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:…
4.1.7.2 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.
Climate Audit 
42 Comments
From their original 2010 webpage (presumably approved by Russell):
“The Review was called for and is being funded by the University of East Anglia, but its work and findings are wholly independent.”
So the UEA initiated the review, not the “public” in any meaningful sense.
Steve: I hope you are right.
In UEA’s response to David Holland they wrote:
Re the parenthetical assertion, how commonplace is it? Does anyone have any recollection or knowledge of other universities making similar public appointments? Iow, is there legal precedent?
I’m no expert in the legals but “public appointments” for enquiries are common in the UK as they state – recent examples include the Leveson enquiry into the press, Hillsborough disaster enquiry and the Bloody Sunday enquiry.
From my understanding only the Prime Minister (or perhaps also national First Ministers and maybe a minister of the crown) can make such appointments.
Even HM the Queen doesn’t initiate enquiries and make appointments.
EDIT – what I mean is there might be a distinction between a proper “public enquiry” which is where the government initiates it and where someone is appointed to carry it, out and what is in effect an internal enquiry which is what this was.
Interesting website linked below. The page linked appears to be relevant to this discussion:
http://www.publicinquiries.org/establishing_the_inquiry/private_public_inquiries
This is a non-lawyer, uninformed observation derived from the duke’s reference near the top. Quote
“Private public inquiries. This apparent oxymoron is used to denote those exercises that are conducted in public with a Chairman or Panel independent of the matter being investigated …….”
I have no idea if the independent word is mandatory, preferable, or optional in a legal sense. In a logical sense, the Panel was not independent of the matter.
If UEA can make “public appointments” ask them to give another example. If the only one they can come up with is Muir Russell, well that says it all.
What is common is to appoint arms-length panels or review boards, such as tenure review committees, committees external to the univ to review a facility or department, etc. The idea here is that they are independent, and are not told what to do. They are nevertheless contractual, even if unpaid (as in a graduate committee). Ironically, or course, Acton and others DID tell Muir Russell what to do and played it like insiders, not as hands-off.
The problem (issue ?) here is that almost universally people appointed to such inquiries are chosen because they are perceived as “friendly”, and terms of reference are chosen to limit possible adverse findings
From my memory, only two (2) Commissions of Enquiry in Aus in the last 50 years produced bombshell findings, although there have been hundreds of such Commissions formed over the years. The overwhelming majority of results simply confirmed the status quo
In short, the people chosen to run such Commissions are expected to “play a blinder”, so the choice of personnel is done very carefully
ianl8888
Would you consider the Hope Inquiry into ASIO as one of the successes?
Thanks Geoff – on reflection, I can remember four (4) of real impact:
1) Hope into ASIO
2) Fitzgerald into the Q’land cops
3) the one into the squalid Melbourne dockland murders (can’t remember the judge)
4) the one into NSW police corruption (again, can’t remember the judge)
Numbers 3) and 4) produced results so unexpectedly different to those anticipated as to be classified as from some different galaxy 🙂
No others stand out for me
I don’t claim to have a full understanding of the ins and outs of Public Appointments, but I’m not sure you’ve quite got things straight here. The trouble lies in the fact that not all Public Appointments are necessarily ministerial or fall under the remit of the Commissioner for Public Appointments (whose code of practice you’ve linked to).
The governing body of any UK university is recognised as a public authority (which is why it is subject to the FOIA), and my understanding is that such institutions are able to make what constitute members of the category of ‘non-ministerial’ Public Appointments.
All I could find in a hurry which illustrates the point clearly is this link, advertising a non-executive directorial position at a Scottish university.
So here I think your beef should not be with UEA, so much as the fuzziness about PAs in general. (But I stand to be corrected and probably will be.)
Steve; Your link points to the Public Appointments Commissioner, Scotland and does not prove your point.
A distinction that I didn’t make clear is also the difference between making an appointment to an existing and approved public body and creating a new “public appointment”. I also remind you of the further issue of whether Acton could personally make a “public appointment”.
I will however happily defer to the opinion of someone who has actual knowledge of the law on this point.
I think it’s not unreasonable to sound a note of caution, that’s all. A pertinent Scottish reference was the best I could come up with in a hurry previously. But the principal appears to be the same in England and Wales.
