STUDENT UNION DEMOCRACY – 12 July 1999
Dr Julian Lewis: I am grateful for the support of my honourable – my very honourable – Friends the Members for Ludlow (Mr Gill), for Buckingham (Mr Bercow), for New Forest, West (Mr Swayne) and for South Cambridgeshire (Mr Lansley). I am delighted to see that this important debate has attracted the attendance of some Government Back Benchers, too.
As I have already advised the Minister's office, I want to talk about three topics.
The first is the way in which student union officers should be democratically elected and, if appropriate, removed from office. The second is the way in which independent assessors should be appointed to investigate grievances against student unions by their members and should conduct themselves with regard to the complainant, the union and the university. The third is the method by which failures by student unions to observe the law, or by the university to see to it that they do, can be challenged successfully by students themselves.
In that connection, I thank the Clerks of the Table Office, who have guided me through a difficult constitutional problem in bringing this debate before the House. I fully acknowledge – as they have pointed out – that the Minister does not have responsibility for the way in which individual universities have chosen to apply or failed to apply the legislation. I shall look to him tonight merely to comment on the lessons that are illustrated by the case that I propose to examine, rather than the merits of that case itself.
It would be helpful to the House if I briefly select from the Education Act 1994 the most relevant provisions dealing with democracy in student unions. Section 22(1) states:
"The governing body of every establishment to which this Part applies shall take such steps as are reasonably practicable to secure that any students' union for students at the establishment operates in a fair and democratic manner".
Section 22(2)(d) states:
"appointment to major union offices should be by election in a secret ballot in which all members are entitled to vote".
The section obviously refers to the concept of a cross-campus ballot, as opposed to the open meeting with votes taken on a show of hands.
Section 22(2)(e) states that
"the governing body should satisfy themselves that the elections are fairly and properly conducted".
Section 22(2)(m) states:
"there should be a complaints procedure available to all students or groups of students who ... are dissatisfied in their dealings with the union ... which should include provision for an independent person appointed by the governing body to investigate and report on complaints".
Section 22(2)(n) states:
"complaints should be dealt with promptly and fairly and where a complaint is upheld there should be an effective remedy."
That legislation, introduced after much nagging of the previous Government, is good legislation as far as it goes, but the case I am about to outline of the experiences of Miss Margaret Whelan – who became for a brief period president of the students union at Oxford Brookes university, which is the former Oxford polytechnic – may bring to the Minister's attention doubts that I have about whether it is adequate.
When I have finished recounting Miss Whelan's experience to the House, I shall look to the Minister for answers to five points. First, do the Government support, and intend to retain, the legislation relating to democracy in student unions? Secondly, if so, do they agree that the existing legislation rules out the removal of a student union president who has been elected by a full cross-campus ballot by means of overturning the result on a show of hands at an open meeting? That is what happened in Miss Whelan's case. Thirdly, if the Government feel that the existing legislation does not rule that out, do they agree that that loophole should be closed by amending the Education Act 1994? Fourthly, do the Government agree that the findings of the so-called independent person – the external person to whom, in the final analysis, the student can appeal, as laid down in the Act – should be subject to rejection by the university if it does not like the findings, or is it the Government's understanding that the Act means that the verdict of the independent person should be final?
Finally, and perhaps most importantly, what suggestions can the Government make for sanctions to be taken against a university that has failed to ensure that the student union has conducted itself in accordance with the provisions of the Act, or for sanctions that the aggrieved student can take against the union if it is in breach of the provisions of the Act? I am conscious that we are talking about young people with few resources, if any, who seldom are able to go to law but who have to take on large, entrenched interests. In contrast, the student unions have significant sums of public money at their disposal with which to fight their battles.
I believe that the provisions of the 1994 Act will remain a dead letter unless students are empowered to enforce them. That might be accomplished by means of a special legal aid provision, where a prima facie case of abuse can be shown to exist. Those are the points to which I look to the Minister to reply.
I turn now to the events at Oxford Brookes university, starting in 1994 when the Act was published. Things began rather well, in fact. The university's deputy vice-chancellor in charge of corporate services, Mr Brian Summers, prepared a memorandum for the university's board of governors. The memorandum was entitled Education Act 1994 – Students' Unions. It was dated 22 November 1994, and given the reference BG94/101.
The memorandum showed that the board of governors was fully aware – right from the start – of the new obligations in respect of student unions placed upon it by the Act. In particular, paragraph 2 noted:
"The first part of the Act requires the Governing Body to take such steps as are reasonably practicable to secure that the Students' Union operates in a fair and democratic manner."
