Vince Cable MP, the Secretary of State for Business, Innovation and Skills, will tomorrow be formally served with an application for Judicial Review brought in the High Court. The application for judicial review is being brought by Callum Hurley (aged 16) and Katy Moore (aged 17), two lower sixth form students horrified by the trebling of tuition fees and the prospect of £40,000 of debt. The students are being represented by Public Interest Lawyers.
The claim is brought on two grounds. The first is that the policy breaches Article 14 of the European Convention on Human Rights (prohibition on discrimination) in that the policy will indirectly discriminate against, in particular, those from poorer social origin and ethnic minorities. This is further to the Advice produced by one of the UK’s leading human rights lawyers, Rabinder Singh QC, and Professor Aileen McColgan, barrister and professor at King’s College London (a copy of which is attached to this press release).
The second is that the government has failed to give "due regard" to promoting equality of opportunity as is required under the Race Relations, Sex Discrimination and Disability Discrimination Acts. In the short period between the October 2010 spending review and Parliament’s consideration of tuition fees on 9 December 2010, the government produced an "Interim Equality Impact Assessment" (EIA). But the regard evidenced by the interim assessment is cursory and lacks any real analysis. Critically, it proceeds on the assertion that measures such as the National Scholarship Program "are expected to assist in preventing any worsening of the current participation gap between lower and higher socio-economic groups" (page 5 of the Interim EIA). It does so without any analysis and without addressing clear evidence that a rise in tuition fees has an adverse impact on participation. Such an approach is unlawful as the courts have previously made clear that the duty to have "due regard" must be exercised with substance and with rigour – a standard that has not been met.
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.
The Secretary of State was formally notified of the pending claim by pre-action letter of 18 February 2011. In response, the Secretary of State disputed the illegality of the new regulations. He said that "the decision to make the 2010 Regulations was taken by the Secretary of State after careful consideration and with particular attention to the impact on access to higher education for students from socially disadvantaged backgrounds" and that the decision "was informed by the analysis reached, and evidence collected, by Lord Browne of Madingley" and "by the availability of public funding." It is in response to this defence of the regulations that the claim has now been lodged with the Court.
Sam Jacobs of Public Interest Lawyers said today:
"The rise in tuition fees is, quite obviously, hugely significant. Yet the regulations were proposed, considered, and made in Parliament in a matter of weeks. It is astonishing that it was thought appropriate to make such an important decision in such a rushed manner. In these circumstances it is not surprising that there has been a woeful failure to give "due regard" to promoting equality of opportunity"
For further information, contact: Public Interest Lawyers
Phil Shiner and Sam Jacobs
Telephone: 0121 515 5069