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Why are UEG and Council refusing to share the Sussex response to the UUK USS 2020 consultation?


Unlike other university leaders, the Chair of Council and UEG continue to refuse to share Sussex's response to the recent UUK consultation on the USS 2020 valuation. This valuation is critical in determining the future of the scheme, since it proposes increases to contribution rates from the current level of 30.7% to between 40.8% and 67.9% of salaries. However, unlike at other leading universities, Sussex's leadership is refusing to publish or share the response with staff or Trade Unions.


Universities who publish their responses to UUK consultations on USS valuation documents and openly consult with staff include Bristol, Cambridge, Durham, Edinburgh, Imperial, Manchester, Oxford, St Andrews, Sheffield and UCL. Bristol and Oxford jointly write responses with staff through their pension fora. There are many more who consult and share their responses to UUK consultations over USS on staff intranets or with Trade Union representatives.


In addition to universities publishing responses, there are encouraging reports of UUK (representing Vice Chancellors) and UCU (representing staff) working well together on the USS pension issue through the Valuation Methodology Discussion Forum.


The UUK response of 13 November to the USS 2020 valuation documentation describes it as ‘unhelpful’, ‘unreasonable’ and ‘unrealistic’. While Cambridge’s Vice Chancellor, UCU president and other leaders have since written jointly to the CEO of USS to state their shared concerns over the 2020 valuation documentation referring to the need for ‘an acceptable and fair outcome to employers and USS members’, calling for USS Trustees and Executive to re-engage and the ‘potential for long-lasting damage to the UK higher education sector’.


Disappointingly, at Sussex, the UEG and Chair do not seem to share this spirit of collegiality even to the extent of sharing responses to UUK USS consultations retrospectively.


Chair of Council’s reply on the refusal to share the consultation response


On 26 November Chair of Council replied to an open letter from over 100 USS members at Sussex stating that the Sussex UUK USS 2020 valuation response would not be shared with staff on the grounds that


deliberation would likely be inhibited if there were the disclosure of consultation responses whilst the USS dispute remains live.


The Chair's response does add some information beyond the very small amount that had been published in the Staff News item on USS of 28 October, by reporting that the Sussex response ‘was closely aligned to the UUK commentary and the Aon technical advice’ (both available here). However we remain unclear why the Sussex response remains hidden, given that the Chair also states in her letter that this response is ‘relatively uncontroversial’, and given that previous consultation responses have been shared with staff.


The VC’s rationale for the refusal to share the consultation response


Also on 26 November, a Freedom of Information request for the Sussex response to the UUK USS consultation was refused on the same grounds as cited by the Chair of Council: that an industrial dispute over USS was live. The Sussex statement of refusal said:


Although the University holds the requested information, it is being withheld under Section 36 of the [Freedom of Information] Act: prejudice to the effective conduct of public affairs. The University's qualified person, the Vice-Chancellor, has given a reasonable opinion that if the requested information were disclosed, it would be likely to inhibit the University’s ability to conduct a free and frank exchange of views for the purposes of deliberation and that disclosure would be likely to prejudice the effective conduct of public affairs.


Also:


There needs to be a safe space to allow open and honest contributions, in order to inform ongoing national discussions and negotiations, particularly in circumstances where the USS pension has been the subject of industrial action. The guidance published by the Information Commissioner’s Office recognises the importance of a ‘safe space’ where an issue is still live. The University’s ability to conduct a free and frank exchange of views with USS for the purposes of deliberation would likely be inhibited if there were the disclosure of consultation responses whilst the USS dispute remains live. That would also be likely to prejudice the effective conduct of public affairs as it could undermine the ability of the University to effectively and fully respond as a USS sponsoring employer. Loss of frankness in the consultation could lead to less well formulated decisions and outcomes.


Also:


Further, the requested information relates to the ongoing issue of the methodology for the valuation of the USS pension scheme, and there is a strong public interest that such discussions are properly conducted based on a full and frank exchange of views, given the importance of the issue to the University, its staff and the higher education sector more broadly. Therefore, the University considers that maintaining the exemption is necessary to meet the public interest in facilitating such discussions and in the effective conduct of public affairs, and so outweighs the public interest in disclosing the information. [1]


On 30 November 2020, in his open forum the VC gave the same explanation again. In response to this question:


With regard the UUK USS 2020 valuation consultation, despite repeated requests Sussex has not shared their response and yesterday an FOI was refused. … How does this square with the statement ‘we will always be as open as we possibly can with you’?


