R v Lord President of the Privy Council Ex p. Page [1992] UKHL 12

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

Judgment: 3.12.92

HOUSE OF LORDS

REGINA

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

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

LORD KEITH OF KINKEL

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

LORD GRIFFITHS

My Lords,I have had the advantage of reading the judgment of Lord Browne-Wilkinson with which I agree and I would dismiss this appeal on the ground that certiorari is not available to challenge the decision of a visitor on the ground of an error of law within his jurisdiction. I add a few words of my own only because of the difference of opinion between your Lordships on this question and because what I said about the availability of certiorari in my speech in Thomas v. University of Bradford [1987] A.C. 795 has been interpreted to include an error of law by the Divisional Court and the Court of Appeal which was not what I had intended.It is in my opinion important to keep the purpose of judicial review clearly in mind. The purpose is to ensure that those bodies that are susceptible to judicial review have carried out their public duties in the way it was intended they should. In the case of bodies other than courts, in so far as they are required to apply the law they are required to apply the law correctly. If they apply the law incorrectly they have not performed their duty correctly and judicial review is available to correct their error of law so that they may make their decision upon a proper understanding of the law.- 1 - In the case of inferior courts, that is courts, of a lower status than the High Court, such as the Justices of the Peace, it was recognised that their learning and understanding of the law might sometimes be imperfect and require correction by the High Court and so the rule evolved that certiorari was available to correct an error of law of an inferior court. At first it was confined to an error on the face of the record but it is now available to correct any error of law made by an inferior court. But despite this general rule Parliament can if it wishes confine a decision on a question of law to a particular inferior court and provide that the decision shall be final so that it is not to be challenged either by appeal or by judicial review. Such a case was Pearlman v. Keepers and Governors of Harrow School [1979] Q.B. 56 in which the dissenting judgment of Geoffrey Lane L.J. was approved by the majority of the House of Lords in Re Racal Communications Limited [1981] AC 374 .The common law has ever since the decision in Philips v. Bury (1694) Holt K.B. 715 recognised that the visitor acting as a judge has exclusive jurisdiction and that his decision is final in all matters within his jurisdiction. The common law courts have through three centuries consistently resisted all attempts to appeal decisions of the visitor. The courts have however been prepared to confine the visitor to his proper role as a judge of the internal affairs of the foundation by the use of the writs of prohibition and mandamus.When I said in Thomas;
"I have myself no doubt that in the light of the modern development of administrative law, the High Court would have power, upon an application for judicial review, to quash a decision of the visitor which amounted to an abuse of his powers"
I used the words "an abuse of his powers" advisedly. I do not regard a judge who makes what an Appellate Court later regards as a mistake of law as abusing his powers. In such a case the judge is not abusing his powers; he is exercising them to the best of his ability albeit some other court thinks he was mistaken. I used the phrase "abuse of his powers" to connote some form of misbehaviour that was wholly incompatible with the judicial role that the judge was expected to perform. I did not intend it to include a mere error of law.The decision in Racal shows that Parliament can by the use of appropriate language provide that a decision on a question of law whether taken by a judge or by some other form of tribunal shall be considered as final and not be subject to challenge either by way of appeal or judicial review. For three centuries the common law courts have recognised the value of the visitor acting as the judge of the internal laws of the foundation and have refused to trespass upon his territory. I do not believe that it would be right to reverse this long line of authority and declare that certiorari should now lie to reverse the decision of a visitor on a question of law. The value of the visitorial jurisdiction is that it is swift, cheap and final. These benefits will be largely dissipated if the visitor's decision can be challenged by way of judicial review. Many decisions may turn upon the interpretation

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of the statutes and other decisions of a more factual nature can all too easily be dressed up as issues of law under the guise of "Wednesbury" principles. The learning and ingenuity of those members of the foundation who are likely to be in dispute with the foundation should not be lightly underestimated and I believe to admit certiorari to challenge the visitor's decision on the grounds of error of law will in practice prove to be the introduction of an appeal by another name.The visitor is either a person holding a high judicial office, or is advised on questions of law by such a person, in whose decision on matters of law it is reasonable to repose a high degree of confidence. I say this not because any holder of judicial office should ever regard it as an affront to be overruled by an Appellate Court but merely to emphasize that as a practical matter the chances are that the visitor probably will get it right.If it is thought that the exclusive jurisdiction of the visitor has outlived its usefulness, which I beg to doubt, then I think that it should be swept away by Parliament and not undermined by judicial review.I would add that in the present case I am satisfied that the decision of the visitor was correct.

LORD BROWNE-WILKINSON

My Lords,The appellant, Mr. Page was appointed a lecturer in the Department of Philosophy at the University of Hull by a letter dated 13 June 1966. The letter stated 'The appointment may be terminated by either party on giving three months' notice in writing expiring at the end of a term or of the long vacation." As a lecturer, Mr. Page became a member of the University which is a corporate body regulated by Royal Charter. Section 34 of the Statutes made under the Charter provides:
"1. The Vice-Chancellor and all Officers of the University including Professors and members of the Staff holding their appointments until the age of retirement may be removed by the Council for good cause. . . .
2. . . .3. Subject to the terms of his appointment no member of the teaching research or administrative staff of the University (including the Vice-Chancellor) shall be removed from office save upon the grounds specified in paragraph 2 of this Section and in pursuance of the procedure specified in Clause 1 of this Section."Section 34(2) defines the meaning of "good cause".On 30 June 1988 Mr. Page was given three months' notice terminating his appointment on the grounds of redundancy. It is

