1 Introduction
1.1 We have been
commissioned by the Quality Assurance Agency for Higher Education (‘the QAA’),
through its instructing solicitors
Mills & Reeve, to produce an update on the law in Northern Ireland relating
to student complaints and appeals to inform the QAA's review of its Code of
Practice for the assurance of academic quality and standards in higher
education (‘the Code’), and in particular section 5 of the code (‘Academic
appeals and student complaints on academic matters – March 2000’).
1.2 The report is intended as a general update of the law in Northern Ireland in relation to student complaints. The report identifies areas where the laws of Northern Ireland diverge from the English position or where there is some ambiguity about the position under Northern Irish law. It is not intended to be a concise statement of the law in this area in Northern Ireland but a general overview. We would be delighted to assist should a more detailed enquiry be required.
1.3 In accordance with Mills & Reeve’s approach, we have focused this report on the issues covered by section 5 of the Code - i.e. academic appeals and student complaints on academic matters, including the right to representation. We have not considered specifically any issues which fall outside that area, although many of the principles and recommendations set out in this report will apply generally to the procedures which should be adopted in relation to disciplinary and other matters.
2 Summary
A student wishing to bring a complaint against a university must proceed by way of the internal complaints procedure of the relevant university. Only once all internal complaints or review procedures are exhausted may a student bring a complaint to the University Visitor, the final appeals body within a university. The limits of the jurisdiction of the University Visitor are unclear but a decision of the University Visitor may only be challenged using the judicial review process if the Visitor has acted outside its jurisdiction. Northern Ireland is unique among the three British jurisdictions in retaining the institution of the University Visitor.
3 The Current Student Complaints and Appeal Procedures in Northern Ireland
3.1 Northern Ireland has four locally based Higher Education Institutions comprising two universities, the University of Ulster and The Queen's University of Belfast, and two institutions specialising in teacher education, St Mary's University College and Stranmillis University College. The latter two institutions are integrated as university colleges of Queen's University, Belfast. While the higher education sector in Northern Ireland is small by Great Britain comparisons, the two universities are of considerable size in UK terms.1
3.2 Each university has its own system of handling student complaints but in our experience they do not differ widely (no doubt, at least in part, because of the Code of Practice). It should be noted at the outset that the student complaints procedure cannot be used to investigate or adjudicate upon matters solely of academic judgement.
3.3 Taking the University of Ulster's procedure as an example:
3.3.1 Stage 1 of the procedure allows for informal resolution of the complaint at local level and only where this has proved unsuccessful can Stage 2, which is the first of the two formal stages, be invoked. The expectation is that most complaints can be resolved if appropriately addressed at local level by the University's teaching or support staff.
3.3.2 If Stage 1 proves unsuccessful, the complainant may proceed to Stage 2, which is the first of the two formal stages. Details of the complaint and the attempts made to resolve it informally are submitted in writing to the relevant Dean of Faculty or Head of Department using a standard student complaint form. A written response will be issued to the complainant indicating what action has been taken or is proposed to resolve the complaint or, if the complaint is not upheld, the reasons for that decision.
3.3.3 If the complainant feels that the complaint has not been adequately addressed, the complaints procedure moves to Stage 3. A standard complaint form may be submitted to the Student Complaints Liaison Officer. Whilst the Liaison Officer can offer advice on the complaints procedure, he cannot give an opinion on the complaint itself. A Complaints Review Panel will be convened to consider and adjudicate on the complaint. The Complaints Review Panel will have the following members:
- a lay member of the University Council (Chairman);
- a dean of a faculty not implicated in the complaint;
- a head of an administrative department not implicated in the complaint;
- the president of the Students' Union.
The Panel will have available to it all correspondence relating to the complaint and any other relevant documentation. The Panel may question the complainant and any members of University staff involved and will seek to establish all facts before reaching a decision. The Panel's conclusions will be notified to the complainant and a report summarising the complaint, the action taken to resolve it and the Panel's conclusions and recommendations will be sent to the Vice-Chancellor of the University and to the relevant Dean or Head of Department. If the complaint is upheld, the Dean or Head of Department concerned will be asked to respond to the Vice-Chancellor and to the Chairman of the Complaints Review Panel stating what action has been taken or is proposed having regard to the Panel's recommendations.
