[1993]	682
A.C.

[HOUSE OF LORDS]

REGINA v. LORD PRESIDENT OF THE PRIVY COUNCIL, Ex parte PAGE

[On appeal from REGINA v. HULL UNIVERSITY VISITOR, Ex partePAGE]

1992 July 6, 7, 8, 9, 13; Dec. 3

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

Education - University - Visitor's jurisdiction - Dismissal of lecturer - Claim that dismissal ultra vires university statutes - Whether visitor's decision amenable to judicial review - Whether dismissal intra vires statutes

In 1966 the applicant was appointed as a lecturer to the university by a letter stating, inter alia, that his appointment might be terminated by either party giving three months' notice in writing. The appointment was subject to the university statutes, which, inter alia, required the applicant to retire from office at the age of 67. By section 34(1) of the statutes members of the staff who held their appointment until retirement might be removed "for good cause," and by section 34(3) subject to the terms of his appointment no member of the teaching staff could be removed save for good cause. In 1988 the university purportedly terminated the applicant's contract of employment not for good cause but on the ground of redundancy, giving him three months' written notice. He petitioned the visitor of the university for a declaration that such purported dismissal was contrary to section 34 so as to be ultra vires the university's powers and accordingly invalid. The Lord President of the Privy Council acting on behalf of the visitor rejected the petition. The applicant sought judicial review of that decision, and the Divisional Court granted him relief in the form of a declaration. On appeal by the university and the Lord President, the Court of Appeal held that the visitor's decision was amenable to judicial review but that the university had not exceeded its powers in dismissing the applicant and that the dismissal was valid.

On appeal by the applicant and cross-appeals by the university and the Lord President: -

Held, allowing the cross-appeals (Lord Mustill and Lord Slynn of Hadley dissenting) and dismissing the appeal, that, where a visitor's decision was made within his jurisdiction in that he had power under the relevant regulating documents to enter into the adjudication of the dispute in question, his decison was not amenable to challenge by judicial review on the ground of error in fact or law contained in that decision; and that, accordingly, the Divisional Court had had no jurisdiction to entertain the applicant's motion for judicial review (post, pp. 692F-G, 700C-D,703F-H, 704F, G-F).

Philips v. Bury (1694) Holt 715 and Thomas v. University of Bradford[1987] A.C. 795, H.L.(E.) applied.

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Per curiam. Judicial review does lie to the visitor in cases where he has acted outside his jurisdiction in the sense that he did not have the power under the regulating documents to enter into the adjudication of the dispute, or has abused his power, or has acted in breach of the rules of natural justice (post, pp. 692F-G, 704F-G, 705B, 709A).

Decison of the Court of Appeal [1991] 1 W.L.R. 1277; [1991] 4 All E.R. 747 reversed in part.

The following cases are referred to in their Lordships' opinions:

Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2 W.L.R. 163; [1969] 1 All E.R. 208, H.L.(E.)

Appleford's Case (1672) 1 Mod.Rep. 82

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A.

Bently v. Bishop of Ely (1729) 1 Barn. 192

Buller, Ex parte (1855) 1 Jur.(N.S.) 709

Chichester (Bishop of) v. Harward (1787) 1 Durn. & E. 650

Company, In re A (sub nom. In re Racal Communications Ltd.) [1981] A.C. 374; [1980] 3 W.L.R. 181; [1980] 2 All E.R. 634, H.L.(E.)

Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935, H.L.(E.)

Czarnikow v. Roth, Schmidt & Co. [1922] 2 K.B. 478, C.A.

O'Reilly v. Mackman [1983] 2 A.C. 237; [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124, H.L.(E.)

Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488; [1978] 3 All E.R. 841

Pearlman v. Keepers and Governors of Harrow School [1979] Q.B. 56; [1978] 3 W.L.R. 736; [1979] 1 All E.R. 365, C.A.

Philips v. Bury (1694) Holt 715

Reg. v. Independent Television Commission, Ex parte T.S.W. Broadcasting Ltd., The Times, 30 March 1992, H.L.(E.)

Rex v. Bishop of Chester (1747) 1 W.Bl. 22; 1 Wils.K.B. 206

Rex v. Bishop of Ely (1788) 2 Durn. & E. 290

Rex v. Bishop of Ely (1794) 5 Durn. & E. 475

Rex v. Bland (1740) 7 Mod.Rep. 355

Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127; [1950] 2 All E.R. 741, D.C.

Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338; [1952] 1 All E.R. 122, C.A.

Rex v. St. John's College, Cambridge (1694) 4 Mod.Rep. 233

South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union [1981] A.C. 363; [1980] 3 W.L.R. 318; [1980] 2 All E.R. 689, P.C.

Thomas v. University of Bradford [1987] A.C 795; [1987] 2 W.L.R. 677; [1987] 1 All E.R. 834, H.L.(E.)

