Glasgow University/ Scottish Funding Council- human rights
Human Rights Flow Chart
1. The policy/operational decision
1.1 What is the policy/decision title?
1.1.1 Ending of undergraduate admissions to Glasgow University’s Crichton campus.
1.1.2 Statement on Crichton campus ISSUED: 14 February 2007
The University of Glasgow Court has taken a decision not to admit any undergraduate students to the Crichton campus in September this year.
The Court will consider, in due course, and in the light of further discussions with the Scottish Funding Council and partners future options for any Glasgow presence at Crichton.
The University has consistently maintained that we need further funded student places to sustain our provision at Crichton on a break-even basis. The Scottish Funding Council has declined to provide this support.
The interests of current students at Crichton will be protected throughout their remaining course of study. The University has been in touch with applicants for 2007 entry to inform them of this decision and to advise them on their options. http://www.gla.ac.uk:443/pressreleases/stories.cfm?PRID=4011
1.2 What is the objective of the policy/ decision?
1.2.1 It is a cost-saving measure as outlined at 1.1.2 above.
1.3 Who will be affected by the policy/ decision?
1.3.1 Immediately, and as 1.1.2 above, those students who would otherwise have expected to begin their studies via the University of Glasgow’s Crichton Campus in September 2007.
1.3.2 In the future, those students who would otherwise have studied at the University of Glasgow’s Crichton campus.
1.3.3 The wider community of Dumfries and Galloway.
2. Human Rights Impact
2.1 Will the policy/ decision engage anyone’s Convention rights?
2.1.2 Yes, those affected at 1.3.1, 1.3.2 and 1.3.3 above.
2.2 Will the policy/ decision result in the restriction of a right?
2.2.1 Yes.
2.2.2 Protocol 1, Article 2: Right to education.
2.2.3 Article 14 : Prohibition of discrimination
2.2.4 Article 10 : Freedom of expression
3. Types of Right
3.1 Is the right an absolute right?
3.1.1 No, the right to education, the prohibition of discrimination and freedom of expression are not absolute rights.
3.2 Is the right a limited right?
3.2.1 Yes, the right to education, the prohibition of discrimination and freedom of expression are limited rights.
3.3 Will the right be limited only to the extent set out in the relevant Article of the Convention?
3.3.1 No.
3.3.1.1.1 The right to education [Protocol 1, Article 2] has been limited by the United Kingdom (and therefore necessarily by the Scottish Parliament as a devolved rather than sovereign institution) “ to the extent that this compatible with the need to provide an efficient education and the need to avoid unreasonable public expenditure”.
3.3.1.1.2 The ’efficient’ provision of education has been and is expected to continue to be achieved through the ‘shared facilities’ aspect of the Crichton Campus. However, the continued efficiency of such educational provision may be affected by an increase in the ‘unit cost’ of such shared facilities once University of Glasgow ceases to have an undergraduate presence on the Crichton Campus.
3.3.1.1.3 On the ‘need to avoid unreasonable public expenditure’, it is clear that the Scottish Funding Council do not consider that the level of public expenditure granted to the University of Glasgow for the provision of education on the Crichton campus is ‘unreasonable’. The Scottish Funding Council consider the level of such public expenditure to be sufficient for the University of Glasgow to continue to provide efficient education at the Crichton campus.
3.3.1.1.4 . Therefore the right to education in this case will not be limited only to the extent set out in the relevant Article of the Convention.
3.3.1.2. Article 14: Prohibition of discrimination. For Article 14 to apply, it needs the support of another Convention right. For example :
It might not be a breach of a person’s right to education if the state does not provide a particular kind of teaching. But if the state provides it for boys but not for girls, or for people who speak only a particular language but not another, this could be discrimination in relation to the right to education. If this were the case, the people affected would rely on their rights under Article 14 (non - discrimination) taken with Protocol 1, Article 2 (education).
