REGINA
v.
LORD PRESIDENT OF THE PRIVY COUNCIL, EX PARTE PAGE
Lord Keith of Kinkel
Lord Griffiths
Lord Browne-Wilkinson
Lord Mustill
Lord Slynn of Hadley
LORD KEITH OF KINKEL
My Lords,
For the reasons set out in the speech to be delivered by my
noble and learned friend Lord Browne-Wilkinson, which I have had
the opportunity of considering in draft and with which I agree, I
would dismiss this appeal and allow the cross-appeals.
LORD GRIFFITHS
My Lords,
I have had the advantage of reading the judgment of Lord
Browne-Wilkinson with which I agree and I would dismiss this
appeal on the ground that certiorari is not available to challenge
the decision of a visitor on the ground of an error of law within
his jurisdiction. I add a few words of my own only because of the
difference of opinion between your Lordships on this question and
because what I said about the availability of certiorari in my
speech in Thomas v. University of Bradford [1987] A.C. 795 has
been interpreted to include an error of law by the Divisional Court
and the Court of Appeal which was not what I had intended.
It is in my opinion important to keep the purpose of judicial
review clearly in mind. The purpose is to ensure that those bodies
that are susceptible to judicial review have carried out their public
duties in the way it was intended they should. In the case of
bodies other than courts, in so far as they are required to apply
the law they are required to apply the law correctly. If they
apply the law incorrectly they have not performed their duty
correctly and judicial review is available to correct their error of
law so that they may make their decision upon a proper
understanding of the law.
– 1 –In the case of inferior courts, that is courts, of a lower
status than the High Court, such as the Justices of the Peace, it
was recognised that their learning and understanding of the law
might sometimes be imperfect and require correction by the High
Court and so the rule evolved that certiorari was available to
correct an error of law of an inferior court. At first it was
confined to an error on the face of the record but it is now
available to correct any error of law made by an inferior court.
But despite this general rule Parliament can if it wishes confine a
decision on a question of law to a particular inferior court and
provide that the decision shall be final so that it is not to be
challenged either by appeal or by judicial review. Such a case
was Pearlman v. Keepers and Governors of Harrow School [1979]
Q.B. 56 in which the dissenting judgment of Geoffrey Lane L.J.
was approved by the majority of the House of Lords in Re Racal
Communications Limited [1981] AC 374.
The common law has ever since the decision in Philips v.
Bury (1694) Holt K.B. 715 recognised that the visitor acting as a
judge has exclusive jurisdiction and that his decision is final in all
matters within his jurisdiction. The common law courts have
through three centuries consistently resisted all attempts to appeal
decisions of the visitor. The courts have however been prepared
to confine the visitor to his proper role as a judge of the internal
affairs of the foundation by the use of the writs of prohibition and
mandamus.
When I said in Thomas;
“I have myself no doubt that in the light of the modern
development of administrative law, the High Court would
have power, upon an application for judicial review, to quash
a decision of the visitor which amounted to an abuse of his
powers”
I used the words “an abuse of his powers” advisedly. I do not
regard a judge who makes what an Appellate Court later regards
as a mistake of law as abusing his powers. In such a case the
judge is not abusing his powers; he is exercising them to the best
of his ability albeit some other court thinks he was mistaken. I
used the phrase “abuse of his powers” to connote some form of
misbehaviour that was wholly incompatible with the judicial role
that the judge was expected to perform. I did not intend it to
include a mere error of law.
The decision in Racal shows that Parliament can by the use
of appropriate language provide that a decision on a question of
law whether taken by a judge or by some other form of tribunal
shall be considered as final and not be subject to challenge either
by way of appeal or judicial review. For three centuries the
common law courts have recognised the value of the visitor acting
as the judge of the internal laws of the foundation and have
refused to trespass upon his territory. I do not believe that it
would be right to reverse this long line of authority and declare
that certiorari should now lie to reverse the decision of a visitor
on a question of law. The value of the visitorial jurisdiction is
that it is swift, cheap and final. These benefits will be largely
dissipated if the visitor’s decision can be challenged by way of
judicial review. Many decisions may turn upon the interpretation
– 2 –
of the statutes and other decisions of a more factual nature can
all too easily be dressed up as issues of law under the guise of
“Wednesbury” principles. The learning and ingenuity of those
members of the foundation who are likely to be in dispute with
the foundation should not be lightly underestimated and I believe
to admit certiorari to challenge the visitor’s decision on the
grounds of error of law will in practice prove to be the
introduction of an appeal by another name.
The visitor is either a person holding a high judicial office,
or is advised on questions of law by such a person, in whose
decision on matters of law it is reasonable to repose a high degree
of confidence. I say this not because any holder of judicial office
should ever regard it as an affront to be overruled by an
Appellate Court but merely to emphasize that as a practical
matter the chances are that the visitor probably will get it right.
If it is thought that the exclusive jurisdiction of the visitor
has outlived its usefulness, which I beg to doubt, then I think that
it should be swept away by Parliament and not undermined by
judicial review.
I would add that in the present case I am satisfied that the
decision of the visitor was correct.
LORD BROWNE-WILKINSON
My Lords,
The appellant, Mr. Page was appointed a lecturer in the
Department of Philosophy at the University of Hull by a letter
dated 13 June 1966. The letter stated ‘The appointment may be
terminated by either party on giving three months’ notice in
writing expiring at the end of a term or of the long vacation.”
As a lecturer, Mr. Page became a member of the University which
is a corporate body regulated by Royal Charter. Section 34 of the
Statutes made under the Charter provides:
“1. The Vice-Chancellor and all Officers of the University
including Professors and members of the Staff holding their
appointments until the age of retirement may be removed
by the Council for good cause. . . .
2. . . .
3. Subject to the terms of his appointment no member of
the teaching research or administrative staff of the
University (including the Vice-Chancellor) shall be removed
from office save upon the grounds specified in paragraph 2
of this Section and in pursuance of the procedure specified
in Clause 1 of this Section.”
Section 34(2) defines the meaning of “good cause”.
On 30 June 1988 Mr. Page was given three months’ notice
terminating his appointment on the grounds of redundancy. It is
– 3 –
common ground that there was no “good cause” within the meaning
of section 34; the University was reiying on the three months’
notice term contained in the letter of appointment coupled with
the provision in section 34(3) that Mr. Page’s tenure was to be
subject to the terms of the appointment.
