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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Lord President of the Privy Council Ex p. Page [1992] UKHL 12 (03 December 1992)
URL: http://www.bailii.org/uk/cases/UKHL/1992/12.html
Cite as: [1992] UKHL 12, [1993] 3 WLR 1112, [1993] AC 682

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/252

    Regina v. Lord President of the Privy Council (Original

    Respondent and Second Cross-appellant)
    (acting for the Visitor of the University of Hull (Original

    Respondent and First Cross-appellant)
    ex parte Page (Original Appellant and Cross-respondent)

    JUDGMENT

    Die Jovis 3° Decembris 1992

    Upon Report from the Appellate Committee to whom was
    referred the Cause Regina against Lord President of the Privy
    Council (acting for the Visitor of the University of Hull) ex
    parte
    Page, That the Committee had heard Counsel as well on
    Monday the 6th as on Tuesday the 7th, Wednesday the 8th, Thursday
    the 9th and Monday the 13th days of July last upon the Petition
    and Appeal of Edgar Page of 90 Sunnybank, Hull, praying that the
    matter of the Order set forth in the Schedule thereto, namely an
    Order of Her Majesty's Court of Appeal of the 31st day of July
    1991, might be reviewed before Her Majesty the Queen in Her Court
    of Parliament and that the said Order might be reversed, varied
    or altered or that the Petitioner might have such other relief
    in the premises as to Her Majesty the Queen in Her Court of
    Parliament might seem meet; as upon the cases of the University
    of Hull and of the Lord President of the Privy Council acting for
    the Visitor of the University of Hull lodged in answer to the
    said Appeal; as upon the Petitions and Cross-Appeals of the
    University of Hull of Hull, HU6 7RX and of the Lord President of
    the Privy Council of the Privy Council Office, London SW1A 2AJ;
    as also upon the case of Edgar Page lodged in answer to the said
    Cross-Appeals; and due consideration had this day of what was
    offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of Appeal
    of the 31st day of July 1991 complained of in the said Appeal be,
    and the same is hereby, Affirmed save as to costs and that the
    said Petition and Appeal be, and the same is hereby, dismissed
    this House: And it is further Ordered, That the Original
    Appellant do pay or cause to be paid to the said Original
    Respondents the Costs incurred by them in the Courts below, and
    the Costs incurred by them in respect of the said Appeal and
    Cross-Appeals, the amount of such last-mentioned costs to be
    certified by the Clerk of the Parliaments if not agreed between
    the parties.

    Cler: Parliamentor:

    Judgment: 3.12.92

    HOUSE OF LORDS

    REGINA

    v.
    LORD PRESIDENT OF THE PRIVY COUNCIL, EX PARTE PAGE

    Lord Keith of Kinkel
    Lord Griffiths
    Lord Browne-Wilkinson
    Lord Mustill
    Lord Slynn of Hadley

    LORD KEITH OF KINKEL

    My Lords,

    For the reasons set out in the speech to be delivered by my
    noble and learned friend Lord Browne-Wilkinson, which I have had
    the opportunity of considering in draft and with which I agree, I
    would dismiss this appeal and allow the cross-appeals.

    LORD GRIFFITHS

    My Lords,

    I have had the advantage of reading the judgment of Lord
    Browne-Wilkinson with which I agree and I would dismiss this
    appeal on the ground that certiorari is not available to challenge
    the decision of a visitor on the ground of an error of law within
    his jurisdiction. I add a few words of my own only because of the
    difference of opinion between your Lordships on this question and
    because what I said about the availability of certiorari in my
    speech in Thomas v. University of Bradford [1987] A.C. 795 has
    been interpreted to include an error of law by the Divisional Court
    and the Court of Appeal which was not what I had intended.

    It is in my opinion important to keep the purpose of judicial
    review clearly in mind. The purpose is to ensure that those bodies
    that are susceptible to judicial review have carried out their public
    duties in the way it was intended they should. In the case of
    bodies other than courts, in so far as they are required to apply
    the law they are required to apply the law correctly. If they
    apply the law incorrectly they have not performed their duty
    correctly and judicial review is available to correct their error of
    law so that they may make their decision upon a proper
    understanding of the law.


    - 1 -In the case of inferior courts, that is courts, of a lower
    status than the High Court, such as the Justices of the Peace, it
    was recognised that their learning and understanding of the law
    might sometimes be imperfect and require correction by the High
    Court and so the rule evolved that certiorari was available to
    correct an error of law of an inferior court. At first it was
    confined to an error on the face of the record but it is now
    available to correct any error of law made by an inferior court.
    But despite this general rule Parliament can if it wishes confine a
    decision on a question of law to a particular inferior court and
    provide that the decision shall be final so that it is not to be
    challenged either by appeal or by judicial review. Such a case
    was Pearlman v. Keepers and Governors of Harrow School [1979]
    Q.B. 56 in which the dissenting judgment of Geoffrey Lane L.J.
    was approved by the majority of the House of Lords in Re Racal
    Communications Limited
    [1981] AC 374.

    The common law has ever since the decision in Philips v.
    Bury
    (1694) Holt K.B. 715 recognised that the visitor acting as a
    judge has exclusive jurisdiction and that his decision is final in all
    matters within his jurisdiction. The common law courts have
    through three centuries consistently resisted all attempts to appeal
    decisions of the visitor. The courts have however been prepared
    to confine the visitor to his proper role as a judge of the internal
    affairs of the foundation by the use of the writs of prohibition and
    mandamus.

    When I said in Thomas;

    "I have myself no doubt that in the light of the modern
    development of administrative law, the High Court would
    have power, upon an application for judicial review, to quash
    a decision of the visitor which amounted to an abuse of his
    powers"

    I used the words "an abuse of his powers" advisedly. I do not
    regard a judge who makes what an Appellate Court later regards
    as a mistake of law as abusing his powers. In such a case the
    judge is not abusing his powers; he is exercising them to the best
    of his ability albeit some other court thinks he was mistaken. I
    used the phrase "abuse of his powers" to connote some form of
    misbehaviour that was wholly incompatible with the judicial role
    that the judge was expected to perform. I did not intend it to
    include a mere error of law.

    The decision in Racal shows that Parliament can by the use
    of appropriate language provide that a decision on a question of
    law whether taken by a judge or by some other form of tribunal
    shall be considered as final and not be subject to challenge either
    by way of appeal or judicial review. For three centuries the
    common law courts have recognised the value of the visitor acting
    as the judge of the internal laws of the foundation and have
    refused to trespass upon his territory. I do not believe that it
    would be right to reverse this long line of authority and declare
    that certiorari should now lie to reverse the decision of a visitor
    on a question of law. The value of the visitorial jurisdiction is
    that it is swift, cheap and final. These benefits will be largely
    dissipated if the visitor's decision can be challenged by way of
    judicial review. Many decisions may turn upon the interpretation

    - 2 -

    of the statutes and other decisions of a more factual nature can
    all too easily be dressed up as issues of law under the guise of
    "Wednesbury" principles. The learning and ingenuity of those
    members of the foundation who are likely to be in dispute with
    the foundation should not be lightly underestimated and I believe
    to admit certiorari to challenge the visitor's decision on the
    grounds of error of law will in practice prove to be the
    introduction of an appeal by another name.

