students' rights

This article was downloaded by: [New York University]On: 04 November 2014, At: 22:20Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

Education and the LawPublication details, including instructions for authors and subscriptioninformation:http://www.tandfonline.com/loi/cetl20

Students' rightsJ W Parlour a & L R V Burwoord aa King Alfred's College of Higher Education , WinchesterPublished online: 28 Jul 2006.

To cite this article: J W Parlour & L R V Burwoord (1995) Students' rights, Education and the Law, 7:2,63-78, DOI: 10.1080/0953996950070201

To link to this article: http://dx.doi.org/10.1080/0953996950070201

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all the information (the“Content”) contained in the publications on our platform. However, Taylor & Francis, ouragents, and our licensors make no representations or warranties whatsoever as to theaccuracy, completeness, or suitability for any purpose of the Content. Any opinions andviews expressed in this publication are the opinions and views of the authors, and are notthe views of or endorsed by Taylor & Francis. The accuracy of the Content should not berelied upon and should be independently verified with primary sources of information. Taylorand Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs,expenses, damages, and other liabilities whatsoever or howsoever caused arising directly orindirectly in connection with, in relation to or arising out of the use of the Content.

This article may be used for research, teaching, and private study purposes. Any substantialor systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply,or distribution in any form to anyone is expressly forbidden. Terms & Conditions of accessand use can be found at http://www.tandfonline.com/page/terms-and-conditions

http://www.tandfonline.com/loi/cetl20

http://www.tandfonline.com/action/showCitFormats?doi=10.1080/0953996950070201

http://dx.doi.org/10.1080/0953996950070201

http://www.tandfonline.com/page/terms-and-conditions

E D U C A T I O N A N D T H E L A W

Students' rights

J W Parlour and L R V Burwood,King Alfred's College of HigherEducation, Winchester

Political tactics often de-mand that many claims beasserted as rights and such

tactics can serve a useful pur-pose in the struggle for specialattention and consideration thatgroups or individuals believe aredue to them from the state. This isparticularly true at a time whenincreasing demand for limitedeconomic resources threatens to intensify thisstruggle as is currently the case in higher edu-cation. Higher education charters publishedrecently by the Department for Education1 andthe National Union of Students2 purport to setout a comprehensive range of rights studentshave, or should have, which empower them'to seek the kind of education they require'.3

The NUS Charter lists specific rights which'should lead collectively to an accessible,open and quality education system'.4 In sum-mary, these rights are given as: access,finance for study, flexibility, accommodation,learner agreements, effective learning sup-port, adequate support facilities, good teach-ing, representation, complaint and appeal,and reward. It is our view that the DFE Charteris little more than an information booklet andthe NUS Charter, despite assurances to thecontrary, is a 'hotchpotch of ideas'.5 Neitherof these charters make it clear whether anysignificant distinction can or ought to bemade between the rights of students in statupupulari and as ordinary citizens, and theyconfuse legal rights, including proceduralrights, with needs and interests. As we willargue later in this article, the great majority ofso-called 'rights' listed in the NUS Charter canbe construed as mere claims to special treat-ment which although they may attract our sym-pathy and consideration cannot plausibly be

treated as rights in the same sense as, say, theright to be treated equally regardless of gen-der or ethnic origin which we can easily con-strue as a justifiable legal right which can andought to be upheld.

This article begins by addressing two ques-tions: firstly, what is the point oftalking about students' rights asopposed to talking about the in-terests, needs or utilities of stu-dents and, secondly, what is themoral, political and legal forceof talking about students' rights?We then try to throw some lighton the legal complexities whichattend the operation of institu-tions of higher education: focus-

ing, in particular, on the differences withinand among institutions with respect to theapplication of private (internal or domestic)law and common and public law with refer-ence to recent court cases. Finally, we look attwo areas, namely, disciplinary matters andacademic issues, in particular, examinations,grievances and appeals, where we arguethat much more could be done to ensure thatthe legal rights of students are protected.

The nature of rights

An initial distinction can be made between,on the one hand, natural or human rights and,on the other, actually existing legal rights.Legal rights are those rights which a personhas and can exercise under the legal rules ofa particular society. Whether such rights existis an empirical question - usually answeredby resort to legal documentation. Human ornatural rights refer to what rights a personought to have, or to what rights the state oughtto protect and enforce. In effect, theories ofnatural or human rights are usually attemptingto answer the question: 'what legal rightsought a person to have under the law?' Thisquestion cannot be answered directly byempirical evidence, although it might be rele-vant. There is a clear difference betweenasking: 'what are the rights of a person in a

Education and the Law 1995 7 (2) 63-78 © Longman Group Limited 1995 0953-9964/95/07201063/$03.50

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014

E D U C A T I O N A N D T H E LAW

moral sense?', and 'what are the rights of aBritish citizen?', a question answered byexamining a specific legal code. So, too,there is a clear difference between asking:'what are the rights of a student in a moralsense?', and 'what are the legal rights of aBritish student (qua student)?'

In asking why talk should be about students'rights as opposed to students' interests, needsor utilities, we are asking what is added to apolitical claim by making it in terms of rights?it would seem that claims to rights are categor-ical in that they suggest what people are enti-tled to do (or not to do) and how they shouldbe treated irrespective of overall social wel-fare or utility which might arise were suchrights to be transgressed.

Traditional liberal accounts of rights haverested on the idea of a pre-social state ofnature, and/or the belief in a social contract.'Natural rights' are rights which some philoso-phers have assumed people had in a state ofnature and which should regulate human inter-action. Locke argued that the prime responsi-bility of government ought to be the protectionof a person's natural rights to 'life, liberty andestate (property)'; a view restated in the Amer-ican Declaration of Independence. Paine'sclassic text The Rights of Man draws onLocke's view and on the claim of the Frenchrevolutionaries. He argues essentially thatgovernment could only have arisen originallythrough a contract between people so that, intheory, constitutions have priority over govern-ments. Every legal right is a natural rightexchanged, and equal rights attach to everyindividual by virtue of their existence. Ben-tham, however, attacked the notion of naturalrights from the utilitarian perspective as 'non-sense on stilts'. That is, natural rights weremetaphysical entities which threatened to sup-plant the authority of the law. He believed thatnothing which was not established in lawshould have a higher status than the law itself.Only legal rights existed and these were thecreation of legal systems. Such rights couldnot be natural. Bentham's type of utilitarianismcannot accept the existence of natural rightsas absolutes lest they should claim priorityover the supreme principle of utility.

In the twentieth century the conceptions of

rights based upon natural law and social con-tract has given way to the notion of 'humanrights'. These are said to attach to individualsby virtue of their humanity. Usually, suchassertions are justified by Kantian forms ofmorality which-against utilitarianism-arguefor equal respect for all human beings as anabsolute. In practice, it is clear that humanrights have evolved according to historicalevents and exigencies. For example, the rightto practise religion, to education, to use one'sown language, to claim welfare benefits, toabortion, and so on.

