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No 6313

Wednesday 19 June 2013

Vol cxliii No 36

pp. 646–656

Report of Discussion

Tuesday, 11 June 2013

A Discussion was held in the Council Room. Pro-Vice-Chancellor Dr Jennifer Barnes was presiding, with the Registrary, the Junior Proctor, a Deputy Proctor, and eight other persons present.

The following Reports were discussed:

Report of the Council, dated 20 May 2013, on the financial position and budget of the University, recommending allocations from the Chest for 2013–14 (Reporter, 6308, 2012–13, p. 555).

No remarks were made on this Report.

Report of the Council, dated 28 May 2013, on the Technical Review of the Statutes (Reporter, 6309, 2012–13, p. 580).

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

Madam Deputy Vice-Chancellor, this has been a long road and I hope that we are nearing the end of it. Last October I commented in Discussion on the Report by the Council published on 28 June 2012 which recommended that the Regent House approve in principle the new Statutes and Special Ordinances that had been drawn up by the Technical Advisory Group which I then chaired and continue to chair, though I hope not for very much longer. The Regent House did so approve in principle and I do not wish to waste Regents’ time by rehearsing again the points I made then.

Since the last time these Statutes and Special Ordinances came before the Regent House the Technical Advisory Group – most ably assisted by Helen Jackson, Joint Head of the University’s Legal Services without whose help I doubt this material would be before you today – has studied the comments made in last October’s Discussion, as well as some helpful observations made by others subsequently, has had continued informal discussions with the Office of the Clerk of the Privy Council, and has undertaken several further readings and checks of the text. It is the view of the Council that the text of the Statutes as now presented to the Regent House is in a fit and proper state to be forwarded to Her Majesty in Council for approval.

There have been some changes since the Regent House approved the text in principle, made in the light of the various discussions and representations to which I have earlier referred. Those changes are, I trust, clearly set out in Council’s Report and are equally clearly marked in Appendix I, which contains the complete new text of the proposed Statutes, together with the Special Ordinances contained in Appendix II. Work is virtually complete now on the Ordinances that it will be necessary to bring forward to the Regent House for approval consequent upon the changes made in these new Statutes and Special Ordinances and it is anticipated that this will be done in short order, once the Statutes are on their way to the Privy Council, always assuming, of course, that they are approved in this final version by the Regent House.

I wish to conclude with four points. First, these new Statutes and Special Ordinances contain technical changes only, not substantive ones. There are no doubt several Regents who may wish to see some substantive changes made to our Statutes. Some of these changes may be made more easily in the future as much of the detail that does not touch on the University’s basic principles of governance is now to be found in the Special Ordinances, which may be modified or repealed without recourse to the Privy Council.

Secondly, those Special Ordinances are also before you today for approval so that Regents can see precisely how the provisions of the former Statutes have been incorporated into University law and also so that those Special Ordinances are ready to come into force at the time the new Statutes come into force.

Thirdly, our informal discussions with the Office of the Clerk to the Privy Council have led us to believe that formal approval by Her Majesty in Council is now likely to be given without further change being required. I appreciate that doubt was cast on that proposition by some remarks made (though not by me) in our last Discussion when approval was sought in principle, but I can assure Regents that every effort has been made to ensure that the text has been thoroughly, albeit informally, reviewed by lawyers acting on behalf of the Privy Council, before this version is presented to the Regent House. Council is not aware of any objection from that quarter.

Fourthly, Regents may recall that at the same time these Statutes were presented to the Regent House for approval in principle a consultation was taking place with the Colleges to determine whether College approval would be given to shortening considerably what are now Statutes G.II and G.III by placing much of their content into Special Ordinances as had been done with most other Chapters of the Statutes. However, four Colleges expressed themselves to be against that proposal and since the consent of all Colleges was required it was decided to leave those provisions as currently drafted and attempt no such rationalization.

I therefore commend these new Statutes and Special Ordinances to the Regent House in the hope and expectation that the two recommendations set out at the conclusion of the Council’s Report will be approved.

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

Deputy Vice-Chancellor, since 1570 the opening words of the University’s Statutes have been

Deum timeto: regem honorato: virtutem colito: disciplinis bonis operam dato

They do not appear in the current draft and I am concerned at their omission, no doubt inadvertent. Fear God, honour the King, cultivate virtue, work hard at good teaching. The first two clauses are from 1 Peter 2:17, the last two are as apt today as they were when the whole was given us by Elizabeth I on 25 September 1570 under the Great Seal of England.

On each renewal of the Statutes since then care has been taken to retain these words as the opening Statute. Twice during the reign of Queen Victoria they headed new Statutes confirmed by order of Her Majesty in Council: first on 13 July 1858, and again on 27 February 1882, this time heading new Statutes passed on 19 January 1881 by the University Commissioners under the 1877 Act.

Coming now to the Statutes currently in force, these words were confirmed in their rightful place by His Majesty King George V in Council on 1 June 1926, the complete new Statutes having been passed on 14 January 1926 by the University Commissioners under the 1923 Act. How then, we may ask, have they slipped over the years from their proper position to the verso of the page carrying the Preface, which is definitely not a Statute? They now appear as a lonely motto rather than as a royal injunction for an opening Statute.

