Tuesday, 5 December 2006. A Discussion was held in the Senate-House. Deputy Vice-Chancellor Professor Anthony Minson was presiding, with the Senior Proctor, the Junior Proctor, a Pro-Proctor, the Registrary, and ten other persons present.
The following Reports were discussed:
Report of the General Board, dated 8 November 2006, on the establishment of a Department of German and Dutch (p. 147).
Dr D. R. DE LACEY:
Mr Deputy Vice Chancellor, at first sight this Report looks eminently sensible. Dutch surely fits rather more comfortably with German than with Modern Greek. Some of the apologia given is eminently plausible and almost persuasive. However, it is hard to see how the wholesale reorganization of two Departments is required simply to encourage 'students in German who would have a natural interest in studying' Dutch to do so, any more than it is for a 'synergy in the teaching of Dutch and German philology' (quotations from §2).
The key concern appears to be buried in the midst of the list of advantages: 'it would offer a better opportunity for the safeguarding of the continuation of provision in Dutch once the current University Teaching Officer in Dutch retires' (§2). So this is a desperate, and even then not guaranteed, attempt to preserve a post, presumably in the face of RAM-raiding. What a pity that the debate cannot be focused on that rather than on reorganization.
But since this Discussion is about reorganization, there is one glaring omission. We are told that 'The General Board expect to receive further proposals from the Faculty Board on the future of the Department of Other Languages at a later date. These proposals will be the subject of a further Report to the University'. But once this change has gone through, the options for the Other Languages rump will change significantly. There is no friendly cognate language ready to embrace the post of the Greek officer. Why did the Faculty not devise a coherent plan for the whole Department, rather than leaving itself an embarrassment for later? It is a bare fortnight since the incompetence of another Arts and Humanities Faculty has led to a request to discuss a Topic of Concern over plans for reorganization. Please may we ask the Faculty Board to go back and do its job properly.
Professor G. R. EVANS:
Mr Deputy Vice-Chancellor, currently, subsidiarity allows Faculties or Schools to make recommendations about the arrangements for provision of small-number or temporarily unpopular subjects, with reference to their own constraints of the moment, with the result that the Regent House is asked to approve what may turn out to be policy objectives conflicting with those which are leading to quite different recommendations elsewhere. The argument for protecting provision because 'across the UK, undergraduate courses in Dutch are now limited to a very small number of universities', meshes somewhat untidily with the arguments recently advanced for heading in the opposite direction in provision for the future teaching of certain oriental languages, a matter on which a Discussion on a Topic of Concern has now been called.
Further arguments are to be read here. This will offer 'a better opportunity for the safeguarding of the continuation of provision in Dutch once the current University Teaching Officer in Dutch retires'. Is this consistent with what has been happening in Oriental Studies? 'It may also be noted that German and Dutch belong to the same RAE (Research Assessment Exercise) unit of assessment' is added on with the appearance of being almost an afterthought. But this is no basis for planning surely since HEFCE keeps moving the RAE goalposts?
Should the Regent House continue to allow piecemeal decision making to lead to contradictory policies without forming a view about the desirability of Cambridge's protecting its provision of small-number and temporarily unfashionable subjects? This is surely an extremely important overarching policy question?
Dr M. R. MINDEN:
Deputy Vice-Chancellor, I would just say that I have nothing to add to the list of reasons that we put forward and that are included in the formulation of the General Board's Report to the University, and I think that we should re-affirm that we stand by all these reasons, including the one relating to the future of Dutch. We believe that embedding Dutch in this way is the most robust way of ensuring its future success. Moreover, the future of Modern Greek is currently at a stage at which it can be brought to the Faculty Board and I think that the description of our procedures as 'piecemeal' is slightly unfair.
Report of the General Board, dated 8 November 2006, on the establishment of a Jawaharlal Nehru Professorship of Indian Business and Enterprise (p. 147).
Professor G. R. EVANS:
Mr Deputy Vice-Chancellor, you would think, reading this Report, that the need for a Professorship in this academic area had led to this proposal. But no, read on. It looks as though the offer of the money came first, and with strings attached. 'The High Commission of India wishes to endow the establishment of a new Professorship, to be called the Jawaharlal Nehru Professorship of Indian Business and Enterprise, to commemorate the centenary, in 2007, of the matriculation of Jawaharlal Nehru at Trinity College. The High Commission has generously agreed to donate to the University the sum of £3.2m to endow the proposed Professorship.' Thank you, says Cambridge's Development Office. How kind. And when it looks into the matter, the Council of the School of Technology and the Faculty Board of Business and Management discovers that it had indeed been thinking this was just what Cambridge needed, now that it is getting rid of the study of major Indian languages. So 'It is intended that the Professor will provide leadership for the creation of a dedicated centre at Judge Business School devoted to the study of Indian business'.