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common ground that there was no "good cause" within the meaning of section 34; the University was reiying on the three months' notice term contained in the letter of appointment coupled with the provision in section 34(3) that Mr. Page's tenure was to be subject to the terms of the appointment.Mr. Page took the view that on the true construction of section 34 of the statutes the University had no power to remove him from office and terminate his employment save for good cause. Your Lordships were told that Mr. Page started an action in the Queen's Bench Division for wrongful dismissal which action was struck out on the grounds that the matter fell within the exclusive jurisdiction of the Visitor of the University, Her Majesty the Queen. Mr. Page then petitioned the Visitor for a declaration that his purported dismissal was ultra vires and of no effect. The petition was considered by the Lord President of the Council, on behalf of Her Majesty. He sought advice from Lord Jauncey of Tullichettle who advised that on the true construction of the Statutes the dismissal was valid and intra vires. On that advice, the petition was dismissed by the Visitor.Mr. Page then applied by way of judicial review for an order quashing the Visitor's decision. Before the Divisional Court (Taylor L.J. and Rougier J.) two issues arose: first, did the Divisional Court have jurisdiction to review the Visitor's decision and, if so, second, was the Visitor's construction of the Statutes correct? The Divisional Court held that it had jurisdiction to review the Visitor's decision and that the Visitor's decision was wrong in law. They made an order quashing the decision and made a declaration that "upon a true construction of the Statutes of the University of Hull the University has and had no power to dismiss Edgar Page by reason of redundancy and his purported dismissal is without effect".The University and the Visitor appealed to the Court of Appeal (Lord Donaldson of Lymington M.R., Staughton and Farquharson L.JJ.) who upheld the Divisional Court's decision on jurisdiction but reversed its decision on construction taking the view that the Visitor's construction of the Statutes was correct.Mr. Page appeals to your Lordships' House against the decision of the Court of Appeal on the construction of the Statutes: the University and the Visitor cross appeal against the decision on jurisdiction. I will deal first with the question of jurisdiction.As the argument was refined in the course of the hearing, it emerged that the rival contentions came down to a narrow but difficult issue. It is established that, a university being an eleemosynary charitable foundation, the Visitor of the University has exclusive jurisdiction to decide disputes arising under the domestic law of the University. This is because the founder of such a body is entitled to reserve to himself or to a visitor whom he appoints the exclusive right to adjudicate upon the domestic laws which the founder has established for the regulation of his bounty. Even where the contractual rights of an individual (such as his contract of employment with the university) are in issue, if those contractual rights are themselves dependent upon rights arising under the regulating documents of the charity, the visitor

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has an exclusive jurisdiction over disputes relating to such employment.Those propositions are all established by the decision of this House in Thomas v. University of Bradford [1987] A.C. 795 which held that the courts had no jurisdiction to entertain such disputes which must be decided by the visitor. However the Thomas case was concerned with the question whether the courts and the visitor had concurrent jurisdictions over such disputes. In that context alone it was decided that the visitor's jurisdiction is "exclusive". Thomas does not decide that the visitor's jurisdiction excludes the supervisory jurisdiction of the courts by way of judicial review. On the contrary, my noble and learned friend Lord Griffiths (at page 825) said this:
"Finally, there is the protection afforded by the supervisory, as opposed to appellate, jurisdiction of the High Court over the visitor. It has long been held that the writs of mandamus and prohibition will go either to compel the visitor to act if he refused to deal with the matter within his jurisdiction or to prohibit him from dealing with a matter that lies without his jurisdiction. . . . Although doubts have been expressed in the past as to the availability of certiorari, I have myself no doubt that in the light of the modern development of administrative law, the High Court would have power, upon an application for judicial review, to quash a decision of the visitor which amounted to an abuse of his powers."
Lord Ackner (at page 828B) said that the case fell within the exclusive jurisdiction of the visitor "subject always to judicial review".Under the modern law, certiorari normally lies to quash a decision for error of law. Therefore, the narrow issue in this case is whether, as Mr. Page contends and the courts below have held, certiorari lies against the visitor to quash his decision as being erroneous in point of law notwithstanding that the question of law arises under the domestic law of the University which the visitor has "exclusive" jurisdiction to decide.It is necessary first to consider in some detail the nature of the visitor's jurisdiction. After some earlier doubts on the matter, the exclusivity of the visitor's jurisdiction was finally confirmed in Philips v. Bury [1694] Holt K.B. 715 where the reported dissenting judgment of Holt C.J. was eventually adopted by this House. In that case, the visitor of Exeter College, Oxford, had deprived Bury of his office as Rector. The new Rector appointed in his place had leased a house to the plaintiff Philips, who had been evicted by Bury. Philips brought an action in ejectment against Bury. Accordingly the issue in the case was whether the removal of Bury by the visitor was valid or not. Holt C.J. held that two questions arose: first, did the visitor have jurisdiction to remove Bury; if so, second, was the visitor's decision correct. He held that the visitor did have jurisdiction and that "having that power, the justice thereof is not examinable in a Court of Law, upon any action concerning the [visitor's] power". He contrasted private charitable bodies with public corporations and said this at page 723:

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"And I think the sufficiency of the sentence is never to be called in question, nor any inquiry to be made here into the reasons of the deprivation. If the sentence be given by the proper visitor, created so by the founder, or by the law, you shall never inquire into the validity, or ground of the sentence. And this will appear, if we consider the reason of a visitor, how he comes to be supported by authority in that office.... But private and particular corporations for charity, founded and endowed by private persons, are subject to the private government of those who erect them; and therefore if there be no visitor appointed by the founder, I am of opinion that the law doth appoint the founder and his heirs to be visitors. The founder and his heirs are patrons, and not to be guided by the common known laws of the kingdom. But such corporations are, as to their own affairs, to be governed by the particular laws and constitutions assigned by the founder. . . . But you'll say, this man hath no court. It is not material whether he hath a court or no; all the matter is, whether he hath a jurisdiction; if he hath conusance of the matter and person, and he gives a sentence, it must have some effect to make a vacancy, be it never so wrong. But there is no appeal, if the founder hath not thought fit to direct an appeal; that an appeal lieth in the Common Law Courts is certainly not so. This is according to the government settled by the founder; if he hath directed all to be under the absolute power of the visitor, it must be so. ... As to the matter of there being no appeal from an arbitrary sentence; it is true, the case is the harder, because the party is concluded by one judgment, but it doth not lessen the validity of the sentence, nor doth it in any way prove that you shall find out some way to examine this matter at law in a judicial proceeding."
Later, at page 727 Holt C.J. said this:
"I know no difference between this case and that of a mandamus. In that case of Appleford there was a mandamus brought, to restore him to his fellowship: it was returned, that by the Statutes of the college, for misdemeanour they had a power to turn him out; and that the Bishop of Winchester was visitor, and that he was turned out pro crimine enormi, and had appealed to the bishop, who confirmed the expulsion; and the particular cause was not returned: I was of counsel for the college, and we omitted the cause in the return for that reason, because indeed it was not so true as it should have been. It was insisted, that we ought to show the cause in the return, to bring it within the Statutes. It was answered, here was a local visitor, who has given a sentence; and be it right, or be it wrong, the party is concluded by it; and you must submit to such laws as the founder is pleased to put upon you. And Mr. Appleford was not restored. This is an express authority to guide our judgment in this case. Here is a local visitor hath given a sentence, he hath declared the rector to be actually deprived of his place. When shall we know when a deprivation is good? If not upon a mandamus, why in an ejectment?"

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The decision of Holt C.J. in Philips v. Bury is the locus classicus of the law of visitors. It has been repeatedly applied for the last 300 years, most recently in Thomas. For present purposes it is important for three reasons:1. It shows that the court can and will inquire whether the visitor has jurisdiction to determine the question, i.e. to enter into the matter.2. If the visitor has such jurisdiction, the court has no power to ignore it or review it by way of mandamus or in any other way.3. The reason for such lack of jurisdiction to review in the court is that an eleemosynary corporation is governed by a system of private law which is not of "the common known laws of the kingdom" but the particular laws and constitutions assigned by the founder.As to the first of those points, the ability of the courts to control the visitor by the prerogative writs has been established by many cases. Thus, the court has by mandamus required a visitor to exercise his jurisdiction: see R. v. Bishop of Ely [1794] 5 Durn. & E. 475 and R. v. Dunsheath ex parte Meredith [1951] 1 K.B. 127 at 134. The court will also grant prohibition to restrain a visitor from acting outside his jurisdiction: Bishop of Chichester v. Harward and Webber [1787] 1 Durn. & E. 650. In one case, the court indicated that it would intervene to prevent a breach by the visitor of the rules of natural justice: see Bently v. Bishop of Ely [1729] 1 Barn. K.B. 192.As to the second point, there are numerous cases in which attempts have been made to induce the courts to review or ignore decisions of the visitor acting within his jurisdiction, all of which have been unsuccessful. For some technical reason certiorari used not to be available in such cases; but the aggrieved party applied for mandamus to require the other parties to act on the footing that the visitor's decision was invalid. Thus in the case referred to by Holt C.J., Appleford's case (1672) 1 Mod. Rep. 82, the plaintiff sought an order directed to the master and fellows of a college to reinstate him as a fellow, the visitor having already adjudicated that he had been rightly removed. Mandamus was refused.In R. v. the Bishop of Chester 1 W.B1. 22 the bishop as visitor had removed the applicant as a canon. The applicant sought mandamus directed to the visitor to restore him. The order was refused. Lee C.J. said, "There is no precedent, where a mandamus has gone to a visitor to reverse his own sentence". Wright J. agreed saying, "Visitors have an absolute power; the only absolute one I know of in England". Denison J. said, "This court cannot control visitors".Similarly in R v. Bishop of Ely (supra) the applicant had been removed as a fellow of Jesus College, Cambridge and had appealed unsuccessfully to the bishop as visitor. He then applied for a mandamus directed to the visitor to hear an appeal on the grounds that the earlier appeal to the visitor had been no true appeal at all. His counsel admitted that, by reason of Philips v.

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Bury, the court had no power to order the visitor to correct his decision however erroneous. Lord Kenyon C.J. said this at page 477:
"It was settled in Philips v. Bury, in which determination the profession has ever since acquiesced, that this court has no other power than that of putting the visitatorial power in motion, (if I may use the expression,) but that if the judgment of the visitor be ever so erroneous, we cannot interfere in order to correct it. Now here the visitor received the appeal; each party disclosed his case to him; the whole merits of the case were before him; and he has exercised his judgment upon the whole. If therefore we were to interfere, it would be for the purpose of controlling his judgment. But any interference by us to control the judgment of the visitor, would be attended with the most mischievous consequences, since we must then decide on the statutes of the college, of which we are ignorant, and the construction of which has been confided to another forum."
Grose J. said:
"If the bishop had not exercised his judgment at all, we would have compelled him: but it is objected that he has not exercised it rightly; to this I answer that we have no authority to say how he should have decided."
This case seems to me clear authority that the court has no jurisdiction to review the decision of a visitor made within his jurisdiction.In Ex parte Buller [1855] 1 Jurist N.S. 709 the applicant had been expelled from his fellowship by the provost and fellows of Kings College, Cambridge. His appeal to the visitor had been dismissed. He sought mandamus directed not to the visitor but to the provost and fellows to reinstate him on the grounds that the provost and fellows had breached the rules of natural justice. Coleridge J. held, quoting the judgment of Lord Kenyon in R v. Bishop of Ely, that the court had no power to compel the visitor "to correct or alter his decision although that decision may be erroneous". He said that mandamus would not go to the provost and fellows because "a member of a college puts himself voluntarily under a peculiar system of law, and assents to being bound by it, and cannot thereafter complain that such a system is not in accordance with that adopted by the common law." Mandamus was therefore refused because the visitor's determination provided a complete answer to the complaint of breach of natural justice by the provost and fellows.As to the third point (the reason why the court lacks jurisdiction to review), the views of Holt C.J. are supported by the passages I have already quoted from R v. Bishop of Ely (inability to decide on the statutes of the college "of which we are ignorant and the construction of which has been confided to another forum") and Ex parte Buller ("a peculiar system" which is not required to be in accordance with common law). In Thomas this House had to decide whether the jurisdiction of the visitor was founded on membership of the university or (as the House held) on the fact that a separate system of law was applicable. My noble

