HL Deb 14 June 2004 vol 662 cc612-6

(1) The visitor of a qualifying institution has no jurisdiction in respect of—

  1. (a) any dispute relating to a member of staff which concerns his appointment or employment or the termination of his appointment or employment,
  2. (b) any other dispute between a member of staff and the qualifying institution in respect of which proceedings could be brought before any court or tribunal, or
  3. (c) any dispute as to the application of the statutes or other internal laws of the institution in relation to a matter falling within paragraph (a) or (b).

(2) In subsection (1) "qualifying institution" has the meaning given by section 11.

(3) In determining whether a dispute falls within subsection (1)(b) it is to be assumed that the visitor does not have jurisdiction to determine the dispute.

(4) Section 206 of the Education Reform Act 1988 (c. 40) (which is superseded by subsection (1)) shall cease to have effect."

The noble Lord said: My Lords, in moving Amendment No. 55B I shall speak also to consequential Amendments Nos. 57A and 60. The noble Baroness, Lady Sharp, and the noble Lord, Lord Forsyth, were both concerned about the continuing jurisdiction of a visitor in relation to staff complaints. We have always accepted that the current position is not ideal and noble Lords' arguments have confirmed our view. The amendment, therefore, addresses the concerns raised about the continuing role of the visitor in staff complaints.

Section 206 of the Education Reform Act 1988 removed the visitor's jurisdiction in disputes relating to academic staff which concerned appointment or employment. There has been debate as to the extent of this exclusion and whether it covers disputes indirectly related to employment matters, such as whether an institution's internal rules have been followed in relation to a staff complaint.

The amendment seeks to address noble Lords' concerns by placing beyond doubt the extent of the removal of the exclusive jurisdiction of the visitor. It provides for the widest possible exclusion in relation to appointment and employment related matters. The exclusion also covers the internal powers and discretions that derive from the internal laws where they relate to staff complaints.

Whereas the 1988 Act relates to academic staff, we believe that all staff should be covered by the new amendment. The amendment also addresses the principled objection to the jurisdiction of the visitor: that where a visitor acts when access to the courts is limited. We believe that it is wrong to deny access to the courts and so the amendment excludes the visitor's jurisdiction from all staff disputes where there is a possible redress through any court or tribunal whether by an action for damages or judicial review in appropriate circumstance, for example, where a member of staff has a complaint about a matter that relates to their employment contract or where they have had an accident at work.

In that context, the noble Lord, Lord Forsyth, and the noble Baroness, Lady Sharp, were concerned in Committee that the existing situation raises human rights issues. Our amendment removes any such concerns as there will not be any possibility of access to the courts being denied to a member of staff because of the visitor's exclusive jurisdiction.

The amendment also puts the rights of staff in chartered and new universities on a more equal footing and addresses the inconsistencies between the exclusion of the visitor's jurisdiction over student and staff complaints. Of course, where a person who is a visitor is assigned a role in relation to student or staff complaints, he or she may continue to perform that role in a personal capacity, for example, by acting as an independent person considering an appeal as part of the institution's internal dismissal or disciplinary or grievance procedures. This would be on a non-visitorial basis and would not, therefore, restrict access to the courts.

Once again, I thank noble Lords for raising these issues. The amendment, together with the Universities UK offer of discussions with the staff unions, to which we made reference in the first day on Report, moves us forward in addressing the anomalies in the present arrangements. I beg to move.

Baroness Sharp of Guildford

My Lords, I thank the Minister for bringing forward the amendment which, as he says, follows the discussions we had on the extension of staff to the independent office of the adjudicator, and proposes different mechanisms. We welcome very much the fact that the Government have recognised that the visitor system falls foul of human rights legislation and that these proposals seek ways of ensuring compliance with that legislation.

We also welcome very much the offer of assistance made by the DfES to facilitate discussions between UUK and the AUT to set up a new appeals mechanism of one sort or another. There is slight concern on the part of the union about the position in the interregnum. Once the Bill is passed there is no procedure in place until the AUT and UUK have some sort of new scheme set up. Therefore, it is important that the UUK and AUT set about agreeing a new robust scheme as quickly as possible.

It is vital that a mechanism is also in place which ensures on behalf of Parliament and the public that the universities follow their own internal statutes—the rules by which they operate—and allows that to be remedied where an institution has failed to do so.

There are two specific issues of clarification which I ask the Minister to respond to. First, what will be the commencement date for this section of the Bill? Secondly, what are the transitional arrangements for petitions already received and being dealt with by the visitor at that commencement date?

The Lord Bishop of Portsmouth

My Lords, the office of visitor dates from a time long before the kind of complex professional and personal disputes that are part of today's scene. The only body to which I am visitor is a group of nuns and clearly the regulations do not apply. But several of my episcopal colleagues are visitors to academic institutions. They will, I am sure, greet these proposals with some measure of relief and I hope they are accepted.

Lord Forsyth of Drumlean

My Lords, I join in the thanks given to the Minister for bringing forward the amendment, which largely meets concerns. Also, perhaps I may thank the Minister and his officials who took quite a long time to explain to rue how it would operate. I think that I now understand it and am very pleased that the Minister has brought forward the amendment.

Lord Triesman

My Lords, perhaps I may respond to the questions asked. The first was what would happen in the interregnum to staff cases that are currently before the visitor—to paraphrase the question the noble Baroness, Lady Sharp, asked. We envisage that when these provisions are commenced many staff provisions already with a visitor will remain within the visitor's jurisdiction to be resolved.

However, like the noble Baroness, I also hope that a robust scheme will be agreed as soon as possible for the new arrangements. That will be very important.

Baroness Sharp of Guildford

My Lords, I ask the Minister one further point. In so far as the new scheme is agreed, is it proposed to incorporate that in legislation at some point, just as the student appeal scheme has been incorporated in legislation? We recognise that this particular opportunity has been lost, but is it envisaged that perhaps it should be incorporated at some point in a legislative framework?

Lord Triesman

My Lords, we want to see the outcome of the discussions between the institutions and the staff unions before committing to any future legislation. To make a commitment in advance of seeing those discussions and understanding the character of the agreement which might be struck would probably not be the best way of proceeding.

The other question which I was asked was about when the Government will commence these provisions. We think it is best to ensure consistency. For that reason it would make sense to commence these provisions at a similar time to the jurisdiction of the visitor over the student complaints system being removed under Clause 19. Obviously, I cannot give a precise date. We will of course discuss the matter with Universities UK, the Association of University Teachers and with interested parties. As soon as I am in possession of any further information I will be most happy to write to the noble Baroness and make sure that the answer is also in the Library of the House.

On Question, amendment agreed to.

Clause 43 [Orders and regulations]:

[Amendments Nos. 56 and 57 not moved.]

Schedule 7 [Repeals]:

Baroness Ashton of Upholland moved Amendment No. 57A:

Page 33, line 31, at end insert—

"Education Reform Act 1988 (c. 40) Section 206.
In section 207(1), paragraph (c) and the word "or" immediately preceding it."

On Question, amendment agreed to.

Clause 48 [Commencement]:

[Amendment No. 58 not moved.]

[Amendment No. 58A had been withdrawn from the Marshalled List.]

Baroness Ashton of Upholland moved Amendment No. 59:

Page 22, line 41, at end insert—

"section (Extension of period within which discrimination proceedings must be brought);"

On Question, amendment agreed to.

In the Title:

Baroness Ashton of Upholland Amendment No. 60:

Line 5, at end insert "to limit the jurisdiction of visitors of institutions providing higher education;"

On Question, amendment agreed to.

Title, as amended, agreed to.

House adjourned at ten o'clock.