R (Hurley) v Secretary of State for Business, Innovation and Skills

The claimants sought judicial review of regulations (Higher Education (Basic Amount) Regulations 2010 SI 2010/3021 and Higher Education (Higher Amount) Regulations 2010 SI 2010/3020) raising the maximum permitted tuition fees under section 24 of the Higher Education Act 2004. The court rejected the claim under Article 2 of Protocol 1 (A2P1) read alone and read with Article 14, finding that the decision to permit higher fees was within the State's margin of appreciation and that the package of measures (including loans, maintenance support, targeted scholarships and approved access plans under section 33) provided mitigation sufficient to render the fee regime proportionate.

On the public sector equality duties (PSEDs) the court found that the Secretary of State had given substantial, but not fully rigorous, consideration to equality issues: there was a breach in that he did not fully carry out the PSEDs across the whole package of reforms, but there was adequate analysis of the particular decision to set the fee levels. The appropriate remedy was a declaration of breach rather than quashing the regulations.

Background and parties:

• The claimants were sixth-form students who applied for judicial review to quash regulations increasing the capped tuition fee limits to £6,000 (basic) and £9,000 (higher) per year. The regulations were made under section 24 of the Higher Education Act 2004 and approved by both Houses of Parliament.
• The defendant was the Secretary of State for Business, Innovation & Skills. Counsel relied heavily on the independent Browne Review of higher education funding which informed the regulations and on a package of associated measures designed to protect access for disadvantaged students.

Nature of the claim and relief sought:

• The claimants sought quashing of the 2010 Regulations on two principal grounds: (i) breach of Article 2 of Protocol 1 of the European Convention on Human Rights (A2P1), alternatively A2P1 read with Article 14 (discrimination); and (ii) breach of the public sector equality duties under the Race Relations Act, the Disability Discrimination Act and the Sex Discrimination Act.

Issues framed by the court:

1. Whether the increase in permitted tuition fees unlawfully restricted the effective right of access to higher education under A2P1, and whether that restriction was disproportionate or discriminatory (Article 14 indirect discrimination).
2. Whether the Secretary of State complied with the PSEDs in assessing equality impacts before making the regulations.

Court's reasoning and conclusions:

• On A2P1 and Article 14 the court accepted established Strasbourg authority that charging for higher education is permissible and that states have a margin of appreciation which broadens with the level of education (Sahin; Ponomaryov). The court applied the proportionality framework (drawing on Ashingdane and related jurisprudence) and concluded that charging fees of the level in the regulations did not, in context, render the right theoretical or illusory given the package of safeguards (loans, maintenance support, repayment terms, targeted scholarships, Director of Fair Access approval of access plans under section 33). The claimants had not discharged the burden of proving a disparate impact on protected groups to the requisite standard.
• On the PSEDs the court reviewed the statutory duties (including section 71 Race Relations Act and section 49 of the Disability Discrimination Act) and authorities on the required rigour of assessment. It found that the Secretary of State relied on an Interim Equality Impact Assessment and Interim Impact Assessment drawing heavily on the Browne Review. Although there had been substantial engagement with equality issues and a focused analysis of the impact of the fee levels, the court concluded that the Secretary of State did not carry out the fullest, rigorous attention across the entire package of reforms and therefore failed fully to comply with the PSEDs. Because the defect related to procedural compliance rather than the substantive justification for the fee levels, the court granted a declaration of breach but refused to quash the regulations as disproportionate relief.

Remedy and wider implications:

• The court issued a declaration that the Secretary of State had failed fully to carry out his public sector equality duties prior to implementing the 2010 Regulations, but declined to quash the Regulations on grounds of proportionality, practicality and the degree of substantive compliance. The judgment emphasises deference in resource-allocation decisions, the need to consider equality duties with rigour, and that significant but not complete procedural failings may attract a declaration rather than annulment where substantive decisions have been properly justified.

First instance: The claim succeeded in part. The court granted a declaration that the Secretary of State failed fully to carry out the public sector equality duties prior to implementing the 2010 Regulations, but dismissed the challenge under Article 2 of Protocol 1 and Article 14 and refused to quash the regulations. Rationale: the fee increases and associated package were within the State's margin of appreciation and were justified as a proportionate means to secure sustainable, high-quality higher education; although the equality duties were not observed with full rigour across the whole package, the decision on fee levels had been adequately analysed and quashing would be disproportionate and disruptive.