3.3.4 Where a student has exhausted all internal complaints
or review procedures, an appeal may be made to the University Visitor. The
Visitor is the final appeals body within the University. Under the Visitorial
system, the ultimate right of appeal in respect of student complaints lies to
the Visitor.
The jurisdiction of the Visitor is exercised either by an individual or by a
Board. A single University Visitor is appointed to the University
of Ulster whereas a Board of Visitors,
consisting of four members, is appointed to The Queen's University of Belfast.
3.3.5 The role of the Visitor is, inter alia, to ensure that the University's complaints procedures have been properly observed and executed and that the provisions of the University's charter, statutes, and governances have been applied.
4 Changes in the Legal Position since 2000
4.1 Paragraph 1.4 of Mills & Reeve’s report of May 2006 summarises those areas in which the law has developed since the publication of the Code. Of those areas mentioned, the following are also applicable to Northern Ireland :
4.1.1 a focus on admissions and widening participation;
4.1.2 the bringing into domestic law of the European Convention on Human Rights and the increase in awareness by individuals of their human rights;
4.1.3 greater legal rights to disclosure of information;
4.1.4 developing rights under private law – negligence and conduct; and
4.1.5 new statutory rights prohibiting unlawful discrimination and encouraging diversity.
4.2 To these we would also add the devolution of power from Westminster to the Northern Ireland Assembly and the reconstitution of the Northern Ireland Higher Education Council in 2002.
4.3 By way of overview, the legislation that underpins the Northern Ireland statutory framework for higher education is:
- the Higher Education Act 1994;
- the Higher Education (Northern Ireland) Order 2005; and
- the Northern Ireland Act 1998.
The first Act established the Arts and Humanities Research Council in Northern Ireland and introduced various provisions relating to student support authorities. The Higher Education (Northern Ireland) Order 2005 increased funding available to higher education institutions. The Northern Ireland Act 1998 deals with the decentralisation of government in Great Britain to Northern Ireland .
4.4 The abolition of the Visitorial jurisdiction in England
and Wales referred to in the Mills & Reeve Report has not yet occurred in
Northern Ireland.
The Office of the Independent Adjudicator for
Higher Education has not yet been established in Northern Ireland.
5 Statutory/Visitorial Oversight
5.1 Whereas higher education institutions in England and Wales are required to comply with the rules of the independent Student Complaints Scheme established pursuant to the Higher Education Act 2004, the salient part of that Act creating the Scheme and ending the jurisdiction of University Visitors, does not apply in Northern Ireland. Consequently, the Office of the Independent Adjudicator for Higher Education, which has been operational in England and Wales since March 2004, has no jurisdiction to review complaints made against Northern Irish universities and, of the three British legal jurisdictions, Northern Ireland is unique in maintaining the concept of the University Visitor.
5.2 The jurisdiction exercised by the University Visitor was intended to be an inexpensive way of resolving internal disputes between members of a corporation or between members and a corporation where ‘membership’ is open to a fairly wide interpretation. Under the Visitorial system, the ultimate right of appeal in respect of student complaints lies to a Visitor. The University Visitor normally only investigates complaints when the university's internal procedures have been exhausted and a complaint remains unresolved.
5.3 The Visitorial jurisdiction, which is unique to Northern Ireland, is a historical one and has been derived from the right of the founder of a university to determine matters relating to the creation of the university by that founder. As universities are created by Royal Charter the founder is the Sovereign, represented by the Queen in Council, ie the Privy Council. Visitors are appointed, either to a Board as at The Queen's University of Belfast, or independently as at the University of Ulster, by the Privy Council.
5.4 The powers of the Board of Visitors at The Queen's University of Belfast are not prescribed in the University's charter. In contrast, the charter of the University of Ulster provides that the Visitor shall ‘have the right at any time and in such manner as he shall think fit to direct an inspection of the University, its buildings and equipment and also an enquiry into the academic and general affairs of the University’. In one decision of the Court of Appeal of England and Wales, which has persuasive authority over the courts of Northern Ireland, it was stated that the Visitor has ‘untrammelled power to investigate and right wrongs arising from the application of the domestic laws of the chartered institution’2.
