In its refusal of David Holland’s FOI request for Muir Russell documents, the UEA has argued that it did not have a contract with Muir Russell; instead, Muir Russell was a “public appointment”. I did a blog post two years ago in which I raised questions about the veracity of UEA’s answer. The issue is at stake in David Holland’s tribunal hearing today. I have a few more thoughts on whether the UEA’s powers entitle it to make “public appointments”. Related to this is whether the UEA Vice Chancellor can unilaterally make “public appointments”.
The UEA refused Holland’s FOI 10-144 as follows:
The University does not consider that there was a contractual relationship with Sir Muir Russell or the inquiry team; it was by way of a public appointment (as is commonplace in these circumstances).
In its internal appeal, the UEA re-iterated this assertion, as it did in its refusal of Holland’s related 11-022. In its submission to the ICO in the appeal, the UEA maintained its claim that there was “no contractual relationship”.
Let’s step back for a moment and ponder precisely how (and whether) the UEA is empowered to make “public appointments”. In my earlier post, I reviewed some of the policies governing UK public appointments, but did not examine the charter of the UEA and the office of the Vice Chancellor, which I’ll do today.
Let’s start with a simple case. The Global Warming Policy Foundation contracted with Andrew Montford to write a report on the Climategate inquiries a couple of years ago. No one would argue that the Global Warming Policy Foundation had made a “public appointment” of Andrew Montford. The Global Warming Policy Foundation, for obvious reasons, has not chartered to make “public appointments”, though, like any other organization, it has the right to enter into contracts, as it did with Andrew Montford.
The question then is: how, in law, does the Vice Chancellor of the UEA have a right to make “public appointments” that is not possessed by, say, Benny Peiser of the GWPF?
The logical place to look is in the charter of the University of East Anglia. But the charter merely says that UEA has the powers of a “natural person”, “including but not limited to” various itemized powers, including the right to enter into contracts and the right to do things “necessary or convenient” to the furtherance of its objectives:
4. Powers of the University
4.1 Subject to the provisions of the Charter and Statutes, and in the furtherance of its objects, the University shall have all the powers of a natural person including, but not limited to, the power:
4.1.7 In relation to the transaction of University business:…
220.127.116.11 to enter into contracts;
4.1.9 to do anything else necessary or convenient, whether incidental to these powers or not, in order to further the objects of the University as a place of education, learning and research.
This last item (4.1.9) does not, as I read it, confer powers that are additional to the “natural person powers” conferred in section 4.1, but itemizes one of the powers of a “natural person”.
The term “natural person powers” has legal meaning. “Natural persons” are entitled to do a variety of things under common law, but they are not entitled to make “public appointments”. Only the Crown can make public appointments. Indeed, when one looks carefully at the list of public appointments covered in the UK Code of Practice for Public Appointments, the public appointments pertain to departments of the Crown. The “remit” of the Commissioner for Public Appointments specifies appointments made by “Ministers” of the Crown:
The Commissioner for Public Appointments regulates the processes by which Ministers (including Welsh Ministers) make appointments to the boards of certain public bodies and certain statutory offices in England and Wales.
The University of East Anglia is not a department of the Crown. It has been endowed by its charter only with the powers of a “natural person”; nowhere in its charter is it empowered to make “public appointments”. The Vice Chancellor of the University of East Anglia, regardless of his self-conceit, is not a Minister of the Crown and is not entitled to make “public appointments”. The UEA claim to the contrary is yet another fabrication.
And even if the University of East Anglia were empowered to make “public appointments” (which seems very dubious), could the Vice Chancellor personally make a “public appointment” without submitting the “public appointment” to the Council of the University? Seems highly implausible to me.
It seems incontrovertible to me that Vice Chancellor Acton is not empowered to make “public appointments”. And that UEA merely contracted with Muir Russell and the various members of the panel.
Arguments would still remain, but arguments based on the premise that Acton’s actions of 2-3 December 2009 constituted a “public appointment” process should be rejected by the Tribunal.