Reporter 16/2/00: Report of Discussion

Report of Discussion

Tuesday, 1 February 2000. A Discussion was held in the Senate-House of the following Report:

The Report of the Council, dated 13 December 1999, on the office of Commissary (p. 348).

Dr A. W. F. EDWARDS:

Mr Deputy Vice-Chancellor, a Report signed by all the members of the Council is a significant event. I suppose a litigious age inevitably lumbers itself with more legislation. Personally I would feel happier if more attention were paid to the Statutes we do have than the ones we might have. However, as the Report states, it is an interim Report pending the reviews of Statutes K, 2 and K, 5 and I shall reserve any comments until I see all that is proposed in the round.

Might I observe that, presumably through one of the more infuriating habits of word processors, the Report seems to have lost its first sentence? This should read, as it has done for the last 125 years at least, 'The Council beg leave to report to the University as follows' (see, for example, the half-dozen Reports in the Reporter of 15 December). Insisting on this courtesy is no mere antiquarianism. Those of us who struggle to ensure that the government of the University continues not only in accordance with Statutes and Ordinances but also with the customs and conventions so necessary for good government need all the help we can get, and the customary rubric is an important, if subtle, reminder that the Council is reporting to its superior body, the Regent House, referred to as 'the University' in this connection in accordance with the language of the Statutes.

Ms L. A. MARINACCIO:

Mr Deputy Vice-Chancellor, I am speaking today to wholeheartedly endorse the creation of the office of Commissary. This position is critical to both students and faculty with complaints against the University. The current system remains unacceptable and must be changed.

Two weeks ago, I spoke out in Discussion regarding the need for a student complaints procedure that is both transparent and independent. As a student who filed an appeal with the Board of Graduate Studies last term, I have observed the inadequacies of the current system first-hand.

Although the University Statutes and Ordinances detail the procedures for graduate student complaints and appeals, University officials remain remarkably uninformed about them.

After several weeks of various University officials 'passing the buck' as we Americans like to say - in other words refusing to make a decision because they didn't want to be held accountable - Mr McCallum, the Secretary of the Board of Graduate Studies, promised a response to my appeal shortly after the meeting of the Board of Graduate Studies on 7 December 1999. I am happy to report that Mr McCallum has finally responded to my request for an appeal in a letter dated 26 January 2000.

However, I remain perplexed as to why it took Mr McCallum over seven weeks to report to me on the outcome of the Board of Graduate Studies meeting on 7 December. While he apologizes in his letter to me, dated 26 January, by stating, 'I am sorry for the delay in this response: that delay is my responsibility', I cannot help but think that this is not enough. He is well aware of my situation as a self-funded, overseas student and therefore his apology cannot hope to rectify the time and money that this unnecessary seven-week delay has cost me.

I hope that the creation of this independent position within the University will prevent other students from suffering the same fate.

I have recently been advised that my appeal will take at least a year, or possibly longer. This is unacceptable. The University must change its complaints and appeals procedures to ensure real accountability. Procedures must be streamlined to avoid unnecessary delays. The delays that I have suffered are unacceptable. It is a disgrace that the University of Cambridge expects a student with a complaint to waste a year or longer of his or her life in appealing an injustice.

But maybe that's the point. Maybe that's why I have been subject to these unconscionable delays. They know that it's the rare person that will persevere. Most will just give up.

Dr G. R. EVANS:

Mr Deputy Vice-Chancellor, as with the proposals about reconstruction of the Council, which I was pleased to see attracted a good many speeches on 18 January, it is refreshing to see the Regent House offered a chance to comment while a plan is in the making rather than when it is all over bar the shouting.

But not for long. We have here a tradition of freedom of speech far more ancient that the present legislation in the Education (No. 2) Act, 1986, s. 43, and the Education Reform Act, 1988, s. 202. It is ironic that the Vice-Chancellor is quoted in Varsity on 21 January as saying, 'We stand for free speech and an open mind and the expression of all views'. For we are to celebrate 800 years of the life of this academic democracy by making a change to all that.

The Council is considering a proposal to end the publication of speeches, or to edit them drastically (inevitably without their authors' consent, for who would consent to being edited by an administrative hand? Even in the Victorian period when only a report was published the speaker was allowed to agree the accuracy of the summary of what he had said¹). It is denied that the speeches I and others have made over recent years have contributed anything at all to the process of reform. Those who preside will, if some members of the Council get their way, be able to cut off speakers as they choose. (What if a speech is being read by proxy and the author is not there to try to hold off the axe with a protest?) The Deputy Vice-Chancellor cannot yet stop me quoting to you from the Reporter of 30 November 1875 (p. 142) a shocked speaker who exclaimed over an unsuccessful proposal then that, 'all controversial matter was to be excluded from the Reporter'. Do you want that, readers of the Reporter? What is wrong with a bit of colourfulness, 'such signs of life as the University was shewing (sic)', to quote another speaker from 30 November 1875 (p. 142)?

