Clause 12 - Qualifying complaints
Higher Education Bill
9:10 am

Photo of Mr Tim Collins

Mr Tim Collins (Westmorland and Lonsdale, Conservative)

I beg to move amendment No. 130, in

clause 12, page 5, line 15, after 'institution', insert

'except in the case of a nursing student where the complaint is in relation to a nursing placement'.

The amendment reflects a request made to us by the Royal College of Nursing. The Under-Secretary will be pleased to know that the royal college is broadly supportive of the Bill, but it is concerned about the handling of student complaints. In a letter that it has, I imagine, sent to all members of the Committee, it says that it is concerned that there may be a lack of clarity—[Interruption.]

Photo of Mr Roger Gale

Mr Roger Gale (North Thanet, Conservative)

Order. Will the Committee please settle down. I wish to hear the argument, even if no one else does.

Photo of Mr Tim Collins

Mr Tim Collins (Westmorland and Lonsdale, Conservative)

Thank you, Mr. Gale.

In its submission to the Committee, the royal college states that the Bill's wording leaves it

''unclear whether complaints relating to nursing placements, which are carried out as part of a nursing course, should be taken to the newly created 'designated operator' or to the NHS establishment where the placement is completed. Placements are integral to the teaching and practical development of nursing students . . . In the light of this it is imperative that students have absolute clarity about where to direct a complaint should they have one.''

I am sure that the Under-Secretary recognises the case that is being made for clarity.

The amendment may or may not be the perfect way to tackle that concern, but it seeks to clarify on which side of the divide a nursing student would find themselves if they were in dispute with the institution at which they had taken up a placement. It suggests that they should not go to the newly designated body, although we would probably meet the royal college's point if we came down on the other side and said that students should automatically go to that body. However, the royal college and many nursing students would welcome greater clarity, and the Committee has been asked to provide it. The Government could accept the amendment or table an alternative later. Equally, the Under-Secretary could give the royal college the clarification that it seeks in his remarks, and I hope, indeed, that he will now do so.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

This is my first opportunity to serve under your chairmanship, Mr. Gale, and I look forward to it very much. In the light of our first sitting, I hope that I can contribute to some light entertainment during our proceedings.

I congratulate the hon. Member for Westmorland and Lonsdale (Mr. Collins) on his point of order. Such things rarely happen in this House, and I congratulate him on feeling that that was the right thing to do.

The key issue in the amendment is clarity. It is clear that in any situation where a higher education student is on a work placement, it is the responsibility of the institution to explain clearly to that student the grievances and complaints procedure, and any student on a work placement would have the opportunity to submit a complaint if it were not.

In the case of a nurse, for example, there might not be clarity in circumstances where the higher education institution would be susceptible to criticism or grievance, but the NHS trust may be equally susceptible. It is the responsibility of the higher education institution to deal with that, and it would be a legitimate complaint. If a student were to say that a higher education institution had failed to make the responsibilities absolutely clear, that would be a legitimate source of complaint. The Quality Assurance Agency for Higher Education has a code of practice on placement learning that clearly advises institutions to have procedures in place for dealing with complaints. Those procedures should be made clear to students

and if a student cannot resolve a complaint through the institution's procedures, he or she will be able to access the Office of the Independent Adjudicator for Higher Education to have the complaint reviewed.

There is a clear need for clarity and a lack of ambiguity. However, in view of the description that I have given of the respective responsibilities of the higher education institution and of the placement provider, I ask the hon. Gentleman to consider withdrawing his amendment.

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Mr Tim Boswell (Daventry, Conservative)

I do not wish to delay the Committee on this small point and above all I do not want to confuse it with any concern on tuition fees, which we will deal with in later clauses, but I should be grateful if the Under-Secretary, who has given an entirely satisfactory response to the points raised by the royal college, would also clarify another point. In nursing, and maybe in other sectors as well, there is some degree of private sector involvement—even at the training and placement level. People may be outplaced in institutions that are not paid for by the NHS. Professions allied to medicine, such as chiropractics, have specialist institutions. I want the Under-Secretary to clarify to the Committee—if not now, by later correspondence—that private sector outplace students would also have recourse to the office, provided that their courses were in the overall ambit of an approved higher education institution.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

I can confirm that that would be the case. It is the responsibility of the higher education institution to have a clear relationship with any placement provider, whether the provider is in the public or private sector. The issue is whether the complaint relates to actions taken by the employer or by the higher education institution.

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Mr Tim Collins (Westmorland and Lonsdale, Conservative)

I am grateful to the Under-Secretary. He has provided precisely the clarification sought by the royal college, as my hon. Friend the Member for Daventry (Mr. Boswell) has said. I am sure that the college can take the comfort that it seeks from the text of the Committee proceedings. On that note, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Mr Phil Willis (Shadow Secretary of State for Education and Skills, Education & Skills; Harrogate and Knaresborough, Liberal Democrat)

I beg to move amendment No. 52, in

clause 12, page 5, line 19, at end insert

'; or

(c) as a member of staff or former member of staff at that institution'.

Photo of Mr Roger Gale

Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss amendment No. 250, in

clause 12, page 5, line 21, at end insert—

'(3) A complaint which falls within subsection (1) is not a qualifying complaint to the extent that it relates to the management of teaching where the complainant is a postgraduate student who also undertakes teaching on behalf of the qualifying institution.'.

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Mr Phil Willis (Shadow Secretary of State for Education and Skills, Education & Skills; Harrogate and Knaresborough, Liberal Democrat)

I, too, put on record my thanks to the hon. Member for Westmorland and Lonsdale for his remarks; it was very courteous of him indeed.

Amendment No. 52 is a probing amendment, and certainly one to which the Under-Secretary needs to respond. There appears to be a significant anomaly with the removal of the visitor system for students, when it will remain for staff in a number of situations where the visitor system is in place.

Part of the rationale for removing the visitor system is that it does not satisfy the Human Rights Act 1998, particularly article 6 of the human rights convention, which refers to the right to a fair and public hearing in disputes. On Second Reading, the Secretary of State commented that the Bill

''provides a common and transparent means of redress for student complaints, in place of the often archaic arrangements with so-called visitors and other mechanisms—more appropriate to the novels of C.P. Snow than to modern university life.''—[Official Report, 27 January 2004; Vol. 417, c. 167.]

It seems strange. If that applies to students, why should the visitor system continue to apply to staff?

