“We wish to pay tribute to the way the case has been handled by all concerned, albeit after a slow start on the part of the Secretary of State.” (per Lord Justice Richards in R (on the application of Maya Evans) v The Secretary of State for Defence [2010] EWHC 1445 (Admin))

Lord Justice Richards
 
 

Counsel's Advice on Legality of Fee Increases

The following is the full version of the Advice Note prepared for PIL by Rabinder Singh QC and Professor Aileen McColgan on Matrix Chambers.  They advice that the proposed higher education fee increases could be unlawful and therefore vulnerable to judicial review.

IN THE MATTER OF THE INCREASE IN THE MAXIMUM FEES CHARGEABLE BY UNIVERSITIES TO HOME AND EU STUDENTS

___________

ADVICE

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 Introduction and summary

1.            We are asked to advise as to the lawfulness of the Government’s proposal to increase the cap on university fees from £3,290 to £9,000 per annum and to adjust the arrangements for repayment of the loans available to students to cover those fees.

2.            In summary, and for the reasons set out below, we advise that there are serious concerns as to the compatibility of this proposal with the UK’s international legal obligations under, in particular, the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) and the 1950 European Convention on Human Rights (ECHR).  Those concerns do not appear so far to have been given sufficient consideration in Parliament.  If the proposal is enacted, individuals affected by the measure may be able to challenge it in the courts of this country under the Human Rights Act 1998 (HRA).

 Background

3.            The decision to increase the maximum fees chargeable by universities to home and EU students to £9,000 occurred against a background of financial constraints on Government and the report of the Browne Review (October 2010). That Review, which had been established by the previous Government in November 2009, recommended a complete removal of caps on fees, with an increasing levy on each £1,000 of fees to be charged over £6,000 (45% on the first, 50% on the second, 55% on the third etc) in order to create an incentive for universities to keep fees low.

4.            Cuts of 40% to the higher education budget were announced in the spending review on 20 October 2010. The cut to teaching grants is 80%. Vice-Chancellors have suggested, as a result, that they would need to raise fees to £7,000 to cover the shortfall in university funding.

The Decision

5.            The Higher Education Act 2004 provides (in section 24) for limits to be imposed by Regulation on the maximum amounts chargeable by universities.  The Student Fees (Amounts) (England) Regulations 2004 (SI 2004 No 1932), as amended (most recently) by the Student Fees (Amounts) (England) (Amendment) Regulations 2009 (SI 2009 No 3113) currently impose an upper limit on fees of £3,290 per annum.  On 9 December 2010 the House of Commons approved the draft Higher Education (Higher Amount) (England) Regulations 2010. Those Regulations, which will take effect from September 2012, would provide for a maximum fee for home and EU students of £9,000. According to the Department for Business, Innovation and Skills (BIS) website (13 December 2010): 

 

·         “Any university or college will be able to charge a graduate contribution of up to £6,000”;

·         “In exceptional cases, universities will be able to charge higher contributions, up to a limit of £9,000, subject to meeting much tougher conditions on widening participation and fair access. It will be up to the university or college to decide what it charges, including whether it charges at different levels for different courses”;

·         “Any university or college will be able to charge below £6,000. Universities and colleges wanting to charge above £6,000 a year will have to show how they will spend some of the additional income making progress in widening participation and fair access. The Office for Fair Access will be able to apply sanctions in cases where universities do not deliver on the commitments in their access agreements, up to and including withdrawing the right of the university to charge more than £6,000”;

·         “The Government will lend any eligible student the money to pay the university or college for tuition costs… part-time students will be entitled to a loan and no longer forced to pay up-front costs, so long as they are studying for at least 25% of their time”;

·         “A new £150m National Scholarships Programme will be targeted at bright potential students from poor backgrounds. It will guarantee students benefits such as a free first year or foundation year”;

·         “Students from families with incomes of up to £25,000 will be entitled to a more generous student maintenance grant of up to £3,250 and those from families with incomes up to £42,000 [currently £50,000] will be entitled to a partial grant”;

·         “Maintenance loans will be available to all eligible full time students irrespective of income”;

·         “No contributions will be sought from graduates until they are earning over £21,000 [currently £15,000. The threshold will be uprated annually in line with earnings from April 2016]”;

·         “As their earnings rise, so will the rate of interest applied to their loan balance”;

·         “repayment will be 9% of income above £21,000”;

·         “all outstanding repayments will be written off after 30 years”;

·         “For graduates earning below £21,000, there will be no real rate of interest applied to their loan”;

·         “For graduates earning between £21,000 and around £41,000, a real rate of interest will start to be charged, reaching a maximum of RPI plus 3%”;

·         “Above £41,000, graduates will repay at the maximum, rate of RPI plus 3%”.