The threat is of suppression of minority views for the convenience of the central bodies. We must no longer name and shame. I think the Registrary should name and shame himself. I really believed that at last we had a senior administrator we could trust not to end our centuries of academic liberty. I think he should be willing freely to stand up here and explain to his fellow members of the Regent House exactly what his role is in this project, and what he hopes to achieve. I sent him this text in advance in the hope that he would accept the challenge. He has yet to make his maiden speech. But he does not need to. He gets to draft such responses to Discussions as the Council has occasionally made, though we do seem to have a bit of a backlog there. There will be no more responses needed on this new plan.

I was on the committee which explored the important proposal in the Report before us, and it continues broadly to have my strong support. (Though they are abolishing that committee and I fear they will keep me off the new one to make space for someone less conversant with the University's constitution.)

I now wonder whether we should not take a step back and give further thought to the type of provision we ought to seek to make in reframing the office of the Commissary.

The Lord Chancellor's office has been conducting a consultation about Alternative Dispute Resolution, in connection with the further development of the Woolf Reforms. A palette of options is on offer: arbitration, early neutral evaluation, expert determination, mediation, and conciliation. We do not have to set up something so narrowly-conceived as a final court of appeal. It need not follow from the fact that the Commissary's office has historically been judicial that we need go down exactly that road in re-creating his role now.

There is a way forward which is very attractive in the area of student complaints and appeals. That is to make a catch-all, last-stage provision, embracing in principle all types of complaint and appeal, and getting the Commissary or his deputy to provide a fresh eye and a fresh mind to look at a problem. Application of common sense and a knowledge of the core principles of fairness to what has happened, with powers to call for papers, evidence, and a written or oral response from those involved in the dispute, has a great deal to be said for it. A right to a hearing, if it is requested, is also important. I could have done with it myself in the events of recent years. It would have been a much cheaper way of going on.

So my first question is whether the judicial or something closer to the 'ombudsman' model is what we should be working towards. This I acknowledge to be an idea sprouting from one of those co-operative conversations between administrator and academic which are so promising. (The Registrary in another mode.) One difference it might make is that instead of producing a binding decision on one narrow point, the Commissary might make a recommendation, in the form of a report, with full reasons, to be made available to the student or the member of staff, and the persons or bodies otherwise involved in the dispute. There would have to be an expectation built into the procedures that the University would accept the recommendations of the report unless it can show good reason why it should not. But that could deal more broadly and flexibly than a 'court of appeal' can do with the complexity of problems.

This would be a non-adversarial approach, which would make possible something less like a litis contestatio. A very clear advantage of that approach is that it is likely to make for more outcomes which resolve things amicably. There would not have to be a winner and a loser. Heads would not need to roll. Faces could be saved. The lone individual, student or staff, would not be so disadvantaged. Our experience with the Council's boorish rejection of Sir Brian Neill's helpful mediation in my own dispute in the spring of 1998 is something I hope we have learned from and that nothing like it will ever be allowed to occur again. The Commissary must not encounter such discourtesy.

An instance where a more broadly-conceived function would be valuable is the situation not envisaged at (3) in the Report, where University procedures have not been exhausted because there has been a failure to go through them at all. That does happen. An internal 'writ of mandamus' from the Commissary would have come in handy more than once in my own tale.

Similarly, where our Statutes appear to be internally contradictory, it would be useful to have a source of a common-sense interim ruling while we tackle the lengthy formal process of adjusting our domestic legislation.

The member of the academic staff denied a remedy while it is discovered whether his appeal against an oral warning under Statute U ought to go to the Septemviri or be handled through a grievance procedure which has already kept him waiting for years, might well prefer to be able to ask the Commissary to step in and clarify the confusion in Statute U. In principle, the Council can go to the Chancellor, under Statute K, 2, for clarification. But it did not make use of that possibility when a question arose over the interpretation of Statute K, 9 (see Reporter, 2 February, pp. 392-93).

It would surely be helpful at this moment to be able to get the Commissary's ruling to discover how deep a cut it is that the Council propose to make in our democratic rights in order to silence their critics. That is first a Statute K, 2 matter, and if the Council tries to go ahead with this bit of breathtaking destruction of a glory of this place without obeying the Statutes, it might become a K, 5 matter. It is high time we handed this kind of dispute about ultra vires acts over to the Commissary.

For the individual, the key thing in our new provision is that the Commissary should act independently of the University. One Visitor at a recent seminar on Visitors said he thought the rights of the individual ought to be uppermost. Other Visitors comment that they believe they have a duty to act in the interests of the institution. That goes awkwardly to the question of independence. A student or member of staff might be rescued from the consequences of incompetence or injustice much more expeditiously if the 'University' was discouraged from automatically identifying itself with the accused.