Secondly, an anomaly is created by the 1993 House of Lords ruling that so long as a visitor does not act outside his jurisdiction, his decisions cannot be subject to judicial review. In universities that have a visitor system, there is no recourse to judicial review, whereas where there is no visitor system, there is recourse to judicial review. That is grossly unfair, but is it a major issue? As I said on Tuesday, the usual complaints procedures of most institutions are perfectly adequate to deal with the majority of complaints about both employment law and academic freedom. However, some issues fall outside them. When the Nolan committee took evidence on the issue, the University and College Lecturers Union presented evidence about the visitor system on behalf of teaching staff in universities, and it was agreed that that would be examined. To be fair to the Government, that has been done in respect of students and, while we might prefer a different system of adjudication, the response within the Bill is legitimate. However, it is possible for a complaint to affect both students and staff. In our major research universities, students and staff often work on the same research projects—they are not separate entities. Surely, in that situation, it is nonsense for qualifying complaints to be able to be made by students but not by staff.

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Mr Tim Boswell (Daventry, Conservative)

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?

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Mr Phil Willis (Shadow Secretary of State for Education and Skills, Education & Skills; Harrogate and Knaresborough, Liberal Democrat)

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

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.

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Mr Jonathan R Shaw (Chatham and Aylesford, Labour)

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?

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Mr Phil Willis (Shadow Secretary of State for Education and Skills, Education & Skills; Harrogate and Knaresborough, Liberal Democrat)

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.

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Mr Tim Collins (Westmorland and Lonsdale, Conservative)

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.

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
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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

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—

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

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Mr Tim Boswell (Daventry, Conservative)

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.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

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.

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Mr Phil Willis (Shadow Secretary of State for Education and Skills, Education & Skills; Harrogate and Knaresborough, Liberal Democrat)

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.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

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.

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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Mr Jonathan R Shaw (Chatham and Aylesford, Labour)

In effect, my hon. Friend is talking about carte blanche, in that there is no beginning or end to academic judgment. One can understand the anxiety of staff that this provision may become law and that they will have no idea of the parameters of academic judgment.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

Any Minister who could define the parameters of academic judgment would be doing exceptionally well. The best that I can do is give examples. Academic judgment is used to decide the marks awarded in examinations or other assessments, and ultimately to decide the class of degree. Only examiners are in a position to make such decisions, and to change that would be a serious infringement of their autonomy in academic matters. However, complaints would qualify if they related to procedural matters such as whether a student had access to an academic appeals committee and whether that committee was properly constituted. The OIA could

consider a complaint when a university was attempting to hide behind the excuse that something was a matter of academic judgment and it could be proved that that was not appropriate or reasonable.

I cannot give my hon. Friend a clearer and more definitive definition of academic judgment at this stage, but I do believe that the OIA will be best placed to make that judgment.

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Mr James Clappison (Hertsmere, Conservative)

The Under-Secretary is doing an admirable job of trying to define something that is difficult to define. Would he say that the concept academic judgment went so far as to include a lecturer or tutor who plainly was not giving good lectures or was not qualified to give the lectures in question?

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

I certainly would not. One thing that members of the Committee agree on is the need to put more resources into our universities—however it is done—in order to raise standards and quality. No student should be short-changed in the quality of his learning experience. If there was evidence to support the contention that the quality of the learning experience was not up to scratch, the student would first complain through the usual channels within the institution. However, if necessary, he would then have the opportunity to go to the new independent adjudicator. With that in mind, I ask that the Opposition to consider withdrawing the amendment.

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Mr George Mudie (Leeds East, Labour)

I support the amendment—not, I hasten to add, that it would go to a vote, but I do not want it to be brushed aside. I am not suggesting, however, that the Under-Secretary has not dealt with it gracefully and with great wisdom.

About four or five years ago, when I was an Under-Secretary for Education and Employment, student complaints were discussed with universities. The universities were given 12 months to sort out the problem. They have not sorted it out. As was suggested the other day, a number have agreed a students complaint procedure, but many have not. We are now legislating for a students complaints procedure—so much for consensus, so much for waiting for the universities and their wisdom.

I was puzzled why we had taken time to legislate on the matter. I wondered whether the provision was merely padding to widen the Bill's provisions, so that it did not deal only with variable fees. Such a cynical comment would be unworthy of me, so I shall not make it. However, when I looked at the explanatory notes, I noted that human rights were involved. I then realised that cynical people, such as myself, would know why the provision had been included. The universities could not be persuaded to act—in my time, they had no intention of acting. We let the timetable of 12 months' notice extend to five years, and only now are we legislating. I suspect that we are legislating only because of human rights issues. If we let the matter go, it would be challenged in Europe. Indeed, the explanatory notes suggest that strongly.

The hon. Member for Harrogate and Knaresborough suggests that we should also deal with the prickly issue of staff complaints. However, much as

I am sympathetic with the Under-Secretary and much as I think his argument was first- class, I suggest that the problem will not be dealt with properly. On the evidence, one cannot expect universities to regulate themselves and agree something. The slowest will always set the pace—and that is very slow. I would rather that the Under-Secretary decided to consider the matter. If he thinks that there is merit in the suggestion, I hope that he will examine whether an opportunity arises as the Bill passes through its various stages to do something about it.

The solution cannot be left to the universities, and we will not get another chance to introduce fresh legislation for a long time. We should grasp the opportunity now. The universities have had their chance and demonstrated that they do not have the will to act.

9:45 am
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Mr Tim Boswell (Daventry, Conservative)

I have some sympathy with the point made by the hon. Member for Leeds, East (Mr. Mudie). I had very little experience in my time as an Education Minister of the actual operation of a visitor system and, of course, could not have nobbled it had I chosen to do so. I remember one case that was drawn to my attention, which, without identifying the institution, took place outside England. There was a procedure in which the visitor was invoked. However, as I think that that was Her Majesty, somebody had to stand in and consider the complaint for her. My only comment on the process is that it was very messy and extremely prolonged. The member of staff involved was supported by their union.

I say to the Committee only that there is a potential problem. I am not disposed to challenge the Under-Secretary's judgment about the need to concentrate on student complaints. That is proper and we need to get that working, but we should not close our eyes to the fact that institutions need to have viable arrangements. They may need to think about whether those arrangements need to be updated. Above all, they need to ensure that the delivery of a resolution of those complaints is reasonably timely and proper.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

It feels like a Yorkshire conspiracy against a Lancastrian, with the two hon. Members joining up. May I respond to the comments from my hon. Friend the Member for Leeds, East who as usual made an important and reasonable contribution? Why he is being unfair, and the reason we are putting this on the statute book, is because the higher education sector has created a self-regulatory framework that it has asked us to underpin by statute in this Bill. The implication that the higher education sector has not acted about student complaints is very unfair. It has already established the OIA, and, although not every part of the sector has signed up to it, the majority of institutions has. The sector has then said that by putting this on the statute book all students in all institutions can be sure of access to a high quality, transparent complaints process.

While I accept my hon. Friend's point, which is the same point as that of the hon. Member for Harrogate and Knaresborough, that the status quo on staff

complaints is not good enough, I do not believe that the case has been proven that the complaints process that we are establishing for students in the Bill would necessarily be the right vehicle for an independent approach to staff complaints, and there is no significant consensus in the sector that would support that. I do not want to add more, but I would ask the hon. Gentleman to withdraw the amendment.