    The visitor is either a person holding a high judicial office,
    or is advised on questions of law by such a person, in whose
    decision on matters of law it is reasonable to repose a high degree
    of confidence. I say this not because any holder of judicial office
    should ever regard it as an affront to be overruled by an
    Appellate Court but merely to emphasize that as a practical
    matter the chances are that the visitor probably will get it right.

    If it is thought that the exclusive jurisdiction of the visitor
    has outlived its usefulness, which I beg to doubt, then I think that
    it should be swept away by Parliament and not undermined by
    judicial review.

    I would add that in the present case I am satisfied that the
    decision of the visitor was correct.

    LORD BROWNE-WILKINSON

    My Lords,

    The appellant, Mr. Page was appointed a lecturer in the
    Department of Philosophy at the University of Hull by a letter
    dated 13 June 1966. The letter stated 'The appointment may be
    terminated by either party on giving three months' notice in
    writing expiring at the end of a term or of the long vacation."
    As a lecturer, Mr. Page became a member of the University which
    is a corporate body regulated by Royal Charter. Section 34 of the
    Statutes made under the Charter provides:

    "1. The Vice-Chancellor and all Officers of the University
    including Professors and members of the Staff holding their
    appointments until the age of retirement may be removed
    by the Council for good cause. . . .

    2. . . .

    3. Subject to the terms of his appointment no member of
    the teaching research or administrative staff of the
    University (including the Vice-Chancellor) shall be removed
    from office save upon the grounds specified in paragraph 2
    of this Section and in pursuance of the procedure specified
    in Clause 1 of this Section."

    Section 34(2) defines the meaning of "good cause".

    On 30 June 1988 Mr. Page was given three months' notice
    terminating his appointment on the grounds of redundancy. It is

    - 3 -

    common ground that there was no "good cause" within the meaning
    of section 34; the University was reiying on the three months'
    notice term contained in the letter of appointment coupled with
    the provision in section 34(3) that Mr. Page's tenure was to be
    subject to the terms of the appointment.

    Mr. Page took the view that on the true construction of
    section 34 of the statutes the University had no power to remove
    him from office and terminate his employment save for good
    cause. Your Lordships were told that Mr. Page started an action
    in the Queen's Bench Division for wrongful dismissal which action
    was struck out on the grounds that the matter fell within the
    exclusive jurisdiction of the Visitor of the University, Her Majesty
    the Queen. Mr. Page then petitioned the Visitor for a declaration
    that his purported dismissal was ultra vires and of no effect. The
    petition was considered by the Lord President of the Council, on
    behalf of Her Majesty. He sought advice from Lord Jauncey of
    Tullichettle who advised that on the true construction of the
    Statutes the dismissal was valid and intra vires. On that advice,
    the petition was dismissed by the Visitor.

    Mr. Page then applied by way of judicial review for an
    order quashing the Visitor's decision. Before the Divisional Court
    (Taylor L.J. and Rougier J.) two issues arose: first, did the
    Divisional Court have jurisdiction to review the Visitor's decision
    and, if so, second, was the Visitor's construction of the Statutes
    correct? The Divisional Court held that it had jurisdiction to
    review the Visitor's decision and that the Visitor's decision was
    wrong in law. They made an order quashing the decision and
    made a declaration that "upon a true construction of the Statutes
    of the University of Hull the University has and had no power to
    dismiss Edgar Page by reason of redundancy and his purported
    dismissal is without effect".

    The University and the Visitor appealed to the Court of
    Appeal (Lord Donaldson of Lymington M.R., Staughton and
    Farquharson L.JJ.) who upheld the Divisional Court's decision on
    jurisdiction but reversed its decision on construction taking the
    view that the Visitor's construction of the Statutes was correct.

    Mr. Page appeals to your Lordships' House against the
    decision of the Court of Appeal on the construction of the
    Statutes: the University and the Visitor cross appeal against the
    decision on jurisdiction. I will deal first with the question of
    jurisdiction.

    As the argument was refined in the course of the hearing,
    it emerged that the rival contentions came down to a narrow but
    difficult issue. It is established that, a university being an
    eleemosynary charitable foundation, the Visitor of the University
    has exclusive jurisdiction to decide disputes arising under the
    domestic law of the University. This is because the founder of
    such a body is entitled to reserve to himself or to a visitor whom
    he appoints the exclusive right to adjudicate upon the domestic
    laws which the founder has established for the regulation of his
    bounty. Even where the contractual rights of an individual (such
    as his contract of employment with the university) are in issue, if
    those contractual rights are themselves dependent upon rights
    arising under the regulating documents of the charity, the visitor

    - 4 -

    has an exclusive jurisdiction over disputes relating to such
    employment.

    Those propositions are all established by the decision of this
    House in Thomas v. University of Bradford [1987] A.C. 795 which
    held that the courts had no jurisdiction to entertain such disputes
    which must be decided by the visitor. However the Thomas case
    was concerned with the question whether the courts and the visitor
    had concurrent jurisdictions over such disputes. In that context
    alone it was decided that the visitor's jurisdiction is "exclusive".
    Thomas does not decide that the visitor's jurisdiction excludes the
    supervisory jurisdiction of the courts by way of judicial review.
    On the contrary, my noble and learned friend Lord Griffiths (at
    page 825) said this:

    "Finally, there is the protection afforded by the supervisory,
    as opposed to appellate, jurisdiction of the High Court over
    the visitor. It has long been held that the writs of
    mandamus and prohibition will go either to compel the
    visitor to act if he refused to deal with the matter within
    his jurisdiction or to prohibit him from dealing with a
    matter that lies without his jurisdiction. . . . Although
    doubts have been expressed in the past as to the availability
    of certiorari, I have myself no doubt that in the light of
    the modern development of administrative law, the High
    Court would have power, upon an application for judicial
    review, to quash a decision of the visitor which amounted to
    an abuse of his powers."

    Lord Ackner (at page 828B) said that the case fell within
    the exclusive jurisdiction of the visitor "subject always to judicial
    review".

    Under the modern law, certiorari normally lies to quash a
    decision for error of law. Therefore, the narrow issue in this case
    is whether, as Mr. Page contends and the courts below have held,
    certiorari lies against the visitor to quash his decision as being
    erroneous in point of law notwithstanding that the question of law
    arises under the domestic law of the University which the visitor
    has "exclusive" jurisdiction to decide.

