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

Factual and Procedural Background

The claimants, students in the lower sixth form intending to attend university, initiated judicial review proceedings to challenge the decision permitting universities to increase tuition fees up to £9,000 per year. This increase was implemented through two statutory instruments: the Higher Education (Basic Amount) Regulations 2010 and the Higher Education (Higher Amount) Regulations 2010 (collectively "the 2010 Regulations"). The claimants sought to have these regulations quashed.

The 2010 Regulations were made under section 24 of the Higher Education Act 2004 and approved by both Houses of Parliament. They were set to come into force on 1 September 2012. The regulations established a maximum basic fee of £6,000 and a higher fee of £9,000, significantly increased from previous caps of £1,310 and £3,290 respectively.

The claimants contended that the fee increases were unlawful on grounds including incompatibility with the right to education under Article 2 of Protocol 1 of the European Convention on Human Rights (A2P1), both alone and read with Article 14, and breach of public sector equality duties (PSEDs) under the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995.

The Secretary of State defended the regulations, arguing that the fee increases were part of a package of measures ensuring effective access to higher education, particularly for disadvantaged groups, with substantial analysis and consultation underpinning the decision, including the independent Browne Review.

The background included a historical overview of higher education funding in the UK, noting the shift from full state funding towards partial individual contributions, the introduction of tuition fees in 1998, and the deferred repayment system established by the 2004 Act. The approved plans required universities charging above the basic fee to adopt access plans promoting equality of opportunity.

The Browne Review, commissioned in 2009, conducted extensive consultation and research, concluding that sustainable funding and widening participation could be balanced by increasing fees coupled with safeguards such as deferred repayment thresholds and targeted support for disadvantaged students. The 2010 Regulations reflected most of the Browne recommendations, with adjustments including an upper fee cap and enhanced assistance for low-income students.

The Secretary of State adopted a package of measures including raising the repayment threshold to £21,000, setting repayment rates, writing off outstanding debts after 30 years, establishing a national scholarships program, and modifying maintenance grants and loans to benefit disadvantaged students.

Legal Issues Presented

1. Whether the 2010 Regulations increasing tuition fees breach the right to education under Article 2 of Protocol 1 of the European Convention on Human Rights, alone or read with Article 14.
2. Whether the Secretary of State breached the public sector equality duties under the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995 in making the 2010 Regulations.

Arguments of the Parties

Appellants' Arguments

• The fee increases contravene the right to education under A2P1 by imposing a chilling effect on access for disadvantaged students, rendering the right theoretical and illusory.
• The increases indirectly discriminate against lower socio-economic groups, contrary to Article 14 read with A2P1, due to higher debt aversion and lower earning potential among these groups.
• The Secretary of State failed to comply with the public sector equality duties by insufficiently analyzing the impact on protected groups and by treating socio-economic disadvantage as a proxy for race and disability without separate consideration.
• The Secretary of State's justification for the fee increases was inadequate, motivated by ideological and financial considerations rather than legitimate objectives.
• The court should consider international obligations under the International Covenant on Economic Social and Cultural Rights (ICESCR), which promotes progressive introduction of free higher education.

