Visitor to rule on v-c's power

July 21, 1995

Norman Dombey, in dispute with his vice chancellor, asks whether the ancient office of visitor can copewith today's conflicts.

The University College of Sussex Ltd. was established as a limited company on May 20 1959. John Fulton (later Lord Fulton) was appointed as its first principal, the first professors were soon recruited including Asa (now Lord) Briggs to take charge of the school of social sciences, David Daiches to take charge of the school of English studies and Roger Blin-Stoyle to take charge of my own subject physics in the school of physical sciences. The limited company was transformed into the present University of Sussex by Royal Charter in August 1961 and the first 50 students arrived in October 1961. The charter and the accompanying statutes provided the authority for the university to grant degrees and academic titles and laid out the constitutional basis for the university. The principal became the vice chancellor.

Nowadays, with our attention focussed on Higher Education Funding Council for England quality audits and the pending research assessment exercise, it is worth considering for a moment what sort of university is envisaged by its charter and statutes. At Sussex there is a senate which is "responsible for the academic work of the university, both in teaching and in research, and for the regulation of the teaching and superintendence of the education and discipline of the students of the university" to quote Sussex's charter. Other old universities have a senate with similar functions (the new universities were set up under the Education Acts 1988 and 1992 and have different constitutional arrangements). The membership and terms of office of senate is laid down in the statutes, buttressed by ordinances and regulations.

Statutes may be changed only with the permission of the Privy Council, which in modern language acts as a regulator of the university sector (nowadays, no doubt, we should refer to it as the Office for Universities or OffUn); to change an ordinance requires approval from council (the university's overall governing body) while senate can set and change its own regulations. As it is unrealistic for all the academic business of a university to be carried out by a large committee (at Sussex it has about 80 members) senate delegates most of its business to smaller committees and to faculties or schools of study.

The overall governing body at Sussex under the charter is the council of the university which is responsible for all contracts including the conditions of employment of both academic and non-academic staff. Council, however, has no role in the setting of examinations and the approval of degree results, while academic appointments, apart from the vice chancellor, can only be made by council after recommendation by senate. The charter thus envisages the university as an academic and collegiate self-governing institution, with academic decisions made by academics in schools or faculties and confirmed by senate or committees of senate.

The vice chancellor at Sussex is the chairman of senate and is also the chief executive officer of the university. The schools are now cost centres; their deans have budget and general managerial responsibilities as well as academic responsibilities.

What happens when the traditional structures laid out in the charter and statutes clash with these new managerial and financial structures? I am now involved in a dispute with my vice chancellor Gordon Conway which could throw some light on this question. In principle, it should determine how far the powers of vice chancellors are bound by the university constitution as laid down in its charter and statutes.

I was elected a member of the Sussex senate last June to serve from August 1 1994 to July 31 1997. The regulations for election to senate state "The faculty members of the senate . . . shall hold office for periods of three years from August 1 in the year of their election". Yet in April this year I received a letter from the deputy registrar saying that the vice chancellor had terminated my membership of senate. I queried that. I did not think that it was the vice chancellor's job to go around removing elected members of senate from office.

After three letters from me and a further three from my solicitors, the vice chancellor has not budged. He claims that since the physics and astronomy subject group will be part of a new school next year, he is entitled to modify the arrangements for membership of senate. And he is modifying the regulations for election to senate on senate's behalf. But neither he nor the deputy registrar seem to understand an elementary point of law: it is permissible to change the regulations for future elections, but it is not permissible to change the regulations for past elections. That amounts to retrospective legislation, and while Parliament may still retain the right to pass retrospective legislation, neither the vice chancellor, nor senate, nor any other university body has that power.

The law concerning university disputes in England and Wales is strange and goes back to the 17th century. I cannot go to the High Court and demand that it instruct the vice chancellor to behave properly. Under the university charter I have to petition the visitor of the university, who for Sussex (and most but not all old universities) is the Queen acting through the Lord President of the (Privy) Council. Although the office of visitor is antiquated, the growth of aggressive management in universities has revived the visitorial function. At Swansea, in particular, the retired judge Sir Michael Davies acted on behalf of the visitor to settle the long-running dispute in the philosophy department there (for details, see The Davies Report: the "Great Battle" in Swansea, Thoemmes, 1994).

I must thank my fellow Liberal Democrat and eminent human rights lawyer Lord Lester QC from whom I have sought advice about matters visitorial, although any errors are mine alone. It is established in English law (but not it seems in Scotland) that where a university does have a visitor, then the visitor has a general jurisdiction over all matters of dispute relating to the charter and statutes and to the internal affairs of the university.

Furthermore there is no appeal to the courts against the decision of the visitor since the visitor has a sole and exclusive jurisdiction over matters within his jurisdiction (although the Education Act 1988 removed this exclusive jurisdiction in cases of dismissal of academic staff). The courts will, however, intervene to ensure that the visitor observes the principles of natural justice in reaching his decision on a complaint. In a decision in 1987 the House of Lords established that a visitor could award damages if they were appropriate.

My own petition to the visitor was lodged last month. It asks for an urgent declaration that I am a member of senate until July 31 1997 and that I can stand for membership of the university council for 1995/96. We will soon see what the visitor decides and in particular find out whether our regulations at Sussex are enforceable where the vice chancellor is concerned.

Norman Dombey is professor of theoretical physics at the University of Sussex. He is a former specialist advisor to the Commons Select Committee on Energy and is an advisor to the Liberal Democrat party on security policy.

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