NPC/03/11/B: Department for Constitutional Affairs, Respose to the Consultation on Reforms of the Lord Chancellor

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Also in Consultations 2003...

by Tim Brown

Executive Summary

Through our long term campaigning for the removal of the Visitor and the introduction of an independent adjudicator, we are pleased to respond to this enquiry as far as the issue of Visitorial jurisdiction is concerned in paragraphs 50-64 of the consultation. Our response emphasises the important need for the replaced Lord Chancellors office to contain individuals with competent experience in law.

We would also open up the opportunity for the powers of the Visitor to be reviewed. We believe, from our experience of this outdated system, that all decisions of the Visitor should be subject to judicial review. We urge the Department to consider whether the position of Visitor should simply be abolished by statute.

Preamble

The National Postgraduate Committee (NPC) is a charity with the aim to advance, in the public interest, postgraduate education in the UK. We organise meetings and conferences, publish best practice guidelines and seek to influence public policy on all aspects of postgraduate education. Our membership consists of affiliated student representative bodies from across the UK; we have one full-time officer, the General Secretary, and fourteen voluntary officers. We work closely with the National Union of Students and the lecturers unions as well as other bodies relevant to postgraduate education.

2. How should the Visitorial role of the Lord Chancellor best be exercised in the future? And by whom? What are your reasons?

In our view, we see option (ii) as the most appropriate choice, where a suitable office is created to replace the Visitatorial role of the Lord Chancellor. The Visitor's function could, for example, be discharged by the Judicial Committee of the Privy Council, or a similar panel of senior judges.

One point we must strongly emphasise, however, is that it is essential for the role to be performed by a competent judge or lawyer, since the Visitor is performing a judicial function. The Secretary of State for Constitutional Affairs, as suggested in options (i) and (iii), is a minister and not necessarily a judge. Such a person is therefore not at all suitable and we would strongly oppose any attempts to make such an appointment.

We believe this review provides an ideal opportunity for the Department for Constitutional Affairs to propose more wide-ranging legislation on the role of the Visitor. This could address many of the criticisms levelled against the Visitorial jurisdiction, complementing the proposals from the Department for Education and Skills to establish the Office of the Independent Adjudicator for Higher Education.

The Visitor is often defended as a "speedy, cheap and final answer to internal disputes" - for example see Lord Browne-Wilkinson's comments in the case [1]. The NPC believes the Visitorial process is archaic, unjust and prone to delay.

Our experience has been that it is difficult to state with any confidence what powers the Visitor may exercise in terms of awarding damages and/or being able to arbitrate on possible breaches of contract. Another major area of concern for us is that decisions of the Visitor cannot be challenged in a court of law by means of judicial review.

These concerns are particularly relevant in the light of Article 6 of the European Convention on Human Rights, incorporated into UK law via the Human Rights Act 1998, which guarantees the right to a fair and public hearing in the determining of a person's civil rights [2]. This cannot be achieved by the Visitorial system as it stands; we also believe the Visitor's decisions are not presently guaranteed to be timely, independent or impartial, as required by Article 6.

Within the higher education sector, the creation of the Office of the Independent Adjudicator will of course go some way towards alleviating these problems, bringing some consistency and transparency to the way students' complaints are dealt with. However, the Office does not yet exist at any statutory level. Furthermore, as this consultation paper points out, even if the Office is established then the Visitorial jurisdiction will still exist, albeit probably at a much attenuated level.

One possible solution is simply to abolish by statute the office of Visitor in a chartered corporation, and require all chartered corporations with a Visitor to amend their charters accordingly. They would thus be subject to the jurisdiction of the courts in the usual way. It would not be necessary to consider how the Visitorial role of the Lord Chancellor should be exercised in future, as the role would no longer exist. We believe the Department of Constitutional Affairs should seriously consider this option.

If the Department of Constitutional Affairs decides against simply abolishing the office of Visitor then, as a means of ensuring fairness and transparency, we would strongly urge legislation to make all decisions of the Visitor subject to judicial review. In particular, the courts should be able to quash decisions of the Visitor on grounds of an error in law, not just on grounds that he/she has exceeded his/her jurisdiction or has abused his/her powers. This view was taken by Lord Slynn of Hadley, dissenting from the majority position in the case [1], who said: "I am not persuaded that the jurisdiction of the Visitor involves such exceptional considerations thatsome grounds be accepted and others held not to be available for the purposes of judicial review." We concur with his opinion.

References

  1. R v Hull University Visitor ex parte Page [1993] 1 All ER 97,
    http://oxcheps.new.ox.ac.uk/casebook/Resources/RVHULL_1DOC.pdf
  2. Human Rights Act 1998, HMSO Publication, ISBN 0 10 544298 4,
    http://www.hmso.gov.uk/acts/acts1998/80042--d.htm