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No 6280

Wednesday 10 October 2012

Vol cxliii No 3

pp. 33–41

Report of Discussion

Tuesday, 2 October 2012

A Discussion was held in the Senate-House. Pro-Vice-Chancellor Professor Jeremy Sanders was presiding, with the Registrary’s Deputy, the Senior Proctor, the Junior Pro-Proctor, and eleven other persons present.

The following Report was discussed:

Report of the Council, dated 28 June 2012, on the technical review of the Statutes (Reporter, 2011–12, p. 747).

Professor A. D. Yates (Warden, Robinson College and University Council):

Mr Deputy Vice-Chancellor, this Report of the Council represents the work of the Technical Advisory Group, set up by the Council in the autumn of 2010, to undertake a technical review of the University’s Statutes. Some proposals, in the shape of a series of consultation papers, followed by a Report to the Regent House, dated 14 June 2010, were the subject of a Discussion by the Regent House on 6 July 2010. As a consequence of the very valuable feedback that was received from the various consultations, and the Discussion to which I have referred, the proposals to be found in Appendix 1 to the Report currently under Discussion were put to the Council, and these are now put before the Regent House.

There are several very important points that require emphasis. First, these proposals will be the subject of a Grace to be placed before the Regent House this term. That Grace will seek approval in principle only. At the same time, further informal advice and comment is being sought from the Privy Council, in addition to the guidance that has already been sought. At a later date, the New Statutes, amended as necessary as a consequence of any further observations made by the Privy Council or members of the University (and some further amendment may well be required), will be put by Report, Discussion, a ballot if called, and a Grace, for final approval by the Regent House. At that time, any further changes from the version currently before the Regent House will be clearly highlighted. The New Statutes, assuming Regent House approval, will then be submitted for approval by Her Majesty in Council.

So much for process. The second important point to note is that these New Statutes are concerned only with technical changes. They represent a consolidation of the current Statutes into a more rational, thematic structure, but there have only been substantive changes where such have proved necessary to clarify existing ambiguity, remove redundancy, or to rectify illegality resulting from changes in the law since the original statutory provisions were promulgated. All such changes are clearly identified by footnote in the Report currently under discussion.

Thirdly, an important – and not merely technical –change is the introduction of an additional layer of University legislation – that of the Special Ordinance, so that the University would in future have, as the Report points out, a quadripartite structure of legislation: Statutes, Special Ordinances, Ordinances, and Regulations.

The novelty in this structure is the category of Special Ordinances. These are provisions made under Statute on the authority of the Regent House on the basis of a Report to the University, a Discussion, a Notice, a ballot if called, and a Grace. The only difference between enacting or changing a provision in the New Statutes as compared with enacting or changing a provision in a Special Ordinance, is that the former requires the consent of Her Majesty in Council, whereas the latter, under the proposals under Discussion, would not.

The proposed New Statutes represent a shortened consolidated version of the existing Statutes, containing the fundamental constitutional and governance provisions of the University. Those other measures in the current Statutes that contain the detail supporting these fundamental provisions, together with those that simply implement national law and which may, therefore, be subject to change from time to time, have been moved, without, I emphasize, changes in their substance, to Special Ordinances. Reducing the Statutes to an enabling framework and set of constitutional and governance principles is firmly in line with the Privy Council’s informal advice, which the University has, of course, sought.

To those who might, at first blush, be fearful that placing provisions in Special Ordinances rather than in Statute could result in a diminution of the protection currently afforded to those who might allege that the University has acted ultra vires or in some other way illegally in promulgating a change to a Special Ordinance that, formerly, might have resulted in a petition to the Privy Council, I can only emphasize that there is an appropriate review procedure embodied in the New Statute A, IX, 2. Representations can first be made to the Vice-Chancellor, and therefrom to the Commissary. The Commissary is fully empowered under New Statute A, IX, 3, to adjudicate on such matters. The University appoints its Commissary from the ranks of the senior judiciary or retired senior judiciary – exactly the same group from which the Privy Council would select its adjudicator in the event of a reference to that body’s Universities Committee. There is, therefore, a robust and independent system, no weaker than the protection afforded by a reference to the Privy Council, for adjudicating any concerns Colleges or members of the University might have about any allegations of impropriety in enacting or tampering with Special Ordinances. There is a separate additional provision contained in the proposed New Statute A, III, 6, to ensure that Special Ordinances affecting the Colleges cannot be changed without College consent.

