HEARING DATES 20, 21, 23 June 1989
University - Academic staff - Dismissal - Jurisdiction - Jurisdiction of court - Dispute between university and members of academic staff concerning proposals to dismiss staff for redundancy - Statutes of university making no provision for dismissal for redundancy - Lecturers seeking to restrain university from proceeding with proposals - Whether court having jurisdiction to hear internal university dispute - Whether jurisdiction of visitor of university over internal disputes ousted in respect of employment disputes - Education Reform Act 1988, s 206(1)(2).
HEADNOTE
The plaintiffs were employed as lecturers at the defendant university and were among members of academic staff which the university was proposing to dismiss on the grounds of redundancy. The plaintiffs objected to the university's proposals for compulsory redundancy, claiming that they were in breach of section XXV of the university statutes, which provided that academic staff could only be dismissed for good cause and made no provision for dismissal for redundancy. The plaintiffs sought an injunction restraining the university from proceeding with its compulsory redundancy programme. The university contended that the court had no jurisdiction to hear the dispute because it was a dispute between itself and members of its academic staff concerning the correct application of its internal laws, namely section XXV of its statutes, and as such could only be heard and determined by the visitor of the university. The plaintiffs contended (i) that, although as a general rule the visitor had jurisdiction over all internal university disputes, s 206(1) of the Education Reform Act 1988 excluded the visitor's jurisdiction in respect of any employment dispute between a university and members of its academic staff and (ii) that, although s 206(2) provided that the disqualification of the visitor would not apply 'in relation to any dispute... referred to the visitor' before the 'relevant date', being the date on which the university commissioners amended the university's statutes to include new procedures made by them under s 203 of the 1988 Act for the hearing and determination of appeals by members of the academic staff who had been dismissed or were under notice of dismissal, the 'relevant date' had not arrived because the statutes had not been amended and no application had been made to the visitor and in the meantime the court retained jurisdiction to hear the dispute. The judge struck out the plaintiffs' action for want of jurisdiction, holding that the effect of sub-ss (1) and (2) of s 206, when read together, was that prior to the relevant date the visitor retained exclusive jurisdiction over all internal university disputes but once the new appeal procedures had been incorporated into the university's statutes those procedures would apply to all disputes other than those referred to the visitor before that date. The plaintiffs appealed.
Held
As a general rule, under the common law all disputes between members of the academic staff and their university fell within the exclusive jurisdiction of the visitor. However (Dillon LJ dissenting), on its true construction s 206(1) of the 1988 Act, being expressed in unqualified terms, had the effect of excluding the visitor's former jurisdiction in respect of employment disputes between a university and members of its academic staff. It followed, therefore, that since the court always had jurisdiction except to the extent that statute or a rule of the common law excluded it, the effect of s 206(1) was to restore the court's jurisdiction in such matters, while s 206(2) had the effect of preserving the visitor's jurisdiction in such disputes provided that they were referred to him before the relevant date but, unless and until such a reference was made and accepted by the visitor, the academic staff were at liberty to bring and continue proceedings in respect of such disputes in the courts. Although such a construction of s 206(1) and (2) might lead to the inconvenient and perhaps costly result that the jurisdiction of the court, once invoked, would be ousted if one of the parties to the dispute subsequently made a successful reference to the visitor, that result, however inconvenient, was irrelevant because the wording of the two subsections was clear, and since it did not lead to any absurdity the court was bound to give the statutory provisions due effect. It followed that since the new appeal procedures had not been incorporated into the university's statutes and the relevant date had not arrived, the court had jurisdiction to hear the plaintiffs' dispute with the university. The plaintiffs' appeal would therefore be allowed, subject to an undertaking by the university that if it referred the dispute to the visitor no redundancy notices would be issued for a further three months. The court would not grant the relief sought by the plaintiffs, but they would be at liberty to apply again for an injunction if the university failed to refer the dispute to the visitor within seven days.
Thomas v University of Bradford [1987] 1 All ER 834 considered.
