Hurley and Moore, R (on the application of) v Secretary of State for Business Innovation & Skills

The right to education requires effective access to existing higher education institutions, but permits tuition fees. Access and indirect discrimination must be assessed against the complete funding package, including loans and measures supporting disadvantaged students. The claimant must establish disparate impact before the burden of justification arises. Courts allow significant latitude for decisions concerning sustainable higher education funding and competing public resources.

Public sector equality duties require conscious, rigorous consideration of the relevant statutory objectives before a decision. Analysis of socio-economic disadvantage may address financial inequalities but may leave distinct protected characteristics insufficiently examined. Once the equality implications are properly understood, their weight belongs to the decision maker. Substantial breaches will ordinarily warrant quashing. Very substantial compliance, adequate assessment of the challenged decision and the consequences of quashing may justify declaratory relief alone.

The claimants were lower-sixth-form students who wished to attend university. They sought judicial review of the Secretary of State's decision to make the Higher Education (Basic Amount) Regulations 2010 and the Higher Education (Higher Amount) Regulations 2010. Made under the Higher Education Act 2004 and approved by both Houses of Parliament, the regulations increased the basic annual fee limit to £6,000 and the higher limit to £9,000. Institutions charging above the basic limit required an approved access plan.

The increases formed part of reforms developed following an independent review chaired by Lord Browne. The wider package included deferred, income-related loan repayments, increased maintenance support, scholarships and measures to widen participation. The claimants alleged that the increases infringed the Convention right to education, either alone or through indirect discrimination against students from lower socio-economic groups. They also alleged failures to discharge the public sector equality duties concerning race, disability and sex.

The Secretary of State relied on the complete funding package and contemporary impact assessments. The court considered whether the reforms preserved effective access, whether disparate impact had been established or justified, whether the equality duties had been fulfilled, and whether any breach required the regulations to be quashed.

Held, unanimously, that a declaration should be granted that the Secretary of State had failed fully to discharge his public sector equality duties before implementing the regulations. The Convention challenge failed, and the regulations would remain in force. King J agreed with Elias LJ's reasons.

1. Article 2 of Protocol 1 required effective access where the state provided higher education. Charging fees was permissible. The essence of the right was preserved because appropriately qualified students could attend through government loans. Personal aversion to debt did not establish an effective denial or unjustified restriction. Assuming that disproportionate restriction constituted a separate ground of complaint, the arrangements were justified: paras [30]–[42].

2. Specialised international instruments could, and in an appropriate case must, inform Convention interpretation. That process differed from directly enforcing rights under those instruments. Article 13(2)(c) of the International Covenant on Economic Social and Cultural Rights could not be treated as binding through the Convention. Its progressive objective depended on available resources; whether the United Kingdom breached the Covenant was left unresolved: paras [43]–[45].

3. Article 14 encompassed indirect discrimination. The claimants had to establish disparate impact, although statistics were unnecessary where sufficiently strong factual inferences existed. The complete package, including loans and targeted assistance, required assessment. The evidence did not sufficiently establish disproportionate disadvantage to poorer students: DH v Czech Republic (2008) 47 EHRR 3, applied; paras [46]–[54].

4. Independently, any discriminatory effect was justified. The court itself had to assess justification under the proportionality criteria in Huang v Secretary of State for the Home Department [2007] UK HL 11; [2007] 2 AC 167. Sustainable funding of accessible, high-quality higher education was legitimate. Extensive analysis, mitigating measures and reasoned rejection of alternatives supported proportionality. Significant latitude was appropriate for macro-economic decisions allocating competing public resources: paras [55]–[65].

5. The equality duties required conscious, rigorous advance consideration of the relevant statutory objectives, extending beyond avoidance of discrimination. An equality impact assessment was neither compulsory nor conclusive. Further information was required where necessary for informed consideration. Once equality implications were properly appreciated, their weight belonged to the decision maker: R (Baker & Ors) v Secretary of State for the London Borough of Bromley [2008] EWCA 141, applied; paras [70]–[90].

6. Socio-economic analysis addressed the financial disadvantage relevant to fees but did not establish conscious consideration of every potentially relevant equality objective in the wider reforms. Distinct protected characteristics could raise separate issues. Irrelevant statutory objectives required no elaborate examination; doubtful relevance required exploration. The wider assessment was deficient, although the fee structure itself had been adequately assessed: paras [91]–[97]; [102].

7. Later assessment could not establish earlier compliance, but continuing consideration was relevant to relief. Administrative disruption and economic consequences alone would not justify preserving a decision affected by a sufficiently significant breach; substantial breaches would very rarely escape quashing. Here, very substantial compliance and adequate assessment of the fee decision made quashing disproportionate. Declaratory relief was granted: paras [98]–[100]; [103].

not stated in the judgment.