Report of Discussion

Tuesday, 11 October 2016

A Discussion was held in the Senate-House. Pro-Vice-Chancellor Professor Eilís Ferran was presiding, with the Registrary’s deputy, the Senior Proctor, the Junior Proctor, the two Pro-Proctors, and ten other persons present.

The following Report was discussed:

Twenty-first Report of the Board of Scrutiny, dated 21 June 2016 (Reporter, 6433, 2015–16, p. 776).

Dr L. N. Drumright (Chair of the Board of Scrutiny, Department of Medicine, and Hughes Hall):

Deputy Vice-Chancellor, Regents, I address you today in my capacity as the new Chair of the Board of Scrutiny.

It is conventional for the outgoing Chairperson to speak to the Board’s Annual Report. However, Dr Matthew Vernon, the 2015–16 Chair of the Board of Scrutiny, has left the University, and is unable to attend the Discussion today. He has asked me, as the newly elected Chair of the Board, to speak to the Board’s Annual Report on his behalf.

As we are breaking tradition, I have also opted to reflect on last year’s report, not with a focus on the past year, but with a view to the future – to this year and the many to come.

The University is in the midst of change and uncertainty. Economic and political concerns have been brought on by the outcome of the Referendum to leave the European Union, resulting in subsequent ambiguity about how this outcome will take form and what it will mean to the University. Within the University, this year we will say farewell to both our Vice-Chancellor and the Registrary and welcome new University officers into these guiding posts. The University is growing in both teaching and research activities, and with this there is a growing need for expansion of physical locations to accommodate these activities. Our students have changed, they have different needs and preparation for taking on lead roles in the world is different today. As Regents we have also changed – in our values, our priorities, our concerns, and our demographics. We are not the same Regents that started governing this University so long ago, nor are we likely to resemble the Regents of even thirty years ago. I stand before you as an example in point.

Whilst it is important to move forward and recognize the need for change, it is also important to preserve the fabric from which this institution was woven. The University of Cambridge is a democracy. This is a unique and precious attribute that few universities in the world possess. It is a key element in supporting our academic success, and one of the many features that makes Cambridge one of the world’s great academic instutions. In order for democracy to prevail, we, as Regents, must be enabled to engage in our self-governance. The Board hopes that this has been communicated on many levels throughout the Twenty-first Report.

Looking forward, the Board will be engaged in understanding the University’s actions with respect to our changing position in the European Union. We commend the Vice-Chancellor in his continued support for protecting the University’s international diversity. Although the Twenty-first Report of the Board was submitted prior to the outcome of the Referendum to leave the European Union, we are fully committed to protecting the diversity of our students, staff, and Regents; and we are committed to keeping the Regents informed of how our University will overcome the obstacles and economic challenges that such change may create.

The outcome of the Referendum is not the only factor raising economic challenges for the University today. The assessment of the University finances in the Twenty-first Report of the Board highlighted the impending loss of the Research and Development Expenditures Credit that all Universities in the UK will face, which will have a significant impact on our financial situation. Furthermore, we noted our increased dependency on the non-academic activities of the University, namely Cambridge University Press and Cambridge Assessment. Last year the University Finance Committee established a working group to review these non-academic divisions of the University, culminating in the Freeling Report. The Board greatly appreciated the foresight and thoughtfulness of the Finance Committee in commissioning this activity. The Board read this report with great interest, and while it clearly contains commercially sensitive items, it also serves as an important guide to supporting the stability of our important non-academic assets. Along with our other finance recommendations, it is the Board’s hope that the less commercially sensitive aspects of the Freeling Report will be shared with the Regents, so that they may be provided with necessary information to self-govern and engage in discussion and comment on the management of these important assets.

Whilst finances are clearly important to our University, our human assets cannot be replaced by any amount of money. The people of this University are what make it a great institution. To this end, the Board demonstrated great concern for the management of Human Resources at the University in the Twenty-first Report, and our concern continues. These are highlighted in our comments and recommendations regarding:

1. firstly, ensuring that our developments are timely and within budget, so that housing and resources to support the living and working conditions of our students, staff, and faculty are in place, without generating financial deficits for future generations;

2. secondly, enabling members of the University to purchase housing in one of the fastest growing housing markets in the country;

3. thirdly, supporting safe and effective transportation methods; and

4. finally, guaranteeing dignity of all members of our community through our HR policy and actions.

