Jan 13, 2011
The Right to Education: Andrew Croskery’s challenge to his degree classification by Queen’s University, Belfast
In recent months the “right to education” has been bandied round in the context of the debate on funding of higher education in the United Kingdom. In reality the European Convention on Human Rights (ECHR), as incorporated into the UK’s law by the Human Rights Act 1998, provides a somewhat threadbare right of access to educational institutions (Article 2 of the First Protocol) and does not require that states subsidise University funding.
This has severe implications for legal challenges by students to the way their degrees are run. Universities and Science Minister David Willetts has long insisted that when universities are able to raise their fees to up to £9000 a year this will have to be accompanied by a higher standard of service to students. He fired this shot over the bows of universities in his speech to the 2010 Universities UK Conference:
‘[I]t is inconceivable that the huge number of anecdotes on declining standards expressed by university employees on the BBC website, in the THES and elsewhere are entirely without foundation. … [I]t is important the sector itself works to address such concerns, perhaps by re-evaluating the strengths and weaknesses of the external examination system and by proposing better quality-control initiatives for the future. Otherwise, we politicians will interfere in issues that are best left to the sector itself’.
The pressure on universities come from the fact that, whilst the fees their students are paying will increase under the Higher Education (Basic Amount) (England) Regulations currently before Parliament, these arrangements will simultaneously coincide with the government withdrawing direct financial support from the state for most subjects. In other words, students who begin their university education in 2012 will feel entitled to ask why the standard of provision they are enjoying is not considerably better than that enjoyed by the 2011 intake (most of whom are paying roughly £3300 a year in fees). By contrast, the universities may find it difficult to counter that, because these fees largely replace rather than supplement government funding, they have little extra money to improve the students’ educational experience.
At this point, however, universities can be thankful that, although their standards may now be more closely scrutinised by future intakes (at least through the imperfect medium of newspaper league tables), the courts (and more often the OIA, the independent adjudicator scheme to which most universities subscribe) remain reluctant to consider complaints regarding standards of teaching or whether grades reflected the merits of a student.
Nonetheless, cases such as Croskery’s Application, decided last month, suggest that some students are already willing to take universities to court if they are not satisfied with the standard of education they receive. As we reported on this blog last September, Andrew Croskery sought a judicial review of his award of a 2:2 degree in Electrical Engineering from Queen’s University Belfast (pictured above). Croskery, whose average was close to the 2:1 grade boundary, initially argued that with better supervision he would have attained a higher overall grade. However, his “right to education” arguments made very little headway in court. As Treacy J, in the Northern Ireland High Court, stated (at [18]):
‘For the sake of completeness I should say a little about this ground. The applicant relied in his written submissions on Art 2 of the First Protocol but these were not developed in oral submissions before me at the reconvened leave hearing’.
Having emphasised how limited this right was under the ECHR (by comparison to the International Covenant on Economic, Social and Cultural Rights, which Croskery could not rely on as it is not incorporated into the domestic legal systems of the UK) continued (at [21]):
‘It is clear that this article is concerned with denial of rights to education. Plainly the applicant has had access to and has exercised his right to third level education. Art 2 P1 says nothing about rights to degrees or other academic qualifications much less to their academic assessment. In my view it is not engaged in this case’.
The story, however, does not end there, for the limits to the right to education mean that most litigation, including Croskery’s case, focuses instead on the more limited question of whether universities have followed their procedures properly. And in this case Queen’s were forced to admit that ‘there are and have been procedural flaws in the impugned decisions’ (at [4]). Crucially, however, Croskery had not exhausted the internal university appeals process, which in this case made Treacy J extremely reluctant to intervene in light of these procedural issues. Treacy J therefore rejected claims that a degree classification, and the procedures by which it is reached, were anything other than ‘a matter of academic specialised judgment’ (at [16]).
Queen’s celebrated the decision, announcing that it ‘clearly and unequivocally’ provided that academic decisions were not subject to judicial oversight. But the onus remains upon the institution to ensure that procedural flaws are addressed through its internal appeals process. The lesson which universities should take from the case is that although the courts remain reluctant to extend the right to education to encompass questions of degree standards, internal procedural standards will have to be shown to be effective and observed. Other recent cases, including Buckland v Bournemouth University, highlight how ramshackle the marking process remains at some institutions.
Cases such as Croskery’s Application, however, involve the courts through their judicial review jurisdiction (as universities are public bodies providing a public service). With fees for which students, upon graduation and entering employment (earning over £21,000 a year) soon rising to up to £9,000 and a commensurate decline in funding by the state, future cases will likely be required to examine whether students enjoy a contractual relationship with their university in terms of educational provision. In essence, the courts will likely have to decide whether students should now be considered as the consumers of a service, moving the issue into the sphere of private law (and revisiting the case of Clark v University of Lincolnshire and Humberside). At that point, universities would be well advised to carefully define the level of educational provision to be expected from students.