NOTES
For the visitor's power to hear university disputes and the exclusion of the
visitor's jurisdiction, see 15 Halsbury's Laws (4th edn) paras 260-261, and for
cases on the subject, see 19 Digest (Reissue) 570-571, 4262-4265.
For the nature of visitatorial powers, and for a visitor's powers and
jurisdiction, see 5 Halsbury's Laws (4th edn) paras 872-873, 879-885, and for
cases on the subject, see 8(1) Digest (2nd reissue) 641-642, 646-647,
5112-5124, 5172-5184.
For the Education Reform Act 1988, s 206, see 15 Halsbury's Statutes (4th edn)
(1990 reissue) 649.
CASES REFERRED TO
Casson v University of Aston in Birmingham [1983] 1 All ER 88, Visitor.
INTRODUCTION
Application for leave to appeal and appeal
The plaintiffs, Charles George Pearce, Barry J Simpson and Michael Stanley
Wrenn, applied for leave to appeal from the decision of Morland J made on 19
June 1989 whereby he refused an application by the plaintiffs to restrain the
defendants, the University of Aston in Birmingham and its vice-chancellor, Sir
Frederick Crawford, from, inter alia, terminating the employment or posts of any
of the university's academic staff, including the plaintiffs, otherwise than for
good cause, as defined in section XXV of the university's statutes, and ordered
the action to be struck out for want of jurisdiction. Because of the urgency of
the matter the court heard full argument on the application, treating it as
argument on the appeal. The facts are set out in the judgment of Dillon LJ.
COUNSEL
Jeffrey Burke QC and Roy Lemon for the plaintiffs. PANEL: DILLON, NOURSE AND RUSSELL LJJ
JUDGMENT READ Cur adv vult. 23rd June 1989.
JUDGMENT BY DILLON LJ
This is an application by the three plaintiffs in the action, Mr
Pearce, Mr Simpson and Mr Wrenn, for leave to appeal against an order made by
Morland J in chambers in Birmingham on Monday, 19 June 1989 whereby (a) he
refused the plaintiffs certain interlocutory injunctions they sought against the
defendants, the University of Aston and the vice-chancellor of that university,
and (b) on a cross-application by the defendants he struck out the action with
costs on the ground that he had no jurisdiction to entertain it.
The plaintiffs need leave to appeal against the order because it involved the
striking out of the action, and not merely the refusal of the injunctions. In
view of the supposed urgency of the matter we heard on Tuesday, 20 June, so far
as time permitted, full argument, as on the appeal, on the application for leave
to appeal. In the upshot, as one of the issues raised is of some general legal
importance under the Education Reform Act 1988 and the whole matter is of
considerable political importance, we grant leave to appeal and I proceed to
give my judgment on the appeal.
The first defendant, the University of Aston (the university), was
incorporated by royal charter dated 22 April 1967. The plaintiffs are
university lecturers who are members of the academic staff of the university.
Two of them are lecturers in the Department of Physics who have held their posts
since the incorporation of the university. The third is a lecturer in another
department, who has held his present post since September 1977. The plaintiffs'
tenure of office is governed by the statutes of the university, which are set
out in a schedule to the charter, and in particular by section XXV of the
statutes.
Section XXV provides in para (1) that members of the academic staff and
certain other specified members of the staff may be removed by the council and
senate sitting together in joint session for 'good cause'. 'Good cause' is
defined in para (1)(a) to (d ). It covers a range of matters such as conviction
of a criminal offence and physical or mental incapacity, which I need not set
out because it is common ground that there is no suggestion that there is any
good cause for the removal of any of the plaintiffs from office. Section XXV,
para 2 then provides categorically that no member of the staff specified in para
(1), and that includes the plaintiffs, shall be removed from office save upon
the grounds specified in para (1), i.e. for good cause as there defined.
