Reporter 22/5/02: Report of Discussion

Report of Discussion

The following remarks were made at a Discussion on Tuesday, 30 April 2002. Under the provisions of Regulation 6 for Discussions (Statutes and Ordinances, p. 112) the Registrary has omitted 383 words from the remarks made by Dr Evans; these omissions are indicated by square brackets.

The Report of the Council, dated 25 March 2002, on the Principal Administrative Officers (p. 643).

Professor A. W. F. EDWARDS:

Madam Deputy Vice-Chancellor, the power of making, altering, or repealing Statutes is a prerogative of the Regent House. In this connection the role of the Council is to prepare the necessary legislation for the consideration of the Regent House and to ensure that its passage through the Regent House is conducted fairly and properly.

Under the University's constitution, therefore, the Council is like the chairman of an ordinary governing body: only he can put a motion to the meeting, but independently he is also responsible for its fair and proper consideration. The fact that our governing body is called the Regent House, that its meetings are called Congregations and Discussions, that its chairman is called Vice-Chancellor, and its secretary Registrary, that its motions are called Graces, and that its members vote on them by postal ballot, must not be allowed to obscure its legal status and the normality of its functions and responsibilities.

The University is extremely privileged to possess the power to alter its own Statutes, conferred on it by the Universities of Oxford and Cambridge Act 1923, in confirmation of earlier Acts, and subject only to approval by Her Majesty in Council. The power is, however, circumscribed by three considerations. First, the changes must be such that they are not in themselves contrary to law or to any general principles of legislation; secondly, existing interests must be preserved in accordance with the provisions of section 34 of the Universities of Oxford and Cambridge Act 1877, as confirmed by section 10 of the 1923 Act; and thirdly the Statutes, being a class of delegated legislation, must remain 'in general accordance with the recommendations contained in the Report of the Royal Commission' of 1922 as required by section 6(1) of the 1923 Act. An infringement of any of these principles invites the disallowance of the change under the powers conferred on the Privy Council by that Act.

The University has not hitherto given the Privy Council much cause for concern in changing its Statutes, but we can imagine some kinds of change that might create problems. Three in particular spring to mind.

First, any change which presumes the passage of future legislation; secondly, any change which affects the powers and duties of University officers without their consent; and thirdly, any change which substantially diminishes the scope of a Statute by withdrawing from its jurisdiction, and therefore from the jurisdiction of the Privy Council, matters hitherto considered to be properly the subject of control by Statute.

The first is clear and absolute, but the second and third raise questions of degree. However, reductio ad absurdum arguments show that there are certainly some changes which the Privy Council might be inclined to disallow after a petition, for example the abolition of the University office of Chancellor during some-one's tenure, or the replacement of all Statutes by Ordinances.

The Report before us ventures onto dangerous ground in all these three categories. It presumes that the Cambridge Vice-Chancellorship is an office to whose holder it is appropriate for the Registrary to report, but this, although floated in a recent Notice on University Governance, is not at present the case. The preamble to the Report refers to the 'formal clarification of present understandings', but these are in reality misunderstandings. The Vice-Chancellor is not yet 'recognized in Statutes as ... responsible for the overall direction and management of the University', in the words of the Notice, and a Statute-change would be required for any such recognition. Until it takes place, the Registrary's Statute cannot therefore require him to report to the Vice-Chancellor in the manner proposed. Furthermore, the first sentence of the Registrary's Statute (conveniently omitted in the present Report) states unambiguously 'The Registrary is placed under the direction of the Council'.

The Report is also unsatisfactory from the second viewpoint. It contains two annexes relating to the statutory offices of Secretary General and Treasurer and says that these have been 'discussed with the current holders of the offices and agreed by the Council' (in fact they would need to be approved by the Regent House as Ordinances to be effective). It does not say whether they have been agreed by the current holders, and even less does it say whether the current holders have agreed to the proposed changes of Statute for their two offices.

No governing body should contemplate changing the statutory functions of two of its most senior officers without receiving either specific statements from the officers concerned agreeing to their new Statutes, or an explanation from the chair, in this case the Council, of why the governing body should proceed without such agreement, accompanied by an analysis of what the consequences might be.

One consequence might be a breach of the 1923 Act already mentioned, which requires that the existing interests of any person who has been appointed to a University emolument shall not be prejudiced by a change of Statute.

