Mind you don't get caught in the act

September 29, 2000

Will the Human Rights Act spell the end of the visitor system and herald a host of lawsuits from aggrieved students? Alison Utley finds out

University registrars are divided over what the Human Rights Act means for their institutions. While some are going through university procedures with a fine-tooth comb, fearing multimillion-pound lawsuits from students, others believe the act to be an irrelevance.

The academic registrar at Manchester Metropolitan University, Janusz Karczewski-Slowikowski, said that the wholesale review of university procedures was a nonsense peddled by opportunistic lawyers.

"They are just seizing the opportunity to suggest that there is a problem, but there is absolutely no evidence," he said.

"The facts just don't bear this out. Most universities have a good system for dealing with student complaints, and the act will be of limited relevance."

But Stephen Smith, corporation secretary at Nottingham Trent University, said the act, combined with a greater understanding among students and staff about their legal rights, meant higher education would provide a "fertile area for disputes".

"The burden of these changes for higher education is vast, and I will be surprised if we do not see a lot of infringement cases in higher education. It is just too good an opportunity to miss."

Max Weaver, deputy provost of London Guildhall University, agreed. "Universities could be vulnerable to attack under Article 6 (see box) if they allow themselves to become complacent," he said. "All universities like to think that their procedures are fair, but against the standards of Article 6 this may not necessarily be the case."

Under present procedures, aggrieved staff or students may have the right to have their complaint heard by somebody very senior in the institution but not by an independent arbitrator.

Mr Weaver said: "Universities have been allowed to be judges in their own cause, but Article 6 requires that where 'civil rights and obligations' are at stake - and students and staff clearly have a contractual relationship with their universities - 'everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'."

The consequences of doing nothing are risky, according to Mr Weaver. A problem could arise, however, in adjusting a mindset that has developed over generations.

"The sector takes comfort in collegiality and a gentlemanly approach to disputes, but very often university administrators are not aware of howdifferent students' perspectives are today - particularly well-advised students who see themselves not as novices seeking admission to the academic order but as customers with rights, who are prepared to insist on them."

For this and other reasons, London Guildhall University has embarked on a thorough and lengthy review of its regulations and articles of governance. "Eventually some universities will get tripped up by the act, so we might as well start guarding against that now," Mr Weaver said.

Nick Andrew, Bradford University's registrar, said there were conflicting legal opinions about the implications for universities, but he detected a "degree of disquiet" in the sector about what the act would mean.

"First, the Human Rights Act throws out all the case law on which we have until now based our actions," he said. "That immediately creates a huge amount of uncertainty and until we have new case law, we don't know what we need to do."

One of the first principles of the act is that no one should be denied the right to education. It is unclear, Mr Andrews said, what, if anything, that means for universities.

Second, Mr Andrews said, universities had never been very comfortable about the idea of saying "no" to a student.

"Instead of being firm about decisions and being able to say that is the end of the matter, universities like to be too nice to students, and there is a danger that this will exacerbate the problem," he said.

"If we are not careful, we will open up to dispute the area of academic judgement."

This was also the concern of Tim Birtwistle, an academic lawyer from Leeds Metropolitan University, who said that the act would be the final nail in the coffin for the university visitor system of dealing with student complaints.

"It is becoming apparent that, as in the United States, the role of the law will be increasingly visible in the future affairs of universities," he said. "This will certainly be at the procedural level and may well also encroach at the academic level."

If the visitor system is no longer compatible with the law, nor acceptable to students, the appeal process will have to change, he added.

"Universities and their stakeholders should lobby for this change and then be proactive in putting together, with lawyers, a fair, workable, speedy system that will be durable and will, because of its transparent nature, meet all the needs of participants in higher education."

Feature, page 18

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