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and learned friend Lord Griffiths referred (at page 814H) to the visitor's jurisdiction stemming from the power of the founder "to provide the laws under which the object of charity was to be governed and to be sole judge of the interpretation and application of those laws either by himself or by such person as he should appoint as a visitor" (emphasis added). He also referred to the laws as being "domestic" and "the internal laws of the foundation": pages 815D and 816B. Lord Ackner referred to the function of the visitor as being the supervision "of the internal rules of the foundation so that it is governed in accordance with those private laws which the founder has laid down . . . ".In my judgment this review of the authorities demonstrates that for over 300 years the law has been clearly established that the visitor of an eleemosynary charity has an exclusive jurisdiction to determine what are the internal laws of the charity and the proper application of those laws to those within his jurisdiction. The court's inability to determine those matters is not limited to the period pending the visitor's determination but extends so as to prohibit any subsequent review by the court of the correctness of a decision made by the visitor acting within his jurisdiction and in accordance with the rules of natural justice. This inability of the court to intervene is founded on the fact that the applicable law is not the common law of England but a peculiar or domestic law of which the visitor is the sole judge. This special status of a visitor springs from the common law recognising the right of the founder to lay down such a special law subject to adjudication only by a special judge, the visitor.How then is it contended that the courts have power to review the visitor's decision as to the effect of the domestic law of the University in this case? The Divisional Court and the Court of Appeal did not consider in any detail the old authorities to which I have referred. They started from the position, in my judgment incorrectly, that the references in Thomas to the visitor's jurisdiction being exclusive meant simply that the court did not have concurrent jurisdiction with him. Then, since this House in Thomas had accepted that judicial review by way of certiorari did lie to the visitor at least to restrain an abusive process, they held that there was jurisdiction to correct errors of law since "illegality" is one of the accepted heads of judicial review.Before your Lordships, Mr. Burke refined this argument. He relied upon the great development that has recently taken place in the law of judicial review whereby the courts have asserted a general jurisdiction to review the decisions of tribunals and inferior courts. He points to the way in which the law has developed from a maze of individual sets of circumstances in which one or other of the prerogative writs would lie to a general principle under which courts will review decisions on the three grounds of illegality, irrationality and procedural impropriety: see per Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at page 410. Mr. Burke submits that if judicial review lies at all, then it is not possible to pick and choose between Lord Diplock's three categories: it must lie on all three grounds or not at all. As to illegality, recent developments in the law have shown that any relevant error of law made by the decision maker, whether as to his powers or as to the law he is to

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apply, may lead to his decision being quashed. In the present case, since the decision in Thomas shows that judicial review does lie against the visitor, so his decision is capable of being reviewed on any one of Lord Diplock's three grounds, including illegality. If, therefore, the visitor has made an error in construing the statutes of the university, his decision can be quashed on judicial review.I accept much of Mr. Burke's submissions. Over the last 40 years, the courts have developed general principles of judicial review. The fundamental principle is that the courts will intervene to ensure that the powers of public decision making bodies are exercised lawfully. In all cases, save possibly one, this intervention by way of prohibition or certiorari is based on the proposition that such powers have been conferred on the decision maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and, in a Wednesbury sense, reasonably. If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is Wednesbury unreasonable, he is acting ultra vires his powers and therefore unlawfully: see Wade on Administrative Law, 6th ed., page 39 et seq. The one possible exception to this general rule used to be the jurisdiction of the court to quash a decision taken within the jurisdiction of the decision taker where an error law appeared on the face of the record: R. v. Northumberland Compensation Appeal Tribunal [1952] 1 KB 338 .In my judgment the decision in Anisminic Limited v. Foreign Compensation Commission [1969] 2 AC 147 rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires. Thenceforward it was to be taken that Parliament had only conferred the decision making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires. Professor Wade considers that the true effect of the Anisminic case is still in doubt: Wade (supra) page 299 et seq. But in my judgment the decision of this House in O'Reilly v. Mackman [1983] 2 A.C. 237 establishes the law in the sense that I have stated. Lord Diplock, with whose speech all the other members of the committee agreed, said (at page 278D) that the decision in Anisminic;
"... has liberated English public law from the fetters that the courts had theretofore imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned, by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction. The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, i.e., one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported "determination", not being "a determination" within the meaning of the empowering legislation, was accordingly a nullity."