This brings to mind recent events in Oxford where gratitude for a large sum of money for the Ashmolean Museum led to a partnership contract being signed with the Prince Sultan University in Saudi Arabia by Jon Dellandrea on behalf of 'Development and External Affairs', as far as can be ascertained without delegated authority. Congregation knew nothing about it until it hit the headlines six months later, as academics discovered that special admission arrangements had been agreed to in breach of the QAA guidelines. Our reporting and gracing requirements for Professorships have at least ensured that the facts are laid before the Regent House for discussion today. Nevertheless, robust procedures are needed to ensure that the financial tail does not wag the academic dog in Cambridge either.
Report of the General Board, dated 8 November 2006, on the re-establishment of a Professorship of Medical Genetics (p. 149).
No comments were made on this Report.
Report of the Council, dated 20 November 2006, on Statute G, II, 4(iv) (p. 180).
Professor A. W. F. EDWARDS:
Mr Deputy Vice-Chancellor, this is an extremely complicated and possibly contentious matter and I do not think that eight clear working days is a sufficient period for its consideration by the Regent House. I hope the Council will agree either to its further discussion next term or to submitting an amended Report in due course as a result of any remarks made today.
I was a member of the Committee of the Council of the Senate to enquire into the operation of Statute G, II that sat during 1984 and 1985. The Council appointed Mr David Yale (now Honorary QC) and me as its members on the Committee, which met under Mr Yale's chairmanship. Our report to the Council formed the basis of a completed Council Report which, however, never saw the light of day. It was held up by a crackpot suggestion that since the consent of all the Colleges was required for its implementation under the provisions of the 1923 Oxford and Cambridge Act, perhaps its proposals might apply only to those Colleges that did consent. It finally died when in 1986 the University Grants Committee notified the University of its intention to review the College fee system.
It is remarkable that the present Report omits to mention that its recommendations too require the consent of all the Colleges under the provisions of the 1923 Act. My College, Gonville and Caius, has neither been asked for, nor given, its consent. The Council say that they 'are aware of a larger review that the Bursars' Committee are conducting into the whole system of University contribution'. That review will have to take into account many points of principle in connection with the future of the Colleges Fund, especially in the light of the movement to 'total return', and it is essential that the question of consent is clearly understood. I shall therefore take a moment to summarize the background to it.
At the Discussion of the Second Report on Statute G, II1 on 3 February 1976 Dr G. A. Reid, then as now a member of the Council, gave reasons why he had been unable to sign the Report, one of which was that he believed that the consent of the Colleges was required. The Council (or at least the majority) explained in their reply that consent had not been sought because 'The Council do not believe that the consent of the Colleges is required to the amendments proposed. … The Council consider that the University should not ask for the formal consent of every College unless it is established as a legal requirement, since this would establish a precedent which would give any single College a power of veto over any amendment of Statute G, II at any time'. Quite so.
Dr Reid was not alone in his opinion in 1976. Caius did not accept the Council view either. By March 1985 the Master was Professor H. W. R. Wade, QC, and when the College was asked its opinion of the Yale Committee's draft Council report he wrote to the University Registrary, 'In considering the 1976 Report on Statute G, II Caius did not accept that the taxing of the income of colleges to provide money for distribution to other colleges through a Colleges Fund was for 'University purposes' within the meaning of s7(1) of the Oxford and Cambridge Act 1923. Consequently Caius did not concede that the University had the power to make the amendments to Statute G, II then proposed without the consent of the colleges. Caius maintains this position in relation to the recommendations of the 1985 report'. The College added a long criticism of the report for good measure.
The Yale Committee passed the letter from Professor Wade on to the Council, together with some observations of mine on the point, as a result of which the Council sought an Opinion, which we obtained from Mr William Goodhart, QC. Mr Goodhart advised that the consent of the Colleges was required, just as Dr Reid and Caius College had maintained in 1976. The matter was thus settled and this was the real reason that the Report died: Caius College was having none of it.