The following additional cases were cited in argument:

Armitage, decd., In re [1972] Ch. 438; [1972] 2 W.L.R. 503; [1972] 1 All E.R. 708

Attorney-General v. Smythies (1836) 2 My. & Cr. 135

Bayley-Jones v. University of Newcastle (1990) 22 N.S.W.L.R. 424; 65 A.L.J. 299

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Fraser v. Balfour (1918) 34 T.L.R. 502, H.L.(E.)

Gunton v. Richmond-upon-Thames London Borough Council [1981] Ch. 448; [1980] 3 W.L.R. 714; [1980] 3 All E.R. 577, C.A.

Heddon v. Evans (1919) 35 T.L.R. 642

Jones v. Lee [1980] I.C.R. 310, C.A.

Leech v. Deputy Governor of Parkhurst Prison [1988] A.C. 533; [1988] 2 W.L.R. 290; [1988] 1 All E.R. 485, H.L.(E.)

Mackonochie v. Lord Penzance (1881) 6 App.Cas. 424, H.L.(E.)

McClelland v. Northern Ireland General Health Services Board [1957] 1 W.L.R. 594; [1957] 2 All E.R. 129, H.L.(N.I.)

Oakes v. Sidney Sussex College, Cambridge [1988] 1 W.L.R. 431; [1988] 1 All E.R. 1004

Pearce v. University of Aston in Birmingham [1991] 2 All E.R. 461, C.A.

Pearce v. University of Aston in Birmingham (No. 2) [1991] 2 All E.R. 469

Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425; [1979] 2 W.L.R. 42; [1979] 1 All E.R. 701, C.A.

Reg. v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 W.L.R. 1036

Reg. v. Committee of the Lords of the Judicial Committee of the Privy Council acting for the Visitor of the University of London, Ex parte Vijayatunga[1988] Q.B. 322; [1988] 2 W.L.R. 106; [1987] 3 All E.R. 204, D.C.; [1990] 2 Q.B. 444; [1989] 3 W.L.R. 13; [1989] 2 All E.R. 843, C.A.

Reg. v. Panel on Take-overs and Mergers, Ex parte Datafin Plc. [1987] Q.B. 815; [1987] 2 W.L.R. 699; [1987] 1 All E.R. 564, C.A.

Rex v. Army Council, Ex parte Ravenscroft [1917] 2 K.B. 504, D.C.

Rex v. Bishop of Chester (1728) 2 Strange 797

Rex v. Chancellor of St. Edmundsbury and Ipswich Diocese, Ex parte White[1948] 1 K.B. 195; [1947] 2 All E.R. 170, C.A.

Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1951] 1 K.B. 711; [1951] 1 All E.R. 268

Rex v. St. Catherine's Hall, Cambridge (1791) 4 Durn. & E. 233

Thomas v. University of Bradford (No. 2) [1992] 1 All E.R. 964

Whiston v. Dean and Chapter of Rochester (1849) 7 Hare 532

Wislang's Application, In re [1984] N.I. 63

APPEAL and CROSS-APPEALS from the Court of Appeal.

These were an appeal by the applicant, Edgar Page, and cross-appeals by the University of Hull and the Lord President of the Privy Council acting for the visitor of the university by leave of the Court of Appeal (Lord Donaldson of Lymington M.R., Staughton and Farquharson L.JJ.) [1991] 1 W.L.R. 1277 from its decision of 31 July 1991 allowing an appeal by the university and the Lord President from the Divisional Court of the Queen's Bench Division. The Divisional Court, on 27 March 1991, on the applicant's motion for judicial review by way of orders of certiorari and mandamus, had granted him a declaration that on the true construction of the statutes of the university the university had had no power to dismiss him by reason of redundancy and that his purported dismissal was without effect.

The facts are stated in the opinion of Lord Browne-Wilkinson.

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A.C.	Reg. v. Hull University Visitor, Ex p. Page (H.L.(E.))

[LORD KEITH OF KINKEL. Their Lordships will hear argument on the cross-appeals first.]

Michael Beloff Q.C. and Hubert Picarda Q.C. for the university. The issue is whether the courts on an application for judicial review have jurisdiction to quash a decision of the visitor on the ground of error of law where that error of law consists of an alleged misconstruction of the statutes or charter of the university. The university does not propose to argue that judicial review does not lie to a visitor at all: the only question is thus as to its scope. The dicta in Thomas v. University of Bradford [1987] A.C. 795 are inconclusive on the jurisdiction issue and obiter and do not justify the erroneous conclusion of Lord Donaldson of Lymington M.R. [1991] 1 W.L.R. 1277, 1282E-G that the speeches in Thomas"point the way" to the conclusion that the courts have jurisdiction to review a decision of the visitor as to the construction of the university's statutes. The only indication as to what was in the minds of the House of Lords in Thomas as to the scope of judicial review for present purposes is at p. 825B-C. The issue of the extent of such review is open at the level of the House of Lords: see Reg. v. Committee of the Lords of the Judicial Committee of the Privy Council acting for the Visitor of the University of London, Ex parte Vijayatunga [1988] Q.B. 322; [1990] 2 Q.B. 444.