Human Resources have ‘played the back bench’ for far too long at our University. There are important issues to be addressed. No university should fail in providing a socially safe environment that supports dignity at work, yet our staff surveys still report experiences of bullying. Where is our zero-tolerance policy and action? We need to come to a harmonious decision about how to usher in new faculty and staff with exciting new ideas and still support our older, yet productive and active, academics and staff. It is not clear that simply upholding the Employer Justified Retirement Age policy is the best answer. If we want to maintain academic excellence, we need to competitively compensate our faculty and staff at all levels, not just senior posts. In our Twenty-first Report, the Board called for a ‘holistic review of HR policy and practice’, which we wait for with anticipation.

In focusing on the people who make our University what it is, the Board raised concern in the Twenty-first Report about our ability to self-govern. Anyone who comes to a Discussion will be well aware that they are generally poorly attended. Today is no exception. It is not clear if this lack of engagement in self-governance is a matter of geographic spread, competing demands on time, or a lack of understanding of one’s rights and duties as a member of the Regent House, or indeed, knowledge of whether or not one is a Regent at all. The Board is delighted to see the new websites and documentation that the University has published to help support and preserve our structure of self-governance. We look forward to working together with the Vice-Chancellor’s Office, the Unified Administrative Service, and you, the Regents, in ensuring that our democratic governance not only remains intact, but is used as intended.

John Adams, the second president of the United States said, ‘Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide’. I don’t agree. The University of Cambridge is still here, self-governing as a democracy. The Board intends to support this.

I am well aware that the Board has been viewed in many lights over its twenty-one years in existence. I would like to remind the Regents and all members of the University that we are here to support the self-governance that contributes to the many wonderful attributes of the University of Cambridge. We welcome all members of the University to bring any matters of concern to us, including Regents, students, Heads of School, Heads of Departments, Pro-Vice-Chancellors, members of the Office of the Registrary, the Vice-Chancellor, and everyone else who is part of this community.

I would like to take this opportunity to endorse the Twenty-first Report of the Board of Scrutiny. The Board is very much looking forward in the coming year to supporting the University through the change that lies ahead and working together with administrative and academic offices and the Regents to ensure that the main concerns of the Regents are effectively addressed. To that end, we look forward to the response to the Twenty-first Report of the Board of Scrutiny.

Professor A. W. F. Edwards (Gonville and Caius College):

Deputy Vice-Chancellor, I wish to speak to paragraph 23, which invites the Council to ‘review how Regents may be effectively engaged in the governance of the University (including Discussions and voting), particularly those working outside the city centre’.

I note first the Board’s suggestion that the venue of the Senate-House is not meeting the needs of current Regents. This is a canard. I am one of the 112 Fellows of Gonville and Caius College, a short jump away from the Senate-House. We are not all members of the Regent House because those of us over seventy have been disenfranchised, but around 90 of us are. How many are here today? I can see only the Bursar, and he is anyway a signatory of the Report. The lack of participation in Discussions is nothing to do with distance or format or timing.

I have frequently described the real reasons, often from this very spot. We have been round the course before. The Council took no notice. In May 2000, the majority of Council members signed a ‘Report of the Council on arrangements for Discussions and related matters’ (Reporter, 5811, 1999–2000, p. 722). When the Registrary, Dr Mead, told me of the Council’s intention I advised him against it not only on the grounds that it would lead nowhere, but also because it would be widely and correctly interpreted as an attempt to curb the efforts of certain loquacious speakers, probably including me. Since the control of speakers lies in the hands of the Vice-Chancellor or such Deputy as he sends in his stead, I pointed out that the first step would be for him to exercise it.

The Discussion of this Report on 13 June 2000 (Reporter, 5815, 1999–2000, p. 896) went its full length. It covers 27.5 columns of the Reporter plus 28 words from Professor Bowring which the editor, that is, the Registrary, censored as was his right. My remarks occupy 4.5 columns, and if I were to read them out again today it would not be the first time I have repeated an entire speech because no notice had been taken of it. I will limit myself to repeating one paragraph and part of another. The Council should read the entire Discussion.

‘Discussions, which are but the meetings of the governing body to discuss proposals emanating from the Old Schools, have over the years degenerated not only as a consequence of the wider constitutional decline but specifically because of three further factors: the unsatisfactory nature of Council replies, the absence of the signatories of the Reports that are being discussed, and the inaction of the chair.’ ...

‘Council replies, in my experience, have been the worst factor of all. Most intelligent people long ago saw that raising points in a Discussion was futile; the administrative mind was made up, and the Council too feeble to challenge it. Time and again as a member of the Council or the General Board (and sometimes of both) I tried to have replies improved, but it was an impossible task. They had been carved on tablets of stone in some dungeon of the Old Schools and neither facts nor reason nor compassion could change them.’

