. However, to my mind it is absolutely essential to the very nature of a university as we have been brought up to believe in it ever since the days of Newman.
The technical contribution of universities is enormously important. Their research in science and pure science is of almost incomparable importance. However, it is not their only importance because I believe that the contribution of universities will increasingly be to look at the really important questions of our time. They are questions regarding, for example, genetic engineering; pollution; how to deal with the vast number of impoverished people in the world. They need not one discipline but co-operation among many. I am told that in science advances are made through interdisciplinary work and not simply through one discipline. Therefore we want to keep a wide community of scholars, from all kinds of backgrounds and disciplines, if the universities are to play their fullest part in the modern world.
I have heard it said, although not in this Chamber, that our universities compare badly with those of Germany and Japan as regards training engineers

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and other technologists. I wholly reject that argument. Unfortunately—and possibly through no fault of the universities—the German nation has hardly contributed to civilisation in this century; nor has the Japanese nation. One can think of the two world wars. I should rather have a country which had a more civilised view of the world and was not wholly concentrated on material wants. I should also like to point to the importance of judgment. I maintain that those matters are more important to the world today and to this country than the advance of pure technology, important as it may be.
I believe that those matters are of the greatest importance to the nation at large. Therefore academic freedom is not only of great importance to scholars, scientists and those in universities but is essential to British life. It is not only a question of safeguarding the unorthodox. Education is an art and not a science. We must be careful in laying down rules about it.
I was taught modern history by one of the greatest medieval historians of this century, Professor Galbraith. At first sight it may be thought that he was not a suitable person to teach modern history. He did not approve of it very much. He thought that the world had gone downhill since the end of the Middle Ages. He shared a profoundly new and interesting view on modern history and it was a revelation for a boy coming from school to be taught by someone who did not take the orthodox view. It was not revolutionary; he merely pointed out a different view. I speak subject to correction by the noble Lord, Lord Morton, but I believe that one of the greatest authorities on constitutional law in Scotland was a professor of Sanscrit.
One cannot foretell the contributions that people will make. By having what may at first sight appear to be unwordly disciplines, such as medieval history— which I suppose does not add to the balance of payments and contributes little to the public sector borrowing requirement—something is injected into universities which is vital to their very idea. It throws a new light on certain aspects of our life which can be immensely important. Therefore I beg the Government to pay attention to what has been said throughout the Committee today.
We must put something into the Bill which makes it abundantly clear that the Government respect the idea of university and that at the core of the idea is freedom, including the freedom to be eccentric and unorthodox.
4.45 p.m.
Lord Beloff: After the interesting tour d'horizon to which we have been treated by the noble Lord, Lord Grimond, perhaps we can come back to the nuts and bolts of the matter. I rise to speak briefly in support of the amendment proposed by the noble Lord, Lord Allen of Abbeydale. I believe that it has the approval of the Committee of Vice-Chancellors and Principals. His suggestion of the way in which we can obtain our common objective appears to me to be the most effective and comes closest to the general intention of this part of the Bill.
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I am extraordinarily surprised that I must speak in support of such an amendment. As the noble Lord, Lord Hatch, reminded us, it is as long ago as last November that, in the speech made by my noble friend Lady Hooper and in other pronouncements, the Government committed themselves in principle to embodying this in the Bill.
Many of us on this side of the Committee find it very difficult to understand why after six months of discussion, representations from the universities and negotiations with the Committee of Vice-Chancellors and Principals it is still not possible, unless the noble and learned Lord can delight and surprise us, for the Government to meet the unanimous wishes of the university community. A cause that unites the noble Lord, Lord Hatch of Lusby, and myself must be regarded as having a very broad spectrum of support.
I do not know whether this is true, but it is commonly said in university circles that the difficulty has been in the inability of the Government's lawyers to define academic freedom and the belief that without such a definition it cannot appear in the Bill. If this is true, it seems to me to be most extraordinary. It is like asking one to believe seven impossible things before breakfast.
Academic freedom is an abstract concept, but lawyers are used to dealing with abstract concepts. They talk freely. When the noble and learned Lord refers to the proceedings of the Judicial Committee of your Lordships' House I am sure that he says that they are dispensing justice. The meaning of justice has been argued about ever since Plato. To take a more mundane example, we know that in the last decade one of the principal growth areas of English law has been administrative law; the intervention by the courts in the administrative process. This has very largely rested on the single word "reasonable". Was the Minister's action reasonable? Was the action of the borough council reasonable? However, I dare say it would be very difficult to find a definition of reasonable.
In other words an abstract concept can be used in a legal document if you trust your courts. It is in the course of applying the principle to individual cases that the concept is fleshed out and precedents are created to which subsequent cases can be referred. Perhaps the noble and learned Lord will enlighten me, but I am baffled as to why what is possible with regard to fairness and reasonableness is impossible with regard to academic freedom.
I do not believe that the mischief that we are seeking to correct is likely to be a very widespread one. The kind of case to which the noble Lord, Lord Hatch of Lusby, has referred is pretty rare in British university experience, whether in universities which have tenure or those which have never had tenure. On the whole the university communities in this country, at least in this century, have been tolerant places and few people have suffered from holding unorthodox or unpopular opinions. However, it can happen in relation to social questions; it can happen in relation to scientific investigation where it is even more important that it should not happen. Some new branches of science were very much frowned upon by the scientific establishment when they began. If people feel that they are losing their jobs because

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their field of inquiry calls into question conventional wisdom, surely this situation should be met.
I could understand it if the vice-chancellor of a university said, "Please do not land us with the possibility of litigation even if this is likely to happen only very rarely". The universities, which would have to confront any litigation arising out of such a commitment to academic freedom and would have to devise perhaps complicated internal procedures of investigation appeal could say that they have a lot else on their plate. But when the universities themselves are unanimous in asking for this system, which they would have to operate, I remain, as I said at the beginning, totally unable to understand why the Government do not stop this debate short. Why does the noble and learned Lord not get to his feet to say that although he does not like the wording of the amendment of the noble Lord, Lord Allen, or one of the other amendments, he is quite prepared to follow what the Chancellor of the University of Oxford has said and to come forward with something which will satisfy the case that has been made this afternoon. We could then get on to the rest of the Bill and perhaps get home a little earlier tonight.
The Lord Chancellor: If Members of the Committee are anxious to get home, I am very anxious to speak. I can see that there are one or two others who wish to make a contribution and it is in deference to them that I have not—I am grateful for that, which I might take as a welcome. The Government have always been committed to the view that the concept of academic freedom is a valuable one. It has been expressed eloquently in words which have been adopted in the amendment moved by the noble Lord, Lord Jenkins of Hillhead. The Government have no desire whatsoever to damage that concept or put it in peril.
On the other hand, as my noble friend Lord Beloff says, the concept of academic freedom is an abstract one and it ought to be capable of some analysis. I would venture to suggest that although the voice of the universities to which he referred is unanimous on academic freedom, it may not always be easy to apply it in all possible circumstances.
In approaching this subject I should like to adopt at least one of the points made by the noble Lord, Lord Grimond. He said when referring to universities that education is an art, not a science. I am not sure whether I entirely agree with that, but it is the next bit that I am particularly concerned about. He says that one must be very careful in laying down rules about it. That is exactly the difficulty. Precisely how does one lay down rules about it?
As I indicated to your Lordships at Second Reading, for some little time now I have been concerned in this problem, along with my colleagues the Ministers in the Department of Education and Science. We have arranged to meet representatives of the Committee of Vice-Chancellors in order to discuss this matter in some detail. These discussions are continuing and they promise to be fruitful. I am extremely grateful to Sir Patrick Neill, the Vice-Chancellor of the University of Oxford, for his
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kindness in sparing the time to come and discuss these matters with me in some detail.
There are many situations to which these abstract concepts require to be applied. It is not easy to say precisely how this should be worded. I do not think the Committee would wish me to look at the detail of the various amendments that have been proposed this afternoon, but I could, if necessary, indicate examples which have occurred to me where it might not be very easy to apply the terms of these amendments to produce a result which I believe the authors of the amendments would wish.
For my part I believe—and these are provisional views which we are trying to develop as fast as we can and I point out to my noble friend Lord Beloff that it has not proved particularly easy—that the centre of the matter was raised by the noble Lord, Lord Hatch of Lusby. He said that what is required is protection against dismissal. Moreover, and I mentioned this on Second Reading, we are proposing a grievance procedure in respect of the action or inaction of the institution short of dismissal, because it is possible to effect this matter in ways other than the extreme sanction of dismissal. I believe that the root of the matter is in dismissal.
We have sought to provide that dismissal shall be arrived at only as a result of a proper procedure. We have provided that the commissioners will establish a proper procedure for dismissing staff. Staff will not be dismissed without recourse to a properly established procedure for that purpose. Secondly, there should be an appeals machinery in respect of such dismissal so that all members of the academic staff have the means to test the grounds of their dismissal and have an effective measure of protection against victimisation by their colleagues.
I pause to say that the amendments which we are now considering are concerned with protection of the individual academic against his colleagues or the management of the university. We are not concerned with the academic freedom of a university as a whole. That matter was discussed on Monday in relation to funding and, speaking generally, the principles of that were discussed then. Here we are discussing, at least primarily, the protection of the academic from losing his job. That would only happen immediately as a result of action taken by the university or employing institution.
As an aside, we have proposed the removal of the exclusive jurisdiction of the visitor over cases of dismissal of academic staff allowing staff the same recourse to the courts of law which others enjoy. I do not believe that it is a particularly important point to stress at this stage. However, I want to stress emphatically that we have provided that the dismissal and appeals procedures and machinery are just and fair; in other words, no one is to be dismissed except in accordance with a decision which is just and fair. As my noble friend said, these are abstract and very general concepts which are capable of being applied by the courts.
Perhaps I may ask: what extra does the reference to academic freedom provide? Would anyone say that someone who has been dismissed in breach of, what we understand in language suitable for a speech as,

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academic freedom, has been dismissed in accordance with a procedure which is just and fair? These concepts have to be applied against the background of the university. Would somebody who has been dismissed in breach of the doctrine of academic freedom be dismissed in a just and fair manner? I should have said not. Therefore, I suggest that the abstract criteria of justice and fairness with which, as my noble friend said, the courts are very familiar and which they have used considerably to develop the administrative law of this kingdom are perfectly adequate to support the notion, doctrine or abstract idea of academic freedom.
However, having regard to all that has been said and seeking to work out examples on this matter, I believe that progress may be made by adding to those criteria some indication of matters which will not found a good dismissal; in other words, seeking to build on the kind of example that the noble Lord, Lord Hatch of Lusby, gave. For example, it would not be sufficient to dismiss a member of the university staff merely because he holds or expresses a particular opinion.
5 p.m.
Lord Hatch of Lusby: How does this Bill protect an individual academic who is declared redundant because of financial stringency and is then replaced by somebody younger and cheaper? Does that come within the Government's definition of fairness, or, if not, how can it be prevented within the terms of the Bill?
The Lord Chancellor: I believe that that is a slightly different point from the general one and depends on the precise definition of redundancy which is used and which is the subject of amendments to which we shall come later. If the noble Lord will allow me, I would rather concentrate on the general case.
It seems to me that in order to justify dismissal the procedure used would have to be fair and the result reached in accordance with justice. Speaking generally, I believe that academic freedom, in the context in which this is applied, would thereby be secured. However, I see that it may be of assistance to add to those terms "justice and fairness" something which would prevent a university from dismissing someone merely on account of the opinions which he holds.
As I said on Second Reading there are difficulties about that. The noble Lord, Lord Morton of Shuna, gave us an example of the faculty of divinity of the University of Edinburgh which is working under a trust deed which says that if the teaching of the faculty of divinity is no longer in accordance with the faith of the Church of Scotland then the whole property reverts to the Church of Scotland. It is clear that the idea of that part of that great university is that there are views which it would be the object of these particular chairs to advance. Therefore, I believe it is necessary to have a qualification such as, "Views or opinions not in conflict with the terms of the appointment and with the job that the person has been employed or appointed to do". Working on that approach, I believe that it may be possible to strengthen the protection which academic staff have
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against what we would regard as improper dismissal in that particular way. That is the line which we are seeking to follow.
Lord McCarthy: Would the noble and learned Lord the Lord Chancellor say that the position which he is now adopting squares with the argument which he put forward on Second Reading? On that occasion he drew a very clear distinction in his own mind between that which was fair and just and that which represented academic freedom when he said:
"Any reference to academic freedom might lead the courts to conclude that since Parliament had deliberately mentioned it in the Bill, it must mean something quite distinct from justice and fairness, concepts with which they are familiar. Applications could be made to the courts for declarations that the amendments proposed by the commissioners in particular institutions conflicted with the provisions protecting academic freedom, thus exposing the work of the commissioners to fruitless and disruptive litigation".—[Official Report, 19/4/88; col. 1336.]
That must suggest that in the noble and learned Lord's mind there is fairness and justice, there is academic freedom and in certain circumstances there are distinct concepts that have to be balanced, and one has to have all three.
The Lord Chancellor: I am sorry, that is not the way that my mind was working on that occasion. I was saying that justice and fairness applied to the question of an academic dismissal would also imply the need to respect academic freedom as I would understand it in general terms. Therefore, to add to the concept of academic freedom to the concepts of justice and fairness would in the circumstances add nothing at all. If one added that concept the court, in accordance with the ordinary construction, would have to say: "We have justice, we have fairness, but Parliament has added this extra academic freedom. What extra effect does that have in this context?". That is a difficulty.
I believe that it is better to try to analyse the concept and to see what in addition to justice and fairness we wish to convey to the court by such an idea as academic freedom. I believe that, on analysis, we want to convey to the court that an academic shall not be liable to dismissal—I take that as the paradigm case—merely because he or she holds a particular view, an unpopular view, a controversial view, or merely because he or she questions received wisdom and so on. I believe that there is possibly scope for improving what we have in this line.
As I said, I do not wish to take up the Committee's time by giving examples of particular difficulty. To give just one to show what can be a difficulty, I take the language used by my noble friend the Minister in her speech, by my right honourable friend the Secretary of State for Education in a speech and again in the amendment proposed by the noble Lord, Lord Jenkins of Hillhead. We have the idea that academic staff should have freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions.
To go to the field of endeavour of the noble Lord, Lord Howie of Troon, if a professor of engineering had a somewhat unpopular view that floors could be half the thickness that anybody else thought was necessary—he did not believe the safety margins that

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other people required were justified, but that buildings could be built with floors half the thickness that everybody else thought—he would be perfectly free to put that forward, but I think that it might not be wise to have that as the teaching to the young engineers—who, if I may say so with respect to the noble Lord, Lord Grimond, I hope the universities will continue to teach—coming out to design high buildings.
The idea is therefore best put in relation to protection against dismissal and in relation to grievance procedure, which, as I said, we hope to put into the Bill. I regard the matter as not entirely an easy one, as I said. However, it is one in which it may be possible to make constructive progress. Our discussions with the representatives of the vice-chancellors are going on. I hope that on Report we might be able to bring forward something that would commend itself to noble Lords, refining the line that I have sought to explain today.
In the light of that expression of view, I hope the Committee may think it right for us to have the opportunity to do that. As the Committee knows, I was invited to speak. I was anxious also—I still am—to have as much help and expression of view about the matter as is consistent with the desire to make reasonable progress.
5.15 p.m.
Lord Peston: I speak slightly reluctantly because, with respect, I disagree somewhat with the noble and learned Lord, as I shall outline. I fully accept his bona fides in these matters. I believe that, were we to come across individual cases of threats to academic freedom, he like the rest of us would be in the forefront in condemning them and hoping that something could be done about it. I think that the matter is not entirely as he puts it, so it would be reasonable for me to suggest that.
Before so doing, I must say a word or two about tenure. The noble Lords, Lord Jenkins of Hillhead and Lord Thomas of Swynnerton, both mentioned tenure. They mentioned it first as if we have had the debate on tenure, which I believe we have not; and they mentioned it secondly not only as if the debate was over but as if it was agreed generally that tenure was a bad thing and that it inevitably had to go. Ahead of what will happen later, and bearing in mind the need to hurry, I say that I do not accept that tenure is a bad thing and that it should go; and I shall outline such arguments in due course.
I argue that we would not be in this rather messy discussion if the Government had not in a rather foolhardy way gone down the path of the abolition of tenure, and if the Committee of Vice-Chancellors had not seemed to acquiesce in that and in so doing, in my view, to betray the true cause of academic freedom. I say that in strong and definite terms. The tenure argument has not happened, but it certainly will happen.
In regard to academic freedom as it pertains to our universities, I ask, as I have asked before, why are we doing any of this anyway? We have what is recognised as a truly great university system. It is a
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system, I shall argue in due course, that is effective, efficient and productive and that meets all the kinds of buzz word criteria on which the Government are so keen. Why is it being interfered with? The noble Lord Lord Thomas of Swynnerton, implicitly raised the point as to why the universities are being put in the undignified position of being tagged on to other important aspects of an education Bill. I believe, as I think he implied, that the universities deserve full and sympathetic treatment on their own. What concerns me in much of the discussion is the lack of sympathetic treatment.
In regard particularly to the amendment, it is very important to recognise that, while the noble and learned Lord the Lord Chancellor is right in saying that a great deal of the question of academic freedom is concerned with the rights of the individual and therefore that much of this is to do with practical matters in terms of procedures, protection against dismissal and so on, he goes too far in my view, because academic freedom is concerned—as I think is referred to in one of the amendments—with the whole community of scholars. It is not just about individuals; it is about the whole place. It is about atmosphere, and the way in which universities conduct themselves. I also do not believe that it is just about dismissal. It is not. It is about at least two other matters on which I think the noble and learned Lord would agree. It is certainly about promotion, and it is about placing undue pressure on staff, notably junior staff.
The Lord Chancellor: For brevity's sake, I mentioned that we were proposing to bring forward agreements procedure which would have an effect on that. I therefore concentrated on dismissals as the paradigm case.
Lord Peston: I fully accept that as the paradigm case. The notion of pressure on staff, which is often again slightly indefinable, is a difficult matter to isolate within a grievance procedure, but it certainly is easy to isolate in terms of the atmosphere of the university.
Academic freedom and justice and fairness are two different things. To give an example, when I was a junior lecturer I would have regarded it as unfair and unjust if I had been asked to teach many more courses than others. I would have regarded it as unfair and unjust if I had been asked to teach a course about which I knew nothing. I do not entirely agree with the noble Lord, Lord Grimond, about the benefits of teaching courses about which one knows nothing. I would have regarded it as an infringement of academic freedom if I had been told what to teach. This is a serious and fundamental matter.
If, for example, I had been told when teaching economics as a young man, "Well, Maurice, I am afraid you cannot go on teaching macro-economics; you don't seem to believe that there is a correlation between the rate of rise of the money supply and inflation. Unless you start teaching that stuff, I am afraid that you cannot carry on with that course", I would have regarded it as an infringement of academic freedom. Equally, I would have regarded it as an infringement of academic freedom if I had said to one of my young men teaching that stuff, "I am

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sorry; you cannot teach the course because you're not teaching the theory of the Keynesian multiplier". That is what academic freedom is about.
My view—and I entirely agree with the noble Lord, Lord Beloff, on this point—is that those of us who have been in academic life know full well what academic freedom is. We can see it, and certainly in the bad old days we could see the neglect of it. I simply do not believe—and I was hoping for a slightly more positive word of assurance from the Lord Chancellor—that it is impossible to define.
In our view we ought to move forward on these amendments. If I may express an entirely personal position—one that does not commit my noble friends—my favourite amendment is the amendment of the noble Lord, Lord Allen of Abbeydale. However, like the noble Lord, Lord Jenkins, and others, I will accept any of these amendments, any permutation of these amendments or any variation of them, as long as we have an academic freedom amendment written into the statute.
Lord Annan: Will the Lord Chancellor inform the Committee whether some of us were right in thinking that in his speech he gave an assurance that at Report stage we would have some reference in the Bill to academic freedom? I took it that that was what he was saying.
The Lord Chancellor: What I was seeking to say was that on analysis of the concept of academic freedom the most appropriate expression for it in the context of the Bill would be an expression of matters which were excluded as grounds for dismissal—to take the paradigm case—and also grounds for other adverse actions such as not allowing classes to be taught and so on, points to which the noble Lord, Lord Peston, referred. That is what I have in mind.
Lord Annan: I take it that the noble and learned Lord will bring back at Report stage a Government amendment to deal with these matters. May I ask if that is so?
The Lord Chancellor: That is certainly my intention. It is my fervent hope that we shall have such an amendment by that stage. I cannot give a cast-iron guarantee, as the noble Lord will understand, but it is as near that as I can properly do.
Lord Jenkins of Hillhead: Needless to say, I listened most carefully, with fluctuating hope and disappointment, to the speech of the noble and learned Lord. I am bound to say that the shafts of hope were fairly limited and that the disappointment began substantially to predominate before he reached the end. Throughout he expressed a very narrow approach to academic freedom. He did not deploy any significant arguments against why one of the amendments before us today should be accepted without doing any possible harm. He did not very adequately explain the powerful point made by the noble Lord, Lord Beloff, who said that we were exactly here in October or November. Why has it taken so long to make virtually no progress?
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The Bill is now very close to slipping from our grasp and back to the Commons. In those circumstances, and as I did not interpret the Lord Chancellor as giving a very resounding affirmative to the two questions of the noble Lord, Lord Annan—yes he hoped there would be something but what it would be was not at all clear—and from the tenor of his speech I thought it would probably be a disappointment not merely to the majority but to the unanimity of those who had spoken, other than himself, I am disposed to ask the Committee to divide.
5.25 p.m.
On Question, Whether the said amendment (No. 274AF) shall be agreed to?
Their Lordships divided: Contents, 152; Not-Contents, 126.

Division No. 1

CONTENTS

Adrian, L.

Hereford, Bp.

Airedale, L.

Howie of Troon, L.

Allen of Abbeydale, L. [Teller.]

Hughess, L.

Hunt, L.

Amherst, E.

Hunter of Newington, L.

Annan, L.

Hylton, L.

Ardwick, L.

Hylton-Foster, B.

Attlee, E.

Ilchester, E.

Aylestone, L.

Irving of Dartford, L.

Baldwin of Bewdley, E.

Jacques, L.

Banks, L.

Jay, L.

Basnett, L.

Jeger, B.

Birk, B.

Jenkins of Hillhead, L.

Blease, L.

John-Mackie, L.

Bottomley, L.

Kearton, L.

Briginshaw, L.

Kennet, L.

Bruce of Donington, L.

Kilmarnock, L.

Bullock, L.

Kinloss, Ly.

Campbell of Eskan, L.

Kirkhill, L.

Carter, L.

Kirkwood, L.

Chichester, Bp.

Lawrence, L.

Chitnis, L.

Llewelyn-Davies of Hastoe, B.

Cledwyn of Penrhos, L.

Lloyd of Hampstead, L.

Croft, L.

Lockwood, B.

Croham, L.

London, Bp.

Dacre of Glanton, L.

Longford, E.

Darcy (de Knayth), B.

Lovell-Davis, L.

David, B.

McCarthy, L.

Dean of Beswick, L.

McFarlane of Llandaff, B.

Diamond, L.

McGregor of Durris, L.

Donaldson of Kingsbridge, L.

McIntosh of Haringey, L.

Dormand of Easington, L.

Mackie of Benshie, L.

Elwyn-Jones, L.

MacLehose of Beoch, L.

Ely, Bp.

McNair, L.

Ennals, L.

Mais, L.

Ewart-Biggs, B.

Manchester, Bp.

Falkender, B.

Mayhew, L.

Falkland, V.

Meston, L.

Flowers, L.

Molloy, L.

Foot, L.

Morris of Kenwood, L.

Franks, L.

Morton of Shuna, L.

Gallacher, L.

Mulley, L.

Gladwyn, L.

Murray of Epping Forest, L.

Goodman, L.

Napier of Magdala, L.

Graham of Edmonton, L.

Nicol, B.

Greenhill of Harrow, L.

Northfield, L.

Grey, E.

Parry, L.

Grimond, L.

Peston, L.

Halsbury, E.

Ponsonby of Shulbrede, L.

Hankey, L.

Porritt, L.

Harris of Greenwich, L.

Prys-Davies, L.

Hart of South Lanark, B.

Rea, L.

Hatch of Lusby, L.

Reilly, L.

Henniker, L.

Ritchie of Dundee, L.

461

Robson of Kiddington, B.

Thurlow, L.

Rochester, L.

Todd, L.

Roll of Ipsden, L.

Tonypandy, V.

Russell, E.

Tordoff, L. [Teller.]

Sainsbury, L.

Turner of Camden, B.

Scanlon, L.

Underhill, L.

Seear, B.

Vernon, L.

Seebohm, L.

Wallace of Coslany, L.

Seflon of Garston, L.

Walston, L.

Serota, B.

Warnock, B.

Shaughnessy, L.

Wedderburn of Charlton, L.

Shepherd, L.

Wells-Pestell, L.

Sherfield, L.

White, B.

Somers, L.

Wigoder, L.

Stallard, L.

Wilberforce, L.

Stedman, B.

Williams of Elvel, L.

Stewart of Fulham, L.

Winchester, Bp.

Stoddart of Swindon, L.

Winstanley, L.

Strabolgi, L.

Winterbottom, L.

Swann, L.

Wolfson, L.

Taylor of Mansfield, L.

Young of Dartington, L.

Tedder, L.

Zuckerman, L.

Thomas of Swynnerton, L.

NOT-CONTENTS

Airey of Abingdon, B.

Hailsham of Saint Marylebone, L.

Aldington, L.

Alexander of Tunis, E.

Harmar-Nicholls, L.

Ampthill, L.

Harvington, L.

Arran, E.

Havers, L.

Bathurst, E.

Henley, L.

Bauer, L.

Hesketh, L.

Beaverbrook, L.

Hives, L.

Belhaven and Stenton, L.

Hood, V.

Belstead, L.

Hooper, B.

Benson, L.

Jenkin of Roding, L.

Birdwood, L.

Johnston of Rockport, L.

Blyth, L.

Killesarn, L.

Boyd-Carpenter, L.

Lauderdale, E.

Brabazon of Tara, L.

Long, V.

Brightman, L.

Lothian, M.

Brougham and Vaux, L.

Lucas of Chilworth, L.

Bruce-Gardyne, L.

Luke, L.

Butterworth, L.

Mackay of Clashfern, L.

Caithness, E.

Macleod of Borve, B.

Caldecote, V.

Mancroft, L.

Cameron of Lochbroom, L.

Margadale, L.

Campbell of Alloway, L.

Marsh, L.

Carlisle of Bucklow, L.

Massereene and Ferrard, V.

Carnegy of Lour, B.

Merrivale, L.

Carnock, L.

Mersey, V.

Coleraine, L.

Milverton, L.

Constantine of Stanmore, L.

Mottistone, L.

Cottesloe, L.

Mowbray and Stourton, L.

Cowley, E.

Munster, E.

Craigavon, y.

Napier and Ettrick, L.

Craigmyle, L.

Nelson, E.

Crawford and Balcarres, E.

Newall, L.

Crickhowell, L.

Norfolk, D.

Cullen of Ashbourne, L.

Norrie, L.

Davidson, V. [Teller.]

Northesk, E.

Deedes, L.

Nugent of Guildford, L.

Denham, L. [Teller.]

Orkney, E.

Derwent, L.

Orr-Ewing, L.

Eden of Winton, L.

Pender, L.

Elliot of Harwood, B.

Pennock, L.

Erroll, E.

Plummer of St. Marylebone, L.

Erroll of Hale, L.

Faithfull, B.

Reay, L.

Ferrers, E.

Renton, L.

Ferrier, L.

Rodney, L.

Fortescue, E.

Romney, E.

Fraser of Kilmorack, L.

St. Davids, V.

Gainford, L.

Sanderson of Bowden, L.

Gisborough, L.

Sandford, L.

Glenarthur, L.

Sharpies, B.

Gray, L.

Shrewsbury, E.

Greenway, L.

Simon of Glaisdale, L.

Gridley, L.

Skelmersdale, L.

Grimston of Westbury, L.

Strange, B.

Haddington, E.

Strathspey, L.

462

Sudeley, L.

Trumpington, B.

Swinton, E.

Vaux of Harrowden, L.

Terrington, L.

Ward of Witley, V.

Teviot, L.

Westbury, L.

Teynham, L.

Wise, L.

Torphichen, L.

Wyatt of Weeford, L.

Trafford, L.

Young, B.

Trefgarne, L.

Young of Graffham, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.35 p.m.
Lord Grimond Lord Grimond moved Amendment No.274B:
Page 159, line 11, at end insert—
("( ) There shall be separate Commissioners for Scotland.")
The noble Lord said: I beg to move the amendment which stands in my name—
Lord Harmar-Nicholls: May I make a point which I think is of some importance?
Noble Lords: Order!
Lord Harmar-Nicholls: Is there any way of knowing whether the general convention will be followed in this case where an undertaking was given by the noble and learned Lord the Lord Chancellor, on behalf of the Government, which has not been accepted? Is the noble and learned Lord now freed from all the undertakings he gave prior to the vote being taken?
The Lord Privy Seal (Lord Belstead): My noble friend is trying to be most helpful in party political terms, and indeed he is being helpful. However, in my other capacity I must say, with the greatest respect to my noble friend, that there is no locus here to ask such a question. The next amendment has been called and the Committee must therefore proceed.
Lord Grimond: I rise for the second time to move the amendment tabled in my name and that of the noble Lord, Lord Morton of Shuna. The amendment deals with the position of the Scottish universities and asks that there should be a separate commission for Scotland. We touched on the matter rather late at night last week. I am well aware that in some ways by addressing the noble and learned Lord the Lord Chancellor on these matters I am attempting to teach my grandmother to suck eggs, because he is well versed as regards the position of Scottish universities. However, the Lord Chancellor is not in charge of education in Scotland and he is not in charge of the Government. In other words, what he says in this Chamber does not bind the Government.
I strongly feel that we need some provision written into the Bill which accepts and stresses the independent and most important position of universities in general in Scotland—and in particular the four old universities. I do not want to repeat their separate histories. They are of course the oldest universities in the kingdom, except for Oxford and. Cambridge. They come from quite a different stable, being founded on the lines of Bologna and Paris. They are deeply embedded in Scottish history and are dearly loved in Scotland as some of our most prominent institutions.

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Further, their organisation is quite different. For example, at one time the head of the university was directly elected by all those in the university; that is, the students and the staff. The education system in Scotland is also quite different. Its timing is different and therefore their first year and indeed their whole academic programme is different. There does not seem to be much connection between the first and the last parts of the Bill. That strikes me as a defect. The Bill does not seem to link what it is saying about primary and secondary education with what it is saying about higher education.
I should also point out that Scotland is a nation which has no parliament. Therefore it is doubly important that its institutions should express the native culture and abilities of the Scots. I believe it is also important that free-standing institutions in England, such as the universities, should maintain their independence and their power. It is doubly important that in Scotland we have some other centre. As we have no government of our own we need some protection against central government in Whitehall.
If the Committee thinks that the Government would agree with that, I must draw its attention to what happened only on Tuesday of this week when, at the end of the debate on the future of the ILEA, the Government announced, as though it were of great benefit to us all, that they intended to vet the appointment of local authorities' chief officers. I thought that one of the most astonishing statements I have heard in Parliament since I have been here.
That announcement shows, first, an extraordinary lack of trust in local authorities. Secondly, it shows that central government, who always have a large majority, think they know best about everything. They are gradually eroding the powers of local authorities, the law, the BBC and the universities. Therefore in Scotland, in particular, and in Britain as a whole, it is extremely important that we send out a signal that we appreciate the importance of those centres and, especially, of Scottish universities.
I believe, as I have said, that the Bill is directed at the wrong target. If there is one thing wrong with university education in this country—it is no fault of the universities—it is that far too few boys and girls from working class homes reach the universities. That is the fundamental problem. In Scotland, the position is rather better than it is in England. In Scotland far more boys and girls look forward to further education at a university than in the rest of Britain. They feel that the universities are far more part of their life than is the case further south.
It is important that that feeling should be encouraged, that all Scottish universities should retain the full range of subjects and disciplines so that they are true universities, and that the boy or girl from Orkney or Shetland who goes to Aberdeen University will find there all the essentials which, as I said in a previous debate, Newman set out so well.
Owing to pressure of finance, universities are already being cut down. Three departments at Aberdeen are due for closure. One is the Italian department. That is an important department as Italy is one of the great centres of our civilisation.
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The commission's activities, which I view with some suspicion, are of great importance to Scotland. I doubt whether a commission of five people, as I think it is to be, will understand the Scottish situation if dealing with the whole of Britain. The position of the Church in Scotland was mentioned by the noble and learned Lord the Lord Chancellor and by the noble Lord, Lord Morton of Shuna. The position of the visitor has been mentioned. The visitor is known in English universities. However, the rector is not mentioned and is not known in English universities. It is therefore conceivable that the commission may have an effect upon the position of the rector, which is carefully protected in Scottish universities. Speaking as a former rector, I know that a rector does an extremely important job.
It will not be enough to say that one member of the commission will know something about Scotland. I need not tell the noble and learned Lord the Lord Chancellor that Scottish law is different from English law. As the commission will be very much involved in law, it is important that it fully appreciates the difference between Scottish and English law.
I am wholly on the Government's side in thinking that the commission should be small and should act quickly. I am not sure that that is compatible with the present arrangements. It has some 40 to 50 institutions to inspect. From a practical point of view it may be desirable to appoint a separate commission for Scotland so as to do the job more quickly and efficiently.
It will be necessary to have people on the commission who know about Scotland. It is therefore essential if there are to be small commissions that there should be more than one. I beg the Government to realise that Scotland is not north Britain; it is a separate country, even though it has no Parliament. I also beg them—I am sure they realise this—to have a higher opinion of universities than sometimes appears.
I shall finish by giving a puff to a most admirable pamphlet written by a man called Professor Kedourie, whom I must confess I have never met, which is called Diamonds into Glass. It is about a Conservative government's intentions for the universities of this country. It emanates from the Centre for Policy Studies, whose founders were Mrs. Thatcher and the noble Lord, Lord Joseph. I beg to move.
5.45 p.m.
Lord Howie of Troon: We debated this matter—
Lord Harmar-Nicholls: I think it is the turn of this side now.
Lord Howie of Troon: I do not think—
Lord Harmar-Nicholls: I thank the noble Lord for giving way. I want to use the amendment to pursue the point that I made a minute or two ago—
Noble Lords: No, no!
Lord Harmar-Nicholls: The point is of some considerable importance to the procedures of this place. I am all in favour of votes. That is often the

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only way to cut through a knot that cannot be untied. One sees that. I am not emotional about losing a vote. You win some; you lose some. However, I am concerned about this place maintaining its high standards of adhering to the accepted convention of accepting government undertakings.
On the previous amendment, after a full debate in which there was a cross-examination by the noble Lord, Lord Annan as to what my noble and learned friend meant when he replied for the Government, my noble and learned friend made it clear, as I understood it, that having heard the debate he was still in consultation with the university authorities who are dealing with the very subject of the debate.
Baroness Seear: Perhaps I may—
Lord Harmar-Nicholls: Perhaps I may just make my point.
Baroness Seear: The noble Lord—
Lord Harmar-Nicholls: If I may just make my point, I should be delighted to give way.
Baroness Seear: If the—
Lord Harmar-Nicholls: I shall be delighted to give way when I have made my point.
Having listened to the debate, having said that he was in consultation with the authorities that mattered and with Report stage still to come, my noble and learned friend gave as clear an undertaking as one could expect under the circumstances that he sympathised with the points of the amendment and was most likely to be able to meet them. One presumed that to mean at a later stage in the Bill. For the Committee not to accept that in those circumstances was against the conventions.
Baroness Seear: The noble Lord—
Lord Harmar-Nicholls: I am not giving way until I have made my point.
Noble Lords: Order, order!
Lord Harmar-Nicholls: I am not giving way until I have made my point.
Noble Lords: Order, order!
Baroness Seear: We are debating an amendment moved by my noble friend Lord Grimond. May I ask that we continue on that amendment?
Noble Lords: Hear, hear!
Lord Harmar-Nicholls: I shall make my point on adhering to conventions and conclude.
Lord Denham: With due respect to my noble friend, we are now on another point; we must listen to the noble Baroness.
Lord Howie of Troon: I apologise to the committee. I was obviously over polite. That was an error on my part.
I support the amendment moved by the noble Lord, Lord Grimond. We debated the general nature of the subject at a late hour the other evening. It may be convenient if I repeat briefly remarks I made at greater length when there were only a few Members of the Committee present. Before doing so, however, I should like to remind the noble Lord, Lord Grimond—I refer to his speech during the last debate—that Scottish universities have engineering schools of great excellence. Were it not for engineers, our civilisation would not exist. We should be left speaking to one another in Sanskrit, or in whatever language he referred to, in caves, swamps and similar places.
Lord Grimond: I am deeply ashamed if I dared to criticise the noble Lord, Lord Howie, or engineers. If I did, I shall withdraw the remark at once.
Lord Howie of Troon: The noble Lord did so and is suitably admonished. The point is that, as the noble Lord, Lord Grimond, said, Scotland is a separate place. Whether or not it is a nation is academic in a sense, but we believe it to be a nation. The university system is entirely different from that of England. It is therefore quite wrong that it should merely be stuck in as part of a general system which applies to England and Wales.
As to the particulars in which the system is different, as the noble and learned Lord the Lord Chancellor knows full well (although his fellow Ministers may be less aware of it) the mode of entry into the Scottish universities is different from that in England. The length of the course is generally different from that in England. The nature of the teaching is different from that in England. I shall not go so far as to say that the graduates are better than those in England because that might not always be true. The Scottish system is more continental than the English system. Because it is different in all these respects and is not in any way the same as the English system, the noble Lord, Lord Grimond, was right to put down this amendment. The Committee would be wise to accept it.
Lord Morton of Shuna: The amendment is in my name as well as that of the noble Lord, Lord Grimond, and I rise to support it very briefly. As noble Lords who have spoken have said, we have already had this debate on one occasion—late on Tuesday night. The necessity for having separate commissioners for Scotland, I suggest, is absolutely clear. If the commissioners are to operate over the whole of the country, they will naturally be far more concerned with the 37 English and Welsh universities. The Commissioners will approach them properly in the light of the English and Welsh education school systems. The continuation of four of the Scottish universities was guaranteed by the Act of Union. Scottish universities are entirely different and are based on a Scottish system of school education which is entirely different and for which the Department of Education and Science has no responsibility.