6.            The BIS website states that “Under our new more progressive repayment system, around a quarter of graduates, those with the lowest lifetime earnings, will pay less than under the current system”, further that:

“The Government is committed to the progressive nature of the repayment system. It will consult on potential early repayment mechanisms so that people on high incomes are not able to unfairly buy themselves out of this progressive system. These mechanisms would need to ensure that graduates on modest incomes who strive to pay their contribution early through regular payments are not penalized”.

 7.            It appears that students who can afford to do so (often those who are from privileged backgrounds) will be able to pay their own university fees up front, thus avoiding the accrual of any debt.

Impact of the Changes

8.            The BBC website (13 December 2010) suggests that:

“Students doing three-year courses charged at £6,000 will leave university with about £30,000 of debt - if fees go up to £9,000, debts will be closer to £38,000. The government says the lowest-earning 25% of graduates will pay less than they currently do. But most others will pay more - the highest earners almost double what they currently pay. The Institute for Fiscal Studies says that, for about half of graduates, the plan is essentially a 9% graduate tax for 30 years, because they will not finish paying off the debt by the 30-year cut-off point. Assuming fees of £7,500 for a three year degree, plus maintenance loans, its modelling shows that the top 10% of graduate earners will clear their debts, on average, in about 15 years. But a middle-earning graduate would need to earn, for example, an average of £48,850 a year for 26 years to pay off their debt. The IFS also says about 10% of graduates will pay back, in total, more than they borrowed.”

9.            The Institute for Fiscal Studies report, Higher Education Reforms: Progressive but Complicated with an Unwelcome Incentive” (December 2010) states that:

·         “By decile of graduate lifetime earnings, the Government’s proposals are more progressive than the current system or that proposed by Lord Browne. The highest earning graduates would pay more on average than both the current system and that proposed by Lord Browne, while lower earning graduates would pay back less”.

·         “By decile of parental income, graduates from the poorest 30% of households would pay back less than under Lord Browne’s proposed system, but more than under the current system. While all graduates from families with incomes above this would pay more, graduates from the 6th and richest (10th) deciles of parental income would pay back the most under the proposed system…” [emphasis added]

·         “The new system … generates perverse incentives – for example the National Scholarship fund provides a financial incentive for universities charging over £6,000 a year to turn away students from poorer backgrounds”.

·         “Universities would be free to charge less than £6,000 a year, but are unlikely to do so as on average, they would need to charge £7,000 a year just to replace the lost income from teaching grants…”

·         “Universities that typically attract a high proportion of FSM students may be dissuaded from charging fees above £6,000 since they will have to meet the cost of a year’s fee for each FSM student, or may turn away applicants from FSM backgrounds to avoid having to meet the cost of a year’s funding, which would be an undesirable implication of the system…”

·         “graduates in the bottom two deciles (on average) are better off than under the current system regardless of how the current repayment threshold is indexed”;

·         “24.4% of graduates would be better off compared to the current system assuming no up-rating of the current £15,000 threshold; while 23.2% would be better off if the current threshold was linked to inflation”;

·         “the Government’s proposed system is more progressive among graduates than both the current system and the one recommended by the Browne Review. The highest earning graduates (those in the top two deciles) would pay more on average than under the proposals made by Lord Browne, while graduates in the other income groups would pay back less”;

·         graduates from the poorest 30% of households … would … pay back significantly more than under the current system … Interestingly, graduates coming from the 6th decile of family income pay back the most, because they receive the highest maintenance loans and are not eligible for any support from the National Scholarship…[emphasis added]”;

·         “graduates in the bottom 20% to 25% of graduate lifetime earnings [will be] better off than under the current system … All other graduates are worse off than under the current system. For around half of graduates, the proposed system is effectively a 30-year graduate tax… these individuals will simply repay 9% of their earnings above the repayment threshold for 30 years before having the rest of their loan written off… under the Government’s proposals, around 10% of graduates would pay back more than they borrowed ...”;

