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Tuesday, 17 November 1998. A Discussion was held in the Council Room of the following topic of concern to the University:
The ruling made by the Vice-Chancellor's deputy appointed to consider a recent representation under Statute K, 5, which relates to the authority of the officers to conduct legal proceedings (p. 77).
The SECRETARY GENERAL:
Madam Deputy Vice-Chancellor, the subject of this Discussion is a general principle concerning the responsibilities of the officers of the Council and the General Board. It is not about a particular action by an individual officer. I hope that the subsequent speeches will recognize that it is therefore not appropriate to name individual officers since the Registrary and the Secretary General accept full responsibility for the actions of their colleagues and are accountable for them.
Dr J. P. DOUGHERTY:
Madam Deputy Vice-Chancellor, I have not had the pleasure of meeting Dr Griffin. I know nothing about his dispute with the University beyond what appears in the Notice of this Discussion, and I prefer not to know more. That Notice refers to the 'general nature of the topic on which (the Discussion) has been called', and I propose to speak to that. I believe I am unusually qualified to do so as a result of my service as the Chairman of the Management Committee of the University Centre during the eleven years from 1985 to 1996.
In dealing with the outside world, one may very well have to start by correcting a widespread confusion. This results from the Colleges being separate legal bodies, while the University, in the narrow sense, is only a single legal body, notwithstanding that it comprises numerous institutions. A summons received by the University is quite likely to get the name of the defendants wrong, but if it is received in a Department it should be conveyed at once to the Registrary. (It might even turn out that the matter actually refers to a College.) Similarly, individual Departments do not have authority to initiate legal action; they must consult the University Council.
In public bodies of all kinds it is essential that authority to conduct legal proceedings be unambiguously assigned, for example to the Board in the case of a limited company. In our case, the Council needs to be made the source of such authority. The passage in Ordinances, p. 118, (1997 edition), quoted in paragraph 4 of Professor Hepple's letter (Reporter p. 78), is intended to do this. I have long thought this to be inadequately drafted. There are three points:
|(i)||It mixes up the bringing and defending of legal proceedings with lesser activities such as employing solicitors and seeking advice and, by implication, making routine transactions that may require lawyers' services.|
|(ii)||It does not assert the sole authority of the Council in these matters.|
|(iii)||It neither prohibits, nor regulates, the delegation of these powers.|
At the University Centre, we dealt routinely with solicitors, for example in Licensing matters. The general licence had to be renewed periodically, and there were also applications for special licences. On some occasions appearances in Court were required, and the matter was capable of being contentious, but it would have been absurd for every item of this business to need sanction by the Council. We also consulted solicitors on other questions, and on one occasion we sought Counsel's Opinion on a general employment matter. So as regards (i), we were just playing it by ear, although helped by the presence of the Registrary on the Committee. As Professor Hepple's letter mentions, similar considerations apply to other institutions such as the Personnel Office and the Estate Management and Building Service, to which others could be added.
As to point (ii), I believe that authority should ultimately rest with the Council, but the relation of this to Statute J, 3 should be considered. That Statute empowers the Press Syndicate to carry out numerous activities that require consultation with lawyers and could lead to actions in court.
These points seem to me to make it obvious that in answer to point (iii) delegation to Principal Officers and a few others, and to Syndicates, etc., must be possible, but I suggest that the circumstances and mechanism of such delegation should be spelt out.
It would not be for me to offer any critical comment on Professor Hepple's exposition of the matter as it applies to the present case, and I am satisfied that his ruling should be accepted. But I feel that it ought not to have been necessary for him to trawl through the Statutes and Ordinances and rely on rather nebulous phrases like 'customary rights and duties' of offices. This is surely a less than satisfactory way to approach a serious problem.
Accordingly, I suggest that the Council should review the drafting of the passage here discussed, and make recommendations for an amendment to Ordinances that will clarify this matter in respect of my points (i)-(iii) above. It would remain the case that actions taken in court by or against the University in respect of serious matters would be directed by the Council. Here 'serious matters' could also include matters such as an appeal against a planning decision, if thought appropiate.