Mr. Page took the view that on the true construction of
section 34 of the statutes the University had no power to remove
him from office and terminate his employment save for good
cause. Your Lordships were told that Mr. Page started an action
in the Queen’s Bench Division for wrongful dismissal which action
was struck out on the grounds that the matter fell within the
exclusive jurisdiction of the Visitor of the University, Her Majesty
the Queen. Mr. Page then petitioned the Visitor for a declaration
that his purported dismissal was ultra vires and of no effect. The
petition was considered by the Lord President of the Council, on
behalf of Her Majesty. He sought advice from Lord Jauncey of
Tullichettle who advised that on the true construction of the
Statutes the dismissal was valid and intra vires. On that advice,
the petition was dismissed by the Visitor.
Mr. Page then applied by way of judicial review for an
order quashing the Visitor’s decision. Before the Divisional Court
(Taylor L.J. and Rougier J.) two issues arose: first, did the
Divisional Court have jurisdiction to review the Visitor’s decision
and, if so, second, was the Visitor’s construction of the Statutes
correct? The Divisional Court held that it had jurisdiction to
review the Visitor’s decision and that the Visitor’s decision was
wrong in law. They made an order quashing the decision and
made a declaration that “upon a true construction of the Statutes
of the University of Hull the University has and had no power to
dismiss Edgar Page by reason of redundancy and his purported
dismissal is without effect”.
The University and the Visitor appealed to the Court of
Appeal (Lord Donaldson of Lymington M.R., Staughton and
Farquharson L.JJ.) who upheld the Divisional Court’s decision on
jurisdiction but reversed its decision on construction taking the
view that the Visitor’s construction of the Statutes was correct.
Mr. Page appeals to your Lordships’ House against the
decision of the Court of Appeal on the construction of the
Statutes: the University and the Visitor cross appeal against the
decision on jurisdiction. I will deal first with the question of
jurisdiction.
As the argument was refined in the course of the hearing,
it emerged that the rival contentions came down to a narrow but
difficult issue. It is established that, a university being an
eleemosynary charitable foundation, the Visitor of the University
has exclusive jurisdiction to decide disputes arising under the
domestic law of the University. This is because the founder of
such a body is entitled to reserve to himself or to a visitor whom
he appoints the exclusive right to adjudicate upon the domestic
laws which the founder has established for the regulation of his
bounty. Even where the contractual rights of an individual (such
as his contract of employment with the university) are in issue, if
those contractual rights are themselves dependent upon rights
arising under the regulating documents of the charity, the visitor
– 4 –
has an exclusive jurisdiction over disputes relating to such
employment.
Those propositions are all established by the decision of this
House in Thomas v. University of Bradford [1987] A.C. 795 which
held that the courts had no jurisdiction to entertain such disputes
which must be decided by the visitor. However the Thomas case
was concerned with the question whether the courts and the visitor
had concurrent jurisdictions over such disputes. In that context
alone it was decided that the visitor’s jurisdiction is “exclusive”.
Thomas does not decide that the visitor’s jurisdiction excludes the
supervisory jurisdiction of the courts by way of judicial review.
On the contrary, my noble and learned friend Lord Griffiths (at
page 825) said this:
“Finally, there is the protection afforded by the supervisory,
as opposed to appellate, jurisdiction of the High Court over
the visitor. It has long been held that the writs of
mandamus and prohibition will go either to compel the
visitor to act if he refused to deal with the matter within
his jurisdiction or to prohibit him from dealing with a
matter that lies without his jurisdiction. . . . Although
doubts have been expressed in the past as to the availability
of certiorari, I have myself no doubt that in the light of
the modern development of administrative law, the High
Court would have power, upon an application for judicial
review, to quash a decision of the visitor which amounted to
an abuse of his powers.”
Lord Ackner (at page 828B) said that the case fell within
the exclusive jurisdiction of the visitor “subject always to judicial
review”.
Under the modern law, certiorari normally lies to quash a
decision for error of law. Therefore, the narrow issue in this case
is whether, as Mr. Page contends and the courts below have held,
certiorari lies against the visitor to quash his decision as being
erroneous in point of law notwithstanding that the question of law
arises under the domestic law of the University which the visitor
has “exclusive” jurisdiction to decide.
It is necessary first to consider in some detail the nature of
the visitor’s jurisdiction. After some earlier doubts on the matter,
the exclusivity of the visitor’s jurisdiction was finally confirmed in
Philips v. Bury [1694] Holt K.B. 715 where the reported dissenting
judgment of Holt C.J. was eventually adopted by this House. In
that case, the visitor of Exeter College, Oxford, had deprived Bury
of his office as Rector. The new Rector appointed in his place
had leased a house to the plaintiff Philips, who had been evicted
by Bury. Philips brought an action in ejectment against Bury.
Accordingly the issue in the case was whether the removal of Bury
by the visitor was valid or not. Holt C.J. held that two questions
arose: first, did the visitor have jurisdiction to remove Bury; if
so, second, was the visitor’s decision correct. He held that the
visitor did have jurisdiction and that “having that power, the
justice thereof is not examinable in a Court of Law, upon any
action concerning the [visitor’s] power”. He contrasted private
charitable bodies with public corporations and said this at page
723:
– 5 –
“And I think the sufficiency of the sentence is never to be
called in question, nor any inquiry to be made here into the
reasons of the deprivation. If the sentence be given by the
proper visitor, created so by the founder, or by the law, you
shall never inquire into the validity, or ground of the
sentence. And this will appear, if we consider the reason
of a visitor, how he comes to be supported by authority in
that office…. But private and particular corporations for
charity, founded and endowed by private persons, are subject
to the private government of those who erect them; and
therefore if there be no visitor appointed by the founder, I
am of opinion that the law doth appoint the founder and his
heirs to be visitors. The founder and his heirs are patrons,
and not to be guided by the common known laws of the
kingdom. But such corporations are, as to their own affairs,
to be governed by the particular laws and constitutions
assigned by the founder. . . . But you’ll say, this man hath
no court. It is not material whether he hath a court or no;
all the matter is, whether he hath a jurisdiction; if he hath
conusance of the matter and person, and he gives a
sentence, it must have some effect to make a vacancy, be
it never so wrong. But there is no appeal, if the founder
hath not thought fit to direct an appeal; that an appeal
lieth in the Common Law Courts is certainly not so. This
is according to the government settled by the founder; if
he hath directed all to be under the absolute power of the
visitor, it must be so. … As to the matter of there
being no appeal from an arbitrary sentence; it is true, the
case is the harder, because the party is concluded by one
judgment, but it doth not lessen the validity of the
sentence, nor doth it in any way prove that you shall find
out some way to examine this matter at law in a judicial
proceeding.”