In my personal experience the ensuing fifteen years have been just as bad, partly because of the Council’s delegation of replies to its Business Committee (sometimes ill-attended) and the default position that they are deemed to have been approved by the Council if no member objects.

The Council never did reply to the Discussion of June 2000. Dr Evans, a member of the Council, commented in her note of dissent to the Report, ‘Replies to Discussions are often much delayed or not forthcoming at all’. She proposed ‘that we create a Question Time at Discussions on the model of the Parliamentary accountability procedure, at which, with notice, Chairmen of Committees and senior administrative officers, may be required to answer questions put’. Her proposal was ignored. I had myself proposed many years previously that at the end of each academic year the Council should publish a list of those Discussion remarks to which it had not yet responded. It too had been ignored.

Let me end with a current example. In 2010, the Council published a ‘Report of the Council on membership of the Regent House (age limit)’ (Reporter, 6203, 2010–11, p. 187). It proposed relaxing the age limit for a new class of members of the Regent House in addition to the Heads of Houses and the ceremonial officers such as the Chancellor. Two Fellows of Caius spoke.

Professor Herbert thought the age limit itself was ‘outrageous’ and gave his reasons. I drew attention to an existing class, Fellows of Colleges, who would expect to be similarly treated. I then explicitly proposed, giving the historical background, that the age limit be revoked anyway. It was only introduced in 1996 and on very slender grounds. Six years later the Council has still not replied to my proposal. Is it any wonder that Regents do not bother with Discussions?

My advice to the Council comes from Plutarch: ‘Know how to listen and you will profit even from those who talk badly.’

Dr A. L. Feldman (President of the Postdocs of Cambridge Society, MRC Epidemiology Unit, and Churchill College):

Deputy Vice-Chancellor, I am a postdoctoral career development fellow at the MRC Epidemiology Unit. I am also the President of the Postdocs of Cambridge (PdOC) Society and I submit these remarks regarding the Twenty-first Report of the Board of Scrutiny on behalf of the Committee of the PdOC Society.

We would like to commend the Board for considering postdocs in this year’s Report in such a profound way. The University estimates that there are currently 4,000 postdoctoral research staff on fixed-term contracts, commonly referred to as postdocs. This number has almost doubled over the last 15 years and there are now postdocs in every discipline and from every corner of the world in our community. In this year’s annual address to the University at the start of the academic year, the Vice-Chancellor highlighted postdocs’ contribution to the University, describing it as ‘the engine that powers our research capacity’. Thus, it is important, as the Board has realized, that the perspective of this large and diverse group be considered along with that of students, academic staff, and other staff groups.

But before we give you our perspective on the Board’s Report, there are two key facts about postdocs at this University that are important to note.

First, at most only one-third of postdocs are members of the Regent House. The deciding factor for who is included is not related to any systematic rule such as number of years of service or involvement in teaching, but rather to which Faculty or Department the postdoc is affiliated.

And second, only around 10% of postdocs have a College affiliation.

The Board notes in several paragraphs of the Report with regards to the ever-increasing geographic spread of the University that this poses a risk of increased isolation and loss of the ‘fruitful interdisciplinary encounters’ which enrich our academic community, and a risk of diminished engagement of Regents with the governance of the University. This is a serious concern which we share. But a majority of postdocs, being the largest staff group at the University, are already doubly affected by these risks, by both not being members of the Regent House, and not being affiliated to any College. We wish that the Board would widen the scope of its concerns to include not only the Regents but also those who already are ‘isolated from each other and from the governance of the University’ to use the phrase in paragraph 18 of the Report.

The University has made considerable progress in meeting the needs of our widespread community, most recently with the opening of a second Postdoc Centre on the Biomedical Campus, which follows the Postdoc Centre in the City that opened three years ago, and which will be followed by a third due to open at the North West Cambridge site next year. We very much welcome and praise these increased resources, but at the same time there are concerns over an unintended fragmentation of the postdoctoral community in the future. The key worker houses currently under construction at North West Cambridge will soon be home to many hundreds of postdocs and their families, and the whole development is sorely needed and much anticipated. However, it cannot be denied that even if there will be food stores and coffee shops and Postdoc Centres around the corner in this new neighbourhood, it is still several miles from Cambridge City Centre and at least half-an-hour’s cycle in the best conditions from the Biomedical Campus where about one-third of all research and academic staff work. In addition, the current public transport options to and from North West Cambridge are very limited and non-existent on evenings and Sundays. Thus, coupled with this great opportunity, there are certainly considerable risks of fragmentation, isolation, and disengagement of research staff from the University that need to be considered.