Occasionally, disaster of some kind strikes resulting in a court action. I would like to continue with some comments on how this should be handled, the role of the Council, and the effect it has upon the body concerned as well as upon staff involved in it.
I need to describe as briefly as I can the example with which I was painfully involved. It arose from a food poisoning incident that occurred at the University Centre in May 1992. Around fifty guests at a function suffered temporary illness, in some cases unpleasantly. It was the only such incident at the Centre either before or since, but had to be taken very seriously. The civil claims for compensation were settled behind the scenes by the University's insurers, but the Environmental Health Officers of Cambridge City Council had to consider a possible criminal prosecution.
The difficulty, for both sides, was that major changes in the law had been introduced by the Food Act 1990, whose provisions had only just come into effect in 1992. Among these changes were (a) that offences were reclassified from being absolute offences to those for which a 'due diligence defence' could be tendered, and (b) the fine that could be imposed became unlimited. Point (a) allowed the defendants to bring to Court detailed records of their equipment maintenance, staff training, storage facilities, and so on, to establish that they had taken 'all reasonable steps' to prevent what had happened; if so the charge would be dismissed. Point (b) enabled the defendants to choose a jury trial rather than magistrates. There was no experience available as to the influence of these changes, nor as to what could be regarded as 'reasonable steps'. After considerable hesitation, the City decided to prosecute, and after more hesitation, we decided to contest. We also elected trial by jury, which I believe was correct in view of the complexity of the issues involved.
The result was very unpleasant for both sides. There was a two-year delay before the case was heard, in May 1994, and the trial lasted six weeks, far exceeding the estimates made at the time of our decision. The preparation, and the hearing itself, imposed horrendous demands on the time of those involved, including especially the then General Manager, Mr Geoffrey Hall, and many of his staff, together with, if I may so mention, myself. Generous help by Dr Paul Callow should also be acknowledged. Similar overloads must have been experienced in the City Council, and to make matters worse for them, their case was unanimously dismissed by the jury. Our costs were charged to public funds, but if we had lost, the total charge to the University, including the costs of both sides and the fine, can be estimated at around £400,000. The fact that Mr Hall had to take early retirement some twenty-one months later can be partly attributed to these events, and we were genuinely saddened to learn that an officer who had been involved on the City side died some time later. It fell to me to attend the trial on most days, and to give instructions on the spot to our excellent barrister as required. The proceedings were extremely and unpleasantly competitive as both sides had invested large resources and staked their reputations.
The Council of the Senate (as it was then called) agreed to contest the case and consented to our choice of legal team. The Registrary (Dr Fleet) was supportive and always available for consultation. Nevertheless I had a strong impression of being alone in the sense that we had no general assistance or additional staffing to undertake the workload imposed or to alleviate our normal tasks. I suggest that on any future occasion when such a typhoon strikes a Department or group of officers more assistance should be offered. The Council simply left us to handle it unaided, though I acknowledge that had they continually intervened in the conduct of the case, I might well have been grumbling about that.
The verdict in favour of the University was reported in the local paper, but unfortunately there was a misunderstanding about the award of costs, giving the disadvantageous impression that the University had been penalized in that sense. I heard that the Council minuted its satisfaction with the verdict. But notwithstanding the scale of the event, no announcement was made in the Reporter for the information of members of the Regent House. So far as I know none of us that had been involved with it received any acknowledgement or recognition of any kind.
The message to members of the Regent House about to be involved in litigation connected with the University can only be: 'don't'. You will spend hundreds of hours in a literally thankless task.
