Higher Education and Research Bill

Lord Judge Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 8th March 2017 Lords Chamber

Moved by

[Lord Judge]

117: Clause 46, page 27, line 24, leave out from “appeal” to end of line 27 and insert “shall be on the grounds that the decision was wrong.”

[Lord Judge (CB)]

My Lords, I declare my interests as the commissary for the University of Cambridge and a visiting professor at King’s College London. I regard Amendment 123 as consequential on Amendment 117. The amendment arises in the context of what was described just a few minutes ago as the last-resort power, granted by Clauses 44 and 54 of the Bill. The OfS has power to revoke the authority of a university to grant degrees and to deprive the university of the name and title “university”. They are, either or both, processes that would destroy the university in question.

The Bill envisages an appeal process but, certainly in relation to these powers—in my respectful submission, destructive powers—it would be depressingly inadequate. The objective of Clause 46, and Clause 56 as amended, is to provide an appropriate remedy for such a destructive power. A remedy is provided in the Bill: a form of judicial review. I am not sure that many in this House will often hear a former judge deride a remedy by way of judicial review, and I am not deriding it—I am saying that it is not good enough, because a judicial review has limitations. It provides for an assessment of the process for correcting errors, but it is not, and never has been, a remedy that enables the merits, or otherwise, of a particular case and decision to be considered. In other words, it does not provide for a full appeal from the decision—rather a review of the way in which the decision was reached.

My argument is very simple: that simply will not do here. You cannot win a judicial review, and the grounds provided in the present Bill do not enable you to provide an argument based on this simple proposition that the decision was wrong—that’s it—and it should. A step of this kind, which can lead to the destruction of a university, is so serious that the university should be entitled to go to the First-tier Tribunal with the simple argument, “This is not good enough. Your judgment is wrong. You have made a premature decision. You have made a decision that is too severe”. None of those arguments is encapsulated in the present basis for appeal that is provided.

A university can argue that the decision was wrong in law, but that is not much of a concession, since being wrong in law is being wrong in law. It can argue that the decision was unreasonable, but unreasonable does not mean wrong. Two perfectly reasonable people can disagree. Both would be reasonable; neither would be unreasonable. To be unreasonable in the law—and I hope that I shall be excused for using this sort of language—you have to be able to show that the decision was batty, which is not quite what we have in mind here. As to the facts, that does not help very much, because what matters is the inference that you draw from the facts, and subsection (2)(c) of this clause, listing the present grounds, underlines how limited the basis of appeal would be.

The argument is that we are dealing with the issue of last resort—the final destruction of a university and an institution’s ability to grant degrees—and we are saying that, at best, you are entitled to a judicial review. I speak of course in the context of the university, but it is just worth bearing in mind that we are also talking about something that affects the students at that university as well as the staff and those who have left that university, particularly those who have left it in the last few years, on whose CV there appears a first class honours degree from X failed university. From their point of view, it would be just as catastrophic as it would be for the university itself.

Finally, we must hope that these powers will never be used and that the issue will never arise for decision. If it does arise, it will be a very rare occasion. If what we are considering is an issue of this importance, which will, one hopes, occur only very rarely, we must make a proper remedy. I beg to move.

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[Lord Young of Cookham]

The noble and learned Lord qualified his question with the remark “with the resources at my disposal”. The answer is that I do not have that answer at my disposal, but I will of course make inquiries and write to him.

[Lord Judge]

My Lords, we have just heard an utterly reasonable argument but, with great respect, it is wrong, and that is the issue the amendment is intended to address. Reasonable decisions may be wrong. Looking at this issue in depth, one hopes that the power will never have to be exercised. However, if it is, it will be an extraordinary power wielded by the OfS and it will not be open to the university in question to say, “We agree. All your facts are well set out but you have reached the wrong conclusion”. That seems to be a ground of appeal that ought to be available.

We need not worry that amending the clause in the way we have respectfully suggested will lead to a huge torrent of cases. We hope that there will be no case at all but, if it arises, the straightforward way to go about it will be to say to the tribunal, “We are arguing that this was wrong”. The tribunal is well able to assimilate the reasons why the OfS reached the decision it did, and will hear argument on behalf of the university. I propose to ask for the opinion of the House.

--- Later in debate ---

Moved by

[Lord Judge]

123: Clause 56, page 36, line 9, leave out from “appeal” to end of line 12 and insert “shall be on the grounds that the decision was wrong.”