5.5 Under Article 7 of the Education (Academic Tenure) (Northern Ireland) Order 1988, any dispute relating to the appointment or employment of staff (including the termination of their appointment or employment) is excluded from the Visitor's jurisdiction. Article 7 does, however, entrench the jurisdiction of the Visitor to hear and determine appeals, or hear and redress grievances relating to their employment or appointment which are put forward by members of academic staff and relate to disciplinary action, notice of dismissal, or dismissal in accordance with the procedures set down in the institution’s statute.
5.6 The jurisdiction of the Visitor and the application of Article 7 of the Education (Academic Tenure) (Northern Ireland) Order 1989 was considered further in Re Perry's Application 3. This case involved a postgraduate student at The Queen's University of Belfast who had been employed by the Students' Union, was found guilty of sexual harassment and was dismissed from employment by the Students' Union. An appellate panel dismissed his appeal and the Vice-Chancellor of the University subsequently informed the appellant that, since he had been dismissed from employment with the University as a result of a finding of sexual harassment, he was not eligible to be considered for any future employment with the University. An industrial tribunal dismissed the student's claim for unfair dismissal on the ground of lack of jurisdiction as the student had worked for less than 16 hours per week. The appellant appealed to the Board of Visitors to review the disciplinary process on the ground that it had been unfair, and the ban imposed on him on the ground that it was unlawful. The chairman of the Board of Visitors informed the appellant that the Board's provisional view was that it had no jurisdiction as the domestic staff of a University did not fall within the Visitorial jurisdiction. The appellant subsequently appealed against the dismissal of its application for judicial review of the decision of the Board of Visitors.
It was held by the Court of Appeal in Northern Ireland that members of the University's domestic staff owed nothing to the internal rules deriving from the founder's regulations of the conduct of the University. Such staff were governed by the general law and did not fall within the Visitorial jurisdiction. Furthermore, the University's governing statutes did not regulate the terms of the appellant's employment with the Students' Union and were clearly governed by the general law. The fact that the appellant was a member of the University did not bring the issue of dismissal within the jurisdiction of the Board of Visitors. The Board had therefore been correct to decline jurisdiction in relation to the appellant's appeal against his dismissal.
It was further held however that the appellant was entitled to appeal to the Board of Visitors against the general ban on his future employment with the University. Article 7 of the Education (Academic Tenure) (Northern Ireland) Order 1989 preserved the jurisdiction of the Board of Visitors in relation to applications for appointment by members of the University. The general ban imposed on the appellant could affect any future academic career and the appellant therefore had a grievance in respect of applications for every post for which he would otherwise be eligible to apply. Furthermore the Board of Visitors could determine whether a general ban was an appropriate punishment in addition to the decision to dismiss the appellant. An order of certiorari was granted to quash the decision of the Board of Visitors refusing to consider the appellant's complaint in so far as it related to the permanent ban on employment in an academic post in a university.
5.7 The Visitor's powers would therefore seem to be extensive although their exact limits remain unclear and largely untested in common law. The statutory process has intervened to exclude matters of employment from the Visitorial jurisdiction although Article 7 of the Education (Academic Tenure) (Northern Ireland) Order 1989 has retained certain matters within the preserve of the Visitor as evidenced in Re Perry's Application. Although in theory the Visitor cannot investigate or adjudicate upon matters solely of academic judgement, we have been unable to find any reported cases either validating or challenging this point.
6 Judicial Review
6.1; In stark contrast to the position in England and Wales and Scotland, the jurisdiction of the Visitor in Northern Ireland precludes challenge under public (or administrative) law. The Visitor has exclusive jurisdiction of university affairs. Although there are no decisions or cases in point which have been delivered by or brought to the courts of Northern Ireland, the House of Lords decided in R v Lord President of the Privy Council, ex p Page 4 , a decision which is binding on the courts of Northern Ireland, that the Court of Appeal and higher courts can exercise a supervisory jurisdiction over the Visitor by way of judicial review. The decision of the majority was that a Visitor's decision, made within his jurisdiction, is not amendable to challenge by judicial review on the grounds of an error in fact or law in making that decision. It was unanimously agreed however that judicial review does lie in cases where the Visitor has acted outside his jurisdiction. Such instances would include where the Visitor had breached the rules of natural justice, where the Visitor did not have the power under the university charter or statutes to adjudicate or where there had been an abuse of the Visitor's powers.