It was right of course to try to rebuild bridges with the City Council following the events I just described. But three months later, at the occasion of the Vice-Chancellor's annual address on 1 October 1994 (Reporter, 1994-95, p. 61) I was astonished to hear an unusual tribute. I quote, 'The excellent state of City-University relations is indicated by the fact that, in the course of the year, I have shared on many occasions in events of local rejoicing, celebration, and remembrance in which I have truly felt a part'. It is nice that he enjoyed them, but the sting in this passage was in the tail, for it was followed by an invidious contrast with relations between the County Council and the University. What outrage could they have committed, I thought, in the light of my experiences? It turned out to be traffic restrictions imposed by them, that hindered convenient access to the Old Schools!
Dr G. R. EVANS:
Madam Deputy Vice-Chancellor, this Discussion was called to address not one but several closely-related problems of concern to the University.
How did all this come out into the open? Dr Griffin received a letter from an administrative officer in the Old Schools setting out the University's 'last word' on the subject of its reponse to his Industrial Tribunal application. I stress that no blame is to be attached to this officer. This is about our structures and the delegation of powers.
I had myself had occasion to challenge the authority to write a letter in connection with my own litigation. I invoked Statute K, 5 myself in the New Year, because I knew the matter had not been before the Council and it had certainly not authorized anyone to take action to resist it, under the provisions of p. 118 of the Statutes and Ordinances (1997). Professor Gareth Jones, acting as the Vice-Chancellor's deputy, ruled that the Vice-Chancellor could instruct the solicitor without any requirement that the Council should hear about it.
Dr Griffin invoked Statute K, 5 on his own account. He had standing to do so because he remained a member of the Regent House, although the University was refusing to deem him an employee or to pay him any salary while he continued with research funded by a major BBSRC grant awarded jointly to Cambridge and to Bristol. I give no more detail than has already appeared in The Times Higher Education Supplement some months ago. This time Professor Bob Hepple was appointed the Vice-Chancellor's deputy. He, too, ruled that there had been no breach of the Statutes and Ordinances.
But he said rather more, and it was that which prompted the calling of this Discussion. He argued from:
'Statute D, III, 3, which provides that "the Vice-Chancellor shall enjoy the customary rights and perform the customary duties of the office. He shall have power to ensure that all University officers duly perform their duties, and shall have such other powers and duties as may be prescribed by Statute or Ordinance",'
'The Vice-Chancellor could obviously take steps in legal proceedings in the interests of the University on the basis of this provision. In my view, other principal officers, who fall under his supervision, also have customary rights and duties in relation to legal proceedings.'
Professor Hepple's ruling begs two questions: what is the force of custom when it is arguably mere unexamined bad habits, and what is in the interests of the University? In Dr Griffin's case, the conduct of the matter by the officers and the solicitor lost the University this large and prestigious grant, for in the end the BBSRC withdrew it, and this statutory funding body is now not pleased with Cambridge.
Our Vice-Chancellor has had many of his letters to me written by the University solicitor, though I do not for a moment suggest that he has been seeking to give himself special advantage by doing so when others have to write their own. There must be a danger that a Vice-Chancellor will take free legal advice on his own behalf and get legal expenses paid for himself and senior officers if there is no check, and no means of ensuring that it is the officer and not the person who is getting the benefit. (I emphasise again that I make no accusation about the personal integrity of our own Vice-Chancellor.) It is a commonplace in university disputes elsewhere for that to happen, and the National Audit Office is about to call Southampton Institute's former Director to account for defending himself at the public expense. And what of indemnity insurance? Which of our officers are protected at our expense? Are you? Do you know?
The officers in the Old Schools have, it seems, been taking decisions, and expensive decisions, about the conduct of litigation on behalf of the University and taking it unchecked by the Council, which has a duty to oversee that matter. When you take the lid off a can of worms in the University, as I have been doing again and again lately, it repeatedly turns out that something profoundly unsatisfactory and untidy and unmonitored has been going on for decades without anyone noticing. Now that there are clear signs that there is an intention to move to more and more direct control of the research as well as the teaching of the academic staff; now that you are to sign a confidentiality clause which may limit your rights to speak freely in such Discussions as this, the opening of cans becomes an increasingly important service to the University, and an increasingly risky one to the individual. If that is the way things are going to go, there is a need for a much higher degree of accountability to the Regent House on the part of administrative officers. (I asked the Council to publish the new contracts to the Regent House. It refused. I now, publicly, ask it again.)