    It is necessary first to consider in some detail the nature of
    the visitor's jurisdiction. After some earlier doubts on the matter,
    the exclusivity of the visitor's jurisdiction was finally confirmed in
    Philips v. Bury [1694] Holt K.B. 715 where the reported dissenting
    judgment of Holt C.J. was eventually adopted by this House. In
    that case, the visitor of Exeter College, Oxford, had deprived Bury
    of his office as Rector. The new Rector appointed in his place
    had leased a house to the plaintiff Philips, who had been evicted
    by Bury. Philips brought an action in ejectment against Bury.
    Accordingly the issue in the case was whether the removal of Bury
    by the visitor was valid or not. Holt C.J. held that two questions
    arose: first, did the visitor have jurisdiction to remove Bury; if
    so, second, was the visitor's decision correct. He held that the
    visitor did have jurisdiction and that "having that power, the
    justice thereof is not examinable in a Court of Law, upon any
    action concerning the [visitor's] power". He contrasted private
    charitable bodies with public corporations and said this at page
    723:

    - 5 -

    "And I think the sufficiency of the sentence is never to be
    called in question, nor any inquiry to be made here into the
    reasons of the deprivation. If the sentence be given by the
    proper visitor, created so by the founder, or by the law, you
    shall never inquire into the validity, or ground of the
    sentence. And this will appear, if we consider the reason
    of a visitor, how he comes to be supported by authority in
    that office.... But private and particular corporations for
    charity, founded and endowed by private persons, are subject
    to the private government of those who erect them; and
    therefore if there be no visitor appointed by the founder, I
    am of opinion that the law doth appoint the founder and his
    heirs to be visitors. The founder and his heirs are patrons,
    and not to be guided by the common known laws of the
    kingdom. But such corporations are, as to their own affairs,
    to be governed by the particular laws and constitutions
    assigned by the founder. . . . But you'll say, this man hath
    no court. It is not material whether he hath a court or no;
    all the matter is, whether he hath a jurisdiction; if he hath
    conusance of the matter and person, and he gives a
    sentence, it must have some effect to make a vacancy, be
    it never so wrong. But there is no appeal, if the founder
    hath not thought fit to direct an appeal; that an appeal
    lieth in the Common Law Courts is certainly not so. This
    is according to the government settled by the founder; if
    he hath directed all to be under the absolute power of the
    visitor, it must be so. ... As to the matter of there
    being no appeal from an arbitrary sentence; it is true, the
    case is the harder, because the party is concluded by one
    judgment, but it doth not lessen the validity of the
    sentence, nor doth it in any way prove that you shall find
    out some way to examine this matter at law in a judicial
    proceeding."

    Later, at page 727 Holt C.J. said this:

    "I know no difference between this case and that of a
    mandamus. In that case of Appleford there was a
    mandamus brought, to restore him to his fellowship: it was
    returned, that by the Statutes of the college, for
    misdemeanour they had a power to turn him out; and that
    the Bishop of Winchester was visitor, and that he was
    turned out pro crimine enormi, and had appealed to the
    bishop, who confirmed the expulsion; and the particular
    cause was not returned: I was of counsel for the college,
    and we omitted the cause in the return for that reason,
    because indeed it was not so true as it should have been.
    It was insisted, that we ought to show the cause in the
    return, to bring it within the Statutes. It was answered,
    here was a local visitor, who has given a sentence; and be
    it right, or be it wrong, the party is concluded by it; and
    you must submit to such laws as the founder is pleased to
    put upon you. And Mr. Appleford was not restored. This is
    an express authority to guide our judgment in this case.
    Here is a local visitor hath given a sentence, he hath
    declared the rector to be actually deprived of his place.
    When shall we know when a deprivation is good? If not
    upon a mandamus, why in an ejectment?"

    - 6 -

    The decision of Holt C.J. in Philips v. Bury is the locus
    classicus of the law of visitors. It has been repeatedly applied for
    the last 300 years, most recently in Thomas. For present purposes
    it is important for three reasons:

    1. It shows that the court can and will inquire whether the
    visitor has jurisdiction to determine the question, i.e. to
    enter into the matter.

    2. If the visitor has such jurisdiction, the court has no
    power to ignore it or review it by way of mandamus or in
    any other way.

    3. The reason for such lack of jurisdiction to review in the
    court is that an eleemosynary corporation is governed by a
    system of private law which is not of "the common known
    laws of the kingdom" but the particular laws and
    constitutions assigned by the founder.

    As to the first of those points, the ability of the courts to
    control the visitor by the prerogative writs has been established by
    many cases. Thus, the court has by mandamus required a visitor
    to exercise his jurisdiction: see R. v. Bishop of Ely [1794] 5 Durn.
    & E. 475 and R. v. Dunsheath ex parte Meredith [1951] 1 K.B. 127
    at 134. The court will also grant prohibition to restrain a visitor
    from acting outside his jurisdiction: Bishop of Chichester v.
    Harward and Webber
    [1787] 1 Durn. & E. 650. In one case, the
    court indicated that it would intervene to prevent a breach by the
    visitor of the rules of natural justice: see Bently v. Bishop of Ely
    [1729] 1 Barn. K.B. 192.

    As to the second point, there are numerous cases in which
    attempts have been made to induce the courts to review or ignore
    decisions of the visitor acting within his jurisdiction, all of which
    have been unsuccessful. For some technical reason certiorari used
    not to be available in such cases; but the aggrieved party applied
    for mandamus to require the other parties to act on the footing
    that the visitor's decision was invalid. Thus in the case referred
    to by Holt C.J., Appleford's case (1672) 1 Mod. Rep. 82, the
    plaintiff sought an order directed to the master and fellows of a
    college to reinstate him as a fellow, the visitor having already
    adjudicated that he had been rightly removed. Mandamus was
    refused.

    In R. v. the Bishop of Chester 1 W.B1. 22 the bishop as
    visitor had removed the applicant as a canon. The applicant
    sought mandamus directed to the visitor to restore him. The
    order was refused. Lee C.J. said, "There is no precedent, where a
    mandamus has gone to a visitor to reverse his own sentence".
    Wright J. agreed saying, "Visitors have an absolute power; the
    only absolute one I know of in England". Denison J. said, "This
    court cannot control visitors".

    Similarly in R v. Bishop of Ely (supra) the applicant had
    been removed as a fellow of Jesus College, Cambridge and had
    appealed unsuccessfully to the bishop as visitor. He then applied
    for a mandamus directed to the visitor to hear an appeal on the
    grounds that the earlier appeal to the visitor had been no true
    appeal at all. His counsel admitted that, by reason of Philips v.

    - 7 -

    Bury, the court had no power to order the visitor to correct his
    decision however erroneous. Lord Kenyon C.J. said this at page
    477:

    "It was settled in Philips v. Bury, in which determination
    the profession has ever since acquiesced, that this court has
    no other power than that of putting the visitatorial power in
    motion, (if I may use the expression,) but that if the
    judgment of the visitor be ever so erroneous, we cannot
    interfere in order to correct it. Now here the visitor
    received the appeal; each party disclosed his case to him;
    the whole merits of the case were before him; and he has
    exercised his judgment upon the whole. If therefore we
    were to interfere, it would be for the purpose of controlling
    his judgment. But any interference by us to control the
    judgment of the visitor, would be attended with the most
    mischievous consequences, since we must then decide on the
    statutes of the college, of which we are ignorant, and the
    construction of which has been confided to another forum."

    Grose J. said:

    "If the bishop had not exercised his judgment at all, we
    would have compelled him: but it is objected that he has
    not exercised it rightly; to this I answer that we have no
    authority to say how he should have decided."

    This case seems to me clear authority that the court has no
    jurisdiction to review the decision of a visitor made within his
    jurisdiction.