In an early invocation of our harassment code, that is exactly what happened. The University solicitor was secretly instructed to ask a number of senior people to write letters, without the complainant being informed. The University solicitor was also provided free to sit at the elbow of the person complained against while the complainant got none of the help it promises in the code. When I first invoked Statute K, 5, it was taken for granted that the University solicitor would be used on the 'other' side, until I insisted that Taylor Vinters was used only in a secretarial capacity. It has been the advice of the University's lawyers more recently that if you make a complaint under the grievance procedure, the persons complained against are entitled to free legal help at the University's expense. But they are not 'the University'. They are merely fellow-employees of the complainant. In the light of such episodes, I think we need to scrutinize very carefully the words, 'the University' in the draft Statute, and be quite clear that students and employees in difficulties are not left in isolation to fight their own battles, while senior figures get protected as though their innocence could be taken for granted.

We are lucky not to have a Visitor (2). We, and Oxford, are constitutionally in a position to seek to create the proposed new role for our Commissary in a way that neither the post-1992 nor the other pre-1992 universities can do. The Colleges do all have Visitors and any new jurisdiction is going to run into difficulties in the case of students, since the courts may hold that a student complaint must go to the College Visitor.

I want to spend a moment on the Visitor model, to explain why we have to be very careful what we borrow from it. For one important reason why Visitors can be bad news is that the visitorial system is 'exclusive'. That means that it denies staff and students in 'old' universities and Oxford and Cambridge Colleges the right of resort to the courts enjoyed by others. The Education Reform Act, 1988, s. 206 altered visitorial jurisdiction across the board at a stroke.

Section 206 of the 1988 Act takes employment matters out of the Visitor's reach and allows a member of staff to take those at least to court. In the Paul Burrows case at the University of York, the Visitor's decision (now reported in the Education Case Reports) was useful in clarifying the implications of this limitation of visitorial jurisdiction in s. 206. It was held that in matters of procedural fairness the Visitor retained jurisdiction, and the petition succeeded. So in a student case or some staff cases, it might be quite a struggle to decide whether a procedural cock-up fell within the jurisdiction of the Visitor of a College, before it could be dealt with by our Commissary under the proposed new system. For that reason, we probably have to make it quite clear that what is proposed is preliminary to 'going to the Visitor' of the College, or the Visitor can oust the Commissary.

At a recent seminar attended by Visitors and their representatives, there was an air of surprise as the delegates compared notes for the first time in history. Visitors, not knowing of one another's procedure or practice, have been making it up as they go along. It emerged that there is a lack of consistency in the practice of different Visitors. If even the Lord Chancellor's department has no system, it is not perhaps remarkable that other Visitors are still more at sea. For example, the Lord Chancellor's office rarely holds hearings. Sheila Cameron QC, acting for the Archbishop of Canterbury, usually holds a hearing. The Privy Council office does not hold hearings. There is no requirement to give reasons, but reasons are routinely given by Sheila Cameron and, since a year ago, also by the Lord Chancellor's office on behalf of the Queen, in order to avoid the risk of an application for judicial review.

There is a clear need for us to develop at least out-line procedural guidelines (8), avoiding rigidity, but embodying good practice in conformity with the new human rights legislation. We must do better than the equivalent of the vestigial ordinances attached to Statute U. I have every faith in Lord Oliver's getting the procedures right, but we cannot be so confident that all his possible deputies would. We must have consistency for the sake of fairness. All Visitors report a large increase in appeals. In Cambridge too, the trend is towards more and more complaints and appeals and we must not assume that cases will be rare.

The proposal to set up an independent panel of senior experienced individuals, who could be resorted to when a dispute was not resolved by internal procedures, was made by the Council for Academic Freedom and Academic Standards to the Nolan Committee, and found its way into its Second Report. The CVCP have toyed with the notion for several years. It is time to come back to it and to give a lead here in Cambridge, with our new role for the Commissary.

To the finer detail of the present Report. We must include the merits or substance of decisions, and of the widest possible range of decisions. While we continue not to train our decision-makers, they cannot be trusted always to get it right. Besides, it cannot make sense to go to all the trouble to create a new provision and leave so much out of its reach.

(7) is now already out of date since we are mov-ing towards providing a four-square provision for complaint and appeal and for undergraduate and graduate students. Our students' concerns about doing it piecemeal were reflected in an article in the Times Higher Education Supplement on 28 January.

The draft Statute must be gone over by lawyers with the relevant real drafting expertise. We must get the intention of every clause clear. And we must create a balancing expectation that no one shall need to go to the Commissary, for we shall solve things quickly and sensibly in future, shall we not? No one, staff or student, will be kept waiting year after year for the University to discharge its duty of care? But then, we shall never know because there will be no more Discussions to read to find out what happens next.

¹ Reporter, 14 March 1905, p. 669.

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