HEARING DATES 22, 23, 31 July 1991
University - Academic staff- Dismissal - Jurisdiction - Jurisdiction of court to grant judicial review of decision to dismiss member of academic staff - Lecturer appointed on terms that employment could be terminated by either party on three months notice - Appointment subject to university statutes - Statutes providing that academic staff could be removed for good cause - Lecturer dismissed on grounds of redundancy by three months' notice - Visitor deciding that dismissal within powers of university and refusing to intervene - Lecturer challenging visitor's decision by application for judicial review - Whether court having power to review visitor's decison as to construction of university's statutes - Whether lecturer's employment properly terminated.
HEADNOTE
In 1966 the applicant was appointed to a university lectureship on terms that his appointment was subject to the statutes of the university, that he was obliged to vacate his post as lecturer on reaching the retirement age of 67 and this appointment could be terminated by either party by three months' written notice. In 1988 the applicant was given three months' written notice terminating his employment on the ground of redundancy. No criticism was made about him personally or professionally. The applicant petitioned the visitor of the university, contending that the university was not entitled to dismiss him on the ground of redundancy because under the university's statutes it could not dismiss him before retirement except for good cause, which related to immoral conduct of a disgraceful nature or to incapacity, and by giving him three months' written notice. The visitor rejected the petition, holding that the university was entitled to dismiss the applicant either without notice for good cause as defined in the statutes or by three months' notice. The applicant applied for judicial review of the visitor's decision. The question arose whether the High Court had jurisdiction to grant judicial review of the visitor's decision as to the construction of the university's statutes and whether the visitor's decision should be quashed. The Divisional Court held that judicial review could be granted to challenge the decision of the visitor as to the construction of the statutes of the university, granted a declaration that on the true construction of the statutes the university did not have power to dismiss the applicant on the ground of redundancy and quashed the visitor's decision. The university and the visitor appealed.
Held
(1) Although the concurrent, including appellate, jurisdiction of the courts was effectively excluded where the statutes of a university invested a visitor or someone in his position with the right and duty of ensuring that the intentions of the founder, as demonstrated by the university's statutes, were given effect to and of resolving disputes based upon rights and duties said to arise under the statutes, where the decision of the visitor amounted to an abuse of his powers in that it was affected by illegality, irrationality or impropriety it was amendable to the High Court's supervisory jurisdiction by way of judicial review. Accordingly, since to misconstrue the university's statutes and to act upon that misconstruction would be an abuse of the visitor's powers, the court had jurisdiction to review his decision; dicta of Scrutton LJ in Czarnikow v Roth Schmidt & Co [1922] All ER Rep 45 at 50 and of Lord Griffiths and Lord Ackner in Thomas v University of Bradford [1987] 1 All ER 834 at 849-850, 852 applied.
(2) However, on the true construction of the university's statutes and the applicant's letter of appointment, the university was entitled to terminate the applicant's appointment either by proof of good cause with or without notice or by giving him three months' notice in writing without specifying the reason for dismissal. Accordingly, the applicant's appointment could properly be terminated by the university on the ground of redundancy by giving him three months' notice without having to show good cause. The appeal would therefore be allowed.
NOTES
For the court's control over visitors, see 5 Halsbury's Law (4th edn) paras 885-889, and for cases on the subject, see 8(1) Digest (2nd reissue) 649-650, 5221-5235.
CASES REFERRED TO
Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208, [1969] 2 AC
147, [1969] 2 WLR 163, HL.
Bently v Bishop of Ely (1729) 1 Barn KB 192, 94 ER 132.
Chichester (Bishop) v Harward and Webber (1787) 1 Term Rep 650, 99 ER 1300.
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER
935, [1985] AC 374, [1984] 3 WLR 1174, HL.
Czarnikow v Roth Schmidt & Co [1922] 2 KB 478, [1922] All ER Rep 45, CA.
Dawkins v Lord Paulet (1869) LR 5 QB 94.
McClelland v Northern Ireland General Health Services Board [1957] 2 All ER 129,
[1957] 1 WLR 594, HL.
Marks v Frogley [1898] 1 QB 888, CA.
R v Army Council, ex p Ravenscroft [1917] 2 KB 504, [1916-17] All ER 492, DC.
R v Bishop of Chester (1747) 1 Wm Bl 22, 96 ER 12.
R v Bishop of Ely (1794) 5 Term Rep 475, 101 ER 267.
R v Dunesheath, ex p Meredith [1950] 2 All ER 741, [1951] 1 KB 127, DC.
R v North, ex p Oakey [1927] 1 KB 491, CA.
R v Panel on Take-overs and Mergers, ex p Datafin plc (Norton Opax plc
intervening) [1987] 1 All ER 564, [1987] QB 815, [1987] 2 WLR 699, CA.
R v RASC, Colchester (O/C Depot Battalion), ex p Elliott [1949] 1 All ER 373,
DC.
R v St Edmundsbury and Ipswich Diocese (Chancellor), ex p White [1947] 2 All ER
170, [1948] 1 KB 195, CA.
R v Secretary of State for War, ex p Martyn [1949] 1 All ER 242, DC.
Thomas v University of Bradford [1987] 1 All ER 834, [1987] AC 795, [1987] 2 WLR
677, HL.
CASES CITED
Ali v Secretary of State for the Home Dept [1984] 1 All ER 1009, [1984] 1 WLR
663, CA.
