HEARING DATE 9 September 1994
Freedom of speech - Universities, polytechnics and colleges - Education (No 2) Act 1986, s 43 - Former teacher of German at University College London - Successfully bringing claim for unfair dismissal and being offered, and refusing, monetary compensation - Offered renewal of employment subject to condition relating to involvement in matters concerning language centre and entry into language centre premises - Whether contractual powers of UCL limited by statutory guarantee of freedom of speech - Justiciability of s 43 of 1986 Act
HEADNOTE
R had been employed as a teacher of German at University College London (UCL). She succeeded before an industrial tribunal and secured an admission of unfair dismissal and an offer of monetary compensation. R refused that offer. An offer of renewal of her contract of employment included the following condition: 'it is a condition of your appointment that you should cease to be involved in matters concerning the running of the language centre and that you should not enter the language centre premises except with the prior permission of the director of the centre or the chair of the UCL language centre management committee'. R argued that this condition went beyond a simple contractual relationship between an institution and an individual, and raised questions of public law. R submitted that the contract was overridden by public law considerations affecting the powers of UCL. Those considerations were to be found in s 43 of the Education (No 2) Act 1986. This provides for 'Freedom of speech in universities, polytechnics and colleges':
'(1) Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment, and for visiting speakers.(2) The duty imposed by subsection (1) includes in particular the duty to ensure so far as is reasonably practicable that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with-
(a) the beliefs or views of that individual or of any member of that body, or
(b) the policy or objectives of that body.'
R applied for leave for judicial review of the decision of UCL.
Held - refusing leave -
(1) If R had grounds for judicial review and for seeking a mandatory order of reinstatement, then the fact that unfair dismissal had been admitted and compensation offered would not necessarily be a sufficient bar. Although an order for reinstatement was a very rare event, the court undoubtedly had that power.
(2) The discretion to grant leave out of time would be sympathetically approached by the court where the applicant had not been sleeping on her rights, but had been attempting to canvass them by other legitimate means.
(3) Although the principal purpose of s 43 of the Education (No 2) Act 1986 was to prevent the banning from campuses of speakers whose views might be unacceptable to a majority, or even a vocal minority, of either the student body or the teaching body or both, the breadth of subs (1) was somewhat larger and sought to secure freedom of speech in all respects. However, the conditions which UCL sought to impose did not seek to gag R or to rob her of the right to express her views. The conditions imposed related to administrative matters. The fact that it might impede the conduct of whatever debate R was engaging in was not irrelevant, but it was far from a condition which gagged a teacher in a university, or perhaps even a member of the university, in the exercise of the right of free speech.
(4) The judge was prepared to accept that s 43 was justiciable by judicial review in an appropriate case. It did not appear to create private rights which could readily be assured by any other means.
(5) UCL was undoubtedly a public body, but the condition sought to be imposed by UCL did not in its terms arguably fall foul of s 43. Therefore, the factual basis of a justiciable abuse of power by a public body was absent.
Statutory provision considered
Education (No 2) Act 1986, s 1
COUNSEL
The applicant appeared in person.
JUDGMENT BY SEDLEY J
Mrs Riniker renews her application for leave to move for judicial review of decisions of and acts done by University College London where she was formerly a teacher of German. Popplewell J refused leave on the papers on four grounds: first, that this was not a public law case, secondly, that it was long out of time, thirdly, that there was no possibility of any court ordering reinstatement (I interpose that reinstatement is a principal objective of the proceedings) and, fourthly, that the court would, in any event, not be disposed to intervene in her favour because the college have now admitted unfair dismissal and offered a financial settlement. Latham J heard a renewal of the application in open court and refused it, but because it emerged that not all the papers had been placed before him through a clerical error, his decision is now overtaken, with his knowledge and agreement, by the application that has been further renewed before me today.
Mrs Riniker has presented her case with very great skill, with a clarity that would do a lawyer credit and with learning that is all the more remarkable for the fact that, as she tells me, she has no legal training and has acquired all her knowledge in the course of seeking to advance her case in person over the last 2 years. She comes to this court because she says that, understandably, she has found that her dismissal has made her unemployable in a competitive field of work. She also considers, again quite understandably, that neither the amount offered nor any amount of money is capable of compensating a skilled and trained individual for the loss of their career. With all of this I have unhesitating sympathy.