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Mr Phil Willis (Shadow Secretary of State for Education and Skills, Education & Skills; Harrogate and Knaresborough, Liberal Democrat)

I thank the hon. Member for Leeds, East for his support for the amendment. The Under-Secretary is right that the universities came up with an independent system for adjudication, although not all of them did; some have opted out and refused to play ball. They came up with the system as a result of the Nolan committee and the post-Nolan inquiry that was set up by Universities UK in response. There was a process by which they were brought to this point.

I will not be pressing this to a vote, because I hope, like the hon. Gentleman, that the Under-Secretary will reflect on this and come back on Report with an appropriate amendment of the Government's making. What amazes me, and what I do not think that the Under-Secretary responded to, is that it cannot be right to argue that the current visitor system for students contravenes the Human Rights Act 1998, but that the one for staff does not. There seems to be an inherent contradiction in those two positions.

We have an opportunity in the Bill to resolve the matter. Clearly the university sector will not do it, and yet we have the staff of the universities urging the Government to do so. We cannot have a twin system for dealing with academic staff complaints, one of which depends on the old visitor system—which is archaic according to the Secretary of State—and another that will apply mostly to the redbrick and new universities. I beg to ask leave to withdraw the amendment, but I urge the Under-Secretary to look at this again.

Amendment, by leave, withdrawn.

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Mr Simon Thomas (Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport); Ceredigion, Plaid Cymru)

I beg to move amendment No. 209, in

clause 12, page 5, line 19, at end insert—

'(c) who is applying to become a student at that institution.'.

Photo of Mr Roger Gale

Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following amendments: No. 248, in

clause 19, page 7, line 37, leave out '(2) or'.

No. 249, in

clause 19, page 7, line 38, leave out subsection (2).

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Mr Simon Thomas (Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport); Ceredigion, Plaid Cymru)

I hope that I need not detain the Committee long on this amendment.

We have been discussing the staff implications of the Office of the Independent Adjudicator, but it is important that we also consider another group of people at present seemingly cast outside the remit of this Bill: those who apply for places at universities and are refused. Such refusal can be given not just on academic grounds but for all sorts of complex reasons,

as we know from several famous cases in the last year or so in which the Chancellor of the Exchequer himself became involved.

We know that things can go wrong with the application process. Certain decisions can be made that are nothing to do with an applicant's academic abilities, but rather concern other qualities that a particular institution may be looking for. Before we consider this amendment, it is important that we recognise that OFFA does not deal with such situations.

OFFA, as set out in this Bill, will work with institutions at the strategic planning level only; it will have to agree their fair access plans with them, but my reading of the Bill is that it will not intervene if these plans fail in individual cases. OFFA will try to get things right, but if there is a failure on admissions, there is nothing in the Bill that says that an applicant can then turn to OFFA and say, ''Hey, this university has failed in what it said it would do.'' Of course, if there is a pattern of failure, the Higher Education Funding Council could step in and say, for example in the Welsh context, ''You have not succeeded in attracting the target of applicants from the 100 most deprived communities''. The Welsh OFFA would be able to do that with Welsh universities, but it would not intervene in individual cases.

I shall briefly tell the Committee of a constituency case that I have been dealing with in the last three weeks that has made me realise that we need to debate the matter in Committee. Hopefully the Under-Secretary can explain how such a case would be dealt with in the future, if not through this amendment.

The case concerns Mr. Cemlyn Davies, the head boy of Ysgol Penweddig, the bilingual Welsh language school in Aberystwyth. In passing I will say that Ceredigion has some of the best A-level results in England and Wales, and Penweddig is one of the best schools in Ceredigion, so there is a good academic record at this institution. Cemlyn, whose name is public and has been in the press, was studying for A-levels and wanted to study politics at the university of Nottingham. He had a successful interview and the university said that it would offer him a place. It wanted him to achieve two A's and a B, or whatever, in three of his four A-levels, but one of his subjects was Welsh and it said that it would not count that result, as Welsh itself did not count.

Cemlyn is a first language Welsh speaker studying a Welsh A-level, in the same way that any English speaker would study an English A-level. My hon. Friend the Member for Aberavon (Dr. Francis) will know that a Welsh A-level is the same as an English A-level, in which one studies history, literature and everything in the same way. We are not talking about a second language qualification. Curiously, Cemlyn was studying English as well, so this university was prepared to accept an applicant's success in an A-level in English, but not in Welsh.

Needless to say, as soon as a very able and bright pupil in one of the best schools in Ceredigion was told that his Welsh qualification would not count, the media knew about it pretty quickly, as did I. So did the

Commission of Racial Equality, which announced an inquiry into the university's decision. Within a week the university had reversed its decision and said, ''Please come to us'' and, almost, ''We will take whatever you get.'' They said that they would accept his Welsh A-level. Of course, in that time the confidence and trust between the applicant and the university had broken down, and Cemlyn decided to go elsewhere. The publicity engendered by the case led to several other people contacting my office with similar stories. Similar things had happened at Bristol university and in the past at the London School of Economics.

We cannot know how in the past those academic judgments were made. It is clear, though, that in the case of the university of Nottingham it was not an academic judgment but a prejudice against one particular subject. There is no reason on earth why an A-level in Welsh is not more or less relevant to studying politics than an A-level in English. I do not accept that it was an academic choice. Indeed, the university itself, by reversing the decision and holding up its hands, also accepted that it was not an academic choice. To be fair to its academics, they acknowledged their mistake.

That highlighted the question of to whom the applicant would have turned had the university held firm. Yes, he could have gone to the press or come to me, or involved the Commission for Racial Equality because we have the Welsh Language Act 1993 that gives equal status to Welsh and English. But in another context, involving an applicant with a different sort of A-level or approach, or with different cultural values or confidence or whatever, how would such a dispute be resolved? That is the question that I had in mind when I approached the Bill.

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Mr Jonathan R Shaw (Chatham and Aylesford, Labour)

I am listening to the hon. Gentleman with interest. He referred to other cases where people had contacted his office. Were they also issues about the Welsh language or were they about other A-levels?

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Mr Simon Thomas (Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport); Ceredigion, Plaid Cymru)

I thank the hon. Gentleman for the opportunity to clarify the matter. Those cases were about the Welsh language and not any other A-level or circumstance. But, as I said at the beginning of my remarks, we also know about other cases over the past couple of years that have had a high profile in the press where there have been other issues at stake.

I have set out the example and the fact that in such cases there does not seem to be any independent body that can arbitrate or resolve disputes. It is a question for the Committee and for the Government; there needs to be an independent body, and no doubt the Under-Secretary will have something to say about it. But if we are establishing an office of an independent adjudicator to look after student issues in the realm where students have been accepted by universities, it does not stretch the principle of such an independent adjudicator to say that that office could also look at individual applicants.