Later, at page 727 Holt C.J. said this:
“I know no difference between this case and that of a
mandamus. In that case of Appleford there was a
mandamus brought, to restore him to his fellowship: it was
returned, that by the Statutes of the college, for
misdemeanour they had a power to turn him out; and that
the Bishop of Winchester was visitor, and that he was
turned out pro crimine enormi, and had appealed to the
bishop, who confirmed the expulsion; and the particular
cause was not returned: I was of counsel for the college,
and we omitted the cause in the return for that reason,
because indeed it was not so true as it should have been.
It was insisted, that we ought to show the cause in the
return, to bring it within the Statutes. It was answered,
here was a local visitor, who has given a sentence; and be
it right, or be it wrong, the party is concluded by it; and
you must submit to such laws as the founder is pleased to
put upon you. And Mr. Appleford was not restored. This is
an express authority to guide our judgment in this case.
Here is a local visitor hath given a sentence, he hath
declared the rector to be actually deprived of his place.
When shall we know when a deprivation is good? If not
upon a mandamus, why in an ejectment?”
– 6 –
The decision of Holt C.J. in Philips v. Bury is the locus
classicus of the law of visitors. It has been repeatedly applied for
the last 300 years, most recently in Thomas. For present purposes
it is important for three reasons:
1. It shows that the court can and will inquire whether the
visitor has jurisdiction to determine the question, i.e. to
enter into the matter.
2. If the visitor has such jurisdiction, the court has no
power to ignore it or review it by way of mandamus or in
any other way.
3. The reason for such lack of jurisdiction to review in the
court is that an eleemosynary corporation is governed by a
system of private law which is not of “the common known
laws of the kingdom” but the particular laws and
constitutions assigned by the founder.
As to the first of those points, the ability of the courts to
control the visitor by the prerogative writs has been established by
many cases. Thus, the court has by mandamus required a visitor
to exercise his jurisdiction: see R. v. Bishop of Ely [1794] 5 Durn.
& E. 475 and R. v. Dunsheath ex parte Meredith [1951] 1 K.B. 127
at 134. The court will also grant prohibition to restrain a visitor
from acting outside his jurisdiction: Bishop of Chichester v.
Harward and Webber [1787] 1 Durn. & E. 650. In one case, the
court indicated that it would intervene to prevent a breach by the
visitor of the rules of natural justice: see Bently v. Bishop of Ely
[1729] 1 Barn. K.B. 192.
As to the second point, there are numerous cases in which
attempts have been made to induce the courts to review or ignore
decisions of the visitor acting within his jurisdiction, all of which
have been unsuccessful. For some technical reason certiorari used
not to be available in such cases; but the aggrieved party applied
for mandamus to require the other parties to act on the footing
that the visitor’s decision was invalid. Thus in the case referred
to by Holt C.J., Appleford’s case (1672) 1 Mod. Rep. 82, the
plaintiff sought an order directed to the master and fellows of a
college to reinstate him as a fellow, the visitor having already
adjudicated that he had been rightly removed. Mandamus was
refused.
In R. v. the Bishop of Chester 1 W.B1. 22 the bishop as
visitor had removed the applicant as a canon. The applicant
sought mandamus directed to the visitor to restore him. The
order was refused. Lee C.J. said, “There is no precedent, where a
mandamus has gone to a visitor to reverse his own sentence”.
Wright J. agreed saying, “Visitors have an absolute power; the
only absolute one I know of in England”. Denison J. said, “This
court cannot control visitors”.
Similarly in R v. Bishop of Ely (supra) the applicant had
been removed as a fellow of Jesus College, Cambridge and had
appealed unsuccessfully to the bishop as visitor. He then applied
for a mandamus directed to the visitor to hear an appeal on the
grounds that the earlier appeal to the visitor had been no true
appeal at all. His counsel admitted that, by reason of Philips v.
– 7 –
Bury, the court had no power to order the visitor to correct his
decision however erroneous. Lord Kenyon C.J. said this at page
477:
“It was settled in Philips v. Bury, in which determination
the profession has ever since acquiesced, that this court has
no other power than that of putting the visitatorial power in
motion, (if I may use the expression,) but that if the
judgment of the visitor be ever so erroneous, we cannot
interfere in order to correct it. Now here the visitor
received the appeal; each party disclosed his case to him;
the whole merits of the case were before him; and he has
exercised his judgment upon the whole. If therefore we
were to interfere, it would be for the purpose of controlling
his judgment. But any interference by us to control the
judgment of the visitor, would be attended with the most
mischievous consequences, since we must then decide on the
statutes of the college, of which we are ignorant, and the
construction of which has been confided to another forum.”
Grose J. said:
“If the bishop had not exercised his judgment at all, we
would have compelled him: but it is objected that he has
not exercised it rightly; to this I answer that we have no
authority to say how he should have decided.”
This case seems to me clear authority that the court has no
jurisdiction to review the decision of a visitor made within his
jurisdiction.
In Ex parte Buller [1855] 1 Jurist N.S. 709 the applicant had
been expelled from his fellowship by the provost and fellows of
Kings College, Cambridge. His appeal to the visitor had been
dismissed. He sought mandamus directed not to the visitor but to
the provost and fellows to reinstate him on the grounds that the
provost and fellows had breached the rules of natural justice.
Coleridge J. held, quoting the judgment of Lord Kenyon in R v.
Bishop of Ely, that the court had no power to compel the visitor
“to correct or alter his decision although that decision may be
erroneous”. He said that mandamus would not go to the provost
and fellows because “a member of a college puts himself
voluntarily under a peculiar system of law, and assents to being
bound by it, and cannot thereafter complain that such a system is
not in accordance with that adopted by the common law.”
Mandamus was therefore refused because the visitor’s
determination provided a complete answer to the complaint of
breach of natural justice by the provost and fellows.
As to the third point (the reason why the court lacks
jurisdiction to review), the views of Holt C.J. are supported by the
passages I have already quoted from R v. Bishop of Ely (inability
to decide on the statutes of the college “of which we are ignorant
and the construction of which has been confided to another
forum”) and Ex parte Buller (“a peculiar system” which is not
required to be in accordance with common law). In Thomas this
House had to decide whether the jurisdiction of the visitor was
founded on membership of the university or (as the House held) on
the fact that a separate system of law was applicable. My noble
– 8 –
and learned friend Lord Griffiths referred (at page 814H) to the
visitor’s jurisdiction stemming from the power of the founder “to
provide the laws under which the object of charity was to be
governed and to be sole judge of the interpretation and application
of those laws either by himself or by such person as he should
appoint as a visitor” (emphasis added). He also referred to the
laws as being “domestic” and “the internal laws of the foundation”:
pages 815D and 816B. Lord Ackner referred to the function of
the visitor as being the supervision “of the internal rules of the
foundation so that it is governed in accordance with those private
laws which the founder has laid down . . . “.