    In Ex parte Buller [1855] 1 Jurist N.S. 709 the applicant had
    been expelled from his fellowship by the provost and fellows of
    Kings College, Cambridge. His appeal to the visitor had been
    dismissed. He sought mandamus directed not to the visitor but to
    the provost and fellows to reinstate him on the grounds that the
    provost and fellows had breached the rules of natural justice.
    Coleridge J. held, quoting the judgment of Lord Kenyon in R v.
    Bishop of Ely,
    that the court had no power to compel the visitor
    "to correct or alter his decision although that decision may be
    erroneous". He said that mandamus would not go to the provost
    and fellows because "a member of a college puts himself
    voluntarily under a peculiar system of law, and assents to being
    bound by it, and cannot thereafter complain that such a system is
    not in accordance with that adopted by the common law."
    Mandamus was therefore refused because the visitor's
    determination provided a complete answer to the complaint of
    breach of natural justice by the provost and fellows.

    As to the third point (the reason why the court lacks
    jurisdiction to review), the views of Holt C.J. are supported by the
    passages I have already quoted from R v. Bishop of Ely (inability
    to decide on the statutes of the college "of which we are ignorant
    and the construction of which has been confided to another
    forum") and Ex parte Buller ("a peculiar system" which is not
    required to be in accordance with common law). In Thomas this
    House had to decide whether the jurisdiction of the visitor was
    founded on membership of the university or (as the House held) on
    the fact that a separate system of law was applicable. My noble

    - 8 -

    and learned friend Lord Griffiths referred (at page 814H) to the
    visitor's jurisdiction stemming from the power of the founder "to
    provide the laws under which the object of charity was to be
    governed and to be sole judge of the interpretation and application
    of those laws either by himself or by such person as he should
    appoint as a visitor" (emphasis added). He also referred to the
    laws as being "domestic" and "the internal laws of the foundation":
    pages 815D and 816B. Lord Ackner referred to the function of
    the visitor as being the supervision "of the internal rules of the
    foundation so that it is governed in accordance with those private
    laws which the founder has laid down . . . ".

    In my judgment this review of the authorities demonstrates
    that for over 300 years the law has been clearly established that
    the visitor of an eleemosynary charity has an exclusive jurisdiction
    to determine what are the internal laws of the charity and the
    proper application of those laws to those within his jurisdiction.
    The court's inability to determine those matters is not limited to
    the period pending the visitor's determination but extends so as to
    prohibit any subsequent review by the court of the correctness of
    a decision made by the visitor acting within his jurisdiction and in
    accordance with the rules of natural justice. This inability of the
    court to intervene is founded on the fact that the applicable law
    is not the common law of England but a peculiar or domestic law
    of which the visitor is the sole judge. This special status of a
    visitor springs from the common law recognising the right of the
    founder to lay down such a special law subject to adjudication only
    by a special judge, the visitor.

    How then is it contended that the courts have power to
    review the visitor's decision as to the effect of the domestic law
    of the University in this case? The Divisional Court and the
    Court of Appeal did not consider in any detail the old authorities
    to which I have referred. They started from the position, in my
    judgment incorrectly, that the references in Thomas to the
    visitor's jurisdiction being exclusive meant simply that the court
    did not have concurrent jurisdiction with him. Then, since this
    House in Thomas had accepted that judicial review by way of
    certiorari did lie to the visitor at least to restrain an abusive
    process, they held that there was jurisdiction to correct errors of
    law since "illegality" is one of the accepted heads of judicial
    review.

    Before your Lordships, Mr. Burke refined this argument. He
    relied upon the great development that has recently taken place in
    the law of judicial review whereby the courts have asserted a
    general jurisdiction to review the decisions of tribunals and inferior
    courts. He points to the way in which the law has developed
    from a maze of individual sets of circumstances in which one or
    other of the prerogative writs would lie to a general principle
    under which courts will review decisions on the three grounds of
    illegality, irrationality and procedural impropriety: see per Lord
    Diplock in Council of Civil Service Unions v. Minister for the Civil
    Service
    [1985] AC 374 at page 410. Mr. Burke submits that if
    judicial review lies at all, then it is not possible to pick and
    choose between Lord Diplock's three categories: it must lie on all
    three grounds or not at all. As to illegality, recent developments
    in the law have shown that any relevant error of law made by the
    decision maker, whether as to his powers or as to the law he is to

    - 9 -

    apply, may lead to his decision being quashed. In the present
    case, since the decision in Thomas shows that judicial review does
    lie against the visitor, so his decision is capable of being reviewed
    on any one of Lord Diplock's three grounds, including illegality.
    If, therefore, the visitor has made an error in construing the
    statutes of the university, his decision can be quashed on judicial
    review.

    I accept much of Mr. Burke's submissions. Over the last 40
    years, the courts have developed general principles of judicial
    review. The fundamental principle is that the courts will
    intervene to ensure that the powers of public decision making
    bodies are exercised lawfully. In all cases, save possibly one, this
    intervention by way of prohibition or certiorari is based on the
    proposition that such powers have been conferred on the decision
    maker on the underlying assumption that the powers are to be
    exercised only within the jurisdiction conferred, in accordance with
    fair procedures and, in a Wednesbury sense, reasonably. If the
    decision maker exercises his powers outside the jurisdiction
    conferred, in a manner which is procedurally irregular or is
    Wednesbury unreasonable, he is acting ultra vires his powers and
    therefore unlawfully: see Wade on Administrative Law, 6th ed.,
    page 39 et seq. The one possible exception to this general rule
    used to be the jurisdiction of the court to quash a decision taken
    within the jurisdiction of the decision taker where an error law
    appeared on the face of the record: R. v. Northumberland
    Compensation Appeal Tribunal
    [1952] 1 KB 338.

    In my judgment the decision in Anisminic Limited v. Foreign
    Compensation Commission
    [1969] 2 AC 147 rendered obsolete the
    distinction between errors of law on the face of the record and
    other errors of law by extending the doctrine of ultra vires.
    Thenceforward it was to be taken that Parliament had only
    conferred the decision making power on the basis that it was to
    be exercised on the correct legal basis: a misdirection in law in
    making the decision therefore rendered the decision ultra vires.
    Professor Wade considers that the true effect of the Anisminic
    case is still in doubt: Wade (supra) page 299 et seq. But in my
    judgment the decision of this House in O'Reilly v. Mackman [1983]
    2 A.C. 237 establishes the law in the sense that I have stated.
    Lord Diplock, with whose speech all the other members of the
    committee agreed, said (at page 278D) that the decision in
    Anisminic;

    "... has liberated English public law from the fetters that
    the courts had theretofore imposed upon themselves so far
    as determinations of inferior courts and statutory tribunals
    were concerned, by drawing esoteric distinctions between
    errors of law committed by such tribunals that went to
    their jurisdiction, and errors of law committed by them
    within their jurisdiction. The breakthrough that the
    Anisminic case made was the recognition by the majority of
    this House that if a tribunal whose jurisdiction was limited
    by statute or subordinate legislation mistook the law
    applicable to the facts as it had found them, it must have
    asked itself the wrong question, i.e., one into which it was
    not empowered to inquire and so had no jurisdiction to
    determine. Its purported "determination", not being "a
    determination" within the meaning of the empowering
    legislation, was accordingly a nullity."