6.2 There are no substantive differences between the judicial review process in Northern Ireland and that in England and Wales, and it is not proposed to reiterate the terms of Section 7 of the Mills & Reeve Report.
6.3 Unfortunately for disgruntled students and potential claimants in Northern Ireland, the existence of the Vistorial jurisdiction and the exclusion of the jurisdiction of the ordinary courts has led to relatively few reported cases so that it is difficult to build up a body of case law. We were unable to find any reported cases of judicial review of a decision of a University Visitor.
6.4 A consultation paper issued by the Department of Employment and Learning in Northern Ireland (April 2004) invited responses to the question of whether an independent adjudicator should be established to hear student complaints in Northern Ireland and whether an end should be brought to the jurisdiction of the Visitor. The Queen's University of Belfast issued a response defending the institution of the Visitor relying on the appointment of members to the Board of Visitors by the Privy Council as guaranteeing the independence of the Board 5. The response stated that the Visitorial jurisdiction is ‘a unique and effective mechanism for dealing with student complaints, and…it is a tried and tested system’ which has ‘served its purpose efficiently and effectively’. Whilst the University stated that it ‘would be supportive of measures that promote fairness, openness and transparency in the student complaints process’ it stressed that such measures ‘must clearly demonstrate an improvement on the current system’.
In contrast, a response issued by the National Postgraduate Committee (‘NPC’) was in full support of removing the ‘medieval University Visitor system’ and replacing it with a ‘fully impartial, transparent and consistent complaints system’ 6. The NPC is fully in support of introducing the Office of the Independent Adjudicator to Northern Ireland but would urge that the adjudicator be directed by a board which ‘includes student representation to create a transparent system’.
7 The Human Rights Act 1998, Judicial Review and the Visitor
7.1 There are no substantive differences in how the law applicable to judicial review is applied given the enactment of the Human Rights Act 1998 in Northern Ireland as compared to England and Wales. The decisions of the European Court of Human Rights in Strasbourg are just as binding on the courts of Northern Ireland as on the courts of England.
7.2 The comments in paragraph 5.5 of the Mills & Reeve Report in relation to Article 6 of the European Convention of Human Rights (the right to a fair hearing) and whether the Visitorial jurisdiction is fully Article 6 compliant are particularly noteworthy in relation to Northern Ireland. Whilst there is undoubtedly the potential for the Visitorial jurisdiction to be held to fall foul of Article 6 we have been unable to find any reported actions brought against a university in Northern Ireland on the grounds that a student’s human rights have been breached. There is therefore little for us to add to the observations in Mills & Reeve’s report relating to the case law from the European Court of Human Rights (to which the courts of Northern Ireland are required by statue to have regard) and the English appellate courts (which will be persuasive in Northern Ireland).
8 Right to Representation
8.1 We have been asked to specifically comment on the Right to Representation accorded by Article 6 of the European Convention of Human Rights in relation to student complaints. As the Human Rights Act extends to Northern Ireland just as it does to England and Wales, and given that the decisions of the European Court of Human Rights in Strasbourg are as persuasive in the courts of Northern Ireland as in English courts, there is no obvious reason why the position in Northern Ireland would differ substantively from the English position.
8.2 It should be noted that the Visitor at the University of Ulster does allow legal representation at appeals before the Visitor, and in one instance the previous Visitor, Hutton LJ, awarded costs against the University of Ulster in respect of such legal representation.
9 Claims in Negligence/Contract
The general principles and the laws of tort and contract are substantively similar in Northern Ireland and England and Wales. Much of the law in these areas has been developed by courts, however statutory intervention has occurred in areas such as employment, disability discrimination, and data protection. There are no significant differences in the development of the laws of tort and contract in Northern Ireland in comparison to England and Wales. The decisions of the courts in the latter jurisdiction apply to the courts of Northern Ireland. To avoid duplication, we will therefore refrain from restating the provisions of Mills & Reeve's report dated May 2006.