The scope of judicial review of a visitor's decision does not include reviewing mere errors of law not going to his jurisdiction. The visitor has always been recognised as having exclusive jurisdiction over the internal laws of the foundation to deal with such disputes to the exclusion of the courts: see Reg. v. Independent Television Commission, Ex parte T.S.W. Broadcasting Ltd., The Times, 30 March 1992 and Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 229. In one overseas jurisdiction an error of law consisting in misapplying the common law as to damages was held to be capable of being corrected on judicial review: see Bayley-Jones v. University of Newcastle (1990) 22 N.S.W.L.R. 424 which is of persuasive authority only and distinguishable in any event in that it goes to an error of general law: see pp. 436F-437A.

The internal domestic law is in this regard to be treated as distinctfrom the law of the land - a species of foreign law administered by a different jurisdiction: see Phillips v. Bury (1694) Holt 715, 724 and Ex parte Buller (1855) 1 Jur.(N.S.) 709. The visitor stands in the place of the founder who laid down the statutes; it is for this reason that in matters of construction his jurisdiction is exclusive: see Dr. Peter Smith, "The Exclusive Jurisdiction of the University Visitor" (1981) 97 L.Q.R. 610, 614-615, 625. It is a foreign, or different, body of law on which the courts are not competent to adjudicate. The rule applies not only to the original jurisdiction of the court but also to its supervisory jurisdiction: see In re Wislang's Application [1984] N.I. 63 and Thomas v. University of Bradford [1987] A.C. 795. As to matters overtaken by statute, see section 206 of the Education Reform Act 1988; the Employment Protection (Consolidation) Act 1978 and Thomas [1987] A.C. 795, 824.

There is historical support in other areas for limited review of decisions of specialised bodies applying a distinct corpus of law such as ecclesiastical and military law: see Rex v. Chancellor of St. Edmundsbury

[1993]		686
A.C.	Reg. v. Hull University Visitor, Ex p. Page (H.L.(E.))

and Ipswich Diocese, Ex parte White [1948] 1 K.B. 195 and Rex v. Army Council, Ex parte Ravenscroft [1917] 2 K.B. 504. The predominant reason for the courts refraining from reviewing the decisions of ecclesiastical courts and military authorities was a perceived lack of the requisite competence to deal with the special terms of private law with which those bodies are concerned.

The sole and exclusive jurisdiction of the visitor does not preclude supervisory control, but because of the special nature of that jurisdiction the supervisory control has always been of a limited nature. Hitherto, the High Court has interfered in the conduct of visitors only in circumstances (i) where the visitor has exceeded his jurisdiction (see Rex v. Bishop of Chester(1947) 1 Wils.K.B. 206 and Bishop of Chichester v. Harward (1787) 1 Durn. & E. 650, 651); (ii) where the visitor has failed or refused to exercise his jurisdiction (see Rex v. Bishop of Ely (1794) 5 Durn. & E. 475, 477 and Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127) and (iii) where the visitor does not observe the principles of natural justice (see Rex v. Bishop of Chester (1728) 2 Strange 797; Rex v. Bishop of Ely (1788) 2 Durn. & E. 290 and Rex v. Bishop of Ely, 5 Durn. & E. 475, 477). Mandamus was not available to correct a decision of the visitor within his jurisdiction even though the court might think it erroneous: Ex parte Buller, 1 Jur.(N.S.) 709. In the absence of a breach of natural justice, that is still the law. An actual decision of the visitor as to the interpretation of the private laws of the foundation was final and not subject to appeal: Whiston v. Dean and Chapter of Rochester (1849) 7 Hare 532, 561.

Philip Havers for the Lord President. The submissions for the university are adopted by the Lord President.

Although the court has been invited to "review" the visitor's decision, the true nature of the application is not of an application for judicial review of his decision but of an appeal from his decision as to the interpretation of the private laws of the foundation. Indeed, the Divisional Court was asked to substitute its own decision for that of the visitor.