    - 10 -


    Therefore, I agree with Mr. Burke that in general any error
    of law made by an administrative tribunal or inferior court in
    reaching its decision can be quashed for error of law.

    At this point I must notice an argument raised by Mr.
    Beloff for the University. He suggests that the recent decision of
    this House in R. v. Independent Television Commission ex parte
    T.S.W. Broadcasting
    (unreported) has thrown doubt on the
    proposition that all errors of law vitiate the decision. In my
    judgment this is a misreading of that authority. This House was
    asserting that the mere existence of a mistake of law made at
    some earlier stage does not vitiate the actual decision made:
    what must be shown is a relevant error of law, i.e. an error in
    the actual making of the decision which affected the decision
    itself. This is demonstrated by Lord Templeman's quotation from
    the well known judgment of Lord Greene M.R., in Wednesbury
    (including the passage "a person entrusted with a discretion must,
    so to speak, direct himself properly in law") and the manner in
    which thereafter he applied those principles to the facts of the
    case before the House.

    Although the general rule is that decisions affected by
    errors of law made by tribunals or inferior courts can be quashed,
    in my judgment there are two reasons why that rule does not
    apply in the case of visitors. First, as I have sought to explain,
    the constitutional basis of the courts' power to quash is that the
    decision of the inferior tribunal is unlawful on the grounds that it
    is ultra vires. In the ordinary case, the law applicable to a
    decision made by such a body is the general law of the land.
    Therefore, a tribunal or inferior court acts ultra vires if it reaches
    its conclusion on a basis erroneous under the general law. But the
    position of decisions made by a visitor is different. As the
    authorities which I have cited demonstrate, the visitor is applying
    not the general law of the land but a peculiar, domestic law of
    which he is the sole arbiter and of which the courts have no
    cognizance. If the visitor has power under the regulating
    documents to enter into the adjudication of the dispute (i.e. is
    acting within his jurisdiction in the narrow sense) he cannot err in
    law in reaching this decision since the general law is not the
    applicable law. Therefore he cannot be acting ultra vires and
    unlawfully by applying his view of the domestic law in reaching his
    decision. The court has no jurisdiction either to say that he erred
    in his application of the general law (since the general law is not
    applicable to the decision) or to reach a contrary view as to the
    effect of the domestic law (since the visitor is the sole judge of
    such domestic law).

    The second reason is closely allied to the first. In
    Pearlman v. Harrow School [1979] QB 56 a statute provided that
    the decision of the county court as to whether works constituted
    an "improvement" within the meaning of the Act should be "final
    and conclusive". A tenant claimed that the installation of a
    central heating system constituted an "improvement". The county
    court judge ruled that it did not. The tenant then applied to the
    Divisional Court by way of judicial review to quash the judge's
    decision. The majority of the Court of Appeal held that it had
    jurisdiction to quash the judge's order. However, Lane L.J. (as he
    then was) dissented. He held that the judge had done nothing

    - 11 -

    which went outside the proper area of his inquiry. The question
    was not whether the judge had made a wrong decision but whether
    he had inquired into and decided a matter which he had no right
    to consider. Therefore he held that the court had no jurisdiction
    to review the decision of the county court judge for error of law.

    This dissenting judgment of Lane L.J. has been approved by
    the Privy Council in South East Asia Fire Bricks v. Non-Metallic
    Mineral Products Manufacturing Employees Union
    [1981] AC 363
    at p, 370F and by a majority in this House in In re Racal
    Communications Ltd.
    [1981] AC 374 pp. 384B, 390F-391D. In the
    latter case, Lord Diplock pointed out that the decision in
    Anisminic applied to decisions of administrative tribunals or other
    administrative bodies made under statutory powers: in those cases
    there was a presumption that the statute conferring the power did
    not intend the administrative body to be the final arbiter of
    questions of law. He then contrasted that position with the case
    where a decision making power had been conferred on a court of
    law. In that case no such presumption could exist: on the
    contrary where Parliament had provided that the decision of an
    inferior court was final and conclusive the High Court should not
    be astute to find that the inferior court's decision on a question
    of law had not been made final and conclusive, thereby excluding
    the jurisdiction to review it.

    In my judgment, therefore, if there were a statutory
    provision that the decision of a visitor on the law applicable to
    internal disputes of a charity was to be "final and conclusive",
    courts would have no jurisdiction to review the visitor's decision
    on the grounds of error of law made by the visitor within his
    jurisdiction (in the narrow sense). For myself, I can see no
    relevant distinction between a case where a statute has conferred
    such final and conclusive jurisdiction and the case where the
    common law has for 300 years recognised that the visitor's
    decision on questions of fact and law are final and conclusive and
    are not to be reviewed by the courts. Accordingly, unless this
    House is prepared to sweep away long established law, there is no
    jurisdiction in the court to review a visitor's decision for error of
    law committed within his jurisdiction.

    Mr. Burke urged that the position of a visitor would be
    anomalous if he were immune from review on the grounds of error
    of law. He submitted that the concept of a peculiar domestic law
    differing from the general law of the land was artificial since in
    practice the charter and statutes of a university are expressed in
    ordinary legal language and applied in accordance with the same
    principles as those applicable under the general law. He pointed
    to the important public role occupied by universities and submitted
    that it was wrong that they should be immune from the general
    law of the land: "there must be no Alsatia in England where the
    King's writ does not run": per Scrutton L.J. in Czarnikow v.
    Roth, Schmidt and Co,
    [1922] 2 K.B. 478 at page 488. He further
    suggested that to permit review of a visitor's decision for error of
    law would not impair the effectiveness of the visitor's domestic
    jurisdiction.

    I accept that the position of the visitor is anomalous, indeed
    unique. I further accept that where the visitor is, or is advised
    by, a lawyer the distinction between the peculiar domestic law he

    - 12 -

    applies and the general law is artificial. But I do not regard
    these factors as justifying sweeping away the law which for so
    long has regulated the conduct of charitable corporations. There
    are internal disputes which are resolved by a visitor who is not a
    lawyer himself and has not taken legal advice. It is not only
    modern universities which have visitors: there are a substantial
    number of other long established educational, ecclesiastical and
    eleemosynary bodies which have visitors. The advantages of having
    an informal system which produces a speedy, cheap and final
    answer to internal disputes has been repeatedly emphasized in the
    authorities, most recently by this House in the Thomas case: see
    per Lord Griffiths at page 825D; see also Patel v. University of
    Bradford Senate
    [1978] 1 W.L.R. 1488 at pages 1499-1500. If it
    were to be held that judicial review for error of law lay against
    the visitor I fear that, as in the present case, finality would be
    lost not only in cases raising pure questions of law but also in
    cases where it would be urged in accordance with the Wednesbury
    principle that the visitor had failed to take into account relevant
    matters or taken into account irrelevant matters or had reached
    an irrational conclusion. Although the visitor's position is
    anomalous, it provides a valuable machinery for resolving internal
    disputes which should not be lost.