In my judgment this review of the authorities demonstrates
that for over 300 years the law has been clearly established that
the visitor of an eleemosynary charity has an exclusive jurisdiction
to determine what are the internal laws of the charity and the
proper application of those laws to those within his jurisdiction.
The court’s inability to determine those matters is not limited to
the period pending the visitor’s determination but extends so as to
prohibit any subsequent review by the court of the correctness of
a decision made by the visitor acting within his jurisdiction and in
accordance with the rules of natural justice. This inability of the
court to intervene is founded on the fact that the applicable law
is not the common law of England but a peculiar or domestic law
of which the visitor is the sole judge. This special status of a
visitor springs from the common law recognising the right of the
founder to lay down such a special law subject to adjudication only
by a special judge, the visitor.
How then is it contended that the courts have power to
review the visitor’s decision as to the effect of the domestic law
of the University in this case? The Divisional Court and the
Court of Appeal did not consider in any detail the old authorities
to which I have referred. They started from the position, in my
judgment incorrectly, that the references in Thomas to the
visitor’s jurisdiction being exclusive meant simply that the court
did not have concurrent jurisdiction with him. Then, since this
House in Thomas had accepted that judicial review by way of
certiorari did lie to the visitor at least to restrain an abusive
process, they held that there was jurisdiction to correct errors of
law since “illegality” is one of the accepted heads of judicial
review.
Before your Lordships, Mr. Burke refined this argument. He
relied upon the great development that has recently taken place in
the law of judicial review whereby the courts have asserted a
general jurisdiction to review the decisions of tribunals and inferior
courts. He points to the way in which the law has developed
from a maze of individual sets of circumstances in which one or
other of the prerogative writs would lie to a general principle
under which courts will review decisions on the three grounds of
illegality, irrationality and procedural impropriety: see per Lord
Diplock in Council of Civil Service Unions v. Minister for the Civil
Service [1985] AC 374 at page 410. Mr. Burke submits that if
judicial review lies at all, then it is not possible to pick and
choose between Lord Diplock’s three categories: it must lie on all
three grounds or not at all. As to illegality, recent developments
in the law have shown that any relevant error of law made by the
decision maker, whether as to his powers or as to the law he is to
– 9 –
apply, may lead to his decision being quashed. In the present
case, since the decision in Thomas shows that judicial review does
lie against the visitor, so his decision is capable of being reviewed
on any one of Lord Diplock’s three grounds, including illegality.
If, therefore, the visitor has made an error in construing the
statutes of the university, his decision can be quashed on judicial
review.
I accept much of Mr. Burke’s submissions. Over the last 40
years, the courts have developed general principles of judicial
review. The fundamental principle is that the courts will
intervene to ensure that the powers of public decision making
bodies are exercised lawfully. In all cases, save possibly one, this
intervention by way of prohibition or certiorari is based on the
proposition that such powers have been conferred on the decision
maker on the underlying assumption that the powers are to be
exercised only within the jurisdiction conferred, in accordance with
fair procedures and, in a Wednesbury sense, reasonably. If the
decision maker exercises his powers outside the jurisdiction
conferred, in a manner which is procedurally irregular or is
Wednesbury unreasonable, he is acting ultra vires his powers and
therefore unlawfully: see Wade on Administrative Law, 6th ed.,
page 39 et seq. The one possible exception to this general rule
used to be the jurisdiction of the court to quash a decision taken
within the jurisdiction of the decision taker where an error law
appeared on the face of the record: R. v. Northumberland
Compensation Appeal Tribunal [1952] 1 KB 338.
In my judgment the decision in Anisminic Limited v. Foreign
Compensation Commission [1969] 2 AC 147 rendered obsolete the
distinction between errors of law on the face of the record and
other errors of law by extending the doctrine of ultra vires.
Thenceforward it was to be taken that Parliament had only
conferred the decision making power on the basis that it was to
be exercised on the correct legal basis: a misdirection in law in
making the decision therefore rendered the decision ultra vires.
Professor Wade considers that the true effect of the Anisminic
case is still in doubt: Wade (supra) page 299 et seq. But in my
judgment the decision of this House in O’Reilly v. Mackman [1983]
2 A.C. 237 establishes the law in the sense that I have stated.
Lord Diplock, with whose speech all the other members of the
committee agreed, said (at page 278D) that the decision in
Anisminic;
“… has liberated English public law from the fetters that
the courts had theretofore imposed upon themselves so far
as determinations of inferior courts and statutory tribunals
were concerned, by drawing esoteric distinctions between
errors of law committed by such tribunals that went to
their jurisdiction, and errors of law committed by them
within their jurisdiction. The breakthrough that the
Anisminic case made was the recognition by the majority of
this House that if a tribunal whose jurisdiction was limited
by statute or subordinate legislation mistook the law
applicable to the facts as it had found them, it must have
asked itself the wrong question, i.e., one into which it was
not empowered to inquire and so had no jurisdiction to
determine. Its purported “determination”, not being “a
determination” within the meaning of the empowering
legislation, was accordingly a nullity.”
– 10 –
Therefore, I agree with Mr. Burke that in general any error
of law made by an administrative tribunal or inferior court in
reaching its decision can be quashed for error of law.
At this point I must notice an argument raised by Mr.
Beloff for the University. He suggests that the recent decision of
this House in R. v. Independent Television Commission ex parte
T.S.W. Broadcasting (unreported) has thrown doubt on the
proposition that all errors of law vitiate the decision. In my
judgment this is a misreading of that authority. This House was
asserting that the mere existence of a mistake of law made at
some earlier stage does not vitiate the actual decision made:
what must be shown is a relevant error of law, i.e. an error in
the actual making of the decision which affected the decision
itself. This is demonstrated by Lord Templeman’s quotation from
the well known judgment of Lord Greene M.R., in Wednesbury
(including the passage “a person entrusted with a discretion must,
so to speak, direct himself properly in law”) and the manner in
which thereafter he applied those principles to the facts of the
case before the House.
Although the general rule is that decisions affected by
errors of law made by tribunals or inferior courts can be quashed,
in my judgment there are two reasons why that rule does not
apply in the case of visitors. First, as I have sought to explain,
the constitutional basis of the courts’ power to quash is that the
decision of the inferior tribunal is unlawful on the grounds that it
is ultra vires. In the ordinary case, the law applicable to a
decision made by such a body is the general law of the land.