If Professor Hepple's ruling goes unchallenged, these officers now have express powers to take legal advice and initiate legal proceedings in the name of the University, which means in your name and at your expense. The Executive Committee of the Council, that ghostly body not in the Statutes and Ordinances which has huge power behind the scenes, will perhaps hear about it. The Council may never know. You certainly will not know, members of the Regent House, unless perhaps the matter gets into the media.
'It is right that the authority of these officers should be construed liberally with regard to the object of their authority and the usages of the University', says the Master of Clare. This takes us back to a favourite theme of mine, the difference between managers and civil servants. Our officers are in effect 'civil servants'. They do not have managerial powers. The Statutes make them advisers. However excellent their advice may be - and I do not suggest that it is not for the most part sound - they are not decision-makers. We are the decision-makers. In what, then, does this 'implied authority of the principal officers and other officers of the University to do whatever is incidental to the discharge of their duties in the administration of the University' consist? How can there be an implied authority which goes beyond the limits the Statutes clearly place upon that authority?
Professor Hepple rightly says that powers may be delegated. But these powers have not been expressly delegated by the Council, except in a very recent circular to which I will return in a moment, which you have seen only if you are a Head of Department or the like. And it is not clear from the Statutes that the Vice-Chancellor has these powers personally as the Master of Clare argues. A specific provision is made on p. 118 among the Ordinances without mention of the role of the Vice-Chancellor. The Ordinance derives from a Grace of 30 October 1968 and it clearly lays upon the Council the responsibility of determining what is in the interests of the University. That is in accordance with the Council's policy-making duties under the Statutes. The Vice-Chancellor has no policy-making powers in his own hands. He is our employee, members of the Regent House, and our servant rather than our master.
The Master of Clare was 'informed by the Registrary and Secretary General' that 'it has been settled practice for many years for the Registrary and other senior officers…to seek legal advice on behalf of the University and to conduct cases in the light of that advice, dealing with them in good faith and without reference to the Council'. 'The Personnel Officer, the Treasurer, the Secretary General, the Director of EMBS, and the Registrary routinely do so and have done so until recently without challenge or remark.'
Members of the Regent House, are you happy about that? What has been going on behind our backs? How can the Council do its job, exercise its task of oversight, if it never hears about matters of such importance?
The principle that, until these invocations of Statute K, 5 called a halt, bodies or individuals could resist litigation in the name of the Regent House, without anybody knowing about it centrally, must be wrong. Either there is so little litigation that it could be no great nuisance to the Council to have a list of actions to keep them up to date; or there is such a crowd, such a flurry, such a queuing up the court-house steps, that we ought to be worried about the sheer number of cases, and in that case, too, surely the Council ought to know. It is a matter of keeping them sensibly in touch.
That does not mean they will be prudent with your money. It seems to me to have been very 'ill-judged' of the Council to reject Sir Brian Neill's settlement proposals when I would have signed them; very 'ill-judged' now to be insisting on defending the victimization case, which will cost the University at least £50,000 when I would still settle for nothing but a return to co-operation over the reforms and an avenuue of appeal for all the 'bad old cases' and a recognition that damaging things have been said about me falsely. And if the Registrary or the Secretary General can settle with me, why do they not do so? I say this by way of a plea for the common-sense, and the mending of fences, which ought to characterize our handling of litigation.
Next, I should like to take one step back. In February I called in a Discussion for reform of Statute K, 5 (Reporter, 1997-98, p. 441). I said at that time that I did not propose to invoke the Statute again until it had been redrafted. I have had to do so, for new problems have arisen over calling to account and there have been no moves as yet to begin the redrafting. More than a redraft is needed. We must have 'accountability-machinery' which really works, so that never again does the University have to be dragged through the courts and the newspapers to its shame and disgrace as has happened during recent months. I call again for the reform of Statute K, 5 to be put in hand, beginning with a Report to the University so that we may all discuss what we need.