    I have therefore reached the conclusion that judicial review
    does not lie to impeach the decisions of a visitor taken within his
    jurisdiction (in the narrow sense) on questions of either fact or
    law. Judicial review does lie to the visitor in cases where he has
    acted outside his jurisdiction (in the narrow sense) or abused his
    powers or acted in breach of the rules of natural justice.
    Accordingly, in my judgment the Divisional Court had no
    jurisdiction to entertain the application for judicial review of the
    Visitor's decision in this case.

    In those circumstances, it is unnecessary to express any
    view on the proper construction of the Charter and Statutes
    beyond saying that I have heard nothing which persuades me that
    the views of Lord Jauncey of Tullichettle and the Court of Appeal
    were wrong. I would dismiss the appeal and allow the cross-
    appeals, with costs.

    LORD MUSTILL

    My Lords,

    Because I consider that the decision of the visitor was right
    I concur in the order proposed by your Lordships that this appeal
    should be dismissed. I have however found it difficult to subscribe
    to the opinion preferred by the majority of your Lordships that the
    appeal should be dismissed because the decision of a visitor is not
    susceptible to judicial review for an error of law, and had
    prepared a judgment setting out in summary my reasons for this
    difficulty. Subsequently, I have had the advantage of reading in
    draft the speech to be delivered by my noble and learned friend
    Lord Slynn of Hadley, in which he concludes that the decision is
    indeed reviewable and does so on grounds which I venture to find
    convincing. Accordingly, I need say no more that that, with due

    - 13 -

    respect to the majority of your Lordships, I agree with my noble
    and learned friend in both his conclusions and his reasoning.

    LORD SLYNN OF HADLEY

    My Lords,

    Mr. Page was appointed as a lecturer in Philosophy in the
    University of Hull with effect from 1 October 1966. By letter
    dated 30 June 1988 his appointment was terminated on 2 October
    1988. The reason for terminating his appointment was that the
    University felt it necessary to reduce the number of staff in the
    Philosophy Department by one and he was the oldest member. Mr.
    Page began proceedings in the Queen's Bench Division to establish
    that the University was not entitled to dismiss him. Those
    proceedings were struck out on the basis that his claim fell within
    the exclusive jurisdiction of the Visitor of the University and so he
    petitioned the Visitor, Her Majesty the Queen. Having received
    from Lord Jauncey of Tullichettle advice that the dismissal was
    valid, the Lord President of the Council on behalf of Her Majesty
    dismissed the petition.

    Mr. Page applied for judicial review of that decision. The
    Divisional Court held that they had power to review the Visitor's
    decision and that upon a proper construction of the University
    Statutes the University had no power to dismiss Mr. Page. The
    Court of Appeal likewise held that the Visitor's decision could be
    reviewed but held that the Visitor's decision was correct in law.

    On this appeal questions as to the court's jurisdiction and as
    to the proper construction of the University's Statutes have been
    raised.

    The jurisdiction issue seems to me to divide into two parts.
    First, does judicial review by way of certiorari ever lie to review
    error of law where there is no issue as to excess of jurisdiction or
    breach of natural justice? If it does not, it cannot in any event
    lie against a Visitor on that basis. If it does, the second question
    is whether certiorari can lie in respect of the decision of a
    Visitor.

    As to the first question it is clear that views as to the
    availability and scope of certiorari together with its actual use
    have varied from time to time. In particular distinctions were
    drawn between errors of law going to jurisdiction and errors of
    law within jurisdiction and between errors of law on the face of
    the record and other errors on law which in neither case went to
    jurisdiction.

    For my part and despite the advice of the Privy Council in
    South East Asia Fire Bricks Sdn Bhd v. Non Metallic Mineral
    Products Manufacturing Employees' Union
    [1981] AC 363, I would
    now follow the opinion of Lord Diplock in In re Racal
    Communications Ltd.
    [1981] AC 374, 382-383 (with which Lord
    Keith of Kinkel agreed) and in O'Reilly v. Mackman [1983] 2 A.C.
    237, p. 278, (with which the other members of the Appellate
    Committee agreed. In the former Lord Diplock said:

    - 14 -

    "The breakthrough made by Anisminic was that, as respects
    administrative tribunals and authoraties, the old distinction
    between errors of law that went to jurisdiction and errors
    of law that did not, was for practical purposes abolished."

    In the latter case Lord Diplock said that the decision in Anisminic
    Limited v. Foreign Compensation Commission
    [1969] 2 AC 147:

    "has liberated English public law from the fetters that the
    courts had theretofore imposed upon themselves so far as
    determinations of inferior courts and statutory tribunals
    were concerned, by drawing esoteric distinctions between
    errors of law committed by such tribunals that went to
    their jurisdiction, and errors of law committed by them
    within their jurisdiction. The breakthrough that the
    Anisminic case made was the recognition by the majority of
    this House that if a tribunal whose jurisdiction was limited
    by statute or subordinate legislation mistook the law
    applicable to the facts as it found them, it must have asked
    itself the wrong question, i.e., one into which it was not
    empowered to inquire and so had no jurisidiction to
    determine. Its purported 'determination', not being a
    'determination' within the meaning of the empowering
    legislation, was accordingly a nullity."

    I accordingly accept that certiorari is now available to
    quash errors of law in a decision albeit those errors do not go to
    the jurisdiction of the tribunal.

    The second part of this issue is therefore whether the
    decision of a Visitor can be reviewed for error of law.

    It is common ground between the parties, and, on the basis
    of earlier cases, rightly so, that the Visitor to a University may
    be given an exclusive jurisdiction, e.g. to decide disputes arising
    under the statutes of the University, as may Visitors to such
    eleemosynary foundations as schools, colleges and dioceses. It has
    long been accepted that this exclusive jurisdiction prevents the
    courts of the land from dealing initially with issues falling to be
    decided by the Visitor, and prevent an appeal from the Visitor to
    those Courts.

    As early as 1694 in Philips v. Bury (1694) Holt K.B. 715 this
    House accepted as correct the dissenting judgment of Holt C.J.
    where it was sought to challenge the removal of a Rector by the
    Visitor of Exeter College by an action in ejectment.

    Holt C.J. held that the Visitor did have jurisdiction to
    deprive the Rector of his office and that "having that power, the
    justice thereof is not examinable in a Court of Law, upon any
    action concerning the [Visitor's] power". He asked, at p. 719:

    "First, whether the sufficiency of the sentence, as to the
    cause, be examinable in the Common Law Courts? And,
    secondly, whether the truth of that cause, suppose it to be
    sufficient to ground the sentence, if true, can be inquired
    into here?"