Therefore, a tribunal or inferior court acts ultra vires if it reaches
its conclusion on a basis erroneous under the general law. But the
position of decisions made by a visitor is different. As the
authorities which I have cited demonstrate, the visitor is applying
not the general law of the land but a peculiar, domestic law of
which he is the sole arbiter and of which the courts have no
cognizance. If the visitor has power under the regulating
documents to enter into the adjudication of the dispute (i.e. is
acting within his jurisdiction in the narrow sense) he cannot err in
law in reaching this decision since the general law is not the
applicable law. Therefore he cannot be acting ultra vires and
unlawfully by applying his view of the domestic law in reaching his
decision. The court has no jurisdiction either to say that he erred
in his application of the general law (since the general law is not
applicable to the decision) or to reach a contrary view as to the
effect of the domestic law (since the visitor is the sole judge of
such domestic law).
The second reason is closely allied to the first. In
Pearlman v. Harrow School [1979] QB 56 a statute provided that
the decision of the county court as to whether works constituted
an “improvement” within the meaning of the Act should be “final
and conclusive”. A tenant claimed that the installation of a
central heating system constituted an “improvement”. The county
court judge ruled that it did not. The tenant then applied to the
Divisional Court by way of judicial review to quash the judge’s
decision. The majority of the Court of Appeal held that it had
jurisdiction to quash the judge’s order. However, Lane L.J. (as he
then was) dissented. He held that the judge had done nothing
– 11 –
which went outside the proper area of his inquiry. The question
was not whether the judge had made a wrong decision but whether
he had inquired into and decided a matter which he had no right
to consider. Therefore he held that the court had no jurisdiction
to review the decision of the county court judge for error of law.
This dissenting judgment of Lane L.J. has been approved by
the Privy Council in South East Asia Fire Bricks v. Non-Metallic
Mineral Products Manufacturing Employees Union [1981] AC 363
at p, 370F and by a majority in this House in In re Racal
Communications Ltd. [1981] AC 374 pp. 384B, 390F-391D. In the
latter case, Lord Diplock pointed out that the decision in
Anisminic applied to decisions of administrative tribunals or other
administrative bodies made under statutory powers: in those cases
there was a presumption that the statute conferring the power did
not intend the administrative body to be the final arbiter of
questions of law. He then contrasted that position with the case
where a decision making power had been conferred on a court of
law. In that case no such presumption could exist: on the
contrary where Parliament had provided that the decision of an
inferior court was final and conclusive the High Court should not
be astute to find that the inferior court’s decision on a question
of law had not been made final and conclusive, thereby excluding
the jurisdiction to review it.
In my judgment, therefore, if there were a statutory
provision that the decision of a visitor on the law applicable to
internal disputes of a charity was to be “final and conclusive”,
courts would have no jurisdiction to review the visitor’s decision
on the grounds of error of law made by the visitor within his
jurisdiction (in the narrow sense). For myself, I can see no
relevant distinction between a case where a statute has conferred
such final and conclusive jurisdiction and the case where the
common law has for 300 years recognised that the visitor’s
decision on questions of fact and law are final and conclusive and
are not to be reviewed by the courts. Accordingly, unless this
House is prepared to sweep away long established law, there is no
jurisdiction in the court to review a visitor’s decision for error of
law committed within his jurisdiction.
Mr. Burke urged that the position of a visitor would be
anomalous if he were immune from review on the grounds of error
of law. He submitted that the concept of a peculiar domestic law
differing from the general law of the land was artificial since in
practice the charter and statutes of a university are expressed in
ordinary legal language and applied in accordance with the same
principles as those applicable under the general law. He pointed
to the important public role occupied by universities and submitted
that it was wrong that they should be immune from the general
law of the land: “there must be no Alsatia in England where the
King’s writ does not run”: per Scrutton L.J. in Czarnikow v.
Roth, Schmidt and Co, [1922] 2 K.B. 478 at page 488. He further
suggested that to permit review of a visitor’s decision for error of
law would not impair the effectiveness of the visitor’s domestic
jurisdiction.
I accept that the position of the visitor is anomalous, indeed
unique. I further accept that where the visitor is, or is advised
by, a lawyer the distinction between the peculiar domestic law he
– 12 –
applies and the general law is artificial. But I do not regard
these factors as justifying sweeping away the law which for so
long has regulated the conduct of charitable corporations. There
are internal disputes which are resolved by a visitor who is not a
lawyer himself and has not taken legal advice. It is not only
modern universities which have visitors: there are a substantial
number of other long established educational, ecclesiastical and
eleemosynary bodies which have visitors. The advantages of having
an informal system which produces a speedy, cheap and final
answer to internal disputes has been repeatedly emphasized in the
authorities, most recently by this House in the Thomas case: see
per Lord Griffiths at page 825D; see also Patel v. University of
Bradford Senate [1978] 1 W.L.R. 1488 at pages 1499-1500. If it
were to be held that judicial review for error of law lay against
the visitor I fear that, as in the present case, finality would be
lost not only in cases raising pure questions of law but also in
cases where it would be urged in accordance with the Wednesbury
principle that the visitor had failed to take into account relevant
matters or taken into account irrelevant matters or had reached
an irrational conclusion. Although the visitor’s position is
anomalous, it provides a valuable machinery for resolving internal
disputes which should not be lost.
I have therefore reached the conclusion that judicial review
does not lie to impeach the decisions of a visitor taken within his
jurisdiction (in the narrow sense) on questions of either fact or
law. Judicial review does lie to the visitor in cases where he has
acted outside his jurisdiction (in the narrow sense) or abused his
powers or acted in breach of the rules of natural justice.
Accordingly, in my judgment the Divisional Court had no
jurisdiction to entertain the application for judicial review of the
Visitor’s decision in this case.
In those circumstances, it is unnecessary to express any
view on the proper construction of the Charter and Statutes
beyond saying that I have heard nothing which persuades me that
the views of Lord Jauncey of Tullichettle and the Court of Appeal
were wrong. I would dismiss the appeal and allow the cross-
appeals, with costs.
