Like many people across Scotland, we were concerned that new restrictions applying to indoor visits with other households in private dwellings had a significant impact on young students who had recently changed their household by virtue of moving to student accommodation.

Our mandate is to the children and young people of Scotland. Because of this, our remit exclusively covers students who:

• are under 18, or  
• are under 21 and care experienced.

Bruce Adamson, the Children and Young People’s Commissioner said that return of university students has given rise to a number of concerns for children and young people.

He said:

“There are a number of human rights set out in the United Nations Convention on the Rights of the Child (UNCRC), which specifically apply to those students under the age of 18 and are mirrored by rights contained within the European Convention on Human Rights (ECHR) including the right to liberty, respect for private and family life and freedom of association and assembly.  

“Throughout the pandemic children and young people have consistently demonstrated their commitment to obey the rules in order to protect public health. We have heard directly from young students left anxious and distressed by the recent confusion on restrictions and it is essential that Scottish Government and University Principals communicate directly and accurately with students with a definitive position on the law, and any revised guidance. Students must be a part of that decision-making process and their voices heard through meaningful participation.

“Introduction of further lockdowns or restrictions on people’s rights must be undertaken through Regulation to ensure proper parliamentary scrutiny.  

“Universities should offer more help to students who are self-isolating, in particular mental health care and medical supplies. Practical support such as the provision of food is also vital.”

Our office has raised a number of concerns with Scottish Government and Universities Scotland, as expressed in our Position Statement below:

Position statement

The remit of the Commissioner’s office is to promote and safeguard the rights of all children up to the age of 18, and care experienced young people up to the age of 21. The return of university students has given rise to a number of concerns for these children and young people which we have raised with the Scottish Government and with Universities Scotland.

The announcement by the First Minister on Tuesday 22 September that new restrictions would apply to indoor visits with other households in private dwellings had a significant impact on students who had recently changed their household by virtue of moving to student accommodation.

The legal changes were announced as coming into effect from Wednesday 23 September. The Scottish Government website was updated to reflect the new regulations, and they were widely reported. However, the regulations giving effect to this change were not in force until Friday 25 September and not publicly available until after they were in force.

In the absence of clear and publicly available regulations, the statements and comments to the media by the Scottish Government, Universities Scotland and individual universities made on 24 and 25 September resulted in students being given the impression that more legal restrictions applied to them than to other people, even though such additional restrictions had no basis in law. 

Disciplinary sanctions were threatened for students, even for those who acted within the law and within existing university disciplinary policies.  

We were concerned about the possible human rights implications for children and young people. These include rights set out in the United Nations Convention on the Rights of the Child (UNCRC), which specifically apply to those students under the age of 18 and are mirrored by rights contained within the European Convention on Human Rights (ECHR). 

For example, the right to liberty and security (Article 5 ECHR), respect for private and family life (Articles 8 ECHR and 16 UNCRC), freedom of association and assembly (Articles 11 ECHR and 15 UNCRC), rights to rest and leisure (Article 31 UNCRC); and rights to health, including mental health support (Article 24 UNCRC). Children and young people also have the right to participate in decision making (Article 12 UNCRC) and any decisions made should be in their best interests (Article 3 UNCRC).  

Whilst international human rights frameworks recognise the need for flexibility in a time of national emergency, any interference with rights must be lawful, necessary, proportionate and time limited. Throughout the pandemic children and young people have consistently demonstrated their commitment to obey the rules in order to protect public health. They should be part of the decision making process, and once decisions are made it is essential that there is clear and consistent communication of what the rules are.   

It is now apparent that the statement from Universities Scotland issued on Thursday 24th September did not properly communicate the intention of Ministers or Universities. Nor did it clearly communicate the legal situation. Although students were asked on a voluntary basis to go beyond what was expected of the rest of the population, there was no change in law that required it. In particular: 

•  the request to refrain from visiting hospitality venues over the weekend was just that – a request. No disciplinary or legal sanctions were, or could be, attached to a decision not to comply.  
  
•  the statement that students were prohibited from socialising outwith their households was simply a reference to the existing regulations that prohibit gatherings, not an attempt to prevent students from meeting outdoors in line with the law.
  
• the statement that students would be required to download the Protect Scotland app was  inaccurate. No such requirement was proposed.   

This resulted in students being left confused, and in some cases anxious and distressed. We further note that a number of the communications subsequently issued to students by university principals were inconsistent and in some cases provided inaccurate information about the possibility of disciplinary sanctions. 

The situation is now becoming clearer and we welcome the release over the weekend of FAQs by Universities Scotland confirming that there are no additional legal restrictions on students. We also welcome new guidance from the Scottish Government setting out the circumstances in which students can return home if they need to, but consider that there are still some areas that need clarified.   

The guidance refers to the Coronavirus Regulations, which provide for students to visit other households if they have a “reasonable excuse,” but do not provide a list of reasonable excuses. The Regulations define households as “a group of persons living together in the same place as a family or other unit (whether or not related) and who have the place as their only or main residence.” It is not clear how this definition applies to student accommodation and how it is being interpreted.

We remain concerned about the lasting impact on vulnerable groups of students who have been given the impression that they would be sanctioned if they left their accommodation to seek support, visit their families or meet with friends. All steps must now be taken to ensure that the correct information and support reaches those students and that the law is set out clearly.   

In particular: 

•  Scottish Government and University Principals must communicate directly and accurately with a definitive position on the law, and any revised guidance
  
•  Any further decision making on law, policy or practice must involve the direct and meaningful participation of children and young people
  
•  The Scottish Government should amend the Coronavirus Regulations to provide a non-exhaustive list of “reasonable excuses” so that students can be clear on their rights to return home or to visit
  
•  The Scottish Government should provide guidance to universities and students on the definitions of “household” and “extended households” for the purposes of temporary student accommodation, and amend the Regulations if necessary to provide more clarity
  
• Universities should ensure that increased support is provided for any student who needs to self-isolate or return to live with parents/carers, and to mitigate against any negative financial and wellbeing impacts. This includes provision of food, financial or mental health support and medical supplies
  
• The introduction of lockdowns or restrictions on people’s rights must be undertaken through Regulation, which provides for proper parliamentary scrutiny, for challenge through the courts, and for access to legal aid in the event of a criminal charge
  
• Universities should ensure that where disciplinary policies are applied during the pandemic, enforcement and use of sanctions is a last resort.