In 1948 the UN 'Universal Declaration ofHuman Rights' reasserted the now familiarrights to life, liberty, property, equality beforethe law, privacy, fair trial, religious freedom,free speech and assembly, to participate ingovernment, to political asylum, and not to betortured. Soviet bloc countries insisted on theaddition of various economic and socialrights including the right to education, toemployment, to equal pay, to an adequatestandard of living, and to paid holidays.Western countries regarded these latter econ-omic and social rights as different in logicalstatus from other rights, seeing them as idealsrather than as basic moral claims.

We can see that the catalogue of humanrights as evidenced by the UN Declarationcan be lengthy; our argument here is that itshould not be. The list should not be deter-mined by a particular, partisan or culturalperspective, but rather should specify the mini-mum conditions for human dignity and a toler-able life anywhere and at any time. But as thenumber and length of Declarations and Char-ters grows, this notion is in danger of beingdevalued; the NUS Student Charter exempli-fies this danger.

The issue of the status of human rights isclosely linked to that of enforceability. Themodern scepticism of logical positivists (andothers) about the status of human rights, arosefrom their unverifiable nature and the conse-quent assumption that human rights can atbest be mere statements of preference shapedby cultural or ideological interests. Unlessrights become established in law they cannotbe regarded as legal 'possessions' and theymust be regarded, essentially as moral claims

64

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014

E D U C A T I

O N

A N D T H E L A W

to certain kinds of treatment which areenforceable only through moral conscience.Clearly, if human rights are moral claims, theyare normative and prescriptive, but unverifi-able. Plamenatz (1968) regarded rights asinterests which ought to be protected becausethe exercise of the right is good in itself, orbecause it is a means to what is good. Webelieve this is a useful way of dealing withand assessing rights claims. The language ofrights might be politically useful, but it isclaims about the particular interests whichought to be protected which have to be evalu-ated. On this view, somebody has a right tosomething when no-one ought to prevent thatperson from attaining or doing something, orrefusing them some service they need. Thislinks rights to the notion of human good interms of needs and interests. It also brings outthe crucial truth that every individual moralright nearly always creates an obligation onothers to respect or fulfil that right. A commondoctrine in elaboration of this view is the doc-trine of moral correlativity (Feinberg, 1973, p62)6. This makes a person's rights con-ditional upon his or her exercise of a corre-sponding duty to others. The theory is that theacceptance of duties is the price any personmust pay in order to have rights (Feinberg,1973, p 62). This is not a logically necessarytruth and is open to exceptions, as in the caseof non-human animals, infants and the men-tally disabled. It is interesting to note that Pla-menatz's views on rights as interests areclosely linked, on our reading, with the doc-trine of legitimate or reasonable expectationsin administrative law and, in particular, as faras students' rights are concerned, to the issueof procedural rights. Craig (1992) discussestwo circumstances where legitimate expecta-tions can be of relevance to the application ofsuch rights. Firstly, the current law may eitherprotect a person's interests which would notbe classified as rights in the strictest sense ormay protect interests which the person doesnot currently possess but which he/she has alegitimate expectation of possessing in thefuture. Secondly, even when the interest atstake does not warrant procedural protectionby a public body there still exists a legitimateexpectation that the procedural rights of those

affected by its decisions will be guaranteed.This is particularly relevant where public bod-ies act contrary to required or establishedpractice; 'inconsistency of policy may alsoamount to an abuse of discretion particularlywhen undertakings or statements of intent aredisregarded unfairly or contrary to a citizen'slegitimate expectations' (Wade and Forsyth,1994, p 418). The doctrine has also beenreflected in the increasing application in judi-cial review cases of the principles of naturaljustice which 'can be invoked in any of manysituations where fairness and good adminis-tration justify the right to be heard' (Wadeand Forsyth, 1994, p 525).

In contrast to the doctrine of the moral cor-relativity of rights, the doctrine of logical cor-relativity asserts not that a person's rights areto be contingent upon the performance of hisor her own duties, but that his or her rights arenecessarily linked with the duties of other peo-ple. Legal rights are defined in terms of otherpeople's duties. So a legal right is a rightwhich can be claimed against someone orsomebody, it has the status of a claim-right. Inthis respect we can then ask of the kind of'manifest rights' listed in the NUS Students'Charter: against whom is the fulfilment of theright claimed? - society in general, the gov-ernment, the institution or perhaps even anindividual member of a student's institution?Plant attempts to answer this question by say-ing that the duty of individuals is not that ofproviding resources to other needy individ-uals 'but rather the support of institutions . . .that attempt to meet social needs' (1991, p285). A strict duty on individuals could thenbe enforced by government through taxationto support the meeting of social need: many ofthe 'rights' such as the right to finance for studyand the right to access listed in the NUS Char-ter would seem to fall under this heading.

In assessing which particular rights studentsshould have qua students, we have to haveregard to the principle that people cannotmorally be required to do something that theyare unable to do; ought implies can. Rightsshould not impose duties which are beyondindividuals or the state for practical purposes.This is why many economic and social rightsclaims are illegitimate. They are unreason-

65

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014

E D U C A T I 0 A N D T H E L A W

able since the preconditions for satisfyingthem do not exist or cannot easily be guaran-teed, for example, the 'right' to a kidney trans-plant. Thus when the NUS Charter states thatstudents have a right, for example, to goodteaching, this must be seen as a political/social claim or ideal and not as a moral imper-ative like the right to life, liberty or property.Clearly, which of the many claims (if any)made in this Charter are, or ought to become,legal rights is the crucial question which mustbe addressed and, especially, whether stu-dents should have any specific legal rightswhich arise from their social role as studentsrather than from their status as citizens.Clearly, a hierarchy of possible legal rightscan be identified showing that certain needsand interests are more basic and less ideolog-ical than others. Further, some of these possi-ble legal rights could reasonably be met andothers not reasonably met at all.

The changing structures of powerand authority in higher educationOver the past 450 years the changing struc-tures of power and authority within institutionsof higher education and between these institu-tions and the wider society have radicallytransformed the status of students. The periodfrom 1500 to about 1 850 was typified by aclear demarcation between 'town andgown', universities were self-contained fief-doms in which the application of extremelypaternalistic, authoritarian domestic lawensured that students in effect had no rightsother than those bestowed upon them by theirmasters and in which outside influence wasnot tolerated (Ross, 1976, pp 70-6). The firsttransformation period from the mid-eighteenthto the mid-nineteenth century saw the emer-gence of students' unions following the leadof the University of Edinburgh in 1884, thepublication of the first Charter of Students'Rights and Responsibilities in 1940 and thegradual, albeit grudging, increase in the par-ticipation of students in university government:Eric Ashby, for example, commenting on thischarter opined that 'any pattern of participa-tion that weakens the authority of the univer-sity must be resisted' (1970, p 70). But even

though students were afforded more oppor-tunities to express their views there was noquestion as to where real authority resided.