LORD MUSTILL
My Lords,
Because I consider that the decision of the visitor was right
I concur in the order proposed by your Lordships that this appeal
should be dismissed. I have however found it difficult to subscribe
to the opinion preferred by the majority of your Lordships that the
appeal should be dismissed because the decision of a visitor is not
susceptible to judicial review for an error of law, and had
prepared a judgment setting out in summary my reasons for this
difficulty. Subsequently, I have had the advantage of reading in
draft the speech to be delivered by my noble and learned friend
Lord Slynn of Hadley, in which he concludes that the decision is
indeed reviewable and does so on grounds which I venture to find
convincing. Accordingly, I need say no more that that, with due
– 13 –
respect to the majority of your Lordships, I agree with my noble
and learned friend in both his conclusions and his reasoning.
LORD SLYNN OF HADLEY
My Lords,
Mr. Page was appointed as a lecturer in Philosophy in the
University of Hull with effect from 1 October 1966. By letter
dated 30 June 1988 his appointment was terminated on 2 October
1988. The reason for terminating his appointment was that the
University felt it necessary to reduce the number of staff in the
Philosophy Department by one and he was the oldest member. Mr.
Page began proceedings in the Queen’s Bench Division to establish
that the University was not entitled to dismiss him. Those
proceedings were struck out on the basis that his claim fell within
the exclusive jurisdiction of the Visitor of the University and so he
petitioned the Visitor, Her Majesty the Queen. Having received
from Lord Jauncey of Tullichettle advice that the dismissal was
valid, the Lord President of the Council on behalf of Her Majesty
dismissed the petition.
Mr. Page applied for judicial review of that decision. The
Divisional Court held that they had power to review the Visitor’s
decision and that upon a proper construction of the University
Statutes the University had no power to dismiss Mr. Page. The
Court of Appeal likewise held that the Visitor’s decision could be
reviewed but held that the Visitor’s decision was correct in law.
On this appeal questions as to the court’s jurisdiction and as
to the proper construction of the University’s Statutes have been
raised.
The jurisdiction issue seems to me to divide into two parts.
First, does judicial review by way of certiorari ever lie to review
error of law where there is no issue as to excess of jurisdiction or
breach of natural justice? If it does not, it cannot in any event
lie against a Visitor on that basis. If it does, the second question
is whether certiorari can lie in respect of the decision of a
Visitor.
As to the first question it is clear that views as to the
availability and scope of certiorari together with its actual use
have varied from time to time. In particular distinctions were
drawn between errors of law going to jurisdiction and errors of
law within jurisdiction and between errors of law on the face of
the record and other errors on law which in neither case went to
jurisdiction.
For my part and despite the advice of the Privy Council in
South East Asia Fire Bricks Sdn Bhd v. Non Metallic Mineral
Products Manufacturing Employees’ Union [1981] AC 363, I would
now follow the opinion of Lord Diplock in In re Racal
Communications Ltd. [1981] AC 374, 382-383 (with which Lord
Keith of Kinkel agreed) and in O’Reilly v. Mackman [1983] 2 A.C.
237, p. 278, (with which the other members of the Appellate
Committee agreed. In the former Lord Diplock said:
– 14 –
“The breakthrough made by Anisminic was that, as respects
administrative tribunals and authoraties, the old distinction
between errors of law that went to jurisdiction and errors
of law that did not, was for practical purposes abolished.”
In the latter case Lord Diplock said that the decision in Anisminic
Limited v. Foreign Compensation Commission [1969] 2 AC 147:
“has liberated English public law from the fetters that the
courts had theretofore imposed upon themselves so far as
determinations of inferior courts and statutory tribunals
were concerned, by drawing esoteric distinctions between
errors of law committed by such tribunals that went to
their jurisdiction, and errors of law committed by them
within their jurisdiction. The breakthrough that the
Anisminic case made was the recognition by the majority of
this House that if a tribunal whose jurisdiction was limited
by statute or subordinate legislation mistook the law
applicable to the facts as it found them, it must have asked
itself the wrong question, i.e., one into which it was not
empowered to inquire and so had no jurisidiction to
determine. Its purported ‘determination’, not being a
‘determination’ within the meaning of the empowering
legislation, was accordingly a nullity.”
I accordingly accept that certiorari is now available to
quash errors of law in a decision albeit those errors do not go to
the jurisdiction of the tribunal.
The second part of this issue is therefore whether the
decision of a Visitor can be reviewed for error of law.
It is common ground between the parties, and, on the basis
of earlier cases, rightly so, that the Visitor to a University may
be given an exclusive jurisdiction, e.g. to decide disputes arising
under the statutes of the University, as may Visitors to such
eleemosynary foundations as schools, colleges and dioceses. It has
long been accepted that this exclusive jurisdiction prevents the
courts of the land from dealing initially with issues falling to be
decided by the Visitor, and prevent an appeal from the Visitor to
those Courts.
As early as 1694 in Philips v. Bury (1694) Holt K.B. 715 this
House accepted as correct the dissenting judgment of Holt C.J.
where it was sought to challenge the removal of a Rector by the
Visitor of Exeter College by an action in ejectment.
Holt C.J. held that the Visitor did have jurisdiction to
deprive the Rector of his office and that “having that power, the
justice thereof is not examinable in a Court of Law, upon any
action concerning the [Visitor’s] power”. He asked, at p. 719:
“First, whether the sufficiency of the sentence, as to the
cause, be examinable in the Common Law Courts? And,
secondly, whether the truth of that cause, suppose it to be
sufficient to ground the sentence, if true, can be inquired
into here?”
In vigorous terms he stated the position, at pp. 723-725:
– 15 –
“If the sentence be given by the proper Visitor, created so
by the Founder, or by the law, you shall never enquire into
the validity, or ground of the sentence . . . private and
particular corporations for charity, founded and endowed by
private persons, are subject to the private government of
those who erect them … if [the Visitor] hath conusance of
the matter and person, and he gives a sentence, it must
have some effect to make a vacancy, be it never so wrong.
But there is no appeal, if the founder hath not thought fit
to direct an appeal; that an appeal lieth in the Common
Law Courts, is certainly not so. This is according to the
government settled by the founder; if he hath directed all
to be under the absolute power of the Visitor, it must be so
. . . “
The reason for the rule was explained further in the same
year in The King and Queen v. St John’s College Cambridge (1694)
4 Mod. Rep. 233 at p. 241:
“The Visitor is made by the Founder, and is the proper
judge of the private laws of the College; he is to determine
offences against those laws. But where the law of the land
is disobeyed, this court will take notice thereof
notwithstanding the Visitor.”
