QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KING
| The Queen on the Application of HURLEY AND MOORE
|- and -
|SECRETARY OF STATE FOR BUSINESS INNOVATION & SKILLS
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Mr Jonathan Swift QC and Miss Joanne Clement (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 1 and 2 November 2011
Crown Copyright ©
Lord Justice Elias :
The grounds of challenge.
(1) The decision to increase the permitted limit for the basic and higher amounts is contrary to the right to education conferred by Article 2 of Protocol 1 of the European Convention on Human Rights ("A2/P1"); alternatively is contrary to that provision when read with Article 14 of the Convention. The thrust of the argument is that the new rules will have a chilling effect on the ability of those from disadvantaged social backgrounds to take up university places.
(2) The decision was made in breach of the requirements of the public sector equality duties ("the PSEDs") imposed by the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995.
"3. A plan must include provisions requiring the governing body of the institution to do the following–
(a) to take, or secure the taking of, the measures set out in the plan in order to attract an increased number of applications from prospective students who are members of groups which, at the time when the plan is approved, are under-represented in higher education;
(b) to provide, or secure the provision of, bursaries and other forms of financial assistance set out in the plan to students undertaking a course at the institution;
(c) to make the arrangements set out in the plan to make available to students undertaking a course at the institution and prospective students wishing to undertake such a course information about financial assistance available to them from any source;
(d) to make the arrangements set out in the plan to inform any prospective student before he commits himself to undertake a course at the institution of the aggregate amount of fees that the institution will charge for the completion of the course;
(e) to monitor in the manner set out in the plan its compliance with the provisions of the plan and its progress in achieving its objectives set out in the plan by virtue of regulation 4; and
(f) to provide the Director with such information as he may reasonably require from time to time.
4. A plan must set out the objectives of the institution, determined by its governing body, relating to the promotion of equality of opportunity."
The review conducted by Lord Browne.
(1) A research paper entitled "Assessing the Impact of the New Student Support Arrangements" was produced by the Institute for Employment Studies. It assessed the impact of the introduction of the 2006 student support arrangements (including variable fees). The Report stated that there is little evidence to suggest the arrangements had any impact on the demand for higher education and "that demand of students from different backgrounds, including those from targeted widening participation and under-represented groups, remains steady". It was recognised, however, that the pressures arising from the recession might have masked the negative impact of these changes on those from lower socio-economic backgrounds.
(2) A second report was headed "Are there changes in Characteristics of UK Higher Education around the time of the 2006 Reforms". This comprised an analysis of Higher Education Statistics Agency data from 2002/3 to 2007/8, and was undertaken by the Centre for Employment Research on trends in higher education between these dates. One of its observations was that the expansion of the higher education sector goes hand in hand with widening participation, and that a system where the state pays for the majority of students puts a break on the increased participation of under-represented groups.
(3) "The Impact of Higher Education Finance on University Participation in the UK" was an analysis by the Institute of Fiscal Studies on the separate impacts of upfront fees, grants and maintenance loans on UK higher education participation during the period 1992-2007. The report concluded that there was no overall change in participation of different groups after the 2006 reforms:"For the low income group, the large increase in grants and fee loans was sufficient to outweigh the impact of the £3,000 deferred fee introduction, so that the net result was no significant change in participation."
A further relevant finding was that a £1,000 increase in up-front tuition fees would reduce the degree of participation by 4.4% points, while a £1,000 increase in loans increases participation by 3.2% and an increase in maintenance grants also increases participation by 2.1%. These results were said to be broadly in line with similar studies carried out in America.
(4) Finally a further report headed "The Impact of the 2006-2007 Higher Education Finance Reforms on Higher Education Participation" was an analysis prepared by the Centre for the Economics of Education and the Institution of Fiscal Studies. It concluded that there was no evidence that the 2006-07 reforms had resulted in a sustained fall in higher education participation after their introduction. It also noted that participation amongst pupils from ethnic minorities showed virtually no change.
(1) The current limit on fees of £3,290 per annum (i.e., the current higher amount) should be removed, and no cap should be applied.
(2) A tapered levy should be imposed on institutions charging more than £6,000 per annum to ensure that those which charge the most contribute more to supporting the poorest students. Universities that wish to charge more than £6,000 per annum should be required to demonstrate improved standards of teaching and fair admission.
(3) A new system in respect of funding/repayment of tuition fees referred to as the Student Finance Plan should be adopted. Finance under this plan was to be available to all students in higher education, and would be available on equal terms to students undertaking part-time study. Under this system fees would not be repaid until after the student had graduated and obtained work, and thereafter repayments would commence once the former student had annual earnings in excess of £21,000 (rather than the £15,000 threshold currently in place).
The decision to make the 2010 Regulations.
(1) With effect from 6 April 2016, tuition fees will, subject to Parliamentary approval, be repayable only where the former student's income reaches £21,000. The £21,000 threshold will thereafter be increased annually to reflect earnings.