In paragraphs 25 and 26, the Board raises its concerns about the lack of career development opportunities and job security for postdocs. We share this concern and indeed it is one of the main issues with which PdOC is continuously engaged. The Board notes rightly that one of the main causes of the often uncertain situation for unestablished research staff is the funding climate, which of course the University will not be able to solve on its own. However, there are measures that can be taken by the University to improve the situation. Indeed, examples include the already existing excellent resources in career services, and the personal and professional development and researcher development programmes. We also agree that a change in policy and increased support for all staff to bring in grant funding would be a welcome development. However, this is not the only pathway to increased job security and career development possible, and it is not the only policy that is in the power of the University to change. Other possibilities include increased opportunities to create ‘staff scientist’ positions, an overview of contract lengths, and increased transparency and opportunities for promotion within the postdoctoral career phase, such as from Research Associate to Senior Research Associate. While the University certainly has an excellent reputation and is good at attracting and recruiting staff, perhaps there should be an increased focus on how to retain staff as well, and we believe that measures to improve these aspects of employment conditions for research staff would help in that respect.

Since its launch three years ago, the Office of Postdoctoral Affairs has been governed by a sub-committee of the University HR committee. But soon the governance structure for OPdA will change with the inception of the Committee for Postdoctoral Matters which will be a joint committee of the University Council and the General Board. This is in many ways a very positive development that further embeds and builds on the University’s commitment to its postdoctoral staff and ensures longevity of the support and provisions that have been established and continue to be developed. However, it is important to monitor that HR issues relating to postdocs are not lost in the move. An example is the forthcoming starting salary uplift for Research Associates and equivalent posts in grade 7. Just like the Board, we welcome this development but we also hope that it is just the first step towards generally improved salary and employment conditions for research staff including improved possibilities for promotion and increment increases, and more opportunities to access the discretionary points at the top of grade 7 for research staff.

As mentioned at the beginning of these remarks, the majority of postdoctoral researchers, including myself, are not members of their Faculties and consequently not on the Roll of the Regent House. As such, according to the Statutes and Ordinances, we do not have an automatic right to attend and submit remarks at these Discussions. On behalf of the Committee of the Postdocs of Cambridge Society, thank you for allowing me to do so.

Professor G. R. Evans (Emeritus Professor of Medieval Theology and Intellectual History), read by the Junior Proctor:

Deputy Vice-Chancellor,

‘The Board wishes to highlight considerable concern being expressed formally and in staff satisfaction surveys about human resources (HR) issues’

In my own experience of ‘case-work’ to assist members of Cambridge’s staff involved in disputes, I see much to support these concerns. One’s confidence in Cambridge HR is not strengthened by the fact that the online Minutes of the HR Committee end in 2014, and its membership list still names as attending, the last but one of the two Directors of HR who have left rather abruptly in the last couple of years.

Let me read into the record two recent decisions of the Employment Appeal Tribunal which have drawn attention to unsatisfactory HR practices. One, last year, was Ramphal v. Department for Transport.1 The other, in July this year, was Dronsfield v. University of Reading.2 In both, HR was reproved because it overstepped the mark and interfered with the decision-making. That kind of thing happens in Cambridge too.

Among the concerns listed by the Board is ‘enforced retirement by age’. It was startling to see in the first Reporter of the year on 21 September 2016 a mere Notice3 entitled ‘Review of the University Retirement Policy’. This purported to have been approved by the Council in July, though the Council’s Agenda seems only to have an item called ‘Employment in the University’ and no Minutes are yet visible.

In any case, surely the Council cannot have authority to approve changes of this importance without reference to the Regent House, which has certainly not been consulted. The Regent House graced the original policy on a ballot,4 foolishly (in my view) consenting to a footnote saying ‘the draft policy refers to subsidiary documentation which is intended in due course to be made available on the University website’. Was it? Perhaps the Council in its reply will tell us which ‘documentation’ this is deemed to refer to and where it may be found? That seems a staggeringly vague way of creating domestic legislation under our Statutes. The governing Statute, then D, 1, 11, which has now sunk to the level of Special Ordinance C (ii) 12 certainly implies a need for Regent House consent to changes to its intent, as this Notice proposes.

It is I think not in dispute that the University must comply with the law. The law about retirement has changed in line with the inclusion of discrimination by reason of ‘age’ in equality legislation in the Equality Act 2010. So to make a University Officer retire at 67 is unlawful unless the University can justify doing so as ‘a proportionate means of achieving a legitimate aim’.

A Report on a retirement policy for University staff 5 was published in 2012. It was proposed that the University should maintain its retirement age of 67 for University Officers and thus create an Employer Justified Retirement Age (EJRA) for them. Officers might be permitted to continue working beyond that age ‘in appropriate cases’. Other staff would not be subject to any compulsory retirement age.

