“Colleges to be called ‘universities’” – A legal note

The Independent reports that “colleges and institutes of technology will be allowed to describe themselves as a ‘university’ when trying to attract foreign students”. It is not clear what level of legal advice has been taken over this, though the article does mention that changes to the Universities Act, 1997, s 52, will be required.

This misses the more basic point that, however useful degree providers may find it to mislead their potential customers, such practices have rightly been banned for a number of years. By the Consumer Protection Act, 2007, a “trader” (a term which almost certainly includes a degree provider) “shall not engage in a misleading commercial practice” (s 42(1)). This would include “the provision of false information” on a variety of topics, including “the nature, attributes or rights of the trader, including .. the trader’s identity .. or status …” (s 43 (1) and (3)(f)). This category of prohibited activity also includes “marketing or advertising [which] would be likely to cause the average consumer .. to confuse .. a competitor’s product with the trader’s product…” (s 44(1)). There’s more, but you get the general idea.

The government has the legal power to grant further Irish institutions university status (under Universities Act, 1997, s 9), but it has no intention of doing so, though at some point in the future (carefully left undefined, and almost certainly beyond the lifetime of the current government) a status of “technological university” may be conferred on a handful of institutions that have dutifully jumped over whatever hurdles the government has chosen to put in its way. That being so, it seems a clear breach of consumer protection law to use the title in relation to programmes not run by one of the seven universities.

There is a worrying disconnect between ministerial utterances, and what the minister can legally do. The minister is treating the “university” label as within his personal gift, to be conferred or withheld as each day’s political circumstances dictate. But the reality is not like that. The title has been limited not by some technicality but by very deliberate political decision. It is safeguarded by law, in ways intended to maintain its force and credibility, nationally and internationally. There are arguments – many of them good ones – for allowing the term to be used more widely – but they have been rejected by the current government, who must therefore stick with the legal consequences of their decision. There is no right to mislead consumers, and an entitlement to do so is not in the minister’s gift.

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