Mister Deputy Vice-Chancellor,
I shall confine my remarks to the sections of the Report pertaining to Statute K,5.
I speak as somebody who has made a number of representations under Statute K,5, and who has referred the handling of those representations to the Commissary. Whilst it is not my intention to give a blow-by-blow account of the case in pursuit of which I made those representations and referral (indeed, the matter became so overcomplicated that I stand no chance of delivering such an account in my permitted time), inevitably my views on the proposals in front of us today are shaped by that experience, and I shall draw on that experience where relevant.
On balance, I believe the proposals regarding Statute K,5 represent an improvement on the current situation. The mention of Orders and the consideration of the possibility of omissions as well as acts are significant and to be welcomed, as is the alteration of the appeal mechanism to remove the somewhat remarkable requirement that an appeal against a ruling can only be made via fifty members of a governing body that has probably not been informed about the ruling in the first place.
The Report does, however, raise a number of questions.
Firstly, there is the proposal without remark that the ability to make a representation should be restricted to a member of the University (currently it is not so restricted). I see very little advantage to this and significant disadvantage. As far as the advantage is concerned, making that restriction is neater in terms of the permitted mechanism of appeal: Statute D,V,7 only allows the Commissary to consider questions referred to his decision by a member of the University. I shall return to Statute D,V,7 later. If that is the reason for the proposed change, then I should compliment the draftsman for noticing the issue, although maybe the credit should go to the 2001 draftsman in this case. However, there is an obvious disadvantage contained in such a change: a person wronged as a result of a failure to act in accordance with a Statute, Ordinance or Order but who is not a member of the University would seem to be left with no recourse short of an application to the High Court for judicial review. Causing this to happen in a case that could have been dealt with quickly internally would seem to be a substantial waste of time and money.
Connected with this question is the proposed requirement that an appeal to the Commissary must be made by the person who made the original representation to the Vice-Chancellor. This requirement does not take into account the possibility that it may be more straightforward in the event of multiple similar representations for one representative appeal to go forward (in my case, another person had made a similar representation under Statute K,5, and indeed the Commissary turned down his application to be joined as a party in my referral on the grounds that it would serve no useful purpose). Neither does the requirement take into account the possibility that the matter may be one of general concern (my case was certainly not a personal grievance against a particular officer: as far as I was concerned, the officer in question simply happened to be the senior person whose name was on the relevant Ordinance, and I was acting regarding a matter of public concern), in which case another party may wish to take up the matter even if the original party has decided not to appeal.
Next, I wish to consider a somewhat technical matter, namely the interaction of the proposed revised Statute K,5 with Statute D,V,7. Statute K,5 may allow representations related to matters that are excluded from the Commissary's jurisdiction under Statute D,V,7. Would the Commissary then be able to consider such questions as a result of an appeal of a decision made by the Vice-Chancellor under Statute K,5? Surely the answer would have to be “yes”, and I believe this is what should happen. (Note that such a setup would not render useless the exclusions in Statute D,V,7, since they would still apply in matters that could not be considered under Statute K,5.) I believe, however, that it would be easier to avoid later dispute if this were more explicit.
In order to resolve the issues I have mentioned so far, I propose that the words “by a member of the University” be omitted from the proposed changes to Statute K,5, that the words “the person making the representation” at the beginning of paragraph (b) be replaced by “anybody”, and that a new paragraph be added to Statute D,V before paragraph 7, to read “The Commissary shall have full power to adjudicate any matter referred to him under Statute K,5.”
There are two matters that I consider to be somewhat more fundamental, namely the proposed change in timings and the identity of the officers acting in a judicial capacity within this process.
Firstly, the proposed change in timings. It is instructive to compare the rationales in the 2001 Report and in the current Report for proposing that instead of ten days, the Vice-Chancellor be given three months to investigate a matter. In 2001, the Report said “It is impracticable for the Vice-Chancellor, the officer with whom the responsibility for the correction of such mistakes naturally rests, to deal with all cases within ten days.”1 The current Report says “Provision is made for a longer time frame … for the Vice-Chancellor to make a decision … experience having shown that complicated applications require more time for consideration than the present Statute permits.” This alteration of wording is somewhat informed by my own experience, where the Vice-Chancellor’s investigation consisted of seeking the advice of the Administrative Secretary on the matter. I believe the Council can no longer therefore rely upon the argument that the timing must be lengthened in order to give a busy Vice-Chancellor time to investigate in person, since there is evidence of the resources of the Secretariat being called upon to assist in such an investigation.
Moreover, the Council seems quite happy to propose the retention of a thirty day period in which a single, individual member of the University with cause for complaint must prepare a full representation to the Vice-Chancellor – a full representation, not just prima facie evidence – yet the Council is telling the Regent House that the Vice-Chancellor – supported by the full resources of the Secretariat – needs more than three times as long to prepare a response as the single person potentially working alone needs originally. I suggest that the Council needs to decide which of these positions it wishes to hold. In my opinion, three months hardly makes Statute K,5 “a relatively swift administrative means of correcting breaches of the Statutes or Ordinances” (those are the Council’s words). (However, I do acknowledge that the sting in those words is in the word “relatively”, especially when the reference is to the velocity of action within some parts of the Old Schools.)
The second matter is the matter of who acts as judge when deciding representations of invalid proceedings. Professor Edwards five years ago quite eloquently summarized why the Vice-Chancellor is seldom the correct officer to act as a judge2, and has expanded on that summary a few minutes ago. I have only my own experience to add to this. When I first made a representation under Statute K,5, it was about an action (nominally) by the Registrary that I contended constituted a breach of Ordinance. (I should be clear that I had no particularly strong grievance about the Registrary's personal conduct.) The Vice-Chancellor's consequent actions were to seek advice from the Administrative Secretary on the matter and to turn that advice into a ruling. In her words, “I asked the Administrative Secretary of the University to look into your representation and I enclose a copy of his advice to me”. That is, it appears the bulk of the “investigation” into my representation was carried out by the Administrative Secretary, an officer who falls “under the overall responsibility of the Registrary”3.
Even if the Council believes that assigning the responsibility for acting as a judge in these matters to the Vice-Chancellor strikes the correct balance between distance from the University's administration for impartiality, and proximity to the University for speed, I put it to the Regent House that the practice is rather less balanced. (Perhaps it would not be out of order to remind the Regent House who nominally chairs Discussions?)
I am afraid that I believe the Council's reasons for not wishing to assign to the Commissary the first-instance judicial powers are somewhat tenuous. It would be a simple matter to make the Commissary the relevant officer exercising judicial capacity in a redrafted Statute K,5, and to make clear in Statute D,V that representations under Statute K,5 dealt with by the Commissary cannot be appealed to the Commissary.
Mister Deputy Vice-Chancellor, in summary on balance I welcome the proposals in this Report inasmuch as they affect Statute K,5; however, I believe the proposals regarding changes in allowed timings and the response to the suggestion that an officer other than the Vice-Chancellor act as judge may result less in service to the interests of justice and fairness, and more in service to the interests of administrators in the Old Schools who might prefer not to be challenged over questionable actions.
1. Reporter, 2000–1, p.699
2. Reporter, 2000–1, pp.775–6
3. Statutes and Ordinances 2006, p.651