3.3.1.2.1 In this case, the supporting right [ under Protocol 1, Article 2] would be for a person ‘not to be denied access to the existing educational system’ and the discrimination aspect would come into force for a person who for a substantial reason [ e.g. parental or other care-related responsibilities, physical or mental disability, economic necessity] could only access this existing educational provision via the University of Glasgow’s presence within Dumfries and Galloway but would, for example, if a resident in the Highland region, still be able to access equivalent or similar educational provision.
3.3.1.3 Article 10: Freedom of expression. This right would be a supporting right to that of Article 14. In particular the importance given to continuing access within Dumfries and Galloway to education in the Liberal Arts as expressed by Members of the Scottish Parliament during their Debate on Motion S2M-5444 [which considered the University of Glasgow’s decision to cease admitting undergraduate students to their Crichton campus facility] held on the 15th February 2007.
3.3.1.3.1.From Article 10: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
3.3.1.3.2 Although this particular right; the ’freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’ may seem the least and most insignificant of the ‘human rights’ in question, within this particular context it is in fact the most important and significant. The context here is the intimate association between the Scottish Enlightenment and the Liberal Arts as taught to the University of Glasgow’s Crichton campus students :
MA Liberal Arts http://www.cc.gla.ac.uk:443/layer2/ma_description.htm
Introduced in 1999, the distinctive flexible MA degree has been designed to produce well-educated graduates able to extend and apply their knowledge as they face the challenges of the 21st century. Students follow a core programme of courses designed to promote active citizenship, creative and critical thinking. The core courses are the foundation for all subsequent study in all of the degree designations.
3.3.1.3.3 The enlightened person accepts the word of authority not as something to which he [she] has to say ‘yes, but as something which it is appropriate to subject to critical analysis. The question for the enlightened person therefore is whether the word of authority can stand up to cross-examination before the tribunal of reason. If it can then it is accepted because it is sanctioned not by authority but by reason. If on the other hand it cannot withstand the cross-examination then it has to be discarded, however exalted the source. The Enlightenment was an age of criticism in the sense of ‘critical analysis’ or ‘critical reflection’. It was through critical reflection that people were to gain their freedom -I do not say ‘secure’ it, because our freedom is never secure. Any position gained from the dead hand of authority has to be defended. Without an effective holding operation the position is lost. Alexander Broadie: The Scottish Enlightenment: Birlinn: Edinburgh: 2001: pages 19/21
3.3.2 That the rights in question are qualified rather than limited rights under the Convention.
4. The right is a qualified right
4.1 Is there a legal basis for the restriction?
4.1.1 No. The denial of the right to education, which involves discrimination and a restriction on freedom of expression, has no legal basis within the terms of the Convention. It is results from a funding dispute between the University of Glasgow and the Scottish Funding Council.
4.2. Does the restriction have a legitimate aim?
4.2.1 No, the restriction does not have a legitimate aim within the terms of the Convention. Its aim - to provide a cost-saving for the University of Glasgow following the alleged failure of the Scottish Funding Council to provide sufficient funds to maintain their presence in Dumfries and Galloway - does not fall within the ‘exclusion’ clauses of the Convention.
4.3 Is the restriction necessary within a democratic society?
4.3.1 No, it is not. Although the principle of ‘academic freedom’ has been invoked by the Scottish Executive as grounds for non-intervention in the decision by the University of Glasgow to cease admitting undergraduate students to their Crichton campus, the University of Glasgow themselves have argued that this is an economic rather than academic decision. Indeed, to the extent that opposition to the restriction on the right to education, to freedom from discrimination and to freedom of expression involved in this case was expressed by Members of the Scottish Parliament representing altogether the two constituencies directly affected , the south of Scotland , central Scotland (Lothians) and five political parties in the 15th February Debate, it could be argued that the restriction is unnecessary within a democratic society.
4.4 Are you sure you are not using a sledgehammer to crack a nut?
4.4.1 The advice given to public authorities when considering this question is :
A policy/decision should be no more restrictive than it needs to be in order to achieve its objective. This is called ‘proportionality’. For example, a blanket application of a policy/decision to everyone concerned will often be considered disproportionate, as it does not take into account individual circumstances, and the individual rights of each person affected. It will have the effect of imposing restrictions in circumstances where they are not really needed.