·         there are a number of counter-intuitive (or even perverse) implications resulting from th[e scholarship] scheme. While it does benefit poor students, it does not benefit poor graduates. The lowest earners are not affected by it as most of their debt is written off regardless; the benefit is greatest in the middle of the distribution of lifetime earnings. Most obviously, a student from a low-income background who studies at a university charging £6,000 (or below) will have to borrow the full fee amount for two years (up to £12,000) – while a student at a university charging £6,001 (or more) will have his/her fees covered for two years and will take out fee loans equal to only one year’s fees (a maximum of £9,000). Given the Government’s emphasis on allowing student choice and fee variability to drive the higher education sector, it seems surprising to introduce a distortion into this quasi-market which would potentially make a degree at an elite university cheaper than at a less prestigious one.

10.          It is also significant to note the removal of the Education Maintenance Allowance (EMA), which is paid to 16-18 year olds from the most disadvantaged families to remain in education after the age of 16. A 2007 study for the IFS of EMAS found as follows:

·         “participation [of Black girls] in education at age 17 was increased by 4.7 percentage points as a result of the EMA”;

·         “the effect of the EMA was strongest amongst females in the most deprived 40 percent of neighbourhoods… At age 16, females in the most deprived fifth of neighbourhoods saw a 3.7 percentage point rise in their full-time participation; at age 17, the rise was 3.1 percentage points”;

·         “For males … the impact is strongest amongst those in fairly deprived, but not the most deprived, neighbourhoods. This group saw participation increases of 3.1 percentage points at 16 and 2.3 percentage points at 17”;

·         “at age 16 … those who were on [free school meals] experienced a rise in participation of 3.3 percentage points compared to 2.5 percentage points for those who were not”;

·         “By age 19, Asian females were 4.3 percentage points more likely to have achieved the Level 3 threshold [if in receipt of EMA]. Black females saw even stronger impacts, being 5.2 percentage points more likely to achieve full Level 2 and 6.2 percentage points more likely to achieve full Level 3. Black females in particular also saw strong improvement in A Level point tariffs, of around 20 percent on the base”;

·         “A similar picture emerges for black males, who were significantly more likely to have achieved the Level 2 and 3 thresholds by 18. Indeed, by age 18 their Key Stage 5 tariffs had improved about 10.9 points – this marks an increase of around 27 percent on the base”;

·         “the impacts of the EMA on attainment were concentrated among pupils from the most deprived backgrounds”;

·         “the impacts on Level 2 attainment were concentrated amongst females who were not the highest prior achievers and males with moderate amounts prior achievement. Conversely, the Level 3 impacts were concentrated among higher prior achieving males and females. [1]

Impact of Debt on Participation

11.          In January 2010 the IFS reported that “Reforms to tuition fees and student support had no overall impact on the number of 18 or 19 year olds attending university in England.” It is important to note, however, that the report, which considered the impact of the fees introduced under the 2004 Higher Education Act, found that:

“… grants, fees and loans do impact on participation and in different ways:

A £1000 increase in fees has a negative impact on participation of around 4.4 percentage points (compared to an age 18/19 participation rate of around 1 in 5)

This outweighs the positive impact of a £1000 increase in loans (3.2 percentage points) or grants (2.1 percentage points)

Thus, increasing fees without increasing loans and/or grants by the same value or more, will result in a negative impact on participation”.[2]

12.          The Sutton Trust reported in January 2010 that among the reasons for the significant shortfall in low-income students at “highly-selective universities” was the fact that such students were more likely to try to limit the cost of education by remaining close to home. Pointing out that “entry to selective universities matters because the graduates of these institutions go on to dominate the most sought-after and influential careers and, in general, earn significantly more over their lifetimes” the Trust suggested that the (then proposed) removal of the cap on fees would force students “to make more complex choices about where to study and what to pay”.[3]

13.          In January-April 2010, a survey of 11-16 year olds carried out for the Sutton Trust found that “An increase in tuition fees to £5,000 a year would result in around one in six (17%) pupils saying they are unlikely to go into further education, rising to almost half (46%) if fees were raised to £10,000 a year”.[4]

14.          Research by Callender and Jackson in 2007 found that the prospect of debt impacted differently on students according to social class. According to the researchers:

“those from low social classes are more debt averse than those from other social classes, and are far more likely to be deterred from going to university because of their fear of debt, even after controlling for a wide range of other factors…

debt aversion is a class issue… [It] cannot be subsumed within class-related predispositions toward HE…

a key factor associated with low-income students’ rejection of HE was debt aversion, irrespective of their academic ability and a range of other attitudes toward HE… Thus debt aversion cannot be wished away by policy makers: it is not ‘just a trite way of saying that people do not like borrowing’... It is a ‘real deterrent’, and is just as real as students’ attainment and aspirations.

