What ‘rights’ do the English enjoy to a higher education? Officially, rather few, but maybe more than we thought. The keen-eyed will have spotted an interesting argument put forward on the HEFCE blog on which raises the issue again.
The right to education is articulated in the The Universal Declaration of Human Rights, Article 26 stating:
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
For Britain, we also have, for now, the Human Rights Act (1988) which repeats the European Convention on Human Rights which has, in the first protocol, article 2:
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.
Even to the layperson, there are significant differences between the more aspirational, positive, UN right, and the more succinct Euro version. Generally, as far as higher education has been concerned, these Human Rights haven’t had much traction. A right to education does not mean you should be admitted to a particular university, or you should not be asked to leave a particular university. Early applications of the HRA (as detailed in Farringdon & Palfreyman) were connected with academic freedom, freedom of expression or the operation of processes. The HRA did not require the government to give you that education for free, or to support you in any particular way (such claims as Michael Mansfield’s didn’t overturn the legislation).
But there’s a new conflict of laws (or challenge to the supremacy of British law if you want to see Human Rights like that) , and interesting that it’s HEFCE entertaining it. Susan Lapworth writes:
Recent commentators have quoted section 70 of the 1992 Further and Higher Education Act as evidence that HEFCE’s quality assessment responsibilities do not extend to matters relating to standards. And indeed, the Act says that HEFCE shall ‘secure that provision is made for assessing the quality of education provided in institutions for whose activities they provide, or are considering providing, financial support’. So it’s correct to point out that there is no explicit use of the term ‘standards’ here.
We’re confident, however, that HEFCE’s responsibility for assessing the ‘quality of education’ does indeed encompass ‘standards’: the ‘right to education’, as set out in the more recent 1998 Human Rights Act, is held to include the assessment and certification of successful studies. In other words, the world has moved on since 1992, and we have updated our understanding of the statutory basis for our responsibilities accordingly.
This is an interesting argument – and one I’d not noticed before. Mansfield noted that ‘European case law suggests that states are under an obligation to afford an effective right of access to institutions of higher education that exist’, but now HEFCE are stating that because of the right to education, they should be responsible for assessing standards at those institutions. This seems quite a leap.
Clearly it’s another thing that the White Paper needs to sort out, but I’d be very surprised if BIS argue that it’s the Human Rights Act that’s the basis for the TEF, but maybe that was on the page of the briefing note we didn’t see.