With regard to the 1994 Act's requirement that the governing body should satisfy itself that the elections are "fairly and properly conducted", the memorandum made the following crucial admission:
"The rules for the elections, which are a schedule to the existing constitution, are comprehensive and fair. However, the results of an election can be overturned by a general meeting of the Students' Union (which might only involve 200 members) and from the point of view of the Board's duties and responsibilities" –
that means, under the new Act –
"this may not be satisfactory."
That is precisely what happened in the case of Margaret Whelan. As for the requirement for a prompt and fair complaints procedure leading to an effective remedy, paragraph 3 of the memorandum, in sub-paragraphs (m) and (n), recommended that complaints should first be made by reference to the president of the student union. The complainant, if dissatisfied, would then be referred to a panel of three staff members appointed by the university's vice-chancellor. Finally, the chairman of the board of governors would, if requested by the complainant, appoint an
"independent person ... to conduct an inquiry. The person will not be a current student or member of staff with the University, a Governor or other office holder or agent of the University and will be appropriately skilled to deal with complex complaints."
The provisions made it clear that Oxford Brookes university was aware of the need to ensure that any independent person appointed to hold an inquiry into the way in which the university had dealt with a complaint must be untainted by any special motivation to assist the university to avoid the embarrassment of having its handling of that complaint criticised. In other words, the complainant should be able to have confidence that, if the independent person found that the complainant had been denied justice by the university's complaints procedure, that would be fully revealed in the independent person's adjudication.
I now turn to the constitution of the Oxford Brookes student union – OBSU. As has been seen, memorandum BG94/101 admitted that
"from the point of view of the Board's duties and responsibilities,"
"may not be satisfactory ... that the results of an election can be overturned by a General Meeting of the Student's Union".
Nevertheless, that is precisely what the constitution of the student union continued to permit.
Section 8 of that constitution was divided into clauses dealing with motions of censure and with motions of no confidence. A motion of no confidence was defined as
"a detailed motion stating that any [Union Executive Council member or Committee] cannot be relied upon to perform his/her/its duties competently".
If passed, such a motion would "effect immediate dismissal".
As the deputy vice-chancellor's memorandum had recognised, that meant that the outcome of a democratic election, required by section 22 of the 1994 Act to be held
"in a secret ballot in which all members are entitled to vote",
could be immediately overturned by a simple majority at a general meeting with a quorum of only 200 students. That made a mockery of the provisions of the Act, which laid statutory duties on the board of governors to ensure that the university student union
"operates in a fair and democratic manner".
Five times as many students participated in the ballot that elected Miss Whelan as president of the OBSU as participated shortly afterwards in the meeting that ousted her. Indeed, the general manager of the OBSU and an employee of the union, Miss Catherine Lord, in a letter published in The Oxford Independent in March 1996 commented:
"The Students Union Executive are aware of some anomalies in the Constitution, including parts of it which were outlawed by the 1994 Education Act which took effect in April 1995" –
let us remember that that letter was published in March 1996 –
"It is not a quick task to re-write a constitution but a Constitution Working Party has been set up to address the issue with a deadline for a final draft to be produced by August 1996."
A memorandum had been produced in autumn 1994, which had been approved by the board of governors. All that was required was the approval and agreement of the student union and it would have been enacted at once in the internal legislation of the university. However, two years later, no move had been made to regularise the constitution, nor was any such move made the following year. In fact, even though the university could have put the constitution of the student union into line with the provisions of the new Act in 1994, it did not happen then and it did not happen in 1995, 1996 or in 1997. Eventually a new constitution appeared in October 1998. Whether it was pure coincidence that this finally happened at a time when it was becoming apparent to the university that Margaret Whelan was not going to let the matter drop, and that it might be aired in a more public place, is obviously a question of conjecture.
Despite some extremely unpleasant incidents of intimidation, on 4 March 1995, Margaret Whelan won the election in a cross-campus ballot in which more than 1,000 students participated. No sooner had she become president-elect – she was not due to take up office until 31 July – than a move was made by a caucus of students to overturn the result of the election by calling an open meeting. Acting alone, she managed to obtain an injunction to stop that disgraceful procedure from taking place. She received practically no support from the university and the student union wasted nearly £800 of public money vainly trying to resist the granting of the injunction.
Margaret took up office as president on 31 July, when most students were away from the college. A new motion of no confidence was therefore tabled for 5 October, which was the earliest practical date at which students might be available on the college campus to come to a meeting and kick her out.