Above all, we must have a means of addressing relatively small points effectively and quietly. I should not have had to make speeches bringing publicly to attention matters about which reasonable requests by letter have been ignored. What has been going on lately has been to the detriment of everyone's dignity, and I must take some responsibility for that. I have named names and no doubt caused their owners pain, but I have done so only at the frustrating end of an extended process of trying to get answers by ordinary internal channels, sometimes for as long as a year, and being refused. The Regent House should know that there has never been any personal ill-will in anything I have said: it has all been about the issues, and I believe they have been important issues. I repeat my apology for hurt inevitably caused which I made in the summer (Reporter, 30 April 1998). But I beg the University to provide itself with machinery to make it unnecessary for it to happen any more.
Nevertheless, even in its present primitive form, the Statute has its effect. It gets things out into the open (but not so far out that you will be told what the Council has now instructed Heads of Council and General Board institutions, the Secretary General, the Treasurer, the Director of EMBS, the Personnel Officer, the Development Director, and Dr R. C. Jennings, to do about litigation in which the University is involved. I invite the Council to reconsider its decision not to publish that guidance in the Reporter so that everyone may see it.)
1. In the interests of the University and especially in its financial interests, we must stop the waste of money on legal fees which follows from the present casual practice.
We must get the University solicitor's bills monitored and checked and challenged; that does not appear to happen at present. I have asked both the Registrary and the Treasurer about that and other matters on this list, in a letter of 13 July copied to HEFCE and the National Audit Office. They have not yet answered it.
2. Oxford has set up a legal services department in its University Offices, thus bringing its solicitor in-house and paying a salary instead of enormous ad hoc bills. This must surely be a good idea for us too.
3. We must adopt a policy of settling where we can rather than fighting every case with stiff-necked determination not to back down or apologize or compromise. A solicitor representing one of our former students who has taken the University to the High Court and whose full judicial review leave hearing is imminent tells me that, in his extensive specialist experience with student cases, Cambridge stands out for its unwillingness to seek a sensible solution by negotiation.
4. We must clarify the rights of named officers to take legal advice at the University's expense and the circumstances in which they may do so.
5. We must root out a number of potential conflicts of interest in that area.
6. We must insist that the Council indicate by its Minutes that it has taken note of every case conducted in the University's name and receives a regular update on the costs.
7. I turn now to Professor Hepple's ruling that it 'is reasonable and generally recognised usage of the University for contracts of employment in respect of General Board institutions to be made by, and where necessary terminated by, the Secretary General.' That cannot extend to the appointment to any University office, for which rules are laid down in the Statutes and Ordinances at K, 9. And, with respect, I cannot believe, even if it has in fact been going on for years without our knowing it, that the Registrary and the Secretary General and other administrative officers really can hire and fire at their own discretion. That sort of thing happens in other universitiies. Are we prepared to let it happen here?
Statute D, I, 9 lays down the rules for the signing of contracts on behalf of the University. There must exist a distinction between the authority to sign on behalf of those with authority to act and the authority to act on one's own account. We must have this clarified, too.
8. And let us get on as a matter of urgency with the reform of Statute K, 5 and nip our problems in the bud, instead of letting them grow into great rampant weeds which threaten to throttle the flowers in the gardens of otherwise unparalleled beauty which flourish in the University of Cambridge.
In the Spectator of 1852, in discussion of the Royal Commission report on the universities, we read of 'removing all obstacles out of the way of spontaneous self-reform, and leaving the enlightened spirit of self-improvement… to leaven the whole mass, and work out its practical results' (p. 514). Let us do that.