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It is essential, for the various reasons that have been put forward—and I am attempting to move the debate along a bit—that the Scottish commissioners should be separate and should fulfil this function in the totally separate climate of the Scottish universities. I strongly support the three amendments in this group.
Baroness Carnegy of Lour: I was not able to be present for the previous discussion late at night. For the benefit of noble Lords who have not been involved in this scene, very briefly the STEAC—the Scottish Tertiary Education Advisory Council—looked at the whole issue of whether the universities should stay in the mainstream of the whole of the university system in the country, as they have been, or whether they should be funded separately. The council recommended that they should be funded separately, but the universities in Scotland were split about whether they wanted that. The Government came down on the side of the status quo. That has been settled. The universities are now in one system and they remain in one system. That has been accepted.
The point at issue is not that; we must not confuse matters. In this amendment we are talking about how the commissioners operate. It seems to me that the question of the amendment is entirely dependent on whether the function of the commissioners is better arranged if some body or two commissioners are operating only in Scotland, meeting the other commissioners and making their decisions; whether they operate quite separately, or whether there is no Scottish commissioner at all. That is the question.
I hope that in thinking about this we shall realise that we are talking about the function of the commissioners within a system which, it has been agreed, is one over the whole of the United Kingdom. We should not be confused in our sudden slight spasm of nationalism into thinking that to accept this amendment will help the universities to be separate. It will not.
Lord Mackie of Benshie: Perhaps I may add briefly to the discussion. Of course I support the amendment, and I wish to say to my noble neighbour Lady Carnegy that as I remember the universities wish to remain within the orbit of the University Grants Committee. That was because they did not want in any way to come under the Scottish Office; that was their objection. They certainly had no objection to a separate University Grants Committee for Scotland. They would have accepted that happily.
I think one of the best points made by my noble friend Lord Grimond was that if there is not a separate commission for Scotland then the poor Scot who is one of five among the United Kingdom commissioners will either spend his time making himself most unpopular, trying to teach his four comrades, or he will not get his point across. As has been illustrated, the differences are both wide and deep. There is no question at all that the system will not get due consideration if one Scot is appointed to the main commission.
The Lord Chancellor: I think it is important in considering this amendment to understand the job of the commissioners. That job is to make appropriate provisions in the statutes of each of the qualifying institutions for procedures for dismissal which are just and fair. The reason for having commissioners is that each of the universities is somewhat different. There are differences between the institutions which are important in considering what their statutory procedures should be for the dismissal of academic staff. But that has nothing whatever to do with how long the courses are or what the school education system is, and even less to do with questions of a more general kind.
The basic point with which commissioners have to deal is to put into the statutes of the various universities the procedures laid down in principle by the Bill and then modified as appropriate for the particular universities. The important thing surely is to have a system which is reasonably uniform as regards the principle but so far as concerns the detail is matched with the statutes of the particular universities.
Lord Morton of Shuna: I wonder whether the noble and learned Lord will give way. Surely the job of the commissioners entails, among other things, having regard to the need to enable the qualifying institutions to provide education and to promote learning. That is what Clause 173 says, among other things. In order to do that, the commissioners must surely understand the education system of the country in which the universities are operating.
The Lord Chancellor: It is quite obvious that the commissioners have to have regard to the need,
"to enable qualifying institutions to provide education, promote learning and engage in research efficiently and economically"
in relation to the matters with which they have to deal. The matters with which they have to deal are those specified in Clause 174. The reason for having commissioners is that each institution, within the scope of its job, has different constitutional arrangements in detail.
Surely the important thing is to ensure that the principles set out in the Bill are appropriately reflected in the changes required in the individual institutions. That problem is in no way a problem which cannot be understood by anyone with the qualifications we have in mind for commissioners and who is prepared to apply his brain to it. As has already been said, it is certainly proposed that one of the commissioners should have an understanding of the position of the Scottish universities. But if this principle were to apply to Scotland, I think it would be equally necessary to have a commissioner from each of the universities in England and Wales. For example, the position in the University of Oxford is different from the position in many other universities in England. The job of the commissioners is to appreciate these distinctions and to make the necessary provision accordingly.
I should have thought that it would be very much more appropriate, when the Scottish universities are properly regarded as an integral part of the universities of the United Kingdom, that the

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procedures for dismissal of staff should be decided upon by a common body for the whole of England, Wales and Scotland.
The ultimate responsibility in regard to the amendment lies of course with Her Majesty in council acting again for the whole of the United Kingdom. In my submission the distinctions which I readily acknowledge between the universities of Scotland and universities in other parts are also reflected between one university in Scotland and another. The universities are all different in a number of ways in their constitution and in their arrangements. So if the argument were to progress logically it would mean that there would be representation on the body of commissioners from every university in the country. That does not seem sensible. It seems much more sensible to have a small body of commissioners with a common base and within the commission sufficient expertise to deal with the problems of all the universities in the United Kingdom. Therefore I hope that the Committee will feel that this amendment is not justified.
6 p.m.
Lord Hylton: It is crystal clear to me as an Englishman that this amendment bears on the honour, self-esteem and the national culture of Scotland. Therefore, I am rather surprised that the noble and learned Lord should take so narrow a view. I urge the Government to have second thoughts.
Lord Grimond: So do I! I am deeply unimpressed by the answer of the noble and learned Lord the Lord Chancellor. I am rather horrified by it. Does he really think that the difference between the Scottish universities and the English universities is no greater than that between say Oxford and Cambridge? Is he really going to set up a commission on which there may be somebody who knows something about the Scottish universities but on which there will be no one with a knowledge of the Scottish law? Whatever the noble and learned Lord may say about this commission it will presumably be much concerned with law. Having listened to the intervention of the noble Lord, Lord Morton of Shuna, and having read Clause 173(2) which states:
"In exercising those functions, the Commissioners shall have regard to the need—
(a) to enable qualifying institutions to provide education, promote learning and engage in research efficiently and economically"
I must ask the noble and learned Lord whether he is really saying that that has nothing to do with Scottish education.
Finally, is the noble and learned Lord really intending to appoint this commission, which I think is a highly dangerous body? The last time a commission was sent out it went round the monasteries and they were abolished shortly afterwards. We have little information on what this commission is going to do. Is the noble and learned Lord gong to appoint this commission with no further explanation to Parliament as to what representation Scotland will have on it or what powers it will have over the senior institutions in Scotland?
The Lord Chancellor: The powers of the commissioners are clearly laid down, subject to any amendments that may still be made, in Clause 174. Certainly the purposes of the commissioners on this occasion do not include anything like those to which the noble Lord referred.
The purpose of the commission generally is to make sure that there are provisions in the constitution of each qualifying institution—each university in this particular case—that are in accordance with the principles set out in the clause. To summarise, there is a procedure for dismissal of academic staff which is in accordance with justice and fairness in that there is a proper appeal procedure.
I do not think that I said that there was no more difference between the universities of Scotland and other universities than there was between the universities of Oxford and Cambridge. If I recollect correctly I said that there are differences between the universities of Scotland and, for example, a university such as Oxford. But there are also differences between the University of Oxford and other universities in England. So the whole purpose of having the commissioners is that they should be able to take account of the distinctions between the different universities and apply that accordingly.
In reply to the noble Lord, Lord Hylton, I would say that one of the great attributes and honours of Scotland is that it is very well able to participate with others in obtaining a good result. It has done so in the United Kingdom for a long time. The idea of this provision is that the Scottish universities would be examined by Scottish commissioners and the English universities by English commissioners. Surely one obtains a much better result if there is a good leaven of Scots among the commissioners who are examining the universities in England and Wales too? I suggest strongly to the Committee that it would be right that a good set of five commissioners should be appointed to do this job throughout the United Kingdom.
Lord Hughes: The noble and learned Lord said just now that it would be better to have a good leaven of Scots. Does that mean that there will be more than one Scot among the commissioners?
The Lord Chancellor: I think that quality is important.
Lord Grimond: There is nothing in the Bill to say that there will be even one Scot. If that is intended it should be written into the Bill. It is indeed true that some of the powers of commissioners are laid down here. But they appear to be rather differently interpreted than in the answer given to the noble Lord, Lord Morton of Shuna.
I am bound to say that unfortunately I do not think that the answer we have heard will improve the view held by the Scottish universities as regards the Government's intention. Nor will it dispel the view widely held in Scotland that Scotland, in this Government's eyes, is simply north Britain. I hope to look at this matter again at a further stage. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Jenkins of Hillhead Lord Jenkins of Hillhead moved Amendment No. 274BA:
Page 159, line 13, at end insert—
("( ) to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions").
The noble Lord said: I beg to move.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 274C:
Page 159, line 15, after ("learning") insert ("and the exercise of judgment").
The noble Lord said: This amendment stands in the name of the noble Lord, Lord Grimond, and myself. It is a fairly minor point but it is grouped with Amendment No. 274D which stands in the name of my noble friend Lord Peston, the noble Earl, Lord Russell, and the noble Lord, Lord Grimond. Both amendments concern line 15 on page 159. The two amendments taken together would make Clause 173(2)(a) read,
"to enable qualifying institutions to provide education, promote learning and the exercise of judgment and engage in research efficiently and to the highest possible standards and economically".
In moving this amendment and speaking to the second, I hope that it will not cause any difficulty because it appears at least to me that the exercise of judgment is one of the important things taught in universities. It is important that that should be recognised in this part of the Bill which appears to lay down the standard at which the universities are to aim. Further it is as necessary that research should be done to the highest possible standard as that it should be done efficiently and economically. I beg to move.
Earl Russell: I should like to speak to Amendments Nos. 274C and 274D, which are grouped together. However, before I do so perhaps I may respond to the gracious remarks made by the noble Lord, Lord Thomas of Swynnerton. I am particularly grateful for what he said about the uncontroversial character of my maiden speech. That point caused me some anxiety. The remarks which he made about faults on both sides are ones to which it is always necessary to respond. However, what he said about the treatment of visiting speakers is a matter with which I am in full, profound and entire agreement. I shall continue to say so wherever I can find an audience for those remarks. I am happy to say that the visit of the noble Lord, Lord Joseph, to my own college was entirely free of trouble.
Turning to the amendments, we have in the Bill a case where the statement of ideal in legislation is thought, by those who drafted the Bill, to be reasonable and necessary. It says:
"the Commissioners shall have regard to the need … to enable qualifying institutions to provide education, promote learning and engage in research efficiently and economically".
We have nothing against that. There is no reason why universities should not be efficient or economic. However, if ideals are stated in one context they sometimes need to be stated in another. We have here a creative tension between that ideal and the ideal of research conducted to the highest possible standards
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and the exercise of academic judgment. As everyone who has addressed an eve of poll meeting knows, ideals thrive on constant reiteration. We have ideals which should be kept in balance. If one lot are iterated in the Bill, why should not the other be also? I cannot see that implications of academic judgment or of high academic standards can conflict with the purposes of the Government. I cannot see any good reason why they should be dismayed by their inclusion in the Bill.
Lord Annan: Perhaps I may say that I am a little dismayed by the inclusion of the phrase, "to the highest possible standards". First, that seems to me to give leverage to someone who is in a scientific department and who says, "You have not provided the equipment which I need in my laboratory; I cannot conduct my research to the highest possible standard". The authorities may then say, "We are afraid we do not have the money". But that is no excuse. That person is prevented from doing research to the highest possible standards.
Secondly, I wonder whether the provision is not redundant. We all attempt to do our research to the highest possible standard. Having said that, there are differences in standards between universities. A technological university is conducting research of a very different kind from that of the University of Cambridge or University College, London. It does not mean that that research is inferior. It is extremely important and it is probably connected directly to some problem in industry, whereas the highest possible standards at University College, London are likely to be esoteric. It may be extremely important and fundamental research which may, at some later stage, have a spin-off to industry. But there is a distinction between those two types of research. I think that the phrase muddies the waters rather than making them pellucidly clear.
Lord Peston: These are substantive and serious amendments, although they are also probing amendments. The response of my noble friend Lord Annan shows that that probing was worthwhile. As regards Amendment No. 274D, the clause as it is written refers to, "efficiently and economically". Those are words from my own subject. They do not imply anything about standards. Put crudely, what we are discussing is the relationship between inputs and outputs. A process of a very low standard can be efficient and economic so long as the inputs are disproportionately lower still. Reading it that way, as I did, I was unhappy. As my noble friend Lord Annan has said, we are very much concerned in universities with absolute standards. In our previous discussions on academic freedom, I did not put forward the very important idea that in the case of many young people almost the only acquaintance they will have in their lives with the highest standards is in universities.
In putting down the amendments, we are differentiating our own views from what we consider to be the Government's concept, which is based too heavily on economics. I sometimes believe that it is impossible for anything to be based too heavily on economics. As an economist, that is my business.

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However, what I believe the noble Earl, Lord Russell, and I have in mind is that in some way we should like the commissioners fully to appreciate the question of absolutely high standards in a world where I fear standards are too often falling, particularly in the intellectual sphere.
6.15 p.m.
Lord Grimond: I wholly agree with what has been said from the Opposition Front Bench. However, I should like to stress what was said earlier by the noble Lord, Lord Morton. In many ways the thing which is most needed in the world today is judgment. How are we to use the enormous resources which science has put at our disposal? How are we to make sense of the battering we take from public relations and so forth? Judgment should be fundamental to universities and it is therefore worth mentioning one of the purposes for which universities exist.
Earl Russell: Perhaps I may respond briefly to the noble Lord, Lord Annan. Had I laid the duty which he discussed on the Provost of University College, I should have created the problems he foresees. However, the amendment places the duty only on university commissioners who will be engaged in investigating university standards. It is concerned only to ensure that they do not dismiss the best people because they are the most expensive and replace them with cheaper ones, and that they take account of the quality of the service provided at the end of the day. I believe that the fears which the noble Lord, Lord Annan, expressed do not bear entirely on the amendment.
The Lord Chancellor: The purpose of the clause is to give a brief reference to the provisions that the qualifying institutions are to be engaged on in relation to questions on procedures for the dismissal of academic staff. The charters, statutes or constitutions of universities are the documents to which one must look to see what is being provided in detail. I should have grave difficulty in believing that one could provide education in any proper sense of that expression which did not include teaching and the exercise of judgment. I should have thought that that is at least one distinction between providing education and simply imparting information.
If one is to detail all the branches which one might hope to cover in proper education, I doubt if one will stop at the exercise of judgment. I yield to no one in my appreciation of the need for the exercise of judgment. Particularly in the office which I presently hold, the exercise of judgment must be absolutely paramount. However, I think that it is denigrating the idea of education to say that it is not complete unless we write alongside it some statement about the exercise of judgment. I should have thought that to put that in would certainly not be an improvement in the circumstances of this clause.
The difficulty about highest possible standards, as the noble Lord, Lord Annan, said, is that they are not practical to apply. All of us aim ourselves, I hope, at the highest possible standards; but sometimes, when we have finished, we think that we have fallen far
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short of them for one reason or another. Nevertheless that is our ideal. It is not in my view a practical formula for the commissioners to have before them. I hope that notwithstanding the desire to attain the highest possible standards the Committee will feel that these amendments should not be incorporated in the Bill.
Lord Morton of Shuna: I do not think that this is the most major item in the Bill. We have had an interesting discussion. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 274D, 275 and 275A not moved.]
Lord Peston Lord Peston moved Amendment No. 275B:
Page 159, line 17, at end insert ("; and

(c) to ensure that, in using the powers established by section 174(1)(a), it shall be the duty of each qualifying institution to demonstrate that there is a genuine need to effect economies, before embarking on any redundancy programme; and

(d) to ensure that there shall in each qualifying institution be procedures to ensure just and fair selection of any person to be dismissed on grounds of redundancy.").

The noble Lord said: This amendment takes us for the first time into the realms of redundancy and resources for higher education. It involves two classes of argument. The first concerns the fear of some academics that universities would engage in what one might call a general blood-letting, endeavouring to make staff redundant in order to replace them with other staff rather than to effect economies because of lack of resources. It is believed by many academics—not least by myself and my noble friends—that that cannot be what the Government have in mind in connection with the work of the commissioners. Therefore we should like to probe to see what the Government have in mind. In order to do that we have put down this amendment.
The second amendment is of equal importance. It brings out a matter on which one ought to reflect; namely, that most of us in the academic world have not had a great deal of experience of the phenomenon of redundancy. Despite the fact that that activity occurs throughout the rest of the economy, I am not persuaded that as a general rule making people redundant is a good thing. This is not a debate on economics, and I shall not enlarge on the general question of policies for full employment and all that kind of thing.
We have not had a great deal of experience of redundancy. It may well be that we shall have to face up to redundancy, both as a consequence of the Bill when it becomes an Act and also because of the continuation of resource pressures on higher education. I do not think that we should under-estimate the extent to which those pressures have been imposed in recent years and the difficulties—and to a great extent the success—of the universities and polytechnics in coping with them. I do not think that we should under-estimate the problems that will arise if we have to face up to redundancy and particularly if we have to face up to the phenomenon known as compulsory redundancy.
Many of us, including myself, have taken voluntary redundancy. I can assure the Committee

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that even that can be psychologically difficult. However, since I have the solace of your Lordships' House I have been able to cope with it fairly easily. Colleagues who have retired prematurely perhaps have not found it so easy. The key issue is that of compulsory redundancy and the need for the commissioners to encourage and indeed make mandatory the fact that selection procedures should be just and fair. I gather that justice and fairness are acceptable words to lawyers; so there is no problem there. To go back to something which the noble and learned Lord the Lord Chancellor said, in these matters we are dealing with specific individuals. It is absolutely vital that such protection is incorporated in the Bill. I beg to move.
The Lord Chancellor: When the noble Lord referred to a later amendment I think he was drawing a distinction between paragraphs (c) and (d) of Amendment No. 275B.
Lord Peston: Yes, I beg your pardon, I was referring to paragraphs (c) and (d) of the amendment.
The Lord Chancellor: These provisions would require an institution to demonstrate that there was a genuine economic necessity before it embarked on any redundancy programme and that the selection of persons for redundancy was fair and just. I would accept that that is in general a reasonable requirement but we are meeting it in a different way under government Amendment No. 279ZAB which we shall come to in due course. The commissioners are already required, in exercising their functions, to have regard to the principles of justice and fairness. They must do just that when they propose modifications to statutes enabling institutions to dismiss staff for redundancy. The commissioners must also establish just and fair appeals arrangements for staff under notice of dismissal or who are dismissed. That should ensure that staff have an effective means of testing the grounds for their dismissal. The removal of the jurisdiction of the visitor to which I referred earlier has the effect that staff would now be able to go to the courts like anyone else.
If government Amendment No. 279ZAB is accepted by the Committee there will be a test of reasonableness along the lines of that in the Employment Protection (Consolidation) Act 1978. That will require the employer to demonstrate that the reason for dismissal may reasonably be treated as a sufficient reason for dismissal. In order for it to be reasonable the procedure for selection for dismissal would have to be reasonable also.
Lord Wedderburn of Charlton: Did I hear the noble and learned Lord say that the employing institutions would have to prove reasonableness under the Employment Protection (Consolidation) Act? Since 1980 one would have thought that the burden was on neither side when one reached that second point.
The Lord Chancellor: Yes, I think that so far as concerns the provisions of the Employment Protection (Consolidation) Act there is no burden at
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that stage. But I think that in practice, applying the provisions that we have here, the appeal procedure would require the employer to demonstrate that the reason for dismissal could reasonably be treated as a sufficient reason for dismissal in practical terms.
At all events the requirement that the person be reasonably selected for redundancy in our submission would already be covered. Therefore, I believe that the safeguards in the Bill, coupled with the amendment which I hope to move shortly, if accepted by the Committee, would provide reasonable and adequate protection for the employee.
Lord McCarthy: It may be argued that what the noble and learned Lord said about the amendment which the Government intend to move— Amendment No. 279ZAB—covers the point in relation to Amendment No. 275B. That is to say, so far as concerns the selection for redundancy the amendment which the Government intend to move is in its own way supposed to cover that point. However, paragraph (d) of Amendment No. 275B proposes that there should be a proper selection procedure. I do not think that what the noble and learned Lord said covers that point.
The noble Lord, Lord Peston, in introducing the amendment, said that a procedure for dealing with redundancy is not very well developed in academic life. That is absolutely true. It derives from the fact that up to now academics have had tenure. The problem is also made more difficult by the fact that the provisions of the Bill, and in particular those relating to redundancy in order to obtain cheaper labour in exchange for more expensive labour, would make most customary methods of dealing with redundancy—"first in, last out"—unavailable. It would not be a very acceptable principle because "first in, last out" would leave all the old men and women who are on the top of the scale. That would not be what the Government want. Therefore the universities will want quite a new and different set of procedures. Maybe the Bill should assist them in that way.
The Lord Chancellor: I quite appreciate that the problems facing a university might be different from those facing some other types of organisation. But I believe the need for the dismissal itself to be just and fair, which is enjoined by the procedures which the commissioners are to determine, has the effect that in a redundancy situation the procedure by which the person is selected for redundancy should be just and fair. The precise way in which it should be done may vary according to the circumstances of the different university institutions. I believe that this matter is sufficiently covered by the provisions which we already have in the Bill.
Lord Peston: I find the reply of the noble and learned Lord somewhat reassuring. We all agree that we must treat academics and indeed everybody else in this context correctly. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 276 not moved.]
6.30 p.m.
On Question, Whether Clause 173, as amended, shall stand part of the Bill?
Earl Russell: If I said that in rising to speak in defence of tenure I was rising on a forlorn hope, I should be guilty of foolish optimism. But I rise without any hope at all. I speak on this without the support of my noble friends the vice-chancellors, if I may so describe them. They reached an agreement with the Secretary of State which was described by the noble Lord, Lord Flowers, as an acceptable compromise. I understand that by their acceptance they made great gains, whereas we in this Chamber have made very few. This makes one think about the comparative importance of Parliament in our political system. The fact remains that this in many ways is a very bad proposal. There are certain speeches which one cannot fail to make if one is to look oneself in the face again. In that light, I hope the Chamber will forgive me if I speak with somewhat less than my customary brevity.
We have no wish whatsoever to defend and preserve dead wood. That is a useless activity. If it is the wish of the Government to tighten grounds for dismissal, to make quite certain that any incompetent or idle person is dismissed, that I would not oppose. What many people in universities fear is that universities, like the Cabinet, might lose more live wood than dead. I shall deal briefly with what has been known in the other place as the Oxford, East argument. Essentially it is that because tenure exists in some places it has affected the atmosphere and practice of others.
My ultimate comment on the Oxford, East argument is that until about two years ago I did not know that some places did not enjoy full tenure. I supposed it was enjoyed by all. The Oxford, East argument has a parallel which I think the Committee may already have considered. It is the practice of freedom of speech, which depends in many places many thousands of miles away from here on standing orders accepted in the two Houses inside the Palace of Westminster. I remember reading the autobiography of the noble Lord, Lord Caradon, who described attending a village council in Jamaica where he found that in order to ensure fair practice a copy of Erskine May was brought out and laid on the village table. You have there the ultimate extension of the Westminster, West argument.
If freedom of speech in either of these Houses is threatened, many of us will agree that it would also create a risk to freedom of speech in many town halls, party meetings and TV studios throughout the land. The Oxford, East argument is one of substance and one which has been too lightly dismissed.
I also think, delighted though I am by the vote we have had today, that, without a guarantee of proper tenure for those who do their work well, academic freedom cannot be secured. It is not enough that people do not actually lose their jobs; they have to be able to do them without fear. I can understand why in another place they do not find this argument very easy to accept. There, poor things, they are so sadly without tenure themselves. But I speak to a tenured
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Chamber. That has something to do with the widely recognised fact that this Chamber achieves particularly high standards of debate.
In the short time since I came here, I have listened to two speeches which I thought showed rare examples of political courage: that of the noble Lord, Lord Joseph, on the national curriculum, and that of the noble Lord, Lord Chelwood, on the Local Government Finance Bill. I would not insult those noble Lords by saying that they could not have made those speeches in another place. But they themselves might confirm that they would have found them much less easy to make in another place. If that is conceded, that is precisely the point I am making about the relationship between academic freedom and tenure.
It is essential for an academic that he should be able, if I may take a past case, to prove the harmful effects of thalidomide even though his department's main benefactors are Distillers. I know that is inconvenient but that is what we have academics for. To take a hypothetical future case—and I concede instantly that it is hypothetical—should an academic discover in a few years' time that new social security regulations have led to malnutrition, he should be free to publish even though his benefactor should be the Department of Health and Social Security. Under present arrangements, without tenure, he might well hesitate to do so.
An academic should be free, as one described it:
"to spend two years during which it seemed likely that the whole of the rest of my life might be consumed in looking at that blank sheet of paper".
That academic happened to be my father. The book that resulted happened to be Principia Mathematica: I think it is important that he was able to go on hammering at the problem without fearing that he would be dismissed for failing to meet productivity targets.
I also think that tenure is essential as a part of political pluralism. J. S. Mill remarked that, "in any constitution there should be a centre of resistance to the dominant influence in that constitution and I regard it as a fundamental maxim of government".
That is part of the justification of your Lordships' House. It is also part of the justification of academic tenure. In this—and I hope the right reverend Prelates will bear with me in this—we have succeeded, as they have, to some part of the inheritance of the medieval Church; an inheritance which depends on a degree of legal immunity, which depends on some immunity from prevailing values outside. It is an inheritance in which very often the irritating has been the valuable: the sociologists under this Government and the free market economists under a government from the Opposition Benches are an essential part of political liberty, even if there should be certain people who feel the need to accuse them of corrupting the nation's youth. In those situations, it is essential that the employing institution should be able to protect itself by saying to the Government, to the benefactor, and above all to a potentially intolerant public opinion, "I am sorry, I cannot help you. I cannot rid you of this turbulent professor."
It must be admitted that this approach may produce a great deal of rubbish. If so, it will be dealt

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with professionally, slowly but surely. But there is a parallel here to the unfashionable, but I think sound, principle that it is better that 99 guilty men go free than that one innocent man be condemned. That is a legal principle on which I still stand. It is also important to consider that we live in a far more specialised labour market than most other people. The degree of our specialisation is not widely appreciated. If a job were now advertised to teach English history from 1660 to 1832 I should be no more eligible to apply for it than the rawest postgraduate, who would be more suited than me. This means that if one loses one's job one loses one's profession.
I heard recently, in my university and subject, of a young man in his thirties in imminent danger of redundancy because tenure in his institution is weak. He is making no attempt to continue in his profession. He intends to become a property speculator. I do not know about other people but I regard that as a waste.
It is also important to consider that we live in an international market for academic jobs. I came back to this country in 1984. I would not have considered an offer from this country for five minutes had this Bill been law. I was talking recently to a young Cambridge junior fellow. Ten years ago he would have had the brightest academic prospects. We were discussing this clause and he said to me quietly, and with dignity, "I hope you win. I would like to stay in this country." For him it was as simple as that. However, at present, if this Bill goes through I cannot honestly advise him to do so.
The Secretary of State clearly supposes that there is no danger that good academics will lose their jobs. That is a belief which almost no academics share. We are living in a state of financial constraint which means that it is very difficult to continue to employ large numbers of people even of the very highest standards. With the leave of the Committee I should like to refer to a document which arrived on my desk five minutes before I left for the Chamber today.
It is the University College London Bulletin. I think that it will be news to the noble Lord, Lord Annan, because it has only just become public. This concerns one of the three most successful—by the Government's criteria—universities in the British Isles. It states that:
"A new campaign has been launched to persuade members of staff to accept 'early retirement' under the premature retirement compensation scheme (PRCS) 'with an even newer face'. At least sixty are needed by 30 September 1989. If substantial savings are not made by such means, the College will be insolvent by the end of 1989".
That is one of the best and most favoured institutions. That is the background in which the vice-chancellors have agreed to the abolition of tenure. It is a financial situation in which they are desperate to be able to dismiss people—and I entirely understand why. However, the reason which makes the proposal attractive to the vice-chancellors, even if only as a second best, is precisely the one which makes it unattractive (to say no more) to the rest of the academic community.
6.45 p.m.
Lord Annan: I have very great sympathy with what the noble Earl has been saying. Despite all their difficulties, I think that the vice-chancellors perhaps gave way a little too easily on this question of tenure. I have always felt that it was reasonable to give people who were devoting their lives to the study of sometimes very abstruse and difficult subjects, the study of which does not qualify them for any other profession or activity, security of tenure for a certain number of years. I believe that the right number of years is between the ages of 35 to 60 with a possible extension after the age of 60. However, one has to remind oneself what has happened in recent years, and why a situation arose which I think was an abuse in our universities.
If we go back to the 1920s and 1930s one had to wait for dead men's shoes in order to obtain a post. Some of the most brilliant people in Cambridge had no opportunity of having a tenured post. They would be there as assistant lecturers if they were lucky, sometimes as probationary lecturers, and sometimes even with no appointment except a college fellowship. They would hope that somebody in their subject was going to retire. I trust they never hoped that somebody was going to drop dead. But that was the only way in which they could obtain an appointment, and some hung on by one means or another until a post became vacant.
After the war, with the expansion of the universities, this changed. Cambridge maintained its old procedure in which you were first an assistant lecturer for five years with no guarantee of tenure after that. It was perfectly honourable to lose your position. If you were appointed a university lecturer, you were then appointed for three years on probation, even after those five years. You then had tenure: that is to say, although your lectureship was still on a five-year basis, it was then totally understood that this was a convention and that, subject to anything going wrong with you physically or mentally, you were in until the retiring age, although of course you hoped to be promoted to a higher grade. That was the position at Cambridge.
It was not the case, however, in the vast majority of universities in this country. In the civic universities you were sometimes appointed—and this became quite common in the late 1950s and certainly in the 1960s and 1970s—at the age of 25 after you had taken your PhD, and sometimes before, to a lectureship on a probationary basis for three years. In practice that was probation for two years, because in the third year you were being judged as to whether you should continue. Therefore you were in with hardly any probation. You then were established with tenure. It was true that, if you did not fulfil your promise, you could be held at the bar after, I think it was, five or six years. That meant that you could not have further increments on your stipend. People were very rarely held at the bar. Indeed, if you were held at the bar for any length of time you could guaranteee that the branch in your college or university of the Association of University Teachers would immediately begin agitating and saying that it was totally unfair that this young man should be held at

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the bar and denied the increments to which he was entitled.
And so it came to a point where people were appointed at the age of 28 until the age of 67 and it was this inflexibility which the Government encountered when in the 1980s they wanted to reduce government expenditure on higher education. It cost the Government enormous sums of money—millions and millions of pounds to break the contracts of staff who had to be made redundant so that the universities should be solvent. Of course they were not made redundant. They were offered early retirement and it was on such terms that the Government had to pay out.
I say this with great regret to the noble Earl, but that is why we are faced with this situation today. I think it is a grave mistake. I believe that we ought to have tenure in universities between the ages of 35 or thereabouts and the age of 60. That gives one flexibility in terms of the young who may have to be told that there is no further job available and that they must look elsewhere. At that stage they are young enough to look elsewhere. But in the case of the noble Earl, who has spent his life as a most distinguished historian, researching into early 17th century English history, it is extremely hard to see quite why somebody in that position, particularly given the distinction of people of that rank—scholars such as the noble Earl—should not be given tenure.
I shall not vote for the abolition of this clause. I think it should stand part. I believe that would be, if I may put it this way, a wrecking amendment, but I feel that I should say what is in my heart in support of the noble Earl.
The Earl of Halsbury: I agree with every word spoken by the noble Earl, Lord Russell, on the subject of academic freedom. The Motion before us is that Clause 173 stand part of the Bill. I believe that we should try as far as possible not to have Second Reading debates on clause stand part. They protract our proceedings indefinitely, however interesting the noble Earl, Lord Russell, and my noble friend Lord Annan were. I shall express myself as content that Clause 173 stand part of the Bill.
Lord Peston: I fear that I shall offend the noble Earl, Lord Halsbury, because I too take the question of tenure fundamentally seriously and this seems to be the clause under which I can debate it. In order to say that I do not want tenure abolished, my best method is to say that I do not, want the commissioners brought in to abolish it. Thus with due apology I am afraid that I too am about to make a long speech, but it is my only opportunity. I promise not to make another when I have finished it, but tenure is as important to me as perhaps some other aspects of the Bill are to members of the Government. I hope the Committee will bear with me, but I wish to say this once and it is important.
The noble Earl, Lord Russell, referred to his father—a man whom some of us hold in higher esteem than perhaps any other person in this century. But he did not remind the Committee that his father
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managed to be dismissed at least twice, if not more; so the question of tenure is certainly not a triviality.
There is no need for me to repeat the basic arguments which essentially are to do with the quality of academic work—the kind of remarks that the noble Lord, Lord Annan, has made. Also, I do not want to suggest to the Committee that some of us may have been given tenure too easily. I certainly became a professor as a very young man because there were not many economists around to make professors and there were professorships to be filled. I could never have competed with the great men of Cambridge in the 1930s where I would have stayed as assistant lecturer for a great many years.
I must tell the noble Lord, Lord Annan, that I do not want to go back to the 1930s and all those days. I believe that academics deserve a reasonable deal and reasonable careers. I do not regard it as unreasonable that not much above average academics should end up as professors, so I do not apologise even if we did it a little too easily.
Tenure in that sense is enormously important. Before making one or two economics points, my other point is that I must emphasise the enormous success of our university system. I again ask the Government what they think they are up to. We have here a university system which is admired throughout the world. The cost per graduate in our country is low, both internationally and historically. That at least ought to appeal to the Government. We in higher education have coped for the moment with real financial constraints. I am very much with the noble Earl, Lord Russell. I am not convinced that we shall continue to cope and I await to see which of our institutions will be the first to go bankrupt. I shall be interested as a social scientist, in a rather ghoulish sense, to observe the process of bankruptcy because it is not something that we have observed up to now and as scientists we should have an open mind about such matters. But I do not look forward to that in any way whatsoever. It is a dangerous state of affairs.
We have coped with financial crisis. Our productivity as conventionally measured has risen more rapidly than the boasts made about manufacturing industry in this country. We hope we have maintained quality, although I cannot be certain of that any more. Certainly those of us who carry on as academics are determined to maintain quality. Our research output by world standards is prodigious, as is our scholarship. I hope to hear no noble Lord denying that because that is regarded as fully accepted throughout the world.
Above all, I quote the noble Lord, Lord Ashby, who said that the academic profession in Britain is probably more dedicated to teaching and more successful in its dedication than are academics elsewhere. Therefore I believe that what the Government are up to is wrong anyway because there is no problem that is not there to be solved. But there can be no doubt that the abolition of tenure clauses are meant to be used, because although the orange book of notes does not carry the force of law I take it that its explanatory paragraph was meant to reveal to us what the Government have in mind.