American Association of University Professors v Bloomfield College (1974) 129 NJ
Super 249, NJ Super Ct.
Bayley-Jones v University of Newcastle (1990) 65 ALJ 299, NSW SC.
Buller, ex p (1855) 25 LTOS 102, 1 Jur NS 709, Bail Ct.
Cowley v Heatley (1986) Times, 24 July.
Dietmann v Brent London BC [1988] ICR 842, CA; affg [1987] ICR 737.
Oakes v Sidney Sussex College, Cambridge [1988] 1 All ER 1004, [1988] 1 WLR 431.
Patel v University of Bradford Senate [1978] 3 All ER 841, [1978] 1 WLR 1488;
affd [1979] 2 All ER 582, [1979] 1 WLR 1066, CA.
Pearce v University of Aston in Birmingham (1/2) (1989) [1991] 2 All ER 461,
CA.
Philips v Bury (1694) 2 Term Rep 346, Holt KB 715, [1558-1774] All ER Rep 53,
100 ER 186.
R v Alsop (168t) 2 Show KB 170, 89 ER 868.
R v Bishop of Chester (1728) 2 Stra 797, 93 ER 855.
R v Bishop of Ely (1788) 2 Term Rep 290, [1774-1802] All ER Rep 70, 100 ER 157.
R v Chester Dean and Chapter (1850) 15 QB 513, 117 ER 553.
R v Chichester Consistory Court (Chancellor), ex p News Group Newspapers Ltd
(1991) Times, 15 July, DC.
R v Preston Supplementary Benefits Appeal Tribunal, ex p Moore [1975] 2 All ER
807, [1975] 1 WLR 624, CA.
R v St Catherine's Hall, Cambridge (1791) 4 Term Rep 233, 100 ER 991.
R v St John's College, Cambridge (1673) 4 Mod Rep 233, 87 ER 366.
R v St John's College, Oxford (1694) 4 Mod Rep 368, 87 ER 448.
R v University of London, ex p Vijayatunga [1987] 3 All ER 204, [1988] QB 322,
DC; affd [1989] 2 All ER 843, [1990] 2 QB 444, CA.
Read v Bishop of Lincoln [1892] AC 644, [1891-4] All ER Rep 227, PC.
Robert's Case (1666) 2 Keb 102, 84 ER 65.
INTRODUCTION
Appeal. The Lord President of the Privy Council, acting on behalf of Her Majesty the Queen as visitor of the University of Hull, and the university appealed from the decision of the Divisional Court of the Queen's Bench Division (Taylor LJ and Rougier J) on 27 March 1991 granting the application of the respondent, Edgar Page, for judicial review by way of an order of certiorari to quash the decision of the Lord President on 28 September 1989 whereby, on the advice of Lord Jauncey of Tullichettle, he rejected a petition by Mr Page to set aside his dismissal by the university from his post as lecturer by reason of redundancy, and declaring that on the true construction of the statutes of the university, the university had no power to dismiss Mr Page by reason of redundancy and that his purported dismissal was without effect. The facts are set out in the judgment of Lord Donaldson MR.
COUNSEL
Michael Beloff QC and Hubert Picarda for the university;
Philip Havers for
the visitor;
Jeffrey Burke QC and Brian Langstaff for Mr Page
Cur adv vult 31 July 1991.
PANEL: Lord Donaldson of Lymington MR, Staughton and Farquharson LJJ
JUDGMENT BY LORD DONALDSON OF LYMINGTON MR
In June 1966 Mr Page was appointed a lecturer in the Department of Philosophy of the University of Hull. Twenty-two years later on 30 June 1988 he was given notice that his employment would be terminated on 2 October 1988. There was no complaint about the way in which Mr Page did his work. The termination was on grounds of redundancy consequent upon the need of the university to make economies. Whether Mr Page, rather than some other lecturer, should have been made redundant is not in issue in the present proceedings, but in fairness to Mr Page it should be recorded that the axe fell upon him because he was the oldest of a particular group.
Mr Page took the view that important issues of academic tenure were at stake and petitioned Her Majesty the Queen, who is the visitor of the university. The Lord President, on behalf of Her Majesty, considered the petition, sought advice from Lord Jauncey of Tullichettle and, on the basis of that advice, rejected the petition, thereby deciding that Mr Page's dismissal was within the powers of the university as determined by the university's statutes.
Mr Page then sought and was granted leave to seek judicial review of the visitor's decision. That gave rise to two quite separate issues, both of considerable public importance, namely (a) the jurisdictional issue: is there jurisdiction to quash the visitor's decision? and, if so, (b) the construction issue: should it be quashed?
A Divisional Court of the Queen's Bench Division consisting of Taylor LJ and Rougier J answered both questions in the affirmative. The university and the visitor (who for this purpose was assumed in the interests of constitutional propriety to be the Lord President of the Council rather than Her Majesty) appealed. For my part, in agreement with the Divisional Court, I would answer the first question in the affirmative but, differing from it, would answer the second in the negative.
The jurisdictional issue
Mr Michael Beloff QC appeared for the university and Mr Havers for the visitor. Subject to one point, they were in agreement in their submissions. I can therefore refer in the main to those of Mr Beloff, who advanced the principal arguments, and in so doing I gladly acknowledge that I rely greatly upon his quite admirable skeleton argument.
