Student restrictions leave universities 'in the firing line for legal action', warns academic

Dr Nick McKerrell warned there is “a lot of scope for legal intervention” if restrictions continue

By Conor Matchett
Monday, 28th September 2020, 7:00 am
Students have been told to stay at home this weekend by universities, measures backed by the Scottish Government
Students have been told to stay at home this weekend by universities, measures backed by the Scottish Government

Universities have been warned they are in the legal “firing line” due to the restrictions imposed on students and backed by the Scottish Government over the weekend.

New measures, introduced last week in an attempt to slow the rise in cases of Covid-19, saw students being told to stay at home and not socialise in pubs and restaurants or with each other on campus while being expected to work in hospitality or retail if they have jobs in those sectors.

Scottish Labour leader Richard Leonard has led calls for the Scottish Human Rights Commission to investigate whether the restrictions have breached student’s human rights.

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Today, one law academic has said the restrictions could put universities at risk of legal action due to students being threatened with expulsion if they did not follow the rules.

Dr Nick McKerrell, a senior law lecturer at Glasgow Caledonian University, said there is “potential scope” for an investigation around the human rights implications and that a student-only lockdown verged on being an “arbitrary use of power”.

He said: “The issues are the additional restrictions and punishments that the Universities have added for students specifically on top of the general legal situation which we all face as Scottish citizens.

"Although these were given support by the First Minister they do not have the force of law or even a governmental guidance. Thus the universities have placed themselves in the firing lines.

“A student only lockdown – either having to stay in halls or banning them from visiting pubs and cafes may be justified but it was announced outwith any legal procedure or even debate that more general lockdown rules would require. This verges on being an arbitrary use of power.”

Dr McKerrell added that the use of punishments such as expulsion without evidence or proper legal process in drawing up the rules could lead to legal action by disgruntled students.

He said: “Without evidence or proper legal process in drawing up the rules ending someone’s Higher Education career looks entirely disproportionate.

"There is the basis for legal action here – not simply under human rights law, there is a history of the Scottish Courts hearing legal actions of judicial review brought by students who feel they have been inappropriately removed from their studies

“I think the Scottish government made a mistake in delegating these rules and the punishment attached to them.

"If they are going to continue for a longer period of time then they should take over the responsibility from the universities so students know where they stand and there can be a public debate on whether the restrictions are necessary. If not there is a lot of scope for legal intervention.”

A Scottish Government spokesperson said there were no legal restrictions which applied solely to students, and the measures in place treated students equally.

They said: “There are no legal restrictions which apply solely to students. Measures which restrict social gatherings between households treat students equally with the rest of the population, and are in place for clear public health reasons as part of our response to a global pandemic.

“However we recognise that student households are not always the same as those of other adults, and so we are considering what additional guidance can be given to students. These regulations are reviewed every three weeks and will not be in place a moment longer than they have to be. Additional advice and guidance from Universities Scotland for this weekend only is in response to evidence of the spread of the virus within the student community.

“As we have already said, in the fullness of time we expect all aspects of COVID-19 handling to be subject to an inquiry.”

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