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Therefore, I agree with Mr. Burke that in general any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for error of law.At this point I must notice an argument raised by Mr. Beloff for the University. He suggests that the recent decision of this House in R. v. Independent Television Commission ex parte T.S.W. Broadcasting (unreported) has thrown doubt on the proposition that all errors of law vitiate the decision. In my judgment this is a misreading of that authority. This House was asserting that the mere existence of a mistake of law made at some earlier stage does not vitiate the actual decision made: what must be shown is a relevant error of law, i.e. an error in the actual making of the decision which affected the decision itself. This is demonstrated by Lord Templeman's quotation from the well known judgment of Lord Greene M.R., in Wednesbury (including the passage "a person entrusted with a discretion must, so to speak, direct himself properly in law") and the manner in which thereafter he applied those principles to the facts of the case before the House.Although the general rule is that decisions affected by errors of law made by tribunals or inferior courts can be quashed, in my judgment there are two reasons why that rule does not apply in the case of visitors. First, as I have sought to explain, the constitutional basis of the courts' power to quash is that the decision of the inferior tribunal is unlawful on the grounds that it is ultra vires. In the ordinary case, the law applicable to a decision made by such a body is the general law of the land. Therefore, a tribunal or inferior court acts ultra vires if it reaches its conclusion on a basis erroneous under the general law. But the position of decisions made by a visitor is different. As the authorities which I have cited demonstrate, the visitor is applying not the general law of the land but a peculiar, domestic law of which he is the sole arbiter and of which the courts have no cognizance. If the visitor has power under the regulating documents to enter into the adjudication of the dispute (i.e. is acting within his jurisdiction in the narrow sense) he cannot err in law in reaching this decision since the general law is not the applicable law. Therefore he cannot be acting ultra vires and unlawfully by applying his view of the domestic law in reaching his decision. The court has no jurisdiction either to say that he erred in his application of the general law (since the general law is not applicable to the decision) or to reach a contrary view as to the effect of the domestic law (since the visitor is the sole judge of such domestic law).The second reason is closely allied to the first. In Pearlman v. Harrow School [1979] QB 56 a statute provided that the decision of the county court as to whether works constituted an "improvement" within the meaning of the Act should be "final and conclusive". A tenant claimed that the installation of a central heating system constituted an "improvement". The county court judge ruled that it did not. The tenant then applied to the Divisional Court by way of judicial review to quash the judge's decision. The majority of the Court of Appeal held that it had jurisdiction to quash the judge's order. However, Lane L.J. (as he then was) dissented. He held that the judge had done nothing

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which went outside the proper area of his inquiry. The question was not whether the judge had made a wrong decision but whether he had inquired into and decided a matter which he had no right to consider. Therefore he held that the court had no jurisdiction to review the decision of the county court judge for error of law.This dissenting judgment of Lane L.J. has been approved by the Privy Council in South East Asia Fire Bricks v. Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 at p, 370F and by a majority in this House in In re Racal Communications Ltd. [1981] AC 374 pp. 384B, 390F-391D. In the latter case, Lord Diplock pointed out that the decision in Anisminic applied to decisions of administrative tribunals or other administrative bodies made under statutory powers: in those cases there was a presumption that the statute conferring the power did not intend the administrative body to be the final arbiter of questions of law. He then contrasted that position with the case where a decision making power had been conferred on a court of law. In that case no such presumption could exist: on the contrary where Parliament had provided that the decision of an inferior court was final and conclusive the High Court should not be astute to find that the inferior court's decision on a question of law had not been made final and conclusive, thereby excluding the jurisdiction to review it.In my judgment, therefore, if there were a statutory provision that the decision of a visitor on the law applicable to internal disputes of a charity was to be "final and conclusive", courts would have no jurisdiction to review the visitor's decision on the grounds of error of law made by the visitor within his jurisdiction (in the narrow sense). For myself, I can see no relevant distinction between a case where a statute has conferred such final and conclusive jurisdiction and the case where the common law has for 300 years recognised that the visitor's decision on questions of fact and law are final and conclusive and are not to be reviewed by the courts. Accordingly, unless this House is prepared to sweep away long established law, there is no jurisdiction in the court to review a visitor's decision for error of law committed within his jurisdiction.Mr. Burke urged that the position of a visitor would be anomalous if he were immune from review on the grounds of error of law. He submitted that the concept of a peculiar domestic law differing from the general law of the land was artificial since in practice the charter and statutes of a university are expressed in ordinary legal language and applied in accordance with the same principles as those applicable under the general law. He pointed to the important public role occupied by universities and submitted that it was wrong that they should be immune from the general law of the land: "there must be no Alsatia in England where the King's writ does not run": per Scrutton L.J. in Czarnikow v. Roth, Schmidt and Co, [1922] 2 K.B. 478 at page 488. He further suggested that to permit review of a visitor's decision for error of law would not impair the effectiveness of the visitor's domestic jurisdiction.I accept that the position of the visitor is anomalous, indeed unique. I further accept that where the visitor is, or is advised by, a lawyer the distinction between the peculiar domestic law he

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applies and the general law is artificial. But I do not regard these factors as justifying sweeping away the law which for so long has regulated the conduct of charitable corporations. There are internal disputes which are resolved by a visitor who is not a lawyer himself and has not taken legal advice. It is not only modern universities which have visitors: there are a substantial number of other long established educational, ecclesiastical and eleemosynary bodies which have visitors. The advantages of having an informal system which produces a speedy, cheap and final answer to internal disputes has been repeatedly emphasized in the authorities, most recently by this House in the Thomas case: see per Lord Griffiths at page 825D; see also Patel v. University of Bradford Senate [1978] 1 W.L.R. 1488 at pages 1499-1500. If it were to be held that judicial review for error of law lay against the visitor I fear that, as in the present case, finality would be lost not only in cases raising pure questions of law but also in cases where it would be urged in accordance with the Wednesbury principle that the visitor had failed to take into account relevant matters or taken into account irrelevant matters or had reached an irrational conclusion. Although the visitor's position is anomalous, it provides a valuable machinery for resolving internal disputes which should not be lost.I have therefore reached the conclusion that judicial review does not lie to impeach the decisions of a visitor taken within his jurisdiction (in the narrow sense) on questions of either fact or law. Judicial review does lie to the visitor in cases where he has acted outside his jurisdiction (in the narrow sense) or abused his powers or acted in breach of the rules of natural justice. Accordingly, in my judgment the Divisional Court had no jurisdiction to entertain the application for judicial review of the Visitor's decision in this case.In those circumstances, it is unnecessary to express any view on the proper construction of the Charter and Statutes beyond saying that I have heard nothing which persuades me that the views of Lord Jauncey of Tullichettle and the Court of Appeal were wrong. I would dismiss the appeal and allow the cross- appeals, with costs.