Mr Beloff submitted:
'(i) The Visitor is intended to have exclusive jurisdiction over the internal laws of the foundation including the interpretation of the charter and statutes of the University. This exclusive jurisdiction requires such disputes to be dealt with by the Visitor, not the courts. This necessarily excludes actions in the Court in advance of the Visitor's decision (see [Thomas v University of Bradford [1987] 1 All ER 834, [1987] AC 795]) and, by parity of reasoning, review by the Courts of any decision on interpretation by the Visitor after it. If the Courts were to have jurisdiction to review such decisions, that would run counter to the whole concept of the internal domestic law and the exlcusive jurisdiction of the Visitor. The internal domestic law is to be treated as distinct from the law of the land - a species of foreign law...(ii) there is historical support in other areas for limited review of decisions of specialised bodies applying a distinct corpus of law. Accordingly: (a) The Court of Appeal has refused to grant certiorari to quash decisions of ecclesiastical courts, essentially on the basis that such courts adminster a system of law different from the ordinary law (R v Chancellor of St Edmundsbury and Ipswich Diocese ex p White ([1947] 2 All ER 170, [1948] 1 KB 195)). By contrast, the courts will grant prohibition to prevent the ecclesiastical court exceeding its jurisdiction or acting in breach of natural justice (see, eg R v North ex p Oakey [1927] 1 KB 491). (b) The courts have similarly held that questions of purely military law falling within the jurisdiction of the military authorities cannot be called into question in the ordinary civil courts. The courts can only intervene in so far as the actions of military authorities affect the ordinary civil rights of soldiers (see R v Secretary of State for War ex p Martyn [1949] 1 All ER 242; R v O/C Depot Battalion, RASC Colchester ex p Elliott [1949] 1 All ER 373; R v Army Council ex p Ravenscroft ([1917] 2 KB 504, [1916-17] All ER ER Rep 492); Marks v Frogley [1898] 1 QB 888; Dawkins v Lord Paulet (1869) LR 5 QB 94).
(iii) in relation to Visitors, there is authority that prohibition will lie if the Visitor exceeds his jurisdiction as a result of an error in construing the statutes (Bently v Bishop of Ely ((1729) 1 Barn KB 192, 94 ER 132) or if the Visitor acts in breach of natural justice (R v Bishop of Ely ((1794) 5 Term Rep 475, 101 ER 267) but not, prior to this case, for a mere error of construction not going to jurisdiction...
(iv) The jurisdiction judically to review for errors of law is relatively recent... and was prior to the seminal decision in Anisminic v Foreign Compensation Commission ([1969] 1 All ER 208, [1969] 2 AC 147) confined to errors on the face of the record so that the concept of judicial review on all grounds save errors of law has firm roots in history a fortiori where the errors of law are of a special kind ie of interpretation of the University's internal law.' (Mr Beloff's emphasis).
The difference between the submissions of Mr Havers and of Mr Beloff lay, I think, in Mr Beloff being prepared tentatively to accept that the courts had jurisdiction to review a visitatorial decision upon grounds of 'irrationality', whereas Mr Havers declined to make any such concession.
There is no serious dispute, but that the universities of this country have a sufficiently public character to bring decisions by them within the scope of the supervisory jurisdiction of the courts, if that jurisdiction is not excluded upon the other grounds relied upon in this appeal.
Subject to a somewhat optimistic submission by Mr Jeffrey Burke QC, appearing for Mr Page, that the House of Lords' decision in Thomas v University of Bradford [1987] 1 All ER 834, [1987] AC 795 obliged us to hold that the courts have jurisdiction to review a decision of the visitor as to the construction of the university's statutes, it was common ground that there was no binding authority to guide us. For my part I do not regard the fact that there is no trace of the exercise of any such jurisdiction in the older authorities as being either helpful or surprising in the light of modern expansionist developments in this field of the law which have had House of Lords approval or have originated there. I do, however, think that the speeches in Thomas point the way, a way which, in any event, seems to me to be based on long-established principle. That principle was enunciated in colourful terms and in a slightly different context by Scrutton LJ in Czarnikow v Roth Schmidt Co [1922] 2 KB 478 at 488, [1922] All ER Rep 45 at 50: 'There must be no Alsatia in England where the King's writ does not run.' (See also R v Panel on Take-overs and Mergers, ex p Datafin plc (Norton Opax plc intervening) [1987] 1 All ER 564 at 568-569, [1987] QB 815 at 827-828).
I do not regard the attitude of the courts towards the Church and the military as constituting any derogation from this principle. Jurisdictionally the 'King's writ' should, and in my judgment does, run in respect of any matter which would be justiciable in the courts of law (and equity) if there were no ecclesiastical and military courts. But those courts are not solely concerned with such matters and, in so far as their jurisdiction extends to spiritual matters in the case of the ecclesiastical courts or to purely disciplinary matters in the case of the military courts, I do not consider that the principle requires or enables the courts of law to take jurisdiction. Furthermore, in considering how the courts of law have acted in particular situations as recorded in the reports, it is important not to overlook the discretionary element in their exercise of their supervisory jurisdiction. In particular, the courts will normally, in the exercise of that discretion, decline to intervene if there is a satisfactory alternative avenue of redress by means of an internal or domestic appellate system, as is the case with both the ecclesiastical and the military courts. In many, and perhaps most, of the reported cases the courts will not have been concerned to differentiate between a case in which they considered that they had no jurisdiction and one in which, whilst they may well have had jurisdiction, as a matter of discretion that jurisdiction would never be exercised.