He responded [at 55:00]


So the reason we don’t release that is because this is part of an industrial relations negotiation and case law is really clear that when universities do release information pertaining to industrial relations it makes for bad industrial relations in future. So that’s a clear policy. The Information Commissioner has upheld this in terms of the University of Nottingham refusing this in the past, and I think one of the reasons that universities do release their consultation responses, is because they are not aware of that case law. So it’s about making sure that industrial relations can be conducted in as clear and effective way, recognising there are differences of opinion between the trade union UCU and employers.


The Information Commissioner’s decision of July 2018


The Vice Chancellor is mostly likely referring to the Information Commissioner's decision of July 2018 relating to the request for the University of Nottingham's 2014 and 2017 responses to UUK USS consultations. The Information Commissioner's decision can be read here along with the associated correspondence.


The Information Commissioner's decision [point 12] records that on 16 April 2018 the Commissioner asked the University of Nottingham to reconsider its position and disclose the withheld consultation responses. On 3 May 2018 Nottingham stated that the withheld information would be disclosed only when the USS/UCU joint committee [JEP] had published its report in the autumn [point 13] on the grounds that ‘to disclose the information ... prior to the outcome of the joint UUK/UCU Committee would be likely to prejudice the effective conduct of public affairs’ [point 14].


The Information Commissioner decided this argument did not apply to the 2014 consultation response on the grounds that ‘there have been official updates and the debate and considerations have evolved since 2014’ [point 44] but upheld Nottingham's refusal to publish the 2017 consultation response only until the publication of JEP's first report in Autumn 2018.


However Nottingham shared their full 2017 response a month later in August 2018, before the JEP produced their first report in September. Again in May 2019, Nottingham University published their full response to the UUK USS consultation conducted at that time, in advance of the JEP second report published in December 2019. [2]


It seems clear that the single ICO decision was time limited and related to the unique circumstances of July 2018, and that despite their technical win Nottingham chose to act in the best interests of the institution and the sector and share their response. In this context the position of the Sussex VC and Chair, in claiming that the Information Commissioner's decision of July 2018 has set a precedent for the refusal by Sussex to share their 2020 consultation response appears extremely weak. This is so especially against the backdrop of significant recent moves across the sector to be more open and transparent in relation to the USS.


It will, of course, take a complaint to the Information Commissioner to test this argument, but the position of the Sussex VC that ‘case law is really clear’ and that other universities ‘are not aware of that case law’ appears implausible.


The Vice Chancellor on transparency


On 21 May 2020, in his open forum [at 25:00] the Vice Chancellor affirmed


We will always be as open as we possibly can with you.


On 30 November 2020, in his open forum [at 44:08] the Vice Chancellor reaffirmed that the management would be as transparent as possible, stating:


We will be open and transparent... I can give you my absolute commitment that we will share as much as we possibly can with you all along the way.


The View from the VC on the same day ended by again reaffirming


I promise to carry on being as open and transparent with you as possible as we continue along this journey together.


On 15 May 2020, UUK and UCU issued a joint position statement on USS which included this passage:


Stakeholders are committed to ensuring transparency. So that stakeholders can understand all the issues and arrive at well-reasoned solutions, discussions between them should be informed by sharing as much information as possible.


The employer representative will encourage participating employers to seek local feedback, for example through the formation of local working groups, on developing USS issues.


So it is especially disappointing given both the Vice Chancellor's repeated commitments to transparency above and his role on the Board of UUK and as Chair of the USS Group of the Employers Pension forum that Sussex seems to be leading the sector in opacity.


It is clear that Sussex can be more transparent. It is also clear that such transparency would benefit relations with staff as it does at other universities. Taking a small step by releasing a document which the Chair of Council has said is 'relatively uncontroversial' would build trust.


In line with Sussex’s stated values of collaboration and inclusion and the VC's personal commitment to transparency, and in the hope that we can work together openly to solve a common problem, we ask again for the University’s response to the USS UUK 2020 valuation to be shared with staff.


Sussex UCU Pensions Working Group

Sussex Exec and Reps


With many thanks to colleagues at Bristol, Nottingham and Sheffield.


[1] A request for an internal review was sent to the University on the same day as the refusal of the FOI request, with a note saying that should this be refused it would be taken to the Information Commissioner's Office.


[2] The Nottingham 2020 consultation response has also recently been published in full (note added 15 December 2020).





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