University refuses to say whether it sought legal advice on rumoured ‘carve-up’ plans

The University of South Wales has refused to say whether it took legal advice on whether competition law would allow it to “carve up” academic courses with other universities.

Earlier this year, as part of a huge cuts programme at Cardiff University involving a potential 400 job losses, it was strongly rumoured that the two universities had discussed USW taking over entirely the future provision of nurses for NHS Wales.

Cardiff’s original proposals included shutting down its nursing department, although that was withdrawn during the statutory 90-days consultation period with the unions.

It was suggested that any discussions between Cardiff and USW would be in breach of competition law.

Cardiff cuts

In an interview with The Times, Cardiff’s Vice Chancellor Professor Wendy Larner said competition laws should be changed drastically so that universities were not forbidden by the Competition and Markets Authority (CMA) from discussing whether to drop subjects offered by other institutions.

But Prof Larner denied meeting with her counterpart Vice Chancellor at USW, Dr Ben Calvert, to discuss matters that impinged on Cardiff’s cuts programme, like the closure of Cardiff’s nursing school and the possibility of USW expanding its provision of nursing courses.

Using the Freedom of Information Act, Nation.Cymru submitted a series of questions to USW:

Please supply the Vice-Chancellor’s appointment diaries for October, November and December 2024.

Has the university sought legal advice on competition law in respect of course provision and supply and if so, when.

Did the Vice Chancellor discuss nursing provision with the Vice Chancellor of Cardiff University at any time in 2024?

Any file notes of conversations with the Vice-Chancellor of Cardiff University.

Complicated

In its response to us, USW confirmed that it held the Vice Chancellor’s diaries, but said it would be too complicated and disruptive to spend time assessing each of his meetings to see which should remain confidential.

The response also stated that no information was held on whether the Vice Chancellor had met the Vice Chancellor of Cardiff University and therefore whether any notes of such conversations were held.

Responding to the question as to whether legal advice had been sought, USW stated: “Upon careful consideration, we consider that we are unable to confirm or deny whether this information is held for this part of your request as the following exemption applies: S42(2) [of the Freedom of Information Act 2000] – Legal Professional Privilege.

“To confirm or deny whether we hold information about legal advice in relation to this very specific question would, it itself reveal something about the substance of that advice. ‘Substance’ means the content, rather than simply the general subject of the advice.

“We must consider whether the public interest in maintaining the exemption outweighs the public interest in disclosure.”

Disclosure

The response then listed points in favour of disclosure:

“The general public interest inherent in this exemption will always be strong due to the importance of the principle behind Legal Professional Privilege: safeguarding openness in all communications between client and lawyer to ensure access to full and frank legal advice, which in turn is fundamental to the administration of justice.”

On the other hand, said USW: “The public interest factors in maintaining the exemption concerns the fact that legal professional privilege is an essential principle of the legal system. There is a public interest in maintaining the ability for legal advisors and clients to be able to have full and frank discussions without the fear that such information will be made public which serves the wider administration of justice.”

Deciding that not answering the question was the right course, USW said: “Having considered these factors, the university is satisfied that, in this instance, the factors in favour of maintaining the exemption outweighs those in favour of confirming or denying whether the information exists. “This is based on the rationale behind the concept of legal professional privilege which is to ensure frankness between lawyer and client which is fundamental to the administration of justice and any disclosure to this part of your request would confirm the content or substance of any legal advice provided.

“As such we are refusing this part of your request under Section 42 of the Freedom of Information Act 2000. In accordance with section 17 of the Freedom of Information Act, this letter acts as a Refusal Notice for this part of your request.”

‘Fishy’

Commenting on the refusal to answer the question, an academic who did not wish to be identified said: “Something fishy is going on here.

“Why is the university hiding behind exemptions on a matter of serious public interest involving potential collusion by universities to get round public procurement rules? The Welsh Government needs to dig into this forensically.”