Preface: Constitution and Statute-making Powers of the University

The University of Oxford is a lay corporation first established at common law by custom or prescription and later formally incorporated by statute. It has no founder and no charter. The early history of the University¹ shows that it evolved from a group of Masters and students residing in Oxford in the latter part of the twelfth century. The academic society which they collectively brought into life paralleled similar associations at other centres of learning in Europe, notably Bologna and Paris. The term originally used throughout Europe to describe such a society was studium generale. The purpose of the studia generalia was to provide instruction in the seven liberal arts - grammar, logic, and rhetoric (the trivium) and arithmetic, geometry, astronomy, and music (the quadrivium). Graduates in arts could embark upon a higher course of study leading to degrees in law, medicine, or theology.

In 1214 the body of Masters and Scholars at Oxford was placed under the jurisdiction of a Chancellor, to be appointed by the Bishop of Lincoln. The office was created under the terms of an award of the papal legate, Nicholas Cardinal Bishop of Tusculum, made in settlement of a dispute with the townspeople over the hanging of two students in 1209 for complicity in murder. This incident had resulted in the closure of the schools and the summary departure of the scholars in protest, some of whom went on to establish a studium in Cambridge. Later in the century it became the practice for the Bishop of Lincoln to confirm in office the Chancellor elected by the Oxford Masters themselves.

After 1214 the Chancellor, Masters, and Scholars of Oxford quickly gained recognition as a corporate body distinct from the individuals who were its members. The word universitas, which at the time meant any body of persons having a distinct purpose and legal status, was first applied to the Masters at Oxford in 1216² and within the next two decades was applied to the body of Chancellor, Masters, and Scholars collectively in grants of royal and papal legal privileges. The enactment of statutes began not later than 1230; a Common Chest was established by 1240; and the use of the Common Seal was firmly established by 1276.³ Proctors and Bedels were established in office at the beginning of the thirteenth century,⁴ although the University had to wait until 1448 for the office of Registrar,⁵ and the post of Vice-Chancellor was not fully established until 1549.⁶ The earliest recorded depiction of the coat of arms is 1412-17. Its use had become official by 1429.⁷ The first buildings owned by the University were Congregation House and the Divinity School, with Duke Humfrey's Library.

The establishment of the Universities of Oxford and Cambridge may be contrasted with the foundation of their colleges. All the colleges are founded by charter. With the exception of the more modern foundations they are eleemosynary corporations, that is to say they were established and endowed for the perpetual distribution of the bounty of the founder and were frequently charged with the duty of saying masses or prayers for the founder and his or her kin.⁸

1 See Rashdall: The Universities of Europe in the Middle Ages (Second Edn OUP 1936); History of the University of Oxford, Vol. 1, Chap. 1 (Southern) and Chap. 2 (Hackett) (OUP 1984); and Cobban: The Medieval Universities (Methuen 1975), Chap. V.1.

2 Hackett, loc. cit., p. 47.

3 Hackett, loc. cit., p. 51.

4 Hackett, loc. cit., pp. 56 and 82-7.

5 Statuta antiqua universitatis oxoniensis: ed. Strickland Gibson (OUP 1931), p. xx and pp. 283-5.

6 Stickland Gibson, op. cit., p. lxxiv and pp. 350-1.

7 Hackett, loc. cit., p. 94.

8 See the definition in Picarda: Law and Practice Relating to Charities (Second Edn Butterworths 1995), p. 379.

After more than three centuries, Oxford and Cambridge Universities were formally incorporated in 1571 by statute. The Act for the Incorporation of Both Universities is a short Act containing a preamble and seven sections. The principal intention of the Act, stated in the preamble, is 'that the ancient Privileges Liberties and Franchises of either of the said Universities herebefore granted ratified and confirmed by the Queen's Highness and her most noble Progenitors may be had in greater Estimation and be of greater Force and Strength ...'

Section 1 enacts that the Chancellor, Masters, and Scholars of Oxford shall be incorporated and have perpetual succession in fact, deed, and name 'by the Name of the Chancellor Masters and Scholars of the University of Oxford'. The University is to be known by that name, is to have a Common Seal, and may sue and be sued accordingly. Corresponding provision is made for the University of Cambridge. Although the Act did not create the Universities it stands as the highest legal confirmation of their corporate status.

At common law a corporation has the power to enact rules for the regulation of its internal affairs including procedures for the creation of new rules and the repeal or amendment of existing ones. These rules are of course subject to and may be overridden by the general law of the land.