    In vigorous terms he stated the position, at pp. 723-725:

    - 15 -

    "If the sentence be given by the proper Visitor, created so
    by the Founder, or by the law, you shall never enquire into
    the validity, or ground of the sentence . . . private and
    particular corporations for charity, founded and endowed by
    private persons, are subject to the private government of
    those who erect them ... if [the Visitor] hath conusance of
    the matter and person, and he gives a sentence, it must
    have some effect to make a vacancy, be it never so wrong.
    But there is no appeal, if the founder hath not thought fit
    to direct an appeal; that an appeal lieth in the Common
    Law Courts, is certainly not so. This is according to the
    government settled by the founder; if he hath directed all
    to be under the absolute power of the Visitor, it must be so

    . . . "

    The reason for the rule was explained further in the same
    year in The King and Queen v. St John's College Cambridge (1694)
    4 Mod. Rep. 233 at p. 241:

    "The Visitor is made by the Founder, and is the proper
    judge of the private laws of the College; he is to determine
    offences against those laws. But where the law of the land
    is disobeyed, this court will take notice thereof
    notwithstanding the Visitor."

    To the same effect was R. v. Dr. Bland, Provost of Eton (1740) 7
    Mod. Rep. 355, and in 1794 in R. v. The Bishop of Ely (1794) 5
    Durn. & E. 475 Lord Kenyon C.J. regarded what had been said by
    Holt C.J. as settled law. In 1855 Coleridge J. accepted the same
    principle in Ex parte Buller (1855) 1 Jurist N.S. p. 709:

    "It has been decided, and is now admitted, that where a
    Visitor has acted in his visitatorial capacity, this Court has
    no power to compel him to correct or alter his decision,
    although that decision may be erroneous. All that we can
    do is to set the visitor in motion; but having done so, we
    cannot review his decision. In R. v. The Bishop of Ely,
    Lord Kenyon refused the rule upon this ground, and says, 'It
    was settled in Philips v. Bury, (2 T.R. 346), in which
    determination the Profession has ever since acquiesced, that
    this Court has no other power than that of putting the
    visitatorial power in motion, (if I may use the expression);
    but that if the judgment of the visitor be erroneous, we
    cannot interfere in order to correct it. Now, here the
    visitor received the appeal, each party disclosed his case to
    him, the whole merits of the case were before him, and he
    has exercised his judgment upon the whole. If, therefore,
    we were to interfere, it would be for the purpose of
    controlling his judgment; but any interference by us to
    control the judgment of the visitor would be attended with
    the most mischievous consequences, since we must then
    decide upon the statutes of the college, of which we are
    ignorant, and the construction of which has been confided to
    another forum.'"

    On the other hand, the Court will order by mandamus a
    Visitor to exercise his jurisdiction if he refuses or fails to do so
    since if he does not, no one else can.

    - 16 -

    In R. v. The Bishop of Ely (1788) 2 T.R. 290, and again in
    R. v. The Bishop of Ely (1794) 5 T.R. 475, the Court recognised
    this principle. In the latter case Grose J. said at p. 477:

    "If the Bishop had not exercised his judgment at all, we
    would have compelled him: but it is objected that he has
    not exercised it rightly; to this I answer that we have no
    authority to say how he should have decided."

    Conversely, it has been accepted that the Court may inquire
    as to whether a Visitor intends to act outside his jurisdiction and
    in a proper case to grant a writ or order of prohibition to restrain
    him: Bishop of Chichester v. Harward and Webber (1787) 1 T.R.
    650; see also Dr. Bently and The Bishop of Ely (1729) 94 E.R.
    132.

    Thus despite the rule in Philips v. Bury, some control over
    the exercise of jurisdiction was well recognised. The position is
    summarised in R. v. The Bishop of Chester (1747) 1 Wm. Black.
    22, by Lee C.J.:

    "Certainly, if a Visitor is in his jurisdiction his acts are not
    to be inquired into; if out of it, his acts are void."

    There is thus no doubt that on the older authorities the
    Courts have refused to review by way of certiorari the decision of
    a Visitor even though they were prepared to grant mandamus to
    require him to act or to prohibit him from acting in excess of

    jurisdiction.


    More recently in Thomas v. University of Bradford [1987]
    A.C. 795, Lord Griffiths (with whom Lord Bridge of Harwich, Lord
    Brandon of Oakbrook and Lord Mackay of Clashfern agreed)
    confirmed that the Courts have no concurrent or appellate
    jurisdiction in respect of matters referred to a Visitor by the
    special regulations of a university and emphasised the advantages
    of the visitorial procedure. Lord Griffiths concluded:

    "Finally, there is the protection afforded by the supervisory,
    as opposed to appellate, jurisdiction of the High Court over
    the Visitor. It has long been held that the writs of
    mandanus and prohibition will go ... Although doubts have
    been expressed in the past as to the availability of
    certiorari, I myself have no doubt that in the light of the
    modern development of administrative law, the High Court
    would have power, upon an application for judicial review,
    to quash a decision of the Visitor which amounted to an
    abuse of his powers."

    Lord Ackner at p. 828 said:

    "The source of the obligation upon 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 upon 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

    - 17 -

    the exclusive jurisdiction of the Visitor, subject always to
    judicial review."

    It is thus clear on the basis of all these authorities that at
    the present time universities can create a jurisdiction for the
    Visitor which excludes the concurrent and appellate jurisdiction of
    the Courts. I do, however, respectfully agree with Lord Griffiths
    that certiorari would go to quash a decision of the Visitor which
    amounted to an abuse of his power. The question in the present
    case is a different question - does certiorari go beyond quashing
    for abuse of power and allow judicial review for errors of law
    within jurisdiction? I do not think that this question was resolved
    in Thomas by what was said by Lord Griffiths though Lord
    Ackner's reference to judicial review is in general terms.

    It is obviously not necessary to cite cases for the
    proposition that there has been a considerable development in the
    scope of judicial review in the second half of this century. It is
    more than enough to refer to the analysis of Sir William Wade in
    "Administrative Law" 6th ed. The old cases which I have cited
    have to be read subject to that development and not least to what
    was said in Thomas (supra).

    With deference to the contrary view of the majority of your
    Lordships, in my opinion if certiorari can go to a particular
    tribunal it is available on all the grounds which have been
    judicially recognised. I can see no reasons in principle for limiting
    the availability of certiorari to a patent excess of power (as where
    a Visitor has decided something which was not within his remit)
    and excluding review on other grounds recognised by the law. If
    it is accepted, as I believe it should be accepted, that certiorari
    goes not only for such an excess or abuse of power but also for a
    breach of the rules of natural justice there is even less reason in
    principle for excluding other established grounds. If therefore
    certiorari is generally available for error of law not involving
    abuse of power (as on the basis of Lord Diplock's speeches I
    consider that it is so available) then it should be available also in
    respect of a decision of a Visitor.

    I am not persuaded that the jurisdition of the Visitor
    involves such exceptional considerations that this principle should
    be departed from and that some grounds be accepted and others
    held not to be available for the purposes of judicial review.

    The submissions made to your Lordships on the basis of the
    history of eleemosynary corporations do not seem to me to justify
    the drawing of such a distinction at the present time once it is
    accepted that certiorari can be available (as in Thomas) on some
    grounds. Nor do I accept that all the questions referred to a
    Visitor involve such arcane learning that only those intimately
    aware of university affairs can begin to understand it, the judges
    of the land not being able to appreciate the issues. The fact that
    Lords of Appeal in Ordinary and other senior judges are invited to
    advise the Visitor show that this cannot be assumed. Moreover,
    issues of law may be referred to the Visitor which are wholly
    analogous to questions decided by the courts. The present is such
    a case in which, if there had been no referral to a Visitor, the
    matter would have come before the tribunals and courts on a
    clearly recognisable employment law question.