The unprecedented expansion of highereducation provision in the 1960s whichmarked the second transformation period sawan effective challenge to the power vested inthe university authorities to regulate the privatelives of their students and to their claim to standin loco parentis (Moodie and Eustace, 1974,pp 1 96-8). Even though the Charters of manyof the new universities for the first time estab-lished the rights of academic staff to partici-pate in the general governance of institutions itwas not until the 1968 concordant betweenthe Committee of Vice Chancellors and theNUS that there was any general acquiescenceto the demand, first articulated 28 years ear-lier, to extend similar rights to students (Halseyand Trow, 1971, p 1 1 2 cited in Ross, 1976,p 1 66). In his 1 976 paper Edwards charac-terized the post-1 945 struggle for power in theuniversities in the following terms:

'Firstly, the junior academics united acrossthe frontiers of their disciplines and success-fully invaded the faculty boards, senatesand councils. Then the impossible hap-pened: the universities had to bow to theparticipation of students in their most sacredplaces'. (1976, p 74)7

This struggle was particularly confrontional inthe late 1960s and early 1970s with manycampuses becoming battle-grounds withlarge numbers of students being convicted ofserious criminal offences arising out of dem-onstrations, sit-ins and other manifestations ofangst and unrest. Samuels had this to say in1973 about the emergence of what hereferred to as the 40,000-strong 'fourthestate':

'He has gained the interest of the massmedia. He has realized the potency ofmass force. He is not always willing toengage in rational dialogue. . . . In a beerysocialist clique he shouts obscenities andjostles the Queen. As a communist agitatorne disrupts law lectures against the wishesof other listeners. . . . He sees the university

66

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014


or college as a political cell. . . . In politicaland social terms he has arrived. He hasgenerated a number of legal problems. Hehas not infrequently appeared before thecourt'. (1973, p 252)8

Although most of the excesses of this time areto be deplored, they did expose a disturbingcatalogue of injustices to which students wereregularly subjected in the application of theirinstitutions' domestic law, most especially inthe area of discipline. As Samuels remarkedin his review of the landmark cases of thisperiod: 'When it comes to natural justice stu-dents appear to have had a very raw deal'(1973, p 255). The cases reviewed bySamuels had demonstrated that the universi-ties and colleges followed a 'bewildering andconfusing variety of procedures' which invari-ably failed to afford students a fair and justhearing and thereby breached the rules of nat-ural justice. From these cases came the recom-mendation of the NCCL-NUS Commission formajor changes in the rules and proceduresgoverning student discipline which wouldconstitute the basis for a 'model code' whichSamuels felt ought to be 'universally adoptedthroughout universities and colleges'(Samuels, 1973, p 259). According to Moo-die and Eustace (1974, pp 197-8) theformalization and institutionalization of disci-plinary procedures was possibly the mostimportant outcome of the 1960s challenge tothe 'right' of universities to regulate the privatelives of students. An assessment of the extentto which UK institutions of higher educationhave attained Samuels' ideal of a commonmodel code will be made later in this article,drawing upon the preliminary results of arecent survey carried out by Parlour into thedisciplinary regulations of a representativesample of thirty UK universities and collegesof higher education.

The third transition period of the 1980ssaw the demise of the old binary dividebetween the polytechnics and the universitiesas a result of the 1988 Education Reform Act.A doubling of the number of students in highereducation set against a real decline in govern-ment funding has forced institutions to signifi-cantly increase average class sizes, and

reforms instigated by central governmenthave resulted in a marked shift of powerwithin institutions from academics to admin-istrators and beyond the institutions to statu-tory bodies such as the Higher EducationFunding Council (HEFC) and the Higher Edu-cation Quality Council (HEQC). According toWhincup, the life of students today is 'morereal and earnest than it appeared to be in the1960s and 1970s. Rooms, rents and jobsare the priorities rather than more abstract orcosmic grievances' (1993, p 19). Althoughwe would not dispute the fact that the pri-orities of students today are more affected byunemployment and financial constraints thantheir predecessors we cannot agree that theirgrievances are any less real or less importantbecause of these changes or that thesechanges can explain the decline in the inci-dence of litigation between students and theirinstitutions to which Whincup refers. We aremuch more convinced that the explanation forthe long period of relative campus peacewhich followed the violent and widespreadconfrontations of the late-1960s and early1 970s can be traced to the significant devo-lution of institutional power first to academicsand then to students via the development ofincreasingly participatory structures and to theevolution of a wide range of student servicesin response to legitimate student demands.We have serious reservations, however,about the durability of these improvements inthe face of current pressures facing highereducation. There are already indications thatsince 1990 radical changes to the style andpurpose of management in response to theThatcherite agenda for the public sector insti-tutions has led to a breakdown in the spirit ofconsensus and co-operative endeavour whichgrew out of the conflict and confrontation ofearlier years. In the face of serious economicconstraints institutions are now splitting intocompeting departments with different lifechances, depending on their ability to attractexternal funds and cut costs. As Edwardsstated rather prophetically some 20 yearsago, in such institutions important policy deci-sions 'will either be taken arbitrarily in theinterests of the stability of the central bureau-cracy itself or reflecting the immediate bal-

67

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014


ance of power which the centre is forced tomediate' (1976, p 78). Either way the loss ofcommon purpose (or in Edwards's terms the'organic relationship') of institutions could seea return to the conflict and confrontationbetween institutions and their members,including students. Clearly, under such cir-cumstances it is essential that university andcollege students and administrators knowwhat their legal and procedural rights andduties are if the injustices of earlier years areto be avoided.

The legal enforcement of students'rights in public and private lawStudents qua students in their capacity asmembers of an institution of higher educationare not above the law. As Sachs, said in R v.Caird:

'[NJeither on the law applicable to ascer-taining guilt, nor in the matter of sentencing,is an adult student in any better positionthan any other citizen. He most certainlycannot, by virtue of his education claimpreferential treatment'.9

We can also say that, although the rightsowed to students are the same as those owedto ordinary citizens in matters of private andpublic law, the extent to which these rightscan be legally enforced are not the same.

All institutions of higher education operatewithin a framework of general law, but whatinstitutions may or may not do within thisframework is, as Robbins has stated, 'a com-plicated matter' which not all lawyers arecapable of dealing with and within which'there are grey areas... where almost any-thing can happen' (1980, p 86). Our read-ing of the literature and relevant case law isthat this is an understatement. We can beginto try and unravel this complexity by recogniz-ing that the purposes and powers of institu-tions of higher education differ according towhether they were established by charter orstatute, that is whether the existence and legaauthority of the institution is defined in a Char-ter or in a form of Instruments and Articles ofGovernment (Moodie and Eustace 1974,

p 1). These documents also define the body ofrules whereby legal authority is delegated viawhat Moodie and Eustace refer to as an insti-tution's 'operational charter' which determi-nes the conduct of its domestic law governingits internal decision-making processes (1974,p 2). Although all UK institutions of higher edu-cation were founded publicly for the publicbenefit it would be a mistake to assume thatthe way in which they exercised their dutiesand powers would be subject to the rulesof public law with disputes over the legality ofaction or decisions being settled by way ofjudicial review. In fact, there are significantdifferences in the legal remedies available tomembers of these institutions in public and inprivate law depending on whether they werecreated by charter or statute. We will beginby considering the chartered universities first.