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Mr Tim Boswell (Daventry, Conservative)

Before the hon. Gentleman sits down, does he agree that there may be some read-across into, for example, equal opportunities law, in that a refusal to employ on the grounds of a patent disability, for example, if inappropriate, may attract the attention of the disability legislation?

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Mr Simon Thomas (Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport); Ceredigion, Plaid Cymru)

The hon. Gentleman opens up a new avenue of argument, which I will not go down, but I agree that it is relevant and pertinent. I have concentrated on one constituency example, but we know that in the past disabled applicants have found it difficult to be accepted by colleges and universities. We do not know what goes on in people's minds in that way; we cannot legislate in that sense for discrimination.

But if OFFA—or its equivalent in Wales—is to set strategic plans and say to universities, ''You need to have these procedures in place for fair access'', and if an independent adjudicator will look after students once they have been accepted into the institutions, the question remains of whether there is a missing link regarding the applicants? How can we ensure that applicants going forward under schemes to universities overseen by OFFA are fairly treated; how can we ensure that there is no unseen discrimination of any type, whether it is against a particular A-level, disability or any other type of discrimination?

For example, when we return from the half-term break we will be discussing the Gender Recognition Bill. If a person who had changed his or her gender sought to go into a particular single-sex hall or applied for a place, how would the application be resolved? Those issues need clarifying, and I hope that the amendment will allow us to have a debate so that the Under-Secretary can respond to our concerns.

10:00 am
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Mr Tim Collins (Westmorland and Lonsdale, Conservative)

In addition to commenting on the remarks that the hon. Member for Ceredigion (Mr. Thomas) made in support of amendment No. 209, I shall speak to amendments Nos. 248 and 249. Like the hon. Gentleman, Conservative Members are keen for the Under-Secretary to clarify the Government's intentions.

Amendment No. 249 would delete the proposal in clause 19 that a visitor be prohibited from making a ruling on a complaint

''in respect of an application for admission to the qualifying institution as a student.''

In responding to the hon. Gentleman, the Under-Secretary may say that it is not for the new OIA to consider such complaints. However, clause 19(2) implies that the Government believe it necessary to remove an existing right for visitors to rule on such complaints.

The Under-Secretary may tell the hon. Gentleman that we can leave things as they are and that there is no need for change, but he cannot realistically use that argument to resist amendment No. 249, because the Bill suggests that the Government are seeking to prohibit a practice that would continue in the absence of clause 19(2). It would be interesting to have an

indication from the Under-Secretary as to why the Government feel the need to circumscribe any existing freedom of manoeuvre that visitors may have.

We understand that visitors do not use their powers very often, and we should put on record the fact that, overwhelmingly, universities have a good record on assessing admissions. It is not our contention that there is a fundamental problem of the sort that recently caused the Chancellor of the Exchequer to get very hot under the collar. On the contrary, broadly speaking, universities take sensible and correct decisions, and it is an important part of academic freedom that they, rather than outside bodies, should make the decisions. None the less, amendment No. 249 is an attempt to tease out from the Government why they seek to remove an existing right of appeal to visitors. In a sense, such people are part of the universities, which certainly do not regard them as a threat to their academic freedom or independence. Of course, visitors do not spend most of their time making such decisions, but it is interesting that the Government feel it necessary to prohibit them from doing so in the Bill. From time to time, people who apply to higher education institutions will make complaints, which they will want to have properly and fully considered. Although I am likely to have more, not less, sympathy with the Under-Secretary's resistance to amendment No. 209, which was moved by the hon. Member for Ceredigion, I would be interested to hear why he feels it necessary to go beyond the status quo by removing an existing right.

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Mr Phil Willis (Shadow Secretary of State for Education and Skills, Education & Skills; Harrogate and Knaresborough, Liberal Democrat)

I rise to support amendment No. 209, which was moved by hon. Member for Ceredigion, and I hope that the Government will revisit the issue.

The Bill represents a new departure for the admissions process. I agree with comments that have been made about the process through the Universities and Colleges Admissions Service to universities with their own admissions systems. My colleagues and I would certainly not want to interfere with the decisions that those systems make about admitting people on the basis of academic merit rather than other things, and we shall return to that.

The Bill introduces a third party—OFFA. The need for OFFA to agree their plans will affect universities' admissions, because, in order to get the money from the students, they will have to satisfy OFFA that they plan to broaden access. That will lead to complaints such as the one that arose when Bristol university considered a system of preferential entry on to certain courses by certain groups of students. There will be a case for people to claim that they have been excluded from a university not because of the merit of their qualifications but because, thanks to a plan agreed by OFFA, there are insufficient places for people in their category, or from their background. I hope that that will not happen—I am sure that the Under-Secretary will say that it will not—but it is more likely to occur in the future than it was when there was a direct relationship between the university and the student admissions system.

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Mr Graham Allen (Nottingham North, Labour)

I hate to interrupt the hon. Gentleman in full flow. Is there any shred of evidence from any Minister or elsewhere—[Interruption.] I shall let the hon. Gentleman take his pager message; it could be the answer coming through, and I think that it will be no—that that is the intention, or that the Government are not wholly aware that they must ensure that it does not happen accidentally?

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Mr Phil Willis (Shadow Secretary of State for Education and Skills, Education & Skills; Harrogate and Knaresborough, Liberal Democrat)

I am amazed at the hon. Gentleman's faith. If he believes what he says, what is the point of OFFA? If everybody is so pure and decent—I shall not go down that route. I have made the point and I am sure that we shall come back to it.

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Mr Mark Francois (Rayleigh, Conservative)

I served with the hon. Member for Nottingham, North (Mr. Allen) on the Criminal Justice Bill for some two months. There were certainly times during that process when he lacked faith in the Government.

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Mr Phil Willis (Shadow Secretary of State for Education and Skills, Education & Skills; Harrogate and Knaresborough, Liberal Democrat)

I rest my case.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

We have had an important debate, and there have been some interesting contributions. Before we go any further, we need to dispel the myth that OFFA is about admissions. It is about access to higher education. We must be clear about that; it is only Opposition members who do not understand the distinction. Some of us represent constituencies in which, for years, young people have been denied access to higher education because of low aspirations, because they reach the age of 18 without the two A levels that they need to get into higher education, or because they were turned off education at the age of 12 or 13 when they were told that academic, or even vocational, routes into higher education were not for them.

Those are the issues that are relevant in terms of higher education institutions and OFFA. It is about higher education institutions reaching out into communities in which low aspirations are culturally endemic and attacking and changing those aspirations. The role of OFFA is to achieve a university student composition that is far more representative of our society; that is the transformational change that the Government seek to make in communities in which, historically, the aspirations, educational standards and expectations of young people have been far too low.

