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Second Report of the Council on the office of Commissary

The COUNCIL beg leave to report to the University as follows:

Purpose

1. The purpose of this Report is to propose to the University the establishment by Statute of a quasi-visitatorial jurisdiction in the University to be exercised by the Commissary.

The first Report

2. In the Lent Term 2000 the Council published a consultative Report on this matter (The First Report) setting out a draft Statute (Reporter, 1999-2000, p. 348) . This Report was discussed on 1 February 2000 (ibid., 1999-2000, pp. 448-50) . The Council made an interim reply about the matters raised then which were not directly related to the proposal (ibid., 1999-2000, p. 442) .

3. For convenience the main text of the First Report is reproduced in the Appendix to this Report (p. 698).

Consideration of the First Report

4. The Council have concluded that it would be in the interest of the University to proceed. They believe that the answers to the questions set out in paragraph 5 of the First Report are:

(a) Review or Appeal from the University Courts? The Council believe that the jurisdiction should be one of review analogous to judicial review, that is review on grounds of procedural irregularity or similar grounds, rather than review of the substantive merits of a case. This is because the system of the University Courts already provides for appeal on the merits.
(b) Should decisions of Appointments Committees, Boards of Electors, etc., be reviewable? The jurisdiction proposed in the draft Statute could be invoked only by a member of the University, and because of this the First Report stated the view that it would be inappropriate for candidates for appointment, for example, to be treated differently according to whether or not they were members of the University. The First Report therefore suggested that these matters should be excluded from the jurisdiction, and the Council confirm this view.

5. A procedure for the review of the results of undergraduate examinations has now been approved by the Regent House (Grace 5 of 25 October 2000).

The current proposal

6. The Council believe that it should be formally provided by Statute that the Commissary should have judicial or quasi-judicial experience or that he or she should be legally qualified, and that the Commissary should not hold any other office in the University or a College.

7. The Council do not at present believe that Ordinances are necessary in relation to the proposed Statute, because the independence of the review process would be best assured if the rules of the procedure are made by the Commissary himself or herself. However, the Council will consider any suggestions made in the Discussion of this Report as to whether there are matters which should be regulated by Ordinance and not by the Commissary. The Council propose that the Statute itself should indicate that the rules of procedure made by the Commissary should indicate time limits within which an application must be made to the Commissary.

8. The Commissary, Lord Oliver of Aylmerton, has been consulted about these proposals and raises no objection to them.

9. The Council have considered whether the Commissary should consider complaints of unreasonable delay in University procedures affecting students. The Council have under review, through their Student Complaints Working Party, measures to improve student complaints procedures and will report further. The Commissary agrees with this approach.

Recommendation

10. The Council accordingly recommend:

I. That, subject to the approval of Her Majesty in Council, the Statutes of the University be amended as follows:

Statute D

Chapter V

THE HIGH STEWARD, THE DEPUTY HIGH STEWARD, THE COMMISSARY

Section 3.

By adding two additional sentences:

The Commissary shall have judicial or quasi-judicial experience or be legally qualified, and shall not hold any other office in the University or a College. In the event of a vacancy in the office of Commissary the Chancellor (or the High Steward if the office of Chancellor is vacant) shall appoint an Acting Commissary who shall have the full powers of the Commissary to act under the provisions of this Chapter until a newly appointed Commissary takes office.

Section 5.

By amending the first sentence to read:

The High Steward and the Deputy High Steward shall perform such duties as have heretofore been customary and any duties prescribed by Statute or Ordinance.

By adding new sections 6-15 as follows:

6. The Commissary shall perform such duties as have heretofore been customary and any duties prescribed by Statute or Ordinance. In the discharge of his or her duties under this Chapter the Commissary shall not be under the direction of the Council or of any other authority in the University.

7. The Commissary shall have full power to determine all questions referred to his or her decision by a member of the University under the provisions of this Chapter. The Commissary shall have the power to review, amend, or quash the decision of any University authority on the ground that the decision, or some aspect of the decision, was unreasonable by virtue of being ultra vires, procedurally unsatisfactory, or incorrect in fact, or on similar grounds, and to make such order (including an order to amend, quash, or refer back the decision) as seems to him or her to be justified. The Commissary's powers under the provisions of this Chapter shall not extend to:

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

(i)

 a University Court established by or under Statute B or U;

(ii)

 a Board of Examiners, a Degree Committee, the Board of Graduate Studies, a Review Committee or similar authority, in relation to the result of a University examination;
(c) 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;
(d) any matter under the responsibility of the Press Syndicate or the Local Examinations Syndicate.

8. In any particular case or cases the Commissary may appoint a person to act as his or her deputy, and may delegate to such a deputy his or her powers under the provisions of this Chapter in respect of the case or cases concerned.

9. The Commissary or a deputy so appointed shall have the power to strike out a case which in his or her opinion is vexatious, frivolous, or out of time.

10. In relation to any case (not being a case struck out as vexatious, frivolous, or out of time) the Commissary 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 the proceedings either in person or through a representative.

11. The Commissary shall make general rules of procedure which shall bind the parties in any particular case. The rules of procedure shall make provision for a time limit or time limits within which a matter shall be raised with the Commissary. In any particular case the decision of the Commissary (or a duly appointed deputy) on any procedural matters shall be final, and the provisions of Statute K, 5 shall not apply to it.

12. The Council shall consult the Commissary before proposing any Ordinance concerning matters regulated by sections 6-14 of this Chapter. The Commissary shall have the right to publish a statement for the guidance of the University about any such proposed Ordinance.

13. Nothing in this Chapter shall enable or require the Commissary to hear any appeal or determine any dispute regulated under the provisions of the Education Reform Act 1988 relating to a member of the academic staff of the University as defined by Statute U, which, being a matter regulated under the said Act, concerns the member's appointment or employment, or the termination of that appointment or employment. The Commissary 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 under the said Act.

14. The University shall defray the cost of any legal advice obtained by the Commissary for the performance of his or her duties under this Chapter.

15. The University shall determine by Grace the date on which the provisions of sections 6-14 of this Chapter shall come into force.

II. That, if Recommendation I is approved, the amendments of Statute proposed therein be submitted under the Common Seal of the University to Her Majesty in Council for approval.

14 May 2001    ALEC N. BROERS, Vice-Chancellor    GORDON JOHNSON          M. D. MACLEOD
  A. J. BADGER DONALD LAMING J. M. R. MATHESON
  C. R. J. BAILEY IAN LESLIE G. A. REID
  JOHN BOYD A. M. LONSDALE JEREMY SANDERS
  PETER GODDARD C. LUDLOW LIBA TAUB
  D. A. GOOD D. W. MACDONALD R. E. THORNTON

APPENDIX

Text of the Council's First Report (Reporter, 1999-2000, p. 348)

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 [not reprinted].

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 [not reprinted].

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.

13 December 1999


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Cambridge University Reporter, 16 May 2001
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