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The Government say that these modifications to the terms of employment of academic staff will enhance a university's capability to reallocate resources to meet changing needs. The Government's policy is that universities should not be prevented from dismissing academic and related staff on grounds of redundancy, and so on. In other words, these clauses are not being introduced as minor clauses. There is no need for the noble and learned Lord the Lord Chancellor, who will no doubt reply for the Government, to say "Do not worry". The clauses are there to be used and we have to recognise that.
The key point I wish to make is that tenure has an economic function. First, the academic world is no longer a British world. It is not even a European world. It is the world. Academics are now highly mobile. They are bid for all over the place and they move from place to place. Therefore in terms of the best academics the situation is not very different from the best footballers or anything else. They will go where the conditions are best, where the working conditions in particular are best. They will go where they are wanted and they will certainly go where they are better paid. In terms of tenure what we ought to bear in mind is that our main competing nation, the United States of America, offers tenure contracts. Tenure is taken extremely seriously in that country. Tenure is not given easily, but it is given and it is certainly maintained.
I was amused by the remarks of the noble Lord, Lord Annan, about no tenure beyond 60. Some of my former colleagues at Princeton had tenure to 65. They then retired from Princeton. They moved to some of the great universities of the west and far west and were reappointed to tenure contracts to the age of 70, often at enormous salaries. The point about those institutions, if one were to say that only governments can do that, is that I am referring to the great private universities of America. They offer tenure contracts. They are the institutions which will be recruiting our best people and we have to respond to that. It is not just a matter of principle. It is a matter of straightforward, excellent economics.
The other key economics point is that if tenure is not offered the academic career becomes more risky. Clearly it does. If it becomes more risky one must pay the people who take those risks, because that is a straightforward elementary proposition of economics. Academics must bear such risks and their salaries must be raised pari passu.
The advantage that tenure has given to this country—and I speak as someone who believes that he has been treated in this way, as have other academics—is that we work for much less than our market value in the outside world. The reason we do so, other than our dedication to the work, is that we are bearing a good deal less risk. I do not doubt that. However, I cannot see why the Government should suddenly wish to re-introduce a risk element, which would achieve one of two things: either the salary of appropriate academics must be raised quite drastically or one must make do with inferior academics. I know that people will say that I am parti pris. However, our academics are first-class and we meet the market test. People continually come to us
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to ask us to work for them, and I believe that to be as good a test as any.
That is the ground that I wish to cover. I believe that the Government have made a mistake. I am not saying that it would not be appropriate to tighten the rules on granting tenure, but that there should exist within higher education the possibility of a fully tenured contract, as the noble Lord, Lord Annan, said.
7 p.m.
Lord Annan: Can the noble and learned Lord clear up one point? I have discussed the matter outside the Committee with the noble Lord, Lord Peston. He is probably right and I am almost certainly wrong. Is there anything in the Bill which prevents a university from saying to a distinguished American academic, "Come and join us. We will give you tenure to the retiring age"? I do not believe that there is. However, he would be perfectly all right provided that the department in which he worked was not decimated or reduced and redundancies made.
I can see no reason why one cannot give tenure to specified people on one's staff provided that the whole lot are not granted tenure. One would then be in trouble financially because it would be necessary to break the contract. However, provided that one believes that one is unlikely to break the contract, is it not possible to give someone tenure under contract to the retiring age? I am probably wrong.
Lord McCarthy: Will the noble Lord accept that in that case it would be very likely tenure? It would not actually be tenure because you could not guarantee that subsequently you would not have to take it away.
Lord Annan: I do not see why you should take it away, if I may say so. I can see no reason why it should be taken away.
Lord Wedderburn of Charlton: Will my noble friend who is still being asked questions, not agree that the tenure that was granted would be a tenure with the university being statutorily enabled to dismiss for redundancy whenever it liked?
Lord Peston: I am sorry; I did not realise that the Committee allowed any other noble Lord to answer questions. My concept of tenure is not being able to be fired for redundancy.
The Lord Chancellor: I believe that the question was directed to the noble Lord before he sat down, in the accustomed way. As regards the point raised by the noble Lord, Lord Annan, Clause 174(1)(a) requires that the statutes of the university should have inserted in them a provision enabling an appropriate body, or any delegate of such a body, to dismiss any members of the academic staff by reason of redundancy. In other words, if the university was hit by hard times it would be possible to dismiss anyone, subject to the scheme if it existed.
I believe I am right in saying that in some situations tenure is described even though it has that quality. In other words, tenure is sometimes spoken of in

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circumstances where people can have recourse to due process and there is a situation in which you can be dismissed but you can do nothing about it. I believe than tenure is referred to in some quarters when, instead of being dismissed summarily in that way, one has the right to a process which tests the reasonableness of one's dismissal. In any case, what we are now discussing is tenure of a character which does not permit the institution to dismiss by reason of redundancy.
The difficulty is that if the university or other institution is met by changed economic circumstances it is hoised by those circumstances if all its staff have tenure. It makes it very difficult for the institutions to reallocate their resources to meet changing patterns of needs because staff cannot be dismissed even where they are redundant; in other words, when the university can no longer afford to employ them.
If a university is faced with that situation it must instead rely on voluntary early retirement to induce staff to leave their tenured positions. The resulting pattern of staff changes is unlikely to match the real needs and interests of the institutions. Staff who are willing to leave or accept early retirement are often those with the best prospects of employment in industry and other places—I need not specify—and they are the kind of people whom universities may well wish to retain. However, universities may be obliged to release them in order to achieve inescapable staff reductions. I believe I am right in saying that in some institutions increasingly short-term appointments are being offered and that cannot be a good arrangement. This provision is designed to overcome the difficulty of tenured positions in such universities.
Our belief is that in the circumstances of changing economic conditions it is right to give universities and other institutions to which the provisions apply the possibility of accommodating themselves to the changed economic circumstances by declaring academic staff redundant. That is subject to the safeguards of Clause 173, which provides for the appointment of commissioners to write in to the governing constitution of the various institutions. As the noble Lord, Lord Peston, said, Clause 173 relates to that issue and not directly to redundancy. However, the Government believe it to be right that universities should have that flexibility. They believe that it will be used properly and that it will be subject to very reasonable safeguards. I hope that the Committee will agree that Clause 173 shall stand part of the Bill.
Earl Russell: I recognise the force of the argument put forward by the noble and learned Lord as regards changing economic conditions. However, in the interests of the academic it is not sensible to accept employment under those terms. I believe that if the clause is passed we shall not fill our posts.
It is not only a matter of dismissal but also of length of service. Now few academics are appointed before the age of 30; many are appointed a good deal later. If one retires at 55 then one does not have much to retire on. Part of the situation is that it is a job in
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which only one person in a million can be reemployed after dismissal. In this context and for that reason I argue for greater security when it is available in places elsewhere. Nevertheless, I shall no longer oppose the Question that Clause 173 shall stand part of the Bill.
Clause 173, as amended, agreed to.
Schedule 9 [The University Commissioners]:
[Amendments Nos. 276A and 276B not moved.]
Baroness Darcy (de Knayth)Baroness Darcy (de Knayth) moved Amendment No. 276BA:
Page 199, leave out line 28.
The noble Baroness said: I mentioned this group of amendments when speaking to an identical amendment to Schedule 5. I should like to thank the Government for indicating that they are willing to accept the amendment. I beg to move.
The Earl of Arran: Once again we are happy to accept the amendment.
On Question, amendment agreed to.
Baroness Darcy (de Knayth)Baroness Darcy (de Knayth) moved Amendment No. 276BB:
Page 199, line 29, leave out ("otherwise").
On Question, amendment agreed to.
The Earl of Arran: This might be a suitable moment at which to break for dinner. I therefore suggest that we do not return to the Committee stage of the Bill until 8.10 p.m. I beg to move that the House do now
resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Control of Misleading Advertisements Regulations 1988
7.10 p.m.
Lord Beaverbrook Lord Beaverbrook rose to move, That the draft regulations laid before the House on 23rd March be approved [21st Report from the Joint Committee].
The noble Lord said: My Lords, I beg to move the Motion in my name on the Order Paper.
If approved, the proposed regulations (together with the Financial Services Act, which I shall come to later) would implement the Council Directive 84/450/EEC (the misleading advertising directive). The regulations would be made under Section 2(2) of the European Communities Act 1972. In the most general terms, the directive requires member states to ensure that they have adequate and effective means for the control of misleading advertising, to protect consumers, other businesses and the general public. In particular, these means of control must include measures for the legal prohibition of misleading advertisements.
The directive defines both "advertising" and "misleading advertising" very widely, and this is

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reflected in the definitions in Regulation 2 of the draft regulations. The draft regulations do not, however, reproduce Article 3 of the directive, which sets out an illustrative list of examples of information which should be taken into account in determining whether advertising is misleading. The Joint Committee on Statutory Instruments has drawn your Lordships' attention to this omission, which is a deliberate omission and not an oversight. In the Government's view, the list is unnecessary. We consider that it does not add anything and, in practice, may even serve to narrow the interpretation of misleading advertising in the United Kingdom to a degree not intended by the directive. We have therefore not included it.
Member states are required by the directive to provide arrangements enabling any person or organisation, regarded under national law as having a legitimate interest in prohibiting misleading advertising, to initiate legal proceedings against such advertising or to bring it before an administrative authority. An administrative authority must be competent either to decide on complaints or to initiate appropriate legal proceedings. The Government propose to entrust this competence to three named administrative authorities: the Director General of Fair Trading; the IBA; and the Cable Authority.
The principal authority would be the Director General of Fair Trading. Regulation 4(1) would put him under a duty to consider complaints and Regulation 5(1) would empower him, if he thought it appropriate, to apply to the High Court or, in Scotland, the Court of Session for an injunction or an interdict.
The duty to consider complaints would be subject to two qualifications. The director would not be required to consider a complaint if he considered it frivolous or vexatious. More importantly, he would be able to require complainants to satisfy him that they had exhausted the established means of dealing with complaints. In effect, this would be a discretion to refer complainants to other bodies. The main bodies would be the Advertising Standards Authority and the trading standards departments of local authorities. He would however be able to refer complainants to other bodies as appropriate in relation to particular complaints.
To enable him to fulfil his functions, Regulation 7 would give the director a power to require information to be supplied to him, in particular to ascertain whether or not factual statements in an advertisement were true. Failure to comply with a notice from the director requesting information could be followed by an order from the court, on the application of the director, requiring the default to be made good.
The Joint Committee on Statutory Instruments has also drawn your Lordships' attention to this provision, which it says appears to make an unexpected use of the powers conferred by the statute under which the regulations are to be made. My Lords, the Government appreciate the valuable work done by the joint committee and are grateful for its vigilance. But we do not share the joint committee's view on this occasion. The power of the director is necessary (and not merely desirable) for those cases
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where the evidence as to whether or not an advertisement is misleading is uniquely in the possession of the advertiser. In order to be able to act swiftly and effectively, in the interests of both consumers and rival advertisers, the director needs a power to obtain this information. Two memoranda have been submitted to the jont committee to which the department explains in some detail how the taking of the power in Regulation 7 is within the powers conferred by Section 2(2).
In the case of broadcast advertising and advertising transmitted by a licensed cable service, the administrative authorities would be the Independent Broadcasting Authority and the Cable Authority respectively. Both are already competent to decide on complaints. The IBA may, if it considers an advertisement to be misleading, refuse to broadcast it. The Cable Authority may, under Section 15(1) of the Cable and Broadcasting Act 1984, issue a cable operator with a direction not to transmit a particular advertisement. In the event of a cable operator failing to comply with such a direction, the Cable Authority already has the power to revoke the cable operator's licence.
In implementing the directive, we propose to allocate responsibilities between administrative authorities primarily on the basis of the medium carrying the advertisement. There would however be one sectoral division. Investment business advertisements issued by or on behalf of a person authorised under the Financial Services Act 1986 or the appointed representative of such a person would be excluded from these regulations. Implementation of the directive in this sector would be achieved by the provisions of that Act and the administrative authority would be the Secretary of State or any person to whom he had transferred relevant functions under the Act. In practice that would mean the Securities and Investments Board.
My Lords, these regulations, if approved, would be a valuable addition to our already extensive regime of protection against misleading advertisements. Moreover, they would achieve this in a way that created no new criminal offences for traders; did not impose burdens on business; did not undermine the established means; imposed a negligible cost on the public purse; and afforded responsible businesses protection against unscrupulous competitors. In short, this measure is good news for both consumers and business, I commend it to your Lordships' House. I beg to move.
Moved, That the draft regulations laid before the House on 23rd March be approved [21st Report from the Joint Committee].—(Lord Beaverbrook.)
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Lord, Lord Beaverbrook for introducing these regulations. We note that this is yet another example of regulations introduced under the European Communities Act 1972, as a result of directives promulgated by the Commission. I have to say to the noble Lord that the regulations are of such substance that in other circumstances they would form the object of a Bill in your Lordships' House, and indeed in another place. However, we have to accustom ourselves to dealing with measures of this

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nature resulting from the European Communities Act in the manner which is prescribed; that is, by regulation.
In principle we have no objections to the control of misleading advertisements. It would be wrong for anybody to have objection in principle to that control. I note the noble Lord's comments about the Joint Committee on Statutory Instruments which has expressed some doubt about the regulations. There are some worrying points to which I should like to draw attention.
Regulation 2(1) is the interpretation section. It is quite clear in that it refers to the IBA and the reception and immediate retransmission of broadcasts made by the IBA. Of course, it does not refer to the BBC, but there could be a future occasion when the BBC is entitled and wishes to make advertisements. Furthermore, it does not refer to direct broadcasting from satellites where the jurisdiction is, at best, doubtful. It would be a very odd business if the IBA were constrained from allowing to be broadcast advertisements which are misleading while consumers whom the noble Lord is trying to protect—we appreciate that—can receive satellite broadcasts outside the jurisdiction of the IBA, the BBC or anybody else. I should be grateful if the noble Lord could comment on that.
In Regulation 2(2) the expression "likely to deceive" gives me some problems. I do not know how the courts would interpret the expression "likely to deceive" in respect of an advertisement. I can understand the concept of an advertisement deceiving a person but I find it difficult to see how the courts could decide whether an advertisement was "likely to deceive". However, I have no doubt that the noble Lord has an answer since I gave him notice of the problems I wished to raise. I am sure that he will be able to satisfy me on that point.
Regulation 2(2) contains the expression:
"an advertisement is misleading if … it is likely to affect their economic behaviour".
I do not understand the expression "economic behaviour". I understand economic theory and have learned about it but "economic behaviour" is a very wide expression. I can rise in the morning and make a telephone call which costs me money; that is economic behaviour. How the courts will say that an advertisement which may or may not be deceptive or may or may not be likely to deceive affects my economic behaviour I find very difficult to see. I hope the noble Lord can help on that.
Regulation 3 deals with advertisements under the Financial Services Act. I appreciate the noble Lord's remarks about the regulations under the Financial Services Act being much more stringent in their effect than the regulations which the noble Lord is now introducing. Nevertheless, the question arises: how do the regulations under the European Communities Act, which the noble Lord is introducing, march with the provisions of the Financial Services Act and regulations derived from that Act? How do we tell which advertisement, misleading or otherwise, is subject to the Financial Services Act and its subordinate legislation and which advertisement is
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subject to those regulations following slightly different rules and slightly different control?
Regulation 4 deals with complaints to the director. I assume from the context of the regulation that when it talks about,
"the complaint appears to the Director to be frivolous or vexatious"
the director is acting within the law and will be subject to judicial review if it is felt that the director is behaving unreasonably in saying that a particular complaint is "frivolous or vexatious". I should be grateful if the noble Lord could confirm that.
Regulation 4(4) introduces quite a different and major point. I believe it is for the benefit of the House if I read it out:
"In exercising the powers conferred on him by these Regulations the Director shall have regard to (a) all the interests involved and in particular the public interest; and (b) the desirability of encouraging the control, by self-regulatory bodies, of advertisements".
That raises the whole question of what is the public interest and which particular definition of the public interest the director is to have regard to when he looks at complaints about advertisements. It will not come as a surprise to your Lordships that over the past few months I have been inviting the Government to define what they mean by the public interest.
It is defined in different categories in different statutes. Perhaps I may give one rather way-out example. The Airports Act 1986 instructs the Monopolies and Mergers Commission to investigate matters concerned with the public interest where referred to the commission. Section 43(5)(b) of the Act instructs the commission:
"in the case of a matter relating to the granting of a right by virtue of which any operational activities relating to an airport may be carried on by any person or persons, shall in addition have regard to the following objectives, namely, the furtherance of the reasonable interests of persons granted such rights".
That is a statute definition of the public interest to which the Monopolies and Mergers Commission is to have regard. If misleading advertisements about which there may be complaints to the director concerning concessionaires in airports, who would normally fall under the provision, are referred to the Monopolies and Mergers Commission and require to be judged by the commission under Section 43 according to the public interest criteria which I have spelled out, it would be very odd if the director were to apply other public interests criteria.
In Section 84 of the Fair Trading Act the director has quite separate public interests criteria which we have discussed many times in this House. I do not wish to spell them out again. However, it seems to me that the public interest here is simply slipped into a regulation without any definition about which particular statute should override the regulation when the public interest is considered by the director.
Regulation 5 deals with applications to the court by the director. The director is entitled to apply to the court to bring proceedings for an injunction and may also apply to an interlocutory injunction. However, there is no provision for what the director should do if the advertisement has already appeared and has misled certain people. All that he can do is to stop the advertisement appearing in future. Perhaps the Minister would clarify what powers of redress the

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director or anyone else has for those who have been misled by that advertisement.
Regulation 6(2) introduces in my view two rather dubious expressions. First, it says:
"likely to convey a similar impression".
In order not to mislead your Lordships, perhaps I should read out Regulation 6(2), which relates to the functions of the court:
"An injunction may relate not only to a particular advertisement but to any advertisement in similar terms or likely to convey a similar impression".
I have no idea what that means in practical life. I shall be grateful if the Minister can explain it.
Regulation 6(5) says:
"The court shall not refuse to grant an injunction for lack of evidence that … the person responsible for the advertisement intended it to be misleading or failed to exercise proper care to prevent its being misleading".
I ask again: what happens if the person responsible for the advertisement did not intend it to be misleading and indeed exercised proper care but, for reasons quite outside his control, as we know from the Financial Services Act 1986 and derived legislation and practice thereunder, it turned out to be misleading? As the noble Lord will remember, Section 27 of the Act employs the word "recklessly" to the effect that the person is reckless as to whether it creates a misleading impression. There is a difficulty, to which I have referred, about whether the regulation marches with the Financial Services Act.
In Regulation 8, dealing with complaints to the IBA, paragraph (1) simply says that the IBA shall consider any complaint, and so on. It continues:
"The IBA shall give reasons for its decisions".
What decisions? So far as I can see, no decisions are mentioned in the regulation. If there are no decisions, what kind of reasons will be given? If there are decisions, what are they and what kind of reasons should the IBA give, how they should be justified and how should they be considered? Should they be considered as being reasons that can be taken to the court on judicial review? If the IBA is required to give decisions and these are up for judicial review, it introduces quite a novel procedure which, so far as I understand it, does not apply to the Press Council or to the Advertising Standards Authority at present.
Regulation 8(3) says:
"In exercising the powers conferred on it by these Regulations the IBA shall have regard to all the interests involved and in particular the public interest".
What is the public interest? Which definition of public interest are we going to adopt? The same comment applies to Regulation 10(3), under which the Cable Authority is required to have regard to the public interest. I should like to know where the Cable Authority derives its definition of public interest.
Certain points of detail—not of principle, because we are grateful that the regulations should be made and that we have to follow the European directive—need due consideration. I have spelt them out to the Minister. I gave him notice of what I intended to say. I hope that he will come with a good and satisfactory reply.
7.30 p.m.
Lord McGregor of Durris: My Lords, I thank the Minister for his exposition of the regulations. I do not intend to take up the time of the House beyond stating my interest in my capacity as chairman of the Advertising Standards Authority.
I wish to make one straightforward point. The Director-General of Fair Trading has already emphasised publicly that his new powers were,
"intended to support and reinforce the existing controls, not to replace them".
Accordingly, the Advertising Standards Authority will remain the central independent and self-regulatory institution for enforcing the British code of advertising practice in print, poster and cinema advertising. However, the new long stop power of the Director-General of Fair Trading, which was first recommended after an inquiry in 1979, will be valuable in certain circumstances. I am glad that the regulations will not affect the present machinery, which is efficient, effective, quick, accessible and cheap. It makes no use of lawyers or courts, and it costs the taxpayer nothing. Once the regulations have been approved, the Advertising Standards Authority will work closely with the Office of Fair Trading to ensure its further effectiveness.
Lord Beaverbrook: I am grateful to the noble Lord, Lord Williams of Elvel, for having given notice of what he intended to ask me. First, he asked what would happen in the event of the BBC at some time in the future taking advertisements. There are now a few BBC advertisements carried on BBC I and BBC2; for example, for Radio Times and other publications of the BBC. Any complaints would be dealt with by the director-general. If the BBC were to carry more extensive advertising at any time in future, the arrangements would have to be reviewed to decide what procedure would be appropriate.
As to satellite advertising in this country, I understand that purely domestic transmissions will be covered by the director-general, but problems arise in regulating broadcasts that do not emanate from within these shores. Transfrontier satellite broadcast services will have to be dealt with by international agreement. A broadcasting directive and a Council of Europe convention are being negotiated. I cannot claim that this is an easy matter to solve, but we are mindful of it.
I turn to Regulation 2(2). The noble Lord asked the meaning of the expression "likely to deceive". The regulation enables the director general, the IBA or the Cable Authority to take action without having to show that someone actually has been deceived. They will need to take a view as to whether a reasonable person was likely to be deceived. This expression gives the relevant authority the ability to take action without having to prove that someone has been deceived.
The noble Lord, Lord Williams, asked what is meant by the expression "economic behaviour" in Regulation 2(2). The simplest way to answer him is to give an example. Economic behaviour refers to where someone is persuaded to buy something as a result of a misleading advertisement. This is distinct from an aspect of an advertisement which would affect some other kind of behaviour—social behaviour and so on.

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Here we are dealing with where someone is persuaded to go out and buy something.
Lord Williams of Elvel: My Lords, I do not expect the noble Lord to answer now, but I wonder whether he could write to me to say where and when in any other statute the expression "economic behaviour" has been used, and what was the definition employed in that statute.
Lord Beaverbrook: My Lords, I cannot answer the noble Lord's direct question but I understand that the wording is taken from the EC directive. I shall look into it further and let him have the results of my research.
The noble Lord's next point concerned the Financial Services Act. He will know better than I that there is a separate and special regime covering all aspects of financial services, including advertisements. We consider that the relevant provisions of the financial services legislation will have the same effect in respect of misleading advertisements. Rules made under the Financial Services Act make the necessary provision in respect of investment advertisements by authorised persons and their appointed representatives.
The Act and the rules do all that is necessary to implement the directive in that area. I do not see any useful purpose in duplicating those provisions in the regulations. Where a firm or person authorised under the Financial Services Act advertises for staff and so on, it may well be that any misleading advertisement would come under the area dealt with by the director general rather than necessarily by the SIB or any other person appointed under the Financial Services Act.
The noble Lord asked me the meaning of the expression "frivolous or vexatious" where the director general finds that a complaint is not to be treated seriously. The director general needs to be protected from having to spend his resources on dealing with such complaints. Although it is up to him in the first place to make that decision, no doubt his decision could be subject to judicial review. There is certainly a point there.
The expression "public interest" is never an easy matter in your Lordships' House. The noble Lord, Lord Williams, and I have participated in debates on many Bills where the expression "public interest" has arisen in different contexts. I am sure the House will forgive me if I do not attempt this evening to give a statutory definition of the term. I see the noble Lord, Lord Mishcon, on the Opposition Front Bench. I am sure that he will agree with me that this term is used often but has generally been left to the courts to assess what is meant by it. I understand that the courts are well versed in this area.
In this case the director general would probably not regard it in the public interest to seek an injunction in the case of an advertisement which had finished and which he knew would not be repeated. It would be waste of his time, probably a waste of money from the public purse, a waste of the court's time, and therefore would be against the public interest.
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The noble Lord, Lord Williams, mentioned the meaning of the expression "public interest" under Section 43 of the Airports Act. The expression appears in many statutory provisions but no statute overrides Regulation 4(4)(a) since it implements Article 4(2) of the Community directive. The directive does not define the expression but I understand that the courts are well practised in interpreting the expression. It would not be appropriate in regulations of this kind to gloss the expression even if a wholly satisfactory definition could be formulated. The joint committee would no doubt comment adversely on any such attempt, and quite rightly so.
Lord Williams of Elvel: My Lords, this is an important point as I am sure the noble Lord recognises. Am I to understand from what he said that the courts are to be the arbiters of public interest under this regulation, and that they will be required to disregard the public interest definitions in statutes such as the Fair Trading Act, the Airports Act, the Gas Act and so on, and simply decide in their own wisdom what under this regulation the public interest means?
Lord Campbell of Alloway: My Lords, the answer to that is probably yes, because the ultimate arbiter on a matter of interpretation under Article 177 is the European Court of Justice. Within the Community context, perhaps the answer is yes.
Lord Beaverbrook: My Lords, I am grateful to my noble friend. That probably is the case. The courts would come to a decision and I understand that they are well versed in that. It is a complicated area but at the end of the day it is up to the courts to come to their own conclusion on this matter.
The noble Lord, Lord Williams, asked what other remedies may be available, as any injunction taken out by the director general, the IBA or the Cable Authority will only stop the offending or misleading advertisement. That is the purpose of the regulations. The purpose is not to punish offenders. There is criminal legislation for that. The purpose is to secure the cessation of the misleading advertisement as soon as possible. The director general will be able to act quickly when necessary.
The role of the trading standards officers will continue as before. They will have the responsibility for the enforcement of a whole range of criminal legislation relevant to advertising, in particular the Trade Descriptions Act. They do an extremely important job and they and the Advertising Standards Authority already successfully deal with the great majority of complaints about advertising. The regulations will not change that but will merely provide an extra means of dealing with those few complaints which cannot be dealt with otherwise. The director general will in effect act as a long stop rather than as one of the principal players.
The noble Lord, Lord Williams, asked me about the meaning of the expression "likely to convey similar impression". It was included necessarily to avoid advertisers escaping from an injunction just by making minor changes to an advertisement or by

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switching from one medium to another. That is the purpose of the expression.
The noble Lord, Lord Williams, asked me what effect the absence of an intention to mislead would have on the obtaining of an injunction. I understand that any absence of intention is irrelevant in the same way as is an absence of damage caused to the complainant. However, in the Trade Descriptions Act any possible defence is probably on a higher level and there is a defence in that Act—if a matter under such regulations reached the stage where there was a criminal prosecution—of due diligence and of taking all reasonable precautions.
I turn now to the subject of the IBA and the decisions that it would have to make under the regulations. I understand that in normal circumstances the IBA would have to give its reasons for its decisions to the complainant in writing and would probably publish its decisions, as is the present situation. No doubt if the IBA did not carry out its statutory functions correctly it could be challenged under judicial review procedures.
In answer to the noble Lord's final question on the subject of the IBA, I suggest that in the context of the regulations the decisions referred to in Regulation 81 are quite clearly decisions to take or not to take action in relation to a complaint about a broadcast advertisement. I think that what I have said answers the noble Lord's question on that point.
I am grateful to noble Lords for their contributions to these discussions and I am sorry that I have taken some time to answer the points that were raised. However, they are important points and I trust I have been able to clarify the position. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 23rd March be approved [21st Report from the Joint Committee].—(Lord Beaverbrook.)