In its first 400 years Oxford University exercised its rule-making power in full measure.⁹ The early statutes recognised the Congregation of the Regent Masters, that is those teaching and resident in Oxford, as the principal governing body of the University for most purposes. They provided for the summoning of Congregation, the procedure to be followed at meetings, and the taking of votes. A great Congregation, or Convocation, of Non-regent and Regent Masters was established as the University's supreme governing body, meeting from time to time. Convocation, not Congregation, exercised the power to make, amend, and annul statutes. The officers of the University were provided for and the manner of their election. Statutes were made governing admission to degrees, the giving of lectures, student discipline, academic dress, the administration of the Chancellor's Court, and many other matters.

9 Strickland Gibson, op. cit.

During the sixteenth century it was recognised that the statutes had fallen into an unco-ordinated if not chaotic state. No single authoritative version existed, various copies being in the hands of different university officers. Attempts were made during that century and in the reign of James I to revise them and give them a more coherent shape. The accession of Charles I in March 1625 and the election of Archbishop Laud as Chancellor of the University in April 1630 finally produced a comprehensive and accessible code of statutes which was to govern the University for the next 200 years.¹⁰

King Charles and the Archbishop were as much concerned with the need to control religious divisions inside the University, and student indiscipline, as they were with the unsatisfactory state of the statutes themselves. The Laudian Code was preceded by the creation in 1631 of the Hebdomadal Board, the weekly meeting of the Vice-Chancellor and college heads to discuss university business, designed by Laud to dilute the influence of Congregation and Convocation, and by the grant by Charles I of the Great Charter of 3 March 1636. This charter enlarged the University's legal privileges, and the jurisdiction of the Chancellor's Court in both civil and criminal matters at the expense of the courts of common law, and reinforced the rights and privileges of the University Press.

The text of the Code, after a gestation period of five years, was finally settled by Laud himself and presented to the King who ratified it by Royal Letters of Confirmation on 3 June 1636.¹¹ The political purpose of this document is clear, but its legal effect was more debatable. The operative part states that the King 'accepts approves ratifies and confirms' the Code. It directs the heads of colleges to give their written assent to the Code on the day of its presentation to and promulgation by Convocation and requires all the Masters and Scholars of the University to swear their allegiance to it within six months of that event. It was formally adopted on 22 June.¹²

The Code incorporated three statutes previously sent by the King to Convocation under the royal signet - the so-called Statuta Carolina, or Royal Statutes - which concerned among other things the appointment of Proctors and the establishment of the Hebdomadal Board. On the other hand it did not codify all the earlier statutes, some of which were unaffected by it. The provisions of the Code which dealt with Convocation's law-making powers, taken with the Royal Letters of Confirmation, gave rise to the question whether the University had retained any power, and if so what, to alter or annul its existing statutes - the Code generally, the three Royal Statutes in particular, or any of the others - or to make new statutes. Counsels' opinion delivered in 1759¹³ brushes aside the legal effect of the Letters of Confirmation and is a robust statement of the University's continuing legal independence.

'... we think that the King has no power vested in him by his prerogative, or otherwise, to give laws or Statutes to the University after its original Act of Incorporation, without their acceptance, assent, or confirmation. And we also think, that it was not in the power of the University to delegate their right of making perfect By-Laws or Statutes to any subject, or even to the King: and that no Statutes, made by such delegation, would be valid without the assent or confirmation of the Convocation. It is that which we think gives vitam et modum to every Statute, and as it was not in the power of the University itself to enact any Statutes which should remain unalterable or unrepealable, so we think it could not delegate a power to any subject or to the Crown, to enact or make any laws that should not be repealable without the consent of such subject or his heirs, or such King or his successors; and though powers have in some instances been actually delegated by the University to the Crown, to give them Statutes for their government, and the Crown has accordingly so done, and such Statutes have been confirmed by Royal authority, yet even such Statutes so made and so confirmed cannot (we think), abrogate the legislative power necessarily inherent in, and incident to the University ...'

Blackstone gave advice to the same effect.¹⁴

Not surprisingly Convocation was prepared to act on that advice, but the issue was revived when, in response to a controversial election to the Regius Professorship of Divinity in 1836, Convocation purported to annul those parts of the Laudian Code which gave the professor jurisdiction over preachers. The University obtained legal opinions to the effect that the University's power to override the Code was limited by the provisions of the Code itself, on the ingenious ground among others that the Letters of Confirmation should be construed as a new charter. This advice was not followed, but the issue was again debated with the University Commissioners of 1850, who recommended that the University should petition the Crown for the removal of any fetter on the University's powers which the Code and the Letters of Confirmation might have imposed. Full power of dealing with the Code was granted by Royal Licence on 10 July 1854¹⁵ with the exception of the Royal Statute which constituted the Hebdomadal Board. Licence was also given to repeal and alter any other statutes without further licence or authority. The document is silent on the power to make new statutes outside the scope of the Code, which must have been implicitly accepted.