Look at the objectives you identified at paragraph one of this section, and box 1 of the flowchart, and ask yourself whether the objectives can be achieved only by the policy/decision you are proposing. Ask yourself if there is any other less restrictive way of achieving the desired outcome. If there is another less restrictive way of achieving the desired outcome, but you decide not to adopt it, you will need to be prepared to say why you have made that choice. Your reasons will have to be good ones.
4.4.1.1 Since the stated reason for the decision made by the University of Glasgow not to admit any undergraduate students to the Crichton campus in September this year is their claim that that Scottish Funding Council has declined to provide the public funding support necessary , and since the Scottish Funding Council deny this claim, one must ask - have the individual circumstances and the individual rights of each person affected been taken into account?
4.4.1.2 If, as seems to be the case the answer is ‘No’, then this would seem to be a case of a ‘disproportionate’ or ‘blanket application of a policy/ decision to everyone concerned.. .imposing restrictions in circumstances where they are not really needed’.
4.4.2. Could another, less restrictive policy/ decision have achieved the University of Glasgow’s stated objective - to sustain our provision at Crichton on a break-even basis?
4.4.2.1 Yes, a less restrictive policy/ decision could have done so. Such a policy/decision would also have been fully compliant with the Convention. What the University of Glasgow could have done is to restrict September 2007 undergraduate admissions to the ‘fully funded’ places allocated to them by the Scottish Funding Council. These places could then have been prioritised on the basis of individual circumstances/ need, thus respecting individual rights under the Convention.
4.4.2.2 However, the University of Glasgow chose not to adopt this less restrictive decision/policy. Nor has the Scottish Funding Council required the University of Glasgow to adopt this less restrictive decision/ policy.
4.2.2.3 Therefore, both the University of Glasgow and the Scottish Funding Council appear to be non-compliant with the European Human Rights Convention in this case.
1. The policy/operational decision
1.1 What is the policy/decision title?
1.1.1 Ending of undergraduate admissions to Glasgow University’s Crichton campus.
1.1.2 Statement on Crichton campus ISSUED: 14 February 2007
The University of Glasgow Court has taken a decision not to admit any undergraduate students to the Crichton campus in September this year.
The Court will consider, in due course, and in the light of further discussions with the Scottish Funding Council and partners future options for any Glasgow presence at Crichton.
The University has consistently maintained that we need further funded student places to sustain our provision at Crichton on a break-even basis. The Scottish Funding Council has declined to provide this support.
The interests of current students at Crichton will be protected throughout their remaining course of study. The University has been in touch with applicants for 2007 entry to inform them of this decision and to advise them on their options. http://www.gla.ac.uk:443/pressreleases/stories.cfm?PRID=4011
1.2 What is the objective of the policy/ decision?
1.2.1 It is a cost-saving measure as outlined at 1.1.2 above.
1.3 Who will be affected by the policy/ decision?
1.3.1 Immediately, and as 1.1.2 above, those students who would otherwise have expected to begin their studies via the University of Glasgow’s Crichton Campus in September 2007.
1.3.2 In the future, those students who would otherwise have studied at the University of Glasgow’s Crichton campus.
1.3.3 The wider community of Dumfries and Galloway.
2. Human Rights Impact
2.1 Will the policy/ decision engage anyone’s Convention rights?
2.1.2 Yes, those affected at 1.3.1, 1.3.2 and 1.3.3 above.
2.2 Will the policy/ decision result in the restriction of a right?
2.2.1 Yes.
2.2.2 Protocol 1, Article 2: Right to education.
2.2.3 Article 14 : Prohibition of discrimination
2.2.4 Article 10 : Freedom of expression
3. Types of Right
3.1 Is the right an absolute right?
3.1.1 No, the right to education, the prohibition of discrimination and freedom of expression are not absolute rights.
3.2 Is the right a limited right?
3.2.1 Yes, the right to education, the prohibition of discrimination and freedom of expression are limited rights.
3.3 Will the right be limited only to the extent set out in the relevant Article of the Convention?
3.3.1 No.
3.3.1.1.1 The right to education [Protocol 1, Article 2] has been limited by the United Kingdom (and therefore necessarily by the Scottish Parliament as a devolved rather than sovereign institution) “ to the extent that this compatible with the need to provide an efficient education and the need to avoid unreasonable public expenditure”.