LORD MUSTILL

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

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

LORD SLYNN OF HADLEY

My Lords,Mr. Page was appointed as a lecturer in Philosophy in the University of Hull with effect from 1 October 1966. By letter dated 30 June 1988 his appointment was terminated on 2 October 1988. The reason for terminating his appointment was that the University felt it necessary to reduce the number of staff in the Philosophy Department by one and he was the oldest member. Mr. Page began proceedings in the Queen's Bench Division to establish that the University was not entitled to dismiss him. Those proceedings were struck out on the basis that his claim fell within the exclusive jurisdiction of the Visitor of the University and so he petitioned the Visitor, Her Majesty the Queen. Having received from Lord Jauncey of Tullichettle advice that the dismissal was valid, the Lord President of the Council on behalf of Her Majesty dismissed the petition.Mr. Page applied for judicial review of that decision. The Divisional Court held that they had power to review the Visitor's decision and that upon a proper construction of the University Statutes the University had no power to dismiss Mr. Page. The Court of Appeal likewise held that the Visitor's decision could be reviewed but held that the Visitor's decision was correct in law.On this appeal questions as to the court's jurisdiction and as to the proper construction of the University's Statutes have been raised.The jurisdiction issue seems to me to divide into two parts. First, does judicial review by way of certiorari ever lie to review error of law where there is no issue as to excess of jurisdiction or breach of natural justice? If it does not, it cannot in any event lie against a Visitor on that basis. If it does, the second question is whether certiorari can lie in respect of the decision of a Visitor.As to the first question it is clear that views as to the availability and scope of certiorari together with its actual use have varied from time to time. In particular distinctions were drawn between errors of law going to jurisdiction and errors of law within jurisdiction and between errors of law on the face of the record and other errors on law which in neither case went to jurisdiction.For my part and despite the advice of the Privy Council in South East Asia Fire Bricks Sdn Bhd v. Non Metallic Mineral Products Manufacturing Employees' Union [1981] AC 363 , I would now follow the opinion of Lord Diplock in In re Racal Communications Ltd. [1981] AC 374 , 382-383 (with which Lord Keith of Kinkel agreed) and in O'Reilly v. Mackman [1983] 2 A.C. 237, p. 278, (with which the other members of the Appellate Committee agreed. In the former Lord Diplock said:

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"The breakthrough made by Anisminic was that, as respects administrative tribunals and authoraties, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished."
In the latter case Lord Diplock said that the decision in Anisminic Limited v. Foreign Compensation Commission [1969] 2 AC 147 :
"has liberated English public law from the fetters that the courts had theretofore imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned, by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction. The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it found them, it must have asked itself the wrong question, i.e., one into which it was not empowered to inquire and so had no jurisidiction to determine. Its purported 'determination', not being a 'determination' within the meaning of the empowering legislation, was accordingly a nullity."
I accordingly accept that certiorari is now available to quash errors of law in a decision albeit those errors do not go to the jurisdiction of the tribunal.The second part of this issue is therefore whether the decision of a Visitor can be reviewed for error of law.It is common ground between the parties, and, on the basis of earlier cases, rightly so, that the Visitor to a University may be given an exclusive jurisdiction, e.g. to decide disputes arising under the statutes of the University, as may Visitors to such eleemosynary foundations as schools, colleges and dioceses. It has long been accepted that this exclusive jurisdiction prevents the courts of the land from dealing initially with issues falling to be decided by the Visitor, and prevent an appeal from the Visitor to those Courts.As early as 1694 in Philips v. Bury (1694) Holt K.B. 715 this House accepted as correct the dissenting judgment of Holt C.J. where it was sought to challenge the removal of a Rector by the Visitor of Exeter College by an action in ejectment.Holt C.J. held that the Visitor did have jurisdiction to deprive the Rector of his office and that "having that power, the justice thereof is not examinable in a Court of Law, upon any action concerning the [Visitor's] power". He asked, at p. 719:
"First, whether the sufficiency of the sentence, as to the cause, be examinable in the Common Law Courts? And, secondly, whether the truth of that cause, suppose it to be sufficient to ground the sentence, if true, can be inquired into here?"
In vigorous terms he stated the position, at pp. 723-725:

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

. . . "

The reason for the rule was explained further in the same year in The King and Queen v. St John's College Cambridge (1694) 4 Mod. Rep. 233 at p. 241:
"The Visitor is made by the Founder, and is the proper judge of the private laws of the College; he is to determine offences against those laws. But where the law of the land is disobeyed, this court will take notice thereof notwithstanding the Visitor."
To the same effect was R. v. Dr. Bland, Provost of Eton (1740) 7 Mod. Rep. 355, and in 1794 in R. v. The Bishop of Ely (1794) 5 Durn. & E. 475 Lord Kenyon C.J. regarded what had been said by Holt C.J. as settled law. In 1855 Coleridge J. accepted the same principle in Ex parte Buller (1855) 1 Jurist N.S. p. 709:
"It has been decided, and is now admitted, that where a Visitor has acted in his visitatorial capacity, this Court has no power to compel him to correct or alter his decision, although that decision may be erroneous. All that we can do is to set the visitor in motion; but having done so, we cannot review his decision. In R. v. The Bishop of Ely, Lord Kenyon refused the rule upon this ground, and says, 'It was settled in Philips v. Bury, (2 T.R. 346), in which determination the Profession has ever since acquiesced, that this Court has no other power than that of putting the visitatorial power in motion, (if I may use the expression); but that if the judgment of the visitor be erroneous, we cannot interfere in order to correct it. Now, here the visitor received the appeal, each party disclosed his case to him, the whole merits of the case were before him, and he has exercised his judgment upon the whole. If, therefore, we were to interfere, it would be for the purpose of controlling his judgment; but any interference by us to control the judgment of the visitor would be attended with the most mischievous consequences, since we must then decide upon the statutes of the college, of which we are ignorant, and the construction of which has been confided to another forum.'"
On the other hand, the Court will order by mandamus a Visitor to exercise his jurisdiction if he refuses or fails to do so since if he does not, no one else can.

