The new Secretary of State for Education has recently announced a new government proposal to abolish the ban on opening new grammar schools. This proposal could ultimately be ultimately be challenged in the courts. How could the government make sure it is complying with its human rights obligations in future proposals?
The 2012 legal challenge to tuition fees is an interesting example of how human rights laws might be relevant.
The student tuition fees case
In February 2012, two British teenagers Katy Moore and Callum Hurley challenged the government over its new law allowing universities to charge up to £9,000 in tuition fees. They argued that the increase in tuition fees was a breach of the human right to education. They also argued that the increase in fees discriminated against students from poorer backgrounds.
So, did they win?
Not exactly. The court rejected both of these arguments. The government had not only introduced a student loan system allowing students to borrow the money for their fees but also introduced various measures to encourage poorer students to go to university. These measures included maintenance support, scholarships and use of resources to encourage participation in higher education. There had also been a lot of discussion and debate in parliament about the issue. The government had commissioned a special report into the impact of the rise in student fees, which it had taken into consideration before deciding on the new law.
A sting in the tail
But there was a sting in the tail of the court decision in this case. The judge said that the government was in breach of a different law called the Equality Act 2010. This law requires the government to carry out a formal, detailed assessment of any possible discriminatory impact of new policy on minority groups such as those based on race, gender, disability and the economically disadvantaged. The government had failed to do so. The court had the power to overturn the law increasing tuition fees but the judge decided not to exercise that power in this case. The judge said that if he overturned the law, it would cause chaos. He therefore allowed the law to remain in place but declared that the government was in breach of the law on equality.
Why is this case important?
This decision is important because it emphasises that the government should not implement new laws like this without carrying out formal, detailed research into how the law will impact on everyone who is affected, including the poorest. If it doesn’t, it could find itself in court.
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- You can read a case about the right of children not to be discriminated against in education here.