The great majority of the pre-1 988 Educa-tion Reform Act universities were establishedby royal charter, and it is these universitieswhich pose the most difficulties in ascertain-ing the boundaries between the applicationof public and private law in the legal enforce-ment of members', including students',rights.10 All of these institutions are lay elee-mosynary (charitable) corporations estab-lished for the explicit purposes of 'the promo-tion of learning and the support of personsengaged in literary pursuits' (Bridge, 1 970, p533. See also Whincup, 1993, p 19). Onthe one hand, being lay corporations withoutstatutory powers, the rights of their membersare protected by the same private law reme-dies as attend to members of any civil cor-poration, a category which includes theancient 'civil' universities of Oxford and Cam-bridge." On the other hand, all such univer-sities are subject to visitorial jurisdictionwhether or not their charters make specificprovision for the appointment of such a per-son,12 and the courts have consistently upheldthe exclusivity of this jurisdiction in all mattersconcerning the interpretation and applicationof their internal rules and procedures.13

Although the visitor exercises his/her powersin respect of a lay corporation, the courtshave, paradoxically, held that visitorial juris-diction is subject to judicial review and thatthe prerogative orders of certiorari, prohibi-

68

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014

ARTICLESE D U C A T I O N A N D T H E L A W

tion and mandamus, remedies normallyreserved for enforcing the duties of publicauthorities, will lie against the visitor torespectively quash a decision which is ultravires, to prevent a decision which would beultra vires, and to compel him/her to act in amanner which lies within his/her jurisdic-tion.14 So although the enforcement of mem-bers' rights in all universities and collegesincorporated by charter lies in the ordinaryremedies of tort and breach of contract suchas injunction, declaration and damages,these remedies are not available if disputesfall within the exclusive jurisdiction of the visi-tor. The anomalous position of the visitor inlaw has been lucidly stated by Davies:

'On the one hand, the visitor exercises ajudicial or quasi-judicial function settlingdisputes in the working of a body with apublic role. On the other hand, the powersconferred on the visitor and the universityare derived from a founder; and this is aprivate law matter in essence because thefounder is in an analogous position to thatof a settlor who creates a private or chari-table trust. There is also the analogy withthe law of contract in that what is createddepends on a set of private rules. Yet theuniversity or similar institution is normally,though not necessarily, a corporation andderives its status from royal charter or a pri-vate Act or both.' (1993, p5]

Despite these anomalies Bridge has argued infavour of the retention of the exclusive jurisdic-tion of the visitor in all 'matters relating to theinternal management of the universities, sub-ject to a limited amount of judicial control' onthe prudential grounds of economy, expe-diency and informality contending that:

'the visitor can still be accepted in his tradi-tional role as both the safeguard against theindiscriminate use of authority and as aguardian of the liberal and humane valuesprofessed and practised by the universi-ties'. (1970, pp 550-1)

This view is not shared by Samuels who viewsthe visitor's role as;

'redolent of monarchical paternalism for anisolated unwordly community of scholarsand is now inappropriate for a large placeof work in which, regrettably or otherwise,people tend to think in terms of trade unionrights... In contemporary society persons inauthority, exercising considerable powerover others, must be legally accountable fortheir decisions' (1973, p 260)

The cases which are most helpful in makingsense of the nature and status of students'rights in cases involving the exercise of visitor-ial jurisdiction are comprehensively coveredin recent papers by Whincup (1 993) and byCarroll (1994) on the exercise of universitydisciplinary powers and by Davies (1993)and Wade (1 993) reviewing the recent caseof Page v. Hull University Visitor which con-cerned the justiciability of the visitor'sdecision to uphold Mr Page's dismissal fromthe university.15

As both Carroll and Whincup show, caselaw, although continuing to provide supportfor Bridge's somewhat paternalistic view, hasbecome less definitive in the face of a grow-ing weight of critical scrutiny from practisingjudges and academics. As the recent case ofPage has clearly demonstrated, the continuedreluctance of the majority of judges to bringabuses of visitorial powers within the full remitof public law remedies has created a situationwhere 'the majority (of judges) refused to inter-pret "illegality" as extending to errors ofdomestic law (committed by a visitor) no mat-ter how analogous to, or even identical with,issues of general law' (Davies, 1 993, p 35).Lord Browne-Wilkinson's lucid exposition inPage of this majority view showed thatalthough the courts have allowed that the visi-tor is subject to certiorari and prohibition foracting ultra vires or for an abuse of power orfor violating the rules of natural justice, theyhave consistently refused to allow that certior-ari could lie against a visitor for an error oflaw (Wade and Forsyth, 1994, pp 642-3).In his dissenting view in Page Lord Slynn ofHadley stated that:

'with deference to the contrary view of themajority of our Lordships, in my opinion if

69

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014


certiorari can go to a particular tribunal it isavailable on all the grounds which havebeen judicially recognised. I can see noreasons in principle for limiting the avail-ability of certiorari to a patent excess ofpower (as when a visitor has decided some-thing which is not within his remit) andexcluding review on other grounds recog-nised in law... I am not persuaded that thejurisdiction of the visitor involves suchexceptional considerations that this princi-ple should be departed from and that somegrounds be accepted and others held not tobe available for the purpose of judicial

review .16

As Wade has noted, the judgement in Pagehas effectively resurrected the old distinctionbetween jurisdictional and non-jurisdictionallaw which existed prior to Lord Diplock's 'can-onical' ruling in Anisrninic which establishedthat all errors of law are ultra vires and has re-affirmed the court's traditional reticence tointerfere to rectify errors of law committed byvisitors on the grounds that these are intra viresand therefore not justiciable (1993, pp155-9). Like Wade we find this outcomeextremely unsatisfactory. Although we canaccept that economy, expediency and infor-mality are eminently sensible reasons foravoiding litigation, we cannot agree that anyof these reasons provide sufficient grounds forthe continued support of the courts for whatCarroll refers to as 'a constitutional irregular-ity' (1994, p 731) which not only denies stu-dents in the chartered universities the samerights in public law as are available to othercitizens, but, even more crucially, providesthem with less legal protection than is affor-ded students in the statutory sector of educa-tion. As Lord Slynn of Hanley said in Page:

'If the individual's rights are affected heshould be entitled to the same protection bythe courts as he would be in respect of thedecision of a wide range of other tribunalsand bodies to whom decisions involving aquestion of law are assigned'.17

The recently reported response of the Councilfor Legal Education (CLE) to a student's efforts

to exercise her right to petition the CLE's visitorfor an alleged breach of natural justice couldhave far reaching consequences for the pro-tection of student rights in all those chartereduniversities subject to visitorial jurisdiction(THES, 1995, p 7). According to this report,the student concerned has been warned bythe CLE that if she pursues her case andshe loses she could face costs of£50,000-£100,000. The council for Aca-demic Freedom and Academic Standards(CAFAS) has argued that the imposition ofsuch a condition would not only deter mostpetitioners no matter how strong their case butwould also undermine the 'spirit' of the visitor-ial process. We would put our criticisms moreforcefully. Assuming that the visitor does haveexclusive jurisdiction, the courts have giventhe student concerned no option but to relyupon that person's judgement in determiningher case with only limited grounds for furtherappeal. For the CLE to then place an 'infor-mal, expedient and cheap' visitorial hearingon a par with a High Court trial nullifies all ofthe aforementioned prudential reasons for thecourt's traditional support for the visitorialprocess.