I shall give only one fleeting example of an unpleasant incident, although I have a raft of more horrible examples with which I shall not burden the House. On the morning of the 5 October meeting, Margaret Whelan discovered a message on her answerphone informing her that the venue for the crucial lunchtime meeting had been changed, allegedly because of the sudden discovery that the advertised room for the open meeting had been double-booked. Almost all her supporters thus found themselves in the wrong place because of a failure properly to direct them to the new location. Nevertheless, strangely enough, some 180 of her opponents – just over half the total number that had voted for the candidate whom she had defeated in the cross-campus ballot for the union presidency in March – had somehow managed to come to the new venue for the meeting.
There followed procedural moves to bring the motion of no confidence against Margaret Whelan to the top of the agenda. The proposer and seconder of the motion were allowed to speak for two minutes each; she was allowed a similar period amid constant heckling and the interjection of two purported points of information that were actually further speeches against her. That 4:1 imbalance was then reinforced by a procedural motion to move straight to a vote, which was of course carried by a large majority.
Mr Nicholas Winterton (Macclesfield): Disgraceful.
Dr Lewis: I apologise to my hon. Friend for not having noticed his presence and support until his timely intervention. As he rightly says, the proceedings were indeed disgraceful. By those means, Miss Whelan was ousted from the presidency of the Oxford Brookes student union.
In the few moments remaining to me, I shall state what happened when I became involved in the matter. After Margaret Whelan had been through the complaints procedure, a report eventually came from the independent person who had been appointed to consider the case. That gentleman was Mr Guy Whalley, who is a retired lawyer, a former senior partner in the London law firm of Freshfields, chair of the governing body of the Royal Academy of Music and chair of the medical services committee of a local health authority. When Mr Whalley provided his report, it was covered by a letter marked "in strictest confidence". The letter said:
"The Report is submitted on the basis that it is strictly confidential to the members of the Board and will not be shown to any other party (including the Complainant). My reason for requesting confidentiality in this way is that the Report does contain sensitive material which, if vouchsafed to a wider audience, could create difficulty, particularly if you and your colleagues decided not to accept any of the Report's recommendations. At some point, however, a summary of the conclusions accepted by the Board will have to be given to the Union and the Complainant."
I have spoken to Mr Whalley about that, and in his defence he points out that his terms of reference did not mention the 1994 Act. He was asked to report to the university, and only the university, and rightly or wrongly he decided that that was where his obligation lay. It must be said that in none of the internal inquiries into the complaints or the terms of reference as stated to the external independent person was any reference made to the existence of the 1994 Act and its provisions for a complaints procedure.
Finally, I sent a series of 25 questions to Mr Summers at Oxford Brookes university, having had a long telephone conversation with him, to give him an opportunity to respond, just as Mr Whalley was given an opportunity to respond. I hope that I have done justice to Mr Whalley's response in the very brief time available to me. The university's response was, to put it mildly, disappointing. For example, it said:
"Your point is that the Board reviewed the Students' Union Constitution in 1994 and identified some elements which might benefit from review, however, it was some time before any changes took place."
Well, one could call four years' continuation of an illegal constitution – four years following the university's identification of what needed to be done to the OBSU constitution to make it legal – "some time". The letter continued:
"While it is difficult to accurately account" –
that is a nice split infinitive –
"for delays so many years on, these were in part occasioned by a genuine desire on the part of the Union to be thorough in redrafting and the need to secure the support of a quorate general meeting for any changes ... The Board had noted that the power of the general meeting to overturn the decisions of a Returning Officer in an election might not be satisfactory, but it had not considered that the removal of an officer by a general meeting required amendment."
The truth of the matter was, as Mr Summers had revealed to me in his telephone conversation, that the board had actually approved the recommendations of his own memorandum – BG94/101 – but the union had refused to go along with it and left the whole process in suspension for four years.
In this little David-and-Goliath battle, we have had arrayed on one side a caucus of student hacks, a distinguished board of university governors and an eminent independent person. Ranged against all of them was a 20-year-old recently orphaned undergraduate whose sole offence was fairly and squarely to win an election in a campus-wide democratic ballot. All of those whom I have mentioned succeeded, between them, in depriving her of her presidency; but, in my opinion, she succeeded in putting all of them to shame.
Mr Winterton: They ought to be ashamed of themselves.
Dr Lewis: Indeed they ought.
I end on a more positive note: although those gentlemen remain in their eminent positions, I will be happy to be witnessing next Friday the wedding of Miss Margaret Whelan to her fiance. I am sure that the whole House, in recognition of Miss Whelan's courage, if for no other reason, wishes her and Mr Mark Harper every future happiness.