Mr Justice Collins of the High Court yesterday ordered that two sixth form students, Callum Hurley and Katy Moore, be granted permission for a hearing to challenge the lawfulness of the government’s increase to tuition fees. The government will now be forced to defend the lawfulness of its policy before a judge in the High Court, at a hearing which will no
doubt be of great interests to thousands of students deterred from pursuing a university education by upwards of £40,000 of debt. If Callum and Katy succeed, Vince Cable’s tuition fees policy will lie in tatters.
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 hearing is to take place over two days and is likely to be set for a date in October 2011.
The judicial review is being brought by Callum Hurley (aged 16) and Katy Moore (aged 17) who are represented by Public Interest Lawyers. With permission having been granted, the claim now proceeds to a full hearing in which a judge will consider whether to quash the regulations which treble tuition fees.
The claim was lodged at the High Court on 18 March 2011 and is brought on two grounds. First, that the rise in fees is in breach of the right to education protected in the Human Rights Act 1998. That right does not guarantee free higher education, but it does place limitations on steps that limit access to higher education. The judge indicated that “The introduction of higher fees can properly be regarded as a retrogressive step which does require clear justification.” Second, that the government 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. It proceeds on the basis 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 evidence. The courts have previously made clear that the duty to have “due regard” must be exercised with substance and with rigour – a standard that the Claimants argue 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.
Phil Shiner of Public Interest Lawyers said today:
“This is a major breakthrough and my clients now get a full hearing of their case which affects the next generations of students from less well off backgrounds. This case challenges the government’s bare-faced agenda to make our society one based on elitism and wealth.”
Sam Jacobs of Public Interest Lawyers added:
“The government dreamt up the policy of trebling tuition fees in a matter of weeks following the October 2010 spending review. It was inevitable that it would fail to meet its legal duties to properly consider equality of opportunity and provide clear justification for restricting access to education. Any assertion that £50,000 to £60,000 of debt does not create an access problem can only be made by someone with their head in the sand.”
Callum Hurley said today:
I’m delighted at the decision of the judge to grant us a hearing. It is such an important issue that will affect thousands of people and hinder the chances of poorer students who want to go to university.
Katy Moore welcomed the news of the Judge’s grant of permission:
“I think it's great that we've been allowed a hearing in court. It's vital that we stand up for our generation and fight the government's decision to almost triple university tuition fees. We students are being let down by the government, as these changes to university fees will cause many bright and talented students from poorer backgrounds to be put off going to university due to the thought of thousands and thousands of pounds of debt. The government should be taking progressive measures to encourage more young people from state schools to go on to higher education, not making it more difficult for us to achieve the futures we want to achieve.”