We are all used to changes in Ordinances which affect us, but Statutes are a different matter. It would be a grave dereliction of responsibility for the Regent House to proceed without a full understanding of the possible consequences. It would in any case not be appropriate for the Statutes of the University to be changed to accommodate particular circumstances of a transitory nature. Hard cases make bad law.

And the Report is unsatisfactory in the third way. It proposes to remove from the Statutes the designation of who is to be the Secretary of the General Board, relegating the function by ordinance to an officer unknown to the Statutes, and it proposes similarly to remove from the Statutes the designation of who is to be the Secretary of the Finance Committee, as well as removing who is to be the Council's principal financial officer, who is to prepare for the consideration of the Council and its Finance Committee such statements, accounts, and estimates as they are required to make or to prepare, and who is to take measures for the recovery of monies due to the University. These are important functions and cannot simply be removed from the Statutes and assigned to non-statutory officers.

The Director of Finance and the Academic Secretary need to be statutory officers, with a statutory bar to them being members of the Council, the Finance Committee, and the General Board. In their Second Report on the Unified Administrative Service the Council said that their forthcoming Report on the Principal Administrative Officers, now before us, 'may include a new Statute for the office of Director'. Why does it not?

I now turn to the question of how the Regent House is to exercise its heavy responsibility in this matter. It is hampered by an extraordinary Ordinance introduced on 1 October 1963. For centuries before that date the government of the University by the Regent House and its forerunners had been conducted according to the normal meetings convention, with no vote taking place on a Grace only if no member called for one. But on that day an obstacle to democracy was inserted in the form of a requirement that there should be no vote unless ten members signed a request for one.

This disastrous impediment to the proper functioning of the governing body, this self-inflicted wound to which I first drew attention more than twenty years ago, has been a cause of endless trouble, yet it was not introduced because of any malfunctioning of the existing system but only because of some shallow political thinking by three senior members.

As a matter of principle, to place any hindrance in the way of voting is anathema to a democracy. As a matter of practice, the requirement for ten signatures before a vote could take place led rapidly and inevitably to the perception that signatories were mere trouble-makers, vexatious irritants whose intervention only delayed the smooth passage of University business already decided by wiser heads. This, with equal inevitability, rendered it difficult, even in the most justifiable cases, to collect ten signatures, as timid academics shied away from associating themselves with such unsound colleagues. Only those who have never called a non-placet could ever countenance increasing the number of signatures required.

In truth, there are only two acceptable numbers of people required to ensure a vote in a democratic forum - nought and one. Nought is the practice that every motion is voted on, which is the parliamentary convention. One is the practice at normal meetings, when a motion may only pass on the nod if no member requests a vote, which used to be the Cambridge procedure.

This deplorable interference with the right to vote remained unchanged until 1982 when the Regent House approved an additional regulation (Graces and Congregations, Regulation 7) giving the Council power themselves to determine that a vote shall be taken.

I now formally request the Council to agree to a vote on any Grace they submit to the Regent House for approving the recommendations of this Report, whether or not amended by them as a result of the Discussion.

I further request the Council to undertake always to agree to a vote whenever they propose a change of Statute. Statute changes are the prerogative of the Regent House, which ought to be allowed to consider and vote on them like any normal governing body. If the Council are not prepared to give this undertaking I will be minded to collect fifty signatures so as to promote a Statute to have the same effect, whether the Council like it or not.

In addition to the points that I have already mentioned might cause concern to the Privy Council, I do not think that Her Majesty in Council would be amused to learn that the Council of the Regent House of the University of Cambridge, being in possession of the necessary power, had refused a formal request by a member of the Regent House for a vote to be held on a Statute change.

Dr G. R. EVANS:

Madam Deputy Vice-Chancellor, keep our governance debates out of the newspapers, Professor Schofield? Tell the Press Office Marketing Division that and the Editors of CAM.

On 19 March 2001 we had a Report on the Unified Administrative Service. It included the promise that 'the Council will report in detail on these arrangements, including the further definition of the Secretary General's and the Treasurer's portfolios'. The time for the opening of portfolios has come.

The Council has a curious sense of the proper order of things. First, in 2001, it puts before us Graces on the Unified Administrative Service, creating the post of, among other things, the Academic Secretary. There is no proper description of the duties, and a good deal of unclarity begins to emerge about whether this is the Secretary Generalship under another name.