To the same effect was R. v. Dr. Bland, Provost of Eton (1740) 7
Mod. Rep. 355, and in 1794 in R. v. The Bishop of Ely (1794) 5
Durn. & E. 475 Lord Kenyon C.J. regarded what had been said by
Holt C.J. as settled law. In 1855 Coleridge J. accepted the same
principle in Ex parte Buller (1855) 1 Jurist N.S. p. 709:
“It has been decided, and is now admitted, that where a
Visitor has acted in his visitatorial capacity, this Court has
no power to compel him to correct or alter his decision,
although that decision may be erroneous. All that we can
do is to set the visitor in motion; but having done so, we
cannot review his decision. In R. v. The Bishop of Ely,
Lord Kenyon refused the rule upon this ground, and says, ‘It
was settled in Philips v. Bury, (2 T.R. 346), in which
determination the Profession has ever since acquiesced, that
this Court has no other power than that of putting the
visitatorial power in motion, (if I may use the expression);
but that if the judgment of the visitor be erroneous, we
cannot interfere in order to correct it. Now, here the
visitor received the appeal, each party disclosed his case to
him, the whole merits of the case were before him, and he
has exercised his judgment upon the whole. If, therefore,
we were to interfere, it would be for the purpose of
controlling his judgment; but any interference by us to
control the judgment of the visitor would be attended with
the most mischievous consequences, since we must then
decide upon the statutes of the college, of which we are
ignorant, and the construction of which has been confided to
another forum.'”
On the other hand, the Court will order by mandamus a
Visitor to exercise his jurisdiction if he refuses or fails to do so
since if he does not, no one else can.
– 16 –
In R. v. The Bishop of Ely (1788) 2 T.R. 290, and again in
R. v. The Bishop of Ely (1794) 5 T.R. 475, the Court recognised
this principle. In the latter case Grose J. said at p. 477:
“If the Bishop had not exercised his judgment at all, we
would have compelled him: but it is objected that he has
not exercised it rightly; to this I answer that we have no
authority to say how he should have decided.”
Conversely, it has been accepted that the Court may inquire
as to whether a Visitor intends to act outside his jurisdiction and
in a proper case to grant a writ or order of prohibition to restrain
him: Bishop of Chichester v. Harward and Webber (1787) 1 T.R.
650; see also Dr. Bently and The Bishop of Ely (1729) 94 E.R.
132.
Thus despite the rule in Philips v. Bury, some control over
the exercise of jurisdiction was well recognised. The position is
summarised in R. v. The Bishop of Chester (1747) 1 Wm. Black.
22, by Lee C.J.:
“Certainly, if a Visitor is in his jurisdiction his acts are not
to be inquired into; if out of it, his acts are void.”
There is thus no doubt that on the older authorities the
Courts have refused to review by way of certiorari the decision of
a Visitor even though they were prepared to grant mandamus to
require him to act or to prohibit him from acting in excess of
jurisdiction.
More recently in Thomas v. University of Bradford [1987]
A.C. 795, Lord Griffiths (with whom Lord Bridge of Harwich, Lord
Brandon of Oakbrook and Lord Mackay of Clashfern agreed)
confirmed that the Courts have no concurrent or appellate
jurisdiction in respect of matters referred to a Visitor by the
special regulations of a university and emphasised the advantages
of the visitorial procedure. Lord Griffiths concluded:
“Finally, there is the protection afforded by the supervisory,
as opposed to appellate, jurisdiction of the High Court over
the Visitor. It has long been held that the writs of
mandanus and prohibition will go … Although doubts have
been expressed in the past as to the availability of
certiorari, I myself have no doubt that in the light of the
modern development of administrative law, the High Court
would have power, upon an application for judicial review,
to quash a decision of the Visitor which amounted to an
abuse of his powers.”
Lord Ackner at p. 828 said:
“The source of the obligation upon which Miss Thomas relies
for her claim is the domestic laws of the university, its
statutes and its ordinances. It is her case that the
university has failed either in the proper interpretation of
its statutes or in their proper application. Miss Thomas is
not relying upon a contractual obligation other than an
obligation by the university to comply with its own domestic
laws. Accordingly, in my judgment, her claim falls within
– 17 –
the exclusive jurisdiction of the Visitor, subject always to
judicial review.”
It is thus clear on the basis of all these authorities that at
the present time universities can create a jurisdiction for the
Visitor which excludes the concurrent and appellate jurisdiction of
the Courts. I do, however, respectfully agree with Lord Griffiths
that certiorari would go to quash a decision of the Visitor which
amounted to an abuse of his power. The question in the present
case is a different question – does certiorari go beyond quashing
for abuse of power and allow judicial review for errors of law
within jurisdiction? I do not think that this question was resolved
in Thomas by what was said by Lord Griffiths though Lord
Ackner’s reference to judicial review is in general terms.
It is obviously not necessary to cite cases for the
proposition that there has been a considerable development in the
scope of judicial review in the second half of this century. It is
more than enough to refer to the analysis of Sir William Wade in
“Administrative Law” 6th ed. The old cases which I have cited
have to be read subject to that development and not least to what
was said in Thomas (supra).
With deference to the contrary view of the majority of your
Lordships, in my opinion if certiorari can go to a particular
tribunal it is available on all the grounds which have been
judicially recognised. I can see no reasons in principle for limiting
the availability of certiorari to a patent excess of power (as where
a Visitor has decided something which was not within his remit)
and excluding review on other grounds recognised by the law. If
it is accepted, as I believe it should be accepted, that certiorari
goes not only for such an excess or abuse of power but also for a
breach of the rules of natural justice there is even less reason in
principle for excluding other established grounds. If therefore
certiorari is generally available for error of law not involving
abuse of power (as on the basis of Lord Diplock’s speeches I
consider that it is so available) then it should be available also in
respect of a decision of a Visitor.
I am not persuaded that the jurisdition of the Visitor
involves such exceptional considerations that this principle should
be departed from and that some grounds be accepted and others
held not to be available for the purposes of judicial review.
The submissions made to your Lordships on the basis of the
history of eleemosynary corporations do not seem to me to justify
the drawing of such a distinction at the present time once it is
accepted that certiorari can be available (as in Thomas) on some
grounds. Nor do I accept that all the questions referred to a
Visitor involve such arcane learning that only those intimately
aware of university affairs can begin to understand it, the judges
of the land not being able to appreciate the issues. The fact that
Lords of Appeal in Ordinary and other senior judges are invited to
advise the Visitor show that this cannot be assumed. Moreover,
issues of law may be referred to the Visitor which are wholly
analogous to questions decided by the courts. The present is such
a case in which, if there had been no referral to a Visitor, the
matter would have come before the tribunals and courts on a
clearly recognisable employment law question.