The Westminster government also maintains that student debt need not be a deterrent because HE is a good investment, while the costs of borrowing through student loans are reasonable and the repayments affordable. In other words, it justifies student loans, and the ensuing debt, by calling upon arguments about the social and economic returns of higher education. It is assumed that students are willing to take out student loans, and to accumulate debts, because they know they will benefit financially and personally from going to university. In addition, it is presumed that students will be able to afford to pay off their loans because of their enhanced human capital. Moreover, the income-contingent nature of loan repayments acts as a safety net for those with low earnings who are unable to meet their repayments. It is supposed that students will view student loans as a type of long-term investment in their future, with minimal financial risks.


Clearly, not all the prospective students in our study were convinced by such ideas and arguments. We have to look to other studies as to why this was the case. Certainly, the social context within which individuals view debt and make such cost/benefit calculations are very important in a socially divided society. One such context is the accumulating evidence that suggests that, with rising student debt, entering higher education is an increasingly risky investment decision for low-income students. Even when such students do take this risk, they are more likely than their more affluent peers to experience financial difficulties while studying … which affects their academic performance and achievement … as well as the chances of completing their courses successfully … They also can expect higher than average debts on graduation … but lower than average wages … Indeed, failure, non-completion, financial hardship and high levels of debt are inversely related to both social class and the risks involved. The greater the risks and the higher the debt, the lower the rates of return on HE: a reality totally contrary to market theory. Hence, contrary to the government’s stance, it could be argued that the fear of debt exhibited by the low-income prospective students in our study was rational. Indeed, we are now asking them to borrow more money than their parents may earn in a year.” [5]


15.          Class overlaps with ethnic origins and other strands of inequality. The Equality and Human Rights Commission’s first Triennial Report, How Fair is Britain?, reports that:

 

·         People of Indian origin are more likely to have low household income than “White people, despite the fact that a low proportion of Indians earn low hourly wages and they have higher than average educational attainments. More than half of Pakistani and Bangladeshi adults live in poverty and are also much less likely than average to have a current account or home contents insurance. Just over a quarter of Pakistani and Bangladeshi adults have formal savings, compared to two-thirds of White people. Asian and Black households are also several times more likely than White British households to live in overcrowded or substandard homes” (460);

·         “White British households have median wealth 15 times that of Bangladeshi households, which can only partly be explained by the younger age profile of the latter group” (461);

·         More generally, the savings rates of white and BME persons differ significantly. 34% and 36% of white women and men are without savings; 52% and 50% of Indian women and men; 48% and 55% of Black women and men; 55% and 53% of “other” women and men and 71% and 74% of Pakistani/ Bangladeshi women and men were without savings in 2007-08 (468);

·         While, when people from an Indian background have savings, “their median value is almost identical to the value of savings held by White people …  adults from other ethnic minority backgrounds tend to have lower value savings than White people. The median value of savings held by Black people is the lowest of all the five groups” (468);

·         “Bangladeshi and Black African groups are positioned very low in the wealth distribution, as are the Pakistani, Black Caribbean and Chinese groups” (470);

·         children living in a household with disability are more likely to live below the 60% median income level (477);

·         “Data from 2003-06 show that 26% of White British children were living in households with below 60% of median household income after housing costs compared to 73% of Bangladeshi children, 57% of Pakistani children, and 57% of Black African children” (478);

·         19% of individuals who live in a household in which the head of the household is White British live below the 60% median income poverty threshold. The Indian population performs slightly worse at 26%, while all other ethnic groups perform much worse – 37% of Black/Black British headed households and 34% of ‘Mixed’ and ‘Other’ ethnic minority headed households have an income below the 60% level. By far the worst performing group is the Bangladeshi/Pakistani population, with 56% of households living below the 60% level, a figure which is possibly partly affected by the larger average household size of Bangladeshi and Pakistani families and lower levels of employment, particularly for women” (480);

·         Disabled people are considerably less likely to have savings than non-disabled people (48% as against 64% aged 35-44, 53% as against 71% in the case of those aged 45-54; 58% and 77% respectively aged 55-50 and 64% and 80% respectively aged 60-64) (467).

