Updated 9 February 2009
The questions below are based on general queries posted to our enquiry service.
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Questions
- Is there a right to further or higher education?
- Do Human Rights apply to instances within FE and HE institutions when a student's rights are being determined?
- Is a college infringing student rights to privacy by using remote monitoring on PCs where private email correspondence is taking place?
Article 2 of Protocol 1 of the European Convention on Human Rights (ECHR) states that 'No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions'. What does this mean for FE and HE?
The "Right to Education" is concerned primarily with elementary education and not advanced studies and is quite limited on its own in relation to further and higher education. It may, however, have effect in combination with a discrimination claim under Article 14 of the ECHR.
Information on how Human Rights affect the education sector can be found on the website of the European parliament.
" ...
Article 2 of Protocol No. 1 to the ECHR provides for a "Right to education" in a negative formulation: "No person shall be denied the right to education". This provision applies to school instruction only, for which the European Court of Human Rights draws from this Article two obligations on the part of States: ensure access for all to existing scholastic establishments without discrimination, and guarantee official recognition of completed studies.
... "
http://www.europarl.europa.eu/comparl/libe/elsj/charter/art14/default_en.htm
Case law appears to suggest that selective access to further and higher education is permitted. The court held, in a case taken against the UK (X v United Kingdom [1980] 23 DR 228), that -
'' ...
where certain, limited, higher education facilities are provided by a state, in principle it is not incompatible with Article 2 of Protocol 1, to restrict access thereto to those students who have attained the academic level required to most benefit from the courses offered.
..."
There are a variety of instances within FE and HE institutions when a student's civil rights and obligations are being determined, for example the disciplinary process. Is Article 6 of the European Convention on Human Rights applicable to this situation?
Article 6 sets standards for the way decision making hearings should be run. It applies to both civil proceedings (cases involving disputes between individuals or organisations) and criminal proceedings (when someone is prosecuted for an offence).
An individual can challenge a decision taken by an institution whose procedures fail to satisfy Article 6. However, the whole process needs to be considered. If the original decision is taken by an institution whose procedures do not satisfy Article 6, the requirement may still be met if that decision can be reviewed (in the form of an appeal on both facts and law) by a court or tribunal that does satisfy Article 6.
Particular Significance for FE and HE
The impact of the HRA on student disciplinary and grievance complaints procedures remains somewhat uncertain.
There is clearly a distinction to be made between scrutinising the procedure (how a case is handled) and examining the merits of an academic decision that has been taken (something which is considered not to relate to human rights).
For example, it is unresolved whether students' issues are "civil rights and obligations" and whether a public hearing needs to be oral. A failure to achieve a degree was found not to concern a civil right in R (Varma) v HRH The Duke of Kent [2004] EWHC 1705; [2004] ECR 616.
A narrow interpretation of the applicability of Article 6 was adopted in R (Thompson) v Law Society [2004] 2 All E.R. 113. From this judgment it can be concluded that even if students' issues are within Article 6, which they might be held to be if, for example, an adverse decision by an institution could impact on a planned profess ional future, many FE and HE procedures will be nonetheless human rights compliant. This is because of the recognition that the requirements were met if an oral hearing was available, as an exception, if fairness required one, for example, to resolve a core disputed issue of fact.
Source: Annual Report 2004 of the Independent Adjudicator for Higher Education - http://www.oiahe.org.uk/news.asp.
JISC Legal has published on Overview paper which explores this area in some detail. It is available online at - http://www.jisclegal.ac.uk/humanrights/humanrights.htm.
The question relates to the boundary between the right of privacy to personal communications (article 8 of the European Convention on Human Rights) and the right and power of colleges to monitor the use of their network and their facilities to prevent abuse. By 'remote monitoring on PCs', it is assumed that what is meant is the ability of a human 'supervisor' to remotely see what programs and processes are running on a user's PC, to see the screen output of the PC, and/or to access a log of user inputs. Such monitoring is covered by the Regulation of Investigatory Powers Act 2000 (RIPA), as remote monitoring is simply a form of intercepting communications.
The RIPA and the corresponding statutory instruments do not give carte blanche to educational establishments themselves to intercept communications on their private systems. Any interception must be carried out within the limits set out by the legislation and those likely to be subjected to interception should, as far as is reasonably possible, be made aware that it may take place.
Institutions may monitor and record communications:
- to establish the existence of facts to ascertain compliance with regulatory or self-regulatory practices or procedures or to ascertain or demonstrate standards which are or ought to be achieved
- in the interests of national security
- to prevent or detect crime
- to investigate or detect unauthorised use of telecommunications systems
- to secure, or as an inherent part of, effective system operation
Institutions may monitor but not record:
- received communications to determine whether they are business or personal communications
- communications made to anonymous telephone help lines
Notice of interceptions
These interceptions will be legitimate only if the controller of the telecommunications system on which they occur has made all reasonable efforts to inform potential users that interceptions may be made. This may take the form of clauses in employment contracts and/or regular reminders in the form of notices in offices and stickers on computers and phones. As yet, however, the courts have not had the chance to decide what exactly constitutes 'reasonable' in this context.
Further clarification with regard to monitoring in the FE HE sector can be obtained in the JISC Legal Interception & Monitoring Law webcast available on the website at - http://www.jisclegal.ac.uk/Webcast/interception.html.
Updated 9 February 2009
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Further FAQs
General information on the Human Rights Act 1998 and in particular a Frequently Asked Questions page is available on the website of the Department for Constitutional Affairs at - http://www.dca.gov.uk/peoples-rights/human-rights/faqs.htm.
Liberty is a UK human rights and civil liberties organisation and has a set of FAQs on their "Your Rights" website at http://www.yourrights.org.uk/faqs/index.shtml.
If you have an FE or HE human rights related question that you would like JISC Legal to assist you with then please email info@jisclegal.ac.uk.