Is this a hard act to follow?

September 29, 2000

The culture of higher education has changed much over the past half century, but with the full introduction of the Human Rights Act, the sector could face its greatest challenge yet, argues Dennis Farrington

The Human Rights Act 1998 comes fully into force on Monday, incorporating into UK legal systems most articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms - signed in November 1950 and in force since September 1953 - and those extant protocols that have been ratified by the United Kingdom.

The convention, drafted largely by UK lawyers, drew heavily on the Universal Declaration of Human Rights, which itself drew on the Magna Carta and other declarations of rights over centuries. It was the first fruit of the Council of Europe, established in 1949 by ten states including the UK. All UK governments until 1997 refused to incorporate the convention and ratified protocols directly into our laws, as UK common and statutory law were generally considered to offer more than adequate protection of human rights. However, the UK was also high in the league table of Council of Europe member states whose laws and practices had been found to be in conflict with the convention. The new act has now rectified this omission.

The act is taking its place among other measures concerned with data protection, freedom of information and surveillance of email. Citizens will be able to raise convention points in actions against bodies exercising public functions.

How might the act affect higher education? First, consider the state of UK universities and colleges in 1950. Highly restricted access, closed scholarships and discrimination of all kinds were considered acceptable by those who ran the education system. Resources were tight in the postwar economy, and it is not surprising that convention rights and freedoms omitted any mention of higher education. In 1952, this was rectified partially by the adoption of Protocol No 1, Article 2, which opens with the words: "No one shall be denied the right to education." But the wording shifts the burden to a person denied the right to education to prove his or her case in Strasbourg - the UK had agreed in 1966 that individuals could take cases against it direct to the judicial organ of the council, the European Court of Human Rights (ECHR), established in 1959. The UK also entered a reservation, replicated in the act and other legislation, restricting the right to what can reasonably be afforded.

Protocol No 1 does not refer directly to higher education, and the ECHR has agreed that the remaining words of Article 2 suggest that it is concerned principally with the right to compulsory education. Aggrieved higher education students have failed to use the article to get a hearing in Strasbourg or to impress the domestic courts.

However, jurisprudence of the ECHR, which must be taken into account in determining convention-based arguments under the act, suggests that there is a right of access to higher education based on academic merit. That was far from being true when the protocol was ratified, and it may be that the right of institutions, upheld by the courts as recently as 1999, to decline admission "without giving reasons" may be inconsistent with the protocol.

The Human Rights Act refers to actions being brought by individuals against bodies that exercise public functions. It does not seem to be disputed that, whatever the precise legal form of universities and colleges (public bodies or private bodies operating in the public interest), their educational functions are public functions and so must be carried out in compliance with the provisions of the convention. Assuming that there is a "right" to admission based on merit and that institutions discharge public functions, then discrimination on virtually any ground is prohibited by Article 14 of the convention. However, that cannot offer protection unless some other right or freedom set out in the convention or ratified protocols is itself infringed. The Committee of Ministers has adopted Protocol No 12, which should enable individuals to bring claims of discrimination without alleging any infringement of the right to education. This protocol will be open for signature from November. Once ratified and in force, it might, for example, create a basis for disabled applicants and students to bring actions regardless of any extension of the Disability Discrimination Act 1995.

Article 6 (1) of the convention, dealing with fairness in the administration of civil and criminal justice, rules out visitorial jurisdiction as final arbiter of disputes by individuals against institutions exercising the public function of providing higher education. Denial of access to the courts, lack of obvious impartiality and denial of reasonable due process all combine to see the visitor consigned to the history books on October 2.

And what of the staff? Under financial pressure, institutions need to know what staff do, why they do it, and what the financial return will be. This perhaps puts at risk older notions of unrestricted academic freedom. This is not mentioned in the convention, although there is a right to freedom of expression, qualified by various constraints "necessary in a democratic society".

In employing staff, institutions are not engaged in a public function. Because of that, disputes about the terms of employment contracts would not be subject to "vertical" application of convention rights, which covers the exercise of public functions affecting individuals. But they would be subject to "horizontal" application of these rights: in other words, in the way courts apply them to any case, including employment tribunals.

If a member of staff were told to publish, or not to publish, a piece of work in a journal for research assessment exercise purposes, it could be argued in a contractual dispute that there had been a contravention of the right to freedom of expression.

These are only some of the act's implications for higher education. There are interesting times ahead for institutions, and one can only hope that their leaders have been fully briefed.

Dennis Farrington is deputy secretary of the University of Stirling and an education consultant at Lawfords solicitors. Human rights unit at the Home Office: www.homeoffice.gov.uk/hract/hramenu.htm

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