St Andrews rector wins appeal

We looked in detail at the affair on the site back in November, but there’s a few notable things about what has emerged now in the context of both governance and freedom of speech.

As such it’s partly a case about elected roles that end up, ex-officio, as trustees – there’s lots of those in SUs and it’s a characteristic of the role of Rector in the Scottish ancients – and what they can and can’t do and say when in that role.

It’s also about rules that govern the conduct of governors of both universities and SUs more generally, and what any “appeal” in processes that surround that can and can’t consider.

Background

The decision to discharge Maris was the conclusion of a lengthy process which began in November 2023 when, as Rector, she issued a message to all 10,000 St Andrews students offering her opinions on the conflict in Gaza and Israel.

She then published a series of posts on social media, some of which a subsequent KC-led investigation found were “discourteous and disrespectful” in the way in which they “dismissed fears raised by students” who had contacted her seeking reassurance.

After concerns were raised by students and others, the university Court commissioned an independent investigation to examine whether the Rector’s actions and activities were compatible with the responsibilities and standards placed on her as a member of Court, and the legal requirements of a charity trustee.

The university then argued that Maris “refused to comply” with her duties as a member of the university court (which Maris contests), and that there had been “no option but to discharge her”.

Ex-officio?

In the university’s communications last year on the issue, it said that that Marris was:

…to be discharged from the role of President of Court and as a charity trustee.

But it also said:

…Maris will retain the title and office of Rector of the University until her term expires in October 2026, but will no longer sit on Court, the University’s supreme governing body.

In other words, in the decision reached by Court (that’s the governing body in Scotland), there was an attempt to separate the roles of Rector as trustee (and chair) of Court, and the more ceremonial and pastoral roles held by the position of Rector in the Scottish ancients.

We understand that that has been the source of some conflict during the process that has unfolded, with disagreement over whether the Chancellor was able to resolve an appeal over the “trustee” aspects given the Court had made its decision.

What’s now clear here is that St Andrews’ Chancellor Lord (Menzies) Campbell of Pittenweem does believe that he has the power to hear the Rector’s appeal against removal as a trustee of the university.

That’s all interesting because of the fudge that’s in the Act from the middle of the last decade that sought to tidy up Scottish HE governance. As Dennis Farrington (co-author of The Law of Higher Education) said last year:

The role and function of the Rector as chair of the Court is established in the Universities (Scotland) Acts 1858 s. 4, 1889 s.5 and 1966 Schedule 1. These are preserved in the 2016 Act of the Scottish Parliament. There is no provision for removal of the Rector in these laws. The current Rector has been removed, subject to right of appeal to the Chancellor, as a charity trustee under charity law and as a member of Court under the University’s Code of Governance. I am not clear from reading Lady Ross’s report how the Code of Governance somehow overrides primary legislation. Possibly a court could decide on an application for judicial review once any appeal has been concluded.

Judge and jury?

One of the questions surrounding the fairly loose wording for handling conduct issues with Court members in the handbook was whether an appeal would decide afresh or merely review the decision/resolution already reached:

If such a dismissal or disqualification resolution is passed, then the person who is the subject of the resolution shall have the right to seek a review in order to have the resolution reconsidered or quashed. Any request for review will be heard by the University Chancellor. Any such request for review must be submitted in writing to the Executive Officer to Court with 15 days of official notification of disqualification or dismissal. The Chancellor will receive a report from the Senior Lay Member of Court (or the Designated Intermediary on Court, if appropriate), but might request such further evidence as they sees fit. The decision of the Chancellor shall be final and will normally be conveyed within 30 days of receipt of the request for review.

In this case we are told that Campbell has argued that his “appellate powers” extend to deciding the matter anew – based partly on the wording about being able to request new evidence, and partly on the basis that he is framed as “head of the university” in that handbook. As such, he’s satisfied that he is “judge and jury” in the appeal, rather than just checking for process issues.

Palpably, and for an extended period

But most important is the issue of his reasoning over the case itself. The Court’s case was that Maris was acting independently and to the prejudice of the policies of the Court to such an extent that her activities and actions were likely to bring the university into disrepute, which we are told Campbell has interpreted as follows (my bolding):

I consider this needs to be something which has palpably, and for an extended period, damaged the reputation and integrity of the Court, at the time the appeal is considered, such as impropriety.

