Law Report: Court cannot review lecturer's redundancy: Regina v Visitor of the University of Hull, Ex parte Page - House of Lords (Lord Keith of Kinkel, Lord Griffiths, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley), 3 December 1992.
The House of Lords (Lord Mustill and Lord Slynn dissenting) decided it had no jurisdiction to review a decision of the Visitor on the ground of an error of law within his jurisdiction.
In 1966, Mr Edgar Page was appointed a lecturer at the University of Hull, a corporate body regulated by Royal Charter. The statutes made under the Charter provided under section 34 that he might be removed from office for good cause. He was also informed in his letter of appointment that his appointment might be terminated by either party on giving three months' notice. In 1988 Mr Page was given three months' notice terminating his appointment on the grounds of redundancy, which was not a 'good cause' as defined in section 34. Mr Page petitioned the Visitor on the ground that the university had no power under the statutes to remove him save for good cause.
The Lord President, on behalf of the Visitor, decided that the dismissal was valid and within the university's powers. On Mr Page's application for judicial review of the Visitor's decision, the Divisional Court decided that it had jurisdiction to review the Visitor's decision, that the Visitor had misconstrued the statutes and the university had no power to dismiss Mr Page for redundancy. The Court of Appeal upheld (the Independent, 31 July 1991) the Divisional Court's decision on jurisdiction but decided the Visitor's construction of the statutes was correct.
Mr Page appealed against the decision on the construction of the statutes. The university and Visitor cross-appealed against the decision on jurisdiction.
Jeffrey Burke QC and Brian Langstaff (Robin Thompson & Partners) for Mr Page; Michael Beloff QC and Hubert Picarda QC (Nabarro Nathanson, Doncaster) for the university; Philip Havers (Treasury Solicitor) for the Lord President.
LORD BROWNE-WILKINSON said that a university being an eleemosynary charitable foundation, the Visitor had exclusive jurisdiction to decide disputes arising under the domestic law of the university. In Thomas v University of Bradford (1987) AC 795, the House of Lords decided that the High Court had power, on an application for judicial review, 'to quash a decision of the Visitor which amounted to an abuse of his powers'.
Under the modern law, certiorari normally lay to quash a decision for error of law. The issue was whether certiorari lay against the Visitor to quash his decision as being erroneous in point of law, notwithstanding that the question of law arose under the domestic law of the university, which the Visitor had 'exclusive' jurisdiction to decide.
The court could and would inquire whether the Visitor had jurisdiction to determine the question. If the Visitor had jurisdiction, the court had no power to ignore or review it. The reason for lack of jurisdiction was that an eleemosynary corporation was governed by a system of private law, which was not of 'the common known laws of the kingdom' but the particular laws and constitutions assigned by the founder.
The court had by mandamus required a visitor to exercise his jurisdiction and would grant prohibition to restrain a Visitor from acting outside his jurisdiction. It would intervene to prevent a breach by the Visitor of the rules of natural justice. Although the courts had developed general principles of judicial review and the general rule was that decisions affected by errors of law made by tribunals or inferior courts could be quashed, there were two reasons why that rule did not apply in the case of Visitors. First the constitutional basis of the courts' power to quash was that the decision was unlawful on the grounds that it was outside the tribunal's powers. In the ordinary case the law applicable was the general law of the land.
However, the position of decisions by a Visitor was different. A visitor was applying not the general law but a peculiar domestic law of which he was the sole arbiter. If the Visitor had power to enter into the adjudication of the dispute, he could not err in law in reaching the decision since the general law was not the applicable law. The court had no jurisdictin to reach a contrary view as to the effect of the domestic law since the Visitor was the sole judge of such domestic law.
There was no jurisdiction in the court to review a Visitor's decision for error of law committed within his jurisdiction. Judicial review did not lie to impeach the decisions of a Visitor taken within his jurisdiction on questions of either fact or law. Judicial review did lie in cases where the Visitor acted outside his jurisdiction or abused his powers or acted in breach of the rules of natural justice.
LORD KEITH agreed and LORD GRIFFITHS concurred.
LORD SLYNN said that certiorari was now available to quash errors of law in a decision albeit those errors did not go to the jurisdiction of the tribunal. There were no reasons in principle for limiting the availability of certiorari to a patent excess of power and excluding review on other grounds recognised by the law. Certiorari did lie to review the construction placed on the statutes by the Visitor. Having considered the statutes, no error of law had been shown in the decision of the Visitor.
LORD MUSTILL agreed with Lord Slynn.
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