The High Court violated the human rights of former PhD student Kevin Wilkinson when it threw out his claim for more than £100,000 in damages against Aston University, the leading human rights lawyer Cherie Booth QC argued in court this week.
The High Court said in March this year that it would not hear Dr Wilkinson's claim for compensation, because he should have taken it to the university's quasi-judicial visitor, who, according to precedent, has exclusive jurisdiction over student complaints. But, in an appeal that could potentially consign the visitor system to the history books, Ms Booth said that the system was a contravention of the European Convention of Human Rights.
The THES first reported in February 1999 that Dr Wilkinson had left a well-paid teaching job in Dubai and relocated his wife and two children to begin a PhD at Aston in 1997. But when he arrived in Birmingham he found that, despite assurances given before he made the move to the UK, there was no one properly qualified to supervise him as his agreed tutor had left the university.
After a long dispute, Aston's vice-chancellor Michael Wright agreed that Dr Wilkinson - who has since gained his PhD at another university - should get a full refund of his fees, as his experience had been "far from satisfactory". But Dr Wilkinson believed he was entitled to large damages for wasted time and lost potential earnings.
In March, his bid for damages was struck out in its entirety by Master Foster on the grounds that the claim fell within the exclusive jurisdiction of the visitor - in Aston's case this is the Queen, who would have delegated the case to the Privy Council.
In the Queen's Bench Division of the High Court this week, Ms Booth argued that the master had been wrong. She argued that Article 6 of the Human Rights Act 1998 ensured the "right of access to court". It states: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Ms Booth said that the visitor system was not a tribunal that complied with Article 6, and therefore the existence of a right of appeal to the visitor "does not itself satisfy the right of access to court". She went on: "A hearing before a visitor is not compliant with Article 6, in that there is no right to an oral hearing and it is not in publicI nor is it before an independent tribunalI nor are there any rules regarding the appointment of visitors or the procedure which they must follow."
The master's ruling that he had no jurisdiction to hear Dr Wilkinson's application for damages "was in breach of the claimant's right of access to court and a violation of Article 6 of the convention."
Ms Booth also argued that the decision to throw out Dr Wilkinson's case was a breach of Article 14 of the convention, which prohibits discrimination on the grounds of a person's "status".
Non-members of the university could take it to court, but if the master's judgment were upheld, she said, then any person who became a member of the university would be prevented from turning to the courts. "Thus there is a difference in treatment over access to the courts between members of the university and all others seeking to enforce contractual remedies," Ms Booth said.
The case is being watched closely by legal experts, who have long suspected that the visitor system is in breach of human rights legislation, but there has not been a test case to fully challenge the exclusive jurisdiction.
The case is also indirectly backed by the government, which has already signalled its belief that the visitor system lacks proper independence and transparency. It has plans to legislate to abolish the office and replace it with a new student complaints ombudsman.
Even the Privy Council itself, which adjudicates on disputes on behalf of the Queen at 17 universities, has admitted that it can administer only "amateur justice" since it lacks the time and dedicated resources to properly examine cases.