Pearce vs. Aston Uni. (1/2) 1989 (original) (raw)
COURT OF APPEAL
Pearce and others vs. University of Aston in Birmingham and another (1 of 2)
[1991] 2 All ER 461
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.
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.
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.
C Treacy for the defendants.
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:
'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 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:
'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.'
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:
'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 (2) then disapplies the disqualification of the visitor as follows:
'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.'
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
Now go to subsequent judgment Pearce vs. University of Aston (2/2) 1989 [1991] 2 All ER 469, CA
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