The University Registrary informed Heads of Houses of the newly admitted requirement by letter dated 30 October 1985, and reminded them of it on 21 October 1994 when asking for College consent to the 1995 Report's proposals.2 Oddly, the Report as published did not state that the consent of every College had been obtained, but presumably it had been. The proposals were relatively minor.
The proposals of the present Report, however, are not minor, either in principle or in practice, and the consent of all the Colleges having not yet been sought it is a false prospectus. If approved by the Regent House as it stands the University would be bound by the terms of the Graces to submit the amendments of Statute under the Common Seal to Her Majesty in Council. The Privy Council would then have no option but to advise Her Majesty to withhold approval on the grounds that the provisions of an Act of Parliament had not been complied with. Of course, the recommendations could have said 'subject to the consent of all the Colleges …', but they do not. Or perhaps the Council intend to seek the consent of the Colleges before the Graces are put, as envisaged in the Registrary's 1985 letter to Heads of Houses. If so, the Report should have stated as much.
Now to the content of the Report itself. One cannot go around changing the law just because one believes it was enacted in contravention of some earlier intention. The law is as it is. Discussion of it starts from the here and now. We may change it if we like. We may change it back if we like. But any change must be argued on its merits, and the Council advance none. In paragraph 15 they mention the consequences of the 1974 changes but they give no reason why the extension of deductability was detrimental. Detrimental to whom?
An amended Report must contain estimates, at least in broad outline, of the financial consequences to the Colleges Fund of adopting the recommendations. Are they beneficial, and to whom? It is worrying that this Report gives the impression of having arrived at the Council for signature directly from the Finance Committee's Assessment Sub-Committee, via the Finance Committee. A Council committee would surely have required an estimate of the financial effects of the proposed changes before sending it to the Council. In this connection I have to remark that since some of the effects would no doubt benefit some of the Colleges to which members of the Council belong, then although those members might reasonably continue to participate in the deliberations provided they declared an interest, actually signing it is rather like Members of the House of Commons voting themselves pensions. It does not seem to be in accordance with modern concepts of the standard of conduct in public life.
If the Council is declaring open season on correcting past errors I would like to take them back to 1966. The whole business of the Colleges Fund is based on a disingenuous interpretation of section 8(2) of the 1923 Oxford and Cambridge Act. In their 1966 Report3 the Council said 'It is therefore clear that it is proper for, and indeed the duty of, the University to consider the financial needs of the Colleges in making any recommendations for the amendment of Statute G, II' and on that basis they proposed the creation of the Colleges Fund to enable the monies raised under the Statute to be distributed to the poorer Colleges, partially at first but now entirely. But section 8(2) actually states that, when considering changes to the rates of taxation, 'regard shall be had in the first place to the needs of the several colleges in themselves for educational and other collegiate purposes' and it is abundantly clear, given the context, that this is an injunction to the University not to bleed the Colleges dry, not an invitation to give them money (their own, as it happens).
The 'larger review' now under way will also need to examine important points of principle such as whether it is proper that the Trust Funds of the donor Colleges should be taxed and the proceeds distributed to Colleges which are not then bound by the terms of the Trusts. It should also consider whether the original purpose of the Colleges Fund, which was principally to facilitate the provision of accommodation for students, has not now been accomplished, and that the Fund should in consequence be discontinued, leaving Colleges to act voluntarily as does Trinity, and as did Trinity, St John's, and Caius in founding Darwin College, and as Caius offered to do in connection with the foundation of Robinson College.
Finally, the historical argument advanced at such length by the Council (in so far as it is relevant at all) is of a complexity that defies analysis in a mere eight days. One cannot agree that the 1966 Council was right, the 1974 Council wrong, and the 2006 Council right again, without examining the position between the 1923 Act and 1966 in respect of the points at issue. For that the Christmas vacation would not be too long a period.
1 Second Report of the Council of the Senate on amendments of the statutory provisions governing the financial relations between the University and the Colleges (Statute G, II) (Reporter, 1975-76, p. 379). 2 Report of the Council on amendments of Statute G, II (Financial relations between the University and Colleges: the Colleges Fund) (Reporter, 1994-95, p. 450). 3 Report of the Council of the Senate on amendments of the statutory provisions governing the financial relations between the University and Colleges and on the establishment of a Colleges Fund (Reporter, 1965-66, p. 1049). N.B. The 1999 Report of the Council (Reporter, 1998-99, p. 472) is also called the 'Second Report' but should not be confused with 1 above.