Professor D. N. DUMVILLE:
Madam Deputy Vice-Chancellor, as one of the signatories of the request for a Discussion, I have three simple points to make; but, whether because of or in spite of the Secretary General's opening remarks, I had better begin with what amounts to a declaration of interest. I am acquainted with Dr William Griffin, for whom I have a very high regard, and who seems to me to have been the victim of a substantial injustice from which indeed the University as a whole has suffered. I wish that the Vice-Chancellor would order some creative thinking in the Administration, as a result of which the wrong which he appears to have suffered could be righted. I am acquainted too with Mrs Peta Stevens for whose abilities and probity I have likewise a very high regard. I am not, however, acquainted with the Master of Clare College, whose report on Dr Griffin's representations we are discussing this afternoon. I turn now to the substance of my remarks: these can be stated briefly.
It seems odd to me that Professor Hepple's ruling is to be found in the form of a letter to Dr Griffin. Is not the position that the Master of Clare College was acting as a deputy to the Vice-Chancellor, to whom the representations were made, in investigating the matter and that therefore the ruling should have been addressed to the Vice-Chancellor for his consideration?
Secondly, I should like to think that by now Professor Hepple may feel that he went over the top in ruling (§13) that it 'is reasonable and generally recognised usage of the University for contracts of employment in respect of General Board institutions to be made by, and where necessary terminated by, the Secretary General'. If matters were left there, extraordinary power would be delivered, over most members of the University community, to the present Secretary General and his successors. It is hard to credit that this situation is compatible with the University's Statutes and Ordinances. A supplementary ruling by Professor Hepple or by the Vice-Chancellor would seem to be the minimum necessary to clarify and rectify the present situation.
Finally, what emerges from Professor Hepple's report with appalling clarity is the inactivity of the Council in relation to the conduct of University business. I have had occasion in the recent past (Discussion of 12 May 1998, Reporter, 1997-98, p. 666) to wonder whether the Council has been sleep-walking towards disaster. Now we have revealed a level of ignorance in relation to official business on the part of Council which seems wanton. What is the Council doing if it is not maintaining oversight? It appears from Professor Hepple's ruling that this negligence has permitted it to be ruled that custom has allowed wide powers to be devolved - the implication is permanently devolved - to officers. Council should now make strenuous efforts to retrieve the position by calling for regular reports on the conduct of litigation and by discovering what other areas of administration it has allowed to slip from its hands.
Dr A. W. F. EDWARDS:
Madam Deputy Vice-Chancellor, last May I received a circular notice from Dr William G. Griffin headed 'Who may exercise legal powers on behalf of the University?' in which he invited me to sign an appeal against a ruling which had been made by a Deputy Vice-Chancellor under Statute K, 5. In declining to sign the appeal I replied to Dr Griffin that I would nevertheless be prepared to submit an affidavit giving my own view on the question in the title to his circular. At that time I had not met Dr Griffin, and I was, and still am, ignorant about his dispute with the University.
I should now like to place on record the letter by which I conveyed my view to him. It was couched in formal terms, giving my experience, etc., in case he wished to use it as evidence. I think it best if I quote it without any omissions.
8 June 1998
Dear Dr Griffin,
I do not agree with that part of the ruling under Statute K, 5 you have received which refers to the exercise of legal powers by the University. In my view the authority to exercise those powers lies with the Council except insofar as Press Syndicate and Local Examinations Syndicate matters are concerned, as I shall explain.
It may be noted that the Statutes do not envisage that rulings under Statute K, 5 are necessarily to be made by a legally-qualified person, since the Vice-Chancellor is not necessarily so qualified. I am not legally qualified, but I have long experience of the operation of the Statutes and Ordinances of the University, as follows.