(2) Repayment will be at the rate of 9% on income above £21,000.
(3) All sums outstanding 30 years after the Statutory Repayment Due Date (SRDD) will be written off. (The SRDD is, broadly, the date when, if earning above £21,000, borrowers start to repay their loans.)
(4) From the SRDD, interest on outstanding amounts will be no more than the change in RPI for former students earning less than £21,000; for former students earning between £21,000 and £41,000 it will be on a sliding scale between the change in RPI and RPI + 3%; for former students earning more than £41,000 the rate will be RPI + 3% .
(5) Part-time students in higher education will, subject to Parliamentary approval, for the first time have the benefit of equivalent arrangements in respect of repayment of tuition fees, provided that the part-time course is at least "25% intensity" of the equivalent full-time course (i.e. if the equivalent full time course is a 1 year course, the part-time course must be completed in no more than 4 years).
(6) A national scholarships programme is to be established which will receive Government contributions to scholarship funds of £50 million in financial year 2012/13, £100 million in 2013/14 and £150 million per annum from 2014/15. The scholarships will be targeted by each university at persons from disadvantaged backgrounds who wish to participate in higher education.
(7) There will be consultation with student organisations and university organisations with a view to imposing conditions on grant funding that require universities wishing to charge fees higher than the basic amount to provide scholarships to students from poor backgrounds.
(8) A requirement that any university wishing to charge tuition fees of more than the basic amount must gain the approval of the Director of Fair Access to new annually agreed access plans specific to the university to improve access to higher education to persons from groups traditionally under-represented. The university will be required to devote a proportion of its fee income to steps aimed at widening access.
(9) The arrangements for maintenance grants will be altered. The non-repayable grant payable to students from families with incomes of up to £25,000 will increase from £2,900 to £3,250. Partial grants will be payable to students from families with incomes up to £42,000. The sums available as maintenance loans to those from families with incomes between £42,000 and £60,000 will be increased. Higher maintenance loans will continue to be available to students in higher education in London.
Proposals (6) to (9) in particular are directed to assisting students from lower socio –economic backgrounds.
The grounds of challenge.
"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 persons to ensure such education and teaching in conformity with their own religious and political convictions."
"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."
".. it is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory".
".. the State's margin of appreciation in this domain increases with the level of education in inverse proportion to the importance of that education for those concerned and for society at large. Thus, at the University level, which so far remains optional for many people, higher fees for aliens – and indeed fees in general –seem to be commonplace and can, in the present circumstances, be considered fully justified."
"The limitations must not restrict or reduce the access left to an individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
"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."
"Consequently the restriction in question did not impair the very essence of the right to education."
This suggests that the two formulations of the restriction principle laid down in Ashingdane are in reality closely interrelated and that a restriction will be disproportionate only if it does in fact deny an applicant the essence of the right in issue.
"a measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group."
It is for the claimant to establish that the policy has a disparate impact but once that is established, the onus switches to the defendant to justify the discrimination.
Breach of the Public Sector Equality Duty.
"Every body or other person specified in Schedule 1A or a description falling within the Schedule shall, in carrying out its functions, have due regard to:
(a) the need to eliminate unlawful racial discrimination, and
(b) to promote equality of opportunity and good relations between persons of different racial groups."
"(1) Every public authority shall in carrying out its functions have due regard to:
(a) the need to eliminate discrimination that is unlawful under this Act;
(b) the need to eliminate harassment of disabled people that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons.
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating the disabled person more favourably than other persons;
(e) the need to promote positive attitudes towards disabled people; and
(f) the need to encourage participation by disabled persons in public life."
"It is a clear purpose of section 71 to require public bodies to whom the provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement and this provision must be seen as an integral and important part of the mechanism for ensuring the fulfilment of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter. In the context of the wider objectives of anti-discrimination legislation, section 71 has a significant role to play."
"proper record keeping encourages transparency and will discipline those carrying out the relevant function to undertake their…duties conscientiously. If records are not kept it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled a [statutory] duty."
"What is due regard? In my view it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing."
The evidence of compliance.
"the promotion of equality of opportunity is concerned with issues of substantive equality and requires a more penetrating consideration than merely asking whether there has been a breach of the principle of non-discrimination."
In any event, there was no proper analysis of the relevant material.
"Councils cannot be expected …to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court."
" .. the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration."
"No doubt in some cases it will be plain even after a cursory consideration that section 71 is not engaged, or at least is not relevant. There is no need to enter into time consuming and potentially expensive consultation exercises or monitoring when discrimination issues are plainly not in point."
For these reasons, in my judgment there has on any view been very substantial compliance with these equality duties.
Mr Justice King:
103. I agree that that it would not be a proportionate remedy in these circumstances to quash the regulations themselves. I too, however, would grant a declaration to the effect that the Secretary of State failed fully to carry out his PSEDs before implementing the 2010 regulations under challenge.