Both Mr Beloff and Mr Havers, the latter perhaps even more strongly than the former, have submitted that the founder of an eleemosynary corporation was entitled to create his own private 'laws' which would govern relations between it and its members and its members inter se and was further entitled to provide for private disputes resolution machinery. I can go this far with them - indeed the decision in Thomas would oblige me to do so in any event - that it is certainly open to the founder by suitably drafting the statutes of the corporate to create a special regime of rules and regulations which will govern these relationships and to do so without resort to a contractual nexus between those concerned. I can also go with them in agreeing (and this again is confirmed by Thomas) that, where these statutes invest a visitor or someone in his position with the right and duty of ensuring that the intentions of the founder, as demonstrated by the statutes, are given effect to and of resolving disputes based upon right and duties said to arise under the statutes, this is effective to exclude any concurrent, including an appellate, jurisdiction in the courts.
But what the Divisional Court has asserted in this case is not a concurrent, but a supervisory, jurisdiction. No doubt it is a jurisdiction which has to be exercised with sensitivity, as indeed it is or should be in its other manifestations in relation, for example, to decisions of the executive or of specialist tribunals with an exclusive jurisdiction which does not include a right of appeal to the courts. Procedural improprietary apart, if what had here been in issue had been a question of what was appropriate conduct upon the part of a member of the university or any other matter which called for a knowledge of the arcane mysteries of academia, the visitor would clearly have had the widest discretion in reaching a decision and it would only have been in the event of his decision being clearly 'irrational' within Lord Diplock's famous classification of grounds for judicial review that the courts would have considered intervening (see Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 951, [1985] AC 374 at 410-411). That is not this case. The founder has framed his statutes not in a domestic language with which the judiciary is unfamiliar, but in the same language as that which is employed in the framing of private and public Acts of Parliament and must be taken to have intended that they should be so construed and given effect to. In such an exercise the expertise of the judiciary is in principle no less than that of the visitor.
It was suggested by Mr Havers that, if the courts were to assert a supervisory jurisdiction which enabled them to review the construction put upon the statutes by the visitor, they would in effect be creating a limiting area of appeal. I do not agree. A review jurisdiction is fundamentally different from an appellate jurisdiction, not least in its discretionary element, and indeed the only point at which the two jurisdictions converge is when the sole or decisive issue is one of construction of laws, rules or regulations intended to be binding in their terms.
He also suggested that, if this jurisdiction were to be asserted, the Lord President, or visitors generally, might no longer be prepared to seek advice from the most eminent of lawyers, such as Lords of Appeal in Ordinary. Such a reaction would be deplorable and could only, I think, be based upon some such wholly mistaken notion as that it is somehow demeaning for the most senior judges to have their decisions examined and passed upon by those who are judicially their juniors. This is to ignore the fact that in the administration of justice in this country, the authority of any judicial pronouncement depends not upon the personal authority of the judge concerned, but upon the capacity in which he gives a decision or expresses an opinion.
For my part, I am more than content to adopt the words of Lord Griffith and Lord Ackner (with which Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Mackay of Clashfern agreed) in Thomas's case. There, as here, a lecturer was claiming that a decision to dismiss her was ultra vires the university's domestic laws. The difference lay in the fact that Miss Thomas was seeking to invoke the ordinary jurisdiction of the courts, as distinct from their supervisory jurisdiction, but in each case the dispute turned in part at least upon the construction of those laws. It was against that background, and not in some different context, that the speeches were delivered. After considering all or most of the authorities to which we have been referred, Lord Griffiths said ([1987] 1 All ER 834 at 849-850, [1987] AC 795 at 824-825):
'It is true that the decision of the visitor is final and the parties are thus deprived of challenging a decision in that Court of Appeal and perhaps the House of Lords. But is this a disadvantage or an advantage? I rather think it is an advantage. Today the visitors of universities either are or include independent persons of the highest judicial eminence. Would not most people consider it better to accept the decision of such a person rather than face the risk of the matter dragging on through the years until the appellate process has finally ground to a halt. There is also the advantage of cheapness, lack of formality and flexibility in the visatatorial appeal procedure which is not bound by the intimidating and formalised procedures of the courts of law. 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 a matter within his jurisdiction or to prohibit him from dealing with a matter that lies without his jurisdiction. On mandamus see R v Bishop of Ely (1794) 5 Term Rep 475, 101 ER 267 and R v Dunsheath, ex p Meredith [1950] 2 All ER 741, [1951] 1 KB 127 and on prohibition see R v Bishop of Chester (1747) 1 Wm Bl 22, 96 ER 12 and Bishop of Chichester v Harward and Webber (1787) 1 Term Rep 650, 99 ER 1300. 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, on an application for judicial review, to quash a decision of the visitor which amounted to an abuse of his powers.'
To misconstrue the university's statutes and act upon that misconstruction would indeed be an abuse of the visitor's powers.
And Lord Ackner said ([1987] 1 All ER 834 at 852, [1987] AC 795 at 828):
'The source of the obligation on 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 the exclusive jurisdiction of the visitor, subject always to judicial review.'
The construction issue
Although there was at one time some slight controversy as to the terms and circumstances of Mr Page's appointment, it is now accepted that, so far as material, he was appointed and accepted the appointment as a lecturer subject to (a) the university's statutes, (b) an obligation to vacate his office as lecturer on 30 September following the date upon which he attained the age of 67 (ie 'the age of retirement') and (c) a term that 'The appointment may be terminated on either side by three months' notice in writing expiring at the end of a term or the long vacation'.
