Just visiting?

The visitorial system is an archaic jurisdictional weirdness which still in place at some higher education providers with royal charters.

Originally it was established (at, inevitably, Oxford) as a mechanism to try serious crimes committed by the (entirely male trainee clergy) medieval student body that would otherwise have only been heard in a church court, as like all clergy students would not have been subject to the jurisdiction of secular courts.

Though church courts were and are still a thing – they deal with the conduct of clergy as a kind of ecclesiastical human resources department – it was generally thought at the time that murders committed by students needed something a little more robust. Universities became an independent, separate, legal authority – based on their own charters, rules, and regulations – with an appointed “visitor” the independent head of this system.

As time passed actual crimes committed by university staff and students became subject to the same laws as everyone else. Student complaints have since the 2004 Higher Education Act (s20) been dealt with by the Office for the Independent Adjudicator (OIAHE, in England and Wales, SPSO in Scotland), while most (though not quite all) issues between staff and their employer are dealt with by employment tribunals (under the terms of the 1988 Education Reform Act). And most modern universities do not have a charter, and thus do not have a visitor.

Broadly speaking, a university visitor (or their representative, given that the named person is quite often the King – and probably has more pressing things to do) is there to ensure a university complies with its own rules – in particular the charter under which it was founded. They were either appointed by the founders themselves (tending to be royalty, bishops, hereditary peers, or the Privy Council), or appointed via an Order of (university) Council. With judging compliance in the matter of student complaints processes or how it acts as an employer now a matter for other authorities, the current ambit of the visitor is not always clear.

The acknowledged and authoritative reference point on the law of higher education in the UK is Palfryman and Farrington’s Law of Higher Education. Even this expert commentary struggles to find examples of what visitors actually get to do – they suggest the allocation of the proceeds of exploiting intellectual property, and, er, car parking. A part of this is because the decisions or findings of visitors are very seldom published, so we don’t really know what issues tend to come before them in this post OIAHE world.

We are left with a general sense that visitors ensure that university rules are properly applied, and are able to rule on such issues outside of exemptions set out in secular law (the employment and student complaint) as above. The role is one of a backstop – a final arbitration when the universities internal processes are exhausted, which is similar to the conditions under which OAI can act on student complaints.

Importantly, common law seems to have established that the visitor has exclusive jurisdiction in matters relating to university rules – or, as they are sometimes called, university statutes. Unless there is a specific law that takes the power to deal with a matter away from the visitor, this persists. Otherwise visitors – and only visitors – have exclusive jurisdiction over whether a university is fairly and correctly applying its own internal rules.

This is the nub of one of the arguments put forward by the University of Sussex in a Judicial Review of the decision of the Office for Students to levy a fine because the university did not apply “governing documents that deal with delegation arrangements“ correctly (that’s the E3 breach). Sussex’s legal team argued today that OfS was ultra vires (did not have the necessary powers) to make that judgement and thus levy that fine.

Here’s how that was put in the Statement of Facts and Grounds (Jim wrote up the whole thing when it was first published):

The University is an exempt charity established by Royal Charter. The University’s Visitor is the King. The King has the exclusive jurisdiction – subject to any abrogation of that jurisdiction by Parliament – to determine whether the University has breached any of its internal laws. Parliament has not authorised the OfS to intrude upon the Visitor’s jurisdiction in HERA 2017 or any other statute. The OfS accordingly has no power to find, as it has in the final decision, that the University breached its internal scheme of delegation. The OfS’ decision is accordingly also ultra vires on that basis

(as a point of clarification, for practical purposes the Lord President of the Privy Council is the university visitor for Sussex on the King’s behalf)

If Justice Leiven agrees, it is pretty clear that this would have very far reaching consequences for the whole sector in England. Assessing compliance with point one of condition E2 – whether a provider “operates in accordance with its governing document” – would have been determined as not being something that OfS had the power to determine in cases where the university has a visitor. Because the visitor would have exclusive jurisdiction over such matters.

It would be a severe limitation of what OfS can do with respect to ensuring good governance. But only with respect to higher education providers that have a charter, and thus a visitor – the very opposite of the “level playing field.” It is difficult to imagine anyone being satisfied with different universities being regulated in different ways as a result of an accident of their birth – but that would point to a need to update the law, rather than act as a reason not to make the finding.

And that’s the kind of thing judicial reviews often end up bringing about.

The hearing will continue on Wednesday 4 February and Thursday 5 February in the High Court.