Undesirable consequences will ensue if the decision of a visitor as to the interpretation of the private laws of the foundation are amenable to judicial review. First, the visitor's interpretation of the private laws of the foundation will no longer be final and the Divisional Court would have to deal with a multiplicity of college and university disputes turning purely on questions of construction of university or college statutes for which it is not the appropriate forum. Secondly, the considerable advantages inherent in the exclusivity of the visitor's jurisdiction will be lost: see Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, 1499 and Rex v. St. Catherine's Hall, Cambridge (1791) 4 Durn. & E. 233. Thirdly, the visitor's jurisdiction will be undermined. Hitherto, whenever a dispute has arisen as to the meaning of the private laws of a foundation of which the Queen is the visitor, the Lord Chancellor has either sat personally or appointed a senior appellate judge to hear the appeal on behalf of the Queen. Where the Lord President of the Council is visitor acting on behalf of the Queen he has been accustomed to taking the advice of a Law Lord. If the decision of the Court of Appeal is

[1993]		687
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confirmed on the jurisdiction issue, it will always be open to the unsuccessful party to seek to persuade the High Court to overrule the decision of a Law Lord, perhaps on the basis of an argument that was never put to him. The question arises, therefore, whether it would still be appropriate for the Lord President to seek the advice of a Law Lord in such circumstances.

[LORD BROWNE-WILKINSON. Is there any case where use of the prerogative writs has been sought to quash a decision of a visitor as to the interpretation of the instruments of a foundation?]

Given the way in which the decision of the visitor has been described in many cases as exclusive or uncorrectable, however erroneous (see Rex v. Bishop of Ely, 5 Durn. & E. 475 and Ex parte Buller, 1 Jur.(N.S.) 709), it is not surprising that attempts to challenge the visitor's jurisdiction were ultimately abandoned. The courts were only prepared to issue the prerogative writs where he had exceeded his jurisdiction, etc. It is not because this is entirely a matter of contract between the applicant and the university that judicial review would not apply.

Jeffrey Burke Q.C. and Brian Langstaff for the applicant. The visitor's jurisdiction is not exclusive in the sense that the courts cannot intervene to correct its exercise by judicial review on ordinary principles. It is exclusive in that (i) courts of first instance have no jurisdiction to entertain claims made by members of a university against the university; and (ii) the courts have no appellate (as opposed to supervisory) jurisdiction over the visitor. The supervisory jurisdiction of the courts is not excluded. [Reference was made to Thomas v. University of Bradford[1987] A.C. 795, 824G-825C, 828A; Reg. v. Committee of the Lords of the Judicial Committee of the Privy Council acting for the Visitor of the University of London, Ex parte Vijayatunga [1988] Q.B. 322, 331D-332B and Council of Civil Service Unions v. Minister for the Civil Service[1985] A.C. 374, 410.] An error of construction of the university statutes may be corrected by the issue of certiorari: see Vijayatunga's case [1988] Q.B. 322, 332E-333B, 335B-C; [1990] 2 Q.B. 444, 458 and Bayley-Jones v. University of Newcastle, 65 A.L.J. 299, 300. The courts have not universally refused to exercise a supervisory control over the decisions of a visitor in so far as they relate to his interpretation of the statutes of the university. Thus, in Bently v. Bishop of Ely (1729) 1 Barn. 192 the issue was the proper construction of the statutes of a college having a visitor and whether the visitor's construction was correct. In Attorney-General v. Smythies (1836) 2 My. & Cr. 135, the court resolved disputed questions of interpretation relating to a college or hospital of which there was a visitor.

It is established that the court has power to intervene fully by way of judicial review in relation to the interpretation of the rules even of a self-regulating body, such as the Panel on Take-overs and Mergers: Reg. v. Panel on Take-overs and Mergers, Ex parte Datafin Plc. [1987] Q.B. 815. There is no authority supportive of an attenuated form of judicial review applicable to any decision-making body.

Certiorari does not lie at all in cases of ecclesiastical law, which has its own appeal structure: Rex v. Chancellor of St. Edmundsbury and Ipswich Diocese, Ex parte White [1948] 1 K.B. 195. In contrast, Thomas

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establishes that it does lie in the field of the visitatorial jurisdiction. Military law is a creature of statute and also has its own system of internal appeals. Further, even prior to the introduction of R.S.C., Ord. 53, the approach to whether certiorari would lie in questions of military law was in any event an open question: see Fraser v. Balfour (1918), 34 T.L.R. 502. This was expressly reaffirmed in Leech v. Deputy Governor of Parkhurst Prison [1988] A.C. 533, 582A-C. Since the introduction of Order 53, certiorari would lie even in a military case (if the statutory framework of military law permitted it) and to supervise the proceedings of prison boards of visitors, though not to disciplinary decisions of prison governors: Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain [1979] Q.B. 425, 466G-H.

There is no room for the argument that a visitor is interpreting or applying a peculiar private law of which he is the only arbiter. There is no reason to suppose that a charter granted post-war was intended by its grantor, the Crown, to establish a system of private law distinct from the general law of the land. The express words of the last sentence of clause 15 of the charter demonstrate that the statutes are to be interpreted according to the law of the land. Thomas v. University of Bradford[1987] A.C. 795, 824C-E recognises that industrial tribunals may have to resolve questions of law relating to the construction of the charter, statutes and ordinances of a university.

