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Report of Discussion

Tuesday, 11 May 1999. A discussion was held in the Senate-House of the following Reports:

The Report, dated 26 April 1999, of the Council on the Cycle for the nomination of Proctors (p. 543).

Dr G. R. EVANS:

Madam Deputy Vice-Chancellor, the 'duty of nominating a Proctor'. There is a good deal in the Statutes and Ordinances about how to become a Proctor, but not a lot about what a Proctor is for. That, if you look, is true of much in our big 'Oxford blue' volume. A systematic revision of the specifications for all sorts of things could form a useful part of our slow movement towards revision of Statute K, 5. For it is at present very difficult to show that there has been a breach of the Statutes and Ordinances, when most of what they say concerns only the establishment of 'authorities' whose functions remain largely undefined.

I hope we can lend an ear to what Oxford has to tell us about the roles a Proctor can fulfil. Oxford has been taking seriously the need to make provision for junior members to have someone to go to with complaints, who is both inside the 'system' and to some degree independent of it and therefore able to knock a few senior heads together on their behalf. Proctors are University officers 'owned' by the Colleges in the sense that the Colleges nominate them. They bridge the jurisdictional circles which I mentioned in my last speech (Reporter, p. 580). An enlarged remit for the Proctors is no substitute for a proper complaints procedure but it might usefully form part of its provisions.

We have at present three or four, perhaps five, pieces of relevant work in hand that I know of. Perhaps there are more, for even on the Council one may discover these things only because of a chance remark or because one happens to be on the relevant committee.

(And it is, to speak personally for a moment, my very serious complaint that I have suffered reprisal by being kept off most of the central committees after two and a half years on the Council, when newly-elected members of the Council have been liberally seeded like star players in all the most important places - on their way, no doubt, to becoming the 'big leading players' the Vice-Chancellor likes to see 'in, so you make sure your standards are right in where you are and where you want to go' (Reporter, p. 520). And of course I am never allowed to chair anything. I should like the Regent House to be aware both of my continuing exclusion, and of the depth of my sense of its unfairness to a hard-working member of the Council.)

The Student Matters Committee is working on a Student Charter. That is coming along quite well, but it is revealing the existence of considerable gaps in our provisions for students. Another committee is exploring the provision of an avenue of recourse in disputes of the sort advocated by the Committee on Standards in Public Life. That may save some of them reaching the courts. This morning I got a whiff of two more reviews of procedure which are afoot. And there is a remarkably secretive working party, chaired by the Principal of Newnham, which is clutching very hard to its chest some provisions for appeal of undergraduate students against misconduct of their examinations. At least, I think that is what they are doing, for the Council has not been kept informed of the development of the brief, nor has anyone outside the group been allowed to see this text in draft at a stage where there could be input about its purpose. The suggestion that there should be a sensible method of keeping these committees in touch with one another to prevent overlap and to ensure that a single philosophy informs their documents is met by a throwing up of hands in horror. One would hope scholars might have wider horizons and more courage in exposing the 'working of their sums' at an early stage.

Let me run you at a gallop through our present muddle, so as to encourage hard thought about the relationship of the 'policing' and other functions of the Proctors, and where they ought to fit into our scheme of things. I beg your patience if I spend a little time outlining the provisions into which we ought to be fitting a fuller Proctorial role - when we have tidied them up.

We have a series of disciplinary rules which reflect, among others, the concerns generated by the student unrest of the 1960s, by the Education (No. 2) Act 1986 and the Education Reform Act 1988. These have been piled upon one another without systematic reconciliation.

1. We need to clarify the basis of the jurisdiction which gives the University authority to subject one of its members or officers or employees to disciplinary procedures. That jurisdiction rests upon (i) membership of the University or (ii) employment status, including tenure of a University office.

Sanctions under (i) include

(a) deprivation or suspension of membership; deprivation or suspension of degree; deprivation or suspension of MA status; a fine; an order to pay compensation; deprivation or suspension of the right to use University premises or facilities (senior members);
(b) deprivation of membership, suspension of membership, rustication, deprivation of privileges or facilities (by Ordinance, Statutes and Ordinances, p. 195(5)), apparently intended primarily for junior members (p. 192(10)), but not expressly reserved to them.

Sanctions under (ii) include dismissal (Statute U), academic staff only.

There appear to be no disciplinary provisions carrying the authority of the Statutes and Ordinances which apply to employees who are not members of the University, although Statute U is an employment not a membership provision.

2. We need to clarify our thinking on the distinction between offences threatening the maintenance of good order in the University and offences connected with the discharge of the duties of employees and officers.

Obedience is a condition of membership of the University and is primarily a duty to obey its domestic laws. But this has been extended into a dangerously ill-defined duty to obey competent authorities. 'The rendering of ... obedience to all persons in authority in the University' (Statute B, VI, 1). What authority? We are in process of making changes which will allow Heads of Departments and Chairmen of Faculty Boards powers to require obedience from academic officers (who are their equals as members of the Regent House) under threat of disciplinary proceedings. For obedience is also an employment requirement, deriving not from membership but from the master-servant character of the employment relationship.

Misconduct by any member is potentially a disciplinary offence (p. 192). Grave misconduct (B, VI, 28) appears to embrace both offences against good order (membership issues) and offences against the contract of employment or terms of appointment (employment issues). But misconduct is defined only under Statute U and arguably a person falling under Statute B would not be subject to that definition. Statute U, I, 5 (following the Model Statute under the Education Reform Act 1988) concentrates upon the performance of the duties of office and employment as a member of the academic staff. The question to be addressed in weighing a charge under Statute U is whether an act has been committed which is 'incompatible with the duties of the office or employment' or which makes the holder 'unfit for the performance' of those duties.