In the UK as a whole, ‘a public appointment’ is an appointment to the board of a public body or government committee. Ministerial appointments in England and Wales are regulated by the Commissioner for Public Appointments in England and Wales. As the Commission website states, ‘No public appointment will fall within the Commissioner’s remit unless it is to a body listed in the Schedule to the relevant Public Appointments Order in Council or has been specified by the Minister for the Cabinet Office by Instrument in Writing as falling within his remit.’ I.e. not all public appointments fall under ministerial remit.
All charity trustees and state school governors are in effect public appointments. Non-executive members of the governing boards of universities (which are self-governing and legally independent but regulated as a public bodies) are equally public appointees, not employees. Their appointments are not made under ministerial supervision. So university governing bodies are self-evidently able to make public appointments, if only to constitute themselves.
It’s unclear to me why the vice-chancellor and governing board of a public university should /not/ have the power to constitute an inquiry by a public appointee, or, given that universities are public bodies, that this falls outside the specific terms of the power quoted by you under item 4.1.9 of UEA’s original charter. Still, as you and I have now both made perfectly clear, I have no authority in the matter, and my understanding may well be flawed: but I wholeheartedly agree that it would be better to seek sound information on the matter than to make inadequately founded assertions.
Ps. members of governing bodies at English universities, as public bodies, are expected by the Higher Education Funding Council for England to adhere to the seven principles of public life are set out by the Committee on Standards in Public Life in 1995, in Lord Nolan’s ‘Seven Principles of Public Life’.
The third of these principles requires that ‘In carrying out public business, including making public appointments (!), awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit’.
Correct in so far as it goes. But, to be a public appointment the appointment must be TO a public office, that is a public office at common law or by statute. I can think of no public office recognised by law to which Muir could have been appointed. The university may have powers to make appointments to existing public offices, what it does not have is a power to create a public office otherwise unknown to law.
It must be more complex than that. It is quite possible — and indeed advisable — for university governing bodies to appoint external co-opted members or external advisors to sit on advisory committees or deal with specific matters arising. These must fall under the category of public appointments: for what else are they? Whether or not such powers must be specified by charter (where a public body is a chartered corporation) is a separate matter.
Maybe it’s like Dwight Shrute’s job title:
“Assistant Regional Manager” or “Assistant TO the Regional Manager”
The wording:
“…by way of…”
The relationship was “by way of a public appointment” – or it could apply to some combination of other words in the sentence as being “by way of public appointment”.
Whoops. That link didn’t work. See:
http://applications.appointed-for-scotland.org/pages/job_search_view.aspx?jobId=305
“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”.
Agreed. There is a general principal of contractual or statutory construction that general language must be construed in light of more specific language. The following is a quote from Wikipedia, but nevertheless it is a good summary of what I learned in law school on this topic, and have seen in some case law over the years:
“Ejusdem generis (“of the same kinds, class, or nature”)
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where “cars, motor bikes, motor powered vehicles” are mentioned, the word “vehicles” would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).”
http://en.wikipedia.org/wiki/Statutory_interpretation
Notes are starting to go up at bishop hill about today’s hearing.
Regards
Mailman
I found the following in a parliamentary “note.” It suggests to me that any “natural person” has the power to establish an independent inquiry:
Here’s the link to thefull report
As a lawyer, I don’t think the question whether the relationship of Muir Russell with UEA was contractual is the entire question. The law of agency can apply where the law of contract does not. “A” can act as agent for “B” without being contractually bound to do so and without “B” having given “A” any valuable consideration to bind the relationship as a contract. “A” can do a favour for “B” without having contracted to do it. “A” can have something in his possession on behalf of “B” and as agent for “B” such that by law “B” is in possession of it too without being contractually bound so to possess it. More generally, at common law a natural person can do by agent anything which that natural person may lawfully do itself (provided that it is also lawful for the agent to do the act in contemplation as well). There is no reason why Muir Russell could not carry out an inquiry in response to a request from UEA which UEA desired should take place and for which UEA defrayed the cost and from which UEA expected to benefit, merely as a favour to them and without contractual obligation. The question still remains whether he acted acted as UEA’s agent such that his actions can be attributed to them and his acquisition of information put them into possession of it, or whether his acts of inquiry remain solely his own.
Glad you see you back on form, Steve.
“The Global Warming Policy Foundation, for obvious reasons, has not chartered to make…” reads oddly to me. Perhaps ‘…has not been chartered to make…’, or ‘…has no charter to make…’.
Probably covered elsewhere, but, leaving the law aside for the moment, how does it make sense for an FOI request to be LESS honored if an appointment is “public”?