16.            A number of conclusions can be drawn from this material. In particular, and regardless of whether the costs of third level education are in fact likely to be worthwhile over a lifetime, those from lower income households are less likely to take that chance. Income overlaps with factors of race/ ethnic origins and disability with the effect that deterrence associated with socio-economic status may impact in particular on those one or both of whose parents is disabled, and on those from particular BME backgrounds which suffer economic disadvantag

 

The Law

17.          The legal framework against which the radical increase in fees chargeable by universities should be evaluated consists in the UK’s treaty obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), the European Social Charter (ESR), the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA). While the ICESCR and ESR are not directly enforceable in the domestic courts, they are binding on the UK as a matter of international law. The ECHR is in effect enforceable in the domestic courts under the HRA. Further, there is some scope for enforcement of ICESCR and ESR standards through the interpretation of the ECHR and thence through domestic law. This is further considered below.

ICESCR

18.          Article 13 provides. So far as relevant, as follows:

Article 13

1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right…

 (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education… [emphasis added]

19.          Article 13 must be read with Article 2 which provides, so far as relevant, that:

Article 2

1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

20.          According to the CESCR’s General Comment No.13, on Article 13:

46. The right to education, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide.

47. The obligation to respect requires States parties to avoid measures that hinder or prevent the enjoyment of the right to education. The obligation to protect requires States parties to take measures that prevent third parties from interfering with the enjoyment of the right to education. The obligation to fulfil (facilitate) requires States to take positive measures that enable and assist individuals and communities to enjoy the right to education. Finally, States parties have an obligation to fulfil (provide) the right to education. As a general rule, States parties are obliged to fulfil (provide) a specific right in the Covenant when an individual or group is unable, for reasons beyond their control, to realize the right themselves by the means at their disposal. However, the extent of this obligation is always subject to the text of the Covenant [emphasis added].


Progressive realisation

21.          Article 13 does not impose immediate obligations on states, referring as it does to “progressive measures”. This terminology does not, however, mean that states party to the Covenant are free to act as they please in relation to these rights. According to Manisulu Ssenyonjo, Economic, Social and Cultural Rights in International Law (Hart 2009, footnotes omitted, emphasis added):

 

[2.23] “states parties are obliged to improve continuously the conditions of ESC rights, and generally to abstain from taking regressive measures. This notion of progressive realization of ESC rights over a period of time constitutes a recognition of the fact that full realization of all [ESC rights] will generally not be able to be achieved in a short period of time … reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of [ESC rights]…

[2.24] some rights under the Covenant, such as freedom from discrimination, give rise to obligations of immediate effect. Thus, a state cannot argue that it is providing primary education or primary healthcare to boys immediately but would extend it to girls progressively … Second, the CESCR has explained that Article 2 ‘imposes an obligation to move as expeditiously and effectively  as possible” towards the Covenant’s goal of full realization of the substantive rights under the Covenant … In order to comply with the obligation to achieve the realization of ESC rights ‘progressively’, states parties are required to monitor the realization of ESC rights and to devise appropriate strategies and clearly defined programmes (including indicators – carefully chosen yardsticks for measuring elements of the right – and national benchmarks, or targets, for each indicator) for their implementation. A human rights approach to government actions must begin with a proper understanding of the actual situation in respect of each right, accurate identification of the most vulnerable groups, and the formulation of appropriate laws, programmes and policies.

[2.26] In determining progressive realization, the Committee applies a strong presumption against ‘any deliberately retrogressive measures’. [[6]] Unless otherwise justified ‘after the most careful consideration of all alternatives’ and ‘by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State party’s maximum available resources’ the adoption of measures (legislation or policy) that causes a clear deterioration in the protection of rights hitherto afforded violates the Covenant. For example, unless justified in accordance with the above criteria, ‘the re-introduction of fees at the tertiary level of education … constitutes a deliberately retrogressive step’, especially where adequate arrangements are not made for students from poorer segments of the population or lower socioeconomic groups.”