The univerisity is now considering proposals to remove from office on the
grounds of redundancy a number of the members of the academic staff of the
university employed in the departments in which the plaintiffs are employed, and
certain other departments. Though precise numbers and names have not been
announced, the probability seems to be that the university would wish to dismiss
for redundancy 12, including the three plaintiffs, out of 23 members of the
staff in the relevant departments. A meeting of the university's council in
relation to the process of dismissing members of the permanent academic staff
for redundancy has been convened for 28 June 1989.
The plaintiffs, who are backed by their union, the Association of University
Teachers, object that for them or any members of the academic staff in their
position to be dismissed for redundancy would be ultra vires the university and
illegal, because it is in flagrant breach of section XXV(2) of the university's
statutes, and they seek an injunction to restrain the university from proceeding
further. The university virtually accepts that it would be acting in breach of
its statutes if it dismissed any of the plaintiffs for redundancy. It was
indeed somewhat tentatively submitted by Mr Treacy, for the university, that
there is to be implied into section XXV - presumably as an extra sub-para (e) in
the definition of 'good cause' in para (1) of the section, or possibly as an
overriding power - a power to remove members of the staff specified in para (1)
for 'managerial reasons which seem objectively reasonable'. Such a submission I
personally, if that were relevant, would find wholly unacceptable.
The truth would appear to be that section XXV (which was incidentally
confirmed in the Conditions of Service of Academic (Teaching) Staff approved by
the council of the university in January 1968) was adopted in the light of the
importance attached at that time to academic independence and the consequent
need for security of tenure. It is easy to remember how academic staff had been
treated by the authorities in Nazi Germany and other totalitarian states. But
in the changed political climate engendered by the present government and under
the pressures of the government's financial policies in relation to the
universities, priorities have changed and the fashionable watch-cries now are
all for 'economy' and 'managerial interests'. In the pursuit of 'managerial
interests' the old priorities, and the old memories and fears are forgotten.
In the 1988 Act Parliament worked out a form of compromise. Provision was
made by s 203 for the newly constituted university commissioners to modify the
statutes of each university or other qualifying institution to secure that the
statutes included, inter alia, a provision enabling an appropriate body to
dismiss any member of the academic staff by reason of redundancy. But it was
expressly provided by s 204(2) that such modifications of the statutes should
not apply in relation to a person unless his appointment was made or his
contract of employment was entered into on or after 20 November 1987 or he was
promoted on or after that date. Modifications by the university commissioners
under s 203 of the statutes of this university to permit dismissal of members of
the academic staff by reason of redundancy could not, in view of their dates of
appointment, apply to these three plaintiffs. But that statutory provision is
ignored by the university in seeking to proceed with its programme or timetable
for compulsory redundancy of tenured staff.
With the meeting of the council convened for 28 June 1989 in mind, the
plaintiffs issued their writ and applied to the judge for interlocutory
injunctions. The defendants, however, take a point of jurisdiction. They say
that the dispute in this case is a dispute between members of the academic staff
and their university, and such a dispute can only be heard and decided by the
visitor of the university. The courts have no jurisdiction to hear it. It is
common ground that as there has been no appointment of a visitor under the terms
of the charter, the Crown, as the founder of the university, is the visitor of
the university and the visitatorial powers fall to be exercised by the Lord
Chancellor (or such other person as he may advise Her Majesty to nominate) on
behalf of the Crown. If it be right that the Lord Chancellor as visitor has
exclusive jurisdiction to decide this dispute, the university is entitled to
insist that the court has no jurisdiction it is immaterial to consider whether
the university has ulterior hopes, e g a hope that from the political aspects of
his office the Lord Chancellor may be more sympathetic to a case founded on
'managerial interests' than the courts might be.
There is now no doubt that as a general rule under the common law all disputes
between a member of the academic staff and his university fall within the
exclusive jurisdiction of the visitor: see Thomas v University of Bradford
[1987] 1 All ER 834, [1987] AC 795. It is submitted however for the plaintiffs
that that general rule does not apply in the present case, for one or other, or
both, of two separate reasons, viz (1) that there is no dispute under the
statutes as the university is proposing to act blatantly in breach of the
statutes and so even at common law the visitor has no jurisdiction and Thomas's
case is distinguishable and (2) that the position has been changed by provisions
in the 1988 Act which have had the effect of conferring jurisdiction on the
courts.