Mr Page has contended, and the Divisional Court has held, that on the true construction of the statutes read in conjunction with the obligation to vacate office upon reaching the age of retirement, and the notice clause, Mr Page is free to vacate his office upon giving three months' notice, but the university can only terminate his tenure of that office for 'good cause' and subject to giving him three months' notice. Lord Jauncey of Tullichettle on the other hand advised, and the Lord President accepted, that the conjoint effect of these provisions was that either the university or Mr Page could terminate Mr Page's tenure of office on giving three months' notice and that in addition the university could terminate it for 'good cause' with or without such notice.
In the ordinary course of events the legal relationship of employer and employee, which is the relationship with which we are concerned, can be determined by either party with or without notice and with or without 'good' or any cause. It is a personal relationship and cannot survive its repudiation by either party, whether or not the repudiation is accepted by the other. The relationship having ended, all that remains is to determine whether it was wrongful dismissal, which turns on the terms of the contract, or was an unfair dismissal, which turns on the provisions of the Employment Protection (Consolidation) Act 1978. That would be a matter for the courts or, as the case might be, an industrial tribunal. By contrast this is a case in which, if Mr Page and the Divisional Court are right, the university as employer had no power to terminate Mr Page's employment and accordingly Mr Page has never been dismissed at all and the employment relationship remains intact. If on the other hand the visitor and Lord Jauncey of Tullichettle are right, the employment relationship was terminated on 2 October 1988 and it will be for an industrial tribunal to decide whether his dismissal was unfair, it being conceded that, if he could be dismissed at all, his dismissal by the notice given on 30 June 1988 was not wrongful. What are the powers to judicial review (see Thomas's case).
The relevant terms of the university's states are ss 33, 34 and 35. They provide that:
REMOVAL OF CERTAIN OFFICERS AND MEMBERS AND VACATION OF OFFICE AND MEMBERSHIP1. The Chancellor, Pro-Chancellors, the Treasurer and any member of the Court or of the Council (other than ex officio Members) may be removed for good cause by the Court.
2. "Good Cause" in this Statute means: (a) Conviction of any felony or misdemeanour which shall be judged by the Court to be of an immoral, scandalous or disgraceful nature; (b) Actual physical or mental incapacity which shall be judged by the Court to prevent the proper execution of the duties of the office or membership; or (c) Any conduct which shall be judged by the Court to be of an immoral, scandalous or disgraceful nature.
SECTION 34
REMOVAL OF MEMBERS OF THE TEACHING RESEARCH AND ADMINISTRATIVE STAFF AND VACATION OF OFFICES
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. The Council may and shall if requested by the person concerned or by any three members of the Council before such removal appoint a Joint Committee of the council and the Senate as defined by Ordinance to examine the complaint and to report to the Council therein.
2. "Good Cause" in this Statute means: (a) Conviction of any felony or misdemeanour which the Council after consideration if necessary of a Report of the Joint Committee referred to in Clause 1 of this Section shall deem to be of an immoral, scandalous or disgraceful nature. (b) Actual physical or mental incapacity which the Council after consideration if necessary of a Report of the Joint Committee referred to in Clause 1 of this section shall deem to be such as to render the member of Staff unfit for the execution of the duties of his office. (c) Conduct of an immoral, scandalous or disgraceful nature which the Council after consideration if necessary of a Report of the Joint Committee referred to in Clause 1 of this Section shall deem to be such as to render the member of the Staff unfit to continue to hold his office. (d) Conduct which the Council after consideration if necessary of a Report of the Joint Committee referred to in Clause 1 of this Section shall consider to be such as to constitute failure or inability to perform the duties of his office or to comply with the conditions of the tenure of his 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 of this Section and in pursuance of the procedure 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 by a vote of at least two-thirds of the number of members present 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 attained the age of 67 years.'
Notwithstanding Mr Page's strongly held views, which are no doubt supported by many of his academic colleagues both at Hull and at other universities, I do not consider that any principle of academic 'tenure' is involved. Either the university statutes give Mr Page 'tenure' or they do not. It is a pure question of construction with no presumption one way or the other.
It is common ground that Mr Page does not fall within section 33, but does fall within section 34(1) as being an '[officer] of the University including Professors and members of the Staff holding their appointsments until the age of retirement'. It is also common ground that he could properly be described as a 'member of the teaching research or administrative staff of the University' but not that he is within section 34(3). He is also a 'lecturer' within section 35.
The Divisional Court accepted Mr Burke's submission that the statutes contemplate a hierarchical structure. Level 1 comprised the 'top brass' referred to in section 33. Level 2 comprised Mr Page and others to whom section 34(1) applies, including the vice-chancellor if, but only if, he holds that appointment up to the age of retirement. Those at this level can only be dismissed for 'good cause'. Level 3 comprised those who fall within section 34(3), but not within section 34(1) because, whilst they are members of the teaching research or administrative staff or are a vice-chancellor, they hold temporary or fixed-term appointments or indeed any form of appointment not being expressed to be up to the age of retirement. Staff in this group enjoy 'good cause protection', save in so far as their contracts otherwise provide.
