Higher Education Bill

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Mr. Boswell: I was following the hon. Gentleman's argument with interest and a good deal of sympathy. Would he not agree that—as is acknowledged in other amendments—a person can be simultaneously a student, for example, a postgraduate student, and a member of staff delivering services on behalf of the institution?

Mr. Willis: I thank the hon. Gentleman for raising that; he is absolutely right. While we welcome the broad thrust of the new complaints process, this is an opportunity for the Under-Secretary to consider whether that issue needs to be addressed.

We do not seek to broaden the powers of the adjudicator. People who work in universities are covered by employment law and it should not be part

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of the adjudicator's role to deal with that; Universities UK can be assured on that point. However, the current visitor system has jurisdiction over academic freedom and it is important to consider a system that enshrines that practice but also gives staff protection. It also deals with academic and professional malpractice within the university sector. That is another issue that the adjudicator might well address. There is also the important matter of public interest disclosure complaints. That is enshrined in law elsewhere, but its application is different in the context of universities and the academic freedom that is at the heart of our system.

We acknowledge that the visitor system is outdated and unsuitable for the resolution of student complaints, so is strange that is should be left in place to deal with staff complaints. The aim of the amendment is to obtain clarification as to how the Government think that they might resolve the anomaly and give staff the sort of protection that students will have under the new system.

Jonathan Shaw (Chatham and Aylesford) (Lab): Does the hon. Gentleman agree that it is important for staff and students that there should be clarity about academic judgment, its meanings and its extent? When a student makes a complaint, particularly if they are working alongside a member of staff in the way that the hon. Gentleman describes, what are the parameters? Is curriculum design the issue? How far does academic judgment go?

Mr. Willis: The hon. Gentleman is right. The issue draws us into an area that is unclear. Under the current regime, every university deals with the problem with its own system, but some of those systems are loose and unchallengeable. Only appeal to the court of a university might bring a change, but anyone who has tried to take a complaint to the court of a university will know full well what happens to it—not very much.

We must strike a balance between vigorously protecting academic freedom and the need for academics in institutions to be able to self-regulate, and giving academic staff the opportunity to receive redress for complaints. I would hope that complaints made under such a framework would not have to go to law, but they would be able to if necessary. With the amendment I am trying to ensure that, where a university still has a visitor system in place, provided that it does not act ultra vires within its rules, it would not be possible to go to the courts over the head of the visitor. I hope that the Under-Secretary can satisfy us on some of those issues.

Mr. Collins: I should like to follow up some of the comments of the hon. Member for Harrogate and Knaresborough and to speak to amendment No. 250. The hon. Gentleman rightly pointed to the need for the Government to clarify their thinking behind the decision to distinguish the handling of complaints for students and the handling of those for academic staff. However, I do not intend to repeat his comments, because he set out the case for clarity admirably.

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Amendment No. 250 seeks to probe the Government further on an issue over which potential confusion is inevitable. Some people are, in different capacities, both students and teachers. Amendment No. 250 refers to people who, perhaps, act as teachers on behalf the same institutions at which they study as postgraduate students. There are obviously not large numbers of such people when compared with the overall numbers of students and teachers in institutions of higher education, but there are quite a few. Such cases do not happen only once in a blue moon and, at any given time, there will always be some people who fall in that category. It is important that the Under-Secretary should clarify what the Government's intentions are on the handling of such individuals. Should they be treated primarily as students or primarily as teachers? Should that depend solely on the nature of the complaint or should it be left to the judgment of the regulators, as and when a case comes before them? We need clarification on that.

We suggest that, although assurances from Ministers—and this one in particular—are always welcome and studied with great interest, the virtue and value of any clarification would be even greater were it to be written into the Bill. I make the offer that I made on the previous amendment: if amendment No. 250 is technically defective for whatever reason, we would broadly support any Government undertaking to reflect on the idea and return later with a different amendment that would clarify the matter.

I hope that the Under-Secretary can address the issue, which is not theoretical—it is not a debate about the number of angels who can fit on the end of the pin. There are practical considerations that will increasingly arise as higher and postgraduate education expands. Can the Under-Secretary clarify which side of the line he would expect people who are both students and teachers to fall when complaints are made on their behalf or about their behaviour? That would be very much welcomed by many of those people who are following these debates with great interest.