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In R. v. The Bishop of Ely (1788) 2 T.R. 290, and again in R. v. The Bishop of Ely (1794) 5 T.R. 475, the Court recognised this principle. In the latter case Grose J. said at p. 477:
"If the Bishop had not exercised his judgment at all, we would have compelled him: but it is objected that he has not exercised it rightly; to this I answer that we have no authority to say how he should have decided."
Conversely, it has been accepted that the Court may inquire as to whether a Visitor intends to act outside his jurisdiction and in a proper case to grant a writ or order of prohibition to restrain him: Bishop of Chichester v. Harward and Webber (1787) 1 T.R. 650; see also Dr. Bently and The Bishop of Ely (1729) 94 E.R. 132.Thus despite the rule in Philips v. Bury, some control over the exercise of jurisdiction was well recognised. The position is summarised in R. v. The Bishop of Chester (1747) 1 Wm. Black. 22, by Lee C.J.:
"Certainly, if a Visitor is in his jurisdiction his acts are not to be inquired into; if out of it, his acts are void."
There is thus no doubt that on the older authorities the Courts have refused to review by way of certiorari the decision of a Visitor even though they were prepared to grant mandamus to require him to act or to prohibit him from acting in excess ofjurisdiction.More recently in Thomas v. University of Bradford [1987] A.C. 795, Lord Griffiths (with whom Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Mackay of Clashfern agreed) confirmed that the Courts have no concurrent or appellate jurisdiction in respect of matters referred to a Visitor by the special regulations of a university and emphasised the advantages of the visitorial procedure. Lord Griffiths concluded:
"Finally, there is the protection afforded by the supervisory, as opposed to appellate, jurisdiction of the High Court over the Visitor. It has long been held that the writs of mandanus and prohibition will go ... Although doubts have been expressed in the past as to the availability of certiorari, I myself have no doubt that in the light of the modern development of administrative law, the High Court would have power, upon an application for judicial review, to quash a decision of the Visitor which amounted to an abuse of his powers."
Lord Ackner at p. 828 said:
"The source of the obligation upon which Miss Thomas relies for her claim is the domestic laws of the university, its statutes and its ordinances. It is her case that the university has failed either in the proper interpretation of its statutes or in their proper application. Miss Thomas is not relying upon a contractual obligation other than an obligation by the university to comply with its own domestic laws. Accordingly, in my judgment, her claim falls within

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

It is thus clear on the basis of all these authorities that at the present time universities can create a jurisdiction for the Visitor which excludes the concurrent and appellate jurisdiction of the Courts. I do, however, respectfully agree with Lord Griffiths that certiorari would go to quash a decision of the Visitor which amounted to an abuse of his power. The question in the present case is a different question - does certiorari go beyond quashing for abuse of power and allow judicial review for errors of law within jurisdiction? I do not think that this question was resolved in Thomas by what was said by Lord Griffiths though Lord Ackner's reference to judicial review is in general terms.It is obviously not necessary to cite cases for the proposition that there has been a considerable development in the scope of judicial review in the second half of this century. It is more than enough to refer to the analysis of Sir William Wade in "Administrative Law" 6th ed. The old cases which I have cited have to be read subject to that development and not least to what was said in Thomas (supra).With deference to the contrary view of the majority of your Lordships, in my opinion if certiorari can go to a particular tribunal it is available on all the grounds which have been judicially recognised. I can see no reasons in principle for limiting the availability of certiorari to a patent excess of power (as where a Visitor has decided something which was not within his remit) and excluding review on other grounds recognised by the law. If it is accepted, as I believe it should be accepted, that certiorari goes not only for such an excess or abuse of power but also for a breach of the rules of natural justice there is even less reason in principle for excluding other established grounds. If therefore certiorari is generally available for error of law not involving abuse of power (as on the basis of Lord Diplock's speeches I consider that it is so available) then it should be available also in respect of a decision of a Visitor.I am not persuaded that the jurisdition of the Visitor involves such exceptional considerations that this principle should be departed from and that some grounds be accepted and others held not to be available for the purposes of judicial review.The submissions made to your Lordships on the basis of the history of eleemosynary corporations do not seem to me to justify the drawing of such a distinction at the present time once it is accepted that certiorari can be available (as in Thomas) on some grounds. Nor do I accept that all the questions referred to a Visitor involve such arcane learning that only those intimately aware of university affairs can begin to understand it, the judges of the land not being able to appreciate the issues. The fact that Lords of Appeal in Ordinary and other senior judges are invited to advise the Visitor show that this cannot be assumed. Moreover, issues of law may be referred to the Visitor which are wholly analogous to questions decided by the courts. The present is such a case in which, if there had been no referral to a Visitor, the matter would have come before the tribunals and courts on a clearly recognisable employment law question.

