§ 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 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 434 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 435 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 436 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 438 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 439 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 440 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.
§ Amendment, by leave, withdrawn.
§ Clause 169 [Education Assets Board]:
§ 4 p.m.
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 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 441 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 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 443 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) 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) moved Amendment No. 274ADB:
Page 190, line 29, leave out ("otherwise").
§ On Question, amendment agreed to.
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 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.
(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 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 445 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 446 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 447 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. 448 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 449 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 450 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 451 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.
452 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 453 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 454 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, 455 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 456 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 457 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 458 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 459 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?
460 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, 126.462
|Division No. 1|
|Adrian, L.||Hereford, Bp.|
|Airedale, L.||Howie of Troon, L.|
|Allen of Abbeydale, L. [Teller.]||Hughess, 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.|
|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.|
|Airey of Abingdon, B.||Hailsham of Saint Marylebone, 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.|
|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 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
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.
463 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.
464 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 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—
§ 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 465 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.
§ 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
We are debating an amendment moved by my noble friend Lord Grimond. May I ask that we continue on that amendment?
§ 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.
467 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 economicallyin 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 469 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 economicallyI 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?
§ 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.471
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 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 472 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. 473 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 474 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 moved Amendment No. 275B:
Page 159, line 17, at end insert ("; and
§ 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 475 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.
§ 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 476 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.]477
§ 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 478 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 479 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 481 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 482 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.
483 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 484 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 485 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 486 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) 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.
§ On Question, amendment agreed to.
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.