3.3.1.1.2 The ’efficient’ provision of education has been and is expected to continue to be achieved through the ‘shared facilities’ aspect of the Crichton Campus. However, the continued efficiency of such educational provision may be affected by an increase in the ‘unit cost’ of such shared facilities once University of Glasgow ceases to have an undergraduate presence on the Crichton Campus.
3.3.1.1.3 On the ‘need to avoid unreasonable public expenditure’, it is clear that the Scottish Funding Council do not consider that the level of public expenditure granted to the University of Glasgow for the provision of education on the Crichton campus is ‘unreasonable’. The Scottish Funding Council consider the level of such public expenditure to be sufficient for the University of Glasgow to continue to provide efficient education at the Crichton campus.
3.3.1.1.4 . Therefore the right to education in this case will not be limited only to the extent set out in the relevant Article of the Convention.
3.3.1.2. Article 14: Prohibition of discrimination. For Article 14 to apply, it needs the support of another Convention right. For example :
It might not be a breach of a person’s right to education if the state does not provide a particular kind of teaching. But if the state provides it for boys but not for girls, or for people who speak only a particular language but not another, this could be discrimination in relation to the right to education. If this were the case, the people affected would rely on their rights under Article 14 (non - discrimination) taken with Protocol 1, Article 2 (education).
3.3.1.2.1 In this case, the supporting right [ under Protocol 1, Article 2] would be for a person ‘not to be denied access to the existing educational system’ and the discrimination aspect would come into force for a person who for a substantial reason [ e.g. parental or other care-related responsibilities, physical or mental disability, economic necessity] could only access this existing educational provision via the University of Glasgow’s presence within Dumfries and Galloway but would, for example, if a resident in the Highland region, still be able to access equivalent or similar educational provision.
3.3.1.3 Article 10: Freedom of expression. This right would be a supporting right to that of Article 14. In particular the importance given to continuing access within Dumfries and Galloway to education in the Liberal Arts as expressed by Members of the Scottish Parliament during their Debate on Motion S2M-5444 [which considered the University of Glasgow’s decision to cease admitting undergraduate students to their Crichton campus facility] held on the 15th February 2007.
3.3.1.3.1.From Article 10: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
3.3.1.3.2 Although this particular right; the ’freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’ may seem the least and most insignificant of the ‘human rights’ in question, within this particular context it is in fact the most important and significant. The context here is the intimate association between the Scottish Enlightenment and the Liberal Arts as taught to the University of Glasgow’s Crichton campus students :
MA Liberal Arts http://www.cc.gla.ac.uk:443/layer2/ma_description.htm
Introduced in 1999, the distinctive flexible MA degree has been designed to produce well-educated graduates able to extend and apply their knowledge as they face the challenges of the 21st century. Students follow a core programme of courses designed to promote active citizenship, creative and critical thinking. The core courses are the foundation for all subsequent study in all of the degree designations.