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Nor am I impressed by the floodgates argument - it is said that the Divisional Court would be overwhelmed by applications to review Visitors' decisions. In the first place many references to the Visitor in student or staff disputes with university authorities do not involve questions of law at all. It will quickly be recognised that on matters of fact and challenges to the exercise of discretion leave to apply for judicial review will be refused. Moreover where the issue really does raise a question of esoteric university "lore" the courts are unlikely to override the decision of the Visitor, informed as he will be by the university authorities.If there is a real question of law, particularly if it involves matters analogous to or the same as issues of the general law, I can see no reasonable justification for refusing judicial review. If the individual's rights are affected he should be entitled to the same protection by the courts as he would be in respect of the decision of a wide range of other tribunals and bodies to whom decisions involving a question of law are assigned.I do not accept the intervener's argument that it is in some way undignified for the decision of a Visitor on the basis of advice from an eminent judge to be subject to judicial review and that if certiorari is held to be available senior judges will not wish to give such advice. In most cases their advice will either be right in law or be in an area where the courts will wish to leave alone the exercise of the Visitor's discretion. If there is an important and difficult question of law, however, I do not anticipate that senior judges will either feel "demeaned" or take umbrage at the possibility of the courts looking at the question again on fuller argument.The suggested analogies relied on with ecclesiastical courts and military courts which apply wholly distinct areas of law do not seem to me to be helpful or valid.I therefore consider that certiorari does lie to review the construction placed upon the statutes by the Visitor and that the cross appeal should be dismissed.The question then arises as to whether an error of law has been shown in the present case.The notice inviting applications for an appointment as Senior Lecturer/Lecturer in Philosophy contained the following paragraph:
"TENURE The appointments will date from the 1st October 1966 and will be subject to the Statutes of the University for the time being in force and to any conditions prescribed by the Council at the time of the appointments. The Senior Lecturer or Lecturer shall vacate his office on the 30th day of September following the date on which he attains the age of 67 years, unless it is specially extended by resolution of Council.
. . .
"The appointments may be terminated on either side by three months' notice in writing expiring at the end of a term or of the long vacation."

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On 13 June 1966 the Registrar wrote to offer Mr. Page, subject to the formal approval of Senate and Council, an appointment as a Lecturer with effect from 1 October 1966 "on the terms and conditions set out below:The appointment may be terminated by either party on giving three months' notice in writing expiring at the end of a term or of the long vacation."On 14 June 1966 Mr. Page replied:
"I am pleased to accept the appointment and have taken note of the terms laid down in your letter."
There were interviews of which oral evidence was given in the inquiry ordered by the Visitor but these were found by Lord Jauncey of Tullichettle to be neutral so far as the question at issue falls to be considered.If the letters of offer and acceptance are looked at alone then it is clear that the University was entitled to terminate the appointment on three months' notice.It is said, however, that if regard is had to the Statutes of the University, referred to in the notice inviting applications, on the basis of which the contract was clearly made even if the Statutes were not referred to in the letter, the University had no such right.By section 11 of the Statutes the Council shall appoint such other Officers as may be deemed necessary "with such duties at such remuneration and upon such terms and conditions as the Council shall deem fit provided that no Academic Officer shall be appointed except after consideration of a Report from the Senate".The Statutes also include the following provisions:

"Section 34

REMOVAL OF MEMBERS OF THE TEACHING RESEARCH AND ADMINISTRATIVE STAFF AND VACATION OF OFFICE
"1. The Vice Chancellor and all Officers of the University including Professors and members of the Staff holding their appointments until the age of retirement may be removed by the Council for good cause, . . .

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

[Four categories are then specified including certain convictions, incapacity rendering unfit to perform the duties of the office, conduct of an immoral, scandalous or disgraceful nature rendering unfit to perform the duties of the office.]
"3. Subject to the terms of his appointment no member of the teaching research or administrative Staff of the University (including the Vice-Chancellor) shall be removed from office save upon the grounds specified in paragraph 2

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

"Section 35

"RETIREMENT OF MEMBERS OF THE ACADEMIC AND ACADEMIC-RELATED STAFF OF THE UNIVERSITY
The Vice-Chancellor and all Professors, Readers, Lecturers and other salaried Officers of the University shall vacate their office on the 30th day of September following the date on which they attain the age of 65 years unless the Council . . . shall request any such Officer to continue in office for such period as it shall from time to time determine provided that in the case of such persons holding office on 30th September, 1977 the date shall be that on which they attain the age of 67 years."Essentially the argument of Mr. Page is that any member of the academic Staff who is appointed until a determined retiring age (in his case 67) can only be removed before that date for good cause as defined in section 34.2 of the Statutes. The provision as to three months' notice has to be read with the limitation that there can only be dismissal for good cause. It follows that, except in a case where either the common law or statute allows instant dismissal (e.g. for gross misconduct) a lecturer can only be dismissed for good cause after being given three months' notice (though the lecturer can terminate the agreement on three months' notice without any reason being assigned). A distinction is sought to be drawn between the staff included in paragraph 1 of section 34 (being those also falling within section 35 and who are appointed until a fixed age) and staff not so appointed to whom section 34(3) applies and who may be dismissed on the notice period specified in their letter of appointment.I do not accept this. Although the drafting of the Statutes leaves much room for argument (as this case has shown) it seems to me that reading the Statutes as a whole 65 is fixed as the retiring age for a member of the academic Staff. It is the age beyond which a member of Staff may not continue; they "shall vacate their Office" (section 35). That provision in itself does not guarantee continuance in post until age 65. Whether members of Staff can so continue depends on the other terms and conditions of the appointment. Those terms in this case include provision for termination for good cause under section 34(1) and on three months' notice as one of the terms of the appointment under section 34(3). This result could have been spelled out more clearly in the Statutes but it seems to me to follow from the provisions of the Statutes as they stand and, contrary to the argument of Mr. Page, to be no more curious than the alternative for which he contends.It follows in my view that no error of law has been shown in the decision of the Visitor and for that reason I consider that this appeal like the cross appeal should be dismissed.

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