Taking Popplewell J's grounds, as Mrs Riniker has herself done, as the basis of further consideration, and taking them, for reasons which will become apparent, in reverse, I am prepared for the present to accept that Mrs Riniker can legitimately say that if she otherwise has grounds for judicial review and for seeking a mandatory order of reinstatement, then the fact that unfair dismissal has been admitted and compensation offered would not necessarily be a sufficient bar. As to the unlikelihood of the court ordering reinstatement, while it is a very rare event there is undoubtedly power which the courts have exercised on occasions, for example to give specific performance of contracts of employment. Equally, although this application is, in spite of Mrs Riniker's ingenious argument to the contrary, out of time within the meaning of Ord 53, r 4(1), the discretion to enlarge time beyond the ordinary 3 months is one which will be sympathetically approached by the court where the applicant in the meantime has not been sleeping on her rights but has been attempting to canvass them by other legitimate means.
I turn to what in my view is the nub of this case: Popplewell J's first ground that what is actually complained of here is not a public law issue. What Mrs Riniker is concerned with is the non-renewal of her contract of employment, together with an offer of renewal upon terms which were unacceptable. She has succeeded in her own industrial tribunal proceedings in securing an admission of unfair dismissal and an offer, albeit unacceptable to her, of monetary compensation. But, as she puts it in her application, the offer of renewal included a condition which read as follows:
'It is a condition of your appointment that you should cease to be involved in matters concerning the running of the language centre and that you should not enter the language centre premises except with the prior permission of the director of the centre or the chair of the UCL language centre management committee.'
This, says Mrs Riniker, goes beyond a simple contractual relationship between an institution and an individual and raises questions of public law.
Pausing there, it is clearly the case that, in the ordinary way, employment relationships between an individual and a public body are matters of private contract law, notwithstanding that the public body owes its existence, for example, to statute or to some other public form of incorporation. This is, in Mrs Riniker's submission, the class of case in which a contract is overridden by public law considerations affecting the very power of the college to do what it has done. These considerations are found in s 43 of the Education (No 2) Act 1986 which provides under the rubric 'Freedom of speech in universities, polytechnics and colleges':
'(1) Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment, and for visiting speakers.(2) The duty imposed by subsection (1) includes in particular the duty to ensure so far as is reasonably practicable that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with-
(a) the beliefs or views of that individual or of any member of that body, or
(b) the policy of objectives of that body.'
Further provisions are made by the section which I need not read out.
It is well known that the principal purpose of this enactment was to prevent the banning from campuses of speakers whose views might be unacceptable to a majority, or even a vocal minority, of either the student body or the teaching body or both or, come to that, of the governing body. But its breadth is, in subs (1), somewhat larger and seeks the securing of freedom of speech in all respects.
I have no doubt that behind Mrs Riniker's non-renewal and the conditional offer which was made lies a history of disagreement in which Mrs Riniker's view was as entitled to respect as anybody else's, but the condition which it was sought to impose did not seek to gag her or to rob her of the right to express her views; it did, however, seek to disengage her from involvement in matters which concerned the running of the language centre, an administrative matter, and to restrain her from entering the language centre premises save with permission. This, too, seems to me to have been a matter of administration. The fact that it might impede the conduct of whatever debate Mrs Riniker was engaging in is not irrelevant, but it is far from a condition which gags a teacher in a university-a member, perhaps, of the university-in the exercise of the right of free speech.
I am prepared to accept that s 43 is justiciable by judicial review in an appropriate case. It does not appear to create private rights which can readily be assured by other means. But the matter sought to be canvassed here, although pursued with real learning and ingenuity by Mrs Riniker, is a condition which does not in its terms arguably fall foul of s 43. It is for that reason that in my view the factual basis of a justiciable abuse of power by the public body, which University College London undoubtedly is, is absent from the material before me, and for that principal reason that I refuse the application for leave.
DOMINIC MCGOLDRICK BARRISTER