Having reached these conclusions on thebasis of our best reading of the literature andcase law we have to say that we remain puz-zled by the 1969 case of R v. Aston UniversitySenate ex parte Roffey.18 This case attractedconflicting commentaries at the time fromBridge (1970) and Wade (1969). Briefly,this case concerned two students who hadbeen sent down by a board of examiners forexamination failure without the students firstbeing afforded the opportunity to state theircase. The students applied for certiorari andmandamus. The court found that the studentshad been denied natural justice but it refusedrelief on the grounds that the students, bydelaying their application for seven months,had 'slept on their rights'. The questionsWade put were, first, what was the legalbasis for natural justice in this case, and, sec-ond, why did the court accept that the prerog-ative remedies of certiorari and mandamuswere appropriate? The answer to the secondquestion is logically contained in the answerto the first and Wade's answer to the first

70

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014


question is in two parts. First, he states that'the twin pillars upon which natural justicerests are statute and contract' and then goeson to point out that, since Aston University'scharter, like all university charters, conferredthe powers 'of a natural person only', it hadno statutory force and the University's regula-tions could take effect in contract only. Giventhat the legal basis for natural justice in thiscase was in contract, why did the court allowthe students to seek prerogative remedieswhich have always had 'a special public andgovernmental character'? It is, says Wade.

'Surely incongruous to suggest that certior-ari might issue to quash a decision of uni-versity examiners, as if they were some sortof statutory tribunal or governmentalagency. The legal relationship of a Univer-sity with its members is much more suitablygoverned by the ordinary law of contractand by ordinary contractual remedies.'(1969, p 471)

We cannot fault the logic of this conclusion.Bridge's, however took a different view pre-ferring to interpret the case in terms of:

'the fundamental question of whether thesettlement of matters relating to the internalmanagement of the universities should con-tinue to be within the exclusive jurisdictionof the visitor . . . or whether the courts wouldprovide a more appropriate forum.' (1970,p 549)

Although agreeing that this is an importantissue we cannot see what relevance this casehas to it. The students asked for relief from adecision by a University examination boardnot the University's visitor so the question ofthe appropriateness or otherwise of visitorialjurisdiction did not arise. But given that AstonUniversity is entitled to a visitor and that theresolution of a dispute over the conduct of anexamination board would certainly comeunder the visitor's jurisdiction it seems to usthat a much more relevant question is 'whydidn't the students petition the visitor beforetaking legal action'? Given also that it isinconceivable that the court would have gran-

ted the students the relief sought unless it hadfirst been persuaded that they had exhaustedall other possible remedies available underthe University's domestic law, we must con-clude that the answer to this question must bethat no visitor had been appointed.19 Butaccording to Halsbury's Laws of England andother legal authorities 'A visitorial power at-taches as a necessary incident to all elee-mosynary corporations'.20 Bridge is alsoemphatic on this point: the power of appoint-ment of a visitor is reserved for the Crown asthe founder, this power to be exercised on thereceipt of a petition from the university's gov-erning body: in the absence of any such peti-tion the 'Court treats the Crown as the perma-nent authority and visitor of the (university)(1970, p 535, emphasis added). In all suchcases the Crown's visitorial powers are exer-cised by the Lord Chancellor. It would seemfrom all this that although no special appoint-ment of a visitor had been made to the Uni-versity of Aston it, nonetheless, did have andstill does have a visitor, namely the Queen towhom the university should have first directedthe students' complaint. Neither Wade norBridge nor the summary of the case itself hasbeen able to cast any light at all on why thisrequirement was not met, and particularly,why it appears to have escaped the scrutinyof the court.

Before we move on to consider the statutoryinstitutions we must return briefly to Bridge'scriticisms of the conclusion reached by Wadefollowing Aston University that the court wasmistaken to have even considered allowingprerogative orders to correct breaches of nat-ural justice rather than insisting that thesebreaches be dealt with by ordinary contrac-tual remedies. As we have stated earlier, wecannot fault the logic of Wade's conclusionon this matter, but do not read this conclusionto mean, as Bridge seems to imply, that therole of the visitor should be dispensed with,but rather that the court in this case had failedto make clear the basis upon which it wouldenforce the principles of natural justice, that isin statute or in contract. Bridge does not con-front this point but instead interprets it in termsof a question about the merits of contractualremedies versus visitorial jurisdiction which is

71

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014


not an issue in Wade's analysis. For example,Bridge contends that the jurisdiction of thecourts should be limited to contracts which donot relate to the 'internal management of theuniversities' and cites the terms of membershipof a university as an example of a contract thatwould lie outside of this jurisdiction and withinthat of the visitor. As it stands this statement isnot true unless it is established, first, that thesettlement of disputes over these terms does liewithin the exclusive jurisdiction of the visitorand, second, that the exercise of this jurisdic-tion is legally uncontroversial. Although caselaw does support the view that the courts arestrongly disinclined to interfere with a visitor'sdecision where a university's charter providesfor the exercise of general supervisory powersin respect of its domestic law, this does notdetract from the fact that the decision as to thejusticiability of a visitor's decision is always amatter for trie court to decide.21 As to the sec-ond condition we believe we have saidenough here to show that it is not met. We donot accept that Bridge's objection to Wade'sconclusion is either legally or prudentiallysound. It does seem paradoxical to recog-nize, as Bridge does, that students 'mustaccept membership of the university on theuniversity's own terms' in a highly unequalpower relationship and then to argue that avisitor and not the courts is best qualified toadjudicate in disputes over the legal limits tothe exercise of this power on the grounds ofeconomy, expediency and informality.

With respect to the statutory institutionswhich include all those universities and col-leges incorporated under the Chapter II of the1988 Education Reform Act (Liell, 1988),the High Court has recently established in thejudgement in Manchester University ex parteNolan that it will intervene to enforce the pro-cedural rights owed to members, includingstudents. As Carroll, in his review of this land-mark case has stated, it is 'the first in which astudent has been able to persuade a court ofan abuse of academic disciplinary power suf-ficient to warrant judicial relief (and has)established that statutory universities owe theirstudents the full range of public law obliga-tions enforceable through applications forjudicial review' (1994, pp 729-31). It

would be a mistake, however, to assume thatonly public law relief is available to studentsin these statutory institutions. Many of the rela-tionships between them and their students arecontractual, for example the terms underwhich a student is offered and accepts aplace; the terms and conditions that attach tothe completion of assignments; health andsafety; and so on, and are subject to the ordi-nary law remedies of tort ana contract. Thecontractual relationship has been most suc-cinctly put by Samuels:

'There is a contract between the student andhis institution and the prospectus forms partof that contract and the university mustadhere to it. A single document containingthe full terms of the contract between theuniversity and the student should be given tohim. It is surely not enough to require him tosign that he is bound by all the regulationsin force, and to make regulations availableon request.' (1973, p 255)

It is important for students to know whether theduty of their peers to observe natural justice isbased upon statute or contract or both sincethis will determine the remedies available(Wade and Forsyth, 1994, pp 565-6). Butas we have seen, there is no agreement onthis important question. It is our view that thepresent anomalies, incongruities and theresultant confusion will remain until Parliamentacts to place all institutions of higher educa-tion on the same legal footing.