It is germane to this discussion that “the Crown” includes that recondite body Her Majesty’s Most Honourable Privy Council, which advises on Royal Charters and therefore includes uiversity statutes, and whose deliberations are opaque on most matters.
That is an amazing piece of sluthery Steve. If your legal interpretations are accurate, it should be a difficult thing for the university to refute. Like your previous posts said, a lawyer is a useful thing in court!
Another David/Goliath battle is also in progress, with some amazing similarities
The Pat Swords vs Irish Govt (see the threads on BH). The Irish Govt’s defence in the Irish High Court yesterday is truly astonishing. In effect, the Govt is claiming that because certain requirements of an EU Convention were simply ignored by them in 2010, despite being both ratified by the Irish Parliament and subject to a recent EU Court finding against them, the “passage of time” (ie. 2 years) relieves them of responsibility to uphold their own law
Not even a Monty Python sketch could have come up with that
In my experience being super-greased slippery and supreme ability to run the clock down with endless plausible irrelevancies are sine qua non attributes of vice-chancellors who spend every day dealing with clever scheming departmental empire builders and disgruntled staff. A top lawyer is definitely called for to take them on in a court arena.
The Visitor to most, if not all, chartered UK universities from before the 1990s is the Queen, so arguably public appointments can be made by the University on her behalf anyway.
I’d be more interested in how the appointment was made. For UK Universities, actual definitions of power are recorded in statutes – and Council (the governing Body) at UEA appears to have the relevant powers in the statutes (http://www.uea.ac.uk/calendar/section3/statutes):
2.1 The Council’s functions shall be to:
2.1.3 ensure the establishment and monitoring of systems for the effective management of, and control of and accountability for the University’s affairs, property and finances and to monitor institutional performance;
2.1.8 appoint an auditor or auditors.
As auditors are normally considered public appointments, I’d say this was pretty clear – certainly, 2.1.3 implies the Council would have been responsible for the Muir Russell appointment. Although this could be delegated to the VC (Statute 3 allows), this should produce a paper trail. So an FoI for the Council decision, minutes (the actual written ones) etc for the appointment of Muir Russell along with the authorisation by which this was done if not done by Council might be useful.
Steve: the term “public appointment” has a technical and legal meaning. An auditor is not a “public appointment” in the relevant sense. In most corporations, the appointment of an auditor is done by shareholders at a shareholders’ meeting, not management. It’s hard to deduce much from analogies. But regardless of the nuance, the idea that one of the UEA managers could make a “public appointment” without authorization or confirmation by the COuncil seems unlikely to me. Even if the Council had the right to establish a fresh office by “public appointment”, of which I am dubious.
Sorry Steve, I’m not meaning to be rude, but I think you’re being far too narrow here, limiting your notion of public appointment to ministerial appointments. I repeat myself, but UEA is a public institution whose public appointments are not subject to ministerial oversight. Yes, governors are public appointments to established office, but university governors are themselves free to establish and make appointments to such committees as they consider necessary to enable them to carry out their responsibilities, including independent investigations, and indeed for vice chancellors to have responsibility for appointments other than holders of senior posts (the basic conventions are expressed in the Committee of University Chairmen ‘Guide for Members of Governing Bodies of Universities and Colleges in England and Wales’ (1995), available online). The number of members of committee and the terms on which they hold and vacate office is determined by the governing body, not by any outside organisation.
It is perfectly normal for vice chancellors and governing bodies to appoint ad hoc independent investigators to assist in cases involving serious allegation of misconduct. An example of this procedure is the 1995 independent investigation commissioned from a QC to whom they had no prior connection by the governors of the University of Plymouth, to investigate the irregularities which had led to the departure of their former vice chancellor. The QC was not under University contract, and the appointment was made by the governors, because the vice chancellor himself was under investigation. I would have thought that the QC’s commission was, you might say, ‘by way of a public appointment’ (see http://www.official-documents.gov.uk/document/hc9798/hc00/0004/0004.pdf, esp. p. 14-16). If not, what would you prefer to call it?
I agree with you, Jonathan. I browsed the report in your link. The University of Portsmouth did indeed appoint an independent inquiry, which nevertheless did not satisfy all parties so it was eventually referred to the National Audit Office.
I also looked into the Further and Higher Education Act of 1992. While I could not find a specific statute that mentioned inquiries, at least one statute seem to give University administrators broad discretionary powers.
What is needed in the EAU controversy is an inquiry into the inquiry and the overall performance of the university’s administration, which is what the National Audit Office performed in your link above. Steve and others have raised several important and incisive questions about the propriety of the Muir Russell inquiry and related matters. These questions will not go away any time soon. The Climategate emails reveal a high level of unethical and unprofessional conduct at EAU. Something needs to be done about it.