I am Reader in Biometry in the University and a Doctor of Science, and have been a Fellow of Gonville and Caius College for twenty-seven years. I have twice been a member of the Council, serving as chairman of its Statute H committee and as a member of its Statute G, II committee and its Conduct of Business committee. I have three times been a member of the General Board, once elected and twice as a member appointed by the Council. I was for most of this time the chairman of the Board's General Purposes committee. I was Senior Proctor in 1978-79, and I served on the Statutes and Ordinances [Revision] Syndicate and the Wade Syndicate on Elections to the Council. For the last five years I have been the Vice-Chancellor's deputy as chairman of the Library Syndicate.
The relevant Ordinance is on p. 118 of Ordinances:
THE COUNCIL: LEGAL POWERS
The Council shall have authority to take legal advice, retain solicitors, and bring, defend, or conduct legal proceedings on behalf of the University as they may think necessary or desirable in the interests of the University.
The only other University bodies entitled to take legal proceedings on behalf of the University are the Press Syndicate, in relation to the affairs of the University Press (Regulation 3(b)), and the Local Examinations Syndicate, in connection with the affairs of the Syndicate (Regulation 13(g)). I note that the 'K, 5' ruling did not mention this.
The natural implication of these regulations is that no other body may take legal proceedings on behalf of the University. For example the Library Syndicate, of which I am the chairman, is not entitled to take legal proceedings on behalf of the University in relation to the affairs of the University Library. This interpretation of the regulations seems wholly unremarkable in the context of the normal procedures which govern the actions of corporate bodies, since the Council is 'the principal executive and policy-making body of the University' (Statute A, IV, 1 (a)).
I now show that the circumstances of the enactment of the Ordinance quoted above confirm this opinion. The Ordinance was approved by the Regent House in 1968 (Grace 6 of 30 October). Previously, as explained in the footnote to the Grace, the power to take legal proceedings had rested with the Regent House, and the Grace was an act of delegation from the superior body (the Regent House) to the inferior body (the Council). Similar delegation from the Regent House to the Press Syndicate in relation to the affairs of the University Press had recently been enacted (Grace 4 of 9 February 1966), and it was argued that it would be convenient for the Council to be delegated the power in respect of the rest of the University's affairs. Subsequently, by Grace 1 of 21 October 1981, the Local Examinations Syndicate was entrusted with the same power in relation to the affairs of that Syndicate. No other delegation has been authorized by the Regent House ('the governing body of the University'; Statute A, III, 1).
The argument that senior administrative officers have routinely acted without the necessary authority is evidence only that they were unaware of the statutory provisions, and has no bearing on the interpretation of those provisions. In this connection it may be noted that the present form of the Statute authorizing the use of the University's seals (Statute A, II, 7; and Ordinances, p. 164) arose because the then Registrary and the then Treasurer were found to have affixed the seal without authority.
I am sending a copy of this opinion to the Vice-Chancellor.
A. W. F. Edwards.
Professor D. H. MELLOR:
Madam Deputy Vice-Chancellor, those who have called for this Discussion of 'a topic of concern to the University' have failed to distinguish between topics of concern and facts of importance. There are many facts of importance to the University, ranging from the beauty of its buildings and the intelligence of its students to the independence of its Colleges and the integrity of its administration, which are not topics of concern to it, precisely because their existence and importance is so undeniable. Among these are the two key facts stated in the ruling that is the topic of this Discussion. These are that the principal officers of the University have the right to seek legal advice on its behalf and that the Council has the power to delegate to its officers the authority to do the things complained of in this case. That no organization as large and complex as the University could work unless its officers had such rights and could be given such authority is a fact so obvious and important to the University that no one in their right mind and with no axe to grind could possibly think it a proper topic for a Discussion like this.