22.          The Committee on Economic, Social and Cultural Rights (the Committee) is the body of independent experts that monitors implementation of the ICESCR by its States parties. In its General Comment No 3 (1990) the Committee stated (para 9) that:

 

The principal obligation of result reflected in article 2 (1) is to take steps ‘with a view to achieving progressively the full realization of the rights recognized’ in the Covenant. The term ‘progressive realization’ is often used to describe the intent of this phrase. The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time… the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources [emphasis added].

23.          Similar statements were made in relation to the right to education, in particular in General Comment 13 (The Right to Education), at paras 44-45, the right to health in General Comment 14, paras 31-32 and the right to water in General Comment 15, paras 18-19.

Non-retrogression

24.          In para 45 of General Comment 13 the Committee stated that:

There is a strong presumption of impermissibility of any retrogressive measures taken in relation to the right to education, as well as other rights enunciated in the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the State party’s maximum available resources.

25.          In General Comment 19, on social security, the Committee followed a statement in materially identical terms to the above with the following (para 42):

… The Committee will look carefully at whether: (a) there was reasonable justification for the action; (b) alternatives were comprehensively examined; (c) there was genuine participation of affected groups in examining the proposed measures and alternatives; (d) the measures were directly or indirectly discriminatory; (e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and (f) whether there was an independent review of the measures at the national level.

26.          The Committee has twice commented on the introduction of fees in third level education. In its Concluding Observations on Mauritius in 1994, the Committee stated that it was (para 16) “concerned about the re-introduction of fees at the tertiary level of education, which constitutes a deliberately retrogressive step”. And in 2002, in its Concluding Observations on the UK, the Committee (in relation to student fees as they were first introduced in the UK):

22. … note[d] with concern that the introduction of tuition fees and student loans, which is inconsistent with article 13 (2) (c) of the Covenant, has tended to worsen the position of students from less privileged backgrounds, who are already underrepresented in tertiary education.  [Emphasis added]

27.          The Committee went on to:

41. … urge[] the State party to take effective measures to ensure that the introduction of tuition fees and student loans does not have a negative impact upon students from less privileged backgrounds… The Committee requests the State party to provide, in its next periodic report, detailed information on the impact of tuition fees and student loans on lower socio-economic groups.

28.          In its 2007 “Statement by the Committee: An evaluation of the obligation to take steps to the ‘Maximum of available resources’ under an optional protocol to the Covenant” the Committee stated that:

 

8. In considering a communication concerning an alleged failure of a State party to take steps to the maximum of available resources, the Committee will examine the measures that the State party has effectively taken, legislative or otherwise. In assessing whether they are “adequate” or “reasonable”, the Committee may take into account, inter alia, the following considerations:

(a) the extent to which the measures taken were deliberate, concrete and targeted towards the fulfilment of economic, social and cultural rights;

(b) whether the State party exercised its discretion in a non-discriminatory and nonarbitrary manner;

(c) whether the State party’s decision (not) to allocate available resources is in accordance with international human rights standards;

(d) where several policy options are available, whether the State party adopts the option that least restricts Covenant rights;

(e) the time frame in which the steps were taken;

(f) whether the steps had taken into account the precarious situation of disadvantaged and marginalized individuals or groups and, whether they were non-discriminatory, and whether they prioritized grave situations or situations of risk.

9. The Committee notes that in case of failure to take any steps or of the adoption of retrogressive steps, the burden of proof rests with the State party to show that such a course of action was based on the most careful consideration and can be justified by reference to the totality of the rights provided for in the Covenant and by the fact that full use was made of available resources.

10. Should a State party use “resource constraints” as an explanation for any retrogressive steps taken, the Committee would consider such information on a country by-country basis in the light of objective criteria such as:

(a) the country’s level of development;

(b) the severity of the alleged breach, in particular whether the situation concerned the enjoyment of the minimum core content of the Covenant;

(c) the country’s current economic situation, in particular whether the country was undergoing a period of economic recession;

(d) the existence of other serious claims on the State party’s limited resources; for example, resulting from a recent natural disaster or from recent internal or international armed conflict.

(e) whether the State party had sought to identify low-cost options; and

(f) whether the State party had sought cooperation and assistance or rejected offers of resources from the international community for the purposes of implementing the provisions of the Covenant without sufficient reason.[7]

Non-discrimination

29.          The reference on the part of the Committee to the impact by social background on fees indicates the importance in this context of the right against discrimination provided by Article 2 of the ICESCR. The Limburg principles, drawn up by a group of distinguished experts in international law convened by the International Commission of Jurists in 1986, provide that:

Article 2(2): Non-discrimination

35. Article 2(2) calls for immediate application and involves an explicit guarantee on behalf of the States parties. It should, therefore, be made subject to judicial review and other recourse procedures.