Wade, Administrative Law, 6th ed. (1988), pp. 647-648, is addressing private law cases, not, as here, a public law decision affecting private rights. [Reference was made to section 206 of the Education Reform Act 1988 and Pearce v. University of Aston in Birmingham [1991] 2 All E.R. 461.]

A modern university is a very different creature from an eleemosynary body such as that in Philips v. Bury, Holt 715. There is some authority that "eleemosynary" is connected with relieving distress: see In re Armitage, decd. [1972] Ch. 438; Halsbury's Laws of England, 4th ed., vol. 5 (1974), p. 436, para. 705 and Blackstone's Commentaries3rd ed. (1853), pp. 587-588. A modern university is not founded for the distribution of alms by the founder, or for any alms or bounty at all. It is founded for the provision of education; it is part of the public education system: see clauses 10 and 15 of the charter and contrast Rex v. St. John's College, Cambridge (1694) 4 Mod.Rep. 233. [Reference was also made to Dr. J. W. Bridge, "Keeping Peace in the Universities: The Role of the Visitor" (1970) 86 L.Q.R. 531, 532, 533.] There have never been any special rules or special meanings or canons of construction for the visitor to apply in interpreting university statutes: see Pearce v. University of Aston in Birmingham (No. 2) [1991] 2 All E.R. 469 and Thomas v. University of Bradford (No. 2) [1992] 1 All E.R. 964.

[LORD BROWNE-WILKINSON. What about all the other internal disputes that may occur in colleges: would they be susceptible to judicial review?]

The fact that there may be such informal disputes does not derogate from the applicant's submissions. The courts would take a different view as to judicial review, having regard to the subject matter involved. It is most unlikely that they would give leave to apply.

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In the modern law of judicial review, once certiorari applies it applies across the board. There is no warrant in principle or authority for saying that there is some element of certiorari (or the other prerogative remedies) that does not apply to any public decision-maker making a decision that is either established or accepted to be subject to judicial review as a whole. [Reference was made to Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147; In re A Company (sub nom. In re Racal Communications Ltd.) [1981] A.C. 374; O'Reilly v. Mackman[1983] 2 A.C. 237; Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1951] 1 K.B. 711; [1952] 1 K.B. 338; Wade, Administrative Law, p. 731; Reg. v. Panel on Take-overs and Mergers, Ex parte Datafin Plc. [1987] Q.B. 815; Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; Reg. v. Independent Television Commission, Ex parte T.S.W. Broadcasting Ltd., The Times, 30 March 1992 and Bayley-Jones v. University of Newcastle, 22 N.S.W.L.R. 424; 65 A.L.J. 299.] In re Wislang's Application [1984] N.I. 63 does not support the university's proposition. For the "floodgates" argument, see Leech v. Deputy Governor of Parkhurst Prison [1988] A.C. 533, 582F. None of the old cases support the proposition that judicial review of error in interpretation of statutes is excluded. They do not support the "ring fence" around construction of the statutes: see Philips v. Bury, Holt 715; Bently v. Bishop of Ely, 1 Barn. 192; Attorney-General v. Smythies, 2 My. & Cr. 135; Rex v. Bishop of Chester (1747) 1 W.Bl. 22; Rex v. Bishop of Ely, 5 Durn. & E. 475; Rex v. St. Catherine's Hall, Cambridge, 4 Durn. & E. 233 and Ex parte Buller, 1 Jur.(N.S.) 709.

Langstaff following. Neither the military nor the ecclesiastical authorities provide any warrant for an attenuated form of certiorari. One can see some basis in the ecclesiastical authorities for the contention that certiorari should not lie at all, but those cases where it was held that there was no certiorari are no help in deciding whether there should be an attenuated form when it does lie. As to whether ecclesiastical law is a completely separate system in which the common law courts have no part, see Mackonochie v. Lord Penzance (1881) 6 App.Cas. 424 and Rex v. Chancellor of St. Edmundsbury and Ipswich Diocese, Ex parte White [1948] 1 K.B. 195. The ecclesiastical courts are a separate jurisdiction, but the law is not a separate law.

The military authorities give no support for the two propositions for which they have been cited. Rex v. Army Council, Ex parte Ravenscroft [1917] 2 K.B. 504 is not authority for the proposition that the courts would never interfere in this limited sphere because the military applies an entirely distinct law. The modern effect of the cases is summarised in Leech v. Deputy Governor of Parkhurst Prison [1988] A.C. 533, 541. [Reference was also made to Fraser v. Balfour, 34 T.L.R. 502, 503 and Heddon v. Evans (1919) 35 T.L.R. 642.]

Beloff Q.C. in reply. Prohibition to prevent the visitor acting contrary to the rules of natural justice, or certiorari to quash his decision when he does so, lies because he has trespassed beyond the bounds of his jurisdiction altogether, but it does not follow that such remedies will go

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where he is completely within his jurisdiction and is carrying out the very function allocated to him alone.

