HL Deb 18 July 1994 vol 557 cc87-95

7 Clause 21, page 13, line 11, after 'clubs' insert 'should be fair and'.

7A The Lord Beloff to move that this House do disagree with the Commons in their amendment 7

The noble Lord said: My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 7.

I cannot altogether follow my noble friend the Minister in her account of the amendments relating to student unions because having studied the debates and the Committee stage in the other place, it becomes evident that what the amendments did was to illustrate by their inapplicability the original point which I made unsuccessfully to your Lordships: that the whole idea of optional membership of a student union, except in cases where there are many campuses, is not a sensible way of going about providing student services. In the Open University, and so on, there would clearly have to be exceptions

The amendments that we have were, in the end, accepted by the Government in another place, following pressure from a group of Back-Benchers whose hostility to universities in general and student unions in particular has been often referred to. They were led by the honourable Member for Colne Valley whose qualifications to speak on the subject are that he twice failed a preliminary examination at the university he attended, and left without a degree, which does not seem to me to make him a good adviser on matters of university policy. Nevertheless, he and his friends put forward these suggestions in which the one that I am now addressing is included.

The point is that once one makes that distinction between members and non-members, one cannot avoid getting into the kind of problem which the noble Earl, Lord Russell, illustrated and which arises again in the current amendment which relates to the distribution of money between clubs. It is sometimes thought that choice is an essential element of Conservative philosophy. I should like to call your Lordships' attention to the practice at a university (the University of Buckingham) of which the noble Baroness, Lady Thatcher, is chancellor and one of her former Ministers is vice-chancellor. At that university, membership of the union is acquired automatically by a student on admission, and over the years there have never been any protests or wishes to withdraw from it. Therefore the university can provide services for all students without the intolerable complication which a division of the student body is bound to bring about.

It is, after all, a question whether we wish to load the universities—which are already under considerable pressure from central bureaucracy for a number of academic reasons which have been rehearsed in this House—with yet another load of administration, complete with an apparatus for appeals and an ombudsman—and goodness knows what!—to decide whether some student is or is not entitled to this or that other aspect of university provision. Why cannot the universities be allowed to look after the students in the way they find most appropriate? I regard this part of the Bill, and its amendments, as unnecessary now as it was when it was first introduced. One cannot make any sense of it. Therefore I should like to move and press at least one Motion to show the general mess which the Government have got into by pursuing this policy.

Moved, That the House do disagree with the Commons in their Amendment No. 7.—(Lord Beloff.)

Lord Judd

My Lords, I applaud the noble Lord, Lord Beloff, for having picked an issue upon which to make the point. Because if one looks at Clause 21 on page 12, one sees that it states clearly: The governing body of every establishment to which this Part applies shall take such steps as are reasonably practicable to secure that any students' union for students at the establishment operates in a fair and democratic manner". The point is made: the institution's responsibility is laid down in the Bill. It is gratuitously insulting to re-emphasise the point in paragraph after paragraph. That seems to me at least to smack of an attitude of paranoia on the part of the Government. It is an ungenerous attitude that unless on every conceivable occasion the word "fair" is deployed people will act unfairly.

I expect that in many Ministers' establishments an item of furnishing is the mirror, because this preoccupation with fairness seems to have some interesting psychological explanations. We are faced with a Government who are not marked for their commitment to fairness in general matters of public policy. For them to be insisting in every element of a Bill of this kind that the point which is made adequately in Clause 21 is repeated is not only superfluous but humiliating for all concerned.

Lord Addington

My Lords, I support the noble Lord, Lord Beloff. It is worth while remembering that we have arrived at this position after a series of incidents which led us all to ask, "Were we pushed or did we jump?". When the National Union of Students knew that it was going to be reformed it came up with its own reforms. It does not matter whether it was pushed or whether it jumped; it has got to where it is now. Most people applauded its ideas, which were roughly compatible with what was in the Bill when it left this House.

Thanks to a great extent to the amount of dissatisfaction on the Opposition and Government Benches with the initial proposals, the Government accepted that the Bill in its current form was totally unworkable. We now have the position in which a club dealing with funds "should be fair". How on earth can one decide that? Is it to be by the number of people, the activity, a cross-section graph showing the number of people and the activity, minibuses to take out members of the hill climbing club, the number of tables provided to the board games society, or what? How on earth can one possibly impose the provision? As regards political societies, surely one must decide about the number of people, what they want to do and whether they are supporting someone or protesting. The provision is ridiculous and does not mean very much. Indeed, I suggest that many amendments on the Marshalled List are designed to ensure that people in the printing departments of universities will have a great deal of work to do because they will have to print a series of lists and make them readily available to everyone.