It may be that there are better ways to get to the truth of this matter than through FOIA requests. I don’t know how realistic it is to seek an inquiry by the National Audit Office, but the situations at the two universities in question have their similarities.
The Freeh Report on the Sandusky scandal at Penn State was prepared at the request of the PSU Board of Trustees after the University had conducted a fraudulent invesigation that served to coverup Sandusky’s long history of perverted acts. Unfortunately, it doesn’t appear that there are people at EAU that are prepared to call for the kind of comprehensive investigation Freeh provided.
The relevant pages on the inquiry are 8-10 in the pdf (not 14-16 as I wrote in my rather garbled comment).
Public appointments defined– sort of:
http://publicappointments.cabinetoffice.gov.uk/faq
From the link:
What is a public appointment?
Whilst there is no strict definition of what a public appointment is…
++++++++++++++
Which means that there is no definition in law, it seems. Without a legal definition, it can be argued that the UEA, lacking proper reference, cannot show that it has the power of public appointment, if such power is not explicit by its charter. The UEA, in effect, will be asking the court to 1) define the term “public appointment” 2) find that such power is granted by its charter. It seems that the bench might not want to assume the responsibility of the precedent of a legal definition for the term “public appointment”.
However, there is a chance that some legal precedent has been set that UEA can take advantage of. You need an attorney.
Is anyone else seeing a reduction in the comments in each thread? I see only 7 comments in this thread and there should be 31. On the “Acton and Muir Russell” thread I don’t see any comments.
Are you using the CA Assistant?
If so, by default, the script hides comments older than a specific age. There is a setting in the script which needs to be changed in order to fix that (or the script can be disabled but then you lose the HTML help when making comments).
Thanks, Roman. Fixed it. Was not using CA Assistant, but must have turned it on accidentally. I will play with it some more since I liked the HTML help, but didn’t like that I had lost older comments.
I can’t see why there is any question what-so-ever. Muir Russell was a paid contractor – consultant if you will.
I wish I had sent my submission by post … because that way I could have gone to the small claims court to get the cost of my postage back on the basis that there was false misrepresentation.
Muir Russell is the civil servant who was widely credited with being the one who was responsible for the debacle which was building the Scottish parliament. What happened? He got a rather cushy job at Glasgow University. When that ended he got another cushy job in charge of judicial appointments in Scotland.
You notice the pattern? He has a rather charmed life going from one cushy appointment to another.
He clearly knows which side his bread is buttered.
Just realised that some of the Scottish issues may not be understood. The Scottish parliament was set up (some say reformed) in 1999. There was already a building available in Edinburgh earmarked for the parliment … but no, they had to have a new building. The initial estimate was between 10 and 40 million. It ended up being £414million.
Muir Russell … “He was widely believed to be primarily responsible for the massive overspend on the new Scottish Parliament Building and was criticised by Lord Fraser of Carmyllie’s enquiry for failing to keep the politicians informed that the expenditure was far in excess of the budget.”
And it is a hideous building.
Muir Russell then took office as Principal of the University of Glasgow in 2003. Notice he’s a civil servant. No former involvement in education. Who’s just been involved in a massive overspend which was a massive scandal in Scotland. He then gets involved in a lecturers strike. He goes from mess to mess but still ends up becoming the Chairman of the Judicial Appointments Board for Scotland.
Did I mention the windows leak in the Scottish parliament? That it costs a fortune to maintain. That they had to rip out some massive structure when it was build because it was not fit for purpose. That they “consulted” the public on the design … and later we heard the architect had already started doing the work BEFORE the consultation.
IT WAS A HUGE SCANDAL …and Muir Russell was at the heart of it.
IANAL ( I am not a laywer ) but from researching on the web and from reading other peoples comments I strongly suspect that the University is capable of both creating and appointing a “Public Appointment”
Publicly funded bodies seem to create “Public Appointments” when they need to avoid employment law. I.e. they need to avoid creating an employer / employee relationship.
Can Acton do this on his own. Probably. If it is delegated by his board of Goveners or ratified by them after the event.
The key issue, is does this get them out of their FOI requirements and I do not think it does. A Public appointee is not exempt from FOI. Rather they are subject to FOI because fundamentally they are being paid from the public purse. There are clear guidelines as to what is exempt and mainly that is to do with personal information.
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