"We cannot part with this case without paying tribute to the claimants\' legal advisers who although greatly outnumbered by the Secretary of State\'s legal team have persisted with their requests for disclosure skilfully and with commendable determination." (per Lord Justice Scott-Baker in  R (on the application of Al-Sweady and Others) v The Secretary of State for Defence [2009] EWHC 2387 (Admin)).
Lord Justice Scott-Baker
 
 

Legal Challenge To The Rise In Tuition Fees To Be Heard 1 And 2 November 2011 At The Royal Courts Of Justice

A claim brought by two sixth form students, Callum Hurley (age 17) and Katy Moore (age 17), challenging the lawfulness of the Coalition Government’s policy of increasing the maximum amount of tuition fees in England to £9,000 per annum is to be heard by two judges in the High Court on 1 and 2 November 2011.[1]  The hearing will commence at 10:30am on 1 November.  If it succeeds, Vince Cable MP, Secretary of State for Business, Innovation and Skills, will be forced back to the drawing board.

 

The Claimants, who are represented by Public Interest Lawyers, lodged their claim on 18 March 2011.  They argue that the regulations raising the maximum fee to £9,000 breaches the right to education protected by the Human Rights Act 1999.  The European Court of Human Rights has previously indicated that where a state sets up higher education institutions, the right of access must be “effective,” and not theoretical or illusory.  The Claimants argue that the fear of debt in excess of £50,000 will render the right of access illusory, particularly amongst students from poorer backgrounds who are known to be more averse to debt.  Moreover, the right to education must be read in light of the International Covenant on Economic, Social and Cultural Rights, to which the UK is a signatory, which requires states to work progressively towards free higher education.  The Claimants also argue that, in the rush of the Secretary of State to pass the regulations, he did not discharge his duty to give due regard to issues of equality.

 

On 23 June 2011, Mr Justice Collins granted permission for the Claimants’ claim to proceed to a full hearing.  Mr Justice Collins said it was “arguable” that “there has been insufficient regard paid to the question of participation and to the likelihood (a possibility recognised by the Defendant [the Secretary of State for Business, Innovation and Skills]) that fewer low income potential students will want to take the financial risk.”  He said: “The equality duty depends on an [Equality Impact Assessment] said to be ‘interim’ – that does not inculcate confidence in its reliability.” 

 

The claim seeks the repeal of the Higher Education (Higher Amount) Regulations 2010 and an assurance that a proper equality impact assessment is made before any replacement policy is formulated.

 

Callum Hurley and Katy Moore will be making a statement outside the Royal Courts of Justice at 9:45 am on 1 November 2011.



[1] Reflecting the seriousness of the issues, the case will be heard by a Court of Appeal Judge sitting with a High Court Judge.


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