Dr R. L. HUNTER:
Let me first, Madam Deputy Vice-Chancellor, declare at least two interests. The Assistant Registrary whose letter is central to the calling of the present Discussion is, I am delighted to say, a friend of mine; I am, moreover, married to an Administrative Officer in the General Board Division. Nevertheless, I know no more about this case than the average reader of the Cambridge University Reporter, if such a composite being can be imagined, and I am no lawyer, not even an amateur one; that Professor Hepple's ruling seems to me to make a great deal of sense is probably, therefore, of no great moment. What is, however, clear to me is that not the least reason many of us choose to stay to work at Cambridge is that, on balance, this is a remarkably democratic institution where it is possible to feel some ownership in the decisions which are made; I for one do not regard that feeling as wholly illusory. Such a tradition has its price in time and energy, and doubtless we are all occasionally tempted by other, much less democratic but also much less sapping, regimes. My point is not that the behaviour of the University's principal officers of which Dr Griffin complains would be more at home in an authoritarian system different from our own, but quite the opposite, in fact. If these officers and those working under them are prevented from the effective carrying out of the professional duties properly entrusted to them, the democratic traditions of which I have spoken would simply disappear in a system rendered unworkable. The notion that every matter involving the exercise of legal powers on behalf of the University requires referral to the full Council, far from being an important reminder of where power lies, is, given our shared commitment to teaching, examining, research, Faculty and College administration, and so forth, a step down the road towards a future situation in which no academic, except those with very particular axes to grind and/or nothing else to do, will ever agree to serve on any of the central bodies; it is in that politicized direction which the signatories, perhaps inadvertently, are heading, and it is in that direction where lies the authoritarianism and lack of accountability against which we are constantly warned.
A real topic of concern to the University, Madam Deputy Vice-Chancellor, is the extent of our dependence upon a relatively small group of administrators who work - as I know only too well - under very great pressure and in a world where expressions of thanks are not easy to come by. Should what sometimes seems like endless harrying ever make some of these colleagues decide that it is simply pointless to carry on, or lead, by one route or another, to the erosion of the traditions of which I have spoken, then it will be more than a few valued members of staff which the University will lose, and knowledge of where the blame lies will be cold comfort indeed.
Professor M. SCHOFIELD:
Madam Deputy Vice-Chancellor, custom has received some stick this afternoon, but for my part I was glad to see in print such a robust reassertion of the role of custom, in the present instance of customary rights and duties, in the running of the University. Love may be what makes the world go round, but it is custom and convention that are the bedrock of human social institutions. I conceive that custom is presupposed by law: without mutually habitual ways of doing things it must be doubtful whether we could even understand what a law is supposed to be. And once a law 'takes' within society it is liable to become customary, or as we sometimes say second nature. In the frenetic late twentieth century, law and litigation are gaining the ascendancy, and custom is in retreat: not a healthy or happy state of affairs.
The pressures of national legislation, the contemporary audit culture, and the clamorous voices of radical Regent House democrats are combining to force the University to wrap itself in more and more red tape, with self-induced paralysis too often the result. The latest news is once again from the promotions front. The General Board has proposed some revisions to its bureaucratic scheme for the once largely customary promotions procedure. The scheme has been challenged, as we shall no doubt be reading in the Reporter shortly. And the challenger, who like myself happens to have had the good fortune to achieve recent promotion, promises a course of action which will prevent consideration of anyone else's promotion (one can hardly suppose to his surprise) for the foreseeable future, i.e. probably until next academic year: all this at a moment when a considerable majority are signalling that they want the University to move ahead with improvements to the way we reward and retain academic staff.
Madam Deputy Vice-Chancellor, there is nothing much we can do about red tape externally imposed. But, if the Regent House is to survive, one cannot help thinking that it will have to find a way of avoiding the tangles in which it is becoming enmeshed by radical legalistic democracy. At present a mere handful of signatures are required to force a ballot on a Grace, whether by amendment or otherwise. Given the size of the Regent House and of the University, such a provision is reasonable only on the assumption that customary restraints will be exercised. But, as this afternoon's Discussion may suggest, respect for custom is weakening among us. My sad conclusion is that the Regent House ought now to reconsider its rules on the minimum number of signatures needed to call for a ballot on a Grace.
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Cambridge University Reporter, 25 November 1998
Copyright © 1998 The Chancellor, Masters and Scholars of the University of Cambridge.