For all practical purposes therefore, before the work of the University Commissioners in the nineteenth and twentieth centuries, the powers of the University now corresponded with the description given by Counsel in 1759, with the possible exception of the statute relating to the Hebdomadal Board.

10 For an account of the enactment of the Laudian Code and the events which brought it about see: C. L. Shadwell's Preface to The Laudian Code of Statutes (ed. Griffiths) (OUP 1888) ('LCS') and History of the University of Oxford, Vol. IV Chap. 4 (Fincham) (OUP 1997).

11 Reproduced in LCS, pp. 294-6.

12 The document bearing the signature of the heads of the colleges and halls is reproduced in LCS after p. xxiii.

13 The opinion of John Morton and R. Wilbraham quoted in full in the Preface to LCS, pp. xvi-xviii.

14 Preface to LCS, p. xviii.

15 Preface to LCS, pp. xxv-xxvii.

From the nineteenth century onwards the University's power to make its own statutes has been reduced. A Royal Commission appointed in 1850 proposed a long list of reforms for the University including major changes to its constitution and the internal balance of power. It perceived that the influence of the University, represented by the professors and the Regent Masters in Congregation, had virtually evaporated, and that the real power base at the centre consisted of Laud's Hebdomadal Board, comprising all the heads of house, and Convocation. In consequence the colleges, now far more generously endowed than the University, had become in large measure autonomous, secretive, and unsupervised institutions enjoying a degree of privilege and control over their assets which was inimical to academic and social progress.

Lord Curzon¹⁶ described the situation at Oxford in 1852 in these terms: 'The first Commission found the Fellows a powerful body of nearly 550 strong, appointed by favour from a narrowly restricted class, drawing large but irregular stipends, all unmarried and in Holy Orders, holding office for life, and mostly living away from Oxford.'

The Oxford University Act 1854 was passed to give effect to the Commission's main recommendations. A new statutory Commission was appointed to exercise its powers until 1 January 1857 (or 1858 if necessary).¹⁷ Subsequent provisions of the Act then imposed new constitutional arrangements directly upon the University by the force of the Act itself. The Hebdomadal Board was abolished and replaced by a new elected Hebdomadal Council.¹⁸ Detailed provisions were made for the membership of the new Council and the mode of election.¹⁹ The Council was empowered to make rules for the regulation of its own proceedings.²⁰ Subject to the supervision of the Council, the Vice-Chancellor was required to draw up a new register of members of Congregation, the composition of which was specified in detail by the Act.²¹ Statutes promulgated by the Hebdomadal Council were to be laid before Congregation for debate;²² but Convocation remained the supreme law-making body.²³

In order to widen access to the University to individuals who could not for a variety of reasons gain admission to a college or existing hall, power was given to the Vice-Chancellor to license members of Convocation to open their residences as private halls;²⁴ and the University was given the right to make statutes for private halls.²⁵

The colleges were empowered to alter and amend their statutes subject to the Commissioners' approval.²⁶ The intention was that the colleges should modernise themselves, but if they failed to do so the Commissioners could make statutes for them.²⁷ The University had the same powers as the colleges in relation to halls and private halls, with the same default powers reserved to the Commissioners.²⁸ Statutes made under these provisions were to be published in the London Gazette and laid before Parliament. Objections could be made and would be considered by the Privy Council.²⁹

The Act also gave the University power to alter trusts or directions affecting gifts or endowments of more than fifty years' standing, with the consent of the Commissioners and the Privy Council.³⁰

The University and the colleges were entitled to repeal or alter any statute made under the Act in the same manner as they could amend any other statute;³¹ but statutes made by the Commissioners could not be repealed or altered except with the approval of the Privy Council.³² The University was also authorised to alter the sections of the Act itself which provided for the constitution, powers, and proceedings of the Hebdomadal Council and Congregation, subject again to the Privy Council's consent.³³

Commissioners for Cambridge worked on parallel lines. Their report rroduced the Cambridge University Act 1856.