10 Discrimination and Equality
10.1 The higher education sector in Northern Ireland has been involved fully in the public policies designed to enhance equality as evidenced by section 75 of the Northern Ireland Act 1998. The process began with the introduction of measures to secure fair employment between Catholics and Protestants and are now designed to promote equality of opportunity across several designated groups and 'good relations' on the grounds of religion and race. 7
10.2 The main pieces of equality legislation in Northern Ireland are:
- Race Relations (Northern Ireland) Order 1997 (as amended)
(Race Discrimination); - Sex Discrimination (Northern Ireland) Order 1976 (as amended)
(Sex Discrimination); - Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 (Sexual Orientation);
- Equality (Sexual Orientation) Regulations (Northern Ireland) 2006
(Sexual Orientation); - Employment Equality (Age) Regulations (NorthernIreland) 2006
(Age Discrimination); - Fair Employment and Treatment (Northern Ireland) Order 1998 (as amended)
(Political Opinion and Religion); - Gender Recognition Act 2004 (Gender Reassignment);
- Civil Partnerships Act 2004 (certain sections only apply to Northern Ireland) (Civil Partnerships);
- Disability Discrimination Act 1995 (as amended) (Disability Discrimination);
- Special Education Needs and Disability (Northern Ireland) Order 2005.
10.3 The Special Educational Needs and Disability (Northern Ireland) Order 2005 came into force on 01 September 2005. This legislation applies to universities and institutions of higher and further education. It removes the current exemption of the education sector in Northern Ireland form the Disability Discrimination Act 1995, thereby increasing access to institutions of further and higher education for persons with disabilities.
10.4 Apart from as detailed below, there are no material differences between the legislation detailed above and the equivalent discrimination provisions applying in England and Wales , at least in terms of principles applicable to higher education institutions in Northern Ireland in the course of their providing education and dealing with students.
10.5 Whilst the Disability Discrimination Act 1995 extends to the whole of the United Kingdom , separate secondary legislation and Codes of Practice are required to fully implement its provisions in Northern Ireland .
10.6 The Equality Act 2006 only extends in full to Scotland , England and Wales . Whilst there is no direct equivalent legislation in Northern Ireland , many of the provisions of the Act such as the setting up of an Equality Commission have previously been enacted in Northern Ireland under various statutory instruments.
10.7 An additional piece of equality legislation applicable in Northern Ireland is The Fair Employment and Treatment (Northern Ireland) Order 1998 (as amended). The main provisions of this Order are as follows:
10.7.1 the Order makes it unlawful to discriminate against someone on the ground of religious belief or political opinion. This includes a person's supposed religious belief or political opinion and the absence of any, or any particular, religious belief or political opinion;
10.7.2 the order applies to: employment, the provision of goods facilities and services, the sale or management of land or property, partnerships and barristers, further and higher education;
10.7.3 the Order identifies three types of unlawful discrimination: direct discrimination, indirect discrimination and victimisation;
10.7.4 it outlaws discrimination by employers against existing employees and potential new employees. It also renders the employer liable for acts of discrimination committed by their employees in the course of their employment, regardless of whether the acts were committed with the employer's knowledge or approval, unless the employer can show that such steps as were reasonably practicable were taken to prevent the discrimination occurring;
10.7.5 the Order imposes a number of significant duties on employers in terms of registration with the Equality Commission, submission of monitoring returns and the review of recruitment, training and promotion practices which are not found in other anti-discrimination legislation either in Northern Ireland or in Great Britain;
10.7.6 the Order makes it unlawful for a higher education institution in Northern Ireland to discriminate against its students or people applying to be admitted as students. For example, it is unlawful to refuse to accept a person as a student on the basis of religious belief or political opinion or to admit him/her on less favourable terms than other students. Existing students of higher educational institutions cannot be refused access to the benefits of that institution nor can they be subjected to harassment on the grounds of religious belief and/or political opinion; 8
10.7.7 if a student of a higher education institution believes that he/she has been subjected to religious or political discrimination, he/she has a right to bring a complaint to the County Court. Such a complaint must be brought within 6 months of the date of commission of the act which it is complained constitutes the discrimination.
10.8 Further examples of equality legislation that is applicable to Northern Ireland is the Employment Equality (Sexual Orientation) Regulations ( Northern Ireland ) 2003 and The Equality Act (Sexual Orientation) Regulations ( Northern Ireland ) 2006. The main provisions of these regulations in relation to education establishments are as follows.
10.8.1 The regulations make it unlawful to discriminate against someone on the grounds of sexual orientation. This includes a person’s sexual orientation towards persons of the same sex, persons of the opposite sex or persons of the same and of the opposite sex.
