R v Lord President of the Privy Council ex parte Page

The House considered whether the decision of a university visitor can be quashed by certiorari for an error of law. The majority held that the visitor of an eleemosynary charity (including a university) has exclusive jurisdiction to determine the domestic law of the foundation and that, where the visitor acts within that jurisdiction and according to natural justice, his decisions are final and not reviewable for error of law. Judicial review remains available where the visitor acts outside his jurisdiction, abuses his powers or breaches natural justice. Applying those principles, the House affirmed that the visitor's decision upholding Mr Page's dismissal was correct.

The appellant, Mr Edgar Page, was appointed a lecturer in Philosophy at the University of Hull in 1966. His letter of appointment provided for termination by three months' notice. The University's Statutes contained provisions (notably Section 34 and Section 35) dealing with removal of academic staff and retirement. In 1988 the University gave Mr Page three months' notice on grounds of redundancy. He contended that, on the true construction of the Statutes, a member appointed to a specified retiring age could only be removed for "good cause" and that the University had no power to dismiss him for redundancy.

Procedural history:

• Initial proceedings for wrongful dismissal in the Queen's Bench Division were struck out on the ground that the dispute fell within the exclusive jurisdiction of the Visitor.
• Mr Page petitioned the Visitor (the Lord President acting for the Crown). On advice from Lord Jauncey, the Visitor dismissed the petition, holding the dismissal intra vires.
• Mr Page sought judicial review. The Divisional Court held it had jurisdiction to review and quashed the Visitor's decision, declaring the dismissal of no effect.
• The Court of Appeal upheld the Divisional Court's view that the Visitor's decisions were reviewable but reversed on construction, holding the Visitor's construction was correct.
• The matter came to the House of Lords by way of appeal and cross-appeals.

Issues framed by the House:

1. Whether certiorari is available to quash a visitor's decision for error of law made within his jurisdiction.
2. If certiorari is available, whether the Visitor's construction of the University Statutes and his decision in Mr Page's case were erroneous.

Reasoning:

• The majority reviewed the long line of authority from Philips v. Bury (1694) onwards that gives visitors exclusive jurisdiction to determine internal disputes under a foundation's own law and observed that the courts may control a visitor only by mandamus or prohibition where he refuses to act or intends to act outside jurisdiction, and by certiorari where there is abuse or breach of natural justice.
• Although modern administrative law generally permits review for error of law (Anisminic, O'Reilly v Mackman, Council of Civil Service Unions), the majority concluded that those principles do not displace the common law rule that the visitor is the sole judge of the foundation's domestic law; where the visitor acts within jurisdiction and with procedural regularity, his view of the domestic law cannot be treated as an error of law susceptible to certiorari.
• The majority therefore held that judicial review is not available to impeach a visitor's decision for error of law made within jurisdiction; it is limited to jurisdictional excess, abuse of power or breach of natural justice. They also concluded that the Visitor's decision on the construction of the Statutes (as accepted by the Court of Appeal) was correct and dismissed the appeal.
• A dissenting opinion contended that certiorari should be available on ordinary judicial review grounds (illegality, irrationality, procedural impropriety) and that the Visitor's decision could be reviewed on an error of law; that view did not carry the majority.

Appeal dismissed; the House held by a majority that where a university visitor acts within his jurisdiction and in accordance with the rules of natural justice his decision on the domestic law of the foundation is final and not subject to review by certiorari for error of law. Judicial review remains available only where the visitor acts outside his jurisdiction, abuses his powers or breaches natural justice. The House also accepted that the Visitor's decision in this case was correct.

Queen's Bench proceedings (wrongful dismissal claim) struck out as falling within the Visitor's jurisdiction; petition to the Visitor dismissed (on advice of Lord Jauncey); Divisional Court (Taylor L.J. and Rougier J.) held it had jurisdiction and quashed the Visitor's decision; Court of Appeal (Lord Donaldson M.R., Staughton and Farquharson L.JJ.) upheld the Divisional Court on jurisdiction but reversed its construction, finding the Visitor correct; appealed to the House of Lords which affirmed the Court of Appeal (Order of the Court of Appeal complained of dated 31 July 1991 was affirmed).