Next the Council publishes the plans of the Governance Committee to create a new kind of Vice-Chancellor who will be a Chief Executive (and, it now appears, line-manager to the Senior Administrative officers, who used to be answerable only to the Council). This last project is, ostensibly, only for consultation, such preliminary consultation that it was not thought necessary to put any of it to the University for discussion at this stage.

Now before us today for final decision, and without warning, we have Graces which will require massive alteration of fundamental principle in our Statutes and Ordinances and which will pre-empt the Governance changes so that they become a fait accompli in certain key respects, whatever the University decides to do about the plans as a whole.

I, for one, will be suggesting to the Privy Council that it is inappropriate for this change of Statute to be approved while it is wholly uncertain where we are going with our governance changes (if there are to be any). It has been remarked before in this forum that it makes no sense to send such Statutory changes to the Privy Council piecemeal, and the Clerk to the Privy Council could be entitled to object to his time being frittered away in that manner.

Now let us look at the substance of what we are invited to approve. The Registrary is, under the new Statute D, VIII, I(a), to 'report to the Vice-Chancellor' as head of the University's administrative staff. So the Vice-Chancellor not the Council will control our administration, in Council institutions and General Board institutions alike. The Secretary-General and the Treasurer are going to report to the Vice-Chancellor not the Council, too.

To Statute C, 5 we are to add 'the Secretary of the General Board shall be appointed by Ordinance'. But the Academic Secretary (whom the Statutes know not of) is to be the Secretary of the General Board. He has just been appointed (with, I believe, still over 20 years to go before retirement) but not by Ordinance. He has been appointed by no mechanism visible to the University at all (see my speech published on 27 March and the Times Higher Education Supplement of April 12).

This Report, passed for publication by the Council on 25 March, a few weeks after they had 'agreed' to this unique special arrangement, says, very properly, 'The Secretary of the General Board shall be appointed by Ordinance.' So why did they not ensure that the Ordinance was created and the appointment properly made those few weeks earlier? Did anyone on the Council even comment that the Registrary appeared to have altered his position since he gave them those assurances which encouraged them to allow him to pop Graham Allen straight into the job without competition or advertisement? Did anyone get tough? Or even bleat? Did the Vice-Chancellor, to whom it is proposed that the Registrary shall in future report, say a single word in inquiry?

In fact, we know a little more. The Minutes are now up on the Web (http://www.admin.cam.ac.uk/cam-only/committee). Under the item concerning this Report it says that the Council had in fact adopted this Report on 25 February, even sooner after they approved the special deal for the present Academic Secretary. This was 'subject to two minor corrections and substantive changes which Dr Reid had agreed to work on' (Minute 138, which we have not got yet because these older Minutes are not on the Web). The new point was an agreement that 'the Secretaries of the General Board and the Finance Committee should be designated by Ordinance'.

The Registrary has said in a letter to a disappointed female ethnic-minority would-be applicant that 'since the post (of Academic Secretary) arose out of a reconstruction', the Council had agreed that 'it should be filled internally'. 'I am sorry therefore that it will not be advertised and has already been appointed to'. I should think a number of prospective internal applicants would be interested to know why 'internal' did not include giving them a chance either. He admits in a further letter to her that this has not happened before in his time as Registrary. So why has it been allowed to happen now, with the appointment to this administrative post which is perhaps the most important of all to the welfare of students and academic staff? This disappointed would-be external applicant has now sent in a formal complaint to the National Audit Office.

[383 words omitted.]

If we still need a Secretary General, the post of Academic Secretary is new, and should have been advertised and openly competed for. If the post of Academic Secretary is really the 'same' as that of the Secretary General, then Dr Livesey is redundant and this proposal is a towering abuse of our right to change our Statutes.

I do not wish to bracket the Treasurer with Livesey, for the problems they pose are not quite the same. But I think it is reasonable to ask exactly what now we need either of them for. The next Report to be discussed would have us believe, despite Shattock and despite CAPSA, that we need the Treasurer to go on accepting tenders unsupervised. I will refrain from getting up again in a moment to point that out yet again. Once ought to have been enough.

Would these two be there if we had to invent them? Then why are we continuing to pay them and pretend that they are fulfilling a real not imaginary function in the new dispensation? And why are we willing to alter our historic Statutes to accommodate these two, who could have left with honour and decent pay-offs? I am quite sure the Council would have 'agreed' to that like a shot.

I support Professor Edwards' requests about voting, so there are two members of the Regent House making that request this afternoon.

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