Malicious Communications Bill
7.53 p.m.
Lord Campbell of Alloway: My Lords, I beg to move that this Bill be now read a second time.
The Bill comes from another place, where it was introduced by my honourable friend Mr. Andy Stewart. It is based upon the 1985 Law Commission report on poison pen letters. It creates a new offence in any one of a quadruplicate set of circumstances.
Where any person sends to another person, with intent to cause distress or anxiety, a letter or other article such as, for example, a tape or computer software which conveys:

(i) a message which is indecent or grossly offensive;

(ii) a threat; or

(iii) information which is false and known or believed to be false by the sender; or

(b) any other article which is, in whole or part, of an indecent or grossly offensive nature.
there is the commission of the new offence.
Sending articles in that context, with each of those quadruplicate set of circumstances, includes delivery and causing to be sent or delivered. The offence is liable summarily; the maximum penalty is a fine of
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£400; the Bill would come into force two months after its enactment in England and Wales and may become effective in Northern Ireland by Order in Council, subject to annulment by resolution by the House. The state of the law in Scotland—this will be no surprise to your Lordships—is such that it is really quite unnecessary and not appropriate that the Bill should apply to Scotland.
In the case of a threat used to enforce a demand, if the sender shows that he believed that there were reasonable grounds for making the demand and that he believed that the threat was a proper means of reinforcing that demand, then no offence is committed. However, subject to that exception, the criminality resides in the action, irrespective of whether it causes distress or anxiety—a matter which was discussed in another place.
A further matter that was discussed in another place was whether, in context with threat, "reasonable belief' was appropriate. However, the test is not "reasonable belief', but belief that there were reasonable grounds—which is not quite the same thing, although both are subjective.
In the other place the question arose as to whether the test should be subjective or objective. That was a matter upon which my honourable friend Mr. Patten gave an assurance that attention should be paid to that question in your Lordships' House, if your Lordships were so advised.
In a sense, the new offence fills a gap between nuisance telephone calls—which were an offence under Section 43(1) of the Telecommunications Act 1984—and an offence under the Post Office Act Section 11(1)(c), which only applies when material is sent, or is attempted to be sent, by post. Of course there is a possible element of overlap between that offence and the new offence. Indeed the term "indecent" in Clause 1 overlaps to some extent with the term "grossly offensive". However, both terms are used in the analogous offences under the Telecommunications Act and the Post Office Act to which reference has already been made, and so far this has not given rise to any difficulties.
It is right that your Lordships should know that although the Bill is based upon the Law Commission Report it departs from it in six significant ways: the penalties are reduced; the burden of proof that a threat was warranted is now upon the defence; the protection is now afforded even wider to include third parties; the offence now includes causing to be sent or delivered, thereby widening the ambit; the "reasonable excuse" defence has been wholly excised; and there is the enabling clause as regards Northern Ireland.
The hope must be that this modest, non-controversial measure may commend itself to your Lordships as reasonable, timeous and requisite. I beg to move.
Moved, That the Bill be now read a second time—(Lord Campbell of Alloway.)
8 p.m.
Lord Mishcon: My Lords, as one would expect of the noble Lord, Lord Campbell of Alloway, he has moved the Second Reading of the Bill with great

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clarity. It is an important little Bill. I suppose that if we were to try to describe the practice of sending poison pen letters we might shortly describe it as cruelty anonymous. It is in that atmosphere that I rise to support, in a general way, this measure. As the noble Lord, Lord Campbell of Alloway, said, there is a gap in the law. There is a gap between criminal libel, for example, which I do not think he mentioned, and the other statutory offences.
Criminal libel will not cover a case where nothing defamatory is said but something offensive, something menacing is said. Furthermore, in most cases one would have to prove that a breach of the peace was apprehended as a result of any criminal libel; and so there is no doubt that there is a gap in the law. One passes an Act of Parliament hoping that one will mitigate to some extent the horrible practice of sending poison pen letters or sending articles. Articles have a very broad meaning, the precise nature of which I do not intend to detail to your Lordships. However, your Lordships have sufficient imagination to know what might and does occur offensively through letter-boxes in various circumstances.
The fear is of course that one passes an Act of Parliament with good intent but one knows in one's heart of hearts that the number of cases that one will ever be able to bring are few, by virtue of the fact that cowardice is the spirit usually lying behind poison pen letters. The result is that the person who writes them is usually untraceable, though the person who puts something through the letterbox may conceivably he traceable.
One then turns to the question of whether one should have an Act of Parliament when one has not proved to the satisfaction of Parliament that the practice is so widespread that it deserves a legislative measure. Your Lordships may be interested to know that in a similar obnoxious practice relating to offensive and indecent telephone calls Parliament was informed that above 500 cases are reported every day, including Saturday and Sunday. So one can imagine that the number of poison pen letters of the kind that we are describing in the legislation is pretty prolific.
One then wonders why there has not been an outcry; why it is that there are not more attempts at prosecution. I am afraid the answer is that many people have to be informed by lawyers whom they may consult that at the moment there is no way in which a prosecution can be brought, even if the person can be indentified. There is the gap that the Bill fills.
The only other comment I have to make is that having said that it may be difficult in many cases to prosecute and that we are legislating here with the knowledge that we possess as ordinary folk; that this cruel practice is prevalent, even if we cannot prove the statistics; knowing that we are going to legislate through this measure, the next question—it is the final one with which I deal—is: are we being consistent in regard to the penalty exacted under the Bill?
The noble Lord, Lord Campbell of Alloway, mentioned the fact that the penalty provided in the Bill is not the same as was recommended by the Law
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Commission in the draft Bill which it appended to its report. The penalty there, as I remember it, was £200 with a possibility of imprisonment. I think that I am right in saying that. The penalty under the Bill is £400: that is, scale 3 as against scale 5.
If one tries to have a little consistency, I am afraid that I have to remind your Lordships of something that happened in your Lordships' House. I do so because I believe that as a result of what happened we should be careful when we come to examine the question of penalty. Perhaps your Lordships will forgive me if I quote from paragraph 4.55, on page 30 of the report, which states:
"In regard to the suggestion for amending section 43(l), we have noted that Parliament recently had the opportunity of increasing the maximum penalty under it".
That is Section 43(l) of the Telecommunications Act 1984. We were dealing in the House on that occasion with the penalty to be exacted in respect of that section.
The report continues:
"In the House of Lords a backbench amendment to the relevant clause in the Telecommunications Bill would have provided a maximum penalty of six months' imprisonment for the offence as an alternative to a line. During the short debate on the amendment, concern was expressed by its proponents about the large number of reported cases of nuisance telephone calls (some 500 each day) and the fact that many of these calls had a terrifying effect on the, often lonely, people who received them. In opposing the amendment, the Lord Advocate said that, because of the width of the offence, mans of the cases brought under it were petty cases for which it would be undesirable to send offenders to prison. He also drew attention to the offence proposed in our working paper"—
that is the offence with which we are dealing under the Bill—
"for dealing with the sending of grossly offensive communications and suggested that it might be better to await the outome of our review before proceeding. Consequently the amendment was withdrawn and the maximum penalty remains a fine of only £400".
I remind the House of that point because the noble and learned Lord the Lord Advocate was expecting us, when we dealt with legislation of this kind, to have that debate in mind and to look at the question of consistency of penalty. How inconsistent it is! I gave that instance to remind your Lordships.
I now turn to paragraph 2.7 of the report, which deals with the offence under Section 11 of the Post Office Act 1953,
"for any person to send indecent or obscene material through the post".
We are reminded in the report that the maximum penalty on summary conviction for that offence is a fine not exceeding £2,000. On conviction on indictment, the court may order imprisonment for a term not exceeding 12 months in addition to imposing a fine. That is for the offence of sending indecent or obscene material through the post.
We are in danger of being completely inconsistent when that is the penalty for committing those offences under the Post Office Act while we are saying that the sending of poison pen letters, if their author is discovered, charged and convicted, cannot be sentenced to any term of imprisonment and is subject to a maximum fine of only £400. If we are really trying to deter these people from doing this obnoxious thing, it seems to me we not only need to have a proper deterrent and consider that very carefully but we must also be consistent in regard to

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our penalties. Otherwise we are doing something a little irresponsible. Subject to those comments, I support the Second Reading of this Bill.
The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, I wish to congratulate my noble friend Lord Campbell of Alloway on taking up this Bill and bringing it forward for the consideration of this House. The Government offered this Bill their full support during its passage through another place and we intend to offer similar support in this House.
This is a difficult area in which to legislate. One does not wish to catch the robust expression of sincere opinion, nor does one wish to bring the criminal law into trivial private quarrels carried on in correspondence. What my noble friend and I want to do is to penalise those who set out to wound others by sending them harmful matter. My noble friend's Bill steers a careful course through this difficult territory. I believe that this Bill will make an important addition to the criminal law. It clearly struck a chord with all parties in the other place. I believe it will strike a chord with noble Lords in this House. It tackles behaviour which is clearly criminal and provides an effective penalty and an effective deterrent. It is an admirable and necessary Bill. It has the Government's wholehearted support and I hope that noble Lords will have no difficulty in giving it a Second Reading.
Lord Mishcon: My Lords, before the noble Baroness sits down. I wonder whether, having heard my speech, she would care to alter what she said? Perhaps she might say that her noble friend and the Opposition, as well as herself, supported this Bill.
Baroness Trumpington: Gladly, my Lords.
8.11 p.m.
Lord Campbell of Alloway: My Lords, though I shall he brief there is no disrespect or want of sincerity in what I have to say. I am extremely grateful to the noble Lord, Lord Mishcon, for his erudite and most constructive contribution. I think that the noble Lord accepts that, in accordance with the Law Commission report and our own knowledge of life, the practice is so widespread as to warrant legislation.
The point that the noble Lord makes on consistency of penalties is a very serious, well thought out and important one. It may well be that this matter will have to be considered at a later stage of the Bill. I say no more about it at this stage, where we are dealing with points of principle. I am extremely grateful to my noble friend the Minister for her support and for the remarks she made.
Before concluding, I wish to congratulate the draftsmen on having produced a Bill where the precision of the draftsmanship is matched by the clarity of expression. It is an intelligible Bill. I also wish to acknowledge the work of the Law Commission and of course the initiative of my honourable friend Mr. Andy Stewart and the help I have had personally from the Home Office with the
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preparation of these documents. I respectfully ask that this House give the Bill a Second Reading.
On Question, Bill read a second time and committed to a Committee of the Whole House.

Education Reform Bill
House again in Committee on Schedule 9.
8.15 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 276C:
Page 200, line 32, at end insert—
("9. The Commissioners shall submit an annual report to Parliament.").
The noble Lord said: In speaking to this amendment, I shall be speaking also to Amendments Nos. 279CA and 279E in the name of the noble Lord, Lord Allen of Abbeydale, which are also in this group.
Amendment No. 276C is intended to add to Schedule 9 an obligation on the commissioners to submit an annual report to Parliament. Amendment No. 279CA is to add to Clause 174 the same obligation in rather fuller language:
"The commissioners shall make an annual report to a Select Committee of both Houses of Parliament appointed for the purposes of this Act on their proceedings, and the Select Committee shall lay the annual report before Parliament with such comments (if any) as they think fit".
If I may say so in anticipation of the remarks of the noble Lord, Lord Allen of Abbeydale, he continues the progression of this group and his amendment is rather longer even than my second amendment.
These amendments are directed to the problem that the commissioners are exercising a power to secure that the statutes of each qualifying institution have the various provisions enumerated in Clause I 74. This necessarily entails that there should be alterations to the statutes and ruling documents, if I may take it in that wide sense, of the various universities. Some of these are Acts of Parliament, some of them have other bases. But it is appropriate that if there is to be this power to secure change, the exercise of the power should be supervised by Parliament or at least watched by Parliament and commented on. It is with that intention that these two amendments, to which my name is attached along with that of the noble Lord. Lord Grimond, are put down. I beg to move.
Lord Allen of Abbeydale: I have great sympathy with the amendments just moved by the noble Lord, Lord Morton of Shuna, more particularly because in my Second Reading speech I recommended that what is proposed should be done.
I invite the Committee to look for a moment at my Amendment No. 279F on page 12 of the Marshalled List. It is quite long. I have put it down in genuine puzzlement as to the precise effect of the Bill as it stands on relations between the findings of the commissioners and the supervision of Parliament. Let me make it clear that I am not suggesting anything with the desire of holding things up. The procedure is complicated enough already and can

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take some time. The idea of having commissioners is presumably modelled on the two Acts of 1877 and 1923 applying to Oxford and Cambridge and the 1898 Act applying to London. On that occasion there was a universities committee of the Privy Council and there was provision that they resolve any dispute and that amendments which they had agreed to or other non-controversial ones were laid before Parliament and could be prayed against.
What happens this time? The position is different in that we now have the Department of Education with a direct interest in universities. That used not to be the case. It is a procedure which to my mind will affect all universities and not just those which happen to have tenure. When I asked a question on this the other day, the noble Baroness, Lady Hooper, said that the staff of the Privy Council Office and the DES saw no difficulty in coping with the trickle of submissions which would come in from the commissioners over a period of three years. It sounded as if the Privy Council Office, which is very tiny, would be operating as little more than a post office and that this time it would in practice fall to the officials of the DES to sit in judgment on the commissioners' findings. But it is what happens next that I find rather puzzling. Clause 175(6) says as regards the findings of the commissioners:
"No instrument made in the exercise of the Commissioners' powers … shall have effect unless it has been approved by Her Majesty in Council".
Clause 178 hides behind a marginal note, which states:
"Power to make incidental, etc., provisions by Order in Council".
The clause states:
"Her Majesty may at any time by Order in Council make such incidental, consequential or supplementary provision as appears to Her necessary".
for the purposes set out.
Clause 178(2) states:
"An Order in Council under this section may in particular amend, repeal or revoke … any provision
of—
(a) an Act passed or a charter granted … before the passing of this Act".
As the university statutes will in future cover grievances and appeals procedure, the chances are that the provisions of pretty well every university will have to be amended, certainly the Act affecting Royal Holloway and Bedford New College with which I have some concern will have to be amended.
Clause 192(4) concerns a statutory instrument. We now have a statutory instrument appearing on the scene. The clause states:
"(4) A statutory instrument containing—
(a) an Order in Council made under section 178 of this Act … shall be subject to annulment in pursuance of a resolution of either House of Parliament".
I of course am not used to dealing with Acts of Parliament and I may be quite wrong, but does this very complicated jigsaw mean that in practice every amendment of every statute of every university, whether the statutes are made under charter or under an Act of Parliament, is to be the subject of Orders in Council which can be prayed against? If that is right, would it not be more sensible to say so in terms perhaps on the lines of my amendment rather than let
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the whole structure rest on a clause which according to the marginal note confers a power:
"to make incidental, etc., provisions"?
If I am wrong and the jigsaw does not mean this, my amendment speaks for itself as setting out something that ought to be done.
The Lord Chancellor: Perhaps it might be wise for me to start by saying what I understand the procedure to be. The commissioners' powers are set out in Clause 175. They:
"may make such modifications of the statutes of any qualifying institution as they consider necessary or expedient … No instrument made in the exercise of the Commissioners' powers under this section shall have effect unless it has been approved by Her Majesty in Council".
So in the ordinary case of statutes which are not Acts of Parliament the commissioners' powers may be exercised, and once approved by the Privy Council no further procedure will be required.
If however something further is required—something that requires a fuller exercise than a mere exercise of the commissioners' powers—Clause 178 is intended to deal with that. It states:
"(1) Her Majesty may at any time by Order in Council make such incidental, consequential or supplementary provision as appears to Her necessary or expedient—

(a) for the general purposes or any particular purposes of any exercise of the Commissioners' powers under section 175 of this Act; or

(b) in consequence of any exercise of those powers or for the purpose of giving full effect to any such exercise".

That is to say that if something appears to be necessary to be done which is not contained within the powers of the commissioners under Clause 175, it does not mean that it could not happen at all. It means that in that situation where something further is required it may be done by Order in Council. When an Order in Council is carried out and that includes the situation in which an Act of Parliament is itself to be modified, the necessary procedure is that which is set out in Clause 192(4). My understanding of the position is that in the ordinary course the only procedure that would be required is for the Privy Council to give effect to the exercise of the commissioners' powers.
Where something more than a mere exercise of the commissioners' powers is called for falling within Clause 178, that may be done by Order in Council, but an Order in Council is:
"subject to annulment in pursuance of a resolution of either House",
as provided in Clause 192(4).
Lord Allen of Abbeydale: In view of the changes which have been made to the Bill since it was first introduced, does not that mean that in practice nearly every case will come within Clause 178 in that it is not just talking about an Act of Parliament but also about charters?
The Lord Chancellor: Clause 178 is only required if something more than an ordinary exercise of the commissioners' powers is required. The commissioners' powers are referred to in Clause 175. That may be sufficient in most cases, but the exercise

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of their powers may throw up some other expedient change which flows from what they have done. In that case the powers under Clause 178 would be exercised and in such a case the parliamentary procedure is open.
I think that the answer to the noble Lord's last question is that in many cases the commissioners' powers would be sufficient to deal with the matter without the need for Her Majesty to go on to exercise powers under the Order in Council. For example, a good number of the institution statutes at least are contained not in the charter but in statutes passed by virtue of powers contained in the charter. In that situation the statutory instrument is not required as regards Clause 175. It would only be required if power to do something more was necessary under Clause 178. I think that that is the correct position. I am taken up with answering the question but I must now go on to deal with the amendment.
I shall take the amendment of the noble Lord, Lord Allen of Abbeydale, first. In the light of what I have sought to explain, the noble Lord's amendment is perhaps not appropriate. As regards getting the commissioners to report to Parliament I do not know what the purpose of that is. The powers that they exercise become effective as changes only when approved by the Privy Council. The matters will become public property very quickly—they are all references to public documents or to the university. I cannot imagine why there should be formal reports to Parliament. The powers are fairly strictly defined.
The powers in Clause 178 are subject to parliamentary control and I should have thought that a report to Parliament in the way proposed in the amendment of the noble Lord, Lord Morton of Shuna, was inappropriate. Perhaps I should also say, just in case anyone thinks I have forgotten, that among the precedents followed by having commissioners are of course the commissioners who were appointed under the University of Scotland Act.
8.30 p.m.
Lord Morton of Shuna: I have never heard Parliament disposed of quite so summarily. We are discussing a group of five people who will change statutes and even Acts of Parliament. It will then report to the Privy Council which is not the most public organisation in the world in its considerations. Nor does it represent every branch of opinion. Those are very important powers. They are powers which the universities and many others are concerned should be exercised strictly within the limits and not exceeded. I should have thought that it is eminently reasonable for Parliament to have some supervisory role in deciding whether or not those powers are being properly exercised. Otherwise, what is the purpose of having a Parliament?
Lord Allen of Abbeydale: The noble and learned Lord said that in the light of his explanation I am wrong about the charters. He said that my amendment is uncalled for. I take a different view. I think that his explanation has made it more important in that, contrary to my own amateur view,
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there is no routine procedure for Parliament to exercise any control over the changes. My amendment suggesting that they should be laid before Parliament has an even stronger claim for consideration than I had realised.
The Lord Chancellor: The powers that Parliament is giving to the commissioners are fairly closely defined. There has to come a stage at which the business stops. The noble Lord complained about the complexity of the procedure and he now seeks—perhaps it is unfair to say that, because it is on a slightly different footing—to add another stage. If the powers are sufficiently clearly defined, as I believe they are, then it is appropriate that the Privy Council should be the body to deal with those matters.
The noble Lord, Lord Morton of Shuna, says that the Privy Council is not the most public body that was ever invented. The fact that it is called the Privy Council would suggest just that. However, it is the body that grants charters and it seems appropriate that it should have a role. It is important that if something is required beyond a mere change of university statute Clause 178 should come into play and parliamentary procedure should be invoked.
The minor matters are left to the Privy Council, which I should have thought was implicit in what was said earlier. It is right that that should be so. It is not correct that nearly every case will require parliamentary scrutiny under the provisions, as the noble Lord first said. I believe that it is right that not every case should demand parliamentary scrutiny. Only where the powers required under Clause 178 are invoked is parliamentary scrutiny necessary. Reporting to Parliament would be an inappropriate stage in that procedure. If there was to be any parliamentary control at all, it would be in the nature of what is provided in Clause 192.
However, there must come an end to supervision or we shall have supervisers supervising supervisers almost ad infinimm. I suggest that the procedure which is set out is a reasonable one for the comparatively subsidiary role which the commissioners will have in adapting what Parliament has laid down in the principle Bill, if it is passed, to the constitutions of individual universities or other institutions affected.
Lord Morton of Shuna: I regret to say that I do not find that satisfactory. We have gone through this Bill, as we have gone through others, with the Government saying that the powers given to do this or that shall be by order, or that without even the necessity of an order the Secretary of State shall make up his mind. It seems to me that the alteration of statutes is important and that Parliament has a different and more important role which should be recognised. I intend to press the amendment.
8.35 p.m.
On Question, Whether the said amendment (No. 276C) shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 59.

DIVISION NO. 2

CONTENTS

Adrian, L.

McNair, L.

Airedale, L.

Morris of Kenwood, L.

Allen of Abbevdale. L. [Teller.]

Morton of Shuna, L.

Mountevans, L.

Ardwick, L.

Nicol, B.

Blackstone, B.

Ogmore, L.

David, B.

Peston, L.

Dean of Beswick, L.

Pitt of Hampstead, L.

Dormand of Easington, L.

Ponsonby of Shulbrede, L. [Teller.]

Elwyn-Jones, L.

Ely, Bp.

Russell, E.

Ewart-Biggs, B.

Seear, B.

Falkland, V.

Serota, B.

Grey, E.

Shepherd, L.

Grimond, L.

Sherfield, L.

Hatch of Lusby, L.

Stewart of Fulham, L.

Hereford, Bp.

Swann, L.

Hylton, L.

Tordoff, L.

Jeger, B.

Turner of Camden, B.

Kearton, L.

Underhill, L.

Lockwood, B.

Wedderburn of Charlton, L.

London, Bp.

Williams of Elvel, L.

Longford, E.

Winchester, Bp.

McCarthy, L.

NOT-CONTENTS

Aldington, L.

Hives, L.

Arran, E.

Hooper, B.

Ashbourne, L.

Jenkin of Roding, L.

Bathurst, E.

Johnston of Rockport, L.

Beaverbrook, L.

Lindsay, E.

Beloff, L.

Lindsey of Abingdon, E.

Belstead, L.

Long, V.

Blatch, B.

Lucas of Chilworth, L.

Brabazon of Tara, L.

Mackay of Clashfern, L.

Brougham and Vaux, L.

Margadale, L.

Caithness, E.

Mersey, V.

Campbell of Alloway, L.

Monk Bretton, L.

Carlisle of Bucklow, L.

Munster, E.

Carnegy of Lour, B.

Nelson, E.

Carnock, L.

Northesk, E.

Cowley, E.

Pender, L.

Craigavon, V.

Reay, L.

Cullen of Ashbourne, L.

Redesdale, L.

Davidson, V. [Teller.]

Renton, L.

Denham, L. [Teller.]

Skelmersdale, L.

Dormer, L.

Swinfen, L.

Eden of Winton, L.

Swinton, E.

Faithfull, B.

Teviot, L.

Ferrier, L.

Torphichen, L.

Gray, L.

Trafford, L.

Greenway, L.

Trefgarne, L.

Grimston of Westbury, L.

Trumpington, B.

Halsbury, E.

Wise, L.

Henley, L.

Young, B.

Hesketh, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.42 p.m.
Shedule 9 agreed to.
Clause 174 [Duty of Commissioners]:
[Amendment No. 277 not moved.]
The Deputy Chairman of Committees (Lord Renton): If Amendment No. 277A is agreed to I cannot call any of Amendments Nos. 277B to 278C inclusive.
Lord Peston Lord Peston moved Amendment No. 277A:
Page 159, line 36, leave out paragraph (a).
The noble Lord said: Amendment No. 277A is grouped with Amendment No. 279ZD, in the name of the noble Baroness, Lady Seear, and the noble Earl, Lord Halsbury, and Amendment No. 279ZE, in the name of the noble Lord, Lord Pender. It is somewhat arbitrary that I speak first because it seems to me that the subsequent amendments are rather more to the point than my own. However, if I briefly say what I think the point is I can then sit down.
These amendments do what I argued earlier we need to do. They enable the institution to offer—subject to very stringent conditions which can be discussed in detail if the amendments are passed—what I would call a tenure contract. The noble and learned Lord the Lord Chancellor made clear what he thought constituted a tenure contract in this context. That is also what I think a tenure contract is, so we have no difficulty on that issue. The amendment seeks to enable such a contract to be one of the possible contracts that a university or college could offer to its staff. That is my interpretation of the amendments and that is what I seek to draw to the attention of the Committee. I beg to move.
Baroness Seear: I should like to support the amendment. In our view it is very desirable. I do not want to repeat the arguments that were put forward earlier during the discussion of the question of tenure. However, it should be possible for institutions to offer genuine tenure to people they wish to attract and to hold. That is essential, in our view, if the standards of universities are to be maintained.
The arguments have been rehearsed at considerable length in connection with an earlier amendment. I merely wish to say that I hope the Committee will agree that this is a way of satisfying the Government's desire that universities should not be landed with near universal tenure while at the same time giving those institutions the possibility to recruit and retain the people they really need if the standards of universities in this country are to be maintained.
Lord Pender: I should like to move Amendments No. 279ZE to 279ZAB.
The Deputy Chairman of Committees: The noble Lord cannot move any other amendment at this moment. He can refer to it.
Lord Pender: The purpose of the amendment is to make provision for American-style contracts following the practice of the great American private universities such as Harvard, Massachusetts Institute of Technology, Princeton and Yale. Despite the fact that the US academic labour market is highly competitive those institutions take tenure very seriously indeed. However, tenure can be broken for poor performance or where an entire department or university is to be closed, but for no other reason.
Broadly similar arrangements exist throughout the remainder of the English-speaking world. Those arrangements are designed to protect the individual

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from harassment while at the same time providing the necessary flexibility for restructuring of universities in accordance with changes in demand. This amendment is designed to achieve a similar end.
Staff who move or who are promoted in the United Kingdom in circumstances which involve loss of tenure or who leave tenured positions overseas to accept employment in a UK university could be offered this type of tenure. They could then be dismissed in three situations: first, for good cause; secondly, because the department to which they are attached has to be closed; and, thirdly, because their employing institution is to be closed.
The arrangements in the Bill will inhibit movement. This amendment creates more managerial flexibility. It is also fairer to existing staff in that it reduces the extent of retrospective change in their conditions of employment.
The Earl of Halsbury: In view of the ruling from the Chair that if noble Lords see fit to agree Amendment No. 277A it will not be possible to call Amendments Nos. 277B, 278A or 278B which stand in my name, I think the Committee should know that those amendments were drafted by your Lordships' petitioners. I think that it would be wrong to silence them.
Lord Swann: I should like to make one small point. I am well aware of the complexities and difficulties of the tenure problem. It has not existed for all that long in the cast-iron way in which it exists in some universities at present. Indeed, it exists only in some universities and not all. On the other hand, if things go as planned in the Bill, universities will have a rather considerable internal injustice because tenure has an actuarial value. We shall end up with people who have tenure because they have been in post for a while, and others who have been appointed more recently or have been promoted and do not have tenure. There will be a situation—unless the Government do something about adjusting salaries—where people doing the same job are on a different contract or a different salary. That is already giving rise to a good deal of unease.
I do not know whether that is a situation which would justify an approach to the European Court of Human Rights. I know that such cases take a long time. It has been suggested to me by a distinguished lawyer that it could. That is a small point which I wished to add to the debate.
The Lord Chancellor: The amendment moved specifically by the noble Lord, Lord Peston, in effect takes away the possibility of having untenured positions. That is really the point we debated in respect of whether Clause 173 should stand part of the Bill which could have been the place for this argument if it was wanted.
The other amendment which has been mentioned in this grouping is the amendment of the noble Lord, Lord Pender. This amendment proposes to produce the situation where, say, a university offers a particular member of the academic staff—
Baroness Seear: I am sorry to interrupt the noble and learned Lord. I think I am at fault in that, when I was speaking, I thought it was understood that because it was in the grouping I was speaking to the amendment in my name, that is Amendment No. 279ZD. I should have said specifically that I was speaking to that amendment in the same way that the noble Lord, Lord Pender, said he was speaking to his amendment.
The Lord Chancellor: I am very grateful to the noble Baroness. I take these two amendments together as both propose in slightly different ways that the universities should be able to offer tenure in respect of particular appointments. The difference between the amendment of the noble Baroness and the noble Earl, Lord Halsbury, and that of the noble Lord, Lord Pender, is that the latter would allow dismissal on the ground of closure either of the department or the whole institution. If such a drastic situation should occur, it seems necessary that something of the kind should be provided.
Perhaps the problem is best put this way. If some new posts are tenured and some are not, this would accentuate the problem to which the noble Lord, Lord Swann, drew attention. Perhaps this is the best place to deal with that point briefly. People who have tenure up to 20th November last year will retain it. The Government announced their proposals and any contract which was entered into after that time is not to have the possibility of tenure attached to it assuming that the Bill remains in its present form. The noble Lord, Lord Swann, points out that that creates a difference between new people and old people. But there is often such a difference.
The terms available may change with the passage of time; this is just a particular example of that. I do not think it would be contemplated as possible to remove tenure from people who held it before the intimation was made that this was proposed. Either one retains the pre-existing situation or one has to have some very elaborate provisions for compensation if one is not to proceed on the basis that some of the new people will not have tenure but the people who were in the post before will. There are certain modifications of that which I need not mention in detail, such as going up the scale. If all one is doing is going up the scale on which one was serving, that is not a new appointment for this purpose and one would continue to have tenure.
As I say, to go along with these amendments would introduce the further possibility of injustice between the different members of the universities' staff. However wise one is, it is not easy to foresee the future. There is always therefore a possibility that the university or institution in question might be faced with a situation in which it was highly desirable to depart from a particular aspect of its activities. This would not necessarily mean the closing down of a department and precisely what was involved might not be clear. But it could become necessary for the sake of financial effectiveness to reduce the university staff. One cannot know that with any degree of confidence a long time in advance. Therefore, I feel unable to accept these amendments.

509
I can see the attraction but I believe that the amendments would introduce a still greater sense of injustice than the one to which the noble Lord, Lord Swann, referred. And they would not properly reflect the fact that the universities might have to deal with different situations to those they anticipate at the time of making appointments. I invite the Committee not to accept the amendment which has been moved or the other amendments which have been spoken to.
Baroness Seear: It is with the greatest trepidation that I challenge the noble and learned Lord the Lord Chancellor on the question of justice. However, it seems to me a little odd, coming from their Front Bench, that the Government should oppose on the grounds of justice the award of tenure which may very well be regarded as a merit award or an incentive to good performance. I had understood that the Government were pressing for that in almost all areas of employment. Why is a particular accolade an advantage not be be given to a highly sought-after academic when in all other fields of work—the Civil Service and elsewhere—the Government are urging awards for people who are showing exceptional merit. It seems to me totally inconsistent.
The Lord Chancellor: I do not think many members of the Civil Service are accoladed with tenure; certainly certain offices are not. The question is whether that particular form of accolade is the appropriate one. At the very best the accolade must reflect something about the person up to that point. Tenure looks forward and those with the best possible reputations—
Baroness Seear: I am sorry to interrupt the noble and learned Lord. The whole point of what we are proposing is that when there are people of exceptional ability who have proved over a period of time, by their research, publications, and distinguished academic work, that they are people whom the university wishes either to attract or retain, what on earth is the difference between that and saying that in other fields of work you give some additional benefit or reward to people who have shown exceptional ability? I cannot see the difference.
The Lord Chancellor: I am sorry if the noble Baroness cannot see the distinction between the accolade of tenure which after all is a rather rare accolade and other forms. It seems to me to be a perfectly reasonable distinction. I do not see why in this field new distinctions between the available accolades should be introduced. Once the 20th November has come—
Lord McCarthy: Is the noble and learned Lord suggesting that into academic life would be introduced the general policy in relation to pay: that one should have merit rates, special payments for extremely distinguished people over and above the scale, and improvements in pay rather than improvements in job security? Is that the alternative accolade?
The Lord Chancellor: It is certainly a possible alternative accolade. People who do well in academic life sometimes become professors. That is a very large accolade. Occasionally, they become vice-chancellors and principals and so on. There are all sorts of accolades available by which to distinguish people. Why choose this particular one which makes it impossible to take account of changes of circumstance afterwards? I can see that there are distinctions between people in respect of their history on appointment, but not many people can foretell the future completely. Therefore, it is in respect of lack of flexibility in the future that I say tenure is an unsuitable accolade. I hope the Committee will agree with me.
Lord Peston: Perhaps I may say to the noble and learned Lord that I find his answer extremely unsatisfactory. He does not seem to grasp what we are talking about. We are discussing the recruitment of academic staff. To a large extent we have accepted the Government's view that the means of recruitment have been excessively rigid. We are suggesting that there be a range of contracts from short-term contracts for short-term purposes, longer term contracts and the tenured contract. That is a range of possibilities I should have thought we could trust the academic institutions to decide upon in order to recruit staff in the appropriate way. That is what we are arguing.
Recruitment of members of staff on this basis corresponds to what the academic institutions want. It also corresponds to the available market price of a person concerned. It is preposterous to suggest that universities will suddenly be free to bid much larger salaries for people. It seems reasonable, as the noble Baroness, Lady Seear, says, on the Government's own view of the way the world works. If the Government will not accept our view, I should like an explanation why some of the greatest universities in the world— private and state universities—offer the precise contract which the noble Lord, Lord Pender, pointed out. I believe that the Committee deserves a reasoned answer from the noble and learned Lord.
We were hoping for elucidation. We were certainly not hoping to divide on this matter. However, I should like to hear again from the noble and learned Lord some argument on what we are talking about.
9 P.m.
The Lord Chancellor: I regard myself as having addressed the matter about which we are talking. I understand the point. Perhaps the noble Lord will at least agree with that. Whether this is an appropriate form of distinction is the question. Some forms of distinction are appropriate, I agree. I think that I am right in saying that merit awards of pay are in place in at least some universities. I know of one university where I learned something about the possibility of discriminating in pay between different members of the university. And a fairly invidious job it was found to be. However, it is a possible way forward. The advantage is that it is more flexible than accolade or awards of tenure.
Tenure, once awarded, by its very nature is a very long-term factor. That distinguishes it from the

511
short-term contract. The effect is to tie the universities' hands for a fairly long time into the future. That is the reason against it that I offer to Members of the Committee. It seems to me to be a reason.
Earl Russell: Perhaps I may ask the noble and learned Lord the Lord Chancellor to address the question that has been raised several times this evening; that of attracting people back from the United States. The noble and learned Lord asks: why this accolade? The answer is that people with American appointments in good universities certainly will not come anyway near this country without it.
The Lord Chancellor: That is a forecast. I believe that there are attractions in this country for some academics that would be sufficient to draw them back without the necessity of that security.
Baroness Seear: The noble and learned Lord is talking about the Government's beliefs. Although we are very interested in beliefs, we wish to know the evidence for that belief.
The Lord Chancellor: It is difficult to give evidence about what will happen in the future, which is what the noble Earl is talking about. If the noble Baroness can indicate that, it would be helpful. The best I can do is to suggest that the mere fact that there is no tenure does not mean that no people of academic distinction will wish to take positions in the academic life of this country. I do not believe it for a moment.
Earl Russell: With respect. I was not talking entirely about the future. I was talking about the decision that I took in the very recent past and the ground on which I took it.
Lord Wedderburn of Charlton: Perhaps I may make this brief point. There are already two known cases of distinguished academics who have have been offered chairs in this country and have refused to come because of the implications of this Bill.
Lord Beloff: Perhaps I may intervene. I am a little worried about certain points that have been made from the Benches opposite. In the first place there has been some exaggeration of the degree to which tenure is applied in American universities. To the best of my knowledge the formula of' the American association of universitiy professors recognises the subordination of tenure to—I think they call it—programmatic exigencies. That is to say, it is not proof against major changes in university policy whether or not induced by financial stringencies.
My other point is this. If it were so serious a blow to the possibility of recruitment, I should have expected the vice-chancellors and principals to have asked us to look at this. In fact there has been no pressure whatever from the vice-chancellors and principals to preserve tenure. They, after all, are as much as anyone concerned with the points that the noble Earl, Lord Russell, has made.
Earl Russell: Perhaps I may cursorily answer the noble Lord, Lord Beloff. In the present financial circumstances vice-chancellors are very rarely recruiting anybody. They are living from hand to mouth. The time may come when recruitment may resume.
Lord Peston: I do not wish to prolong this discussion. I am deeply disappointed with the answer of the noble and learned Lord. I believe that this is a matter worthy of more serious discussion. We shall return to it on Report. However, at the moment I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
The Deputy Chairman of Committees: I have to point out that if Amendment No. 277B is agreed to I cannot call Amendment No. 278.
The Earl of Halsbury The Earl of Halsbury moved Amendment No. 277B:
Page 159, line 36, leave out ("or any delegate of such body").
The noble Earl said: With the leave of the Committee, I should like to speak also to Amendment No. 279ZA, which Members of the Committee will find at the top of page 8 of the Marshalled List. Noble Lords will find 10 amendments altogether standing in my name and that of the noble Baroness. I ought to explain that she and I were joint practitioners in launching a petition in your Lordships' House at the start of' proceedings on this Bill, signed by no less than some 6,400 academics representing at least 25 per cent. of the total academic population of our universities, a not unnotable percentage for a petition which had been organised at rather short notice.
When I had laid the petition on the Table, the petitioners asked me what would become of it. I said, "Nothing, unless you can embody your petition, which is in very general terms"—of which I shall remind Members of the Committee in a moment —"in some amendments which I can approve sufficiently to propose them to the Committee."
These are the first two. The effect of the two amendments taken together is to ensure that decisions about dismissal of academic staff shall continue to be taken by the appropriate body within the institution and where appropriate in accordance with the disciplinary procedures establised within the institution and that dismissal powers shall not be delegated to subordinate officials. That seems to me to be a reasonable proposal by way of an amendment and I submit it for the Committee's jurisdiction.
I shall not unduly preoccupy the Committee's time because the hour is late. If I may have a fair comment from the noble and learned Lord I shall be content to withdraw the amendment for the time being. I beg to move.
Lord Adrian: Amendment No. 278 is brigaded with Amendment No. 277B and I wish to speak to it, but at the same time, if I may, I shall also speak to Amendment No. 279 because those two amendments in my name have a certain symmetry. Clause 174(1)(a) concerns redundancy and arranges that dismissal for redundancy should be by a body or a