The explanation is that a purely editorial rearrangement of the front matter of the Statutes took place in the printing of 1949, when the heading preceding Statute A was removed. It had said firmly ‘STATUTES OF THE UNIVERSITY OF CAMBRIDGE’ followed by Deum timeto, etc., exactly as the University Commissioners had indicated. Please will the Council restore this 1926 heading to the draft Statutes before the Regent House authorizes their submission to Her Majesty in Council. Her Majesty might remark on its omission.

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

Deputy Vice-Chancellor, Cambridge’s current ‘technical reform’ of its Statutes has been a long time in the making but the final proposals are here for Discussion today and unless a postal ballot is called they are likely to be Graced very soon and sent off to the Privy Council for its approval. In reality, the defining moment may already have passed, for the Regent House allowed the proposals to go forward ‘in principle’ in November 2012, without challenge.1 This tidying up is an enormous achievement, and for the most part those who have done this difficult piece of work are to be congratulated and heartily thanked.

The current ‘post-Wass’ Statutes were made only two decades ago but they have been accumulating a certain untidiness, which was the primary prompter for the present exercise. Calls for tidying up were made by individuals, including me, and in successive Annual Reports of the elected Board of Scrutiny. The following examples of the Board’s recommendations tell the story:

11th Report: The University should embark on a thorough updating of the Ordinances to ensure that they fully reflect Graces that have been approved.2

13th Report: A Syndicate should be established as soon as possible to undertake a revision of Statutes and Ordinances.3

14th Report: The Board recommends that whatever the outcome of the further debates and discussions on the University’s review of its disciplinary, dismissal and grievance procedures, any binding rules and safeguards arising from those discussions which are not to be contained in Statutes must be promulgated in Ordinances.4

The Board repeats its recommendation that the criteria for senior academic promotion be given legislative force through embodiment in Ordinance.5

The Board recommends a clarification of the ‘general policy’ on publishing. It would be helpful if the nature and status of ‘discussion documents’, ‘green papers’, ‘white papers’, and the like could be defined, as well as at what stage of a process they are appropriately issued. It is also recommended that the Council and the General Board review the ways that they communicate with the Regent House generally with a view to giving greater clarity as to what kind of document might be published and when.6

15th Report: The Board recommends:

(i) That the criteria for Senior Academic Promotions be established by Ordinance and not left vulnerable to administrative change.7

It is the type of danger exemplified by that last warning that has prompted some of my remarks on this ‘technical’ reform. There has been a series of examples over the last few years of the Regent House being invited to delegate permanently to the General Board (for example senior academic promotions procedure) or an officer (for instance, procurement) something which formerly it would have had to Grace. In the case of the senior academic promotions procedure a Notice of July last year included a reminder that:

The procedure was subject to the approval of the Regent House which, however, authorized the General Board to make changes from time to time in the interests of the efficient management of the process.8

I would therefore like to raise one more time the question whether the creation of Special Ordinances should be seen as going beyond the ‘technical’. It is proposed to create a new layer of legislation, the Special Ordinance, and to demote to that level some of the material at present in the Statutes. All Cambridge Statutes are Queen-in-Council Statutes so that will create something like the non-Queen-in-Council Statutes Oxford has, but at a lower level of the legislative hierarchy and psychologically easier to change. That does not of course immediately mean that the Regent House is delegating power to amend this legislation. But it would be a simple step further for it to be asked to do so. Recent history suggests it is likely to agree without seeing where that agreement may lead.

The proposals about Special Ordinances include the moving of the employment protections needed when old-fashioned tenure was removed, protections created under Education Reform Act 1988 s.202 for academic and academic-related staff (Statute U), to a Schedule ready to be moved down to Special Ordinance level. The fear is of course that managerial decision may ultimately come to replace Regent House approval here too, as the Board of Scrutiny feared and has happened in other areas. The Discussion which ran for two Tuesdays on 24 November and 1 December 2009 is worth a reread to refresh memories about what is perceived to be at stake here.9

Of strong positive value is the bringing together coherently in one place (proposed new Statute A, IX), a number of provisions for review.10 One of these (currently Statute K, 5) dates from the 1926 Statutes and allows a ‘representation’ to be made to the Vice-Chancellor by any person, within thirty days of alleged ‘failure or omission to act as required by Statute, Ordinance, or Order’. Appeal used to be to the Chancellor but now the Vice-Chancellor’s decision may be appealed to the Commissary, a historic officer who has recently acquired extensive powers in the Cambridge constitution.

New Statute A, IX, 2 (present Statute K, 2) is the Cambridge provision for interpretation of the Statutes. This derives from the University of Cambridge Act 1856, reworded in the Oxford and Cambridge Act 1877 and still in force as a schedule to the Oxford and Cambridge Act 1923. No equivalent clause was created for Oxford in 1854. This may be because it was still a subject of debate how far the Laudian statutes for Oxford could ever be changed; they contained provision for explanatio of any dubitatio (Title X, s.II).

Next in Cambridge’s new Statute A, IX as proposed (sections 3–9) comes provision for ‘review by the Commissary’ (currently Statutes D, V, 7–14).11 He has, on the application of a member of the University, ‘power to review, amend, or quash the decision of any University authority’ broadly according to the principles which govern judicial review. That is quite a recent provision but it has begun to be used.

The summer will show whether this will all now go through more or less on the nod. Cambridge may come to regret allowing the dilution of the powers of its legislative governing body, already in train after a number of occasions when the Regent House has handed over some of its powers. The implication of such changes in eroding the sovereignty of the Regent House can be far greater than is realized when they are made.