Government win in human rights tuition fee challenge

The government has today successfully defended a judicial review challenge against its decision to raise university tuition fees. The case – brought by two students – alleged that the government acted in breach of various provisions of the European Convention on Human Rights and/or numerous pieces of equality legislation when it took the decision to raise fees. On virtually all the points, the government – and Vince Cable as the relevant minister – were vindicated, both on the substantive effects of the policy and the way in which the decision was made.

You can read the full judgment in the case here (pdf) (and it’s worth doing so to read the arguments of both sides and conclusions of the judge on the likely impact of the tuition fee increase). However, here are a few key from Lord Justice Elias’s judgment:

The fact that someone may be temperamentally or psychologically disinclined to accept a student loan and enter into debt does not justify the conclusion that the right to higher education of such a person has been effectively denied or unjustifiably restricted. (Para 42)

I accept Mr Swift’s [counsel for the government] submission that it is necessary to look at the policies in the round and not simply focus on the increase in fees set down in the regulations. (Para 51)

First, I wholly reject Ms Mountfield’s [counsel for the students] contention that this was a decision taken without proper consultation or analysis. That seems to me to be a travesty of the true position which simply ignores the Browne Report and the extensive debate which took place inside and outside Parliament, both during the period when that investigation was being undertaken and subsequently when modifications to the Browne proposals were under consideration. Moreover, a central focus of the debate was on how those from disadvantaged backgrounds could be encouraged to enter higher education. If this decision could be challenged on the grounds that it was short on analysis, very few decisions could withstand scrutiny. (Para 61)

Nor do I accept her [Ms Mountfield’s] contention that the object was motivated solely by ideological beliefs and a desire to save money.” (Para 62).

Read the judgment in full here (pdf).

* Nick Thornsby is a day editor at Lib Dem Voice.

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  • Richard Swales 17th Feb '12 - 6:45pm

    Free University isn’t a guaranteed right in the UK. In Slovakia (2011 GDP growth rate 3.3 percent) where I live the consitution guarantees free university education. If the UK (2011 GDP growth rate 0.8 percent) wants to continue with its high cost low skill economic model then it has that right. The students need to persuade more people that this is not the way forward, rather than running to the courts.

  • It would be interesting to understand Slovakias health and welfare systems and tax regime to put that into context.

  • The interesting thing is that postgrad courses have never been free in the UK, and there are no income contingent loans. That would seem a better thing to contest in law on human rights grounds.

    Needless to say, I have a plan for post grads. You can read it here:

  • Martin Pierce 17th Feb '12 - 10:18pm

    It’s a shame the writer equates a legal decision with being in the right. There’s nothing ‘successful’ about the Lib Dems’ record on tuition fees in government, nor has anyone been ‘vindicated’. The fact that due process was apparently followed makes it no less morally defensible in the context of the personal pledges that (I think) all Lib Dem parliamentary candidates (including me) signed at the last election to individually oppose any increase (which the Coalition agreement did not require anyone to reverse), nor any less politically suicidal

  • I can’t understand why this practically and morally indefensible pledge was ever made.

  • Richard Swales 18th Feb '12 - 8:39am

    @Tabman, it’s difficult to make comparisons because there are so many differences, for example the top rate of income tax is 19 percent (compared to 50 percent in the UK). The main area where Slovakia falls down compared to the UK is employers NI at 35 percent (UK is I think 13 percent at the moment) – which means that employers aim pay offers lower than they otherwise would – on the other hand the high NI rate also covers things that would be paid by the company in the UK such as injury compensation, and maternity leave of up to 3 years (4 years for twins, in the case of having a series of kids the 3 years just restarts over and over), which under the current UK system tend to be a bit of a lottery for employers. The raw rates are quite different however as Slovakia is a post-comunist country.
    Also, outside the areas you mention, Slovakia spends 1.5 percent of GDP on defence whereas the UK, despite the geographical advantage of being an island spends 2.7 percent (a difference that would cover the Browne report several times over). On the other hand Slovakia has zero influence outside Europe whereas the UK “punches above its weight”. Again it’s a question of priorities – ours sometimes look like North Korea’s as regards the military.

  • Did you READ the judgement????

    Vince Cable was rebuked by judges yesterday for flouting the law with his tuition fee reforms.
    They decided the Business Secretary failed to comply with equality rules that demand he consider the full impact on female, ethnic minority and disabled students.