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delegate of that body. Clause 174(1)(b), which concerns dismissal for good cause, provides that dismissal shall be by an officer or his delegate. In the notes it is suggested that in general the officer who is charged with dismissing for good cause would in general be the vice-chancellor.
The effect of the two amendments, Nos. 278 and 279, would be to give discretion to the commissioners to consider the circumstances as they find them in any individual university and to make a judgment as to whether dismissal for redundancy should be by a body or an officer; and indeed exactly the same for dismissal by good cause, and whether that should be by a body, an officer or their delegates.
This seems to me to achieve merely a sensible flexibility on what the commissioners are charged to do in the light of the circumstances that they find in any particular university. But if the original clauses are based on some principle—perhaps that vice-chancellors will be more effective wielders of the hatchet than committees—from my experience I do not believe that to be necessarily universally true. I have seen both lenient vice-chancellors and lenient committees; I have seen inflexible vice-chancellors and inflexible committees. But I believe it would be worth while extending the charge of the commissioners so that they may use their judgment as to which is the appropriate mechanism in either case in any university.
The Lord Chancellor: I shall also speak to Amendment No. 278C in this group. The Bill at present in Clause 174(1)(a) requires the commissioners to exercise their powers with a view to securing that the statutes of each qualifying institution include provisions enabling an appropriate body or any delegate of such a body to dismiss any member of the academic staff by reason of redundancy, whether or not in pursuance of a scheme established for the purpose. That was open to a certain amount of misunderstanding. It was thought that if there was a scheme it could be disregarded. We have concluded as a result of the reconsideration of this that the last words—
"whether or not in pursuance of a scheme established for the purpose"—
should be taken out. That is the government amendment to which I am speaking.
The amendment moved by the noble Earl, Lord Halsbury, and the amendment spoken to by the noble Lord, Lord Adrian, on redundancy, go in opposite directions. But that perhaps is to be expected in an informed discussion of this kind. The reason for the arrangement that we have put into the clause on redundancy is that we envisage that the appropriate body in cases of redundancy would be that which was responsible for the management and government of the institution and that such a body would in most cases decide whether a situation existed requiring dismissals for redundancy. In other words, as regards the first question, the redundancy situation would be a matter for decision by the governing body. Decisions on individual redundancy could then he delegated to a smaller body, as appropriate, or to an individual by that body.
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The decision as to whether redundancy could be said to be necessary in an institution is important and needs to be taken collectively and at a high level of management. Such a decision cannot reasonably be left to one individual. It would require a view of the institution's needs and resources as a whole. On the other hand, to remove the power of the body to delegate the detailed provisions to another body or individual would be too restrictive. One would expect the application of the general decision to be for the individual; possibly an individual officer or a small delegated body of members of the university staff.
As regards the second type of situation, where dismissal is on disciplinary grounds, it was thought that that was an individual decision and therefore appropriately taken by an officer in the first instance. The vice-chancellor or principal seemed to be a suitable officer to take such a decision, possibly advised by a small group. One must keep in mind that commissioners must lay down appeal procedures and therefore one must have within the structure proper scope for such procedures. One cannot use up, as it were, every available person in the institution to make the first decision because it would then be very difficult to organise the appeal situation properly.
That is the thinking behind the way in which the clauses are presently drafted. In the light of that explanation I hope that the noble Earl will feel that the distinctions are principled.
The Earl of Halsbury: For my part I thank the noble and learned Lord for that courteous and considered comment on the amendments that I have proposed. Subject to reserving my position for a further stage of the Bill, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Lord Adrian Lord Adrian had given notice of his intention to move Amendment No. 278:
Page 159, line 36, leave out ("any delegate of such a") and insert ("an appropriate officer (or both) or any delegate of such an officer or").
The noble Lord said: If possible I should like to reply to the noble and learned Lord the Lord Chancellor in respect of the points he has made. I believe that the effect of the amendments is not in any way to alter the possibilities that he has suggested might be the appropriate structure. Rather they are intended to allow the commissioners, if they found that some other arrangement was appropriate for the university, to consider it and then implement it if they thought it necessary and reasonable. The effect of the two amendments is not intended to restrict in any way what exists on the face of the Bill but rather to enlarge the possibilities that the commissioners might consider. Having said that, I shall not move the amendment.
[Amendment No. 278 not moved.]
The Earl of Halsbury The Earl of Halsbury moved Amendment No. 278A:
Page 159, line 37, after ("any") insert ("relevant").
The noble Earl said: With the leave of the Committee, I should like to speak to Amendments

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Nos. 278A and 278B. They are two further petitioners' amendments, as one might call them. Their purpose is to make clear the fact that fixed-term contracts may be awarded and are to be outside the redundancy provisions of the Bill. The amendments are particularly vital in the scientific field. Academics are likely to accept offers from those institutions able to offer funding for a period covering their research. The absence of such a power will make it impossible to attract overseas researchers who need security. It is also likely to make British universities uncompetitive in the scientific field. I beg to move.
The Lord Chancellor: The essential amendment is that to which the noble Earl has spoken and which creates the possibility of fixed-term contracts. It would be fair to say that in the circumstances to which he referred where the research is funded in a particular way, the likelihood of redundancy in respect of that research is very much reduced. The view that the Government have taken, and which I venture to suggest is reasonable, is that one ought to have a situation in which the general provisions are as we have put them: that is, preserving the possibility of redundancy but in many of the cases to which the noble Earl has referred that would be theoretical only. If one introduced fixed-term contracts one would have the same sort of rigidity in respect of changes of circumstances as is occasioned by tenure. There has been a growth in recent years of fixed-term appointments due to the difficulty created by tenure, especially in those universities which confer tenure. I therefore hope that the noble Earl will feel able to withdraw this amendment.
Lord Hylton: As a non-academic lay-person it seems strange to me to go from a situation of complete tenure in some universities to one where there is no tenure in any. I should have thought that fixed term contracts should be encouraged in order to enable universities to apply their judgment to varying situations. I rather hope that the noble Earl will not withdraw his amendment.
Lord McCarthy: As I understand the noble and learned Lord, he said that when universities had fixed-term contracts that were funded, the possibility of redundancy did not create a problem. I do not think that is quite right because contracts now are often subject to review. They may be subject to review at two years or three years with the normal expectation of those contracts continuing for five years. However, if the university wishes to attract some senior person to head a research unit in order to run that contract, it is normal to give that person an expectation of tenure. Indeed, if one could not give someone of professorial status an expectation of tenure to take up the leadership of a funded unit for, say, a period of five years, one probably could not get anybody of a sufficient calibre to take up that post. Therefore the ability to offer at least heads of research units the possibility of tenure is extemely important. I should have thought that for that reason the Government should accept this amendment.
The Lord Chancellor: I do not think I said that the possibility of redundancy was limited altogether. I
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should have thought that in the sort of situation that the noble Lord, Lord McCarthy, is figuring, the institution is secure in the knowledge that a particular research project is to be funded. On that basis, the possibility of the only matter that is between us coming into effect is very, very small indeed. In such a situation I should have thought that the practical effect of paragraph (a) is negligible. Where universities have reason to believe that the funding has been allocated for a particular research project for, say, five years, the possibility that the person who is put there to head the unit will be made redundant before five years is surely sufficiently small to be ignored. Therefore the result is that in practical terms the overall regime produces very much the desired result.
The Earl of Halsbury: I am very grateful for the support I received from my noble friend Lord Hylton and the noble Lord, Lord McCarthy. What I do at this stage depends on how one views these Committee proceedings. I have always thought that the Committee stage of a Bill was rather like a fencing match with button foils. Occasionally the buttons come off and you draw blood; but that is not my intention this evening. Notwithstanding such encouragement as I have had, I would sooner withdraw conditionally with a view to reserving my position at a later stage. I can study at length the contributions made by the noble and learned Lord the Lord Chancellor and other noble Lords, discuss them with, if one likes to call them, my clients, and bring them back at a later stage when I have had a chance to study them in full.
Amendment, by leave, withdrawn.
[Amendment No. 278B not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 278C:
Page 159, line 38, leave out from ("redundancy") to end of line 39.
On Question, amendment agreed to.
Lord Adrian Lord Adrian had given notice of his intention to move Amendment No. 279:
Page 159, line 40, leave out ("officer, or any delegate of such an officer") and insert ("body or an appropriate officer (or both) or any delegate of such an officer or body").
The noble Lord said: I shall not move this amendment with the reservation that I may come back to it at a later stage.
[Amendment No. 279 not moved.]
[Amendment No. 279ZA not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 279ZAA:
Page 159, line 43, after ("cause") insert
—
("(ba) provision establishing disciplinary procedures determined by the Commissioners for dealing with any complaints made against any member of the academic staff relating to his appointment or employment;").
The noble and learned Lord said: This amendment and Amendment No. 279ZAB are further steps to discharge the pledge the Government have given that they will do all they can to secure academic freedom by giving protection against arbitrary dismissal on unwarranted grounds, which I referred to this

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afternoon. Notwithstanding the vote of the Committee on the matters we were discussing then, I believe that it is still right to put these amendments into the Bill.
In the other place the Government undertook to bring forward amendments which would establish disciplinary and grievance procedures for staff. These amendments honour that undertaking in respect of dismissals. In considering how to give effect to this approach we have come to the conclusion that it would also be right to ensure that the test of reasonableness along the lines of the Employment Protection (Consolidation) Act 1978 would apply to dismissals.
Ministers are currently discussing the precise formulation of provisions relating to grievance procedures with the Committee of Vice-Chancellors and Principals. Indeed, we had tabled amendments on the grievance procedures but as a result of requests from the vice-chancellor's committee we withdrew them for consideration later.
The Government will be proposing the necessary further provisions on Report in the light of these discussions as I said earlier. In the Bill as introduced Clause 174(1) requires the commissioners to exercise their powers with a view to securing that the statutes of each qualifying institution include provisions enabling staff to be dismissed for redundancy and good cause and provisions establishing procedures for hearing and determining appeals against dismissal. These amendments add to those provisions.
Amendment No. 279ZAA would make provision establishing disciplinary procedures determined by the commissioners for dealing with any complaints made against any member of staff relating to his employment or appointment. Amendment No. 279ZAB would extend the appeals procedure to include disciplinary matters. It would preclude a person from being dismissed for a reason which cannot in the circumstances, including the size and administrative resources of the institution, reasonably be treated as a sufficient reason for dismissing him. I believe that these provisions give a proper strength to academic freedom by providing additional safeguards which will give academics greater protection against victimisation by their colleagues on account of their beliefs or opinions. I commend these amendments to the Committee and I beg to move Amendment No. 279ZAA.
The Deputy Chairman of Committees (Lord Airedale): The amendment proposed is, "Page 159, line 43, after (`cause') insert", the words as printed on the Marshalled List. However, if the next amendment is going to be discussed with this one, I have to point out to the Committee that if Amendment No. 279ZAB, the next one, is agreed to, I cannot call Amendments Nos. 279ZB down to No. 279ZE in the form in which they have been tabled on the Marshalled List. This is because Amendment No. 279ZAB pre-empts Amendments Nos. 279ZB to 279ZE.
However, it would be possible, if the Members of the Committee who have tabled Amendments Nos.
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279ZB to 279ZE so wish, to move those amendments as amendments to Amendment No. 279ZAB. In that event, I would at the appropriate moment put the Question on each of the Amendments Nos. 279ZB to 279ZE in the appropriate form.
I understand that the Members of the Committee concerned have indicated their wish to move their amendments in this form as amendments to Amendment No. 279ZAB. I shall therefore call Amendments Nos. 279ZB to 279ZE as amendments to Amendment No. 279ZAB after the noble and learned Lord the Lord Chancellor has moved Amendment No. 279ZAB and I have put the Question on it for the first time.
9.30 p.m.
Lord Morton of Shuna: I offer my congratulations to the noble Lord the Deputy Chairman of Committees, if that is in order!
I wish to speak to Amendments Nos. 279ZAA and 279ZAB. Amendment No. 279ZAA, unless I am mistaken, has nothing to do with what we thought we were discussing up to now, which is unfair dismissal. It seems to bring into the Bill for the first time a provision that the commissioners are to set up some form of procedure in the university statutes to allow the university, when considering a complaint against a member of the academic staff, to downgrade or to reprimand that member of staff. I do not see what it has to do with Clause 174. The one matter with which it has had nothing to do is dismissal or redundancy. I hope that the noble and learned Lord will be able to explain the purpose of suddenly bringing in what appear to be reprimands and downgrading.
It is my information that this was not asked for by the universities or by the vice-chancellors. It is apparently designed to provide a procedure for reprimand and downgrading. That is the understanding conveyed to me by the Department of Education and Science officials, maybe wrongly. If there is to be a procedure to deal with complaints made against a member of the academic staff, would it not be necessary to cover also complaints by a member of the academic staff? If we are to deal with this at all, it would seem proper to cover the situation where a member of staff complains and wants his complaint dealt with.
I turn to Amendment No. 279ZAB. I understand that the purpose in general is to introduce an element of reasonableness into the situation to attempt to reduce the anxieties expressed on Second Reading that the provision might be used, for example, to get rid of a professor and replace him with a junior lecturer doing the same work at a cheaper rate. The amendment is unsatisfactorily worded. I spent some time endeavouring to understand it. It appears to go round in a circle and to end up where it started.
"No provision such as is mentioned in subsection (1)(a) or (b) … which is included in the statutes … by virtue of section 175 … shall enable any member of the academic staff to be dismissed unless the reason for his dismissal may in the circumstances … reasonably be treated as a sufficient reason for dismissing him".
It is very difficult to extract any comprehensible meaning from that. This may be my lack of understanding. I have tried to understand it and I have tried it on several of my noble friends, but I

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cannot get a reasonable meaning from it. I shall read it again:
"the reason for his dismissal may … reasonably be treated as a sufficient reason for dismissing him".
It does not seem to add anything and perhaps does not express the intention that the noble and learned Lord wished it to express.
The Lord Chancellor: I said earlier that we had put down amendments on grievance procedure which were withdrawn after representations from the vice-chancellors. The grievance procedure relates to complaints by members of the university staff. I explained that that had been put down and withdrawn.
Amendment No. 279BA is a provision for establishing disciplinary procedure for dealing with any complaint made against any member of the academic staff relating to his appointment or employment. Clause 174 refers in particular to dismissals, but the disciplinary procedures would certainly encompass that.
The noble Lord has difficulty in understanding the second amendment. It is a question of reading it properly. No one shall be dismissed unless the reason is a reason which can reasonably be treated as sufficient for dismissing him. In other words, someone cannot be dismissed unless there is a reasonably good reason for doing so. That is all. That seems reasonable.
Lord Morton of Shuna: That sounds perfectly reasonable, but why not say it? Why not put it into the Bill in the reasonable words which the noble and learned Lord so reasonably used, instead of using words the meaning of which many of us have difficulty in following?
Lord Wedderburn of Charlton: Before the noble and learned Lord responds, perhaps I may ask him something which is in the nature of a supplementary question. This deals with the substantive ground for dismissal. As this provision and the whole of the rest of this part of the Bill is not geared into the Employment Protection (Consolidation) Act, in which forum of the many fora in which employment dismissal questions can arise does he think that this protection for the employee could be adduced? In what way would it intermesh with employment law as a whole? At the moment it stands, like the rest of this part of the Bill, as an island in itself.
The Lord Chancellor: I sought to explain this point in my speech at Second Reading in answer to a point which the noble Lord, Lord Wedderburn of Charlton, made in his speech at that time. There may be some misunderstanding here. It has to do with the amendments which in due course we shall have moved as amendments to the amendments we are considering now. Before I come to that perhaps I should say in answer to the noble Lord, Lord Morton of Shuna, that the words which I used a moment ago are, read a little short, the words that are in this amendment.
On the point raised by the noble Lord, Lord Wedderburn, the position as I see it is that the
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procedures with which we are dealing here will be used to decide whether the university—to take the university as a paradigm case—has dismissed the person. In other words, they are procedures that are open in order to review the decision to dismiss. They are appeal procedures. The dismissal must be just and fair. There is a procedure to be put in for deciding on appeal whether what has been put forward by the university—the original officer in the good conduct case—was a proper decision. If the appeal is successful, the member of the university staff will remain a member of the staff. If the appeal is not successful, the member will not. If the dismissal takes effect that would not preclude the possibility of a claim in an industrial tribunal.
One has to look at this against the background of tenure. Tenure prevented members of the university staff from being dismissed at all. They were entitled to continue, unless good cause was shown, as members of the university staff. These procedures are designed to replace that and to say that a member of the university staff will not be dismissed except in accordance with the proper procedure laid out in these provisions. Therefore the member of the university staff is protected against losing his job by such procedures.
Lord Wedderburn of Charlton: I am trying to make progress because it may cut out discussing points later on. The question is not about the internal procedures. As the noble and learned Lord said, the internal procedures may be used and then, if the member of staff remains dismissed, he may wish to go elsewhere. I want to engage the noble and learned Lord on the footing that we are both, so to speak, advising this client—outside of this Chamber, of course. What do we say to him? We say to him that he should proceed with his action, if there is a good point to argue.
However, do we say to him, "Yes, you can go to the tribunal and you can rely upon a sufficient reasoned ground"; or is that now behind us? I think that perhaps it is behind us, in regard to the internal procedures. Therefore this ground is only relevant to the internal procedures. If they fail, legally the member of staff who has been dismissed will derive nothing out of the clause at all, either in the High Court or in the industrial tribunal. Is that right?
I understand about the internal procedures, but I am not asking about those. I am asking about the legal position of a claim of someone who is ultimately upheld as dismissed and wants to dispute it because he says that the reason was not sufficient. Where does he go?
The Lord Chancellor: That rather depends on what he is suggesting. Let us assume that he is not complaining about the propriety of the internal procedures and that he accepts that he has been effectively dismissed by the university. In that case he has the industrial tribunal open to him and there is nothing in this provision that cuts out the industrial tribunal procedures. He has the right to go to the industrial tribunal.
One would hope and believe that if the internal procedures had worked properly his case would not

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be a strong one, but that might not preclude its being argued. He would have the opportunity to go to the industrial tribunal and argue the matter there. He would be able to argue for reinstatement or for compensation. As I understand it, there is nothing in this provision which cuts out the ordinary procedures if the dismissal is actually effective. I hope that is the explanation which the noble Lord requires.
Lord McCarthy: I should like to take the noble and learned Lord back to the previous amendment; namely, Amendment No. 279AA. Many questions arise in this connection. I should like to know whether the vice-chancellors have seen the amendment because, as I understand it, they are saying that they see no reason for an amendment of this nature, they never asked for it and they do not know where it came from. That would make sense because it is an odd type of provision to find in Clause 174. I remind the Committee that Clause 174 has a procedure for specifying what must go in the statute so that you can be dismissed by reason of redundancy, so that you can be dismissed for good cause. It includes a system of appeals. The system of appeals is one which the individual academic who thinks that he has not been fairly and justly dismissed can use to obtain justice or fairness.
However, we now have another disciplinary procedure and it does not seem to me, on the face of it, that this helps the individual in any way. It helps the vice-chancellor, the professor, the university or anyone who has a complaint to make against the individual. I say that because it specifies a,
"provision establishing (disciplinary) procedures determined by the Commissioners",
for dealing with any complaints made against any member of the academic staff.
In other words, it seems to me that here is an additional procedure, not to protect the individual academic against wrongful dismissal—because we already have one—but to facilitate complaints made against him by other members of academic staff or anyone else. Why has this provision been included? Why has it been put in at this late stage? What criteria will be used to decide whether the complaints which are brought against individual academics are in fact sustained? Will they he asked whether they are just or fair, or whether they are compatible with academic' freedom? Further, as the noble and learned Lord thinks those three terms are all synonymous with each other, will they all be involved in this? Why was the procedure put in at this late date when, so far as I can see, no one has asked for it?
9.45 p.m.
The Lord Chancellor: I never said that justice, fairness and academic freedom were synonymous.
The procedure is designed to deal with complaints against members of the university staff. It is subject to the provisions of Clause 173, as amended by the Committee this afternoon. Apart from the amendment, Clause 173(2)(b) provides that the commissioners shall have regard to the need to apply the principle of justice and fairness. The procedures
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are subject to the principles of justice and fairness, both of which concepts appear to be appropriate to the procedures.
The other side of the matter relates to the grievance procedure with regard to a member of the staff against another member of staff or against the university. As I said, we withdrew that proposal for further consideration as a result of representations made by the vice-chancellors. There is a certain element of balance in the provision. The point is that if a member of the university staff can complain, for example, that something has been done to him which he thinks should not have been done—someone instanced earlier the possibility of having to lecture at nine o'clock in the morning instead of at a more reasonable hour as an attack upon the person's academic freedom because of his views—he would have to have some way of bringing that complaint against his fellow academic. Whoever it was who arranged that he should lecture at nine o'clock should have the chance to answer the complaint and explain that he was doing it in the best possible interests of the institution and not because he wanted to penalise his colleagues' unpopular views.
Lord Allen of Abbeydale: Will the noble and learned Lord consider withdrawing the amendment until we have the grievance procedure so that we can see it all in balance?
The Lord Chancellor: I do not mind doing that if the Committee thinks that it would help. This is a reasonable procedure to have in the Bill. If the Committee feels strongly about it, I would wish to go along with the Committee's views. The provision is distinct. We are talking about complaints against members of the university. It would seem reasonable to have a procedure, subject to justice and fairness, by which they could be dealt.
Lord Allen of Abbeydale: I was not suggesting that we should not have the procedure; I was suggesting that we had only half the story and that it would be nice to see it all.
Lord Morton of Shuna: At the moment this provision is by itself and we do not know what is to come with it. It sits outwith other provisions which deal merely with dismissal. It is much more easy to discuss the subject if we see it in the context of the grievance procedure that the noble and learned Lord hopes to introduce.
Baroness Seear: Is what the Government are offering academics the procedure in lieu of tenure? If they are, it does not look like a very good bargain to me. At the end of the day, the dismissed person has the opportunity to go to an industrial tribunal, which can rarely bring about reinstatement. At the moment such a person receives the kind of payment which would not keep the dismissed academic going for more than about six months at the very most. As an exchange for tenure, it is a very poor deal.
The Lord Chancellor: I must be becoming short of the ability to explain. What I said was that these are

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internal procedures which would have the effect of keeping the person in position. That is what is put in instead of tenure. It keeps the person in position, assuming that the internal procedures work in his favour, which is what tenure does. Tenure keeps the person in position. We say that he should not automatically be in position; he should be kept in position unless he can reasonably be put out of position on redundancy or for good cause. That is the bargain. It seems to me a very reasonable bargain. It is quite wrong to equate it with the industrial tribunal; that comes after.
If a person is dismissed, then, in addition to these internal remedies, like every other person who is in employment he has the industrial tribunal to go to. Admittedly the money he gets from the industrial tribunal may be rather less than he wishes, but the important protection he gets here is the protection of the internal procedures which we have proposed in the Bill, modified by these clauses.
The Earl of Halsbury: I hope that the noble and learned Lord will not withdraw his amendments until the Committee has had the opportunity to listen to the amendments to the amendment.
Lord Morton of Shuna: My suggestion was not that both amendments should be withdrawn but only that Amendment No. 279ZAA should be withdrawn until we see the other side of the coin of the grievance procedure. The noble Baroness, Lady Seear, asked her question and I think that as a result the noble and learned Lord did not reply to the noble Lord, Lord Allen of Abbeydale, as to whether it might be better not to move the amendment at this stage until the grievance procedure was available.
The Lord Chancellor: I believe that I did answer, but I am always willing to answer again, not for the first time. Having put down the amendment, and Members of the Committee having seen it, I do not feel particularly anxious to withdraw it unless the Committee feels that it would be particularly helpful. But as the noble Earl, Lord Halsbury, said, we have these other amendments to consider as well. I should have thought that no harm would be done by keeping this amendment in and looking at the others, which will be amendments to Amendment No. 279ZAB.
Lord Wedderburn of Charlton: Does the noble and learned Lord feel that Amendment No. 279ZAA might well be taken away? He could come back with the amendments which he promised, in view of the statement today by the Committee of Vice-Chancellors and Principals that the amendment has caused them some concern. It has come as a complete surprise to them and appears to be designed to downgrade and reprimand people without sacking them under the procedure. Universities have not asked for this. Does the noble and learned Lord consider it better that we should look at it in its full context and after the Committee of Vice-Chancellors has been consulted?
The Lord Chancellor: I do not see any particular harm in doing that. I certainly intend to bring it back in due course. I may be that it will look better and even be easier to understand in the light of the other provisions of which I think it originally formed part. In that situation I shall not invite the Committee to agree tonight to Amendment
No. 279ZAA.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Airedale): If the noble and learned Lord the Lord Chancellor will formally move Amendment No. 279ZAB, I shall then call the next amendment as an amendment to it.
The Lord Chancellor The Lord Chancellor moved Amendment No. 279ZAB:
Page 159, line 48, at end insert ("or who are otherwise disciplined.
(1A) No provision such as is mentioned in subsection (1)(a) or (b) above which is included in the statutes of a qualifying institution by virtue of section 175 of this Act shall enable any member of the academic staff to be dismissed unless the reason for his dismissal may in the circumstances (including the size and administrative resources of the institution) reasonably be treated as a sufficient reason for dismissing him.").
The noble and learned Lord said: I beg to move.
Lord McCarthy Lord McCarthy moved, as an amendment to the amendment, Amendment No. 279ZB:
Page 159, line 48, at end insert ("including provision for adequate remedies, including reinstatement").
The noble Lord said: I am told that I must say that I wish for the new words printed in the Marshalled List to appear after "disciplined". The amendment in my name and the name of the noble Lord, Lord Wedderburn, in simple terms, is to introduce into these procedures an appropriate remedy. The remedy which we suggest should be introduced is:
"including provision for adequate remedies, including reinstatement".
We should like to take this with the similar amendment No. 279ZC, put down by the noble Earl, Lord Halsbury and the noble Baroness, Lady Seear:
"And for establishing reinstatement as the primary remedy under such procedures".
In effect, we are seeking to invoke the provisions of the Employment Protection (Consolidation) Act 1978 in a more effective way. Our examples are the provisions in Section 69 of the Employment Protection (Consolidation) Act, which states that an industrial tribunal may—I emphasise "may"—make an order for reinstatement or re-engagement.
"Reinstatement" means:
"that the employer shall treat the complainant in all respects as if he had not been dismissed".
including, if appropriate, back pay, seniority and pension rights. That reinstatement or re-engagement, which is a rather more diluted form of reinstatement, is, of course, re-employment to another suitable employment. But what we have in our amendment is reinstatement.
There are, I think, three general arguments which could be made for this. The first is that on the face of the Bill there are no stipulations as to remedies as such. There is in particular nothing really in practice and in actuality about the remedies which are to be expected in cases of dismissal on grounds not of redundancy but of good cause.
In cases of grounds of redundancy the Government have said to the appropriate authorities that people who are dismissed on grounds of redundancy will be treated in a comparable way to the way in which people have been treated up to now in cases of voluntary severance. But of course that is not in the statute. We do not know how long that will
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last, but at least the Government have made a reasonable offer in the case of dismissal on grounds of redundancy.
Secondly, when we come to the case of an unfair dismissal on grounds of good cause, or rather on grounds of bad cause, we know nothing from the face of the Bill. Therefore I suppose that we must assume that the only remedy in terms of compensation would be the maximum remedy now available under the terms of the Employment Protection (Consolidation) Act. The top level remedy of some £8,000 is, as the noble Baroness, Lady Seear, has said, worth about six months' or less salary to the average academic. Indeed it would not necessarily follow that an academic dismissed in this way and getting compensation in this way would receive anything like £8,000. That is the maximum level. The medium level of compensation given by industrial tribunals is much closer to £2,000.
Thirdly, unless academics whom the tribunals have decided have been unfairly dismissed allegedly on grounds of good cause are to be given some extraordinary level of non-statutory compensation which has not been suggested by the Government or anyone else, then the appropriate remedy would appear to be reinstatement.
It may be asked, since the tribunals can award reinstatement, why not leave it to them? It may be asked why we need this provision on the face of the Bill. The answer to that is that even in successful cases the tribunals only award reinstatement or re-engagement in some 3 per cent. of instances. For various reasons which we do not necessarily want to go into tonight, reinstatement has not been used by tribunals as the normal primary remedy. The remedy has been some form of compensation.
The Earl of Halsbury: Is the noble Lord speaking to his own amendment or to mine? His own amendment speaks about:
"including provision for adequate remedies, including reinstatement".
It mentions reinstatement as an option, whereas my amendment states:
"establishing reinstatement as the primary remedy under such procedures."
I am getting a little confused as to who is speaking to which amendment.
Lord McCarthy: That is probably my fault. I understood that these two amendments had been grouped together and that as a result of that one was expected to speak to both of them. I am in fact dealing with my own amendment, but I am very happy with the amendment standing in the name of the noble Earl. In some ways his amendment is stronger than mine. But I shall speak to both if the noble Earl does not mind.
Usually re-employment is not awarded in industrial tribunal cases. It does not appear to be an available remedy but we would suggest that there are very good reasons why in the case of academics it should be regarded as an appropriate remedy. I would even go so far as to say that it should be regarded as the primary remedy.
One of the reasons for this, of course, is that the level of compensation is extremely low. Another argument for this is that many academics will

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undoubtedly find, as has been said by the noble Earl, Lord Russell, that when they are dismissed they are extremely difficult to reabsorb. They have a very special expertise and if the university of their employment says that they cannot be employed they will find it extremely difficult to get re-employed somewhere else. I believe that the noble Earl said that one in 1,000 became re-employed. I am not sure where he got the figure from but that is certainly a very low chance of re-employment. Therefore, we believe that there are many reasons for academics to have on the face of the Bill a statement that the Government regard reinstatement as the normal remedy in those circumstances. I beg to move.
10 p.m.
The Lord Chancellor: I shall start at the beginning. Clause 174(1)(a) confers power on, in effect, a university to dismiss a member by reason of redundancy. Clause 174(1)(b) empowers it to dismiss a member for good cause. It provides an appeal procedure with the object of ascertaining whether there was either redundancy or good cause. If there is neither redundancy nor good cause, there is no power to dismiss.
Therefore, the idea of reinstatement and so on is absolutely beside the point. The dismissal is annulled because it is an appeal against dismissal. The only power to dismiss is the power to dismiss for redundancy or good cause. If the appeal is successful, there is no proper redundancy and the member has not been properly selected for redundancy. If it is successful, there is no power to dismiss and the person stays in position.
It is not a question of going to an industrial tribunal or receiving compensation on industrial tribunal terms at that stage. As I sought to explain to the noble Baroness, Lady Seear, we are trying to produce a close analogue to the present position without the rigidity of the present tenure system. That means that people cannot be put out of their jobs or appointments in a university unless redundancy exists and is established or unless good cause exists and is established. If neither of those is established on appeal within the internal procedures, then the person is not dismissed.
If the internal procedure produces the result that there was either redundancy or good cause, then in addition to the internal procedures, they having finished and the person having been dismissed because the appeals were unsuccessful, there remains over and above the internal procedures provided by the Bill the statutory procedures of the industrial tribunal. Members have the right to stay unless either of those matters is established. If either of those matters is established, members have the right to have good cause re-examined by the industrial tribunal and redundancy dealt with as well, with the same consequences as are to be found in any other case.
That is the position. It is not a question of that being the primary remedy; it is the remedy in those cases. The dismissal is annulled.
Lord Wedderburn of Charlton: We are trying hard to follow the noble and learned Lord. Perhaps my
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question will help us to make progress. He said that dismissal in breach of what we might call the statutory procedures, as laid down under the commissioners' guidance and under the clause that we are debating, through not having sufficient reason, not having good cause or not being redundant—he used the word "redundancy" in the special meaning of Clause 174 which I shall later refer to as double redundancy—is a nullity. That is quite different from the normal position in English law. There may be a slight difference in Scottish law. Normally in English law the dismissal is not a nullity unless it involves a statutory body, as was the case in the Dock Labour Board cases with which the noble and learned Lord will be familiar.
We are now equating universities with statutory bodies for the purpose of deciding whether they have legal capacity to effect a dismissal outside the procedures. That is the first point which we have clarified. I do not think that that has been disclosed to us either in debates in the other place or previously here. It is a very fundamental and important point. It changes the position of universities, especially those which are chartered bodies and which would have had the capacity to do anything as far as concerns the law up to now. So there is a very big change which is overcoming their legal capacities. The noble and learned Lord is nodding so I believe that we are as one so far.
When one believes that the appeals procedure has got it wrong, the crunch comes when the member of staff says: "The appeals procedure said that there was good cause and that it was double redundancy under Clause 174(4), but I dispute that still. They are keeping me out". When he goes on to the industrial tribunal or possibly the High Court for judicial review since these are statutory bodies with a limited capacity he is not then allowed, excepting judicial review, to rely upon sufficient reason, double redundancy arguments. In the industrial tribunal the 1978 Employment Protection (Consolidation) Act would apply unqualified and unchanged. It would be unchanged by any of these phrases. He can forget sufficient reason; in the tribunal he must rely on the 1978 Act. Is that right? If it is, it is very important.
The Lord Chancellor: That is my understanding and it has been since I spoke on Second Reading. I took up this very point in my speech because I thought from what he said in his speech that the noble Lord, Lord Wedderburn, had not grasped it. I think that I was perhaps anticipating these amendments.
The way I understand it, and I hope that I am right, is that what is specified is the power to dismiss. These grounds are required in order to justify exercising that power. The appeal procedure is to test whether or not grounds for exercising the power exist. If the grounds for exercising the power do not exist, then there is no effective dismissal. That is what the procedures are for. Most universities are bodies which have constitutions and the question of whether the constitution has been breached is what the appeal is about.
The Thomas case is a good example. The noble Lord is shaking his head very vigorously not as if in agreement but rather the opposite, which is a pity.