Where do offences under the harassment code fall in this conspectus? Recent cases show 'big leading players' playing a merry game with the right of the accused to a fair trial, condemning on untested and unsigned 'witness statements' or sending for the accused without notice of the accusation. We do not train our in-house departmental judges in fairness before letting them loose.

3. We need to ensure equality before our domestic law. Different statutes govern discipline of University officers and other academic staff. We treat assistant staff with feudal arrogance, as though they belonged to another order of things. Are there offences which can, by definition, be committed only by junior members, and what is to be done about ensuring equal treatment in the case of offences which can be committed by senior or junior members alike, or where a senior member commits an offence against a junior?

4. What of our courts? The University Tribunal tries senior members. The Court of Discipline tries junior members. Junior members may sit, at the request of the accused. The Septemviri acts as a court of appeal from either inferior court. No junior member sits.

The person charged is entitled to object for good cause to the choice of his judges, but the Chairman has discretion to overrule him and there is no provision for a situation where the objection is to the Chairman himself (p. 196 (6)).

The University Advocate is prosecutor on behalf of the University. The University Advocate is also advocate ('Counsel') for the University because he presents the case.

No officer is appointed to look after the interests of the member or employee under discipline, although he may choose to be represented (p. 197 (3)). The person charged does not have the right to insist upon a public hearing (p. 197 (8)). The Chairman may at his discretion hear the case in the absence of the accused (p. 197(9); p. 199(3)).

Our prosecution service runs thus. A charge may be made under Statute B, VI by a member or employee (Court of Discipline) or by a member of the Regent House (University Tribunal). The University Advocate has discretion to determine whether the person named shall be charged.

Persons subject to Statute U can be charged at the instigation of their Head of Department or the Chairman of the relevant Board. This is on the principle that such a charge must be 'concerned with the member's duties' (U, III, 1).

But further on, under Statute U, III, 6-7 a complaint can apparently be made by anyone, without the restriction that he or she must be a member of the Regent House or even a member of the University or an employee, but only against an officer subject to Statute U.

It is not clear whether a person to whom Statute U applies can be charged with 'membership' offences, if those do not go to conduct which affects his discharge of the duties of his office.

Officers charged under Statute U are normally entitled to be issued with a series of warnings, of which a record shall be kept. Persons charged under Statute B do not have that right.

There is provision for the officer to be suspended or excluded from the University premises, before trial, whereas those subject to Statute B can be excluded only after the hearing.

The discretion to decide whether to proceed as far as a disciplinary hearing under Statute U rests with the Vice-Chancellor. The Vice-Chancellor may dismiss the complaint without investigation and there is no protection except judicial review against his doing so arbitrarily. If he decides to do so after a preliminary investigation (for which no procedural rules are laid down), he may direct the University Advocate to prefer a charge or charges (Statute U, VI, 10).

5. We have a code on Misconduct in Research. You will have to ring round the Old Schools for some time to find anyone who knows about it and can send you a hard copy, though you may be able to find it on the Web.

All members of the University 'and individuals permitted to work in University institutions' are required to report any incident of misconduct, but it is assumed that this means only members of staff, since reference is subsequently to 'the member of staff who made the allegation'.

What is the duty of a student? What protection is there for a student who makes such an allegation? A PhD student may well have reason for concern about work on a project in which he is involved and his professional future may be at stake.

How are we to balance the responsibility to report (which is presumably contractual for employees) against the danger that those who do so open themselves to disciplinary action and potentially to dismissal if the Head of the institution does not like what they say?

The Head of the institution has conflicting duties under this code. He is to protect the confidentiality of the individual brave enough to bring a concern to him. He is to 'decide whether or not the matter requires further investigation'. He is to bring a discipline charge if he decides that the allegation is unproven and has been made frivolously or maliciously.

Confidentiality is promised. But administrative officers are to be informed of any allegation made and as soon as the Head of the institution has decided to take the matter forward, names will be named.

The accused is not told of the accusation until a fairly advanced stage, apparently after a great many senior persons have been 'informed', his research materials and records sequestered, and inquiries instituted.

Under this code, administrative officers may suspend before any investigation and before the accused has had any opportunity to answer the charges. The circumstances in which this would be 'appropriate' are not defined, and it is not apparent that they would be confined to a situation where there was a risk of danger.

The investigation committee is set up by the Head of the institution, who is already prosecutor and investigator.

The accused will not necessarily have access to the sequestered materials so as to prepare his defence and has no right to disclosure.

There is no provision for the accused to bring a counter-accusation, in a situation where there may be dispute about whose misconduct it was.

6. Lastly, senior persons have to be made accountable. We must bring even the Vice-Chancellor into the structure, so that he can be called to account like anyone else. We cannot have an officer who is above the law in all matters except as sketchily provided for under Statute U. But I think the powers of departmental heads are what really need watching.

This is a big agenda to attach to a little Report on the Cycle for the nomination of Proctors. But I hope we shall revisit their functions and make them potent as defenders of our junior members' interests. And I hope that, reviewing all these provisions and the new ones in hand in a coordinated way, we shall take the opportunity to prevent the 'big leading players' getting too big for the expensive trainers their secretly inflated salaries enable them to afford.

The Second Report, dated 26 April 1999, of the Council on the regulations for the Local Examinations Syndicate (p. 544).

Professor T. D. LAMB (read by Mr H. J. Easterling):

Madam Deputy Vice-Chancellor, the Council's proposed course of action meets the aims of the amendment to Grace 3 of 18 November 1998. We are very grateful to the Council for arranging to make the accounts in question available to members of the Regent House through the Registrary's office, and for the further undertaking to give notice of any donations.


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Cambridge University Reporter, 19 May 1999
Copyright © 1999 The Chancellor, Masters and Scholars of the University of Cambridge.