3.3.1.3.3 The enlightened person accepts the word of authority not as something to which he [she] has to say ‘yes, but as something which it is appropriate to subject to critical analysis. The question for the enlightened person therefore is whether the word of authority can stand up to cross-examination before the tribunal of reason. If it can then it is accepted because it is sanctioned not by authority but by reason. If on the other hand it cannot withstand the cross-examination then it has to be discarded, however exalted the source. The Enlightenment was an age of criticism in the sense of ‘critical analysis’ or ‘critical reflection’. It was through critical reflection that people were to gain their freedom -I do not say ‘secure’ it, because our freedom is never secure. Any position gained from the dead hand of authority has to be defended. Without an effective holding operation the position is lost. Alexander Broadie: The Scottish Enlightenment: Birlinn: Edinburgh: 2001: pages 19/21
3.3.2 That the rights in question are qualified rather than limited rights under the Convention.
4. The right is a qualified right
4.1 Is there a legal basis for the restriction?
4.1.1 No. The denial of the right to education, which involves discrimination and a restriction on freedom of expression, has no legal basis within the terms of the Convention. It is results from a funding dispute between the University of Glasgow and the Scottish Funding Council.
4.2. Does the restriction have a legitimate aim?
4.2.1 No, the restriction does not have a legitimate aim within the terms of the Convention. Its aim - to provide a cost-saving for the University of Glasgow following the alleged failure of the Scottish Funding Council to provide sufficient funds to maintain their presence in Dumfries and Galloway - does not fall within the ‘exclusion’ clauses of the Convention.
4.3 Is the restriction necessary within a democratic society?
4.3.1 No, it is not. Although the principle of ‘academic freedom’ has been invoked by the Scottish Executive as grounds for non-intervention in the decision by the University of Glasgow to cease admitting undergraduate students to their Crichton campus, the University of Glasgow themselves have argued that this is an economic rather than academic decision. Indeed, to the extent that opposition to the restriction on the right to education, to freedom from discrimination and to freedom of expression involved in this case was expressed by Members of the Scottish Parliament representing altogether the two constituencies directly affected , the south of Scotland , central Scotland (Lothians) and five political parties in the 15th February Debate, it could be argued that the restriction is unnecessary within a democratic society.
4.4 Are you sure you are not using a sledgehammer to crack a nut?
4.4.1 The advice given to public authorities when considering this question is :
A policy/decision should be no more restrictive than it needs to be in order to achieve its objective. This is called ‘proportionality’. For example, a blanket application of a policy/decision to everyone concerned will often be considered disproportionate, as it does not take into account individual circumstances, and the individual rights of each person affected. It will have the effect of imposing restrictions in circumstances where they are not really needed.
Look at the objectives you identified at paragraph one of this section, and box 1 of the flowchart, and ask yourself whether the objectives can be achieved only by the policy/decision you are proposing. Ask yourself if there is any other less restrictive way of achieving the desired outcome. If there is another less restrictive way of achieving the desired outcome, but you decide not to adopt it, you will need to be prepared to say why you have made that choice. Your reasons will have to be good ones.
4.4.1.1 Since the stated reason for the decision made by the University of Glasgow not to admit any undergraduate students to the Crichton campus in September this year is their claim that that Scottish Funding Council has declined to provide the public funding support necessary , and since the Scottish Funding Council deny this claim, one must ask - have the individual circumstances and the individual rights of each person affected been taken into account?
4.4.1.2 If, as seems to be the case the answer is ‘No’, then this would seem to be a case of a ‘disproportionate’ or ‘blanket application of a policy/ decision to everyone concerned.. .imposing restrictions in circumstances where they are not really needed’.
4.4.2. Could another, less restrictive policy/ decision have achieved the University of Glasgow’s stated objective - to sustain our provision at Crichton on a break-even basis?
4.4.2.1 Yes, a less restrictive policy/ decision could have done so. Such a policy/decision would also have been fully compliant with the Convention. What the University of Glasgow could have done is to restrict September 2007 undergraduate admissions to the ‘fully funded’ places allocated to them by the Scottish Funding Council. These places could then have been prioritised on the basis of individual circumstances/ need, thus respecting individual rights under the Convention.
4.4.2.2 However, the University of Glasgow chose not to adopt this less restrictive decision/policy. Nor has the Scottish Funding Council required the University of Glasgow to adopt this less restrictive decision/ policy.
4.2.2.3 Therefore, both the University of Glasgow and the Scottish Funding Council appear to be non-compliant with the European Human Rights Convention in this case.
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