The version of Statute G before the Regent House currently contains an unchanged long form of Statute G, II, and G, III. There are, at present, proposals out for consultation with the Colleges for a shortened form of these statutory provisions with some of them being moved to Special Ordinances. Depending upon the outcome of that consultation, Statute G, II, and G, III, may appear in a shorter form when the final version of these New Statutes is presented to the Regent House for formal approval.

The Special Ordinance procedure is one that is designed to enable the Regent House to take a greater direct control of its regular business, while leaving the fundamental governance and constitutional provisions of the University enshrined in the Statutes. There is absolutely no difference whatsoever between the internal processes that the University would be required to go through, whether it is endeavouring to enact or change a Statute, or a Special Ordinance. The only difference is that in the case of statutory changes the University does not have full autonomy, in that outside approval is required, whereas the Regent House has full and sovereign control over Special Ordinances and, I might add, over Ordinances as now. No change is proposed at all over the procedure to change Ordinances which, depending on the circumstances, might still require a Report, a Discussion, a ballot if called, and a Grace. Minor changes to Ordinances, again as now, might be changed by Notice and a Grace. Once these New Statutes and Special Ordinances are in place, the Regent House will have full statutory and autonomous authority to review the current morass of Ordinances and Regulations to determine whether the University’s current subordinate legislation is in the right category.

Diligent readers of the New Statutes will have noticed that while there is a firm statement of the principle of academic freedom in New Statute C, I, 3, taken from the old Statute U, the details of the Model Statute introduced by the University Commissioners and formerly contained in Statute U, are still part of the University’s legislation, but have been moved to the equivalent of Special Ordinances. Consultation with the Privy Council over the summer has led the University to believe that despite the existence of a Ministerial Statement and advice to Higher Education Institutions to the contrary issued in 2006, by Minister Bill Rammell, the Privy Council will not raise objections to the University of Cambridge, any more than it has to other institutions that have recently enacted changes to the form of the Model Statute, removing those parts of the current Statute U that we are proposing to move, and placing them in the equivalent of Special Ordinances.

I conclude by drawing the Regent House’s attention to the set of Draft Special Ordinances, derived from the text of the current Statutes, which have also been published to the University, alongside these New Statutes, so that members of the Regent House can see and derive reassurance that this technical review has been precisely that. The totality of the University’s current statutory provisions, unaltered save for those matters which it is proposed to change, or repeal, or move to Ordinance, for the reasons already stated, and which have been fully identified in the footnotes, are now put before the Regent House, either in statutory form or in the form of Special Ordinances. I commend this work to the Regent House for approval in principle by Grace in due course.

Professor G. R. Evans (Emeritus Professor of Medieval Theology and Intellectual History):

Mr Deputy Vice-Chancellor, a monumental and long-needed task has been attempted here, and one must warmly thank those who have undertaken it. However, I would like to put on record some notes of caution at the borderline between what is ‘technical’ and what is ‘substantive’.

The first is that ‘approval in principle’ has sometimes proved a dangerous way to proceed in a process formerly, and formally, requiring Regent House assent. The recent history of the University is littered with examples of the Regent House agreeing to hand over powers to the General Board or some other body to make further amendments as it sees fit.

In this case, the next stages and their details will require Regent House approval, but may those decisions not be fettered at least in part by an all-purpose general approval at this stage? And what could happen after that? The principal function of the Regent House as the University’s governing body remains its legislative function, but for how long? The argument put is one of convenience, but it hints at the possibility of future requests for delegation by the Regent House of powers to create legislation:

if the Statutes are to be put into a form which does not require a change to a Statute whenever circumstances within the University or national law call for new provisions or changes to existing ones, then current procedures need to be modified.

A first ‘principle’ adumbrated is:

that the Statutes can be shortened, simplified, and much improved by including within them only the fundamental constitutional and governance provisions of the University, and moving out of them to other measures those provisions that contain the detail.

I have said before that I think the introduction of Special Ordinances is unwise,1 not least because it promises to downgrade certain Statutes:

The proposed Special Ordinances contain material that has been removed from the existing Statutes.

Oxford’s distinction between ‘Queen in Council’ and other Statutes keeps all at Statute level.

The Report appears to distinguish levels of ‘bindingness’. Statutes, it says,

are subject to approval by the Privy Council after due internal process, and are absolutely binding unless inconsistent with national, European or International Law.

Special ordinances ‘must be consistent with the provisions of the Statutes which, in cases of conflict, override them’. Their bindingness is not mentioned.

What happened in the summer seems to suggest that there is ground for this disquiet. Proposed changes to Statute U were the subject of fierce debate a year or two ago. Speakers in Discussions rightly feared that academic freedom and security in office might be at risk. But this summer a change to Statute U (relating to the grievance procedure and demoting it) was agreed to by the Regent House in a haze of summer absence and absentmindedness.

