UPDATED - On 13 April 2021 the government announced that students on all university courses in England will return "no earlier than 17 May", despite ONS research finding there is minimal evidence of COVID-19 being spread in face-to-face teaching settings such as classrooms and lecture theatres.
Universities UK's letter to the Prime Minister on student returns on 6 April raised some important questions about the government’s decision-making during the coronavirus crisis. The letter challenged the government’s failure to publish its plans for the return of the remaining students to campus, even as shops, spas and swimming pools were allowed to reopen, and in contrast to schools and FE colleges where the government has emphasised the importance to the individual and the social utility of encouraging a return to study as normal.
The government’s subsequent announcement that the return date will be “no earlier than 17 May” has done little to answer these questions.
Why are university students being treated differently?
The original justification for treating university students differently to other learners was “to reduce transmission by minimising the number of students who return to university and who access university facilities” - Students returning to, and starting, higher education in Spring Term 2021 (publishing.service.gov.uk). However, the latest ONS survey (published 7 April) shows three-quarters of students (76%) are already living at the same address as they were at the start of the autumn term 2020.
As the UUK letter makes clear, universities have invested significant time and resource in ensuring that university facilities can be used safely in accordance with all recommended public health measures. Further, the ONS has found “minimal evidence of transmission happening in face-to-face learning environments, such as lecture theatres.” So sanctioning a return to studies now would (a) no longer involve mass migration; (b) take place in the context of an environment where every recommended safety measure has been implemented; and (c) involve activities where there is minimal evidence of transmission.
The government may of course be relying on some other, hitherto undisclosed, justification for continuing the restriction, but if so, it should set it out so that those affected can understand it.
What legal principles should government decision-making during a pandemic comply with?
As many have commented, the coronavirus crisis has permitted the government to impose almost unprecedented levels of restriction on the ability of citizens to go about their daily lives. From a legal perspective, the decision to impose these restrictions must satisfy certain criteria even in a public health emergency.
The expectations are, broadly, as follows:
- Proportionality: the restrictions need to go no further than is necessary to achieve a satisfactory response to the threat to public health.
- Timeliness: restrictions need to be lifted as soon as the circumstances that necessitated their introduction have passed.
- Transparency: the rationale for the restrictions should be comprehensible and/or capable of explanation to those affected by them, and should reflect the prevailing and relevant circumstances of the specific case.
- Fairness: the restrictions should not disproportionately adversely affect particular groups without good cause.
Has the government met these standards?
For the reasons set out above, when judged against these expectations the government has failed to make the case in relation to its continued refusal to allow a return to study. It has thus left universities and their students bearing a disproportionate and unjustified brunt of disruption in the fight against the virus. Even within the student population, there has been inequitable impact: some students have been allowed access to facilities and face-to-face learning opportunities, whilst others may now reach the end of the academic year without any further access.
There may have been a justification for this differential treatment at one stage, but as the roadmap to ending lockdown has been rolled out, that justification becomes harder and harder to articulate. The government has recognised the impact that the pandemic has had on the mental health of students (see e.g. Letter to students from Michelle Donelan MP, Minister of State for Universities) and therefore should also recognise the need to support the return to campus study as soon as possible.
Universities and the vast majority of students have willingly and diligently respected government requirements and restrictions because they were necessary to tackle the pandemic. The failure to respect the basic legal principles of good decision-making and to lift these restrictions in a timely way could, unfortunately, lead to some of this support being withdrawn. It’s time for government to fulfil its side of the bargain.
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