    I wouldn’t call that “Vindication” – It will come back to bite!

  • @Martin Pierce – absolutely my point

    It’s about time we “owned up” and addressed the issue instead of pretending it has all gone away

    How about some comment on the “early repayment penalty” being scrapped. Another “nuke option” which Vince hasn’t been able to implement

  • @Tabman. “I can’t understand why this practically and morally indefensible pledge was ever made.” Whether you (or I) understand the pledge is, with respect, neither here nor there. The only fact that matters is that it was made and made in a deadly serious way. That can never be erased. Ask the electorate.

  • daft h'a'porth 19th Feb '12 - 3:26pm

    @Graeme Cowie
    Percentage of young people who are first-time graduates, according to a recent OECD report: Slovak Republic is in the top three (57%). Poland (2000 euros/year*) appears on fourth place, Finland (free) and Iceland (mostly free), with Denmark (free) on 6th place with 47%, Norway (free) on 9th place with 41%, Sweden (free) on 11th place with 40%, the Czech republic (mostly free) on 13th place with 36%. The UK squeaked in at 15th place with 35%. From the looks of the OECD data (, entry rates into tertiary education are much higher in Slovakia.

    Quality of Slovakian universities: they tend not to appear in the top 500 on world rankings. Then again, many Slovakian universities have an enviably high graduate employment rate despite this fact. I would therefore want to dig a lot deeper before condemning their undergraduate teaching, because without knowing what is dragging it down, it is hard to know what impact it really has on the undergrad. As fascinating as rankings may be, every student should not necessarily be treated as a pawn in this generation’s academic d***-waving contest; some of them are there to learn (astonishing concept, I know), not to join the Old Someuniversityorotherians or hobnob with the PhD students of Nobel prize-winners. That said, it’s also worth pointing out that many countries with free tuition and high rates of participation, such as Sweden, France, Denmark, Norway, the Czech republic and Finland, regularly do well in THES rankings.

    * typical rates reported by; there are usually exceptions.

  • daft h'a'porth 19th Feb '12 - 4:42pm

    @tim leunig
    I’d appreciate it if the postgrad system weren’t ‘reformed’ with straightforward student loans. Just as you have written in your own proposal for reform, start throwing around loans and universities start jacking up the prices, because hey, like undergrad loans, we are all encouraged not to see it as ‘real‘ debt – just oddly-streamed government funding. I think you overestimate the amount of ‘shopping around’ that can be done on masters’ degrees — are you thinking of relatively generic conversion courses? Specialist Masters’ degrees seldom have a great deal of direct competition, but would appear to be a better use of scarce funding than the second-chance ‘retaking your final year’ variety.

    Find something that doesn’t involve telling every university that most students have a known quantity to throw around, and then you might be onto a winner. You want to maximise the cost/benefit ratio for the student, not the university. If the university wants to base its policy on students’ average level of available resources, let the university do its own market research. Better still, force them to realistically justify the fees charged for the course; that would be very good for the university system overall, even though they’d hate you for it.

    Personally, if anything has to change at all — and given previous fiddling I would suggest keeping hands well off tertiary education, it has enough problems already — I would suggest putting in place one or several well-publicised systems in which students can apply for a variable quantity of funding directly. This, however, should not be automatic, does not straightforwardly depend on undergraduate results for the reasons you have identified, is not tied directly to a specific institution and requires a certain amount of effort on the part of the student (say, writing an essay/presenting an idea or previous work at an event/taking part in a summer course without sloping off to watch the footie). If they don’t get the funding, no harm no foul – unlike undergrad study, the existing fees are still currently low enough that given good luck and application, they may eventually scrape up the cash. Those who succeed in getting funding, good for them, they’ve done something to deserve it. I think it’s called a research council – and getting some experience with RCs early in one’s postgraduate career can only be a good thing.

    As a side-note: denying ELQs loans with one hand and recommending loans for second-chance Masters degrees with the other seems a little odd. Do the Lib Dems believe in second chances?

  • Richard Swales 19th Feb '12 - 5:54pm

    @daft – I don’t know how the rankings are compiled but I get the impression (from translating it) that the quality of research is poor. From teaching conversational English to recent university IT graduates I get the impression that they know what they are doing (I used to be a professional programmer).

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