Hurley and Moore v Secretary of State for Business, Innovation and Skills  EWHC 201- read judgment
This judgment, the latest in an expanding list of decisions on challenges to the Coalition government’s spending cuts, is an interesting example of judicial restraint and deference to the government on issues of macro-policy, at a time when the extent of judicial intervention into political decision-making is the subject of much debate in the legal profession and academia, thanks to Lord Sumption’s FA Mann Lecture on the subject late last year (see our post) and its recent rebuttal by Sir Stephen Sedley (discussed here).
The High Court (Elias LJ and King J) dismissed an application by two sixth form students for a quashing order against the regulations implementing the Government’s decision to raise the statutory cap on University tuition fees to £6,000 per year generally and £9,000 per year for qualifying courses. It did, however, grant a declaration that in reaching that decision, the Secretary of State for Business, Innovation and Skills had failed fully to comply with his public sector equality duties.
No breach of the Human Rights Convention
The claimants’ primary argument was that the new fee limit would have a chilling effect on the ability of those from disadvantaged social backgrounds to take up university places. For this reason, they contended, the decision to increase the fee cap breached the right to education conferred by Article 2 of Protocol 1 to the European Convention on Human Rights, or alternatively breached Article 2 Protocol 1 read with Article 14 of the Convention.
The Court was not persuaded.
Delivering the main judgment of the Court with which King J agreed, Elias LJ recalled the findings of Lord Browne’s 2010 review into University funding which formed the basis of the new scheme, and noted the various provisions in the scheme which were designed to widen access, including loans, grants and scholarships. As regards Article 2 Protocol 1, his lordship held that absent discrimination, it would take a very exceptional case before it could be said that the charging of fees in itself violates the education right, at least where loans are available to those who need them.
Of particular note in this part of the Court’s judgment is its dismissal of the claimants’ reliance on Article 13(2)(c) of the International Covenant on Economic Social and Cultural Rights, which provides that higher education shall be made equally accessible to all by every appropriate means and in particular by the progressive introduction of free education. It was in fact noted that the Committee on Economic, Social and Cultural Rights, which monitors compliance with the Convention, has expressed concern that the introduction of tuition fees in the UK appears to be inconsistent with the Covenant. Elias LJ, whilst acknowledging that the Convent must be taken into consideration in the appropriate case, held that Article 13(2)(c) of the Convent was not binding and that in any event, the progressive introduction of education was not an absolute obligation but depended on the resources available.
Impact “all too uncertain”
As regards the alleged breach of Article 2 Protocol 2 read with Article 14, the Court held that the claimants had failed to show disparate impact which would be required for the Article 14 discrimination argument to get off the ground. Elias LJ considered it wrong to find such impact as he did not think it was sufficiently clear that poorer students would be disadvantaged by the new scheme, given the other aspects of the scheme which enhance access: “at this stage it is all too uncertain”. His lordship went on, however, to add that even if there was disparate impact, the new scheme including the higher cap was justified. In so finding, the Court paid:
“… particular regard to the fact that this is an area of macro‐economic judgment, where decisions have to be taken about prioritising public resources. If charging fees of this magnitude is unlawful, public resources will have to be provided, at the expense of other competing and pressing interests. Moreover, there is an inevitable tension between widening higher education so as to catch everyone who can benefit from it whilst maintaining the highest standards, and funding that increase. In my judgment, significant leeway must be given to the democratically accountable Secretary of State as to how the objective of providing sustainable and quality higher education can be best secured.” (para 63)
The equality duties not fully, but substantially, complied with
The claimants’ second ground of challenge was that the decision to increase the fee cap was made in breach of the public sector equality duties, which broadly require public authorities to give due regard, in carrying out their functions, to the need to promote equality of opportunity for protected groups.
The Court agreed that the Secretary of State, in assessing the impact of the scheme on people within the lower socio-economic groups in a generalised way, had not sufficiently focused on the details of his equality duties. However, Elias LJ concluded her judgment by noting that the duties had been substantially complied with and that the decision had been the subject of an appropriate analysis. A quashing order was unjustified, he said, because of this and the fact that “all the parties affected by these decisions – Government, universities and students – have been making plans on the assumption that the fees would be charged. It would cause administrative chaos, and would inevitably have significant economic implications, if the regulations were now to be quashed.” (para 99)
It would take a brave person indeed to envy the Court its task in a case such as this. The government’s decision to increase the tuition fee cap has been a deeply controversial and polarising one, culminating as it did in a string of occasionally violent mass protests. This, in the context of the financial crisis, makes for an extremely difficult factual matrix within which to pronounce on legal rights and duties.
In reaching its decision, the Court was clearly very mindful of that factual matrix and the implications of its judgment. Its concern to ensure that it did not stray into the domain of policy-making is, Lord Sumption reminds us, appropriate and, Sir Stephen adds, customary. Especially so, one might add, in a case and at a time such as this. One does, however, come away from the judgment with a renewed sense that the extent to which an analysis of legal rights and duties should be framed in a consideration of political implications and deference to the executive is an issue which is worthy of much reflection.
More practically, the decision is line with the cautious approach that has generally characterised decisions on challenges to the Government’s spending cuts (see our blogs on these). It demonstrates that in the absence of clear violations, such challenges would continue to face an uphill struggle.
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