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Mr Roger Gale (North Thanet, Conservative)

Order. This is absolutely riveting. It has a great deal to do with matters that I suspect we shall discuss next week but nothing to do with amendment No. 209. Perhaps the Under-Secretary would like to return to the point, and I extend that invitation to the rest of the Committee.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

Thank you, Mr. Gale, for the five minutes that you allowed me in which to put on the record what OFFA is really for.

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Mr Roger Gale (North Thanet, Conservative)

Order. The Under-Secretary should not imagine that it will not be taken off his time next week.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

Fortunately I shall not be contributing next week.

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Mr Alan Johnson (Minister of State (Lifelong Learning, Further and Higher Education), Department for Education and Skills; Kingston upon Hull West and Hessle, Labour)

You should have said the week after, Mr. Gale; we have a week off.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

I shall deal first with the situation that the hon. Member for Ceredigion described involving the Welsh student. That case was unacceptable. Universities UK is writing to all English higher education institutions to make it plain that, in any academic judgment, such attitudes towards A-level Welsh are completely unjustifiable. The hon. Gentleman was right to point out that the university reversed the decision. After there was a public clamour and, I presume, the person affected went to his Member of Parliament and the media, the university did the right thing.

If in such cases the university does not do the right thing, however, the young person affected or their family would be able to consider either going to judicial review or using equality legislation. I cannot determine whether a court would define what happened to the individual in question as relevant under equality legislation, but if a university admissions process has been exhausted and somebody feels aggrieved that a grave injustice has been done, the opportunity remains for that individual either to seek judicial review or to go to the courts under equality legislation. It is important that that is clear.

We do not believe that it is appropriate for the OIA to interfere with admissions decisions, just as we do not believe that it is appropriate for OFFA to do so.

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Mr David Rendel (Shadow Minister (Higher Education), Education & Skills; Newbury, Liberal Democrat)

Would the Under-Secretary like to comment on whether judicial review is likely to be as cheap or quick as going to the OIA.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

I have no way of knowing the relative costs, but I am not sure that that should be the major factor determining our position on the issue.

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Mr Tim Boswell (Daventry, Conservative)

The Under-Secretary referred to equality legislation, on which I want to pick him up, just as the hon. Member for Newbury did. I can understand that such legislation might be relevant in cases involving ethnicity or linguistic competence, which are distinct from academic judgment. We shall in due course discuss OFFA, but does equality legislation take any account per se of socio-economic class, either of the student or their family?

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

No, it does not.

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Mr Graham Allen (Nottingham North, Labour)

I thank my hon. Friend for making clear OFFA's position in respect of admissions. Should he not also make it clear that it is damaging that there is a perception, which is put about by people for reasons of good political banter, although it is believed by people, rather like the nonsense about student debt being aggravated by additional payments, that in fact—

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Mr Roger Gale (North Thanet, Conservative)

Order. The hon. Gentleman knows me well enough not to try my patience.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

Thank you, Mr. Gale. Perhaps I shall speak to my hon. Friend later to reassure him that it is difficult and dangerous when politicians perpetuate myths that affect the judgment of the population and distort reality. Such perceptions cause young people and others to make wrong choices and have wrong views about the equity of the system.

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Mr Mark Francois (Rayleigh, Conservative)

Following on directly from what the Under-Secretary said, if we want to talk about altering perceptions, what more could one do to confuse people than to breach a manifesto commitment?

10:15 am
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Mr Roger Gale (North Thanet, Conservative)

Order. I really must ask the Committee to address the amendment. There are matters that will be discussed, as was rightly pointed out to me, the week after next, when I am sure such issues will come up. However, now is not the moment.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

Thank you, Mr. Gale. I shall follow your advice.

On amendments Nos. 248 and 249, what is so ironic about the visitor, whose current role in some universities is to deal with appeals against admissions decisions, is that in many circumstances, it is effectively a Minister—either the Lord Chancellor or the Lord President. We are further reducing the Government's capacity to intervene or interfere in admissions decisions by taking the visitor out of the dynamic in terms of the consideration of students' grievances about admissions decisions. I hope that the hon. Gentleman will see that as progress.

The Government have distanced themselves even more from interfering in admissions decisions and have not taken away a right that helps students. I believe that it is appropriate to remove the role of the visitor in that context. By doing so, we shall significantly reduce Government involvement in admissions decisions. I ask the hon. Gentleman to withdraw the amendment.

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Mr Simon Thomas (Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport); Ceredigion, Plaid Cymru)

Two important issues have been raised. I cannot talk about one, because we shall talk about it in a fortnight's time. The second is the fact that my amendment and amendments Nos. 248 and 249, which were tabled by the hon. Member for Westmorland and Lonsdale, show the emergence of a partial provision for applicants through the visitor system.

We know that the visitor system is rather archaic—some would argue that it is long-winded and not easy to use. We decided to retain it just for the staff, but it will be abolished for the applicants. However, no other system is being put in its place. That is a failure. I hope that the Under-Secretary will at least spend a little time thinking about it. What is currently available for some applications to some institutions—many of them are the older more traditional institutions that have shown the sort of attitude to applicants that we want to do away with in the Bill—is being taken away, yet those

institutions may have an attitude to certain socio-economic backgrounds and so forth. Those applicants will no longer have an avenue for appeal, as nothing else is being put in its place.

I sense that I have been outgunned on the amendment, so it would serve no purpose to divide the Committee. However, I hope that the Under-Secretary will consider the situation. I hope also that other organisations, such as Universities UK and the students unions, will consider what is best for applicants and what system—both in terms of OFFA and the OIA—would best fit in the Bill. As we cannot make much more progress at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Mr Roger Gale (North Thanet, Conservative)

Before we proceed, I must point out that one of the reasons why I am sitting here and why hon. Members are sitting where they are sitting is that my unenviable task is to try to keep the Committee not only on track but on time. We have eight clauses and four schedules to debate in rather less than one hour. I understand the temptation, but I would be grateful if hon. Members would try to confine the debates to the matters under discussion.

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Mr Tim Collins (Westmorland and Lonsdale, Conservative)

I beg to move amendment No. 184, in

clause 12, page 5, line 21, at end add—

'(3) For the purposes of this section matters of academic judgement will not include reasonable adjustments to the assessment process to meet the access needs of disabled students.'.

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Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following: New clause 4—Application of limit on time for complaints relating to disability—

'For the purposes of paragraph 13(2) of Schedule 3 to the Disability Discrimination Act 1995 (c.50) a complaint referred to the body designated by the Secretary of State or the Assembly in Wales under section 13 shall be deemed to be conciliation under section 31B of that Act.'.