Domestic law and the exercise ofstudents' rights

If the complexity of university law is such thatit defies the easy comprehension of trainedlegal minds, we wonder how students can beexpected to know what their rights, particu-larly their procedural rights, are, and whatwould be the best forum to obtain justicewhen these rights have been violated. As wehave already seen the legal relationshipbetween a student and his/her institution isone which not only straddles private and pub-lic law, but is further complicated by the factthat many of the decisions which affect stu-

72

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014

dents' rights are made in accordance withtheir institution's quasi-judicial domestic law.To the vast majority of students the legaldebate about the relative merits of visitorialjurisdiction versus judicial review versus con-tract will seem esoteric. The paucity of caselaw attests to the fact that only a very tinyminority of cases involving students' rightsever reach the courts, the great majority ofthese cases being settled within the institu-tion's own domestic law away from the publicscrutiny.

We can make some observations on thedifficulties that face students in obtaining jus-tice under their institution's domestic lawbased upon our own experience and the pre-liminary findings of Parlour's research into theprocedures followed by a sample of thirty UKinstitutions of higher education in the threeareas of student discipline, student grievanceand academic standing. This research hasindicated that there is extreme variation in thequantity and quality of information impartedto students regarding the internal rules andprocedures in these important areas, all ofwhich to a greater or lesser extent imposelegally enforceable duties on university tutorsand administrators to act according to law.Some institutions provide their students withcomprehensive information on college rules,regulations and procedures in the form of astudent handbook, while many others expectstudents to pick this information up as they goalong. Although the best student handbooksdo inform students about their institution'sinternal procedures for dealing with disci-pline, grievances and academic standing,we have yet to find an example of a hand-book which explains to students what theircontractual and/or statutory rights are andhow their institution's domestic law protectsthese rights. The attitude of most institutionsappears to be that students should be impar-ted with this kind of information on a 'need-to-know' basis. But, as Samuels has pointed out:

'It is surely a novel proposition that a party isentitled to natural justice only if he asks forit. The very concept is designed to affordhim protection when he may be anxious,unaware of his rights and is unrepresented.

Furthermore, it is dangerous to speculatewhat might have happened if he asked forhis rights. . . . Knowledge of his rights can-not be imputed to a person in the position ofa student. The university's regulations maybe complex, the law is a mystery not under-stood by everyone.' (1973, p 257)

Not only is the general level of informationimparted to students on the legal relationshipbetween themselves and their institution abys-mally bad,22 but no institution that we know ofhas yet acted upon Samuels's 1973 recom-mendation that student services ought toinclude those of 'a solicitor confining himselfto students' (legal) problems' (1973, p 262)despite the fact that these services nowadaystypically cover a wide range of advisory func-tions to help students cope, for example, withaccommodation, medical, career and per-sonal problems. The result of this gap in theseservices is that, even when students believethat their rights have been violated, they facegreat difficulty in knowing whether this is thecase and, if so, what action they can legit-imately take to obtain justice.

We have already seen that where a stu-dent's rights are violated and the institution(and/or its visitor) fails to rectify the injusticeto the student's satisfaction the courts will offerhim/her final recourse. But only wealthy stu-dents (or those with wealthy and sympatheticparents) or those who are poor enough toqualify for legal aid will be able to afford thehuge costs of litigation. Even where thesecosts can be borne there is no guarantee ofsuccess unless the student can convince thecourt that all possible avenues to justice avail-able within his/her institution's system ofdomestic law have been exhausted. The ade-quacy of these internal remedies will varyfrom institution to institution depending on theimportance each attaches to its contractualobligations to students, to the formalization ofrules in accordance with the principles of nat-ural justice, and, most importantly, to the pro-cedures adopted in following these rules andin hearing students' appeals. We stronglysupport Bridge's view that wherever possibledisputes should be resolved internally avoid-ing, as far as is possible, all of the 'legal para-

73


Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014


phernalia of the courts' subject to the strongproviso that the exercise of domestic jurisdic-tion be just and reasonable and 'satisfy thosestandards that are regarded as fundamentalto the administration of justice in every sphere'(Bridge, 1970, p 550). Put simply, thisrequires that students are treated in accord-ance with the two fundamental rules of fairprocedure, that is that a person may not be ajudge in his/her own cause and that a per-son's defence must always be fairly heard.Recently the JUSTICE Committee has elabo-rated on these principles, adding two impor-tant recommendations that would, if givenstatutory force, significantly enhance therights of students. These are that an authorityshould be required, upon request, to provideany person materially affected by its decisiona written statement of the reasons justifying itsdecision, and that in respect of a decisiontaken in breach of the Principles of GoodAdministration, any such person should havea right of action in the High Court in theabsence of a right of appeal to a specialisttribunal or an inferior court.23 Regrettably, asour own research24 and case law has demon-strated, these conditions are rarely met. Wecan briefly exemplify some of the problemsstudents face in obtaining justice under theirinstitution's domestic law with reference to theenforcement of discipline, dealing with stu-dent grievances and the determination of astudent's academic standing.25

The maintenance of good discipline is apre-requisite for the smooth functioning of allinstitutions of higher education; the experien-ces of the late 1960s and early 1970s vividlydemonstrated what happens when this con-dition is not met. All students are required toabide by their institution's disciplinary codeand to accept the penalties specified in thiscode for non-compliance. At the same timeinstitutions are required to abide by the law indealing with alleged offences. This placestwo types of legal duties on them. Firstly,where students allegedly commit serious crim-inal offences, for example taking or dealing indrugs prescribed under the 1971 Misuse ofDrugs Act, assault or rape, the courts haveruled that institutions must refer such allega-tions to the police rather than attempt to deal

with them under their own disciplinarycodes.26 Secondly, where alleged offencesare deemed to lie within the remit of an institu-tion's domestic law, administrators have aduty to ensure that at each level in the pro-ceedings the rules of natural justice are scru-pulously followed.

Our research has shown that there are widevariations in the internal procedures for deal-ing with student grievances. Preliminary find-ings have indicated that a disturbingly highpercentage of institutions violate one or morethe principles of good administrative proce-dure adumbrated by the JUSTICE Committeein dealing with grievances which stem fromthe application of their internal rules and reg-ulations, and we know of no institution whichattempts to distinguish between grievanceswhich raise serious legal questions about thecontractual and statutory obligations institu-tions owe to their students and those whichhave no legal force. It is clearly absurd toinsist that all grievances be dealt with in thesame manner. Many complaints that studentsvoice stem from inadequacies in their learningexperience. These range from irritation at theinconsiderate behaviour of tutors when theyturn up late, or not at all, for scheduledclasses, or when classes are rescheduledat the convenience of the tutor at shortnotice, through to the more substantial com-plaints about bad teaching, sloppy markingstandards and long delays in returning course-work, culminating in the very serious com-plaints about bias, prejudice and sexual har-assment. Given the range of grievances thatcan emanate from students it is sensible thatprocedures for dealing with these varyaccording to the extent to which they concernviolation of rights rather than interference withminor interests. This is not to dismiss the impor-tance to students of having tutors turning up ontime for classes or having good feed-backfrom tutors on essays, but such unprofessionalbehaviour hardly ranks in terms of severitywith, say, sexual harassment or breach ofcontract. It is important therefore that a sen-sible balance be struck in ensuring, on the onehand, that adequate steps are taken to furtherand protect the interests of students while, onthe other, that serious grievances which have

74

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014

a direct bearing upon students (and staff)rights are subject to all of the rigour and for-mality one would expect from a court. If thisrequirement means importing into domesticlaw what Bridge referred to as the legal para-phernalia' of the courts and, if this is inter-preted to mean that institutions should paymore attention to the exercise of the rules ofgood administration then we are all for it.

