Varma, R (on the application of) v HRH Duke Of Kent

A university visitor may appoint a competent person to investigate an appeal and provide advice, provided that the visitor personally makes the final decision and the process is fair. That is not unlawful delegation. Fairness ordinarily requires the appellant to see and comment on material advice before the visitor reaches a final decision, although representations should be confined to genuinely new legal points and clear factual errors. Judicial review of a visitor’s decision remains available for jurisdictional error, abuse of power and breach of natural justice. Even where procedural unfairness is established, relief may be refused if the court is satisfied that reconsideration could not affect the outcome.

The claimant’s registration on an MSc course at Cranfield University was terminated after he failed to achieve the required academic results. His internal appeals failed. He then appealed to the Duke of Kent, the university’s visitor. The Duke appointed a Circuit Judge as commissary to investigate the appeal, hear representations and report with a recommendation. The Duke accepted the recommendation and dismissed the appeal.

The claimant sought judicial review, alleging unlawful delegation and breach of fairness because the judge’s advice was not disclosed before the Duke’s decision. The central issues were whether the visitor had personally made the decision and whether nondisclosure required relief.

1. The claim was dismissed. The Duke had not unlawfully delegated his decision-making function. The prohibition on delegation concerns the decision itself, not necessarily the process leading to it. A visitor may appoint a competent person, normally a lawyer of standing, to conduct a hearing, obtain information and provide advice, provided that the visitor personally considers the matter and makes the final decision.
2. The procedure adopted was within the visitor’s wide discretion to determine how an appeal should be pursued. The judge’s description as commissary and the reference to his findings did not establish that the Duke had merely rubber-stamped the recommendation. Barnard v National Dock Labour Board [1953] 2 Q.B. 18 was distinguishable because it concerned delegation of the whole decision-making function. The approach was consistent with Thomas v University of Bradford (No.2) [1992] 1 All E.R. 964 and R v Lord President of the Privy Council ex p Page [1993] AC 682.
3. Judicial review of a visitor is available where the visitor acts outside the relevant jurisdiction, abuses the visitor’s powers or breaches natural justice. A complete delegation would mean that the appellant had not received the decision to which he was entitled and could constitute a failure to exercise jurisdiction or a breach of fairness. The wider submission that a visitor could delegate to anyone for any purpose without judicial control was rejected, applying R v Visitors to the Inns of Court ex p Calder [1993] 2 All E.R. 876.
4. Fairness required disclosure of the judge’s advice before the Duke made the final decision. The claimant had to be given an opportunity to comment, but not to reopen every issue or create an endless process. Comments should be limited to new points of law and clear errors of fact. The principle remained context-sensitive, as explained in Wiseman v Borneman [1969] 3 All E.R. 275 and Hoffmann-La Roche & Co AG v Secretary of State [1975] A.C. 291.
5. Despite that procedural breach, relief was refused. The judge’s report comprehensively addressed the claimant’s complaints, and none of the alleged errors was material. The appeal was bound to fail, so no representation could have affected the result. Article 6 of the Convention did not apply to the degree dispute, although the judge observed that it could be engaged in an appeal to a visitor where civil rights were at stake. The claimant was ordered to pay 75 per cent of the University’s costs, subject to the usual legal-aid protection.