Applying this construction to the case of Mr Page, as a level 2 member of staff he enjoys 'good cause' protection until the age of retirement and, in addition, by the terms of his appointment as contrasted with the statute has the additional protection of being proof against dismissal however 'good' the 'cause', unless and until he has been given three months' notice and that notice has expired.
It appears that this construction was not put to Lord Jauncey of Tullichettle, but I am confident that he would have rejected it, as I do. Unless the words compel such a construction, it is absurd that level 1 office holders should be dismissable summarily for good cause, whereas level 2 office holders can only be dismissed for good cause on notice, however grave the cause. It also involves an artificial removal from level 3 of staff who in terms fall within both levels 2 and 4.
Both parties are able to submit that the drafting of the statutes could have been simplified and thus probably clarified, but I think that the framework and construction are sufficiently clear. Section 33 officers stand on their own. They can be dismissed for good cause whatever the terms of their appointment. There is then a further group which falls within section 34 and includes Mr Page. Clause 1 empowers the university to dismiss staff falling within it for good cause, whatever the terms of their appointment, subject only to compliance with the procedure specified in that clause. This may constitute a breach of contract, but the section is concerned with vires which is different. The clause is positive and permissive in form. Paragraph 3 applies to the same group and, in addition, to administrative staff who are not within cl 1 because they do not hold their appointments until retirement age. Again it is concerned with vires. It is mandatory and negative in form and deprives the university of the power to dismiss them otherwise than for good cause or in accordance with the terms of their employment. This protection is not enjoyed by other employees of the university, because a purported dismissal in breach of this paragraph would not be just a wrongful dismissal, it would be ultra vires the university and nullity.
This view is consistent with that of Lord Jauncey of Tullichettle who advised that the opening words of section 34(3):
'show clearly that section 34 contemplated that individual contracts of employment would contain provisions for termination in circumstances other than those set out in section 34(2). When the notice section is read together with these opening words I consider that the conclusion is inescapable that Mr Page's contract of employment provided for two situations, namely (1) removal from office without a specified period of notice under section 34, (2) termination of employment by three months' notice expiring at the end of a term or the long vacation. It follows that the University were, by letter of 30th June 1988, entitled to terminate his contract of employment with effect from 2nd October 1988.'
I would allow the appeal.
JUDGMENT BY STAUGHTON LJ
For the reasons given by Lord Donaldson MR, I agree that the remedies of judicial review are available when a decision of the visitor of a university or college is affected by illegality, irrationality or impropriety.
As to the construction of the statutes of the University of Hull and Mr Page's letter of appointment, the court's first task is to discover what classes or categories of person are referred to in sections 33 and 34. It is clear that section 33 is intended to contain one class which is largely separate. That comprises:
'The Chancellor, Pro-Chancellors, the Treasurer and any Member of the Court or of the Council (other than ex officio Members)...'
In section 13, class 6, there is a list of ex officio members, which shows that the term has a narrow meaning and by no means comprises all those members of the court or council or the university who have membership because they hold an office. For example, the vice-chancellor is not in class 6, but is a member of both the court and council. There is thus an overlap between the class of persons in section 33 and the class or classes in section 34. Since the two sections have a somewhat different regime for removal, this presents a problem. The solution is, in my judgment, that section 33 is dealing with removal from certain offices (chancellor, pro-chancellor, treasurer), or from membership of the court or council; hence the reference in para 2(b) of the section to unfitness for the execution of the duties of the office or membership. Section 34, on the other hand, deals with the removal from any other office of the person appointed to it. Theoretically the vice-chancellor, and perhaps other persons, would have to be removed from office under section 34, and removed from membership of the court or council under section 33. Although cumbersome, this is not an impossible result.
Section 34 is headed: 'Removal of members of the teaching research and administrative staff and vacation of office.' In cl 1 it described a class as follows:
'The Vice-Chancellor and all Officers of the University including Professors and members of the Staff...'
In para 3 the reference is to:
'...no member of the teaching research or administrative staff of the University (including the Vice-Chancellor)...'
In each case two of the grounds for removal are those specified in para 2(b) and (c), whereby the 'member of Staff' is deemed to be unfit for the execution of the duties of his office, or to continue to hold his office.
In my opinion the two classes described in section 34(1) and (3) are precisely the same; hence they are both contained in a section which has only one heading. A skilled draftsman would have used the same words to describe them in both paragraphs. But I am not much impressed by the skill with which these statutes were drafted.
I therefore reject the Divisional Court's conclusion that there is a hierarchy of three grades of staff in sections 33 and 34. There are in my opinion only two grades, so far as concerns removal from office: (a) the chancellor, pro-chancellor and treasurer, and (b) all other members of the teaching, research or administrative staff. Removal from membership of the court or council is included in section 33, as I have pointed out, together with removal from office of those in class (a). Removal from office of those in class (b) is dealt with in section 34.
Once it is appreciated that there is only one class in section 34, the meaning becomes clear. Section 34(1) provides that anyone in class (b) who holds an appointment until the age of retirement may be removed for good cause. Paragraph 3 provides that, subject to the terms of his appointment, no member of class (b) may be removed except for good cause. It may well be that the same result could have been achieved with greater economy of language; that does not persuade me that my interpretation is wrong.
I then turn to Mr Page's letter of appointment. This provided:
'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.
