Bruce Beckles, ‘INDEPENDENCE ≠ ABSOLUTION’

INDEPENDENCE ≠ ABSOLUTION

In the prosecution and sentencing of Owen Holland, the University has repeatedly pointed to the independence of individual University Officers (the University Advocate [1]) or statutory bodies (the University’s Court of Discipline [2]), as though this somehow absolves it not only of all responsibility for their actions, but also of any duty to remedy those actions should they be faulty.  From a legal point of view, this is nonsense: should legal proceedings (whether criminal or civil) be initiated in response to the actions in this case of the University Advocate or the Court of Discipline, it is the University one would expect to be the respondent and to be held liable by the court.

Even the quasi-judicial Court of Discipline implicitly acknowledges this: the case before that Court was “University of Cambridge v Mr O Holland” not “Dr R Thornton v Mr O Holland”.  Furthermore, as the complaint against Mr Holland was made by the Proctors, the University’s own Ordinances make clear that in prosecuting the case before the Court of Discipline the University Advocate was acting on behalf of the University.  The relevant section of the Ordinances reads:

If a charge arises from a complaint made by the Proctors, the Advocate shall be responsible for presenting the case on behalf of the University. [3 - emphasis mine]

Indeed, the idea that an institution is legally responsible for the actions of those it has empowered to act on its behalf when they are carrying out their duties is hardly a new one: employment tribunals are only too familiar with this principle.  If a Head of Department were to go around “independently” victimising members of staff, would the University really claim before an employment tribunal that it was in no way responsible?  (If so, no wonder the University prefers to settle when staff and former staff haul it before employment tribunals.)

The Court of Discipline and the University Advocate receive their authority from the Statutes and Ordinances of the University.  The University is unequivocally responsible for its Ordinances [4] and, subject to Privy Council approval, for its Statutes[5].  To say it is in no way responsible for the behaviour of bodies and individuals empowered under statute would be like the government claiming it was in no way responsible for the prosecution and sentencing of homosexuals under anti-gay legislation.  We would not hesitate to reject such claims out of hand where a government was concerned, and we should not hesitate to do so where the University is concerned, either.

And even if the University Advocate and the Court of Discipline have somehow “gone rogue” – which the University seeks slyly to imply by distancing itself from the official actions of its Officers and Courts – it is still within the University’s power to curb their excesses and remedy any wrongs they have committed.  Specifically, the University Council could lay a Grace [6] before the Regent House [7] overturning or commuting Mr Holland’s sentence, or changing the Statutes and Ordinances under which the Advocate and the Court operate.  (Such a Grace would, of course, be subject to Regent House approval, so if the Regent House failed to approve it then, and only then, would the Council be able to say it was not responsible for what had happened.  Since, however, as far as anyone outside the Council can tell, this has not even been attempted, the Council should most certainly be held accountable for what has happened thus far.)

Finally, the Vice-Chancellor has the power under section 5 of Statute K [8] to nullify any action taken by a person or body operating under statute if he believes they have acted in violation of the Statutes, Ordinances or Orders.[9] So if a credible case can be made that the Advocate or the Court were acting in violation of the University’s Statutes and Ordinances then it is directly within the Vice-Chancellor’s power to remedy the situation.  As far as I’m aware there hasn’t been a detailed examination of the actions taken in Mr Holland’s case to see whether any were in violation of the Statutes and Ordinances – and, of course, it should be remembered that the Human Rights Act 1998 requires the University’s Statutes to be “read and given effect in a way which is compatible with the [rights and freedoms guaranteed under the European Convention on Human Rights]” [10], rights such as freedom of expression and freedom of assembly (since the University’s Statutes are “subordinate legislation” for the purposes of that Act [11]).

Thus not only is it unreasonable for the University to imply or claim that it is not responsible for Mr Holland’s prosecution and sentencing, but we should also all be aware that remedy for these actions lies well within the University’s power, and may even lie directly within the Vice-Chancellor’s power.  The supposed independence of the University Advocate and the Court of Discipline do not absolve the University of responsibility, and they most certainly do not leave it incapable of correcting the injustice its Court has inflicted upon one of its students.

BRUCE BECKLES is a member of the University’s governing body, the Regent House; a University Officer; and an elected member of the University’s Board of Scrutiny from 1 October 2011 to 30 September 2015.

________________________________________________________

[1] http://www.varsity.co.uk/news/4534

[2] http://www.guardian.co.uk/education/2012/mar/14/cambridge-student-ban-protest-david-willetts

[3] Regulation 2(b) of Ordinances, Chapter II, UNIVERSITY COURTS,
Initiation of proceedings before the University Tribunal, the Court of Discipline, or the Summary Court (Statutes and Ordinances 2011, p. 200): http://www.admin.cam.ac.uk/univ/so/2011/chapter02-section18.html#heading2-23

[4] Section 1 of Statute A, Chapter II (Statutes and Ordinances 2011, p.
5): http://www.admin.cam.ac.uk/univ/so/2011/statute_a-section2.html#heading2-2

[5] The Universities of Oxford and Cambridge Act 1923: http://www.legislation.gov.uk/ukpga/Geo5/13-14/33

[6] A Grace is a motion for decision presented to the University’s governing body, the Regent House.  See http://www.cam.ac.uk/univ/works/graces.html.

[7] Section 1(e) of Statute A, Chapter IV (Statutes and Ordinances 2011, p.
7): http://www.admin.cam.ac.uk/univ/so/2011/statute_a-section4.html#heading2-4

[8] Statutes and Ordinances 2011, p. 70: http://www.admin.cam.ac.uk/univ/so/2011/statute_k-front.html

[9] Roughly speaking, Orders are Graces of the University which do not directly modify the University’s Statutes and Ordinances.

[10] Section 3(1) of the Human Rights Act 1998: http://www.legislation.gov.uk/ukpga/1998/42/section/3

[11] As the University’s Statutes are made under the Universities of Oxford and Cambridge Act 1923, they fall into category (f) of “subordinate legislation” as defined in section 21(1) of the Human Rights Act 1998: http://www.legislation.gov.uk/ukpga/1998/42/section/21

2 responses to “Bruce Beckles, ‘INDEPENDENCE ≠ ABSOLUTION’

  1. Pingback: ‘INDEPENDENCE ≠ ABSOLUTION’ « Reinstate Owen Holland

  2. Pingback: Cambridge University must overturn this suspension for reading a poem | James Everest | Old News

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