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Mr Tim Collins (Westmorland and Lonsdale, Conservative)

The amendment and the new clause were tabled at the specific request of the Royal National Institute of the Blind and of Skill, the National Bureau for Students with Disabilities. I am delighted to note that not only do they attract the support of my hon. Friends, but that of the hon. Member for Cambridge (Mrs. Campbell). I am genuinely hopeful that the Under-Secretary will recognise that they were not tabled in a partisan spirit, and that they are not an attempt to trap or inconvenience the Government. They reflect the legitimate lobbying of legitimate interest groups, which believe that the Bill could be improved if the Government were to accept the changes. I hope that the Under-Secretary will reflect carefully on them. The amendments seek to address the entirely understandable concern of those who lobby on behalf of people with disabilities that the Bill should provide the maximum protection for the practical circumstances that may arise.

Amendment No. 184 would allow the OIA to hear complaints against a university or other higher education institution about its failure to make a reasonable adjustment to the assessment process to meet the needs of disabled students. Such students want to ensure that a university's legitimate and desirable defence that a matter falls within the sphere of academic freedom should not excuse it from making proper facilities available to disabled students so that they have as equal a chance of succeeding as other students.

The RNIB entirely accepts, as I am sure we all would, that a student who turns in a very poor piece of work, who does not apply themselves properly or who does not turn up to lectures should be censured and marked down whatever their background and circumstances. If, however, a student is visually impaired and cannot complete an exam because the university has failed to provide them with the appropriate materials to enable them to read the question properly and to reply to it properly, the RNIB argues that the university should not be able to say that the matter falls within the sphere of academic freedom and that the adjudicator should not consider the complaint. I am delighted to say that many hon. Members on both sides of the Committee believe that to be an entirely reasonable point.

I know that the RNIB and Skill have corresponded with the Minister of State. In the material that they circulated widely to all members of the Committee, they explicitly state that they very much welcome the spirit in which he has replied. They do not question the sincerity of his wish to address their concerns, but they note that he concludes in his correspondence with them that the reviewer who works for the OIA should ultimately decide the merits of the case. They believe that it would help to provide proper and appropriate guidance to the reviewer if the Bill made it clear that the needs of disabled students must properly be taken into account within the sphere of academic freedom.

No one on either side of the Committee wants to limit artificially or unreasonably the sphere of academic freedom. We are all signed up in principle to the idea of academic freedom, and the Opposition will want to table amendments to later clauses that are designed to increase academic freedom. We do not believe that universities are malicious, malevolent or incapable of taking reasonable decisions, but we do believe that organisations that lobby for disabled people have identified a possible loophole in the legislation that could unfortunately be exploited in certain circumstances and could injure the interests of disabled students.

New clause 4 was tabled in the terms requested by the RNIB and by Skill. It refers to the disabilities legislation passed in 1995 and to the Special Educational Needs Disability Act 2001. It is intended to ensure that a disabled student has sufficient time to enter an appeal to enter a register of complaint.

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Mr Simon Thomas (Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport); Ceredigion, Plaid Cymru)

I strongly support the hon. Gentleman's argument. However, we should point out that new clause 4 seeks to apply the Disability Discrimination Act 1995 to the body set up by the

Welsh Assembly that his amendments to clause 13, particularly amendment No. 33, seek to abolish. Does that not undermine his case?

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Mr Tim Collins (Westmorland and Lonsdale, Conservative)

It is very kind of the hon. Gentleman to assume that not only that one of my amendments would be accepted by the Committee, but that we would reach a slew of amendments tabled by me that would be accepted. On these matters, he is slightly more optimistic than I am, and we will consider each group of amendments as we come to them.

I am slightly more hopeful than normal here because this amendment has cross-party support and has been tabled in precisely the terms advanced by a legitimate, well respected and well supported set of disability groups. I am optimistic that it may be possible to persuade the Under-Secretary to accept it. I am rather less optimistic about the latter group, but we will deal with it in due course, Mr. Gale, otherwise you might rebuke me for straying out of order.

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Mr Tim Collins (Westmorland and Lonsdale, Conservative)

I was trying to explain the details of new clause 4, which seeks to extend by an additional two months the six-month appeal period provided under the Special Educational Needs and Disability Act 2001. The organisations that asked us to table and consider these amendments in Committee make it clear that they welcome the new complaints procedure. They feel that it offers an additional route outside the costs, complications and various other difficulties associated with taking matters to court. They stress that they would prefer not to advise people to go to court because of the problems that often result when they do so, which is a sensible proposition for us all.

The groups explain, however, that there is a slight inconsistency in the way that the procedures might work. At the moment, students have only six months to take cases of disability discrimination to court, so that by the time they have exhausted both the university's internal complaints mechanism and the independent students complaint mechanism, the six months allowed for making appeals might have passed. If new clause 4 were to be written into the Bill, the same two-month extension would be added to the time limit that is already available to students who take a complaint to conciliation through the Disability Rights Commission.

In other words, Parliament has already legislated to reflect the fact that there should be, as it were, penalty time—additional time added so that one does not lose the right to go to court because one has chosen to go through a conciliation mechanism instead. All of us want to avoid overburdening the courts and to spare a group of people—because of their nature, they are necessarily disadvantaged and unlikely in most cases to be particularly well-off—the costs and difficulties of going to court. If they choose to go through a route that is an alternative to a court case, surely they should not be penalised for doing so, but given an extra two months. That is a reasonable request, which reflects what is already in place under existing legislation in a similar context. They are not asking for a 12-month extension, merely two months.

It is my hope that the Under-Secretary will, on reflection—and, I am sure, having taken considerable advice—be able to conclude that although the amendments happen to be tabled in my name and that of the official Opposition, they are not tabled as a party political matter; they have the support of the hon. Member for Cambridge and we have heard that they are likely to attract the support of a number of other parties here. It would be to the Government's credit if, having reflected on the purpose behind the amendments, they were able to say that although their original view was that the legislation as first drafted was fine in all its respects, they were prepared to listen on the matter.

I would be delighted if the Under-Secretary could accept the amendments as they are. If we cannot quite persuade him, I hope that he will undertake to reconsider the matter and consider tabling similar amendments at a later stage. Many vulnerable people outside would welcome that and believe that the legislation would be improved if the Government could move in the direction that I have suggested.

10:30 am
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Mrs Anne Campbell (Cambridge, Labour)

As this is my first contribution to the Committee may I welcome you, Mr. Gale, and say how much I look forward to working with you? I do not want to add much to what the hon. Member for Westmorland and Lonsdale said, but it is worth pointing out, as he remarked, that the amendments were requested by the Royal National Institute of the Blind and by Skill, the organisation that deals with students with disabilities.

As I was reading the example provided by the Royal National Institute of the Blind—of a blind student not being able to complete an examination properly because of the failure of the university to supply appropriate materials—it occurred to me that a far more common case is probably of that of a student suffering from dyslexia. In my experience it is very common for students with dyslexia not to have their disability recognised and also for institutions on occasions to fail to provide either the extra time that a dyslexic student needs or some facility to enable them to complete their examination. It would be very useful to have some kind of clarification from the Under-Secretary on this issue. Would the whole process of academic judgment preclude that kind of complaint from a student who failed the examination because of the university's failure to provide proper materials, time or facilities to cater for that disability?