I totally support the noble Lord, Lord Beloff. I believe that Amendment No. 7 sums up the petty nature of certain Members of another place over the changes that we sensibly made to this Bill.

6.45 p.m.

Lord Skidelsky

My Lords, I too support my noble friend Lord Beloff. I am not against opting out on principle and I am in favour of choice. However, I am against opting out in this case and, the Minister will remember, I have always been because the provision is unworkable in the circumstances of campuses. The Commons amendments have only exposed the unworkability of the original principle. Except in a narrow political sense, I have never understood the purpose of allowing students to opt out of student unions but to use the facilities which those unions exist to provide. That is completely illogical.

The noble Earl, Lord Russell, asked what are the consequences of choosing to opt out of membership. My noble friend was able to state only one consequence; that students who have opted out of membership will not be allowed to stand for election or to take part in the political affairs of the union. However, as regards every other issue, she said that it would be a matter for the campuses to decide what was fair or unfair.

That is a recipe for endless campus litigation. It will not be big litigation, but whenever a student who has opted out believes that he is being unfairly deprived of some facility he will be able to make an issue of it, and universities will seriously be disrupted by that.

I do not know how to deal with the problem because we agreed to the opt-out when the Bill was in this House. However, I believe that the Government should reconsider the whole matter because they will not achieve their purpose and they are letting us in for something which they do not expect but which is foreseeable in the light of this proposed legislation. Therefore, if supporting my noble friend's amendment and pressing it to a vote will give the Government a chance to reconsider the matter, I shall support that course of action.

Earl Russell

My Lords, Part II of this Bill is now a little like a Christmas tree. It left this House fairly well decorated but, as often happens when one has finished decorating a Christmas tree, younger children want to hang odd things on the lower branches. Something similar has happened to Part II.

The best way I can illustrate why I support the noble Lord, Lord Beloff, in Amendment No. 7A is to cite the verse in the Koran which states that a man may have four wives provided he can treat them fairly. There is a school of thought among modern liberal Moslem theologians which holds that that is so difficult that it amounts to a prohibition. If one is to be fair one must have a criterion of fairness. When, in the classic phrase, one is comparing apples with oranges it is hard to know what exactly is fair. When looking at this requirement, my own college president asked, "How am I to be fair between the rugger club and the Gilbert and Sullivan Society?". I cannot answer that because I have no idea how one draws up objective criteria to be fair to both.

Perhaps one can compare the University of Wales at Aberystwyth mountaineering club—in which I should declare an interest as my son is a member—with the history society at the same university. The mountaineering club may claim that it is entitled to more money because it has more members. The history society may claim more money because it brings in visiting speakers from far away and therefore needs to pay expenses. It can argue that it deserves more money because its activities are inherently more expensive. If such disputes are to be justiciable in the courts, we shall take up a great deal of court time and it is not as though we have a surplus capacity in the courts.

I do not see how we can protect ourselves against the prospect of vexatious litigation. Everybody would like to be fair and most of us do our best to be fair. Most of us know that with the best will in the world we often fail. If we are to be taken to court every time we try to be fair and fail, we really shall be in a mess.

Lord Lester of Herne Hill

My Lords, I wish to add a few comments in support of what was has been said, in particular about the litigation that the provision will engender. Clause 21(2) imposes a number of onerous obligations on governing bodies as particular examples of what is set out in Clause 21(1). That provision obliges governing bodies to secure that student unions operate: in a fair and democratic manner". Those are the overriding words; the need for fairness is set out in Clause 21(1).

It is now proposed that one should add the words "should be fair and" to Clause 21(2) (i). As a consequence, Parliament will either be including words that are entirely otiose and unnecessary because they are already covered by Clause 21(1), or—and, I suggest, more worryingly—a very important ambiguity will be written into the statute book; namely, does the word "fair" in paragraph (i) mean procedural fairness or substantive fairness?

If the word means procedural fairness, then it is perfectly possible that the courts would find that a justiciable question; that is, the kind of question that courts are capable of answering. But if it means substantive fairness —in other words, that the procedure for allocating resources must ensure that such allocation is itself fair and that the procedure involved achieves that aim—that is really not the kind of question which our independent courts would find it proper to answer.

Speaking as someone who earns his living relying upon ambiguities in statutes and watching the endless delays in applications for judicial reviews in respect of which our courts are now completely clogged, I strongly deprecate the inclusion of such language which would create the possibility that applicants could contend that the substance of the allocation of resources was unfair and that the courts were somehow to second-guess the matter in deciding applications for judicial review. It would be a complete disaster. It seems to me to follow from the language that such an ambiguity would have to be resolved by the courts in the way that I suggested.