And he doesn’t think that bar was met (again, my bolding):

The Rector’s activities and actions relied upon to justify the resolution appealed against… were in the two periods which were considered by Morag Ross QC in her report… however aggravating the conduct of the Rector may be (and I don’t doubt it was an irritation and a frustration), I am not persuaded that this reaches the level I have set out.

Freedom of speech?

Throughout the case, the university has attempted to maintain that the decision had no bearing on Maris’ freedom of speech. But Marris argues that the case is absolutely about the extent to which someone can exercise freedom of speech in a role of this sort – and if they can’t, the extent to which any restriction, or intervention if breaching a restriction, is lawful as per Article 10 of the Human Rights Act. It is, notably, something which the independent report reflects on:

…Given the general starting point of a high level of protection for that freedom, the university should be very slow to conclude that there has been a breach other than in very clear and obvious circumstances.

In many ways Campbell’s decision to quash actually goes less far than the report by simply saying that to the extent to which there is a standard of misconduct that needed to be reached to justify a dismissal in the handbook, in his view Maris’ actions didn’t reach it – all of which sidesteps any row about freedom of speech which might have kicked in if he’d decided to uphold.

Of course in theory if a governing body’s documents, or a legal framework, don’t allow for (or partially frustrate) the removal of one or more charity trustees (that might be in breach of conduct rules themselves established to secure compliance with charity law), regulators may have something to say – and trustees themselves might argue that that puts them in an impossible position if they do get what they regard as a “rogue” trustee.

There’s no sign (yet) of regulators having anything to say here – it’s possible that the Court may attempt to make changes to its own rules in the future, or may just have to accept the fudge over the ancient role of Rector that was allowed to emerge in the last decade.

You might more broadly argue that being a trustee of a charity is sometimes not compatible with a(n elected) role that is variously described as requiring a “willingness to champion a cause, without fear or favour” – a debate that comes up a lot with more outspoken student reps who are trustees of their SUs.

But you might also argue that being an elected representative of students sometimes requires you to speak out on matters of controversy in order to set an example of freedom of expression, as long as doing so doesn’t harm the charity. It’s perhaps the extent of any harm – either in speaking out, or not speaking out, that’s in contention here.

Principles, tradition and practice

That debate is one of the reasons that both in the 1950s and 1960s attempts were made to abolish the role of Rector.

In 1989 an attempt to abolish the right of the rector to chair the Court was prompted by election at Glasgow University of Winnie Mandela, and then in 1992 an attempt to secure agreement that the rector should not chair the Court at Edinburgh was rebuffed unanimously by the Scottish Rectors’ and Presidents’ Group before an amendment could be considered. There were also runs at abolishing the role – or at least its chair of Court component – in 1997 and 2003.

As I noted in the piece last year, each time a call back to history and purpose has been heard – Scotland’s ancient universities were conceived as communities in which the students were the main interest group, and so the best way to ensure that their interests were always at the forefront of the minds of those actually running the university was to allow the students to elect the leader of the governing body.

It’s an important bit of tradition, in other words – and so the Higher Education Governance (Scotland) Act 2016 fudge was to allocate much of what we might imagine a governing body chair does to the “senior lay member”, while keeping the Rector as actual Chair and trustee. Over time, that’s allowed enough leeway in the structures to cope with outspoken rectors – but this time around, the Court attempted to resolve that even those flexibilities were stretched too far. Its own Chancellor has now disagreed.

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A university spokesperson said:

As the body that made the decision to dismiss the Rector, University Court is carefully considering the Chancellor’s decision and taking advice from Counsel.

This issue was never about free speech and only ever about governance. Ms Maris remains Rector of the University and has done so throughout.

Stella Maris said:

This decision is not only a vindication of my position but a defence of the fundamental principles of free expression within our universities.

Universities must remain places where individuals are free to speak out against injustice, especially where that speech is grounded in humanitarian concern.

I intend to continue campaigning to ensure the right to political expression and academic freedom.

The author of this article has no personal involvement in the case, but in the interests of transparency readers should be aware Jim had several informal conversations with Stella Maris at the early stages of the incidents described.