As to the general law of judicial review, Wade, Administrative Lawpp. 299-303, says that the main current of judicial opinion is running in favour of holding all errors of law to be reviewable. That is the highest authority, prior to Reg. v. Independent Television Commission, Ex parte T.S.W. Broadcasting Ltd., The Times, 30 March 1992 on that open question. That case is an apparent departure from the orthodox approach.

The question is whether the type of error that attracts judicial review can be detected in the visitor's decision. There is no error in it as to the general law of the land. It is an error in peculiar or exotic law. [Reference was made to Oakes v. Sidney Sussex College, Cambridge [1988] 1 W.L.R. 431, 440H-441H.] So, uniquely, certiorari should lie on two of Lord Diplock's three grounds (impropriety and irrationality) in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, but not the third, illegality.

As to whether there is any analogy with rabbinical law as applied by the Beth Din, see Reg. v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 W.L.R. 1036.

The concept that universities such as Hull could be described as eleemosynary corporations is contrary to Patel v. University of Bradford Senate[1978] 1 W.L.R. 1488 and to Dr. J. W. Bridge, "Keeping Peace in the Universities: The Role of the Visitor," 86 L.Q.R. 531. It is not established that the universities themselves are amenable to judicial review: see Wade, Administrative Law, pp. 648-649. Clause 10 of the university's charter recognises that the statutes of the university form a separate regime, and clause 15 recognises the difference between, not the identity of, the statutes and charter and the laws of the realm. [Reference was made to South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union [1981] A.C. 363, 374.]

There is no express reference in the statutes to whether the power granted to the visitor under clause 3 of section 34 gives him an adjudicative role at all: see Dr. Peter Smith, "The Exclusive Jurisdiction of the University Visitor," 97 L.Q.R. 610, 611 and Tudor, Charities, 7th ed. (1984), p. 318. Where a visitor is established, he is presumed to enjoy the traditional powers unless it is provided to the contrary.

As to Reg. v. Panel on Take-overs and Mergers, Ex parte Datafin Plc. [1987] Q.B. 815, the objection before Auld J. to the writ was not that it was a public law matter but that it was a jurisdiction of which the courts could not have cognisance: private law not as distinct from public law but as an exotic form of law.

Bayley-Jones v. University of Newcastle, 22 N.S.W.L.R. 424 is only persuasive at highest, and the analogy drawn is distant. It is not a case about construction of the university statutes.

The crucial distinction that the applicant failed to draw was between cases concerned with the courts identifying the boundaries of the visitor's jurisdiction and cases where the visitor has misidentified the scope or power of the various officers and institutions of the university: see Philips

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v. Bury, Holt 715; Bently v. Bishop of Ely, 1 Barn. 192; Attorney-General v. Smythies, 2 My. & Cr. 135; Thomas v. University of Bradford [1987] A.C. 795, 823; Rex v. Bishop of Chester, 1 W.Bl. 22; Rex v. Bishop of Ely, 5 Durn. & E. 475 and Ex parte Buller, 1 Jur.(N.S.) 709.

As to the applicant's submissions raising ecclesiastical and military law by way of perceived analogy, it would not destroy the university's argument if they were not analogous, but in Rex v. Chancellor of St. Edmundsbury and Ipswich Diocese, Ex parte White [1948] 1 K.B. 195, 220, it was recognised that there was some analogy.

Havers in reply. [Reference was made to Philips v. Bury, Holt 715, 721; Rex v. St. John's College, Cambridge, 4 Mod.Rep. 233; Bently v. Bishop of Ely, 1 Barn. 192; Rex v. Bland (1740) 7 Mod. Rep. 355; and Rex v. Bishop of Ely, 2 Durn. & E. 290.] Dr. Smith's article, "The Exclusive Jurisdiction of the University Visitor," 97 L.Q.R. 610, 611-612 is in part overtaken by Thomas.

Burke Q.C. on the new cases cited in reply. In Ex parte Wachmann[1992] 1 W.L.R. 1036 the Chief Rabbi's decision was not within the public function, any more than would be such a decision in the case of any non-established religion. The question in Rex v. St. John's College, Cambridge, 4 Mod. Rep. 233 was whether the statute 1 Will. & Mary, sess. 1, c. 8 was of a nature that prevailed over the statutes of the college. If there is a specific statute affecting what goes on in a college it must be adhered to. It does not exclude the ordinary powers of the common law. In Rex v. Bland, 7 Mod.Rep. 355 there was no question as to the nature or limits of a visitor's jurisdiction. The general propositions in that case should not be treated as applying beyond the issues that arose. Rex v. Bishop of Ely, 2 Durn. & E. 290 was a natural justice type of case. The procedure was not common law, but it complied with requirements of fairness.