As to (1), Lord Griffiths in Thomas's case [1987] 1 All ER 834 at 842, [1987]
AC 795 at 815 cited as having long been accepted as authoritative a passage in
the argument of Sir Samuel Romilly in Ex p Kirkby Ravensworth Hospital (1808) 15
Ves 305 at 311, 33 ER 770 at 772:
The same passage from Sir Samuel's argument was cited by Hoffmann J in his
judgment in Hines v Birkbeck College [1985] 3 All ER 156 at 165, [1986] Ch 524
at 543 which Lord Griffiths cited with approval in Thomas's case [1987] 1 All ER
834 at 841, [1987] AC 795 at 819.
What the plaintiffs are trying to do in the present case is to apply the laws
in the university's statutes which are perfectly clear and that is firmly within
the jurisdiction of the visitor.
Again in Thomas's case [1987] 1 All ER 834 at 852, [1987] AC 795 at 828 Lord
Ackner said:
So here the only source of the obligation on which the plaintiffs rely for
their claim is the statutes of the university, under its charter, and
particularly section XXV.
It cannot be said that because the university's proposed conduct is so plainly
in breach of the statutes there is no dispute. There is a dispute: the
plaintiffs are calling on the university to obey its statutes and the university
is refusing to do so. There may be a further dispute in that the university may
say - to the visitor - that even if the university has no right under its statutes
to dismiss the plaintiffs for redundancy, the plaintiffs should be left to their
remedy in damages so that the university may thus be conceded the right to
dismiss for redundancy 'for managerial purposes'. I would thus reject the
plaintiffs' reason (1) for distinguishing Thomas's case.
I turn to reason (2). Section 203(1) of the 1988 Act requires the university
commissioners to make modifications to the statutes of each qualifying
institution to secure that those statutes contain provisions covering a number
of matters, set out in paras (a) to (e). Paragraph (d) covers provision
establishing procedures determined by the commissioners for hearing and
determining appeals by members of the academic staff who are dismissed or under
notice of dismissal.
Section 206 then contains interim provisions. Subsection (1) provides:
Subsection (2) then disapplies the disqualification of the visitor as
follows:
The 'relevant date' is the date in relation to each qualifying institution on
which the statutes of the institution include such provision as is mentioned in
s 203(1)(d ) and (e) of the Act. The date on which s 206 comes into force is
under s 236(1) the date of the passing of the Act, that is to say 29 July 1988.
It follows that the 'relevant date' must be later than the date when s 206
came into force, and it is common ground that the 'relevant date' has not yet
come.
The plain intention of s 206 was in my judgment that in respect of disputes
relating to members of the academic staff and concerning their appointment or
employment, or the termination of such appointment or employment, the visitor's
jurisdiction is to continue until the relevant date. That jurisdiction has
always been an exclusive jurisdiction and it must continue as an exclusive
jurisdiction until the relevant date.
It is said for the plaintiffs that that may be so once the dispute has been
referred to the visitor, but though that could be done by either side at any
time it has not been done yet. It is accordingly said that on an analysis of
sub-ss (1) and (2) of s 206 the Lord Chancellor as visitor has at present no
jurisdiction and so the court has jurisdiction because there is nothing to
exclude its jurisdiction. Consequently the action was properly started and at
the time of this hearing the court could grant injunctions until further order
as sought in the plaintiffs' summons, which would be binding on the university
even though a subsequent reference to the visitor, for instance by the
university, would deprive the court of jurisdiction to take any further step in
the action.
For my part I do not agree. The argument depends on too minute a linguistic
analysis of s 206. I cannot conceive that Parliament intended, without
specifically mentioning it, to confer a jurisdiction on the court which the
court has never had, and a jurisdiction, at that, which either party could bring
to an end at any moment by faxing a letter to the Lord Chancellor referring the
dispute to him as visitor on behalf of the Crown.
