The Queen on the Application of Hurley and Moore v Secretary of Sate for Business Innovation and Skills [2012] EWHC 201 (17 February 2012)

The England and Wales High Court has ruled that a decision to raise university tuition fees did not breach the right to education under the European Convention on Human Rights (Article 2 of Protocol 1), even when read in conjunction with the right to non-discrimination (Article 14).

Facts

The claim was brought by two teenagers, Callum Hurly and Katy Moore, who planned to enrol in university after completing high school. The claimants argued that the steep fee increase would have a “chilling effect” on the ability of those from disadvantaged social backgrounds to take up university places.

The complaint was advanced on the basis that, while the charging of university tuition fees was not fundamentally inconsistent with human rights, the decision to significantly increase fees would limit the potential students’ rights to education and equality in a manner that was not reasonable, necessary or proportionate.

On the other hand, the Secretary of State for Business Innovation and Skills argued that the decision to raise fees was combined with a range of other measures which ensured a real and effective right to access education in the UK. Those measures included low-cost student loans, scholarships and grants for students from disadvantaged backgrounds, and measures requiring universities to improve access to higher education from groups that are traditionally under-represented.

Decision

No breach of international human rights

The Court acknowledged that Article 2 of Protocol 1 does not require member states to provide tertiary education. However, if a member state chooses to establish a university system then it must provide an effective right of access. Moreover, the Court agreed that such access must be provided without discrimination on any ground including a person’s low socio-economic status.

Weighing up the evidence before it, the Court did not accept that students of low socio-economic status would experience discrimination or be effectively deprived of higher education as a consequence of the government’s new policy.

In that respect, Lord Justice Elias said:

There can be no doubt that a steep increase in fees alone would discourage many from going to university and would in particular be likely to have a disproportionate impact on the poorer sections of the community. However, the availability of loans mitigates that effect.

Further, given the existence of the various measures which are directed specifically at increasing university access to poorer students, I do not think that at this stage it is sufficiently clear that as a group they will be disadvantaged under the new scheme.

The Court found that the decision to increase fees was a reasonable and proportionate means of achieving a legitimate objective. Lord Justice Elias commented that, in terms of justifying the restriction, “significant leeway must be given to the democratically accountable Secretary of State as to how the objective of providing sustainable and quality education can be best secured”.

Therefore, the Court held that the Secretary had not breached the complainants’ human rights under the European Convention.

Breach of domestic, public sector equality duties

Although the complainants were unsuccessful in their complaint under the European Convention of Human Rights, they successfully argued that the government had failed to discharge its duties, under domestic anti-discrimination laws, to consider the possible impacts of its decision on equality.

This aspect of the decision was concerned with the duty on public authorities to have due regard to the need to promote equality of opportunity for certain groups. At the material time, those duties were found under various anti-discrimination laws, but later incorporated into the Equality Act 2010 (UK). The Court held that the duty to have “due regard” to equality required the government to “ensure that there has been a proper and conscientious focus on the statutory criteria” surrounding equality.

While the Secretary had given due regard to the impact of raising tuition fees, the Court found that he had failed to meet this requirement in respect of some of the other measures that were introduced. The Court elected to make a declaration that the Secretary had failed to meet his public sector equality duties, but did not overturn the regulations on that basis.

The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2012/201.html

Emma Purdue is a lawyer at Lander & Rogers.