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The Thomas case, in which the visitor's jurisdiction was asserted, is an example of whether the powers of the university—Bradford in that case—had been properly exercised to dismiss the appellant. If the lady had been successful the result would have been that she was still in position and that there was no power to dismiss. That is the way I understand the position. That is why I think that these amendments, with great respect, if anything weaken the position instead of strengthening it.
Lord McCarthy: The noble and learned Lord has converted me to the reason why we put down amendments. We learn things. We learn important things. The noble Lord, Lord Wedderburn, asked him a complicated question. Perhaps I may ask him a simple question. What is the remedy if, despite the fact that the university has no power to dismiss, the individual academic is dismissed anyway? What does he do?
Lord Trafford: Having listened to the discussion, perhaps we can clarify the position. We are talking about two different things. Surely these amendments do not really apply. Reinstatement is automatic if the internal procedures determine that no dismissal has taken place. The academic is automatically back in post. So how on earth can reinstatement apply to a situation where he has not been—if I can use the word—"deinstated"? That is what the procedures are about.
If these amendments were to some other Bill relevant to industrial tribunals that would be quite different. But we are not talking about, and the Bill is not concerned with, industrial tribunals. It deals with the internal procedures that are to be set up. So if a person is not "deinstated"—in other words sacked, fired, dismissed—then the problem does not arise. It arises only in relation to industrial tribunals, but the Bill is not concerned with industrial tribunals. The amendment is to the internal procedures, which cannot apply.
I ask my noble and learned friend whether I am correct in that assumption.
The Lord Chancellor: Yes; the noble Lord is correct.
Lord Trafford: They are irrelevant.
The Lord Chancellor: The answer is that if the complaint is that the internal procedures have not been properly followed the remedy would be judicial review, as the noble Lord, Lord Wedderburn, said. If the person wishes to challenge dismissal, the alternative is not to challenge dismissal but to go to an industrial tribunal on the basis that such dismissal is effective but gives rise to the remedies available in an industrial tribunal; that is, reinstatement, re-engagement or damages, according to the situation.
Earl Russell: Before the noble and learned Lord sits down, for the benefit of unlearned Lords as I am perhaps I may ask him what are the implications of becoming a statutory body for the purposes of dismissal.
The Lord Chancellor: I shall try to put the point as briefly as possible. If I employ someone and dismiss
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him, the law does not normally force me to take that person back into my employment, but if I have powers which are defined powers to dismiss someone—that is to say, if I am a corporation or a statutory body (a body with charter and laws)—then should I possess the power to dismiss only in certain circumstances and those circumstances do not exist, I cannot lawfully dismiss that person. Therefore if I purport to dismiss that person without proper grounds, the dismissal is only a purported dismissal and the person is entitled to continue in employment.
The simplest example would be in the tenured case. It is certainly my understanding of the position that where there was tenure, unless there were good cause the person could not be put out of a job. That is the implication of the provision. If as an individual I contracted with someone to the effect that he should work for me for ever or up to a certain time and I dismissed that person, there would be a remedy of damages. He could not say that I had no power, as an individual human being has power, to dismiss him.
However, a university of this sort has the powers that its constitution gives it, and the constitution gives to the members of the university the right not to be dismissed except in accordance with the procedures and on grounds laid down in that constitution. Therefore if the university purports to dismiss someone in contravention of those procedures or without those grounds, that purported exercise is without foundation and the person remains employed by the university.
The procedures of which we are speaking are intended to have that effect. That is why I answered the noble Baroness earlier as I did. That is the quid pro quo of taking away tenure. I have to say that they are very strong remedies. Noble Lords who have spoken know a great deal about the Employment Protection Act; indeed, so much about it that they are ready to assume that it is being swallowed entirely into this statute, which of course is something that we are not doing. The remedies there are much weaker: there is reinstatement, re-engagement and damages, although reinstatement is not given so often. A much stronger position is given to the academic. He retains his position in the university unless there is redundancy or good cause is made out in accordance with statutory grounds sustained on appeal.
Earl Russell: I thank the noble and learned Lord for that very helpful answer.
Lord Wedderburn of Charlton: Before the noble and learned Lord sits down, perhaps I may tell him, first, that he must not chide us for speaking of academics going to tribunals, which is what Ministers in the other place have been saying is often enough the end product of this. We now understand that this would not normally be foreseen as the end product. The normal remedy that the academic would pursue in the test case, which is of course the case where all the procedures do not work properly, is that he should go for judicial review; in other words, to use the words of the late Lord Diplock, to show that the university acted irrationally in that sense of unreasonableness—Wednesbury sense of unreason-ableness—in coming to the conclusion that there was something which could reasonably be treated as a sufficient reason for dismissal.

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That would be the test that he had to meet; and whereas judicial review has many advantages procedurally, the hurdle that he would have to surmount in judicial review would be higher than that which he would have to leap in the tribunal. Therefore what the noble and learned Lord says has consequences throughout the whole process and a new body of employment law for those who are employed by the statutory bodies would be created for which the major remedy would be judicial review, which would not always be to their advantage. It would seem to me that he might explain this to us further on Report.
10.15 p.m.
The Lord Chancellor: I do not think I am capable of explaining it any further than I have done already. The position is quite clear. I do not believe that the ordinary case for judicial review would be on rationality. It would be on some procedural failure. One would expect the merits of the appeal system would be such as to test the merits. There might be an extremely exceptional case, but it would be extremely exceptional. I expect noble Lords wish to proceed.
Lord McCarthy: We must thank the noble and learned Lord for giving us a most interesting lifting of the carpet. A great deal may follow. We must reserve our position if we wish to come back on Report. At the moment we are pleased to beg leave to withdraw the
amendment.
Amendment to the amendment, by leave, withdrawn.
[Amendment No. 279ZC, as an amendment to Amendment No. 279ZAB, not moved.]
The Earl of Halsbury The Earl of Halsbury moved, as an amendment to Amendment No. 279ZAB, Amendment No. 279ZD:
Page 159, line 48, at end insert ("and
(d) provision enabling an appropriate body to offer any member of the academic staff who fulfils specified criteria of successful achievement in performance of his professional responsibilities, appointment until retirement subject to the provisions of paragaphs (b) and (c) above.").
The noble Earl said: The provision of Amendment No. 279ZD is designed to ensure security from dismissal by reason of extraneous opinions by allowing the commissioners in institutions to dismiss academic staff by reason of redundancy as defined in Clause 174(4) or for good cause. Possibly a good deal of that has been already raised and answered by the noble and learned Lord. If he would care to confirm that I should be happy to withdraw the amendment.
The Lord Chancellor: I dealt with this earlier, as I did also the amendment of the noble Lord, Lord Pender, which follows immediately. The idea was that it might be possible to give special people tenure. I explained why I thought that that was not a good idea. I have therefore sought to answer this.
The Earl of Halsbury: I beg leave to withdraw the amendment.
Amendment to the amendment, by leave, withdrawn.
[Amendment No. 279ZE, as an amendment to Amendment No. 279ZAB, not moved.]
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 279ZF:
Page 160, line 3, after ("otherwise)") insert ("and—

(a) there is no requirement for any instrument which would have the effect of modifying the provision to be approved by Her Majesty in Council or to be laid before both Houses of Parliament; and

(b) but for this subsection, there would be no requirement for such an instrument to be approved by the Privy Council;").

The noble and learned Lord said: With this amendment I should like to take Amendments Nos. 279ZG, 279AD and 279AE. These are all technical amendments. Some affect matters we discussed earlier in relation to the Privy Council. I tried to take account of these amendments when replying at that time. To start with Amendment No. 279ZF, the effect of Clause 174(2) is that once the commissioners' modifications to the statutes of an institution had been approved by Her Majesty in Council an institution would, unless there are existing controls, need Privy Council approval before instruments having the effect of modifying the provisions in the statutes of a kind mentioned in Clause 174(1) could have effect. Those provisions concern dismissal for redundancy and good cause, and for appeals against dismissal. If the Government's amendment for appeals against dismissal were accepted, it would apply to these also. Some institutions are governed by statutory provisions. We have no wish to interfere with the status quo where existing controls are sufficiently stringent. This amendment ensures that approval by the Privy Council will only be required where existing controls are not adequate.
Amendment No. 279ZG is purely a drafting amendment. Amendment No. 279AD is explained thus. Clause 174(5) defines "good cause" as meaning a reason falling within paragraphs (a) or (b) of Section 57(2) of the Employment Protection (Consolidation) Act 1978. Those reasons are in terms of contracts of employment and would not be apt where a member of academic staff had no contract of employment. This amendment ensures that the definition applies to all staff whether they have a contract of employment or not. If they merely held an office, for example, this would apply. I am not sure that there are many of them but there might be. Therefore we have this provision.
Amendment No. 279AE follows directly from Amendment No. 279AD. The technical amendments introduce no new provisions but simply clarify what was intended. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 279ZG:
Page 160, line 5, leave out from ("instrument") to ("it") and insert ("which would have the effect of modifying the provision shall have that effect unless").
On Question, amendment agreed to.
The Principal Deputy Chairman of Committees (Baroness Serota): In calling Amendment No. 279A, I should point out to the Committee that if this amendment is agreed to I cannot call Amendments Nos. 279AA and 279AC.
Lord Allen of Abbeydale Lord Allen of Abbeydale moved Amendment No. 279A:
Page 160, line 12, leave out subsection (4) and insert—
("(4) For the purposes of this section redundancy shall have the same meaning as in section 81(2) of the Employment Protection (Consolidation) Act 1978.").
The noble Lord said: I am slightly surprised to find myself moving an amendment about redundancy upon which I can claim no expert knowledge when there are a number of experts not very far away from me. As I understand the rather wordy subsection (4) it would enable a member of staff to be dismissed as redundant simply on the grounds of expense; that is to say, he could be dismissed not because there was no longer any need for the work he was doing, but simply to enable precisely the same work to be done by someone lower down the salary scale who would therefore be cheaper. If that is right, it seems to give an odd twist to the ordinary meaning of "redundancy".
The noble and learned Lord, speaking on Second Reading, said that people would have to be shown to be genuinely redundant. It comes as a bit of a surprise to me if what we are now discussing is indeed the genuine article.
I have read the 1978 Act which provides, in shorthand, that an employee can be dismissed on grounds of redundancy if the employer ceases to carry on the business in which the individual is employed or if the requirement for the employee to carry out work of a particular kind ceases or diminishes. I believe that this means that elsewhere in the workforce someone declared redundant and then immediately replaced in the same job could claim unfair dismissal.
Am I right in interpreting this subsection as meaning that the academic could be treated differently? Are there any other employments where this somewhat surprising definition of redundancy applies? Or are academics being picked out for rather special treatment? It seems to me to strain somewhat the commonsense meaning of redundancy. I beg to move.
The Lord Chancellor: The Bill contains a definition of redundancy which includes the situation where an institution suffers financial stringency and decides that one way to meet that deficiency would be to have certain work done at a lower level than it is in fact normally done and thus save money for the university. After all, redundancies are all, in a sense, directed to saving money in a situation of financial stringency. The extension here allows for a university, where necessary, on grounds of financial stringency, to employ a junior employee to do a job previously carried out by a more senior person who would thereby become redundant.
So far as the internal procedures are concerned, that would be possible. As I sought to explain earlier, the Employment Protection Act procedures would apply thereafter, and there is no attempt to alter those. Therefore, like everyone else who is subject to
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these provisions, the academic dismissed would have that protection. The reason is that the flexibility that is required, particularly in university situations, would appear to make that proper result.
I have explained already—and it is just as well that one should say this—if a university wishes to substitute a junior member of staff for a more senior member it will have to show that it is acting reasonably in doing so. It will be on that basis, and on that basis alone, that it would be proper for the university to dismiss. I cannot stress enough the fact that academics are not deprived of the protection afforded to others by the Employment Protection (Consolidation) Act. However, the situation of redundancy which enables them to be dismissed before they get to the stage of claiming compensation or payment is more ample in its definition of redundancy than appears in the Employment Protection (Consolidation) Act.
On the other hand, that Act allows dismissal for some other substantial reason. We have not followed that, so if one is to compare the position of the academic with the position of a person covered under the employment protection legislation, one must take the whole of it. The person covered under that legislation can be dismissed not only for good cause in relation to conduct and the like, but for some other substantial reason. We have missed that out but we have made a wider definition of redundancy applicable here in order to cover the particular situation of the university.
Baroness Seear: Will the noble and learned Lord clarify the position? This is a genuine attempt to seek knowledge. I have always understood that under the Employment Protection (Consolidation) Act redundancy occurred only if the job had disappeared and there was no job left to be filled. I have heard the noble and learned Lord say that the job remains but it is simply being filled at a lower level. To give a precise example, it is that the set of lectures will continue to be given but they will be given by someone more junior and less expensive. However, there has been no change in the job. Is not the whole essence of redundancy that the job has disappeared? As the noble and learned Lord has described it, the job remains. If that is correct, how can it be redundancy?
Lord Dormand of Easington: Perhaps the noble and learned Lord will allow me to add to the question put by the noble Baroness. If someone at a lower level can be appointed to carry out the job, why was someone with higher qualifications appointed in the first place?
The Lord Chancellor: If I may say so with the greatest possible respect, that is an excellent question. The university may have a person at a high level. When financial restrictions come along and it looks round, it may ask why on earth it appointed a professor when the job could be done by a junior lecturer. Universities are fallible and they can make mistakes. The point that I made earlier is that the decision must be reasonable. It is not a case of the university arbitrarily saying, "We have a professor who we want to get rid of. Let's put a junior lecturer in his place". It must be a reasonable decision. It must also be against the background of financial stringency, looking round for savings to try to

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preserve the real life of the university. It sees a professor giving lectures which could be given by a junior lecturer at a much lower price. That is the point.
In the ordinary case, I agree with the noble Baroness that the definition of redundancy given in the Employment Protection (Consolidation) Act is narrower than this. However, I have pointed out that one must take the whole of that Act into consideration. It allows dismissal for some other substantial reason than the specified reasons, but we have not followed that provision. Therefore one must take account of the whole situation including the fact that the employment protection legislation is still available after the dismissal.
10.30 p.m.
Earl Russell: The noble and learned Lord explained the position of the junior lecturer and the professor extremely clearly. However, when the junior lecturer grows to be a professor, does he expect to be dismissed?
The Lord Chancellor: One expects that, as he gets more expensive, he will do different work. The point that arises here is a difficult one. I speak with a certain amount of recollection, having been in universities for quite some time. I found that there was a difference between a lecturer and a professor and a lecturer and a recently appointed junior lecturer. The junior lecturer does not have the same job as the professor. The noble Earl shakes his head but this has certainly been my experience. I have listened to professors and to junior lecturers. I must say, not without exception, that I would have rather listened to the professors. As the noble Earl says, a junior lecturer gets older; he goes up the scales and he becomes a professor. The reason for his increased status is that he is doing a different job.
However, if the university discovers that it has made a mistake and that he is doing something that the junior lecturer should do and the university is in a position of financial stringency, surely it is reasonable that it should be able to take the proper steps to remedy the situation rather than cut some more vital aspect of the university's activities.
Lord Hylton: In the interests of one word having one meaning only, would it not be better to employ in this part of the Bill some such term as "redeployment of staff" rather than "redundancy"? I offer that as a suggestion.
Lord Beloff: I am terribly worried once again. I am probably the only person left in the Chamber at this hour of the night who has been both a junior lecturer and a professor and who has run what became a university. I can find no similarity in my experience of over 50 years in universities with what the noble and learned Lord has described. When first appointed to the great University of Manchester as an assistant lecturer in 1939 I was asked to take three courses of lectures. One of those was on a special subject. And a special subject lecture could have been given by a professor.
I am sure that I was not as good as a professor but it never occurred to anyone at the time to distinguish,
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over quite a large area of the department's work, what was appropriate for a professor. One had a number of people in different grades and the work was distributed between them. It may well be true that there are in other subjects occasions to which the noble and learned Lord has drawn our attention. But it seems to me that what he has said so far strikes at the whole heart of the academic community to a much greater extent than the other matters we have been discussing today.
I implore the noble and learned Lord to take this away and ask the vice-chancellors who have much greater experience than myself of running universities or university institutions, whether they want this power and whether there is not anything they would rather do than throw into the workings of a university department discrimination of this kind. I think that this is both impractical and, if I may say so, immoral to the highest degree.
The Lord Chancellor: In the light of those observations and having regard to the time, it is only right that I should agree to reconsider this matter, without commitment.
Lord Allen of Abbeydale: In that case I should like to withdraw the amendment.
Amendment, by leave, withdrawn.
The Principal Deputy Chairman of Committees: In calling this amendment, I should point out to the Committee that if it is agreed to I cannot call Amendments Nos. 279AB or 279AC.
The Earl of Halsbury: Before moving this amendment, perhaps I may ask the noble and learned Lord the Lord Chancellor whether his comments on it are already included in his comments on the amendment of the noble Lord, Lord Allen of Abbeydale. If so, I shall not move it in order to save the time of the Committee. If he can confirm that if I look through Hansard tomorrow I shall see the comments he made, I would not want to ask him to repeat them.
The Lord Chancellor: Yes. It was grouped with that amendment. There are other considerations, but as I have taken the other amendment back I shall also take this amendment into account.
The Earl of Halsbury The Earl of Halsbury moved Amendment No. 279AA:
Page 160, line 19, leave out from ("work") to end of line 25 and insert—
("( ) Where the reason or the principle reason for a dismissal was that the member of staff was redundant within the meaning of subsection 4 but it is shown that the circumstances constituting the redundancy applied equally to one or more other members of staff employed by the same institution who held a position similar to that held by him but who have not been dismissed, the dismissal shall he regarded as unfair if—

(a) he was selected for dismissal in contravention of a customary arrangement or agreed procedure relating to redundancy and there were no special reasons justifying a departure from that arrangement or procedure in his case; or

(b) he was selected for dismissal by reason of his personal opinions or some other reason not related wholly or mainly to the activity in question.").

The noble Earl said: I beg to move.
The Lord Chancellor: I have covered most of the matters arising from this amendment. As I have taken back the amendment of the noble Lord, Lord Allen of Abbeydale, for further consideration, perhaps I may also take back this amendment.
The Earl of Halsbury: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton had given notice of his intention to move Amendment No. 279AB:
Page 160, line 21, leave Out ("or members of staff of a particular kind").
The noble Lord said: If it is agreeable to the Committee, I shall not move this amendment subject to saying a few words. The noble and learned Lord has kindly agreed to take away the definition of redundancy, as it is known in this Bill. When he reconsiders the matter, will he also take account on his agenda of the inter-relationship of three matters which it was our intention to raise under this amendment?
The first is the double redundancy definition in the Bill, as we call it; the second is the normal definition of redundancy and its effects in relation to redundancy payments and also in relation to unfair dismissal law; the third, and most important, is the relationship in employment law of the area of justification of the fairness of dismissals in the tribunals of which the noble and learned Lord said that there would theoretically be availability for such a person; the relationship between the reliance of the defendant institution employers upon some other substantial reason and its powers as expressed in the Bill—the most obvious one being that the university might use the wide double redundancy formula in order to substantiate some other substantial reason. Those are only the headings of the agenda which I otherwise had, and in view of the kindness of the noble and learned Lord in saying that he will bring this matter back on Report I shall not move this amendment.
[Amendment No. 279AB not moved.]
[Amendment No. 279AC not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 279AD:
Page 160, line 25, at end insert—
("(4A) For the purposes of this section "good cause", in relation to a member of the academic staff of a qualifying institution, means a reason which is related to his conduct or to his capability or qualifications for performing work of the kind which he was appointed or employed to do; and in this subsection—

(a) "capability", in relation to such a member, means capability assessed by reference to skill, aptitude or any other physical or mental quality; and

(b) "qualification", in relation to such a member, means any degree, diploma or other academic, technical or professional qualification relevant to the office or position held by him.").

The noble and learned Lord said: I have explained the reason for this amendment. I beg to move.
On Question, amendment agreed to.
The Principal Deputy Chairman of Committees: If this amendment is agreed to I cannot call Amendment No. 279B.
The Lord Chancellor The Lord Chancellor moved Amendment No. 279AE:
Page 160, leave out lines 37 and 38.
On Question, amendment agreed to.
[Amendment No. 279BA not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 279C:
Page 160, line 43, at end insert—
("( ) Nothing contained in this Part of this Act shall prejudice the rights of the Church of Scotland as set out in the Universities (Scotland) Acts of 1932 and 1966, and it shall be the duty of the Commissioners to secure that the statutes of each qualifying institution shall include in relation to any ordinance which relates to the purposes mentioned in section 2 of the 1932 Act the same provisions for consultation and for consent, mutatis mutandis, as are set out in the Acts of 1932 and 1966.").
The noble Lord said: It seems odd to be speaking from the temporal Benches on a matter which concerns the Church of Scotland. The situation is that the Church of Scotland has always had, with the four older Scottish universities, a considerable relationship which predates the Reformation, was restated with the Reformation in the First Book of Discipline, and now exists to the extent that appointments to certain chairs in the faculty of divinity in the four universities are made by the universities with the consent of the General Assembly of the Church of Scotland and are controlled by the Universities (Scotland) Acts 1932 and 1966.
The purpose of the amendment is to enable that procedure to continue to the extent that this must be taken into account in any dealings on whether chairs should be redundant or the Churches should retain the right to be consulted.
Amendment No. 180A is in more general terms for any proposed Order in Council to be communicated to any university or other institution directly affected for comment. One would hope that that at least would happen anyway. There would then be a statutory provision for the Church of Scotland to make comments to the commissioners before the Order in Council is pronounced. I beg to move.
The Lord Chancellor: To deal first with Amendment No. 180A, I intend to accept in principle that something along these lines may be necessary. Precisely what is not absolutely clear, but I am prepared to undertake without any qualification that the Church of Scotland would be informed about changes connected with the chairs in which it has an interest.
The Act of 1932, which is the main one, is not affected by this Bill in regard to repeal. The right course would be to leave this to the commissioners. As I explained earlier, one reason for having the commissioners is that to fit the principles of the Bill into the constitution of the various institutions requires detailed work and adjustment. The interests of the Church of Scotland, which I wish to see very well looked after, will be taken care of in that procedure. Given that the interests of the Church of Scotland will be properly taken into account, I hope that the noble Lord may be satisfied.
Lord Hylton: In the absence of the noble Lord, Lord Grimond, perhaps I may observe that the amendment reinforces the case for Amendment No. 274B, which was moved earlier by the noble Lord, Lord Grimond.
Lord Morton of Shuna: I am obliged to the noble and learned Lord the Lord Chancellor. I shall take advice on whether it is necessary to come back on the matter. I am glad that the 1932 Act is to remain unaffected.
The necessity for consultation with the Church of Scotland does not appear on the Bill, which worries me a little. However, the attitude of the noble and learned Lord to Amendment No. 180A is helpful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 279CA not moved.]
On Question, Whether Clause 174, as amended, shall stand part of the Bill?
Earl Russell: My chief desire is for some information. Perhaps I may raise the matter of Amendment No. 279B, which fell because the words to which it related were deleted. This is a matter of the interpretation of "good cause" for dismissal. It arises from the discussions with members of the Committee of Vice-Chancellors and Principals. The case law that has been found does not seem to establish clearly that opinions are not by themselves good ground for dismissal. One wonders whether there might be any scope for further discussion or further clarification on this matter.
10.45 p.m.
The Lord Chancellor: I indicated this afternoon in response to the amendments moved by the noble Lord, Lord Jenkins of Hillhead, that I proposed to do this very thing as in my belief this was the area in which academic freedom was most important and in which amendments were likely to be effective. The Committee did not feel able to accept that in full satisfaction of what was going on this afternoon.
I intend to continue with these consultations. I shall not be deflected from them by the fact that the amendment was carried this afternoon. It is in this area that the real thrust comes. The noble Earl's point will continue to feature in our discussions and I hope that we may have something of use on this matter at Report stage.
Earl Russell: I thank the noble and learned Lord for that reply.
Clause 174, as amended, agreed to.
Clause 175 [Powers of Commissioners]:
The Principal Deputy Chairman of Committees: In calling Amendment No. 279CB, I should point out that if this amendment is agreed to, I cannot call Amendments Nos. 279D or 279DA.
The Earl of Halsbury The Earl of Halsbury moved Amendment No. 279CB:
Page 160, line 50, leave out from ("apply") to end of line 7 on page 161 and insert ("to a person appointed to tenure or enjoying tenure before the date on which these modifications are made.").
The noble Earl said: The object of this brief amendment is to remove the retroactive effect of removal of tenure from people who received it last year. As a rule, Parliament does not like retroactive legislation. I think that the Committee should have
540
an opportunity to express an opinion on this matter. I beg to move.
Lord Peston: As a non-expert in the matter, I too have been very puzzled as to why considerations of this kind are not dated from the day that the Bill will become an Act. It has puzzled many people in the academic world, as the noble Earl said. Without wishing to delay the Committee excessively, one would like an explanation of why the day of the introduction becomes the effective date, which, to use one of our favourite words in these debates, is a little unjust in some cases. One is looking for an explanation.
Earl Russell: I should like to speak to Amendment No. 279D, which is grouped with this amendment and is designed to achieve a similar effect. It is also concerned with the retroactive provision but seeks to come at the matter from a slightly different angle.
The effect of the amendment would be to postpone the operation of the changes until university statutes are reviewed and until it is possible to indicate to somebody who is being offered a new appointment on precisely what terms and conditions such an appointment would be taken. That, as far as I can understand, is in line with normal commercial practice and I should have hoped in line with basic principles of fair play.
Lord McCarthy: I understand that we are dealing with Amendment No. 279CB. As I understand it, the amendment of the noble Earl, Lord Halsbury, would take out one category which the Government say they want to include in the coverage of the Bill. The Government say that anyone who was appointed to tenure before the publication of the Bill will be excluded but that anybody who is promoted, although he was appointed before the date of the publication of the Bill, will be affected by this provision. The effect of the noble Earl's amendment is to say that even if he is promoted he is still excluded from this provision.
I can understand why the Government may wish to resist that amendment. The problem arises if Amendment No. 279DA in the name of the noble Baroness, Lady Hooper, is moved and is successful. A subsequent amendment, Amendment No. 279EA, which I wish to move, seeks to leave out lines 9 to 12. Its aim is to make clear the Government's position, which I take to be very unclear.
I want to ask the Government whether, either at this point or subsequently when they come to debate their own amendment, Amendment No. 279DA, they are saying—the situation would I admit be changed by the noble Earl's amendment—that the Bill is not intended to cover anyone who was appointed before its publication or anyone not promoted, even if there have been increases in their increments or pay as a result of annual awards. It is by no means clear on the face of the Bill, nor is it clear as a result of Amendment No. 279DA that that is the Government's position.
The Lord Chancellor: I shall deal first with the general point. The Government's general intentions on the matter have been discussed for some time. Once the proposals were intimated, it was thought right that that should be the cut-off date. There are

541
various possible cut-off dates—one is when the Bill is enacted or commenced and another is the type of date that the noble Earl, Lord Russell, mentioned; that is, the time when the arrangements take effect in a particular university.
However, the Government thought it fair that the same date should apply to everyone and that it should be clearly intimated. Further, the provision does not come into effect at all unless the Bill becomes law. Therefore there is no question of there being anything unconstitutional about the matter. The Government are not trying to jump the gun, so to speak. It is that this will be the effect if the Bill ultimately becomes law and is passed by Parliament.
As I said, 20th November, the date of publication, struck us as being a good and fair date on which to make the change. In a way the sooner it is done the better. People will then know where they are people who are already in position at that date will know that their tenure is secure and new people negotiating after that date will know that they will not have tenure if the Bill is passed. Of course they will make their own judgment on that probability.
The Government took the view that this should be the rule, but they also took the view that appointment to new positions should not attract tenure if that appointment took place on or after 20th November. The idea behind Amendment No. 279DA that the noble Lord, Lord McCarthy, referred to is to try to clarify exactly what constitutes a new position in this respect. The details are fully set out in the amendment and I do not think that I can illuminate the matter by discussing them further, unless someone has a special point to make on them. The result is to try to define, as closely as possible what would not amount to a promotion, although it might lead to a larger salary.
Lord McCarthy: May I draw the noble and learned Lord's attention to my problem? It is quite clear. Mr. Jackson in another place said that he wished under the existing provisions of the Bill—that is, before this amendment—to describe:
"The circumstances that we regard as promotion".
He said that because promotion is to be included in the Bill and non-promotion is not to be written into it. He went on to say that the problem on the face of it is that the Bill,
"does not mention promotion specifically".—[Official Report, Commons Standing Committee J, 25/2/88; col. 1793.]
In particular, and more seriously as I see it, it fails to specify the type of increases or changes in title which academics in posts can obtain without suffering loss of tenure. Subsequently, however, members of the Government clearly said that they did not wish that provision to affect the tenure of those who will receive annual incremental increases or what they call titular improvements in their position. I cannot find that provision—that is my difficulty—on the face of the Bill or in the amendment. Perhaps I may draw the noble and learned Lord's attention to paragraph (b)(i) where the problem which appears on the face of the Bill repeats itself. The Committee will notice that the paragraph states,
"his rate of remuneration is increased to a rate which exceeds the highest point on his former pay scale at the date on which the increase takes effect".
When a pay scale is increased because a 3 per cent., 4 per cent. or 5 per cent. annual increment is
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negotiated by the union, it is normal to refer to the new pay scales. The new pay scales come out and everyone receives a further 4 per cent. If all the people with tenure receive a further 4 per cent., could it not be argued under the terms of paragraph (b)(i) that the
"rate of remuneration is increased to a rate which exceeds the highest point on his former pay scale at the date on which the increase takes effect"?
The Government have therefore inadvertently destroyed the tenure of such persons.
The Lord Chancellor: The explanation is that the position is changed in such a way that the person receives a new rate of remuneration. That is as I understand the position. In other words "his former pay scale" relates to the pay scale that he had in the appointment he held immediately before the change.
If the only change is a change within the scales that were available to him—for example, let us suppose that there is a pay scale which has three different points, and that there is a lecturer on scale one who has done well (he will not receive tenure) who is put up to scale two (a higher scale)—that would not be a promotion for the purposes of the amendment. If his position were changed in such a way that he was given a salary which was higher than the highest grade to which he could be moved up, there would be a change. That is the idea of the provision, as I understand it, put in as simple words as I can.
Lord McCarthy: I shall give a simple example because I am worried about much simpler things. Let us take figures out of the air. There is a lecturer's scale with a maximum of £20,000; a reader's scale with a maximum of £25,000; and a professor's scale with a maximum of £30,000. They are all existing scales. They all receive a 10 per cent. Increase. They are all new scales and tenure is lost.
The Lord Chancellor: I do not believe that that is the effect of the amendment. I am happy to look at the matter again in the light of what the noble Lord has said in the interests of trying to make progress.
Lord Peston: The distinction is that of movement within a scale and movement of the scale itself. I am sure that the noble and learned Lord will be able to clarify that point for us in due course. I do not wish to delay the Committee, but I want to return to my previous point which was that introduced by the noble Earl.
During the course of the year there has been the equivalent of planning blight because of the 20th November date. Anomalies are capable of occurring. It is almost 100 per cent. certain that the Bill will become law before the start of the new academic year. The point to which 20th November refers would be better applied to 1st October, 1988, when I guess that the Bill will be law, despite the activities of this side of the Chamber. It seems to me quite reasonable to suggest that the date of 20th November—and the Government may have had good reasons at the time for introducing it—should not apply any more as we come to the end of the Bill. I am bound to say that I should be a little happier if when the Bill passes the noble and learned Lord would consider 1st October or the equivalent. I think that would get rid of a few anomalies that we heard of. That is the point I was trying to make, in a great desire to be constructive and helpful.
11 p.m.
Lord Wedderburn of Charlton: The noble and learned Lord kindly said that he would look at this again. Perhaps I may ask him to put on his agenda a simple point based on the example of my noble friend, Lord McCarthy. I think that on the explanation that he gave the Committee—this is rather important for a large number of people—it would mean loss of tenure. I take the case of a lecturer who is on the top of the scale at £20,000—the figure of my noble friend. Then there is a 5 per cent. pay increase and he gets more. From what I understood the noble and learned Lord to say, that means loss of tenure, even on his interpretation. So perhaps the noble and learned Lord could put that on his agenda.
The Earl of Halsbury: On the basis of the assurance given by the noble and learned Lord, I beg leave to withdraw the amendment standing in my name.
Amendment, by leave, withdrawn.
Earl Russell Earl Russell had given notice of his intention to move Amendment No. 279D.
Page 161, line 2, leave out ("20th November 1987") and insert ("the relevant instrument shall have been approved by Her Majesty in Council").
The noble Earl said: Before taking a decision to move this amendment, may I ask for an answer to my question? It was: is it reasonable to expect someone to accept an appointment when we cannot tell him what the terms and conditions of that appointment are?
The Lord Chancellor: It is often possible to make a bargain subject to adjustment of certain things later. The point that arises here is that 20th November has been clearly stated as the date at which tenure would be stopped. People have taken decisions, I have no doubt, in the light of that. While I see the force of what has been said, it is always possible to take account, in discussion and in deciding what to do, of the probability of action that is to happen. As the noble Lord, Lord Peston, said, people might have reached the conclusion that it was quite likely that this legislation would ultimately reach the statute book with 20th November in it.
As regards the amendments, they are in accordance with the provisions of the statute and limited in that way. So, although I agree that there are certain adjustments to be made, the essence of the changes is foreshadowed in the legislation.
Earl Russell: I cannot really regard that as a satisfactory reply. I take the point that people knew that the Bill was likely to become law. What I think most of us do not know and did not know is exactly what sort of contracts are likely to be on offer when the Bill is law. Tonight, noble Lords who are experts in labour laws have discovered that in some respects this Bill means something very different from what was said. I think that, until they know what sort of contracts can be available for them, people are being asked to buy a pig in a poke. I do not think that that is fair commercial practice. I beg to move.
11.2 p.m.
On Question, Whether the said amendment (No. 279D) shall be agreed to?
Their Lordships divided: Contents, 22; Not-Contents, 43.

DIVISION NO. 3

CONTENTS

Adrian, L.

Mackie of Benshie, L.

Airedale, L.

McNair, L. [Teller.]

Birk, B.

Mountevans, L.

Bonham-Carter, L.

Peston, L.

David, B.

Pitt of Hampstead, L.

Dormand of Easington, L.

Ponsonby of Shulbrede, L.

Ewart-Biggs, B.

Russell, E. [Teller.]

Hatch of Lusby, L.

Seear, B.

Jenkins of Hillhead, L.

Tordoff, L.

Lockwood, B.

Turner of Camden, B.

McCarthy, L.

Wedderburn of Charlton, L.

NOT-CONTENTS

Abinger, L.

Harvington, L.

Arran, E.

Henley, L.

Bathurst, E.

Hesketh, L.

Beaverbrook, L.

Hives, L.