Gladstone's Universities Tests Act 1871 abolished any requirement imposed at Oxford, Cambridge, or Durham that, before taking a degree (other than in divinity) or exercising any right or privilege or taking up any lay office or appointment, a person should make a declaration of religious faith or affiliation. The process of reform was then continued by the appointment of new Royal Commissioners in 1872, with specific terms of reference and powers to investigate and report upon the financial resources of Oxford and Cambridge and their colleges. The report of the 1872 Commissioners, published in 1874, resulted in the passing of the Universities of Oxford and Cambridge Act 1877.

Unlike the 1854 Act, the 1877 Act did not directly impose new laws on the Universities or their colleges. The Act was an enabling and procedural Act, empowering Commissioners appointed under the Act to make statutes for the Universities and colleges as they thought fit in accordance with a statutory procedure. As before, this power included the right to alter trusts of more than fifty years' standing.³⁴ Section 16 of the Act set out an extensive list of objects for which university statutes could be made, including the setting up of a scheme requiring colleges to make contributions to a common fund 'for University purposes'. Statutes made by the Commissioners were again required to be submitted to the Privy Council for approval, and after that to be laid before Parliament.³⁵ The 1854 Act was not repealed, but section 51 of the 1877 Act provided that statutes duly made by the Commissioners should take effect 'notwithstanding any instrument of foundation or any Act of Parliament ...' or other instrument or document. The substantive sections of the 1854 Act would accordingly remain in force until overridden by new Commissioners' statutes. The Universities and the colleges retained the power to alter statutes made by the Commissioners, but no alteration would be effective unless approved by the Privy Council.³⁶

Neither of these two Acts abolished the University's inherent power to make statutes for itself, or to amend or annul those statutes. To the extent that existing statutes were inconsistent with Commissioners' statutes (or the provisions of the 1854 Act) they were ineffective; and Privy Council approval was required whenever the University wished to pass new legislation which would have some effect on the laws imposed by Parliament or the Commissioners. Otherwise the University's right to govern its own internal affairs was unimpaired. One important example of purely internal legislation was the creation of the faculties and the General Board of the Faculties in 1910.

16 Principles and Methods of University Reform (OUP 1909), p. 93.

17 Act of 1854, ss I and II.

18 Section V.

19 Ss VI–XIII and XXI.

20 Section XV.

21 Ss XIV-XVI.

22 Ss XVII-XX.

23 Section XXII.

24 Ss XXV and XXVI.

25 Section XXVII.

26 Section XXVIII.

27 Section XXIX.

28 Section XXXVII.

29 Ss XXXV-XXXVII.

30 Ss XXX, XXXV, and XXXVI.

31 Section XXXIX.

32 Section XL.

33 Ibid.

34 Act of 1877, s. 13.

35 Ss 45-50.

36 Section 55.

The practice of enacting subordinate legislation, below the level of statutes, for more detailed administrative matters is also of high antiquity. When Convocation, meeting less frequently, possessed the primary statute-making power, it was understandable that it should delegate to Congregation a power to make subordinate rules and regulations for the more detailed implementation of law and policy. There is evidence of an ordinance passed by Congregation alone as early as 1278.⁴⁰ The 1854 Act recognised this practice by giving to the Hebdomadal Council and to Congregation the power to make rules for the regulation of their own proceedings.⁴¹

In more modern times the Hebdomadal Council and (after 1 October 2000) the Council have enjoyed a general power to make, amend, and repeal subordinate legislation not inconsistent with the statutes, and to authorise any other body or person to do so. Decrees and regulations, which include the voluminous decrees and regulations relating to examinations, came to exceed by a very considerable amount the volume of the University's statutes.

40 Strickland Gibson, op. cit., p. xxiii.

41 Ss XV and XVI.

In 1964 the University appointed a Commission under the chairmanship of Sir Oliver (later Lord) Franks to carry out a comprehensive review of the University in the light of the Government's Robbins Report and to make recommendations for reform. Its report was published in 1966 and included a number of significant recommendations for reform of the statutes.

By the time of Franks the jurisdiction of Convocation over statutes had been reduced but not entirely abolished. The 1923 Act Commissioners had left Convocation with the following functions: electing the Chancellor; electing persons for presentation to benefices in the gift of the University; conferring degrees by diploma and honorary degrees; and approving letters from the University to the sovereign and certain other bodies. With regard to statutes, under the then Title X, SectionI, clause 6 statutes accepted by Congregation by votes of less than two-thirds of the members present and voting were required to be submitted to Convocation; and there was a corresponding provision concerning the passing of decrees under Title X, SectionI, clause 7. Convocation was also obliged to perform such further duties as might be assigned to it by the University Statutes.

