This is the first in the series of articles, in which Council of Europe experts reflect on the consequences of the COVID-19 crisis. The articles are intended to be thought-provoking, presenting different points of views from different angles. The first article by Prof Dr Dennis Farrington discusses the legal perspective of the consequences of COVID-19. Prof Dr Dennis Farrington is the President of the Board of the South East European University, North Macedonia and a Visiting Fellow in the Oxford Centre for Higher Education Policy Studies, University of Oxford, United Kingdom. Dr Farrington has advised the Council of Europe on higher education legislation and reform since 1994.

The consequences of COVID-19 on the education system: the legal perspective

In response to the Covid-19 pandemic, from mid-March 2020 premises of the majority of educational institutions in Europe were closed to staff, students and pupils, teaching and assessment being switched, at least temporarily and with varying success, to online platforms. This result was usually achieved through public health legislation. In most member States, publicly-funded schools are generally under national or local government control, with relatively little autonomy. But there has been unprecedented intervention in the public interest in different aspects of the autonomy of higher education institutions (HEIs): organisational, financial or academic, and from admission to graduation. Normal processes of accreditation, assurance and evaluation which are key to maintaining and enhancing the quality of higher education, were put on hold or severely attenuated. Although by June 2020 some restrictions were being eased, there are several legal issues arising from the crisis.

In my 26 years’ experience of the development of laws on education, none of them has contemplated a similar situation. In particular some laws on higher education (LHEs) are highly regulatory and inflexible, despite the advantages of a flexible framework LHE long advocated by Council of Europe experts, where the state is responsible only for fundamental principles such as autonomy, academic freedom, quality assurance and finance. The extent to which publicly-funded HEIs are able to act independently within the emergency provisions depends on the extent of their autonomy, detailed for some member States by the European Universities Association (EUA) ‘Autonomy Scorecard.’ Some HEIs are technically or in practice unable to respond in innovative ways to the emergency due to the constraints of state regulation. Taking two countries familiar to me as examples, in England the regulator (Office for Students) has only intervened to prevent HEIs engaging in ‘unfair’ competition for students in admissions for academic year 2020/21 whereas in North Macedonia the LHE imposes many constraints. The emergency conditions have brought into focus the need for member States to review their LHE so that it is flexible enough to cope with any future pandemic or similar event.

The effects on pupils and students, particularly those preparing for disrupted state examinations, and those studying at all levels of higher education are unprecedented in modern peacetime. Some member States have issued regulations to protect students from any detriment or harm due to the pandemic, arranging new forms of assessment at the point of transition from secondary to higher education, and in adapting to new ways of working including for example the detailed rules about ‘stages’ adopted in France. For those leaving school and due to enter higher education in 2020, admissions procedures have been disrupted; some leading HEIs have stated that traditional lectures will only be delivered online, with limited safe physical interaction in small groups, of particular significance in laboratory-based subjects. Higher education students in 2020/21 may miss out on extracurricular social interaction which is a crucial part of the traditional experience. Most HEIs, following specific objectives expressed in LHEs, normally provide opportunities for students coming from a restricted school environment to develop their personalities, independence of thought and responsibilities as citizens of democratic societies, work together with peers from different cultural and socio-economic backgrounds, and so develop tolerance and understanding, apart from simply having a good time with their peer group. Without direct exposure to debate and discussion in an organised way, higher education becomes simply transmission of knowledge. Where HEIs have a sufficient degree of autonomy within the law, finding innovative ways to overcome the social limitations will be a very important issue.

In the publicly-financed HEIs, the effect of reduced participation will be seen in income streams, impacting on HEIs in different ways, through reduced state subsidies, tuition fees, accommodation charges and commercial income. HEIs which have sufficient financial autonomy and operate on an essentially commercial basis will adopt strategies to save costs, deferring non-critical purchases, reducing non-academic expenses, capital and recurrent expenditure, limiting staff recruitment with potential redundancies, to avoid or reduce any call on reserves. As in any business, issues arise in contractual relationships with suppliers and possibilities of breaching covenants in commercial borrowing. One damaging effect, at least for 2020/21, on HEIs will be seen in member States where there are significant tuition fees, both for domestic students and ‘overseas students’ who may not attend. A question which also arises when there are prolonged periods of industrial action, is at what level HEIs will charge fees when services are restricted. Where a contractual relationship exists between HEI and student, potentially the unavailability of services through the impact of the emergency measures will produce a situation of force majeure rendering the contract undeliverable, so undermining the basis for charging full fees. This depends on the law of domicile of the contract, i.e. normally national law of the country concerned. The impact of reduced participation on non-public HEIs will be even more severe, since the great majority of their income is from tuition fees.

Another issue is the impact of the use of digital platforms on pupil and student behaviour: (i) the educational institution’s general or legal duty of care for the safeguarding and mental health of those who may be isolated from peer contact, particularly those with special educational needs; (ii) how those using online services are protected from cybercriminals – which may also seek to hack institutional systems; (iii) how online assessment can be secured against academic misconduct while protecting the ECHR right to privacy of individuals. The Council of Europe ETINED platform is preparing recommendations to tackle all forms of education fraud: the opportunities for perpetrators of such fraud, and for students to cheat individually or collectively are enhanced when assessments are online. While member States and institutions have developed mechanisms for detecting education fraud in submitted work, until now these have rarely been tested in an examination environment. So employers, professional bodies and other stakeholders in education are concerned that the value of qualifications awarded under emergency conditions may be questionable, an issue addressed for HEIs in guidance from the Quality Assurance Agency (QAA) in the UK, and other agencies in Europe. There may be a need to review whether some traditional examinations can be replaced indefinitely by secure forms of assessment.

There is also an impact on internationalisation of higher education through mobility programmes, notably ERASMUS+, European Solidarity Corps and bilateral agreements. While borders remain fully or partially closed, participation in programmes is suspended, as Covid-19 is considered to be force majeure in respect of project contracts, and appropriate arrangements have been put in place by the European Commission. Once borders are re-opened, potential participants may still be reluctant to travel, and receiving institutions will be cautious about welcoming them, potentially leading to contractual disputes.

Finally, higher education in most countries is closely connected to fundamental and applied research. Closure of premises except for research and development related to the development of relevant tests, treatments and vaccines for Covid-19 has had a serious impact on scientific research requiring laboratories or technical equipment, with legal consequences for funding and human resources, and generally on academic progression based on conference attendance and related issues.

Dennis Farrington

2 June 2020