There is nothing there about appointment until retirement age. But it was common ground in the Divisional Court that Mr Page was appointed until the age of retirement. That conclusion was presumably derived from the terms of the advertisement (which I wrongly thought to be irrelevant during the argument). This stated that a lecturer would vacate office on 30 September following his 67th birthday, in contrast to an assistant lecturer who would have a probationary period. But the advertisement also provided for three months' notice by either side.
No doubt one should read the advertisement with the letter of appointment. But for my part I do not consider that Mr Page was appointed until the age of retirement, in terms of section 34(1), despite the common view of the parties. He was appointed until that age unless either party gave three months' notice earlier. This is the short and simple answer to this case. Section 34(1) does not apply, and Mr Page was properly dismissed by notice.
If I am nevertheless obliged to accept what was common ground between the parties, it means that Mr Page by the terms of his appointment was both appointed until the age of retirement and subject to dismissal on three months' notice. In those circumstances section 34(1) provides that he may be removed for good cause; and by para 3 he may be dismissed on three months' notice (because his appointment says so), but otherwise only for good cause. On that view also, Mr Page was validly dismissed by notice.
It is said that the effect of this construction is to render the somewhat elaborate provisions as to good cause unnecessary, as the university would be unlikely ever to seek to operate them; it would be simpler merely to give three months' notice, as operation of the good cause provisions would take longer and might involve dispute. That may well be true today. But I doubt if it was true in 1955 when the statutes were made, or in 1966 when Mr Page was appointed. Employment law and procedure have developed greatly since then, and much more care is now taken before a person is dismissed for cause. But in any event, if the good cause provisions are of no practical effect in Mr Page's case, that is because a period as short as three months was inserted in his terms of appointment. Instead it might have been 12 months. In that case the university might well have wished to operate the good cause provisions if there had been serious misconduct of incapacity. The length of the period inserted in the letter of appointment cannot affect the meaning of the statutes.
Thus far I have said nothing about academic tenure. I fully appreciate that importance is attached to job security by those who teach at universities; and I see nothing improbable in the University of Hull in 1966 appointing someone as a lecturer until the age of 67, subject only to good cause. The statute itself contemplated that this might happen. But equally I see nothing improbable in the university appointing someone on terms that he should remain until that age, unless three months' notice was given sooner. Accordingly, it is in my judgment right to approach the problem from a neutral position, without any predisposition to favour one solution or the other. That I have sought to do.
Likewise, I would see nothing improbable in the university binding itself to Mr Page for a longer period than Mr Page was bound to the university, if it chose to do so. But in my opinion it did not.
Finally, I should mention the argument that the three months' notice provision, when operated by the university, was to be notice of dismissal for good cause - and what is more, that it could only be given after good cause was either admitted or established by the joint committee of the council and the senate; the three months' notice provision did not authorise dismissal by reason of redundancy, or for that matter caprice. The argument proceeded from the assumption that some period of notice had to be provided even if dismissal was for good cause; McClelland v Northern Ireland General Health Services Board [1957] 2 All ER 129, [1957] 1 WLR 594 was said to show that no other period of notice could be implied, since one was already expressly agreed; hence the three months' notice provision must have been directed at dismissal for good cause.
I am afraid that I cannot accept the premise that any period of notice was required in the case of dismissal for good cause. It used to be common for employment contracts to provide for instant dismissal in the case of serious misconduct. The university would require that right in some of the events covered by section 34. It would not wish to have the burden of paying a person who was suspended from duty. I do not consider that the good cause provisions contemplated any period of notice or delay, other than that necessarily inherent in securing either an admission that good cause existed or a report of the joint committee. I would allow this appeal.
JUDGMENT BY FARQUHARSON LJ
On 13 June 1966 by letter from the registrar of the University of Hull, the applicant was offered an appointment as lecturer in philosophy. Among a number of other terms and conditions it was provided that:
'The appointment may be termined by either party on giving three months' notice in writing expiring at the end of a term or of the long vacation.'
In the advertisement for the post which the university had published in the national press, under the heading 'Tenure' it was stated that:
'The appointments will date from 1st October, 1966 and will be subject to the Statutes of the University for the time being in force...'
The applicant accepted the appointment by letter dated 14 June 1966.
On 30 June 1988 the applicant was given written notice to terminate his employment on the grounds of redundancy, the notice to take effect on 2 October 1988. The applicant subsequently petitioned the visitor of the university that his purported dismissal was ultra vires and void but his petition was rejected. In proceedings for judicial review of the visitor's decision the Divisional Court held that the visitor had misconstrued the statutes of the university and granted the applicant the relief he sought. The present appeal is from the Divisional Court's decision.
There is no dispute that the terms governing the applicant's appointment are to be found in the letter already cited and in section 34 of the statutes of the university. In developing his argument for the applicant Mr Burke QC also relied on section 33 which he submitted placed section 34 in its proper context.
Section 33(1) provides:
'The Chancellor, Pro-Chancellors, the Treasurer and any Member of the Court or of the Council (other than ex officio Members) may be removed for good cause by the Court.'
Paragraph 2 defines the meaning of 'good cause'.
Section 34 bears the heading:
'Removal of members of the teaching research and administrative staff and vacation of office.'
Clause 1, in so far as it is relevant, provides:
'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.'
Paragraph 2 defines 'good cause' within the meaning of cl 1 and it is agreed by both sides that there was no good cause in this sense for dismissing the applicant.
It was also common ground that the applicant was within the category of those holding their appointments until the age of retirement.
Section 34(3) is in these terms:
'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.'