36. The grounds of discrimination mentioned in article 2(2) are not exhaustive.

37. Upon becoming a party to the Covenant States shall eliminate de jure discrimination by abolishing without delay any discriminatory laws, regulations and practices (including acts of omission as well as commission) affecting the enjoyment of economic, social and cultural rights.

38. De facto discrimination occurring as a result of the unequal enjoyment of economic, social and cultural rights, on account of a lack of resources or otherwise, should be brought to an end as speedily as possible…

30.          In its General Comment No. 20, “Non-Discrimination in Economic, Social and Cultural Rights”, the Committee made it clear that Article 2 is central to the Covenant, that it is has immediate rather than progressive effect, and that its approach to “discrimination” goes well beyond formal or direct discrimination:

7.    Non-discrimination is an immediate and cross-cutting obligation in the Covenant. Article 2(2) requires States parties to guarantee non-discrimination in the exercise of each of the economic, social and cultural rights enshrined in the Covenant and can only be applied in conjunction with these rights. It is to be noted that discrimination constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights…

8.    In order for States parties to “guarantee” that the Covenant rights will be exercised without discrimination of any kind, discrimination must be eliminated both formally and substantively…

(b) Substantive discrimination: Merely addressing formal discrimination will not ensure substantive equality as envisaged and defined by Article 2(2). The effective enjoyment of Covenant rights is often influenced by whether a person is a member of a group characterized by the prohibited grounds of discrimination. Eliminating discrimination in practice requires paying sufficient attention to groups of individuals which suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations. States parties must therefore immediately adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination....

10 Both direct and indirect forms of differential treatment can amount to discrimination under Article 2(2) of the Covenant…

(b) Indirect discrimination refers to laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination…

13. Permissible scope of differential treatment. Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realised and the measures or omissions and their effects. A failure to remove differential treatment on the basis of a lack of available resources is not an objective and reasonable justification unless every effort has been made to use all resources that are at the State party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority.

14. Under international law, a failure to act in good faith to comply with the obligation in Article 2(2) to guarantee that the rights enunciated in the Covenant will be exercised without discrimination amounts to a violation…

31.          Noting that Article 2(2) lists “property” and “other status” as protected grounds, and that the latter includes “economic and social situation”, the General Comment goes on to state that (para 25) “Property status, as a prohibited ground of discrimination, is a broad concept and includes real property (e.g., land ownership or tenure) and personal property” and (para 35) that Individuals and groups of individuals must not be arbitrarily treated on account of belonging to a certain economic or social group or strata within society”. The General Comment further states (para 36) that:

In addition to refraining from discriminatory actions, States parties should take concrete, deliberate and targeted measures to ensure that discrimination in the exercise of Covenant rights is eliminated. Individuals and groups of individuals, who may be distinguished by one or more of the prohibited grounds, should be ensured the right to participate in decision-making processes over the selection of such measures. States parties should regularly assess whether the measures chosen are effective in practice.

It should also be noted that Article 2(2) expressly prohibits discrimination on the ground of ‘social origin.’

The European Convention on Human Rights

32.          Protocol 1, Article 2 provides that:

 

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions.

33.          Article 14 provides that:

 

The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

34.          Again, it is noteworthy that the language of Article 14 is similar to that of Article 2(2) ICESCR, in particular the prohibition of discrimination on grounds of property, social origin and other status.  For this, as well as other reasons which we mention below, the ECHR should be interpreted in the light of the ICESCR in particular and international law more generally.

35.          In Sahin v Turkey (2005) 41 EHRR 8, the Grand Chamber of the European Court of Human Rights (ECtHR) held that, although Article 2 did not require that states set up higher education institutions, any state which did so was under an obligation to afford an effective right of access to them (see also Temel v Turkey, Judgment of 3 March 2009, ECtHR). It follows that discrimination as regards access to third level education falls within the ambit of Article 14.

36.          Article 14 ECHR now clearly encompasses indirect as well as direct discrimination (DZ v Czech Republic (2008) 47 EHRR 3.  In other words, it will not protect a measure to argue that it does not on its face or deliberately discriminate – it will still be discriminatory if it has that effect and, in particular, if it has a disproportionate impact on people from certain groups, as defined (for example) by social or ethnic origins.