In my judgment, sub-ss (1) and (2) of s 206 have to be read together, and so
read their effect is that until the relevant date the visitor has exclusive
jurisdiction as before to hear and determine such disputes. After the relevant
date the new procedure determined by the commissioners will apply, unless there
has been a reference to the visitor before the relevant date. But the court has
no jurisdiction before or after the relevant date (save by way of judicial
review, which is not in question at this stage). For my part therefore, I agree
with the judgment of Morland J and with the order he made, and I would dismiss
this appeal. Nourse and Russell LJJ, however, take a different view.
There is a further matter which I would mention. In Patel v Bradford
University Senate [1978] 3 All ER 841 at 852, [1978] 1 WLR 1488 at 1499 Megarry
V-C referred to the visitatorial jurisdiction as providing an appropriate
domestic tribunal which can determine a dispute informally, privately, cheaply
and speedily. The inquiries however by the plaintiffs' solicitors through the
appropriate channels have suggested that because of the Lord Chancellor's many
other responsibilities and commitments the process of a reference of a dispute
to him as visitor may be cumbrous and slow. To meet this, the university has
very fairly offered an undertaking that if there is a reference to the visitor
the university will not issue a redundancy notice to any individual prior to 30
September 1989. That undertaking should, in my judgment, on any view be
accepted and be incorporated in the order made by this court on this appeal.
JUDGMENT BY NOURSE LJ
Section 206 of the Education Reform Act 1988 apart, I would agree
with Dillon LJ that this case is governed by Thomas v University of Bradford
[1987] 1 All ER 834, [1987] AC 795, and that the visitor of the University of
Aston has exclusive jurisdiction in respect of the dispute which is the subject
matter of this action. There is nothing which I wish to add on that point.
However, I take a different view of the effect of s 206. In my judgment sub-s
(1) of that section, being expressed in unqualified terms, has the effect of
excluding the jurisdiction of the visitor in respect of any dispute of the
nature there mentioned, subject only to the exceptions for which provision is
made by sub-ss (2) and (3). It necessarily follows that the court has
jurisdiction in respect of any such dispute, because before the coming into
force of the section it was only the visitor's exclusive jurisdiction which
excluded the jurisdiction of the court. There is no necessity for an express
restoration of the latter jurisdiction. Except and to the extent that statute
or some rule of the common law has excluded it, the jurisdiction of the court is
always there.
What then is the effect of sub-s (2)? In my judgment the words 'any dispute
which is referred to the visitor' demonstrate that sub-s (1) continues to have
effect unless and until a dispute is referred to the visitor before the date
mentioned in sub-s (2). It is impossible to construe those words so as to mean
'any dispute which is capable of being referred to the visitor', which is what
the argument for the university has really asked us to do. Moreover, as a
matter of necessary implication, I think that sub-s (1) would continue to have
effect in relation to a dispute which, although referred, was not accepted by
the visitor, an event which occurred in this same university in 1982: see Casson
v University of Aston in Birmingham [1983] 1 All ER 88.
Morland J rejected this construction of s 206 because he thought that it would
produce a nonsensical result. I would not put it as high as that. It can
produce the inconvenient and perhaps costly result that the jurisdiction of the
court, once invoked, is ousted if one side or the other makes a reference to the
visitor which is accepted. It seems to have been assumed that one side or the
other would always wish to make a reference to the visitor, but I am not
convinced that that would always be so. There might well be a case where both
sides would prefer that the dispute should be adjudicated upon by the court. Be
that as it may, the words of the section are clear. Since they do not lead to
any absurdity, I think that we have no alternative but to give them due effect.
We have been told by Mr Treacy that if the court adopts this construction of s
206, the university will thereupon refer the dispute to the visitor.
Accordingly, if the views which I have expressed should prevail then, subject to
discussion with counsel, I would propose that we should grant no injunction at
present, but that the plaintiffs should be given liberty to apply for an
injunction if no reference is made within seven days from today's date. There
would be a further liberty to apply if the reference is not accepted by the
visitor. In the meantime the writ will not be struck out. Upon acceptance of
the reference by the visitor, the writ ought to be struck out from that date.