On new clause 4, one of my experiences of helping students with a complaint about their academic institution—it was not related to disabilities in this case—dragged on for months and months. I know that the internal university complaints procedures are often not as efficient as they might be and if added to the independent complaints procedure could take a great deal longer than six months. Therefore, this is a sensible amendment. It is sensible to add at least two months to the time before which a student can go to the special educational needs and disability tribunal and take action under the Disability Discrimination Act

1995. I hope the Under-Secretary will support these amendments or at least clarify what the situation is and how the law should be interpreted.

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Mr Tim Boswell (Daventry, Conservative)

I rise briefly in support of these amendments and am grateful for the hon. Lady's contribution, as well as to my hon. Friends for moving them. The background for my doing so is that I was the only Member who spoke on Second Reading who flagged up the particular sensitivities of disabled students. I do not claim to have done more than any other Member might have done, but I then received a briefing from Skill and the RNIB. Beyond that I can claim the credibility of having led for our party in relation to the Special Educational Needs and Disability Act 2001. I have had an interest in this area for some time and a huge respect for both Skill and the RNIB and for the other leading disability institutions in their work for disabled students.

I need not return to the point, but individual disabled students have particular difficulties. The interface between their disability and academic judgement is one of the most sensitive of all. I would like to put on record that many institutions are sensitive to the interests of their students with a particular need—be it continuing or chronic conditions, including some such as dyslexia that are more difficult to tie down than a physical condition, or it may be a particular acute problem, such as migraine. They generally seek to meet those. The essence is that there should be proper address if they do not.

Above all, in cases where there is any suspicion—it has happened in the past and may happen from time to time in the future—that an institution has tried to dress up dealing with the inconvenience or expense of a disabled student under some kind of academic guise, it is entirely right that disabled students should have their rights observed like everyone else. It is equally desirable that they should not rush into court at the first drop of trouble. All reasonable opportunities to conciliate, to mediate and to use the internal and adjudicator procedures should be the preferred route.

My experience of the 2001 Act raises a particular problem, which the RNIB has drawn attention to in a wider context. It concerns the operation of the Act in further and higher—post-compulsory—education compared with its operation in statutory age education, where the special educational needs and disability tribunal, as my hon. Friend the Member for Epping Forest (Mrs. Laing) will well remember, has its remit. If there is a tribunal, people will use it. If they have to go to the courts to enforce their rights it is much more difficult, even with the assistance of Skill or the Disability Rights Commission.

I hope that the Under-Secretary can respond positively to the amendments: in respect of the issue of the interface with academic freedom and in particular the entirely reasonable point that there should be more time to exhaust the process. We are not asking for the time limit to be extended indefinitely, but a reasonable amount of time should be given for everything to be done before it is necessary to press the legal trigger.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

May I welcome the contribution of my hon. Friend the Member for Cambridge to the debate? It has been some time since we worked together. I think that there was a time when she, my hon. Friend the Member for Halton (Derek Twigg) and I ran the Department of Trade and Industry—at least, we were Parliamentary Private Secretaries in that Department, but my hon. Friend the Member for Cambridge knows what I mean.

I would also like to pay tribute to the work done over many years for students with special needs by the hon. Member for Daventry. He genuinely cares about protecting their interests at every opportunity. I think that every member of the Committee feels strongly that individual institutions and the higher education sector as a whole have a responsibility to ensure that disabled people do not experience any discrimination in those institutions and, further, have the equality of opportunity to demonstrate their talent and potential. It is important that we consider the amendments in that context.

The hon. Member for Westmorland and Lonsdale made some important, salient points on amendment No. 184. The difficulty is that we have debated a range of specific and tangible examples where judgments will have to be made about the difference between cases of academic freedom and academic judgment and legitimate sources for consideration by the independent complaints process. It is therefore difficult, even on an issue such as this on which we all agree, to make specific provisions in the Bill to single out the issue. Where does one draw the parameters? In each example, the ambiguity might cause some confusion and lack of clarity.

The Government are sympathetic to considering the issue in order to ensure that disabled students are not discriminated against and that it is not possible to hide the discrimination of disabled students behind the fig leaf of academic judgment. In asking the hon. Gentleman to withdraw amendment No. 184, I also ask him to accept that the Government are willing to go away and consider the objective and purpose behind it.

I move on to new clause 4. Anything called clause 4 is always a difficult one for us; I might not be able to accept new clause 4 and continue to have a career in this Government. The serious point is that there is perhaps a need for clarification rather than a need to accept the new clause. First, the six-month time limit under the Disability Discrimination Act 1995 starts once the institution's internal procedure has been totally exhausted. Secondly, it is not generally understood that paragraph 3 of schedule 2 makes it clear that when students have lost a case with a court but asked for proceedings to be stayed, it does not prevent access to the scheme. In other words, the six-month period for submitting a case to court will not be exhausted while the OIA considers the student's complaint. That should give the organisations that are concerned, and hon. Members too, the guarantee and protection that if the individual makes it absolutely clear to the court that the matter is being considered by the OIA, the court has the capacity to hold on to the

case and not to say that the complaint under the Disability Discrimination Act should fall because the time period has lapsed.

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Mr Tim Boswell (Daventry, Conservative)

I am asking for this issue to be clarified in schematic terms. If the alleged offence takes place, or is apparent, at a certain time, the student complainant has six months to take it through the academic institution's internal procedures, and then must have filed suit with a court in order to obtain redress. However, that can be stayed while, at the same time, he is pursuing the parallel issue of an investigation by the student adjudicator. Is that broadly what the Under-Secretary is arguing?

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

No, not really. This is complex, but it is important that we get it right. I do not know how long it takes to exhaust university internal procedures, although obviously we hope that it will be as short a length of time as possible. It is only at the point when all of those processes have been exhausted that the six-month period begins and, having gone to court, the student can make it clear that the OIA is considering the matter. Until the adjudicator has adjudicated, the court will not say that the six-month limit to the DDA legislation has begun.

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Mr Tim Collins (Westmorland and Lonsdale, Conservative)

I recognise that the Under-Secretary is genuinely trying to help here, but I wonder if I may tease out from him the potentially significant difference between the provisions of new clause 4 and what he is saying. As I understand it, he is saying that a disabled student, who therefore has an awful lot of other things to worry about, needs to flag up that they are going to the OIA right at the beginning when they first go to court, in order for the court to stay the start of the stopwatch. If for whatever reason the student does not do so, then the stopwatch starts and runs to the normal six-month timetable. Surely that is inferior to the automatic two-month extension provided by new clause 4.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

As long as the court is informed at any stage within the six-month period that the OIA is considering the matter, the court will suspend its consideration and will not be able to argue that the time period has elapsed.