37.          It is, further, clear from the decision of the ECtHR in Demir & Baykara v Turkey (2009) 48 EHRR 54 that the ECtHR, “in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values…”  (para 85, emphasis added). 

38.          In Demir the Court took into account the jurisprudence arising under International Labour Organisation Conventions and the European Social Charter in determining the scope of freedom of association under Article 11 of the Convention, over-ruling its previous holdings that the right to bargain collectively and to enter into collective agreements did not constitute an inherent element of Article 11. And in Opuz v Turkey (Appl no 33401/02, 9 June 2009), a case involving alleged breaches of Article 14 (non-discrimination) with Articles 2 and 3, the Court cited its decision in Demir to the effect that it was required to take into account “the international-law background … when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty” (para 184), and concluded that “when considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case-law … the Court has to have regard to the provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women” (para 185).

Applying the above Legal Principles

39.          There are serious concerns in our view as to the compatibility of the current changes to university funding with the UK’s international and domestic legal obligations. In the first place, and given the strong presumption against retrogression, the decision to transfer virtually the full cost of tuition to students by cutting 80% of the university teaching grant (this by contrast with 40% of the higher education budget more generally) may be regarded as disproportionate. Para 42 of the Committee’s General Comment 19 is set out above. It is by no means clear that the decision to place the entire cost of tuition on undergraduates will satisfy the requirements of that paragraph, in particular, whether alternatives were comprehensively examined; whether there was genuine participation of affected groups in examining the proposed measures and alternatives, or “an independent review of the measures at the national level”. There is strong reason to suspect that the measures will impact disproportionately by social/ economic class and by race, as well as by parental disability. It may also be the case that the gender and/or disability of prospective students may, because of its impact on their likely lifetime earnings, impact on decisions whether to undertake what is likely to be perceived as the very expensive option of third level education.

 

40.          The justification of retrogression by reference to lack of resources will turn on the criteria referred to by the Committee in its 2007 statement, reproduced above. There are in our view concerns as to whether the proposed changes would pass muster given that the burden of proof is on the state to justify retrogressive steps. In our view, there appear to have been alternative means open to the government which might have reduced the likely disproportionate impact. In particular, it is not clear whether the likely advantages of a graduate tax or the possibility of means-testing in setting fees, as regards access to university by lower-income students (this because it avoids the problem of debt) have been adequately taken into account.

41.          Further, it is our view that the likely disparate impact of the proposed fees by reference to grounds including social class, race and disability threaten breaches of Article 13 read with Article 2(2) ICESCR. It is clear that the CESCR takes a broad and substantive approach to Article 2(2), also that the obligation of non-discrimination is immediate rather than progressive in nature.

42.          As mentioned above, the ICESCR does not give rise to direct domestic effect. The UK is not a party to the Optional Protocol to the Covenant, which provides for individual complaints. That Protocol is in any event not yet in force. It remains the case, however, that the UK is bound to comply with its Covenant obligations as a matter of international law.

43.          In addition, as set out above, these obligations may have indirect effect through the ECHR. Article 14 and Protocol 1, Article 2 prohibit direct and indirect discrimination in access to education, including higher education. It is our view, in particular given the increasing willingness of the ECtHR to take into account the specialist social and economic rights jurisprudence, that the proposals risk breaching those provisions of the Convention, which would in turn permit challenge in the domestic courts by individuals who are or would be ‘victims’ under the HRA. Given that the statutory provision at issue is secondary legislation, the Regulations could be struck down if they were determined to be incompatible with the Convention rights, under SS.6 and 7 HRA.

 

Rabinder Singh QC

Prof. Aileen McColgan

Matrix Chambers

16 December 2010

 



[1] H Chowdry et al, “The impact of the EMA pilots on participation and attainment in post-compulsory education” IFS, November 2007, 5, 7-8.

[2]  www.ifs.org.uk/publications/4726.

[3] Sutton Trust Submission to Sir Martin Harris: Widening Access to Selective Universities (January 2010), 2-3.

[5] C Callendar and J Jackson, “Does the Fear of Debt Deter Students from Higher Education?”, Jnl Soc. Pol., 34, 4, 509–540.

[6] Citing GC 3 para 9

[7] CESCR, UN doc. E/C.12/2007/1, para 10.27


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