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.