I tried to raise a concern about this, and asked the Vice-Chancellor to withdraw the Grace pending this Discussion and the Regent House making its decision about the overarching principle. The Grace was not withdrawn.

A Government policy-change was published in February 2006, which encouraged HEIs to move certain of their domestic legislation from Statute to regulation or ordinance so that it would no longer require Privy Council approval.2 A note by Pinsents, one of the main firms of solicitors acting for universities, includes the view that some Statutes could not be demoted, including the Model Statute, of which Statute U is Cambridge’s version, and which is required under Education Reform Act 1988, s. 202:

The letter to heads of HEIs gives a more detailed list of the key principles of public interest over which Privy Council control should be retained. This list includes the Model Statute.3

In the Preamble to the proposed ‘technical’ changes to the Cambridge Statutes and Ordinances we are discussing is the statement:

Reducing the Statutes to an enabling framework and a set of constitutional and governance principles is fully in line with the current Privy Council advice.

I wrote to the Privy Council to ask what its ‘current advice’ is. The reply reads as follows:

To my knowledge, there has been no further general advice on higher education deregulation since the 2006 ministerial statement, and Mr Rammell’s subsequent letter to HEI heads on the same subject (copy attached).

Although we were aware that Cambridge was planning to make changes to its Statutes, we are unable to comment on the substance of those changes, as the amendments have not been submitted to this office for the Privy Council’s informal consideration.

I will forward your comments to the Privy Council’s Advisors on higher education matters for their information.

I am aware that there is a fine but important distinction between formally consulting the Privy Council ‘informally’, and ‘having a word’ even more informally, but I struggle a little to reconcile this letter with the statement in this Report that its content is ‘fully in line with the current Privy Council advice’. I am glad to hear today that discussion is now underway.

The Rammell letter, dated 6 February 2006, is quite clear on the key points. First, it gives the reason for allowing universities to make certain changes to their domestic legislation without seeking Privy Council approval as relieving the Privy Council of an ‘unnecessary burden’. In other words, it forms part of the then Government’s ‘lighter regulation’ mission, and it expressly relates to Paragraph 7.10 of the 2003 White Paper on The Future of Higher Education. The purpose was not to make things more convenient for universities, but to take a load from the Privy Council. Secondly, it expressly includes ‘the Model Statute’ in the list of areas where ‘Privy Council Control should be retained’, that is where Privy Council approval for change continues to be required.

I will not publish, by reading it here, the ensuing correspondence with authors of the present Report and others, but the Grace was not withdrawn, and the move of part of Statute U from Statute to Ordinance went through at 4 p.m. on 27 July,4 containing the following:

The University shall establish by Ordinance, and may vary from time to time, procedures for the redress of any grievance by a University officer concerning her or his appointment or employment.

The Privy Council will of course make its own decision as to whether to approve this ahead of the resolution of the general question whether demotion of parts of Statute U to the level of Ordinance, even Special Ordinance, is allowable.

But I hope members of the Regent House will scrutinize with care the proposals now to move the whole of Statute U to an airlock from which it can subsequently be ejected from the Statutes into the quite different atmosphere in which the more easily adjustable Ordinances breathe, and where the Regent House may find itself being asked to hand over to the General Board the right to make further changes, as happened with the Senior Academic Promotions procedure some years ago. This is to be effected by putting it into:

a Schedule to New Statute C, which may be varied by means of a Report and Grace if thought appropriate. Certain matters in Statute U relating to Discipline have been included elsewhere, as shown in the Appendices to this Report.

Another device is proposed, as a transitional provision moving Statutes down the legislative ladder. This is the ‘Temporary Statute’:

(b) When (a) is no longer needed, this Section may be repealed by Grace.5

Finally, let me flag up one or two other particular concerns. Statute A, VIII, on the Conduct of Business is proposed for demotion to Special Ordinance. The Regent House will not need reminding how important are these provisions to the functioning of academic democracy.

Another candidate for demotion to Special Ordinance is Statute K, 9. This is the important protection about delegation of powers. The Regent House has approved a change which now allows powers to be delegated to individuals as well as committees. A further easing of the rules about delegation seems unwise.

Then there is a reference to the Universities Committee of the Privy Council. This was set up under the Universities of Oxford and Cambridge Act 1877, s.44.6 It is puzzling to see it suggested that:

In those few cases where a College or any member of the Regent House may feel that the University has acted ultra vires or in any other way illegally in promulgating a change that formerly might have resulted in a petition to the Universities Committee of the Privy Council,

internal remedies can now replace that ultimate avenue of recourse.