Most institutional decisions affecting stu-dents have to do with the determination oftheir academic standing and the most com-plex rules and regulations are reserved for thisarea. These rules and regulations and the pro-cedures adopted to enforce them raise sev-eral important issues which have a directbearing on students' rights. The first stems fromtheir incomprehensibility which results from acombination of appallingly bad drafting andunnecessary complexity. Even if students wereencouraged to read their course regulations,they would be hard pressed to make a greatdeal of sense of them. The second problemarises from the fact that academics dislikehard rules which allow little room for the exer-cise of discretion. These problems stemdirectly from a failure to understand the essen-tial properties of rules and the relationshipbetween their enforcement and the exercise ofdiscretion. Following Baldwin we can definea rule as 'a general norm of conduct or actionin a given type of situation' (1990, p 321)which has two essential properties. The firstconcerns its degree of specificity or precisionand the second its accessibility or intelligibil-ity. A good rule is therefore one which is spe-cific and both accessible and intelligible. Itmust also be enforceable. The force of theseconditions is necessarily diluted by the exer-cise of discretion and completely nullifiedwhen this discretion is absolute. We wouldcontend that the exercise of discretion in theapplication of rules governing a student'sacademic standing should comply withexactly the same restrictions that attend itsexercise in any other sphere of law. To para-phrase Bingham 'discretion should be strictlylimited and the rules for its exercise clearlyunderstood' (1991, p 69). When this strictureis ignored, as is all too frequently the case inthe application of imprecise and unintelligible

rules governing academic standards, arbi-trariness takes the place of controlled discre-tion and the inevitable result is comparativeinjustice. It is virtually impossible for studentsto challenge the interpretation and applica-tion of rules governing academic standards.There are two reasons for this which we willdeal with briefly here since each one will bedealt with in greater depth in a later article.

First, the courts, as in R v. Higher EducationCouncil ex parte Institute of Dental Surgery,27

have consistently ruled, for example, that the'pure exercise of academic judgement' can-not be challenged unless there is 'prima facieevidence that something has gone wrong'.28

In dismissing the application of the plaintiff forjudicial review of the decision of the HEFC todowngrade its research rating on the groundsthat the HEFC had failed to give reasons for itsdecision, the court held this since this decision'was on evidence no more than an informedexercise in academic judgement, fairnessalone would not require reasons to begiven'.29 Second, our research has shownthat, while regulations governing appealsagainst decisions of examination board areallowed in all institutions of higher education,there is no consistency in the grounds for suchappeals. Most, but not all institutions allowappeals only on the very restricted grounds of'maladministration' or 'material administra-tive error' or the admission of medical or otherevidence not available at the time thedecision was taken, and very few are pre-pared to provide students with the reasons fora decision, even when demanded. Wewould contend that the complexity of exam-ination regulations, the absence of definitionsof the precise meanings of terms such as 'mal-administration' and 'material administrativeerror', the notorious laxity in the recording ofprecedents established in the application ofdomestic laws, and the imposition of blanketrestrictions on reasons for examination boarddecisions make it difficult to see how the jus-ticiability requirement laid down in R v. HEFCcan possibly be met.

The most serious academic offences that astudent can commit are those of plagiarismand cheating and yet as Parlour has arguedelsewhere,30 the rules governing these offen-

75


Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014

E D U C A T I ON A N D T H E L A W

ces are frequently communicated to students,if at all, in a haphazard and imprecise man-ner and the sanctions rarely enforced in a con-sistent and fair manner within and acrossawards. The result is that students do not knowwhat is expected of them, and when they do,the rules are unfairly applied giving rise toarbitrary discrimination which is the bane ofcomparative injustice. Students have a right toknow what is expected of them and todemand that rules are enforced without fear orfavour.

ConclusionsWe began this article by making reference torecently published DFE and NUS Charterswhich proclaim students' rights. We arguedthat the notion of a legally enforceable rightwas much devalued in these and similar docu-ments. Most of these charters' claims are, atbest, ideals to which institutions of higher edu-cation should aspire. This is because the pre-conditions for satisfying these claims do notexist or cannot be easily guaranteed. Studentsdo, however, have some legal rights, but aswe have shown the law relating to studentsattending universities is not 'clear cut', andthat students in different institutions are not onthe same legal footing. The legal complexitiesare many and we highlighted some of thesignificant differences within and amonginstitutions with respect to the applicationof private, public and 'domestic' law, withreference to recent court cases. Only when allinstitutions of higher education are put on thesame legal footing will the present anomaliesand incongruities be eliminated. This willrequire Parliamentary action.

We then focused upon two key areas: dis-ciplinary matters and academic issues, withspecial attention being given to grievancesand appeals procedures, and examinationmatters. We argued that much more needs tobe done in these areas to protect students'legal rights. In particular, institutions shouldprovide much more information to studentsabout these rights and should take much morecare in the design and enforcement of theirdomestic law to ensure that it conforms to theprinciples and practice of good administra-

tion. We have also urged the considerationbe given to the appointment of student legaladvisors.

The paucity of case law concerned with stu-dents' rights attests to the fact that few casesreach the courts, the majority of such casesbeing dealt with under the institutions' domes-tic laws. To the best of our knowledge verylittle is known about the workings of theselaws in the thousands of disciplinary, exam-ination appeal and grievance cases whichare dealt by innumerable quasi-judicialboards, committees and panels in institutionson a daily basis. It is only when the rulings ofthese bodies give rise to allegations of suchgrave injustice, and plaintiffs can find thefinancial means to pursue their cases throughthe courts, that they are exposed to externalscrutiny. The recent publication by the HEQCof the results of audits carried out on 69 UKuniversities stated that 'a significant propor-tion of audits did not comment on the studentappeals system. Of those that did, relativelyfew commended universities for good prac-tice in the development and implementationof student appeals policies and procedures'|HEQC, 1994, p 68-9). Attention wasdrawn in this report to wide variationsbetween universities in the information givento students on their rights of appeal and in theappeal procedures themselves; violations ofthe rules of natural justice in hearing studentappeals attracted the particular concern ofthe auditors. We believe that our ownresearch and that of other bodies such as theHEQC has exposed serious deficiencies inthe way in which institutions' own domesticlaws protect students' rights. Although this evi-dence is patchy and inconclusive, it is none-theless disturbing enough to justify a majorresearch effort to critically assess how wide-spread these deficiencies are and to exposethem to public scrutiny.

Endnotes

1. The Charter for Higher Education (1994).Department for Education, London.2. NUS Student Charter, (undated), National

Union of Students, London.3. See n 2, 5.