Professor G. R. EVANS:
Mr Deputy Vice-Chancellor, 'Report of the Council on Statute G, II, 4(iv)'. I shall be surprised if most members of the Regent House read any further, so keen do you have to be on the Statutes and Ordinances to be attracted by this inviting heading.
This Report proposes a twitch to the rules governing the financial relationship between the University and the Colleges, on which I have no comment to make as to the twitch itself. Professor Edwards has said all that needed to be said. I do, however, wish to comment on one or two problems of fundamental importance, which have become central to the ongoing governance debates in Oxford and may shortly do so in Cambridge.
The first, which I merely note, is the urgent need for review of the principles which should now obtain in setting out the financial relationship between the University and the Colleges. I am reassured that '3. The Council are aware of a larger review that the Bursars' Committee are conducting into the whole system of University contribution'. We shall no doubt have a Report to discuss on that in due course. Oxford is not having an easy time over this problem, either, for many of the same reasons. Read about the JRAM.
The second point concerns the responsibility of the Privy Council to save us from ourselves if we propose a badly worded Statute. I have alerted the Clerk to the Privy Council to my intention to make these remarks and received the usual courteous and speedy response. Apparently the files from 1974 are no longer in the office, though possibly the National Archives may hold them. My question is whether the Privy Council has always taken sufficiently seriously the duty of oversight in ensuring that Statutes coming to it for approval from Oxford and Cambridge are properly scrutinized and any anomalies of this sort picked up so that the University may be asked to think again.
The need for this twitch to the Statutes has arisen as a result of what appears to have been a failure of Privy Council vigilance in 1974: 'The purpose of the reference to the 1925 Act in Statute G, II, 4(iv)(b) (namely that it should apply only to pre-1964 Act sinking funds that had been continued in force by the 1964 Act) was wholly overlooked. No reference was made to the 1966 Report, or otherwise to the legislative history of the matter. In fact, far from being rendered obsolete by the 1964 Act, the 1925 Act reference in Statute G, II, 4(iv)(b) had been added post-1964 specifically in response to the 1964 Act.'
The Privy Council approval process was gone through and it appears that no-one demurred in the course of that process and the royal consent was given. One hopes this will never happen again.
The anomaly has been allowed to linger in the University's Statutes until now, and it has given rise to 'misunderstandings' leading to what are admitted to be potentially unlawful acts, and certainly acts with financial consequences: 'In addition, misunderstandings have arisen, both on the part of Colleges and on the part of the Finance Committee, in treating or allowing as deductible sinking funds that go beyond the scope of the Estates Acts'.
We are not treated to a list of these. May I invite the Council to publish them in its response?
It seems timely to repeat the call I and others have made several times in recent years, for a careful overhaul of the Statutes and Ordinances to pick up the other problems which they create and provide the University with a consistent and accessible body of legislation. Oxford's recent new Statutes and Regulations are turning out to be full of unforeseen difficulties as a result of incompetent drafting and failures to think things through. We might learn from disasters there in putting Cambridge's legislative house in order. Cambridge should welcome clear-eyed Privy Council scrutiny of its proposals.
Dr M. P. HALSTEAD (read by Mrs S. BOWRING):
Deputy Vice-Chancellor, I speak as the Bursar of Christ's College. The Report notes that the Bursars' Committee was consulted on the proposed revision to Statute G, II ,4(iv), but not that Colleges were consulted earlier in the Michaelmas Term. My College sought clarification about possible retrospective adjustments to the calculation of University contribution, because the Director of Finance had written to Colleges on 11 August 2006, requesting information about sinking funds from past financial years, to enable an assessment of possible corrective action. We have not been informed about the outcome of this assessment and the Report makes no reference to possible retrospective adjustments.
My College is deeply concerned about the possibility of retrospective taxation. We firmly believe that in past years we have proceeded correctly in the matter of sinking funds, within the terms of Statute G, II, 4(iv) as currently drafted. In recent years the College has set up a number of sinking funds to repay borrowings from corporate capital for building purposes. On each occasion the College sought, and obtained, the approval of the Financial Board or the Finance Committee for each new sinking fund. We consider it bad practice to change the rules for taxation retrospectively; the University should not follow the example set by HM Revenue and Customs. We have received no reassurance that we will not be subject to retrospective taxation, if the change of Statute is approved, and repeat our request to the Council that the issue of retrospectivity be cleared up before a Grace is brought forward.
Report of the General Board, dated 18 October 2006, on the establishment of a Li Ka Shing Professorship of Oncology (p. 183).
No comments were made on this Report.