Baroness White

My Lords, those of us who have had experience, as I have, of student unions will very much deprecate the inclusion in this version of the Bill of provisions which have rightly been described as impractical. When the Bill left this House it had been considerably improved. The addition now of the words "should be fair", will really just add to the complexity of how one intelligently handles the affairs of one's students. I do not wish to take any more time on the issue because there are other matters to be considered tonight. However, I was shocked to find that the other place had, presumably, been encouraged by the Government to include such provisions in the Bill. It is a great pity. It will make life much more difficult on the campuses than it need be and will produce no adequate, positive or desirable result so far as I can discern.

Baroness Blatch

My Lords, we have debated at some length to ensure that our package for the reform of student unions is both robust and coherent. We have striven to set out a framework which will enable the principles of choice, fairness, democracy and, indeed, accountability to thrive in all our student unions. That has been the goal and rationale from the start.

The amendments made in the other Chamber are in keeping with those principles, which this House approved. They merely provide further detail on implementation. Such is the case with Amendment No. 7, which provides for enhanced financial accountability and fairness by restoring the requirement for fairness to the procedure for distributing resources to groups or clubs. I believe that the other place, acting as a revising Chamber, was right to seek more specific wording here. Certainly it was our expectation in this House that student unions should be expected to act fairly in providing resources to clubs and societies; and if that is what we expect, the Bill should make that explicit.

By his resistance to Amendment No. 7, my noble friend Lord Beloff has queried the requirement of fairness in the distribution of resources to clubs and societies. Petty unfairness is all too common. The kind of thing we have in mind is the club that is politically unsympathetic to the student union leadership, and which finds it strangely difficult to book a room for meetings. That kind of behaviour should not be tolerated. The requirement for fairness was indeed included when the Bill was first introduced; when we revised this clause, the argument was that the requirement was redundant. But I believe that the other Chamber was quite right to restore it.

Some of those who have spoken to the amendment appear to have returned to base on the subject. They talked about whether or not students should opt out. I have to say that Amendment No. 7 and resistance to it is not about whether students should opt out. That was determined both in this House and in another place. We are talking about leaving institutions themselves to determine what opting out will mean for those who wish to take that course.

The amendment agreed in the other place is to establish clearly the notion of fairness. I have given examples of fairness and unfairness. While most people may be happy to have no notion of fairness addressed specifically in this part of the Bill, I have to say that those who are the recipients of unfair treatment will find it a very real measure. I hope, therefore, that noble Lords will agree with the Commons in their Amendment No. 7.

Earl Russell

My Lords, before the Minister sits down, can she answer the argument put forward by my noble friend Lord Lester that the point of substantive fairness is not justiciable?

Baroness Blatch

My Lords, the noble Lord, Lord Lester, was absolutely right to refer to the requirement on institutions to act under the overall framework of the measures in Clause 21 in a fair and democratic way. We are talking here very specifically about the allocation of resources. So there is a procedural element involved: namely, that that should be fair and democratic; that the procedures should be set out; and that the issue of membership and non-membership should be properly addressed. However, in the case of allocating resources to clubs and societies, it was felt important in another place to address the issue of fairness. We believe that there is sufficient evidence to substantiate that case. I believe that Members of the other place are right to ask us to agree to their amendment.

Lord Beloff

My Lords, I find the argument of my noble friend the Minister unanswerable; but, at the same time, it does not meet the case put forward. It is unanswerable because, of course, it is true that all people tend to be unfair and young people probably tend to be more unfair than most. There have certainly been cases of which I am aware—and, indeed, I could rehearse them—where the officers, a committee or members of a student union have discriminated against a particular society of whose views they disapprove. For example, the experience of Jewish and Zionist societies in some universities comes to mind.

However, it does not seem to me that the situation will be improved by putting in a number of opportunities for complaint which could lead to extensive litigation. In fact, it brings us back to the view that it is the business of universities themselves to ensure that the students and others making use of their facilities use them in a proper manner. The reason why I find this part of the Bill—and, indeed, most of it— objectionable, is that it seems to be a denigration of the responsibility which ought to rest on universities to ensure that their resources, including their physical resources, are properly used.

It also seems to me that to have given way to a group of Back-Benchers in another place who make no secret of the fact that they would like to destroy the student union system altogether, and for whom opting out is a glorious war against institutions of which perhaps they had an unfortunate experience in their youth, is unacceptable. As the noble Baroness put it, the Government's willingness to accept such views and to insert such language in the Bill is something which makes me grieve a great deal. For that reason, I should like to test the opinion of the House on my Motion.