The Franks Commission recommended that Congregation alone should have the power to make statutes or to amend or repeal them. It also drew up a new set of statutes, for the first time entirely in English, in a new sequence which finally dispensed with the order devised by Archbishop Laud. Its report recognised⁴² the established distinction between 'Queen-in-Council' statutes and others, but suggested that, since the majority of its proposed new statutes covered matters which had been dealt with in Commissioners' statutes in the past, the new code in its entirety should be sent to the Privy Council for approval.

The University adopted virtually the whole of the code recommended by Franks. Only the provisions relating to student discipline remained unreformed. The University did not however adopt the suggestion that all the statutes should be brought within the jurisdiction of the Privy Council. Correspondence passed between the then Secretary for Administration, on behalf of the University, and Sir Godfrey Agnew, Clerk to the Privy Council, between November 1966 and January 1967 as a result of which it was possible to identify by agreement the statutes in the new code which should be treated as 'Queen-in-Council' statutes and those which should not. The correspondence thus acknowledged the University's continuing right to pass, amend, and repeal some of its statutes without the need to obtain Privy Council approval. In the process of categorisation regard was had not only to the history of statute-making by Commissioners but also the necessity to ensure that the Privy Council continued to oversee important matters and the desirability so far as possible to relieve the Privy Council of the task of scrutinising matters of less importance.

The new statutes came into force in 1969. After more than 700 years Convocation was finally deprived of all jurisdiction over statutes, its role being limited to the historic role of electing the Chancellor, and performing such other duties as Congregation might decide. The only other duty assigned to Convocation since that date is the election of the Professor of Poetry.

42 Report of the Commission of Inquiry, p. 307.

Commissioners were appointed under the Education Reform Act 1988 to make statutes for all the Universities in England and Wales concerning the tenure of office and dismissal of academic staff, the procedures to be followed in cases of ill-health, and the handling of staff grievances. The statute made for Oxford by the 1988 Act Commissioners has been re-enacted within Statute XII in these statutes. It cannot be altered without the consent of the Privy Council under the terms of the 1988 Act. It is therefore properly described as a 'King-in-Council' statute, although it does not derive that status from the 1923 Act. Unlike other Commissioners' statutes it also requires the University to make by-laws on matters of detailed implementation.

In 1997-8 a Commission under the chairmanship of the then Vice-Chancellor, Sir Peter North, which had been appointed by the University to carry out a review of the organisation, management, and financing of the University, and to recommend reform where appropriate, submitted its report. A Joint Working Party on Governance, established by the University and the colleges under the chairmanship of Sir Peter's successor, Dr (later Sir) Colin Lucas, to consider the North Report, then promoted important changes to the University's internal structures which came into force on 1 October 2000. The main changes were: the merger of the University's two principal governing committees - the Hebdomadal Council and the General Board of the Faculties - into a single exclusive Council, subject to the overriding sovereignty of Congregation; the inclusion in the new Council of members who were not members of Congregation; the delegation of much of the central business of the University to four main committees, each chaired by the Vice-Chancellor or a Pro-Vice-Chancellor; the arrangement of the faculties, sub-faculties, and departments into five new academic divisions with overall responsibility for their activities and funding; the appointment of a permanent head of each division, who would automatically be a member of Council; and statutory representation of the colleges on each of these bodies.

The North Commission also noted that the statutes and subordinate legislation of the University again needed substantial revision. The statutes themselves had become burdened with unnecessary detail, and the whole needed to be set out in a more accessible and comprehensible form.

The current Statutes and Regulations were prepared by a working party chaired by the then Principal of St Hugh's College, Mr Derek Wood, QC, appointed to implement the Commission's recommendations. The opportunity was taken to include within the statutes some basic constitutional provisions normally found in a charter (for example Statute I, sections 1-4 and Statute II) and to bring the University's disciplinary and dispute-resolution procedures in line with current legal practice (Statutes XI and XVII).

For the first time in its history the University repealed the whole of its existing legislation and replaced it with an entirely new code. The Statutes were approved by Congregation on 11 December 2001. The 'Queen-in-Council'* Statutes were then approved by Her Majesty in Council on 17 April 2002. The subordinate legislation (previously split between decrees and regulations) was substantially and progressively revised and recast as Regulations in a new form intended to make them easier to identify and understand and to allow further revision and replacement to be carried out more efficiently.

The new code came into force on 1 October 2002.

* Since the accession of King Charles III to the throne, these are referred to as 'King-in-Council' statutes.