9.30 am

Mr. Lewis: Although I will not apologise to the hon. Member for Harrogate and Knaresborough for upsetting him towards the end of our sitting on Tuesday, I am sorry that he got so distressed. I shall try to ensure that we do not repeat that experience this sitting.

Our debate on this issue is important. The Government do not contend that the system is perfect. I am pleased that the hon. Gentleman acknowledged that a relatively small number of complaints made by staff would be covered by the concern vis-a-vis the visitor. Although he made it clear that he does not seek to interfere with employment law issues, it is important to note that, in most cases, when employees of higher education institutes have exhausted all the procedures within their institution, they have access to employment tribunals and courts, and are protected by the Public Interest Disclosure Act 1998, which the Labour Government introduced to support staff—

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particularly those working in public sector environments—who expose wrongdoing in public service institutions.

Mr. Boswell: The Under-Secretary says that all staff in universities have access to employment law, but the point occurs to me—it is a cause celebre in employment law, which may well be changed—that the clergy are not covered by employment law because their employer is deemed to be God. If that is the case—and I know that Ministers are considering the issue—what is the position of college chaplains? They may be fellows of their colleges, but they appear to have two different and important allegiances.

Mr. Lewis: May I write to the hon. Gentleman to clarify the position of university chaplains—and all matters relating to God? I believe that the House is currently dealing with similar questions about Church of England ministers in the Employment Relations Bill. He will be pleased to hear that I am not going to get into a debate about that.

I said that most staff have access to employment law. That is an important point, because there is a problem with the role of visitors and whether that prevents people's ability ultimately to go to court. I emphasise the word ''most''. In a small number of cases, there is some ambiguity. The Government do not believe that the status quo is acceptable, or that the independent route that we are establishing for students is necessarily an appropriate route for staff complaints. There is no consensus on that in the higher education sector, whereas the rest of this part of the Bill has achieved a high level of consensus. Therefore, it would be inappropriate, at this stage, to impose on that sector the inclusion of staff complaints in the role of the OIA. There needs to be more work, reflection and thinking within the sector about appropriate vehicles with which to address staff complaints.

Mr. Willis: The Under-Secretary is right to say that the sector is divided. It is divided because the major teaching unions—the Association of University Teachers and NATFHE—both support the proposal to extend the adjudicator's role to include staff complaints whereas the employers' organisation, Universities UK, does not. Surely, we should protect the interests of staff rather than the interests of vice-chancellors.

Mr. Lewis: We ought to ensure that we get the right framework, which is in the best interests of our universities—both for those who work in them and those who study at them. Under other ombudsman schemes, users of public services have the right to complain to any one of several ombudsmen, such as the local government ombudsman or the parliamentary ombudsman. It is very unusual for those schemes also to be available to employees working in public sector organisations because of the range of different issues that must be taken into account. It does not follow, therefore, that the existing system is not acceptable.

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We are establishing by statute a new independent complaints procedure for students, and that independence should also be available for staff. That is the difference. The sector needs to address this issue. We acknowledge that consideration must be given to whether existing procedures for staff are fair, transparent and appropriate, and we urge the sector to take the matter seriously and to come up with proposals. We do not believe that the complaints procedure that we are establishing for students is appropriate for staff.

Amendment No. 250 deals with a situation in which a student clearly also has a role as a lecturer or member of staff. In that situation, the only complaint that the OIA would consider would be one that related to that person's status as a student, not to their activities as a member of staff. Frankly, it would be a matter for the reviewer to make that judgment. It would not be difficult to decide whether someone was attempting to exploit the system by making a complaint that was fundamentally about their role as an employee, not as a student, and the reviewer would be the appropriate person to make that judgment. I hope that that clarification helps the hon. Member for Westmorland and Lonsdale.

My hon. Friend the Member for Chatham and Aylesford (Jonathan Shaw) talked about academic judgment. This is a difficult issue. The definition of academic freedom is not straightforward, nor is it prescribed. It is largely a matter of judgment. Some decisions clearly involve academic judgment; others do not. The important point to make is that the adjudicator would have the power and the opportunity to judge whether the complaint was in or out of order depending on whether it fell within the category of academic judgment. To some extent, we have to leave that judgment to the OIA. The adjudicator would be independent, objective, and able to decide whether a complaint fell within their jurisdiction, or whether it was a matter of academic judgment. If they decided that it was a matter of academic judgment, they would judge it inappropriate for them to consider the complaint.

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