Belstead, L.

Hooper, B.

Bessborough, E.

Jenkin of Roding, L.

Blatch, B.

Johnston of Rockport, L.

Brabazon of Tara, L.

Long, V. [Teller.]

Brougham and Vaux, L.

Mackay of Clashfern, L.

Caithness, E.

Monk Bretton, L.

Cameron of Lochbroom, L.

Reay, L.

Carlisle of Bucklow, L.

Sanderson of Bowden, L.

Carnock, L.

Skelmersdale, L.

Carr of Hadley, L.

Swansea, L.

Craigmyle, L.

Swinton, E.

Davidson, V. [Teller.]

Teviot, L.

Denham, L.

Torphichen, L.

Dormer, L.

Trafford, L.

Eden of Winton, L.

Trefgarne, L.

Ferrers, E.

Young, B.

Gray, L.

Young of Graffham, L.

Halsbury, E.

Resolved in the negative, and amendment disagreed to accordingly.
11.12 p.m.
The Chairman of Committees (Lord Aberdare): In calling Amendment No. 279DA I must inform the Committee that if that amendment is agreed to I cannot call Amendments Nos. 279E or 279EA.
The Lord Chancellor The Lord Chancellor moved Amendment No. 279DA:
Page 161, line 3, leave out from beginning to end of line 18 and insert—
("(b) immediately before that date he is paid on a scale which provides for a maximum rate of remuneration (his former pay scale) and on or after that date the terms of his appointment, or of his contract of employment, are varied (whether with effect before or after that date) so that—

(i) his rate of remuneration is increased to a rate which exceeds the highest point on his former pay scale at the date on which the increase takes effect; or

(ii) he is paid on another scale on which the highest point at the date the variation takes effect exceeds the highest point on his former pay scale at that date; or

(iii) he is paid on a basis which does not provide for a maximum rate of remuneration.

(2A) For the purposes of subsection (2) above references, in relation to a pay scale, to the highest point on the scale at any date are references to the maximum rate of remuneration payable at that date in accordance with the scale whether on a regular or discretionary basis.
(2B) Modifications such as are mentioned in subsection (2) above shall not apply in relation to a person who held an office or position at the institution in question immediately before 20th November 1987 by reason only of the fact that he is subsequently appointed to, or employed in—

545

(a) a different office or position at the institution instead of his former office or position if the terms of his appointment or of his contract of employment which relate to remuneration are the same as those of his former appointment or contract of employment; or

(b) an additional office or position at the institution which carries no remuneration.").

The noble and learned Lord said: I referred to this amendment in answer to a question from the noble and learned Lord, Lord McCarthy. It is intended to clarify in some detail the provisions about what amounts to a promotion or, in effect, a new appointment for the purposes of tenure. I beg to move.
Baroness David: Perhaps I may ask a question. If a person is promoted from lecturer to senior lecturer in the same establishment, does that mean that he or she will lose tenure?
The Lord Chancellor: Yes, unless there was simply a change of name, which is possible. However, the amendment makes it clear that if the salary change is of a kind which is described in paragraph (b), then the situation will be covered by the amendment. The mere fact that a person is called a senior lecturer does not necessarily mean that the salary is improved. If the lecturer and senior lecturer grades are quite different, the promotion to the senior lecturer grade would in the normal case mean that tenure was lost.
On Question, amendment agreed to.
[Amendments Nos. 279E and 279EA not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 279EB:
Page 161, line 22, leave out ("modifications have effect") and insert ("instrument making the modifications is approved under subsection (6) below").
The noble and learned Lord said: This amendment is to the same effect as the previous amendment. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 279EC:
Page 161, line 25, leave out ("provisions") and insert ("provision").
On Question, amendment agreed to.
Clause 175, as amended, agreed to.
Clause 176 [Procedure for exercise Commissioners' powers]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 279ED:
Page 162, line 8, at end insert—
("(6) Until the coming into force of section 115 of this Act subsection (2)(d) above shall have effect as if for the reference to the Universities Funding Council there were substituted a reference to the University Grants Committee.").
The noble and learned Lord said: Clause 176 requires the commissioners to send a copy of their proposed modifications to, among others, the Universities Funding Council. They must take into account the representations made by the UFC and others before submitting the modifications for approval to Her Majesty in Council.
The effect of this amendment is to require the commissioners to send their proposed modifications
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to the University Grants Committee until such time as the UFC is set up under the provisions of Clause 115 of the Bill. I beg to move.
On Question, amendment agreed to.
11.15 p.m.
[Amendment No. 279F not moved.]
Clause 176, as amended, agreed to.
Clause 177 [Exclusion of visitor's jurisdiction]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 279G:
Page 162, line 10, after ("dispute") insert ("relating to a member of the academic staff").
The noble and learned Lord said: With this amendment I shall also speak to Amendments Nos. 279H, 280ZA and 280ZB. Amendment No. 279G is a purely drafting amendment. The effect of Amendment No. 279H would be to remove the jurisdiction of the visitor in all matters concerning the appointment or employment, including discipline, of a member of academic staff. That would be in addition to disputes concerning dismissal which is already provided for. In the case of Amendment No. 280ZA the use of the word "termination" rather than "dismissal" renders line 21 redundant. Amendment No. 280ZB is a drafting amendment. I beg to move.
The Lord Bishop of Winchester: Perhaps I may intervene very briefly. I rather regret that the noble and learned Lord the Lord Chancellor has spoken to Amendment No. 279H. I speak ex-officio as Bishop of Winchester, visitor of five Oxford colleges. Three of them were founded by my predecessors in office, two of them by lay people who conferred the visitorial powers on the Bishops of Winchester.
We see the role of the visitor very much as a guardian and guarantor of the founder's intention. Oxford colleges, and their counterparts in Cambridge, are very much educational trusts. They have a particular ethos of their own. The visitor's function is twofold. One function is to hold visitations. That has not been initiated by a Bishop of Winchester for over 300 years hut in the last century various colleges invited Bishops of Winchester to hold such a visitation, particularly at times of college reform. The other function a bishop has as visitor is to hold appeals. That has proved a satisfactory method in the past because it is quick to operate, inexpensive and has proved hitherto fairly uncontroversial. It is a kind of service which the visitor is able to offer the college.
In the legislation before the Committee the Bill removes the powers of the visitor in regard to cases of dismissal. I consulted the colleges of which I am a visitor. Many of the colleges regretted the fact that the visitor had no particular role. They did not seek an exclusive role for the visitor in dismissal cases but they felt that that option and service should be available to a member of staff if he or she so wished it.
The effect of Amendment No. 279H proposed by the noble and learned Lord the Lord Chancellor is to remove the visitor's jurisdiction not only in matters of dismissals but also in matters of disciplinary proceedings. I would not want to say that there

547
should be an exclusive right for the visitor to act in that way but I think that there is a case for that facility being available to a member of staff who so wishes. I am fortified in that belief by the heads of colleges whom I have consulted.
I therefore rather regret that the amendment has been proposed by the noble and learned Lord.
The Lord Bishop of Ely: As Visitor of three Cambridge colleges I should like to speak a word in support of what my brother has said concerning his relationship with the Oxford colleges.
Baroness David: I should like to support the right reverend Prelates. We also think that this is unnecessary. I understand that the CVCP has been meeting the noble and learned Lord and that discussions are still going on on this subject. Is it not therefore somewhat premature to introduce the amendment at this moment?
Lord Adrian: Speaking as a member of a Cambridge college whose visitor is I believe sitting on the Front Bench opposite I would very much regret it if the jurisdiction of the visitor was limited to exclude matters other than dismissal. I accept the restriction of the exclusive jurisdiction of the visitor but I should be sorry if the amendment—and I confess I was unaware that it had that effect—removed the jurisdiction of the visitor from matters of internal discipline in the college.
The Lord Chancellor: As the noble Lord, Lord Adrian, said, there are a number of important colleges in respect of which the Lord Chancellor is the visitor, and in a personal way I am sorry that there should be any diminution of those relationships. On the other hand, one probably has to take a decision in a broad way and then apply it fairly generally. This view was taken in consequence and also because of the widening of the matters referred to in this Bill.
In view of the way that the matter has been put by the right reverend Prelate who first raised the issue, I should perhaps just mention that it is perfectly possible for, say, a college and a member of that college who wish to have a dispute decided by the bishop to agree to do so. Arbitration is always possible. In a case in which that is jointly wished, that would be possible. The difficulty is that sometimes the jurisdiction of the visitor is not wanted by one side or the other. It is to cope with that situation in particular that this amendment has been moved.
Notwithstanding the doubts that have been expressed, I hope that the Committee will feel able to accept the amendment. I shall of course convey to my right honourable friend the concerns that have been expressed tonight on this matter.
Baroness David: Do I gather that the noble and learned Lord will not convey to his right honourable friend that there have been misgivings about this matter and perhaps wait until Report stage to bring forward this amendment again after further discussion?
The Lord Chancellor: I thought that I ought to move the amendment and ask the Committee to approve it and tell my right honourable friend about
548
the doubts that have been expressed. I should want him to consider them. However, I think it right to move the amendment in view of the reasons that I have given.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 279H:
Page 162, line 13, leave out from ("concerns") to end of line 15 and insert ("his appointment or employment or the termination of his appointment or employment").
On Question, amendment agreed to.
[Amendment No. 280 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 280ZA:
Page 162, leave out line 21.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 280ZB:
Page 162, line 24, leave out ("subsection (1)(c) of that section") and insert ("section 174(1)(c) of this Act; and the reference to a member of the academic staff includes a reference to a person who is treated as such a member for the purposes of that section.").
On Question, amendment agreed to.
Clause 177, as amended, agreed to.
Clause 178 [Power to make incidental, etc., provisions by Order in Council]:
[Amendment No. 280A not moved.]
Clause 178 agreed to.
Clause 179 agreed to.
The Earl of Halsbury The Earl of Halsbury moved Amendment No. 280AA:
After Clause 179, insert the following new clause:
("Polytechnic and College Commissioners
There shall be a body of Commissioners known as the Polytechnic and College Commissioners who shall, in relation to institutions receiving funds from the Polytechnic and College Funding Council, possess the same powers and exercise the same functions as are specified in respect of the University Commissioners by sections 173 to 178 of this Act.").
The noble Earl said: In moving this amendment I have come to the last of what I call the petitioners' amendments. I think that the Committee will agree that the petitioners' amendments, as selected and edited by myself, have led to some quite lively debates in which a number of noble Lords have participated and made very relevant observations and in which the Government on more than one occasion have offered to reconsider the matter.
I hope that, since such petitions are rather rare in this Chamber, the way that I have treated this one in particular may act as a model for the serious consideration of others in the future. This amendment, which is the last of the 10 amendments, seeks to set up a body of commissioners in parallel with the university commissioners to look after the polytechnics and colleges.
At present the staff of polytechnics and colleges are less well protected from dismissal by reason of their personal or political opinions than those who work in the university sector. Cases of unfair dismissal are not unknown. Therefore it seems appropriate to take this opportunity to extend to all who work in the field of

549
higher education protection in respect of their fundamental right to teach and research freely. I beg to move.
Baroness David: We should like to give our support to the noble Earl.
The Lord Chancellor: It is somewhat gratifying to the Government to find that there is so much enthusiasm for the procedures in relation to tenure that they have proposed for the universities that the noble Earl and the noble Baroness wish them to be extended to polytechnics and those other institutions which receive funds from the colleges funding council.
Notwithstanding that encouragement, it may not be necessary to make this provision because, generally speaking, the staff in such institutions do not have tenure in the form enjoyed by staff at some universitites which it has been decided to abolish. There may be general declarations of intent concerning redundancies but I am not aware of such agreements being incorporated in the contracts of employment of such staff.
Moreover, such institutions would fall within the scope of Clause 185, which prevents any tenure being provided hereafter. What is more, the articles of such institutions incorporate procedures for dismissal for good cause and for appeals which have to be approved by the Secretary of State. Clauses 173 to 179 were designed specifically to meet the particular circumstances of the university sector, and such arrangements are inappropriate and unnecessary to secure these objectives in another sector of higher education which has quite different arrangements.
With that explanation, I hope that the noble Earl will consider withdrawing his amendment.
Lord Peston: Perhaps I may use this peg on which to hang one thought which has concerned me for some time during today's debate. When we were discussing academic freedom we discussed it with respect to the universities. Those of us who believe in such freedom I assume all of us do—would assume that it would apply to the polytechnics as well. I do not know how in due course the Government will react to the amendment which was passed this afternoon, but whatever its practical consequences are I hope they will extend to the polytechnics because academic freedom is as important there as, here. I do not think that they should feel neglected. I take this opportunity to make that point.
The Earl of Halsbury: It being the hour that it is, I shall not divide the Committee on this matter. I accept the assurances of the noble and learned Lord, while reserving my position to bring the matter back again at Report stage if necessary. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 180 to 182 agreed to.
Clause 183 [Grants: miscellaneous]:
The Chairman of Committees: If Amendment No. 280AB is agreed to I cannot call Amendments Nos. 280AC or 280AD.
11.30 p.m.
Baroness David Baroness David moved Amendment No. 280AB:
Page 164, line 37, leave out subsection (1).
The noble Baroness said: The purpose of this amendment is to remove the Government's new grant-making powers in Clause 183. Without any prior indication, the Government proposed at Report stage in another place four new clauses on grants. They are to be found in the Bill as Clauses 180 to 183. There was no debate on those new clauses at Report stage.
However, as they require a money order to be made there was a 45-minute debate the evening before the Report stage began. Mrs Rumbold replied on behalf of the Government and gave satisfactory explanations as to the purposes of Clauses 180 to 182. Unfortunately the guillotine came down while she was speaking to Clause 183. We wish to hear what she would have said if that guillotine had not fallen.
In the Official Report, at col. 168, on 21st March 1988, Mrs. Rumbold stated that the clause,
"redefines and clarifies the powers of the Secretary of State to pay grants to persons and bodies other than local education authorities whose activities or objects arc in the fields of education, learning or research".
She claimed that the existing powers in the Education Act 1944, Section 100(1)(b), are restricted to the payment of grants for,
"expenditure for the purposes of education services provided by the body receiving grant, or on its behalf, or under its management".
This is not strictly true as Section 100 (1) (b) also states that the Secretary of State can give grants for the purposes of educational research.
Mrs. Rumbold stated that subsections (1) and (2) enable the Secretary of State to,
"pay grant to bodies whose main purpose is the promotion of learning or research".
Examples that Mrs. Rumbold gave are the British Academy and the Royal Society. The implication of her statement is that it is considered that the Secretary of State's power to pay them grants needs clarifying so that the Secretary of State can contribute to their general running expenses as well as their educational activities.
Can we ask the Minister how much the Secretary of State already pays to the British Academy and the Royal Society and how much more he intends to pay for general running expenses once this Bill is enacted? We also want to know what else the Government may wish to grant aid under this power. The key difference between Clause 183 and Section 100 of the 1944 Act is that the Bill speaks of the,
"promotion of learning or research"
and Section 100 in the 1944 Act speaks of "educational services" and "educational research".
Examples of bodies which the Government will now have power to grant aid include bodies doing research for star wars, politically oriented research (such as the Centre for Policy Studies) or, indeed, a body to identify the political views of teachers.
The Secretary of State should not be allowed such powers with only minimal parliamentary scrutiny of the need to make regulations under subsection (2). I ask what is the procedure for making these regulations? What might a left wing Secretary of State make of such powers?
Subsection (3) amends the 1944 Act to allow the Secretary of State powers first to provide grants for expenditure connected with educational services and, secondly, grant for proposed educational provision. The power to provide grant for proposed educational services is no doubt necessary for the Government to assist the body they intend to set up to provide advice and so on for schools wishing to achieve grant-maintained status. This body was referred to in the consultation paper on grant-maintained schools issued in July 1987. Paragraph 7 states:
"The Government also intends to assist the creation of an association or trust of the DES to promote the development of grant-maintained schools".
Without the additional grant making power, it is difficult to see how the Government could financially assist such a body to come into being. Mrs. Rumbold, in the debate I referred to earlier, went as far as saying that,
"Subsection (3) redefines the group of bodies other than local education authorities that can be grant-aided and the activities for which grants can be paid"—[Official Report, Commons, 21/3/88; col. 169.]
She did not finish her sentence due to the imposition of the guillotine. Perhaps the Minister could finish it for her.
Given the general direction of the Government's desire to privatise local authority services and increase competition, these powers could be used to assist a body that wishes to set up its own educational psychological service or even speech therapy service to rival an LEA's. With government grants, in the aura of local financial management and grant-maintained schools it could well be possible for a private educational psychological service to undercut that of an LEA and thus reduce even more the overall planning function of the LEA. We want the Minister to tell us the services the Government wish to see develop through this grant-giving power which they cannot provide already through existing legislation. We should like some clarification, please. I beg to move.
Baroness Hooper: If there is life after the guillotine, I shall do my best to clarify the situation. Clause 183(1), to which the first amendment of the noble Baroness refers, is a purely technical change to existing grant-making powers intended to put beyond doubt the power of the Secretary of State to give grants to such bodies as the Royal Society and the British Academy. Since the noble Baroness asked me specifically what amounts are currently given, I can tell her that in the year 1988–89 the British Academy is due for £14 million and in the same year the Royal Society is due to have £8 million. Future levels are yet to be decided.
The change sought by the amendment to line 38 would nullify the purpose of the subsection as would the further amendment to lines 39 and 40. I think the second amendment is slightly defective. There appears to be a word missing.
Baroness David: I am sorry. I should have said that I do not intend to move that amendment.
Baroness Hooper: I was surprised by the latter amendment. It would provide a far wider grant-making power which we certainly do not seek. I hope
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that the noble Baroness will be reassured by the explanation that the intention of Clause 183(1) is purely technical in nature.
Baroness David: Could it be used to help set up grant-maintained schools? I am not clear that it cannot do many other things which the Minister has not mentioned.
Baroness Hooper: It is not part of the intention of the clause that the power should be used to fund grant-maintained schools or higher education institutions directly rather than through funding councils or anything else.
Baroness David: I shall read what the Minister has said. I am not at all sure that I am satisfied but I shall not pursue the matter at this time of night. If I wish to come back I shall do so at the next stage and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 280AC and 280AD not moved.]
Clause 183 agreed to.
Baroness Hooper Baroness Hooper moved Amendment No. 280B:
After Clause 183, insert the following new clause:
("Unrecognised Degrees.
.—(1) Any person who, in the course of business, grants, offers to grant or issues any invitation relating to any award—

(a) which may reasonably be taken to be an award granted or to be granted by a United Kingdom institution; and

(b) which either—

(i) is described as a degree; or

(ii) purports to confer on its holder the right to the title of bachelor, master or doctor and may reasonably be taken to be a degree;

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(2) Subsection (1) above does not apply as respects anything done in relation to any recognised award; and for the purposes of this section a "recognised award" means—

(a)any award granted or to be granted by a university, college or other body which is authorised by Royal Charter or Act of Parliament to grant degrees;

(b) any award granted or to be granted by any body for the time being permitted by any body falling within paragraph (a) above to act on its behalf in the granting of degrees; or

(c) such other award as the Secretary of State may by order designate as a recognised award for the purposes of this section.

(3) An order under subsection (2)(c) above may designate as a recognised award either—

(a)a specified award granted or to be granted by a person named in the order; or

(b) any award granted or to be granted by such a person.

(4) Where in any proceedings for an offence under this section it is shown—

(a) that the defendant granted, offered to grant or issued an invitation relating to an award; and

(b) that an address in the United Kingdom was given in any document issued by the defendant certifying the granting of the award or containing the offer or invitation in question;

the award shall he presumed to fall within subsection (1)(a) above unless it is shown that the defendant took reasonable steps to inform the person to whom the award was granted or any member of the public or particular individual to whom the offer or invitation was addressed that the award was not granted or to be granted by a United Kingdom Institution.
(5) Where an offence under this section which has been committed by a body corporate is proved to have been committed with the consent and connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was

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purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall he liable to be proceeded against and punished accordingly.
(6) Proceedings for an offence under this section shall not, in England and Wales, he instituted except by or on behalf of a local weights and measures authority or the chief officer of the police for a police area.
(7) Nothing in this section shall apply in relation to the granting of an award to a candidate who—

(a) before 12th May 1988 began to undertake a course of education approved by the person granting the award in preparation for an examination to qualify for the award; and

(b) whether before or after that date, passes the examination;

and in this subsection "examination" includes any form of assessment and the reference to passing an examination shall he construed accordingly.
(8) For the purposes of this section—

(a)"a United Kingdom institution" means any institution established in the United Kingdom, other than one which is, or is affiliated to or forms part of, an institution whose principal establishment is situated outside the United Kingdom; and

(b) the reference to issuing an invitation relating to any award includes in particular the issuing of any circular, prospectus or advertisement relating to an award, whether addressed to the public generally, to any section of the public, or to any particular individual or individuals.").

The noble Baroness said: In speaking to this amendment I should also like to speak to Amendments Nos. 280C, 280D, 280E, 281ZA, 281CC, 286A and 288.
These four new clauses and their consequential amendments seek to protect the reputation of UK degrees. They have been tabled following wide consultations in response to increasing demands to stop the worst of the trade in worthless academic qualifications. The response to our consultation exercise held late last year was overwhelmingly supportive and strongly endorsed our long-standing desire to introduce legislation to protect the good name of the UK higher education system. I hope that they will meet with similar approval in this Committee.
Consultations confirmed our belief that the worst of the abuse was to be found in the degree field and it is here that we have concentrated our efforts. While some Members of the Committee may have wished to see protection for other qualifications, we do not believe that it would be practicable to extend our proposals to the much larger and diverse non-degree field. While a UK degree can be related to an institution specifically authorised by Royal Charter or Act of Parliament to award it, a diploma, for instance, can quite properly relate to anything ranging from a cookery course to a postgraduate qualification.
I could deal in detail with each clause if Members of the Committee wish. However, in view of the hour I shall merely say that the clauses are technical and unusual in the experience of the Department of Education and Science. That applies especially to the first clause relating to Amendment No. 280 because it creates a new criminal offence. They have one clear objective: namely, to protect the quality and good name of our higher education system. The routes to the recognition of UK degrees will in future rest exclusively on well-established processes whereby an institution is able to demonstrate not just to the wider academic community but to the world at large the quality of what it provides. I am sure that this is the way to ensure that the British higher education system remains among the best in the world and that
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its reputation is not undermined by a handful of unscrupulous operators. I beg to move.
Baroness David: We are glad to welcome these new clauses. They have been a long time coming. I understand that for the past 15 years efforts have been made to bring them into force. At last the DES and the civil servants have found a way of providing them. I understand that other countries have had such provisions for a long time.
I should like to ask the Minister one question. I understand that the local weights and measures authority will be enforcing this section. I also understand that there is now a shortage of inspectors owing to the cuts in local authority expenditure. The figures I have show that in 1983, of the establishment of 1,642, there were 85 unfilled posts because of financial restrictions. There were further reductions after the abolition of the metropolitan counties. Can the Minister tell the Committee whether more money will be provided for the officers so that they can pursue this new job?
Lord Tordoff: By some strange mistake on the part of the bureaucracy, I find my name coupled with that of the noble Baroness, Lady Hooper, on Amendment No. 286A. I think this was intended to be one of the amendments on road safety education. Nevertheless, I am very happy to be coupled with her in this particular area because this is an important one. There is some ribald laughter from the official Opposition Front Bench, which I do not understand. A number of people have been rather badly dealt with by people offering unrecognised degrees and I certainly wish to support the amendment.
Baroness Seear: My I ask the noble Baroness why weights and measures people are to examine degrees? It does not seem self evident.
Baroness Hooper: It appears that the enforcement of the provisions by weights and measures authorities was discussed with representatives of the local authority associations. There is no specific provision for additional costs, but we believe that the local authority associations felt that these were suitable bodies as they will be appropriately trained and equipped to cope with the problems.
On Question, amendment agreed to.
Baroness Hooper Baroness Hooper moved Amendments Nos. 280C, 280D and 280E:
After Clause 183, insert the following new clause:
(". Unrecognised Degrees: enforcement.
(1) It shall be the duty of every local weights and measures authority to enforce the provisions of section (Unrecognised degrees) of this Act within their area; and such an authority shall, whenever the Secretary of State so directs, make to him a report on the exercise of their functions under this section and section (Unrecognised degrees) of this Act in such form and containing such particulars as he may direct.
(2) A duly authorised officer of a local weights and measures authority may, at all reasonable hours and on production, if required, of his credentials, exercise the following powers, that is to say—

(a) he may, for the purpose of ascertaining whether any offence under section (Unrecognised degrees) of this Act has been committed, enter and search any premises which he reasonably believes may be used for or in connection with the carrying on of a business which is concerned with the granting of awards which are not recognised awards;

555

(b) he may, for that purpose, require any person carrying on or employed in connection with any such business to produce any documents or other items relating to the business and may take copies of any such document;

(c) he may require any information which is contained in a computer and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible if he has reason to believe that it may be evidence of the commission of an offence under that section; and

(d) he may seize and detain anything, which he has reason to believe may be evidence of the commission of an offence under that section.

(3) In subsection (2) above "recognised award" has the same meaning as in section (Unrecognised degrees) of this Act.
(4) If a justice of the peace, on sworn information in writing—

(a) is satisfied that there is reasonable ground to believe that any documents or other items which a duly authorised officer has power under this section to inspect are on any premises and that their inspection is likely to disclose evidence of the commission of an offence under section (Unrecognised degrees) of this Act; and

(b) is also satisfied either—

(i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this subsection has been given to the occupier; or

(ii) that an application for admission, or the giving of such a notice would defeat the object of the entry or that the premises are unoccupied or that the occupier is temporarily absent and it might defeat the object of the entry to await his return;

the justice may be warrant under his hand, which shall continue in force for a period of one month, authorise an officer of a local weights and measures authority to enter the premises, if need be by force.
In the application of this subsection to Scotland, "justice of the peace" shall be construed as including a sheriff.
(5) An officer seizing any documents or other items in the exercise of his powers under this section shall inform the person from whom they are seized.
(6) An officer entering any premises by virtue of this section may take with him such other persons and such equipment as may appear to him necessary; and on leaving any premises which he has entered by virtue or a warrant under subsection (4) above he shall, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured against trespassers as he found them.
(7) Section 29 of the Trade Descriptions Act 168 (penalty for obstruction of authorised officers) shall apply as respect the obstruction of an officer acting in pursuance of this section as it applies as respects the obstruction of an officer acting in pursuance of that Act but with the substitution in subsection (1)—

(a) of a reference to this section for the reference to section 28 of that Act; and

(b) of a reference to his functions under this section for the reference to his functions under that Act.

(8) Nothing in this section shall be taken to compel the production by a solicitor of a document or other item containing a privileged communication made by or to him in that capacity or to authorise the taking of possession of any such item which is in his possession.
(9) Nothing in this section shall be taken as authorising a local weights and measures authority in Scotland to institute proceedings for an offence.").
After Clause 183, insert the following new clause:
("Identification of bodies granting or providing courses for recognised awards.
.—(1) For the purposes of sections (Unrecognised degrees)and (Unrecognised degrees: enforcement) of this Act, any body for the time being designated by order made by the Secretary of State as appearing to him to be a recognised body shall be conclusively presumed to be such a body.
(2) The Secretary of State shall compile, maintain and publish by order a list including the name of every body which appears to him to fall for the time being within subsection (3) below.
(3) A body falls within this subsection if it is not a recognised body and either—
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(a) provides any course which is in preparation for a degree to be granted by a recognised body and is approved by or on behalf of the recognised body; or

(b) is a constituent college, school or hall or other institution of a university which is a recognised body.

(4) In this section "recognised body" means a body falling within section (Unrecognised degrees) (2)(a) or (b) of this Act.").
After Clause 183, insert the following new clause:
("Unrecognised degrees: Northern Ireland and Channel Islands. 1974 c. 28.
.—(1) An Order in Council under paragraph 1(1)(b) of Schedule I to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it is only made for purposes corresponding to the purposes of sections (Unrecognised degrees), (Unrecognised degrees: enforcement) and (Identification of bodies granting or providing courses for recognised awards) of this Act—

(a) shall not be subject to sub-paragraphs (4) and (5) of paragraph 1 of that Schedule; but

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(2) Her Majesty may by Order in Council direct that those sections shall extend to any of the Channel Islands with such adaptations and modifications (if any) as may be specified in the Order.").
On Question, amendments agreed to.
Clause 184 agreed to.
Baroness Hooper Baroness Hooper moved Amendment No. 280EA:
After Clause 184, insert the following new clause:
("Extension of functions of Audit Commission.
.—(1) The Audit Commission for Local Authorities in England and Wales (the Commission) may, at the request of the appropriate body, promote or undertake studies desiened to improve economy, efficiency and effectiveness in the management or operations of the Polytechnics and Colleges Funding Council, a higher education corporation or the governing body of a grant-maintained school.
(2) For the purposes of subsection (1) above "the appropriate body" is—

(a) with respect to studies relating to the Polytechnics and Colleges Funding Council, the Council;

(b) with respect to studies relating to a higher education corporation, that Council or the corporation; and

(c) with respect to studies relating to the governing body of a grant-maintained school, the governing body.

(3) The Commission may, at that Council's request, give the Council advice in connection with the discharge of the Council's functions under paragraph 18(2)(h) of Schedule 5 to this Act.
(4) The Commission may, at the request of a higher education corporation or the governing body of a grant-maintained school—

(a) advise them in connection with the appointment of persons to audit their accounts; and

(b) arrange for their accounts for any financial year to be audited by such of the Commission's officers as the corporation or governing body may appoint.