    - 18 -

    Nor am I impressed by the floodgates argument - it is said
    that the Divisional Court would be overwhelmed by applications to
    review Visitors' decisions. In the first place many references to
    the Visitor in student or staff disputes with university authorities
    do not involve questions of law at all. It will quickly be
    recognised that on matters of fact and challenges to the exercise
    of discretion leave to apply for judicial review will be refused.
    Moreover where the issue really does raise a question of esoteric
    university "lore" the courts are unlikely to override the decision of
    the Visitor, informed as he will be by the university authorities.

    If there is a real question of law, particularly if it involves
    matters analogous to or the same as issues of the general law, I
    can see no reasonable justification for refusing judicial review. If
    the individual's rights are affected he should be entitled to the
    same protection by the courts as he would be in respect of the
    decision of a wide range of other tribunals and bodies to whom
    decisions involving a question of law are assigned.

    I do not accept the intervener's argument that it is in some
    way undignified for the decision of a Visitor on the basis of advice
    from an eminent judge to be subject to judicial review and that if
    certiorari is held to be available senior judges will not wish to
    give such advice. In most cases their advice will either be right
    in law or be in an area where the courts will wish to leave alone
    the exercise of the Visitor's discretion. If there is an important
    and difficult question of law, however, I do not anticipate that
    senior judges will either feel "demeaned" or take umbrage at the
    possibility of the courts looking at the question again on fuller
    argument.

    The suggested analogies relied on with ecclesiastical courts
    and military courts which apply wholly distinct areas of law do not
    seem to me to be helpful or valid.

    I therefore consider that certiorari does lie to review the
    construction placed upon the statutes by the Visitor and that the
    cross appeal should be dismissed.

    The question then arises as to whether an error of law has
    been shown in the present case.

    The notice inviting applications for an appointment as Senior
    Lecturer/Lecturer in Philosophy contained the following paragraph:

    "TENURE The appointments will date from the 1st October
    1966 and will be subject to the Statutes of the University
    for the time being in force and to any conditions prescribed
    by the Council at the time of the appointments. The Senior
    Lecturer or Lecturer shall vacate his office on the 30th day
    of September following the date on which he attains the age
    of 67 years, unless it is specially extended by resolution of
    Council.

    . . .

    "The appointments may be terminated on either side by
    three months' notice in writing expiring at the end of a
    term or of the long vacation."

    - 19 -

    On 13 June 1966 the Registrar wrote to offer Mr. Page,
    subject to the formal approval of Senate and Council, an
    appointment as a Lecturer with effect from 1 October 1966 "on
    the terms and conditions set out below:

    The appointment may be terminated by either party on
    giving three months' notice in writing expiring at the end of
    a term or of the long vacation."

    On 14 June 1966 Mr. Page replied:

    "I am pleased to accept the appointment and have taken
    note of the terms laid down in your letter."

    There were interviews of which oral evidence was given in
    the inquiry ordered by the Visitor but these were found by Lord
    Jauncey of Tullichettle to be neutral so far as the question at
    issue falls to be considered.

    If the letters of offer and acceptance are looked at alone
    then it is clear that the University was entitled to terminate the
    appointment on three months' notice.

    It is said, however, that if regard is had to the Statutes of
    the University, referred to in the notice inviting applications, on
    the basis of which the contract was clearly made even if the
    Statutes were not referred to in the letter, the University had no
    such right.

    By section 11 of the Statutes the Council shall appoint such
    other Officers as may be deemed necessary "with such duties at
    such remuneration and upon such terms and conditions as the
    Council shall deem fit provided that no Academic Officer shall be
    appointed except after consideration of a Report from the Senate".

    The Statutes also include the following provisions:

    "Section 34

    REMOVAL OF MEMBERS OF THE TEACHING RESEARCH
    AND ADMINISTRATIVE STAFF AND VACATION OF OFFICE

    "1. The Vice Chancellor and all Officers of the University
    including Professors and members of the Staff holding their
    appointments until the age of retirement may be removed
    by the Council for good cause, . . .

    "2. 'Good Cause' in this Statute means: . . ."

    [Four categories are then specified including certain
    convictions, incapacity rendering unfit to perform the duties
    of the office, conduct of an immoral, scandalous or
    disgraceful nature rendering unfit to perform the duties of
    the office.]

    "3. Subject to the terms of his appointment no member
    of the teaching research or administrative Staff of the
    University (including the Vice-Chancellor) shall be removed
    from office save upon the grounds specified in paragraph 2

    - 20 -

    of this section and in pursuance of the procedures specified
    in Clause 1 of this Section.

    "Section 35

    "RETIREMENT OF MEMBERS OF THE ACADEMIC AND
    ACADEMIC-RELATED STAFF OF THE UNIVERSITY

    The Vice-Chancellor and all Professors, Readers,
    Lecturers and other salaried Officers of the University shall
    vacate their office on the 30th day of September following
    the date on which they attain the age of 65 years unless
    the Council . . . shall request any such Officer to continue
    in office for such period as it shall from time to time
    determine provided that in the case of such persons holding
    office on 30th September, 1977 the date shall be that on
    which they attain the age of 67 years."

    Essentially the argument of Mr. Page is that any member of
    the academic Staff who is appointed until a determined retiring
    age (in his case 67) can only be removed before that date for
    good cause as defined in section 34.2 of the Statutes. The
    provision as to three months' notice has to be read with the
    limitation that there can only be dismissal for good cause. It
    follows that, except in a case where either the common law or
    statute allows instant dismissal (e.g. for gross misconduct) a
    lecturer can only be dismissed for good cause after being given
    three months' notice (though the lecturer can terminate the
    agreement on three months' notice without any reason being
    assigned). A distinction is sought to be drawn between the staff
    included in paragraph 1 of section 34 (being those also falling
    within section 35 and who are appointed until a fixed age) and
    staff not so appointed to whom section 34(3) applies and who may
    be dismissed on the notice period specified in their letter of
    appointment.

    I do not accept this. Although the drafting of the Statutes
    leaves much room for argument (as this case has shown) it seems
    to me that reading the Statutes as a whole 65 is fixed as the
    retiring age for a member of the academic Staff. It is the age
    beyond which a member of Staff may not continue; they "shall
    vacate their Office" (section 35). That provision in itself does not
    guarantee continuance in post until age 65. Whether members of
    Staff can so continue depends on the other terms and conditions of
    the appointment. Those terms in this case include provision for
    termination for good cause under section 34(1) and on three
    months' notice as one of the terms of the appointment under
    section 34(3). This result could have been spelled out more clearly
    in the Statutes but it seems to me to follow from the provisions
    of the Statutes as they stand and, contrary to the argument of
    Mr. Page, to be no more curious than the alternative for which he
    contends.

    It follows in my view that no error of law has been shown
    in the decision of the Visitor and for that reason I consider that
    this appeal like the cross appeal should be dismissed.

    - 21 -


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