When Free Speech Meets Charity Law: The Case of the Rector of the University of St Andrews

The Rector of the University of St Andrews’ appeal against her second dismissal from the “University Court” has been upheld. While the facts are somewhat parochial, the matter provides an important illustration of the danger of an excessively restrictive application of the principle of “collective responsibility”, which is likely to have wider relevance to the governance of charities and public bodies, particularly universities.

The matter arose in the context of a dispute about who should preside over the “University Court” (essentially the board). “Ancient” universities, like St Andrews, are governed (inter alia) by the Universities (Scotland) Acts of 1858 and 1889. These designate the Rector (who is elected by the student body) as the “President” of the Court. Later statutes designate the “Senior Lay Member” as president in universities which do not have a Rector. The relevant roles of the SLM and the Rector have been subject to varies exigencies of internal university politics in Scotland for over a decade. Never before, however, has someone been forced from office as a result of such disagreements. In the instant case, the St Andrews Court decided to have the Senior Lay Member preside over the Court against the Rector’s objections. The Rector took the view that this was unlawful. The Senior Lay Member demanded that she retract her view and never repeat it. When she refused, the Court voted to dismiss her.

The Court relied on the principle of “collective responsibility”. It appears to have interpreted this to mean that, once it has taken a decision, no member can express disagreement with that decision (or, if they do, they must resign). The Rector, on appeal, argued that this was an unduly restrictive interpretation of collective responsibility. She stated that she was happy to comply with the decision of the Court (and offered to give an undertaking to that effect) but must be permitted to maintain her disagreement. “Collective responsibility” should not be interpreted as a “perpetual gag” on dissent. She gave the following reasons that the “perpetual gag” interpretation could not be correct

1. It would lead to absurd results – a board, for example, would never be able to reverse an erroneous decision.
2. It is a disproportionate restriction on the Article 10 right to free expression.
3. It would act to strip board members of common law rights, such as judicial review (i.e. a board member would never be able to challenge an unlawful decision without first resigning).
4. The University had not applied “collective responsibility” in this way in the past.

Lord Keen KC was appointed as appeal decision-maker. He concluded that, since the Rector had offered to give an undertaking, the dismissal should be reversed. His draft decision did not grapple with the definition of “collective responsibility”. The Rector’s legal team, therefore, sought clarification as to whether such an undertaking would require the Rector to embrace the “perpetual gag” approach to collective responsibility advocated by the University or the more liberal interpretation advanced by the Rector. Lord Keen responded by clarifying that, by accepting the decision, the Rector would not be prohibited from disagreeing with it. It appears, therefore, that Lord Keen endorsed the liberal interpretation.

This case has implications beyond its immediate facts. Universities (and, to a lesser extent, charities in general) are inevitably fora for debate and disagreement – both political and non-political. In many, some members of boards are elected and so are accountable to their constituents. The perpetual gag version of collective responsibility would, in effect, allow a temporary majority to silence dissent in perpetuity. This is not only problematic for advocates of free expression but also for those concerned with good governance. It would restrict the ability of boards to re-visit decisions in the light of new evidence and chill open debate. “Collective responsibility” is, therefore, better understood as relating to the duty of board members to take decisions collectively, the responsibility of the board (as a collective organism) for the organisation, and (in some cases) requiring compliance with controversial decisions. It is unlikely to require board members to resign or be forced from office simply because they disagree with their colleagues except in the most extreme cases.

Sam Fowles acted for the Rector of the University of St Andrews, led by the Rt. Hon. Sir Robert Buckland KC and instructed by Good Law Project.