(5) References in subsection (4) above to the accounts of a higher education corporation include references to any statement of accounts prepared by the corporation under paragraph 18 of Schedule 5 to this Act.
(6) The Commission shall charge the body at whose request any services are provided under this section such fees as will cover the full cost of providing them.").
The noble Baroness said: This amendment extends the powers of the Audit Commission so that it may, if requested to do so, provide services to the PCFC, the new higher education corporations and grant-maintained schools. The powers were foreshadowed in the DES consultative document on Accounting and Auditing in Higher Education. It is eminently sensible to make the commission's expertise available in this way and I commend the amendment to the Committee. I beg to move.
Lord Peston: We welcome this amendment. I should like to ask two questions, simply to see how the Government's mind is working. It is the converse of an earlier amendment. Why is the UFC not included under this heading? Why should it not be able to call on the Audit Commission, since on both sides of the House we strongly approve of the Audit Commission and its work? Similarly, while I notice that grant-maintained schools come under this heading, why have CTCs been left out? I do not want to detract from the amendment, of which we strongly approve, but I am interested to know the reason for those two limitations.
Baroness Hooper: Perhaps the noble Lord will accept that I will write to him to clarify this
matter.
On Question, amendment agreed to.
Clause 185 [Avoidance of certain contractual terms]:
The Minister of State for Defence Procurement (Lord Trefgarne)The Minister of State for Defence Procurement (Lord Trefgarne) moved Amendment No. 280EB:
Page 165, line 45, at end insert ("in their capacity as such an authority").
The noble Lord said: On behalf of my noble friend, I rise to move Amendment No. 280EB and to speak at the same time to Amendments Nos. 280EC and 280FB. These are essentially tidying up or clarificatory amendments. If your Lordships would like a five minute blast, I shall by happy to give it. In the meantime, I beg to move.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 280EC:
Page 166, line 2, leave out from ("them") to ("not") in line 3.
On Question, amendment agreed to.
[Amendment No. 280F not moved.]
Lord Trefgarne Lord Trefgarne moved Amendment No. 280FB:
Page 166, line 18, leave out ("a university") and insert ("an institution falling within section 173(3) of this Act").
The noble Lord said: I beg to move.
Lord Peston: Am I right in understanding that this is a technical amendment, because if it is not I do not understand it?
Lord Trefgarne: The noble Lord is quite right.
On Question, amendment agreed to.
Clause 185, as amended, agreed to.
Clause 186 [Application of employment law during financial delegation]:
[Amendment No. 280FC not moved.]
11.45 p.m.
Baroness David Baroness David had given notice of her intention to move Amendment No. 280FCA:
Page 166, line 25, after ("order") insert ("after consultation with the local authority associations, any local authority directly concerned and any organisations of employers affected").
The noble Baroness said: I should just like to make a few comments on the clause. We feel that it is an extremely important clause and we have very serious concerns about it. I do not intend to move the
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amendments in my name but I should like to say that we shall return to this matter in much greater detail at the next stage of the Bill.
We have three concerns: first, the extent of the powers given to the Secretary of State; secondly, that the order made under this clause will not be subject to further positive parliamentary scrutiny; and thirdly, that the potential for abuse is considerable. Priority must be given to protecting the rights of individual employees, and the powers given under the clause could be used to deprive them of the rights given to them by Parliament in legislation.
Government Ministers have declared that that is not the intention, but Parliament has a duty to protect individuals from government abusing delegated power, and the statutory rights of individuals should be protected by clear reference in the clause. Therefore, I shall not move the amendments in my name but I give notice that I shall be returning to this matter at the next stage of the Bill and hope to spend a considerable time on this clause.
[Amendment No. 280FCA not moved.]
[Amendment No. 280FCB not moved.]
The Chairman of Committees: If Amendment No. 280FD is agreed to I cannot call Amendment No. 280FDA.
[Amendments Nos. 280FD to 280FDC not moved.]
[Amendment No. 280FE had been withdrawn from the Marshalled List.]
[Amendment No. 280FF not moved.]
Lord Dormand of Easington Lord Dormand of Easington moved Amendment No. 280FG.
Page 166, line 33, at end insert ("Provided that the rights of employees are not thereby diminished or otherwise adversely affected.").
The noble Lord said: I apologise because of the late hour for making a slightly longer speech than those which have been made in the last few minutes, but Clause 186 represents to employees in the education service perhaps the most disturbing single feature of the Bill. It appears to be something of a drafter's afterthought inserted in as Clause 139 of the Bill as originally published upon the late realisation that the Bill's proposals for the local financial management of schools and higher and further education institutions could have serious consequences for employment law.
The clause was later drawn in the widest possible terms to permit the Secretary of State for Education and Science to modify any enactment relating to employment as he considers necessary or expedient—and I have to say I am afraid of the word "expedient"—to give effect to delegated financial management. The scope of the legislation—and I am sure Members of the Committee already appreciate this—that falls under this clause is vast. It includes the Employment Protection Act 1975, the Employment Protection (Consolidation) Act 1978, the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Health and Safety at Work Act 1974. I am sure that that recital gives an indication of the widespread probable effect of the clause—and more, as my noble friend says.
All these measure and their precursors were the subject of protracted public and parliamentary debate, consultation and indeed controversy. They have generated a vast quantity of subsiduary legislation. If enacted, Clause 186 would enable the Secretary of State—he and his predecessors were not responsible for the legislation in question—to modify the many and varied rights of employees in schools and higher education institutions, subject to delegated financial management whenever and however he may think fit, checked only by negative resolution of both Houses. By any standards, that is appallingly bad law. That a government should contemplate giving such vast power to a Secretary of State is an insult to the authority of Parliament. The need for such a clause is doubtful.
The scheme of delegated financial management contemplated by the Bill gives powers to governing bodies of schools covered by delegated financial management that would normally be regarded as the powers of employers. By Schedule 2 in particular, governing bodies would have effective powers of hiring and firing. I take it that that is not in dispute. However, the employers of teaching and other staff in the affected institutions would remain the local education authorities except in the voluntary aided schools where presently teachers are employed by the governing bodies, subject to restraining powers vested in LEAs under Section 24 of the Education Act 1944.
Employment protection rights would remain enforceable against these employers. This being so, assuming that LEAs would retain powers to control governing bodies at least to require that the governing bodies act within the law in relation to LEA employees, it may be that Clause 186 is simply unnecessary. However, it may be necessary for clarification purposes to ensure that governing bodies clearly have the same duties as employers.
As yet, it seems that no one has thought through in detail how the employment legislation might need modification even for the benefit of employees. The Minister of State has given bland assurances of the Government's good intent, and positive intentions are expressed in the Government's own brief briefing on the clause for Members of the Committee. I have some quotations from the Minister of State, but in view of the lateness of the hour perhaps the Committee will accept the statements made in another place. Those serve to show only how ill-considered the measure is.
The Government are not unsympathetic to demands for relaxation of the employment protection laws in favour of employers, and have relaxed them for small businesses. The clause would enable the Secretary of State of modify employment protections laws for school and college staff in ways as yet unforeseen if some rule were found to be in his view an obstacle to the kind of delegated financial management that he wants to see in operation. The clause will affect most school and college staffs, and will probably affect all in due course.
Delegated financial management will apply to all secondary schools and to primary schools with more than 200 pupils in the first phase. However, the Secretary of State will have power by order to extend this application to all schools. As the Committee will
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know, this is contained in Clause 33(1). Strenuous efforts were made in another place to modify the Bill on this point. We on this side of the Committee seek amendment of Clause 186 which does not attack the structure of DFM but nonetheless seeks to make Clause 186 acceptable in isolation. The amendment would limit the effect of the clause to that which the Government claim to be its true intention. The debate on the amendment should therefore at least be a test of the Government's protestations about the innocence of their proposal. On that issue we look forward to the reply.
Clause 186 is disturbing not only for school and college staffs but for the law-making process. If enacted, it could operate as a precedent for moving law-making power even further in favour of government and away from Parliament. The Government will no doubt deny that, but we on this side of the Committee feel that the implication is quite clear.
There have been suggestions that the clause is necessary to overcome the alleged difficulty of getting rid of incompetent teachers. That this difficulty exists is a myth. Teachers have no more statutory rights than other employees, and every LEA has negotiated dismissal procedures. Any complications which exist in these procedures derive from the fact that at least since 1944 governing bodies have had a role to play and an influence to bring to bear upon LEAs which employ teachers.
The Government intend to enhance their role, not diminish it, and therefore the Government's proposals add to the complications. Perhaps I may say that as an education officer I had considerable experience in dealing with governing bodies. Some of the proposals in the clause and in other parts of the Bill highlight the difficulties that may arise. Clause 186 has nothing to do with this. Schedule 2 to the Bill deals with the dismissal powers of governors in DFM schools. Clause 186 cannot be justified on this ground.
The amendment is not so much concerned with getting rid of teachers as with appointing them. We have all had letters on this aspect of the Bill. I should like to quote from one letter by way of illustration. It came from a head teacher in Essex. She said:
I would ask you to support the deletion of Clause 186. We have a very serious problem over teacher recruitment and retention and we will need even more teachers to fulfil the needs of the national curriculum in the Bill. If this clause is passed, I am sure fewer people would even consider teaching as a career because this will be a sword held over their heads".
There speaks the practical voice straight from the school—no academic or theoretical argument there. I wonder to whom the Secretary of State was listening when he drafted the clause.
Ministers have given repeated assurances in another place that employees' rights will be safeguarded. At the centre of this debate is the fact that these issues are far too important to be dependent on verbal assurances given during debate. Naturally we welcome the assurances, but the very wording of Clause 186 is such as to create doubt not just about those promises but even whether genuine assurances could be carried out in certain circumstances. Ministers' intentions may well be what they have said, but that is not what the clause says, or, I venture to suggest, how a court might interpret it.
The widespread concern among all kinds of employees in the education service must be allayed. I believe that the straightforward and unequivocal nature of the amendment meets the real assurances being looked for by so many people. I commend the amendment to the Committee. I beg to move.
12 midnight
Lord Trefgarne: I want to make it quite clear that this clause is not about diminishing employees' rights, or adversely affecting employees. Rather, the clause is about ensuring that power and responsibility for the governing body go hand in hand. Where the governing body takes a decision, it, rather than the local education authority, must be answerable for it. Employees must be able to claim and enforce their rights against the governors. The amendment is therefore unnecessary, as the clause is not about diminishing employees' rights.
The addition of such wording to the Bill would also be unacceptable as it could well lead to disputes about what constitutes diminution in employees' rights and when these rights are adversely affected. For example, some people might be tempted to claim that simply having decisions taken at school level rather than LEA level is a diminution of rights. We do not accept that. We make no secret of the fact that many decisions will be taken at school or college level under financial delegation, and that employment rights should therefore be seen to operate at the school level.
The power for a Secretary of State to amend employment legislation by order is hardly unprecedented. Section 149 of the 1978 Employment Protection (Consolidation) Act, passed by a Labour Government, gives the Secretary of State wide powers to modify and vary the operation of numerous parts of that Act by order. The section contains no provision that such modifications must not diminish employees' rights and no provision for formal consultation. We are therefore already giving assurances on the Bill which go well beyond those in the 1978 Act passed by the Labour Government at that time.
I hope that in the light of those considerations, the noble Lord will not wish to press his amendment.
Baroness Seear: The Minister has not addressed a central point of great importance. The contract of employment is with the local authority. Therefore, when there is any grievance about the employment conditions of the employee, the action must be against the local authority because that is the body which makes the contract of employment.
The matter was most usefully raised by the noble Lord, Lord Irvine, in connection with the application of the equal-value clauses over equal pay. I know that it is not the right moment to raise the matter but it is of central importance. The Government must clear it up.
I do not know whether the Minister realises that the answers we received the other night showed that the Government had simply not thought about it. Therefore, will the Minister say that he will take it back and, in the light of what was said by the noble Lord, Lord Irvine and, indeed, what has been said tonight, at least look at the conflict here between the body with which the employee has the contract of
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employment and which therefore is legally responsibile for whatever happens—there is no way that that situation can be altered—and the fact that he is giving the right to make the decisions in employment to the governing body with whom the contract is not made?
Lord Trefgarne: As has already been said, this matter was discussed at great length the other night—
Baroness Seear: It was not discussed at great length. We received no answer whatsoever to the question about how the equal-value clauses were going to be applied. That is absolutely essential to the whole issue. Surely it is in the interests of getting the legislation straight. It is not a party point. The issue has not been thought through and it is a matter of some considerable importance.
Although this is not the right moment to discuss the matter further, I urge the noble Lord to take it back and, in the light of the discussions which took place the other night, bring forward an answer on Report.
Lord Trefgarne: I can only repeat that the matter was discussed the other night. Of course I recognise that the noble Baroness did not receive an answer which she found to be satisfactory. I am sorry about that. Many staffing decisions will be taken by governing bodies of schools and colleges, with financial delegation, even though—as the noble Baroness said—the LEA will remain the employer of staff, other than in aided schools. It is right therefore that the governors should be accountable for the management decisions they take. Indeed, that is what Clause 186 is about. We did have representation from LEA interests concerned that LEAs might be held to account for an unfair dismissal, for example, when they had had no control over whether the person was dismissed.
However, such interested bodies were reassured when they were told that the governing body will have to respond for its actions before an industrial tribunal because of the operation of Clause 186. I hope that the noble Baroness will understand that there is a difference in perception of this matter here. I fear that it is one that will be most difficult to resolve at this late hour.
Earl Russell: I must remind the noble Lord, Lord Trefgarne, that it is not easy to subdue criticism from these Benches by saying that the Labour Government did it before. I listened with great interest—
Lord Trefgarne: I hope that the noble Earl will not mind my reminding him that the Lib-Lab pact was in force at that time.
Baroness Seear: What has that to do with it?
Earl Russell: One does not necessarily involve every party to a somewhat informal pact in every act that was done in every detail on every platform during its operation.
I also should like to ask the noble Lord, Lord Trefgarne, about the clause. I listened with great interest to what he had to say. It sounded wholly reasonable. With respect it is not what the clause

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says. The noble Lord said that the clause was concerned with who was to be responsible. The clause says a great deal more than that. It states:
"The Secretary of State may by order make such modifications in any enactment … conferring rights on employers … as he considers necessary or expedient".
The noble Lord, Lord Trefgarne, said that it is not intended to diminish the rights of employees. The amendment says the same. Why not agree to it?
Lord Trefgarne: I can only add that with regard to the order-making power an assurance has been given that on Report we shall bring forward an amendment to require that there be statutory consultation before any order is made. That consultation will involve local authority employers, trade unions and the bodies representing the interests of the governors of voluntary schools.
Lord McCarthy: I hope that the noble Lord will not take it wrongly if I say that we have heard him in a familiar strain this evening. It is a familiar strain which has not been so familiar this evening. It is a strain which says that that which is irrestible on logical grounds can always be opposed on the grounds that it is unnecessary.
The noble Lord says that the amendment is unnecessary because Clause 186 is not about reducing the rights of employees. We say again what we have said to him on so many occasions. If the clause is not about reducing the rights of employees and if so many people, including representatives of the National Union of Teachers and other teachers' unions, fear that it may be about reducing the rights of employees or that it may be used subsequently to reduce the rights of employees, for goodness sake what is wrong with saying so, as that is the Government's intention?
What is wrong with including at the end of the clause the modest declaratory amendment which my noble friend Lord Dormand wants? The need for the clause has never been made clear by the Government here or in the other place. They have retreated into ambiguity. The fact is that Schedule 2 specifies that the governors have the power to hire and fire. Therefore, the implication of the Bill is that many of the LEA's day-to-day responsibilities will in effect be the responsibilities of the governors.
The Bill makes it clear that the LEAs remain the employers. They are ultimately responsible if people are unfairly dismissed; they are ultimately responsible if health and safety regulations are not observed. The ways in which the Government require modifications to the existing employment Acts are never made clear to us. They are not specified on the face of the Bill.
All right, we do not complain about that if the Government are prepared to say that they will add to the Bill a simple, modest statement that these unjustified and vague commitments are not something to worry about, because they are not intended to undermine the existing rights of employees. For the life of me, I cannot see why the noble Lord resists this at this time of night.
Lord Trefgarne: I am afraid that the hour of the night does not hide the fact that to add such a
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declaration would not be a very good idea. It would open up a whole field of useless and undesirable conflict on, for example, what constituted a diminution in employees' rights or when such rights had been adversely affected. I do not believe that that is what the noble Lord has in mind and I am afraid that I cannot agree to the amendment.
Lord Dormand of Easington: The hour of the night affects this because we do not want to press the amendment to a division. But I am sure that the noble Lord has seen the depth and intensity of the feeling on these Benches about the situation which might arise through this clause. I have to say that the reply was extremely unsatisfactory. The Minister skirted round the central point of dispute, he did not deal with it in any shape or form. He is repeating the kind of—I was going to say "bland assurances" but I shall not say "bland"—assurances which have been given in other parts of this Bill. I cannot resist telling the Committee about one of the statements of the Minister of State in another place. I said that I would omit it, but in view of what has been said I found this quite hilarious, though I know that the noble Lords opposite will not find it so. When a similar amendment was being debated in another place, Mrs Rumbold said this:
"If the amendment were accepted, Sections 23 and 24 of the Employment Protection (Consolidation) Act 1978 could not be amended and employees could not have protection-"
I emphasise this-
"against governors trying to deter them from being in a trade union".
I do not want to go into the four or five anti-trade union Acts, but if that is the kind of thing that is being said, frankly, though I hesitate to say it, we cannot trust some of the things being said. We feel very strongly about this and I wonder whether, even now, we could have an assurance from the Minister that he will have another look at the situation.
Lord Trefgarne: I think I have gone as far as I can with the assurances that I have offered. For example, I have repeated the assurance about the statutory basis upon which we propose to make the consultation and that we shall ensure that it is properly and sensibly conducted under the auspices of the Bill, with the local authority associations, organisations representing teaching and non- teaching staff and bodies representing the interests of governors of voluntary schools. I hope that the noble Lord will accept the assurance that I give that there is no secret purpose behind this clause in any way adversely to affect the rights of employees. On the contrary, we want to see those rights properly secured, and this clause is intended to achieve that.
Lord Peston: Perhaps I may make one point. I think there is a difference between whether there is a covert agenda here and the technical point raised by my noble friend Lord Irvine the other night and by the noble Baroness, Lady Seear, now. It is a point which is worthy of reasoned argument. We shall not go into it now because I think we are all very tired, but I must reiterate the point raised by my noble friend Lady David. We shall discuss the whole of that clause in some detail on Report, but we shall not pursue it now. I think the noble Lord should not be under any illusion: we think there are serious technical sides to this as well as other matters.
Lord Dormand of Easington: My noble friend has said something similar to what I intended to say. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 280FH to 280FK not moved.]
Clause 186 agreed to.
Clauses 187 and 188 agreed to.
12.15 a.m.
Baroness Young Baroness Young moved Amendment No. 280G:
After Clause 188, insert the following new clause:
("Assistance to education of children of British nationality residing for the time being outside the United Kingdom in another member state of the European Community.
.—(1) For the purpose of facilitating the free movement of families to take advantage of employment opportunities within other member states of the European Community, the Secretary of State shall take action as specified in subsection (2) to (5) below to assist in maintaining and improving educational standards at British schools situated within other member states and to facilitate access to such schools by the children of British expatriates for the time being residing and working in those states.
(2) The Secretary of State shall establish a category of school situated in another member state of the European Community having such characteristics as are specified in subsection (3) below and in regulations which he may make.
(3)The Characteristics mentioned above are that the school—

(a) provides education for pupils who have attained the age of five but not the age of nineteen years and are of British nationality but are residing in another member state of the European Community; and

(b) has a curriculum approved by the Secretary of State and which is broadly similar to the curriculum the pupil would follow if receiving an education in England and Wales.

(4) For the purpose of maintaining and improving the standard of education at such a school, the Secretary of State shall—

(a) make arrangements for the inspection of such a school at appropriate intervals by H.M. Inspectors of Schools, with the school being responsible for the Inspectors' travel and local expenses;

(b) provide on a regular basis to such a school information on educational development in England and Wales and also facilities such as in-service training for teachers as he may consider necessary or desirable to enable the school to continue to offer an education broadly comparable to that available in England and Wales; and

(c) take such measures as he deems appropriate to facilitate the recruitment of British teachers by these schools and in due course their re-employment in the United Kingdom.

(5)The Secretary of State shall make an order to establish a Grant Scheme for the purpose of enabling children of parents of British nationality for the time being residing and working in another member state of the European Community, who might otherwise not be able to do so, to benefit from an education at a school in the category described in subsection (2) above and so facilitate their return to a school or institute of higher education in the United Kingdom.").
The noble Baroness said: At this late hour I shall speak briefly to this amendment but it is one that I regard as of very considerable importance to us as a country. It is important now and it will be even more important after 1992. The problem with which the amendment tries to deal is that of the education of children of British families working in the European Community who want for their children what might be generally described as a British education. I do not think I need to explain that to the Committee after all the detailed discussion that we have had. I hope that all Members of the Committee will take an interest in this important matter, and I would draw attention to the very valuable report that has been produced on this subject by Sir Mervyn Brown, a former member of the Foreign and Commonwealth Office, which has
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very wide terms of reference and sets out in considerable detail exactly what the problem is.
My amendment is concerned with British schools in Belgium, France, the Federal Republic of Germany, Greece, the Netherlands and Italy. There are other British schools both in Sweden and Switzerland but I do not refer to them because they are not within the European Community. Very broadly speaking they educate about 8,000 children of whom about half are British. They are all independent schools supported by fee paying parents. They are inspected by Her Majesty's Inspectorate and they themselves pay for this service.
In an attempt to find out what the expatriate community working in the European Community does for the education of its children the report refers to a survey carried out of some 2,000 British people working in the Community. It showed that just under 50 per cent. send their children to a local British school, about 11 per cent. send them to a boarding school in the United Kingdom, about 21 per cent. send their children to European international schools and about 21 per cent. to local national schools in the country in which they are employed, although there is some reason to think that the latter figure is considerably higher than that. Interestingly, there was a widespread rejection of boarding schools as a solution to the education of the children, particularly among younger parents. This was shown up in a majority of approximately 20:1 in the question that was asked.
British people working in the Community want a British type education because they want their children to enjoy the continuity of a British education. They recognise particularly of course in the teenage years—13, 14 and 15—the importance of qualifications such as GCSE and A-level examinations for university entrance and for other forms of higher education. The problem arises because, although some employers will pay for the education of the children in these schools and some people will be able to afford school fees, there are quite a number of families who are not able to afford the fees at all and the fees represent quite a considerable sum of money.
If we look in the European Community to see what other countries are doing we discover that France, for example, spends something like £130 million annually on the education of French children abroad, the Federal Republic of Germany some £90 million and Italy some £12 to £13 million. The effect of this money is to provide their children living abroad with an education similar to that which they would have enjoyed had the families been working in their country of origin. Thus a French education for a French child in London costs abot £1,000 a year and about £800 in Brussels. A British type education for a British family living abroad costs some £4,000 to £5,000 a year in either Brussels or Paris.
We have all heard a great deal about 1992. We have read of the great campaign that has been conducted by my noble friend Lord Young of Graffham. I think that everyone agrees the importance of that and what it will mean. I hear myself speaking in the Chamber about the Single European Act which I took through when I was a Minister in the Foreign and Commonwealth Office. What we are doing by not helping our own children abroad is handicapping our

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people in Europe. Any businessman going abroad will ask as one of his first questions, "What about the education of my children?". The education of some children will be paid for. Some parents will be able to afford such an education for their children; others will be left out.
The object of the amendment is to draw to the attention of the Minister and her colleagues, and also rather more widely to my colleagues in the Department of Trade and Industry, that there is a real problem. The amendment sets that problem out. It also offers a solution. That may not be the best solution. However, a solution is required. I have set the amendment out as a first draft. The problem will not go away. It will only get worse. I have put the amendment down because I believe this to be an important matter. It needs to be addressed by the Government as a matter of urgency. I beg to move.
Baroness David: My name also appears in connection with the amendment and I should like to add my support. There is a very real problem and I hope that if the particular solution is not acceptable to the Government they will come up with another solution.
Lord Reay: I hope also that the Government will consider seriously the point which my noble friend Lady Young has made. I can see that the Government may not wish this new subject to be brought into the Bill at this time. However, my noble friend has put her finger on a wrongfully neglected field and I hope that they will reflect on the matter and come up with proposals to remedy the defect.
As my noble friend pointed out, the Government are enthusiastically encouraging British industry to venture out into the Community and to treat the rest of the Community as a single market. Surely the Government should try to make it less difficult and less expensive for those who heed their call by going to live in the Community or sending others to do so to provide a British education for their children. Perhaps a fund should be established to assist the financing of education for those who are eligible at the existing independent schools. Perhaps there is another way. But the Government should concern themselves with the problem.
Other major countries pay attention and devote considerable resources to educating the children of their nationals abroad. We concern ourselves with that problem if our nationals are public servants stationed overseas in the diplomatic service or in the armed services. However, we do nothing for private citizens. At a time when the Government have rightly sought to underline the importance of the private sector in our national life, surely they would find it quite philosophically comfortable to try to do something to satisfy the needs of our businessmen and their employees in the field. I hope that the Minister will be able to promise some consideration for the subject in the future.
Lord Tordoff: I speak, first, as someone who has spent many years working for a multinational corporation that is 60 per cent. Dutch and, secondly, as a member of a party which has a total commitment to the European ideal. Therefore, although there are no names on the amendment from these Benches, we thoroughly support it.
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Another aspect which is singularly lacking in the Bill is any recognition of the existence of the international baccalaureate, which I believe is something we need to take much greater notice of. The amendment so ably moved by the noble Baroness has our full support.
The Earl of Bessborough: At this late hour I should just like to say that I support wholly what my noble friend Lady Young has said and also what my noble friend Lord Reay has said. I do not want to repeat what they have said but, having been connected with many European institutions within the European Community, I know many of these families and I hope that the Government will take the amendment very seriously. I could almost have thought that the Government might have drafted it.
Baroness Hooper: I am grateful to my noble friend for the informative way in which she introduced the amendment.
The Government recognise that British-type schools abroad provide a valuable service for British citizens working overseas and other expatriates who wish to keep their families with them and to have their children educated in a way which minimises the difficulty of subsequent transfer to education in Britain itself. In that context, we welcome the efforts of the Council of British Independent Schools in the European Communities (COBISEC) and we shall continue to offer as much encouragement and practical help to these schools as we can.
The proposed new clause invites the Secretary of State to create a new category of independent school abroad. However, unlike the position in regard to independent schools in England, the Secretary of State would not have power to require registration or to secure any necessary improvements in the provision offered. The Secretary of State would therefore be assuming a responsibility without the power to discharge it and a responsibility which would have to extend to all independent schools abroad capable of meeting the criteria set out.
Turning to the detailed proposals set out in paragraph (4) of the proposed new clause, some of those measures are already the subject of informal arrangements agreed between COBISEC and the Department of Education. The proposal as regards HM Inspectors would in effect formalise the existing practice except that a charge is made—and would have to continue to be made—to cover the cost of HMI's time. Similarly, the department already sends copies of circulars and other relevant publications to COBISEC, and intends to continue to do so.
There are a number of points which I might have made. However, I hope that with these few remarks I have indicated the warmth of the Government's regard for British schools in the European Community, our recognition of their value and our willingness to help in practical ways wherever possible. Nevertheless, we remain unconvinced that it would be sensible for the Secretary of State to establish them as a special category of school at this stage. I trust that my noble friend will not feel it necessary to press the amendment.
Baroness Ewart-Biggs: I should like to add a word of support for the amendment of the noble Baroness. I am disappointed that the noble Baroness, Lady

569
Hooper, has not responded more positively to the suggestion. There is no doubt that more families will move into the European Community to work, and more families who are unwilling to part from their children and for whom it is an alien idea to send their children back to boarding school in the United Kingdom. As the noble Baroness, Lady Young, said, if we really want to encourage people to work in the Community, in addition to those glossy brochures there must be a leaflet setting out the educational possibilities.
It is an enormously important and very timely change that the noble Baroness is suggesting. It would be a response to the needs of a growing number of families who find themselves working in the Community. I think that it is very disappointing that the noble Baroness, Lady Hooper, has not made a more positive response.
Baroness Young: I am very grateful indeed for the support I have received from all parts of the Chamber. I am particularly grateful to the noble Baroness, Lady David, and the noble Lord, Lord Tordoff, and to my noble friend Lord Reay, who I think made an extremely important point about the Government supporting the private sector, particularly the smaller business and the self-employed, who will be most affected.
I must say to my noble friend Lady Hooper that I am grateful for the points that she made about the British schools. However, the point which she and her colleagues must take on board is not so much the warmth towards British schools but the help that will be required by British people working in the Community. If we really want to handicap people going to work in Europe we are going the right way about it by not doing anything to help with the education of their children.
I do not intend to press this amendment at this time of the night, nor shall I advance the argument further, though I am somewhat tempted to do so because I know that it has a lot of support. However, I give notice that I shall return to this matter, if not at a later stage in the Bill then at a later stage in this Parliament, because I think that it is far too important a matter just to let drop. I hope that my noble friend will look carefully at what has been said and reflect further on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12.30 a.m.
Baroness David Baroness David moved Amendment No. 280H:
After Clause 188, insert the following new clause:
("Race Relations: (Codes of Practice).
. In Part VII of the Race Relations Act 1976 (Codes of Practice) after section 47 there shall be inserted—
"47A—The Commission may issue codes of practice containing such practical guidance as the Commission think fit for eliminating discrimination in the field of education; and subsections (2) to (11) inclusive of section 47 shall apply with the following modifications:

(i) the obligation to consult under subsection (3) shall be with such organisations, or bodies, as appear to the Commission to be appropriate having regard to the contents of the draft Code;

(ii) for the references to an industrial tribunal in subsection (10) there shall be substituted references to a county court or a sheriff court as appropriate.".").

The noble Baroness said: This is a new clause and its purpose is to amend Section 47 of the Race Relations Act so as to extend the Commission for Racial Equality's code-making powers to the field of education.
Under Section 47 of that Act the commission has the power to issue codes of practice for the elimination of discrimination in the field of employment. So far it has issued one such code, which, after extensive consultation, was presented to Parliament and approved by the Secretary of State in April 1984. As a result of that procedure the employment code represents a greater degree of consensus and carries more weight than ordinary guidance documents.
In its review of the Race Relations Act submitted to the Home Secretary in June 1985 the commission recommended that its code-making powers should be extended to other areas. In the commission's view there is a strong case for extending code-making powers to the field of education. In particular, the results of formal investigations by the commission into allocations, suspensions, English as a second language and medical school admission indicate that racial discrimination exists in several areas of educational provision. That has been confirmed by academic research, and the Swann Report drew specific attention to the possibility of unintentional discrimination in educational practices and procedures. Swann also pointed out that it was the commission's unique duty to use its statutory powers to eliminate such discrimination.
From informal consultations with educationists, including chief officers, governors and head teachers, it is clear to the commission that an education code would be welcomed and in fact is regarded as long overdue. In particular, many LEAs and individual schools and colleges are keen to ensure that education is provided without discrimination and they have expressed to us the need for a document that systematically sets out their responsibilities under the Race Relations Act.
One of the consequences of the Education Reform Bill will be that grant-maintained schools, polytechnics and colleges of education will no longer be bound by the duties laid on LEAs by Section 71 of the Race Relations Act, and the same will be true of city technology colleges. The governing bodies of all those institutions will have new and increased responsibilities for aspects of provision—admissions, suspensions, appointments and special needs—where discrimination may occur. An authoritative statutory code will assist them in discharging those responsibilities without discrimination. The commission regards the extension of code-making powers to education as a way of helping those responsible for education to ensure that provision is within the law.
When code-making powers were debated as new Clause 21 in Standing Committee J on 8th March, the Secretary of State indicated that he had doubts about the need for a statutory code though he might be persuaded if it was confined to eliminating discrimination. Such a code, not touching on controversial issues, might therefore be acceptable to him. The commission would be pleased to have an amendment to this effect and presumably would be prepared to propose a code unless the Government

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would take on the job themselves. As a precedent, the Government have already agreed to an amendment to the Housing Bill to grant the commission code-making powers in the field of housing. So I hope that the Government will look kindly on this amendment. I beg to move.
Baroness Hooper: The Government are sympathetic to the idea of a code, but we believe that it should be non-statutory. This is a sensitive area and the issues raised are best dealt with in non-statutory guidelines. The Commission for Racial Equality already has power, which it has not used, to issue a non-statutory code, and the Government would encourage it now to do so.
The department would be happy to have discussions and to offer guidance to the commission on the contents of a statutory code and it would provide useful advice on what practices could constitute discrimination. We should expect it to carry considerable weight with local education authorities and schools. In the Government's view, it would be preferable to proceed in this way before seeking to legislate.
We would then have an opportunity to assess the need and appropriateness of the statutory code. I can, however, assure the noble Baroness that the government will consider carefully the arguments in favour of the statutory code which have been advanced by her. Meanwhile, I hope that in the light of my remarks she will feel able to withdraw her amendment.
Baroness David: I thank the Minister for that quite positive response, even if it does not go the whole way. In the light of that response and that certain commitment, I beg leave to withdraw the
amendment.
Amendment, by leave, withdrawn.
Clause 189 [Application to Wales]:
[Amendment No. 281 not moved.]
Clauses 189 and 190 agreed to.
Schedule 8 agreed to.
Clause 191 agreed to.
Clause 192 [Orders and regulations]:
[Amendment No. 281ZZA not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 281A:
Page 169, line 44, after ("137") insert ("paragraph 1A of Schedule 3,").
On Question, amendment agreed to.
[Amendment No. 281AA not moved.]
The Earl of Arran The Earl of Arran moved Amendment No. 281AB:
Page 170, line 5, after ("Act") insert ("which amends or repeals any provision of an Act").
The noble Earl said: This amendment would provide that only Acts should be subject to the negative procedure. This is more consistent with existing practice as amendments to charters can be made without any parliamentary procedure. I beg to move.
On Question, amendment agreed to.
Baroness Hooper Baroness Hooper moved Amendment No. 281ZA:
Page 170, line 8 after ("42(7)") insert ("(Unrecognised degrees), (Identification of bodies granting or providing courses for recognised awards)").
On Question, amendment agreed to.
Amendments Nos. 281ZB and 281ZC not moved.]
Clause 192, as amended, agreed to.
Amendments Nos. 281B and 281C not moved.]
Clauses 193 to 195 agreed to.
Clause 196 [Commencement]:
Baroness Hooper Baroness Hooper moved Amendments Nos. 281CA to 281D:
Page 172, line 29, at end insert ("section (Extension of powers as to trusts for religious education);").
Page 172, line 29, at end insert ("section (Schemes under the Endowed Schools Acts);").
Page 172, line 36, at end insert ("section (Unrecognised degrees: Northern Ireland and Channel Islands);").
Page 173, line 1, leave out ("paragraphs 51 and") insert ("paragraph").
On Question, amendments agreed to.
Clause 196, as amended, agreed to.
Clause 197 agreed to.
Schedule 10 [Minor and consequential amendments]:
Baroness Hooper Baroness Hooper moved Amendments Nos. 281DA, 281DB and 281E:
Page 201, line 33, at end insert—
("The Education (Miscellaneous Provisions) Act 1953 (c. 33)
8A. In Section 2(b) of the Education (Miscellaneous Provisions) Act 1953 (power to require local education authority to defray expenses of establishing controlled school limited to cases where accommodation would otherwise have been provided in some other voluntary school), for the words "voluntary school" there shall be substituted the words "school which is or was either—

(i) a voluntary school; or

(ii) a grant-maintained school which was or had been a voluntary school immediately before it became a grant-maintained school".").

Page 201, line 38, leave out paragraph 10 and insert—
("10. A grant-maintained school shall be an exempt charity for the purposes of the Charities Act 1960, and paragraph (e) of Schedule 2 to that Act (institutions connected with institutions which are exempt charities for the purposes of that Act by virtue of the preceding provisions of that Schedule) shall apply in relation to an institution administered by or on behalf of a grant-maintained school as it applies in relation to an institution included in that Schedule above that paragraph.").
Page 202, line 3, at end insert—
("The Tribunals and Inquiries Act 1971 (c. 62)
11A. In paragraph 6 of Schedule Ito the Tribunals and Inquiries Act 1971 (tribunals under direct supervision of the Council on Tribunals), after paragraph (b) there shall be inserted the following paragraph—
"(c) appeal committees constituted for the purposes of section 48(5)(d) of the Education Reform Act 1988.").
On Question, amendments agreed to.
[Amendments Nos. 282 to 284 not moved.]
Baroness Hooper Baroness Hooper moved Amendments Nos. 284A, 284AA, 284AB and 284B:
Page 206, line 27, leave out paragraph 51.
Page 207, line 16, leave out paragraph 57 and insert—
("57.—(1) Subject to sub-paragraph (2) below, a higher education corporation and any successor company to a higher education corporation (within the meaning of section 113(5) of this Act) shall be an exempt charity for the purposes of the Charities Act 1960.
(2) Sub-paragraph (1) above shall only apply in relation to any such successor company at a time when any institution conducted by the company is for the time being designated under section 113 of this Act.
(3) Paragraph (e) of Schedule 2 to that Act (institutions connected with institutions which are exempt charities for the purposes of that Act by virtue of the preceding provisions of that Schedule) shall apply in relation to an institution administered by or on behalf of—

(a) a higher education corporation; or

(b) any such successor company which is for the time being an exempt charity for the purposes of that Act by virtue of sub-paragrapgh (1) above;

as it applies in relation to an institution included in that Schedule above that paragraph.").
Page 212, line 46, leave out from ("is") to end of line 47 and insert ("administered by an education authority").
Page 215, line 45, at end insert—
("94. The following paragraph shall he substituted for paragraph 16 of Part III of Schedule 2 to that Act—
"16.—(1) Pending the coming into force of the articles of government for a new school which will be a county or controlled school—

(a) the dates at which the school terms and holidays are to begin and end shall be determined by the local education authority; and

(b) the times at which the school session or, if there is more than one, each school session is to begin and end on any day shall be determined by the temporary governing body after consultation with the authority.

(2) Pending the coming into force of the articles of government for a new school which will be an aided school—

(a) the dates and times at which the school terms and holidays are to begin and end; and

(b) the times at which the school session or, if there is more than one, each school session is to begin and end on any day;

shall he determined by the temporary governing body." ").

On Question, amendments agreed to.
Schedule 10, as amended, agreed to.
Schedule 11 [Repeals]:
Baroness Blatch Baroness Blatch moved Amendment No. 285:
Page 219, line 19, column 3, at end insert—

("Section 29(2) to (4).").

The noble Baroness said: This is a consequential amendment. On behalf of the right reverend Prelate the Bishop of London, I beg to move.
On Question, amendment agreed to.
Baroness Hooper Baroness Hooper moved Amendments Nos. 285A and 285B:

Page 220, line 27, at end insert—

("1967 c. 3.

The Education Act 1967.

Section 3.").

Page 221, line 1, column 3, at end insert—

("In Schedule 3, paragraph 14.").

On Question, amendments agreed to.
Schedule 11, as amended, agreed to.
Clause 198 [Citation, extent, etc.]:
[Amendment No. 286 not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 286A:
Page 174, line 3, after ("178") insert ("(Unrecognised degrees), (Unrecognised degrees: enforcement), (Identification of bodies granting or providing courses for recognised awards)").
On Question, amendment agreed to.
[Amendment No. 287 not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 288:
Page 174, line 5, leave out ("extends") and insert ("and section (Unrecognised degrees: Northern Ireland and Channel Islands) (1) extend").
On Question, amendment agreed to.
Clause 198, as amended, agreed to.
House resumed: Bill reported with amendments.
House adjourned at nineteen minutes before one o'clock.