Those who sit on university panels will often insist they are “not courts of law.” And yet, the hearings they conduct invariably follow a quasi-legal procedure involving evidence, questioning and argument. Nor is it not uncommon for complex legal issues to arise, for example, as to; the limits of academic judgement; the statutory duty to make reasonable adjustments for the benefit of disabled students; or the admissibility of evidence. In view of the above - not to mention the huge amount that so often hangs on the outcome - it is no surprise that many students wish to engage legal representation. It is also somewhat disappointing that many institutions seek to prohibit the attendance of lawyers, insisting that the student engages the services of a ‘friend’ or ‘student union representative’ instead, regardless of whether these people are, in practice, either available or suitably equipped to provide the necessary support. One of the most common questions I get asked is whether a student is entitled to bring a lawyer to an internal hearing and what can be done if a university refuses permission to do so. The truth is there is no straightforward answer, the law being somewhat grey. The bad news is that there is not a general, automatic right for a student to be accompanied by a lawyer. The good news is that, in the right circumstances, the law may require a university to permit legal representation. This right can arise in a number of ways. Express Right A university is obliged to follow its own policies and procedures and where these state that a student is entitled to bring a lawyer to a hearing, the university cannot go back on this. In some cases, the wording will be ambiguous as to whether an attendee is allowed to be legally qualified, using a term such as ‘representative’ or ‘supporter.’ In such cases, the better view is that consumer protection legislation requires the ambiguity to be construed in favour of the student with the effect that a lawyer may attend. You could also point out that, just because the rules say a student ‘may be accompanied’ by a student representative does not necessarily mean they may only be accompanied by these people and that lawyers are banned. Implied Right In an employment context, it has on occasions been held that by denying an employee the right to be accompanied by his/her person of choice, the employer was in breach of an implied term of trust and confidence, see for example the decision in Stevens v Birmingham 2015. That case concerned a university lecturer who had few friends and who was unable to identify a suitable colleague to accompany him. On the right facts it might be argued that prohibiting the attendance of a legal advisor represents a breach of the concept of fairness that is typically implied into the contract between student and university. The Equality Act 2010 If a student is disabled, it may be a reasonable adjustment to allow them to be accompanied by someone other than a colleague of union representative and theoretically, this could be a lawyer. You will need to explain why the disability in questions makes legal representation appropriate. Similar considerations apply in respect of international students whose first language is not English and who may have greater difficulty grappling with the relevant concepts and procedures than home students. Having a skilled and experienced advocate may be what is required in order to overcome disadvantage and level the playing field. Human Rights It may be possible to secure the right to legal representation by establishing that the hearing is covered by Article 6 of the European Convention on Human Rights. This states that, where ‘civil rights and obligations’ are being determined, everyone is entitled to a fair hearing. The question of what is covered by ‘civil rights and obligations’ is contentious. However, In R (on the application of G) v Governors of X School and Y City Council the Supreme Court decided that a person should have the right to legal representation where their ability to practice their chosen profession is at stake. This would suggest that Fitness to Practise proceedings are covered by Article 6. It could also arguably apply where a student is in the final stages of an expensive, vocational degree such as law or medicine and one possible result of the hearing is that he or she will be unable to complete the course. Other situations that might be covered are where a student is threatened with expulsion with the effect that he or she will have to leave the country or, for financial or practical reasons, be unlikely to have another chance to access higher education and obtain a degree. Note though that, even where Article 6 applies, it does not automatically follow that there will be a right to legal representation, instead it will be a question of what procedural protection is proportionate. It is also important to remember that Human Rights arguments are only likely to be useful when dealing with publically funded universities and that they cannot be enforced directly against provide providers. Natural Justice Although arguments about the right to be legally represented have typically focussed on Article 6, it is not necessarily the case that just because Article 6 does not apply, there is no right to bring a lawyer. In England at least, the right to legal representation was recognised long before the European Convention on Human Rights came into being and on the right facts, the rules of natural justice, which are implied into the student–university contract, may require a student to be allowed legal representation, especially where the matter involves legal issues or where the university has obtained its own legal advice or representation. What to do If you wish to be legally represented in Fitness to Practise proceedings, at an Academic Appeal hearing or before some of other form of internal panel, you would be well advised to write to the chair of the panel, making a formal request for permission to bring a legal representative and explaining why a lawyer is required on this occasion. The chair will then be required to consider the request on its own merits, to take into account all relevant factors and to make a reasonable decision. The chair is also under a duty to provide reasons should he or she decide to reject your request. The university cannot simply rely on a blanket policy of refusing legal representation. A decision to refuse legal representation may be challengeable by way of judicial review. Finally, where it has been agreed that a legal representative may attend, be sure to seek confirmation that he or she will be allowed to ask questions, address the panel and generally participate in the hearing. It is surprisingly common for panels to admit a lawyer only to then prohibit him/her from speaking so much as a word! Robin Jacobs Barrister
Legal Representation at University Hearings – What Rights Does a Student Have?
26 February 2019 by Robin Jacobs