The new rules, deemed to have come into force on 1 October this year, further restrict University Officers by adding a new principle to reflect ‘the importance of the EJRA in helping institutions to plan their staffing structures to allow maximum effectiveness across their activities’. It is made clear that there is a presumption against continuing beyond the EJRA. That is to be ‘exceptional’.

This is interesting to anyone who is keeping up with events in Oxford. There a working party began to revisit Oxford’s EJRA in 2015 and hopes to report during this academic year.6 This review was prompted in the light of the outcome of the first Appeal against a decision not to allow an academic to stay on.

Oxford’s Appeal Court for these purposes is roughly the counterpart of Cambridge’s Septemviri but instead of Cambridge’s seven wise persons, a senior member of the judiciary such as a retired High Court judge or Lord Justice of Appeal is appointed case by case to hear the Appeal. The Gazette contained a Notice on 25 September 2014 to the effect that ‘the University’s Appeal Court has recently heard such an appeal and has raised some issues regarding the EJRA policy and procedure’.7 No detail was given and the judgement was not published. The problem for the University was that the judge had concluded that ‘the procedure for extension beyond the EJRA is so unfair that denial of extension is inevitably unfair dismissal’.

I do not know whether the ‘group’ appointed by Cambridge’s HR Committee had a copy of that first judgement before it, but it had an opportunity to learn a good deal of relevance to its own deliberations from the Gazette this summer. In May 2016, Congregation debated a Resolution on Good Governance of the University in Relation to the Administration of the EJRA Scheme. The Resolution named the appellant and the judge and provided a cross-reference to an article which contained quite extensive quotations from the judgement, D. J. Galligan ‘Goodbye to the EJRA’, Oxford Magazine, No. 355, Noughth Week, Hilary Term 2015, p. 4. (They get the Magazine in the Old Schools, I believe.) The debate was published in a supplement to the Gazette on 25 May,8 well before the Cambridge Council was asked to approve the Notice now published.

The judgement was not then published, but the judge had given written consent to its full disclosure to Congregation and so had the appellant. Since then a retired Lord Justice of Appeal, hearing another Appeal for its full disclosure by a different appellant who needed it to make his own case, ruled on 6 July that the University’s claim that the judgement was confidential was ‘misconceived’. A judgement in a particular Appeal might not be ‘binding’, he said, but ‘consistency in decision making is a well-established principle. A Court of Appeal decision should not be departed from without good reason’. He added that the relevance of the first judgement could be established only ‘upon analysis of the full judgement’ which must therefore be disclosed to the appellant (and presumably other appellants). The University is still withholding it from publication though of course copies are circulating.

Cambridge’s ‘officer’ appellants against their ‘enforced retirement’ do not get to appeal to the Septemviri. They will have to write to the Director of Human Resources and the Council appoints an ad hoc committee of three, none of whom is required to be legally qualified.9

That Oxford judgement is important. I have a paper copy (plain brown envelope job). It was written by the judge in a form clearly intended to allow for the publication of its main part. That contains 40 pages of analysis of the lawfulness of the Oxford procedure, with the matters relating to the specific appellant placed in an appendix. There are clear warnings for Cambridge to take note of, which should surely have been noted before that Notice was approved by Council. It reads:

‘as soon as the employer applies the policy in a different way for different people (as here, by pursuing a process for allowing some but not others to stay on) the reason for an individual’s dismissal ceases to be retirement at the EJRA and becomes a dismissal under the selection process.’ [A person is dismissed] not because he is 67 but because his application to stay on was refused.’

Cambridge’s stated presumption of refusal in making it ‘exceptional’ to allow an Officer to continue makes the same error as Oxford, in failing to conduct any ‘balancing exercise between the wishes of the individual and the needs of the University’. As the first judge in an Oxford appeal put it:

‘My clear impression that the whole procedure for applying for extensions is designed not to mitigate the discriminatory effect of the EJRA but rather to enable the University to pick out those members of staff which it wishes to retain while requiring any others to retire’… ‘The balance is entirely concerned with the interests of the University’.

Is that not exactly the thrust of that Notice in the Reporter?

I could quote much more but the fifteen-minute rule does not allow. However, surely the Oxford judgement ought to be relied on in Cambridge too. As a member of Congregation said in the debate this May ‘our employees are hiding something from us’. I think the Regent House’s UAS ‘employees’ and its committee member ‘employees’ are doing the same with reference to this EJRA Notice and the process of its construction and approval – and much else in that long-running saga of the raising of HR ‘issues’ in Cambridge.

Board of Scrutiny, please redouble your efforts.