6.59 p.m.

On Question, Whether the Motion shall be agreed to?

Their Lordships divided: Contents, 55; Not-Contents, 102.

Division No.2
Addington, L. Lester of Heme Hill, L.
Airedale, L. Lockwood, B.
Ardwick, L. Mackie of Benshie, L.
Avebury, L. Masham of Ilton, B.
Beaumont of Whitley, L. Mayhew, L.
Beloff, L. McIntosh of Haringey, L.
Butterfield, L. Mishcon, L.
Campbell of Eskan, L. Monkswell, L.
Carter L Morris of Castle Morris, L.
Clinton-Davis, L. Nicol, B.
Dacre of Glanton, L. Park of Monmouth, B.
Dainton, L. [Teller.] Pitt of Hampstead, L.
David, B. Plant of Highfield, L.
Dean of Beswick, L. Prys-Davies, L.
Dean of Thornton-le-Fylde, B. Redesdale, L.
Russell, E. [Teller]
Dormand of Easington, L. Seear B
Graham of Edmonton, L. Sefton of Garston, L.
Hamwee, B. Shepherd, L.
Harris of Greenwich, L. Skidelsky L.
Hollis of Heigham, B. Stoddart of Swindon, L.
Houghton of Sowerby, L. Taylor of Blackburn, L.
Howell, L. Taylor of Gryfe, L.
Howie of Troon, L. Tordoff, L.
Jeger, B. White, B.
Jenkins of Putney, L. Williams of Crosby, B.
Judd, L. Williams of Elvel, L.
Kilmarnock, L. Winchilsea and Nottingham, E.
Addison, V. Elliott of Morpeth, L.
Alexander of Tunis, E. Elton, L.
Annaly, L. Ferrers, E.
Arran, E. Fraser of Carmyllie, L.
Astor, V. Gilmour of Craigmillar, L.
Balfour, E. Glenarthur, L.
Barber, L. Goschen, V.
Blatch, B. Gray, L.
Blyth, L. Gridley, L.
Boardman, L. Halsbury, E
Boyd-Carpenter, L. Harding of Petherton, L.
Brentford, V. Harmar-Nicholls, L.
Butterworth, L. Harmsworth, L.
Byron, L. Hayhoe, L.
Cadman, L. Henley, L.
Caithness, E Hertford, M.
Carnock, L. Holderness, L.
Carr of Hadley, L. Howe, E.
Chalker of Wallasey, B. Kenyon, L.
Chelmsford, V. Kimball, L.
Chesham, L. Kinnoull, E
Clark of Kempston, L. Leigh, L.
Courtown, E Long, V.
Cowley, E Lucas, L.
Craigavon, V. Mackay of Ardbrecknish, L.
Craigmyle, L Mackay of Clashfem, L. [Lord Chancellor.]
Cranbome, V
Cumberlege, B. Macleod of Borve, B.
Dean of Harptree, L. Marlesford, L.
Denham, L. Massereene and Ferrard, V.
Denton of Wakefield, B. McColl of Dulwich, L.
Dixon-Smith, L. Mersey, V.
Downshire, M. Miller of Hendon, B.
Montagu of Beaulieu, L. Skelmersdale, L.
Monteagle of Brandon, L. St. Davids, V.
Mottistone, L. Stewartby, L.
Mountevans, L. Stockton, E
Moyne, L. Strange, B.
Munster, E. Strathclyde, L.
Murton of Lindisfame, L. Strathmore and Kinghome, E
Napier and Ettrick, L. [Teller.]
Northesk, E. Sudeley, L.
O'Cathain, B. Thomas of Gwydir, L.
Orr-Ewing, L. Trumpington, B.
Oxfuird, V. Tugendhat, L.
Pender, L. Ullswater, V. [Teller.]
Perry of Southwark, B. Vivian, L.
Rankeillour, L. Wade of Chorlton, L.
Renton, L. Wakeham, L. [Lord Privy Seal.]
Rodger of Earlsferry, L. Wise, L.
Rodney, L. Wolfson, L.
Sharples, B. Wynford, L.

Resolved in the negative, and Motion disagreed to accordingly.

7.7 p.m.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7.

Moved, That the House do agree with the Commons in their Amendment No. 7.—(The Lord Chancellor.)

On Question, Motion agreed to.

[Motion No. 8A not moved.]

The Lord Chancellor

Motion 9A—Lord Beloff—

Lord Elton

My Lords, I think we have to move Amendment No. 8 if we do not carry 8A.

The Lord Chancellor

My Lords, I am sorry. I am grateful for that.