– 18 –
Nor am I impressed by the floodgates argument – it is said
that the Divisional Court would be overwhelmed by applications to
review Visitors’ decisions. In the first place many references to
the Visitor in student or staff disputes with university authorities
do not involve questions of law at all. It will quickly be
recognised that on matters of fact and challenges to the exercise
of discretion leave to apply for judicial review will be refused.
Moreover where the issue really does raise a question of esoteric
university “lore” the courts are unlikely to override the decision of
the Visitor, informed as he will be by the university authorities.
If there is a real question of law, particularly if it involves
matters analogous to or the same as issues of the general law, I
can see no reasonable justification for refusing judicial review. If
the individual’s rights are affected he should be entitled to the
same protection by the courts as he would be in respect of the
decision of a wide range of other tribunals and bodies to whom
decisions involving a question of law are assigned.
I do not accept the intervener’s argument that it is in some
way undignified for the decision of a Visitor on the basis of advice
from an eminent judge to be subject to judicial review and that if
certiorari is held to be available senior judges will not wish to
give such advice. In most cases their advice will either be right
in law or be in an area where the courts will wish to leave alone
the exercise of the Visitor’s discretion. If there is an important
and difficult question of law, however, I do not anticipate that
senior judges will either feel “demeaned” or take umbrage at the
possibility of the courts looking at the question again on fuller
argument.
The suggested analogies relied on with ecclesiastical courts
and military courts which apply wholly distinct areas of law do not
seem to me to be helpful or valid.
I therefore consider that certiorari does lie to review the
construction placed upon the statutes by the Visitor and that the
cross appeal should be dismissed.
The question then arises as to whether an error of law has
been shown in the present case.
The notice inviting applications for an appointment as Senior
Lecturer/Lecturer in Philosophy contained the following paragraph:
“TENURE The appointments will date from the 1st October
1966 and will be subject to the Statutes of the University
for the time being in force and to any conditions prescribed
by the Council at the time of the appointments. The Senior
Lecturer or Lecturer shall vacate his office on the 30th day
of September following the date on which he attains the age
of 67 years, unless it is specially extended by resolution of
Council.
. . .
“The appointments may be terminated on either side by
three months’ notice in writing expiring at the end of a
term or of the long vacation.”
– 19 –
On 13 June 1966 the Registrar wrote to offer Mr. Page,
subject to the formal approval of Senate and Council, an
appointment as a Lecturer with effect from 1 October 1966 “on
the terms and conditions set out below:
The appointment may be terminated by either party on
giving three months’ notice in writing expiring at the end of
a term or of the long vacation.”
On 14 June 1966 Mr. Page replied:
“I am pleased to accept the appointment and have taken
note of the terms laid down in your letter.”
There were interviews of which oral evidence was given in
the inquiry ordered by the Visitor but these were found by Lord
Jauncey of Tullichettle to be neutral so far as the question at
issue falls to be considered.
If the letters of offer and acceptance are looked at alone
then it is clear that the University was entitled to terminate the
appointment on three months’ notice.
It is said, however, that if regard is had to the Statutes of
the University, referred to in the notice inviting applications, on
the basis of which the contract was clearly made even if the
Statutes were not referred to in the letter, the University had no
such right.
By section 11 of the Statutes the Council shall appoint such
other Officers as may be deemed necessary “with such duties at
such remuneration and upon such terms and conditions as the
Council shall deem fit provided that no Academic Officer shall be
appointed except after consideration of a Report from the Senate”.
The Statutes also include the following provisions:
“Section 34
REMOVAL OF MEMBERS OF THE TEACHING RESEARCH
AND ADMINISTRATIVE STAFF AND VACATION OF OFFICE
“1. The Vice Chancellor and all Officers of the University
including Professors and members of the Staff holding their
appointments until the age of retirement may be removed
by the Council for good cause, . . .
“2. ‘Good Cause’ in this Statute means: . . .”
[Four categories are then specified including certain
convictions, incapacity rendering unfit to perform the duties
of the office, conduct of an immoral, scandalous or
disgraceful nature rendering unfit to perform the duties of
the office.]
“3. Subject to the terms of his appointment no member
of the teaching research or administrative Staff of the
University (including the Vice-Chancellor) shall be removed
from office save upon the grounds specified in paragraph 2
– 20 –
of this section and in pursuance of the procedures specified
in Clause 1 of this Section.
“Section 35
“RETIREMENT OF MEMBERS OF THE ACADEMIC AND
ACADEMIC-RELATED STAFF OF THE UNIVERSITY
The Vice-Chancellor and all Professors, Readers,
Lecturers and other salaried Officers of the University shall
vacate their office on the 30th day of September following
the date on which they attain the age of 65 years unless
the Council . . . shall request any such Officer to continue
in office for such period as it shall from time to time
determine provided that in the case of such persons holding
office on 30th September, 1977 the date shall be that on
which they attain the age of 67 years.”
Essentially the argument of Mr. Page is that any member of
the academic Staff who is appointed until a determined retiring
age (in his case 67) can only be removed before that date for
good cause as defined in section 34.2 of the Statutes. The
provision as to three months’ notice has to be read with the
limitation that there can only be dismissal for good cause. It
follows that, except in a case where either the common law or
statute allows instant dismissal (e.g. for gross misconduct) a
lecturer can only be dismissed for good cause after being given
three months’ notice (though the lecturer can terminate the
agreement on three months’ notice without any reason being
assigned). A distinction is sought to be drawn between the staff
included in paragraph 1 of section 34 (being those also falling
within section 35 and who are appointed until a fixed age) and
staff not so appointed to whom section 34(3) applies and who may
be dismissed on the notice period specified in their letter of
appointment.
I do not accept this. Although the drafting of the Statutes
leaves much room for argument (as this case has shown) it seems
to me that reading the Statutes as a whole 65 is fixed as the
retiring age for a member of the academic Staff. It is the age
beyond which a member of Staff may not continue; they “shall
vacate their Office” (section 35). That provision in itself does not
guarantee continuance in post until age 65. Whether members of
Staff can so continue depends on the other terms and conditions of
the appointment. Those terms in this case include provision for
termination for good cause under section 34(1) and on three
months’ notice as one of the terms of the appointment under
section 34(3). This result could have been spelled out more clearly
in the Statutes but it seems to me to follow from the provisions
of the Statutes as they stand and, contrary to the argument of
Mr. Page, to be no more curious than the alternative for which he
contends.
It follows in my view that no error of law has been shown
in the decision of the Visitor and for that reason I consider that
this appeal like the cross appeal should be dismissed.
– 21 –
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