The construction of section 34 advanced by counsel for the university, Mr Beloff QC, and for the visit, Mr Havers, is simplicity itself. While the applicant comes within section 34(1) as one 'holding his appointment until retirement' and for that reason can only be removed under the statutes for good cause as specified in para 2, the parties made the applicant's appointment subject to the correspondence exchanged between them in June 1966, so that the appointment was terminable by three months' notice, which had been duly given. Section 34(3) expressly provides that the protection against removal contained in the statutes is 'subject to the terms of his appointment'. Counsel contend that the university has acted correctly within the terms of section 34 and that the dismissal of the applicant is therefore effective.
Mr Burke approaches the task of construction on what might be described as policy grounds. He submits that the purpose of those sections in the statutes is to preserve and guarantee academic freedom. No teacher should be at risk of dismissal because he expresses radical or unpopular opinions. He is given protection againts such a risk by the provision that he can only be dismissed for 'good cause' as expressed in the statute, which, broadly speaking, relates to immoral conduct of a disgraceful nature or incapacity. Recognition of the importance of this safeguard is to be found in the Education Reform Act 1988 in ss 202(2)(a) and 203(1)(b). The introductory words of section 34(3) of the statutes could not therefore have been intended to remove the protection given to university teachers. Mr Burke argues that, if the university's construction is correct, the whole edifice set up by the section is destroyed. There would be no point in going through the painful and difficult task of proving disgraceful conduct by or incapacity of a member of the university staff if the problem could be resolved more simply by giving three months' notice.
These are cogent arguments but for my part I find it difficult to spell out the policy suggested from these two sections. The provisions are equally consistent with a view which might be taken by the university that with falling rolls and increasing expenditure it could not afford a guarantee of employment for a professional lifetime. I agree with Mr Burke that the two provisions (ie in the statutes and in the letter of appointment) sit uneasily together but I do not accept his approach of attributing a policy to the statutes and then seeking to construe them in a way which achieves that policy. If the policy was clearly expressed in the statutes, it might be different but in the present case the task of the court is to derive the true meaning, if it can, from the words of the sections themselves.
Rejecting the 'policy' argument, as I do, one asks what is the purpose of those introductory words of section 34(3) 'subject to the terms of his appointment'? Mr Burke contends that they are in a sense an auxiliary to the process contemplated by section 34(1). He submits that the only way of removing a teacher holding his appointment until retirement is by proving 'good cause' against him and then applying the notice provisions in the letter of appointment. Thus the council, having found disgraceful conduct, for example, established against the teacher, would then give him three months' notice of the termination of his appointment.
For my part, I cannot accept that as an arguable construction. The provisions for removal in section 34 involve an entirely different process from the giving of three months' notice of termination. Section 34(1) gives the council the power of removal once good cause is proved. It is a power of summary removal. The injection of a subsequent period of notice is artificial. The two procedures are inconsistent and not complementary.
The next submission of Mr Burke is that there should be a hierarchical construction of the statutes. This construction was approved by the Divisional Court. Counsel argues that sections 33 and 34 contemplate three distinct categories of appointment in the university. Thus section 33 relates to the most senior appointments, those who might colloquially be described as the 'top brass'. Section 34(1) deals with the officers of the university, ie those including the vice-chancellor who hold their appointments until retirement. They might, I suppose, be categorised as the senior establishment. Lastly, the lowest element in the hierarchy are the non-permanent or fixed-term staff. Mr Burke by way of illustration points to the use of a capital 's' in the word 'staff' in section 34(1) but a small 's' in 34(3). In fairness he (quite rightly) did not rely on that point very much. If this categorisation is correct, then the words 'subject to the terms of his appointment' would not apply to those in the position of the applicant, but only to the non-permanent staff. Thus the applicant could not have his appointment terminated by notice but only by proof of good cause for his dismissal within the section.
While I readily accept that those described in section 33 constitute a separate category, I can find no justification for drawing a distinction between those described in section 34(3) and those in section 34(1). It is to be noted that section 34 has an introductory heading describing the members of staff to which it relates where no such distinction appears. Furthermore, there is no express description of different categories in the words of the section itself. The distinction sought to be drawn is an important one with significant consequences, and one would suppose in those circumstances that it would be clearly stated. Mr Burke argues with his usual cogency that, if his analysis is not correct, there would be no sense in having the two clauses in the same section. If only one category of persons is contemplated, both clauses would give those persons the protection of the statutes against dismissal.
While acknowledging the weight of that argument, I take the view that section 34(1) is an enabling clause giving the university the power of dismissal in the specified circumstances; while section 34(3) describes those entitled to benefit from the protection against dismissal given by the statutes. To that extent only I agree that section 34(3) is repetitive. In my judgment, whilst section 34(1) describes a narrower category, ie those holding their appointments until the age of retirement, all those including in that category are also included in section 34(3) together with the non-established staff.
For those reasons the applicant's appointment is qualified by the terms of the letter of 13 June 1966 and it could properly be terminated by the giving of three months' notice by the university.
So far as the issue of jurisdiction is concerned, I agree with the observations of Lord Donaldson MR.
I would allow the appeal.
DISPOSITION
Appeal allowed. No order for costs in Court of Appeal or below. Leave to appeal and cross-appeal to the House of Lords granted.
SOLICITORS
Priestman Green & Co, Hull; Treasury Solicitor; Robin Thompson & Partners