76

Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014

4. See n 2, 9.5. See n 2, 6.6. Feinberg is, perhaps, a classic statement of

the twentieth century philosophy of rights.7. For a comprehensive account of these

changes as far as they concerned students see theReport of the Select Committee on Education andScience; Student Relations. (1968-1969). Houseof Commons.8. We have noted the gender specificity of this

piece which would almost certainly not beregarded as quite de rigeur in today's 'politicallycorrect' parlance. However, given that maleswere the most active participants in thedisturbances which afflicted college and universitycampuses at this time and were in the greatmajority of those successfully prosecuted andconvicted or serious criminal offences this mode ofaddress is apt.9. Rv. Caird (1970) 54 Cr. App. R. 499 cited

in Samuels (1973, p 253).10. For more information on the complexevolution of academic power in the pre-1988 UKuniversities see Ashby (1970); Moodie andEustace (1974): Ross (1976); Shattock (1983);Van de Graff et al (1978), Chapter 6.11. See Wade's discussion of the judgement inR v. Aston University ex parte Roffey in Wade(1969); see also Wade (1993). The LondonSchool of Economics being a limited companywould also appear to come under this heading.12. 'A visitorial power attaches as a necessaryincident to all eleemosynary corporations. . . . Itenables the person exercising it, who is called thevisitor, to settle disputes between members of thecorporation, to inspect and regulate their actionsand behaviour, and generally to correct all abusesand irregularities in the administration of the charity.(Halsbury's Laws of England, 4 (2) para 872).13. For a comprehensive account of the role andpower of the university visitor see Bridge (1970,pp 531 -51). The law governing the visitor iscovered in Halsbury's Laws of England, 4 (2)paras 872-89.1 4. For a detailed account of the meaning andscope of these prerogative orders see Wade andForsyth (1994, pp 623-59). As Wade andForsyth point out (pp 642-3) the courts haveallowed that certiorari does not lie against thevisitor for 'mere errors of law'. We discuss thesignificance of this exemption in the next part ofthis article.15. Page is reported in full in [1993] 1 All ER97-116.16. See n 15, p 114. See also Davies (1993,pp 4-6).

17. See n 15, p 114.18. [1969] 2 Weekly Law Report at 1418 citedin Wade, (1969, pp 468-72).19. According to Bridge (1970, p 534 andfootnote 29) the University of Aston is in thecategory of 'recently established universities'whose charters make no provision for theappointment of a visitor.20. See n 1 2, p 874 (emphasis added).21. The first question the court had to decide inPage was 'whether the High Court had jurisdictionto grant judicial review of the visitor's decision asto the construction of the university's statutes' andonly then could the Court consider the applicationto quash this decision [1993] 1 All ER 97.22. We are aware of only one University(Wolverhampton) where this information isincluded in the student handbook.23. Administrative Justice: Some NecessaryReforms. Report of the Committee of the JUSTICE -All Souls Review of Administrative Law in theUnited Kingdom, (1988), Clarendon Press,Oxford.24. This research is based upon a survey of thedisciplinary, grievance and academic appealsprocedures of some 30 UK institutions of highereducation. The result of this research will bepublished later this year.25. The reader is referred to the excellent papersby Whincup (1993) and Carroll (1994) forreviews of the relevant case law in these importantareas.26. This requirement has recently been formallyrecognized by the Committee of Vice Chancellorsand Principals (see report in The Daily Telegraph,8 December 1994) following the debacle overthe case of Mr Austen Donellan who wasacquitted of raping an undergraduate after thecollege authorities had spent three months treatingthe matter as an internal disciplinary matter.27. [1994] 1 All ER 651 . For a review of otherrelevant cases see Whincup (1993, pp 26-9).28. [1994] 1 All ER 672.29. [1994] 1 All ER 652.30. Parlour, J W THES forthcoming, April 1 995.

References

ASHBY, E (1970) Masters and Scholars, OxfordUniversity Press, London.

BALDWIN, R (1990) Why rules don't work, ModernLaw Review, 53: 3 321-7.

BINGHAM, THE RT HON SIR JOHN (1991) Shouldpublic law remedies be discretionary? PublicLaw [Spring 1991] 64-75.

77


Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014

BRIDGE, J W (1970) Keeping peace in theuniversities, Law Quarterly Review, 86: 531-5.

CARROLL, A (1994) The abuse of academicdisciplinary power, New Law Journal, 27 May:729-31 .

Committee of the JUSTICE - All Souls Review ofAdministrative Law in the United Kingdom(1988) Report on Administrative Justice: SomeNecessary Reforms. Clarendon Press, Oxford.

CRAIG, P P (1992) Legitimate expectations: aconceptual analysis, Law Quarterly Review,108: 79-98.

DAVIES, K (1993) The justiciability principle, All ERAnnual Review, 1993: 1-10.

EDWARDS, E G (1976) Power and authority in theuniversity, in Flood, Page, C F and Yates, MPower and Authority in Higher Education. TheSociety for Research Info Higher Education,University of Guildford, Surrey: 73 -81 .

FEINBERG, J (1973) Social Philosophy, Prentice-Hall, New Jersey.

HAISEY, A H and TROW, M A (1971) The BritishAcademics, Harvard University Press,Cambridge, Mass.

Higher Education Quality Council (1994) Learningfrom Audit, HEQC, London.

LIELL, P (ed.) (1988) The Law of Education. SpecialBulletin: Education Reform Act, 1988,Butterworths, London.

MOODIE, G C and EUSTACE, R (1974) Power andAuthority in British Universities, George Allenand Unwin, London.

PLAMENATZ, J P (1968) Consent, Freedom andObligation, (2nd] Oxford University Press,Oxford.

PLANT, R (1991) Modem Political Thought,Blackwell, Oxford.

ROBBINS, LORD, (1980) Higher Education Revisited,Macmillan Press, London.

Ross, M (1976) The University: The Anatomy ofAcademe, McGraw-Hill, London.

SAMUELS, A (1973) The student and the law,Journal of the Society of Public Teachers of Law,12: 252-65.

SHATTOCK, M (ed.) (1983) The Structure andGovernance of Higher Education. Research IntoHigher Education Monographs. The Society forResearch Into Higher Education, University ofSurrey, Guildford.

Times Higher Educational Supplement (1995)Academic freedom: Council backs law student'scase, 20 January 1995.

VAN, DE GRAFF, J H, BURTON, R C, FIRTH, D,GOLDSCHMIDT, D and WHEELER, D F (1978)Academic Power: Patterns of Authority in SevenNational Systems of Higher Education, Praeger,London and New York.

WADE, H W R (1969) Judicial control ofuniversities, Law Quarterly Review, 85:468-72.

WADE, H W R (1993) Visitors and errors of law,Law Quarterly Review, 109: 155-9.

WADE, H W R and FORSYTH, C F (1994)Administrative Law, (7th edn) Clarendon Press,Oxford.

WHINCUP, M H (1993) The exercise of universitydisciplinary powers, Education and the Law,5(1): 19-31.

78


Dow

nloa

ded

by [

New

Yor

k U

nive

rsity

] at

22:

20 0

4 N

ovem

ber

2014

students' rights

Documents