I would therefore allow this appeal, but I agree that it ought to be allowed
on terms that the undertaking by the university, to which Dillon LJ has
referred, is given.
JUDGMENT BY RUSSELL LJ
At this stage I would not strike out the writ and statement of
claim in this case.
The question which we have to decide is whether at the date the writ was
issued - and indeed today - the pleading discloses a cause of action and seeks a
form of relief justiciable in the courts.
In agreement with Dillon LJ, and following Thomas v University of Bradford
[1987] 1 All ER 834, [1987] AC 795, I am satisfied that only the visitor of the
University of Aston would have had jurisdiction prior to 29 July 1988. But on
that date there came into force s 206 of the Education Reform Act 1988. Its
effect, together with ss 202 to 205, is to abolish the jurisdiction of the
visitor, subject only to sub-s (2) of s 206. The visitor's jurisdiction having
been excluded by express statutory provision, in my judgment the jurisdiction of
the court must take its place.
Subsection (2) of s 206, however, does give the visitor jurisdiction and by
necessary implication ousts the jurisdiction of the court in disputes existing
after 29 July 1988 provided that such a dispute 'is referred to the visitor... before the relevant date'. That date has not yet arrived. There has been no
such reference in this case. Unless and until such a reference is made and
accepted by the visitor, in my judgment the plaintiffs are at liberty to bring
and continue their proceedings in the courts. Hence, in my view, the statement
of claim should not suffer the draconian step of being struck out.
As to the merits I was at one time concerned as to whether there was here a
dispute, having regard to the terms of s XXV of the statutes, to which Dillon LJ
has referred, and the expressed intention of the university authority to dismiss
the plaintiffs. However, on the narrow ground that the university is disputing
the form of relief which should be granted to the plaintiffs, I am persuaded
that a dispute exists which can be referred to the Lord Chancellor.
There remains the question of what the order should be. I have had the
opportunity of considering that which is proposed by Nourse LJ and, subject to
any submissions from the bar, I would adopt the order he proposes.
DISPOSITION
Leave to appeal granted. Appeal allowed. Judge's order varied.
SOLICITORS
Robin Thompson & Partners, Birmingham; Martineau Johnson, Birmingham
Hines v Birkbeck College (1/4) [1985] 3 All ER 156, [1986] Ch 524, [1986] 2 WLR 97.
Kirkby Ravensworth Hospital, Ex p (1808) 15 Ves 305, 33 ER 770, LC.
Patel v University of Bradford Senate (1/2) [1978] 3 All ER 841, [1978] 1 WLR 1488
affd [1979] 2 All ER 582, [1979] 1 WLR 1066, CA.
Thomas v University of Bradford [1987] 1 All ER 834, [1987] AC 795, [1987] 2 WLR
677, HL.
C Treacy for the
defendants.
'A visitor is... a Judge, not for the single purpose of interpreting laws,
but also for the application of laws, that are perfectly clear: requiring no
interpretation and farther, for the interpretations of questions of fact
involving no interpretation of laws.'
'The source of the obligation on which Miss Thomas relies for her claim is
the domestic laws of the university, its statutes and its ordinances. It is her
case that the university has failed either in the proper interpretation of its
statutes or in their proper application. Miss Thomas is not relying on a
contractual obligation other than an obligation by the university to comply with
its own domestic laws. Accordingly, in my judgment, her claim falls within the
exclusive jurisdiction of the visitor, subject always to judicial review.'
'The visitor of a qualifying institution shall not have jurisdiction in
respect of any dispute relating to a member of the academic staff which concerns
his appointment or employment or the termination of his appointment or
employment.'
'Subsection (1) above does not apply in relation to any dispute which is
referred to the visitor of a qualifying institution before:(a) the relevant
date or (b) the date on which this section comes into force whichever is the
later.'