Burke Q.C. on the appeal. On the proper construction of the university's statutes, a member of the academic staff holding his appointment until retirement cannot be dismissed other than for good cause as defined by the statutes and cannot be dismissed in the absence of good cause simply by three months' notice in reliance on the words in the letter of appointment. The protection given by the "good cause" provisions of section 34(1) of the statutes is common to all or almost all universities. Its important purpose is to preserve and secure the principle of academic freedom by providing that academic staff have security of tenure: see Pearce v. University of Aston in Birmingham (No. 2) [1991] 2 All E.R. 469 and sections 202 to 205 of the Education Reform Act 1988.

If the words "subject to the terms of his appointment" in section 34(3) enabled the university to rely on the three-month notice provision in the letter of appointment so that the applicant could be dismissed on three months' notice without any need to show good cause, the good cause provisions in section 34 are necessarily deprived of any substantial force or effect. There does not need to be an enabling provision in section 34(3) because the common law gives it: reasonable notice. One needs a restrictive provision, and it is in 34(3). McClelland v. Northern Ireland General Health Services Board [1957] 1 W.L.R. 594 also shows

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that, where there is an enabling provision in a permanent contract, a restrictive provision is not required.

Where many of the circumstances in which good cause could be established would not justify instant dismissal in the absence of any express provision, it was open to the parties to agree, as they did, to an express provision that there should be three months' notice. There will always be cases within the definition of "good cause" in section 34(2) in which notice will be required either by common law or by statute (the Employment Protection Act 1978). "Good cause" encompasses not just gross misconduct but also something short of that. The letter of appointment sets out the notice that is required in a good cause case. Where a contract of employment contains both a provision giving protection against dismissal, substantive or procedural, and a provision entitling the employer to dismiss on notice, those provisions should be read so as to operate together and complementarily to each other and not so as to enable the employer by serving a notice to avoid the protection of the provisions: Gunton v. Richmond-upon-Thames London Borough Council [1981] Ch. 448 and Jones v. Lee [1980] I.C.R. 310. Any doubt should be resolved in favour of the employee.

The true construction of section 34 is that accepted by the Divisional Court, namely that each of sections 33, 34(1) and 34(3) applies to a different group or class of appointees. The important contrast is between "holding their appointments until the age of retirement" in section 34(1) and "subject to the terms of his appointment" in section 34(3). The meaning of the first expression is "appointed to hold their offices until the age of retirement;" the second expression looks, in contrast, to appointment on a different and non-permanent basis. The applicant, admittedly within 34(1), does not fall within 34(3).

[LORD KEITH OF KINKEL. Their Lordships need not trouble the university and the Lord President to address them on the construction issue.]

Their Lordships took time for consideration.

3 December. 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 in draft the speech of Lord Browne-Wilkinson with which I agree and I would dismiss this appeal and allow the cross-appeals 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

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Court and the Court of Appeal [1991] 1 W.L.R. 1277 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.

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 In re A Company (sub nom. In re Racal Communications Ltd.) [1981] A.C. 374.

The common law has ever since the decision in Philips v. Bury (1694) Holt 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's case [1987] A.C. 795, 825:

"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 power" 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 In re A Company shows that Parliament can by the use of appropriate language provide that a decision on a question of law

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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 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 (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). 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 ground 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 emphasise 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. . . . 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."

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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 common ground that there was no "good cause" within the meaning of section 34; the university was relying 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.) [1991] 1 W.L.R. 1277 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

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A.C.	Reg. v. Hull University Visitor, Ex p. Page (H.L.(E.))	Lord Browne-Wilkinson

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 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, Thomas's 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 was "exclusive." Thomas's case 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 said, at p. 825:

"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 a 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 said, at p. 828, 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, Holt 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, at p. 719, 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

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concerning the [visitor's] power." He contrasted private charitable bodies with public corporations and said, at pp. 723-726:

"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, Holt C.J. said, at pp. 727-728:

"I know no difference between this case and that of a mandamus. In that case of Appleford (Appleford's Case (1672) 1 Mod.Rep. 82) 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

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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?"

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 v. University of Bradford [1987] A.C. 795. 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 Rex v. Bishop of Ely (1794) 5 Durn. & E. 475 and Rex v. Dunsheath, Ex parte Meredith [1951] 1 K.B. 127, 134. The court will also grant prohibition to restrain a visitor from acting outside his jurisdiction: Bishop of Chichester v. Harward (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. 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., in Philips v. Bury, 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 Rex v. Bishop of Chester (1747) 1 W.Bl. 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, at p. 26: "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 Rex v. Bishop of Ely, 5 Durn. & E. 475 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 ground that the earlier appeal to the visitor had been no true appeal at all. His