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Mr Phil Willis (Shadow Secretary of State for Education and Skills, Education & Skills; Harrogate and Knaresborough, Liberal Democrat)

That is not clear.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

I am trying to clarify the position, which I hope offers reassurances to disabled students, their representative organisations and hon. Members, and addresses the anxieties they have outlined.

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Mr Tim Boswell (Daventry, Conservative)

I am grateful, and if I may say—as I did not earlier, and it would be most churlish not to—I am most grateful for the Under-Secretary's remarks personally.

Will he make it clear to the Committee that there is no handle within the Bill in any sense regulating or constraining the operation of the university's internal procedures? I do not want to debate that now, but if the university is carrying out an internal inquiry there

is no time limit on that. There is no way of reducing it to a reasonable time if it is clearly unreasonable for the student who has made the complaint.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

There will be a debate later on in this Committee about time scales and clarity of parameters in respect of the OIA, but this Bill does not deal with institutions' complaints processes and procedures. With that, I respectfully request that the amendment be withdrawn.

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Mr Tim Collins (Westmorland and Lonsdale, Conservative)

I welcome the fact that the Under-Secretary has recognised that there are serious issues here. However, there is a distinction on this matter between his response to amendment No. 184 and his response to new clause 4. His response on amendment no. 184 was extremely welcome because he indicated that, although he could not accept the amendment at the moment, the Government would undertake to look at these matters again. He asked us to withdraw the amendment on that basis, and we would be happy to do so. However, I look to you, Mr. Gale, for guidance on this point. Given that I was not entirely satisfied by what the Under-Secretary was able to say about new clause 4, may we have a Division on that?

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Mr Roger Gale (North Thanet, Conservative)

It will be possible to divide on clause 4, but not at this point in the Bill. We will reach the appropriate point later in our proceedings, and I am sure that I will consider the matter then if I am given notice.

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Mr Tim Collins (Westmorland and Lonsdale, Conservative)

I am grateful to you, Mr. Gale. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10:45 am
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Mr Simon Thomas (Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport); Ceredigion, Plaid Cymru)

I beg to move amendment No. 210, in

clause 12, page 5, line 21, at end add—

'(3) In this Part ''complaint'' means an expression of dissatisfaction with services provided or actions taken.'.

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Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss amendment No. 211, in

clause 20, page 8, line 4, at end insert—

'''complaint'' has the meaning given in section 12;'.

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Mr Simon Thomas (Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport); Ceredigion, Plaid Cymru)

Such Bills are usually stuffed full of definitions, but the definition of a qualifying complaint is not terribly convincing. I was more taken with that proposed by the Quality Assurance Agency for Higher Education, which is set out in amendment No. 210. We could argue for a long time about the definition of a complaint, but it might be a bit more useful if the Under-Secretary could give us an assurance that the Bill adequately defines a qualifying complaint and that those who feel aggrieved have sufficient grounds to make a complaint. The purpose of the amendment is to probe the arguments behind the definition in the Bill.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

Hon. Members will be pleased to know that I am not going to get into a long debate the definition of a complaint—[Interruption.] Some are disappointed, and I am sorry about that.

The problem with amendment No. 210 is the principle. When defining a complaint or a grievance, it is sometimes better not to be too prescriptive. Otherwise, we may end up trying to achieve something that is simply not possible. The hon. Gentleman says that the amendment would capture

''dissatisfaction with services provided or actions taken.''

That is perfectly reasonable, but it would rule out other matters that might form the basis of a valid complaint. To take just one example, the amendment would not capture an institution's failure to take action. We would, therefore, find ourselves in great difficulties if we sought to prescribe the definition of a complaint too clearly, too closely and too narrowly. We would also give lawyers yet more excuses to make lots of money, although I am very fond of some of the lawyers on the Committee.

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Mrs Anne Campbell (Cambridge, Labour)

Will my hon. Friend clarify whether the definition of a qualifying complaint would include a complaint about discriminatory questions or attitudes during the interview process? He will be aware that several complaints have been made against universities whose interview processes students have judged not to be completely fair.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

That is a very fair question, but the answer is no, because those circumstances relate to admission. The student would have the option of going to the courts to seek judicial review or of turning to discrimination legislation.

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Mr Jonathan R Shaw (Chatham and Aylesford, Labour)

On a point of further clarification, will my hon. Friend clarify whether the clause would cover a student who complained about inappropriate comments that a lecturer may or may not have made?

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

I assume that my hon. Friend means inappropriate comments made during the student's time at the institution rather than during the process of applying to that institution.

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

That would be a legitimate source of complaint. If a lecturer made an inappropriate comment or asked inappropriate questions, the student would be able to make a complaint under the institution's procedures. If they were not satisfied with the outcome, they could go to the OIA.

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Mr Tim Boswell (Daventry, Conservative)

Given that the clause also relates to former students, will it bind institutions that provide such students with academic references?

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

I doubt it, but I will seek clarification on that and write to the hon. Gentlemen.

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Mr Simon Thomas (Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport); Ceredigion, Plaid Cymru)

I want to clarify one thing. The Under-Secretary has explained why the clause is worded as it is. Does he expect the OIA to develop its own guidelines on what constitutes a complaint?

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

Yes, and it is important that the process is, as far as possible, transparent and clear. The OIA should make the bounds of its jurisdiction clear to

potential complainants, but there will always be areas of ambiguity; that is where we must be clear about the role of the reviewer, or adjudicator.

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Mr Jonathan R Shaw (Chatham and Aylesford, Labour)

I wish to press my hon. Friend on a point that I made earlier, which I am grateful to him for allowing me to make, to which he replied that a complaint made by a student about an inappropriate comment in a lecture would qualify. If a student were to make an allegation that a lecturer made a sexist or racist comment, surely it would not fall within the remit of academic judgment?

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Mr Ivan Lewis (Parliamentary Under-Secretary, Department for Education and Skills; Bury South, Labour)

Absolutely not. If that kind of remark or comment were made, it would first be a matter for the institution's complaints process. If the student were not satisfied with that process, it would definitely be a matter for the independent adjudicator. There is no doubt whatever about that. With that, I ask that the amendment be withdrawn.

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Mr Simon Thomas (Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport); Ceredigion, Plaid Cymru)

I thank the Under-Secretary for clarifying what constitutes a complaint. That was my purpose in tabling the amendment. However, his response to the hon. Member for Cambridge introduced another issue: the whole aspect of what the independent adjudicator will do, and the remit of that job. We will need to return to that issue, probably on Report, to discuss whether complaints made by university applicants should also be covered by the OIA. Following the Under-Secretary's explanation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 12 ordered to stand part of the Bill.