Mr D. J. Goode (Faculty of Divinity and Wolfson College):

Mr Deputy Vice-Chancellor, I speak today as Vice-President of Cambridge University and College Union.

Changes to Statutes require the approval of both the Regent House and the Privy Council. If, in the process of reducing Statutes to ‘an enabling framework and a set of constitutional and governance principles’, employment protections which today require the additional safeguard of Privy Council approval to change, are tomorrow moved into Special Ordinances which no longer require that additional safeguard, we will inevitably be less well protected tomorrow than we are today.

That, regardless of whether it is proposed for the best of reasons, or the worst, or something in between, goes against a fundamental principle of trades unionism, which is always to strengthen protection of employment, never to weaken it. I urge the Council to keep this principle in mind as it prepares its Second Report on the matter.

Professor C. F. Forsyth (Faculty of Law):

Mr Deputy Vice-Chancellor, I speak this afternoon as a member of the Technical Advisory Group, which has been working for the past two years on this revision of the Statutes. I have the daunting brief of attempting to ‘wrap up’ this afternoon’s Discussion – perhaps not quite as daunting as I thought it would be at the beginning.

The point that I hope that the Regent House will not forget – particularly when the temperature of the debate rises – is that this is a technical review, and the Technical Advisory Group has not been concerned in any way at all with substantive changes to the Statutes. There are many substantive changes that might be thought desirable, and are thought desirable, by the Group or by the Regent House, but we have not been concerned with those at all. We have been trying to preserve the substance of the old Statutes – just giving them a new garb, so that the sinews of our government are clear and can be readily understood. (I am not sure that anyone sees this revision as an attempt, surreptitiously, to undermine the University’s autonomy or democracy, but there is absolutely no objective basis for that belief.)

Of course, there is one clear substantive change recommended that has been mentioned by the previous speakers, and that is the introduction of Special Ordinances, as explained earlier by Professor Yates. There is no doubt that the removal of the need to seek the Privy Council’s approval for changes to matters now included in the Special Ordinances will make it much easier for the Regent House to make changes to these matters. But such changes will not be – and will not be able to be – precipitate; there will have to be a Report, a Discussion, and a Grace and, if called, a ballot. And there will, of course, be recourse to the Commissary to test questions of legality, etc. There is no prospect of fundamental or important changes being slipped past a Regent House that is unaware of what is going on.

Views may differ on whether a particular matter currently in the Statutes should be replaced by a Special Ordinance, or whether it should remain in the Statutes. The Technical Advisory Group will consider carefully the views expressed this afternoon, particularly what Professor Evans had to say about A, VIII, and the Conduct of Business, and K, 9, on delegation, to see whether we have got it wrong; and perhaps those matters should be retained within the Statutes.

But I will add just a word here about the vexed question of whether the bulk of the current Statute U (redundancy and discipline, etc. of academic staff) should be placed in effect in the category of Special Ordinance. The protection of academic freedom is obviously a vital matter, and it is understandable that the Regent House should be concerned to ensure that it is adequately protected. But the overarching principle of academic freedom remains in the Statutes, not in the Special Ordinances, and is in exactly the same words that currently appear in Statute U. And that provision requires that academic freedom should be one of the ‘guiding principles’ assisting the construction of the relevant Special Ordinance. Any change to the existing provisions of Statute U, which remain in force, will be subject to that principle, and will in any event require a Report and a Grace. These are substantial safeguards, identical to those presently in place, save for the requirement of the consent of the Privy Council.

I think I must add just one or two words about Professor Evans’s fear that there is somehow adumbrated in these proposals some delegation of legislative power to the General Board or other bodies about the University. In these proposals as they stand, there is no delegation of legislative power away from the Regent House. The Regent House remains the governing body and the main spring of legislation within the University. And there is nothing, I believe, in these proposals properly understood that adumbrates a change in that position. If there were, I wouldn’t be working with the Technical Advisory Group.

Now to the future. A Grace will be laid before the Regent House later this term, but it will only seek in principle approval of this Report. Thus, there will be ample opportunity in the future for changes to be made to the New Statutes before they are placed before the Regent House for final approval. The Technical Advisory Group will, of course, carefully consider all the remarks that have been made at this Discussion and other representations that may be made to them, and will recommend appropriate changes to the proposed New Statutes. But in principle approval by the Regent House this term will allow this project to proceed. The New Statutes, clear and consistent, will emerge, and our government will be much improved. Much more remains to be done. The Ordinances will have to be revised; there will be consequential changes to be made to the Ordinances and other matters to be considered. But the first step is the approval of this Report.