10.8.2 The regulations make it unlawful for an educational establishment to discriminate against its students or people applying to be admitted as students. If a person is already a student of the establishment, it is unlawful for them to discriminate in the way any other person is afforded access to any benefits, facilities or services, or by refusing or deliberately omitting to afford such access.
10.8.3 The 2003 Regulations also specifically refer to discrimination in relation to the granting of a professional qualification to an individual. In terms of Students' Complaints procedures, therefore, these regulations would apply to the extent that the complaint may relate to the granting of a professional qualification.
10.8.4 The Equality Act (Sexual Orientation) Regulations ( Northern Ireland ) 2006 applies to educational establishments which include those which are grant aided, independent schools, universities, establishments providing further education and colleges of education. Each establishment has a responsible body, for example, the Governing Body is responsible for a University.
10.8.5 The regulations identify three types of unlawful discrimination; discrimination on the grounds of sexual orientation, discrimination by way of victimisation and harassment on grounds of sexual orientation.
10.8.6 The regulations make it unlawful for a responsible body to subject a person who applies for admission to the establishment as a pupil, or a pupil at the establishment, to harassment.
10.8.7 The regulations provide that if a student of an educational establishment believes they have been subjected to discrimination on the grounds of sexual orientation, they have a right to bring a complaint to the County Court. Such a complaint must be brought within 6 months of the date of commission of the act that is alleged to be discrimination.
10.9 The Equality Commission for Northern Ireland provides considerable guidance in this area and it is beyond the scope of this paper to set out a comprehensive account of equality law.
11 Disclosure
The Data Protection Act 1998 and the Freedom of Information Act 2000 both apply to Northern Ireland and there is no substantive difference in their application in this jurisdiction. It should be noted that the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 provide that a university or institution of further education can refuse a request for information made under the Freedom of Information Act 2000 if the cost of providing such information is likely to exceed £450. In deciding whether the cost is likely to exceed this amount, institutions can only take into account the costs it reasonably expects to incur in determining whether it holds the information, locating it, retrieving it and extracting the information requested calculated at a rate of £25.00 per person per hour. If the cost of providing the information requested is likely to exceed the £450 limit, the university or higher education institution has the choice as to whether to refuse the request or to make a charge for complying with the request, or the institution may prefer to modify the request to reduce the cost below the £450 limit.
12 Conclusion
12.1 The ultimate appeals body in determining student complaints in higher education in Northern Ireland remains the University Visitor. The exclusive jurisdiction of the Visitor precludes the challenge of his decisions by the ordinary courts, and judicial review of his decisions is limited to those instances in which the Visitor has acted outside his jurisdiction. There is a dearth of case law on what the limits of the Visitorial jurisdiction are and no cases have been reported in Northern Ireland relating to the impact of the European Convention of Human Rights, in particular, the right to a fair hearing accorded by Article 6 on the Visitorial jurisdiction and the student complaints process. Northern Ireland therefore has the fewer avenues than both Scotland and England and Wales for ensuring that universities adhere to appropriate standards for their appeal and complaints procedures.
12.2 We are happy to respond to any further queries regarding this note or the student complaints process in Northern Ireland generally.
1 Department for Employment and Learning, ‘A Consultation on Proposals to Introduce Variable Deferred Fees, Access Agreements and a Review of the Student Complaints System’, April 2004. (back to text)
2 R v University of London, ex p Vijayatunga [1988] QB 322, 344, 345 approved in R v HH The Queen in Council ex p Varijayatunga [1989] 3 WLR 13, 21.(back to text)
3 [1997] NI 282. (back to text)
4 [1993] AC 682. (back to text)
5 The Queen's University of Belfast, Higher Education in Northern Ireland , Response to the DEL Consultation on proposals to introduce variable deferred fees, access agreements and a review of the student complaints system, June 2004. (back to text)
6 NPC/04/06/B. (back to text)
7 Osborne, RD (2005), Equality in Higher Education in Northern Ireland, Higher Education Quarterly, 59 (2), 138-152. (back to text)
8 Equality Commission for Northern Ireland, ‘Religious and Political Discrimination: Fair Employment and Treatment in Northern Ireland’, April 2002. (back to text)
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