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counsel admitted that, by reason of Philips v. Bury, Holt 715, the court had no power to order the visitor to correct his decision however erroneous. Lord Kenyon C.J. said, 5 Durn. & E. 475, 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 Jur.(N.S.) 709 the applicant had been expelled from his fellowship by the provost and fellows of King's 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 C.J. in Rex v. Bishop of Ely, 5 Durn. & E. 475, 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 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 Rex 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, 1 Jur.(N.S.) 709 ("a peculiar system" which is not required to be in

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accordance with common law). In Thomas v. University of Bradford [1987] A.C. 795 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 and learned friend, Lord Griffiths, referred, at pp. 814-815, to the visitor's jurisdiction stemming from the power of the founder

"to provide the laws under which the object of his 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, at pp. 815d and 816b, to the laws as being "domestic" and "the internal laws of the foundation." Lord Ackner referred, at p. 827, 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 [1991] 1 W.L.R. 1277 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 v. University of Bradford 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's case 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

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Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 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 apply, may lead to his decision being quashed. In the present case, since the decision in Thomas v. University of Bradford [1987] A.C. 795 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 (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223), 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, Administrative Law, 6th ed. (1988), pp. 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 of law appeared on the face of the record: Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338.

In my judgment the decision in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 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 Anisminic is still in doubt: Administrative Law, 6th ed., pp. 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 p. 278, 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

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by them within their jurisdiction. The break-through 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."

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 Reg. v. Independent Television Commission, Ex parte T.S.W. Broadcasting Ltd., The Times, 30 March 1992, 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 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 (including the passage, at p. 229, "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 cognisance. 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

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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. Keepers and Governors of Harrow School [1979] Q.B. 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, Geoffrey Lane L.J. dissented. He held that the judge had done nothing 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 Geoffrey Lane L.J. has been approved by the Privy Council in South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union [1981] A.C. 363, 370e-f and by a majority in this House in In re A Company [1981] A.C. 374, 384b-d and 390f-391d. In the latter case, Lord Diplock pointed out, at pp. 382-383, that the decision in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 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 ground of error of law. He submitted that the concept of a peculiar domestic law differing from the

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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 & Co. [1922] 2 K.B. 478, 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 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 Thomas v. University of Bradford [1987] A.C. 795: see perLord Griffiths, at p. 825d; see also Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488, 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 (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223) 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 [1991] 1 W.L.R. 1277 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

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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 than that, with due 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. 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 Department of Philosophy 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 [1991] 1 W.L.R. 1277 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 of 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] A.C. 363, I would now follow the opinion of Lord Diplock in In re A Company [1981] A.C. 374, 382-

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383 (with which Lord Keith of Kinkel agreed) and in O'Reilly v. Mackman [1983] 2 A.C. 237, 278 (with which the other members of the Appellate Committee agreed. In the former Lord Diplock said, at p. 383:

"The break-through made by Anisminic Ltd. v. Foreign Compensation Commission[1969] 2 A.C. 147 was that, as respects administrative tribunals and authorities, 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, at p. 278, 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 break-through 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 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.

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. The same applies to visitors to other eleemosynary foundations such 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, Holt 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, at p. 719, 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. 723:

"First, whether the sufficiency of the sentence, as to the cause, be examinable in the common law courts? And, secondly, whether the

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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:

"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 . . . 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 Rex v. St. John's College, Cambridge (1694) 4 Mod.Rep. 233, 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 Rex v. Bland (1740) 7 Mod.Rep. 355, and in 1794 in Rex v. Bishop of Ely, 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, 1 Jur.(N.S.) 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 Rex v. Bishop of Ely, Lord Kenyon C.J. refused the rule upon this ground, and says, '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 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.'"

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

In Rex v. Bishop of Ely (1788) 2 Durn. & E. 290, and again in Rex v. Bishop of Ely, 5 Durn. & E. 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, 1 Durn. & E. 650; see also Bently v. Bishop of Ely, 1 Barn. 192.

Thus despite the rule in Philips v. Bury, Holt 715, some control over the exercise of jurisdiction was well recognised. The position is summarised in Rex v. Bishop of Chester, 1 W.Bl. 22, 25, 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, at p. 825, however:

"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 said, at p. 828:

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

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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 respectfully agree with Lord Griffiths that certiorari would nonetheless go to quash a decision of the visitor which amounted to an abuse of his power. The question in the present case however 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., at, e.g. pp. 299-303. The old cases which I have cited have to be read subject to that development and not least to what was said in Thomas's case.

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) then it should be available also in respect of a decision of a visitor.

I am not persuaded that the jurisdiction 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.

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

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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 decisions 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 1 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 [of the university] 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."

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."

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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 (and 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 and 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 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 30 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 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

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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 clause 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-appeals should be dismissed.

Order of Court of Appeal of 31 July 1991 affirmed save as to costs and appeal dismissed.

Applicant to pay costs of university and Lord President in House of Lords and below.

Solicitors: Robin Thompson & Partners; Nabarro Nathanson for Nabarro Nathanson, Hull; Treasury Solicitor.

M. G.