Universities as public bodies

Irish law, with many other legal systems, distinguishes between “private” individuals (you, me, most businesses) and “public” bodies (the President, the Taoiseach, An Bord Snip Nua). Public bodies have a rather different set of responsibilities from private bodies, and are subject to a degree of questioning about their activities and plans that would be quite inappropriate for those in the private sector.

Irish universities, like most universities worldwide, straddle this public/private line. They are not fully public (as they stand apart from central and local government) but are very far from fully private. The conflict between public and private roles is inherent: up to a point all universities are expected to market their services and to support themselves on the proceeds (the classic “private” position), but the provision of high-quality research and teaching is clearly also a central political concern (and hence a “public” matter). By world standards, and as a generalisation, Irish universities are relatively more “public” than their counterparts in (say) the US or the UK, but relatively more “private” than those in (say) most of continental Europe (despite the recent wave of privatisation/marketisation accompanying the Bologna process).

What legal consequences follow? On the core public law question – whether the decisions of universities are subject to judicial review – the answer is clearly that they are, given that universities derive their powers from national legislation (see Eogan v University College Dublin [1996] 2 I.L.R.M. 302). University decisions are therefore subject to review, not to determine their correctness, but check whether they were properly made. Standard grounds for questioning the propriety of a public authority’s decision include demonstrable unreasonableness, irrationality, and error of fact or law. Other grounds would be based on natural justice (which requires, roughly, that someone whose legitimate interests are threatened by a decision of the public authority is entitled to have their concerns listened to fairly) (see for example Gunn v National College of Art and Design [1990] 2 I.R. 168).

The court’s function in relation to university decisions has been defined as being:

… to consider whether the decision in question was properly made, not whether it was a decision which ought to have been made. Court intervention may be sought because of incompetence in the decision-making authority or because the process or procedure was unjust or illegal. It may not be sought merely because the decision arrived at on the facts, claimed or established, was incorrect. What the court must consider, accordingly, is whether the decision … was exercised for reason of grounds which were authorised, whether it was so exercised in accordance with the procedure authorised and, if so, whether this procedure was fair and just. If the procedure, even if authorised, was not fair or if what was done was done mala fide or capriciously, then the court could properly intervene because of injustice in the one case and lack of competence in the other. While the correctness or otherwise of the decision cannot be questioned once it is arrived at bona fide, fairly, and within the competence of the deciding body, one other thing should be said. There may be circumstances … in which the decision or act complained of is so manifestly wrong and ‘beyond all reason’ … as to be itself evidence of mala fides. If such be the case this factor could properly be considered in support of a contention that the power had been exercised not bona fide but wrongly and for reasons not authorised. (McGrath & Ó Ruairc v Trustees of Maynooth College [1979] I.L.R.M. 166, 174, O’Higgins CJ.)

What is not entirely clear is the appropriate level of deference – in other words, the general spirit in which a court would conduct the enquiry, given that the matters enquired into are ones for universities, not courts, to decide. Two arguments in particular have been much used in foreign jurisdictions, but are of uncertain impact in Ireland:

  • In some jurisdictions, courts are very reluctant to investigate decisions calling for academic judgement; it would take a very clear case before a court were to rule that such a decision had been taken improperly. (See Kamvounias and Varnham, “In-house or in court?” (2006) 18 Education and the Law 1.) Whether an Irish court would take the same view would depend heavily on the context; not everything that universities do can be regarded as distinctively “academic”, or beyond criticism by non-academics. A straw in the wind is Quinn v Honourable Society of King’s Inns [2004] 4 I.R. 344, where Smyth J. refused to consider a simple allegation that an examination paper had received an unreasonable mark, but suggested that a court might intervene to insist on basic procedural safeguards, such as consistency of approach and scrutiny of the internal examiner by an external examiner.
  • Some Irish universities still have in place a Visitor or Visitors, who could hear certain types of dispute internally. Several foreign jurisdictions take the view that the courts cannot undermine a Visitor’s powers by hearing cases which the Visitor should hear. Further, while the Visitor is also a public authority, it is not always thought appropriate to subject her/him to a very searching standard of judicial review. (See for example the leading English case of Page v Hull University Visitor [1993] A.C. 682.) Arguments of this sort do not seem to be made very often in an Irish context; much would depend on whether the court considered the Visitor an appropriate tribunal for the case at hand.

Irish universities are therefore clearly subject to public law, but in many respects their position is anomalous. Other legal issues in which the “public” character of universities comes to the fore are as follows:

  • A very strong case could be made that Irish universities are “organs of the state” (given that they are established by law, and regulated on a statutory basis); accordingly, they are very probably within the scope of the European Convention of Human Rights Act 2003. This implies that they are bound to respect human rights by acting in a manner compatible with the convention, and if in breach of it could be sued by anyone who suffers loss, injury or damage as a consequence. Convention provisions of particular relevance in a university context include the rights to privacy and family life (article 8), to freedom of thought conscience and religion (article 9), to freedom of expression (article 10), to freedom from association (article 11), and to freedom from discrimination (article 14). (For a review from an English perspective see Arthur, “The Human Rights Act and higher education” (2001) 13 Education and the Law 285.)
  • For most purposes Irish universities are regarded as public sector employers, which puts them in a very different position from their private counterparts, both legally and politically. (Public service unions are powerful in Ireland; and one reason why Irish academic salaries are so very different from their UK equivalents is because Irish academic grades are still linked to particular public service grades, a position which the UK abandoned in the 1950s.) This close link with government clearly has both plusses and minuses from the university point of view. Current issues include government review of employee remuneration in universities, and the transfer of university pension funds into government control. Wages, tenure and overall numbers of staff are currently subject to the Employment Control Framework and the Public Service Agreement (the ‘Croke Park’ Agreement), the merits of which are matter of current controversy.
  • Regardless of their precise institutional status, most of the money Irish universities have is public money, and therefore they are responsible to government for its effective use. This control is mediated through various agencies, notably the HEA but increasingly the DES. While a private institution in difficult financial circumstances might fear a decline in its share price or proceedings for insolvency, a university president in equivalent circumstances expects rather a summons to appear before the Oireachtas Committee of Public Accounts (e.g. here).
  • Irish universities are clearly within the scope of the Freedom of Information Act, 1997, and so their records can be demanded by interested parties. There are certain exceptions, to allow for confidential internal debate and to protect the privacy of individuals; and the fees payable on exercise of this right discourage broad use of it.

(many thanks to Dr Conor O’Mahony for help with this page)