Reporter 19/1/00: Report of the Council on the office of Commissary

1. The University office of Commissary is, with the offices of Chancellor, High Steward, and Deputy High Steward, one of the ancient 'high' offices of the University. It is by origin a judicial office. The remaining judicial duty of the office, that of certifying in writing that the charge against a person within the jurisdiction of the Septemviri as a court of first instance was 'fit to be entertained by the court' (old Statute B, VI, 2(iii)) was ended by a change of Statute approved by Grace 1 of 19 February 1975 and approved by Order in Council dated 25 June 1975, which introduced the prosecuting role of the new office of University Advocate.

2. The University, unlike the Colleges, has no Visitor, for it is a civil corporation. The Council believes that there is now a case for creating an internal but independent jurisdiction, within the University, which would have powers somewhat analogous to those of a Visitor, and to which a member of the University who was aggrieved by the decision of a University authority could have recourse, when other internal avenues were exhausted.

3. At present, a member of the University who is dissatisfied after University procedures are exhausted has no recourse other than to judicial review or other legal proceedings. A new jurisdiction on the lines proposed should be cheaper and quicker than such external procedures. However, these external procedures would remain available, for the new juris-diction would not be exclusive in the sense that the jurisdiction of an actual Visitor is (for many practical purposes).

4. There are therefore advantages in creating a new jurisdiction, and in this Report the Council set out an arrangement whereby the Commissary could be given a quasi-visitatorial role. The introduction of such a jurisdiction would be an important step and the Council believe that it would be appropriate for the proposal first to be considered in principle by the Regent House, before any formal legislative proposals were put forward for approval.

5. The Council have not reached firm conclusions on the following questions, and put them forward for consideration in the Discussion of this Report on 1 February 2000 (see the Vice-Chancellor's Notice on p. 338):

(a) In respect of decisions of the University Courts, should the jurisdiction extend to appeals on the merits of the case, or be limited to appeals on grounds of procedural irregularity or similar grounds? There is already provision for appeal on the merits from a University Court of first instance to an appeal court (normally the Septemviri) and this suggests that further internal appeal on the merits may not be necessary.

(b) Should the jurisdiction extend to decisions of Appointments Committees, Boards of Electors to Professorships, and other bodies making appointments to University offices and other posts? As proposed, only members of the University would be able to invoke the jurisdiction, and non-members of the University who were candidates for posts would be treated differently. This does not seem to be desirable. The jurisdiction would not displace the rights of University employees under employment law. This suggests that these matters should probably be excluded from the proposed jurisdiction.

6. An illustrative draft Statute following the suggestions set out in paragraph 5 is set out in the annex to this Report.

7. The Council expect soon to be in a position to report to the University with proposals for the review of the results of undergraduate and similar examinations. These proposals are expected to include provision for review by the Commissary on the lines proposed in this Report.

8. Under the proposals the Commissary would decide, within the statutory framework, his or her own procedure in a particular case. He or she would be able to act through a deputy, and might choose to appoint a standing panel of such deputies. Provision would be made by Ordinance for detailed procedural arrangements and for the Commissary to make further Rules of Procedure if desirable.

9. The Council are also undertaking reviews of the provisions of the present Statutes K, 2 (application by the Council to the Chancellor for a declaration of the meaning of a Statute) and K, 5 (representations and enquiry into contravention of the Statutes and Ordinances). The conclusions of these reviews will be taken into account in framing any legislation formally proposed in due course in relation to the office of Commissary.

ALEC N. BROERS, Vice-Chancellor	GORDON JOHNSON	ONORA O'NEILL
TONY BADGER	DONALD LAMING	JEREMY SANDERS
G. R. EVANS	MELISSA LANE	M. SARDY
A. L. R. FINDLAY	JOHN A. LEAKE	M. SCHOFIELD
DAVID HARRISON	A. M. LONSDALE	DAVID M. THOMPSON
BRIAN F. G. JOHNSON	M. D. MACLEOD	R. E. THORNTON

ANNEX: DRAFT STATUTE

1. The Commissary (or a duly appointed deputy) shall have full power to determine all questions referred to his or her decision by virtue of the express provisions of the Statutes and Ordinances. Further to this, the Commissary (or a duly appointed deputy) shall have the right to review, amend, or quash the decision of any University authority, on the grounds that the decision, or some aspect of the decision, was unreasonable by virtue of being ultra vires, procedurally unsatisfactory, incorrect in fact, or on similar grounds, and to make such order (including an order to amend, quash, or refer back the decision) about the circumstances as seemed to him or her to be justified, save that this right of review shall not extend to:

2. The University shall defray the costs of any legal advice obtained by the Commissary for the performance of his or her duties under this Statute.

3. In any particular case or cases the Commissary may appoint a person to act as his or her Deputy, and may delegate to such Deputy his or her powers in respect of the case or cases concerned. The Commissary or a deputy so appointed shall have the right to strike out a vexatious or frivolous proceeding.

4. Upon every proceeding (not being a proceeding struck out as vexatious or frivolous) the Commissary or a duly appointed deputy shall direct that the matter shall be dealt with by oral or written representations, or both. Such representations shall be made (a) on behalf of the University by a person or persons appointed by the Council and (b) by any other party or parties to such proceedings in person or by a representative. Exceptionally the Commissary (or a duly appointed deputy) may direct that all or any part of the expenses incurred by any party, including the University, by reason of such argument shall be paid by any other party, including the University, and shall himself or herself assess the amount of such expenses or direct how the same should be assessed.

5. The Commissary shall have power to make rules of procedure. In any particular proceeding, the decision of the Commissary (or a duly appointed deputy) on any procedural matter shall be final, and the provisions of Statute K, 5 shall not apply to it.

6. Having regard to the provisions of the Education Reform Act 1988 nothing in this Statute shall enable or require the Commissary to hear any appeal or determine any dispute regulated by the provisions of the said Act relating to a member of the academic staff of the University as defined by Statute U, which, being a matter regulated by the said Act, concerns the member's appointment or employment, or the termination of that appointment or employment. The Commissary (or a duly appointed deputy) shall have no power to disallow or annul any Ordinance made under or having effect for the purposes of Statute U in relation to matters regulated by the said Act.

(i)	a University Court established by or under Statute B or U;
(ii)	any decisions of Examiners, Degree Committees or the Board of Graduate Studies or comparable authorities in relation to the result of a University examination;
(iii)	any decision by a University authority concerning the appointment of an individual or individuals to employment in the University, or concerning promotion in such employment.

(a)	any matter subject to further review or appeal by any University authority;
(b)	any proceedings on the merits or substance of a decision made by:

REPORT

Report of the Council on the office of Commissary

ANNEX: DRAFT STATUTE