Respondent's Arguments

• The fee increases are part of a comprehensive package ensuring effective access to higher education, including deferred repayment, increased maintenance support, scholarships, and access plans approved by the Director of Fair Access.
• The Secretary of State conducted a rigorous and substantial analysis, including reliance on the independent Browne Review and extensive consultation.
• The policy objective is the sustainable funding of high-quality higher education accessible to talented students, not mere cost-saving or ideological aims.
• There is no clear evidence that the regulations disproportionately disadvantage protected groups; any potential adverse effects are mitigated by the package of supporting measures.
• The Secretary of State complied substantially with the public sector equality duties, having due regard to the need to promote equality of opportunity, particularly focusing on socio-economic disadvantage as a surrogate for race and disability.
• The court should accord a wide margin of appreciation to the Secretary of State given the policy and economic context and the expertise involved.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sahin v Turkey (2005) 41 EHRR 8	States must provide an effective right of access to higher education if they choose to provide it; restrictions must not impair the essence of the right.	The court applied the principle that charging fees is permissible but must not unjustifiably restrict access; found the restrictions proportional and justified.
Ponomaryov v Bulgaria (2011)	Article 14 prohibits unlawful discrimination, including indirect discrimination; states have a margin of appreciation in charging fees for higher education.	The court held that fee imposition can be justified; the margin of appreciation increases with the level of education; the court deferred to the Secretary of State’s policy judgment.
Ashingdane v UK (1985) 7 EHRR 527	Limitations on rights must pursue a legitimate aim and be proportionate; restrictions that impair the essence of the right are impermissible.	Used to frame the proportionality test applied to the fee increases and restrictions on access.
DH v Czech Republic (2008) 47 EHRR 3	Article 14 includes indirect discrimination; measures with disproportionately prejudicial effects may be discriminatory.	Informed the court’s consideration of whether the fee increases disproportionately impact disadvantaged groups.
Misbehavin Ltd v Belfast City Council [2007] UK HL 19	The court determines whether justification for policies with discriminatory effects is established; not solely the decision-maker's belief.	Applied in assessing the justification for the fee increases under Article 14.
Huang v Secretary of State for the Home Department [2007] UK HL 11	Justification test for indirect discrimination: legitimate aim, rational connection, appropriateness, and necessity.	Guided the analysis of whether the fee increases and associated policies were justified.
R(E) v Governing Body of JFS [2009] UKSC 15	Applied the Huang test to education-related indirect discrimination.	Supported the approach to justification of the challenged policies.
R (Elias) v Secretary of State for the Home Department [2006] 1 WLR 321	Emphasised the importance of compliance with public sector equality duties as integral to anti-discrimination legislation.	Supported the requirement for rigorous consideration of equality duties.
R (C) v Secretary of State for the Home Department [2008] EWCA Civ 882	Reinforced the importance of due regard to equality duties.	Referenced in the context of public sector equality duty compliance.
R (BAPIO) v Secretary of State for the Home Department [2007] EWCA Civ 1139	Emphasised significance of PSED in public decision-making.	Supported the analysis of the Secretary of State’s compliance with equality duties.
Bailey & Ors, R (on the application of) v London Borough of Brent Council & Ors [2011] EWCA Civ 1586	The duty to have due regard requires conscious directing of the mind to equality obligations.	Used to evaluate the sufficiency of the Secretary of State’s consideration of equality duties.
R (Baker & Ors) v Secretary of State for the London Borough of Bromley [2008] EWCA 141	The PSED requires substantive consideration beyond mere non-discrimination.	Informed the assessment of the rigour of the Secretary of State’s equality impact assessment.
R (Brown) v Secretary of State for Work and Pensions [2009] PTSR 1506	Proper record keeping and gathering relevant information are important for PSED compliance.	Referenced regarding the duty of inquiry and evidence of compliance with equality duties.
R (EHRC) v Secretary of State for Justice [2010] EWHC 147	Equality impact assessments must be substantive and highlight deficiencies.	Used to critique the quality of the Secretary of State’s equality impact assessment.
R (Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062	Equality impact assessments may be formulaic and insufficient without substantive analysis.	Considered in evaluating the sufficiency of the Secretary of State’s assessment.
Secretary of State for Employment v Tameside Metropolitan Borough Council [1977] AC 1044	Public authorities have a duty to be properly informed before decision-making.	Applied in relation to the duty of inquiry under the PSED.

Court's Reasoning and Analysis

The court carefully analysed the compatibility of the 2010 Regulations with the right to education under A2P1 and Article 14. It acknowledged that while the State is not obliged to provide higher education, if it does, it must ensure effective access. Charging fees, including increased fees, is permissible provided it does not unjustifiably restrict access or discriminate unlawfully.

The court accepted that the fee increases might discourage some students, particularly from disadvantaged backgrounds, but concluded that the availability of loans, maintenance support, scholarships, and access plans mitigated these effects. The court found no clear evidence that the regulations disproportionately impact protected groups, and the claimants had not discharged the burden of proving disparate impact to the requisite standard.

In assessing justification under Article 14, the court applied established tests requiring legitimate aims, rational connection, and proportionality. It found the objectives of sustainable funding and maintaining educational quality legitimate and that the means employed were appropriate and necessary. The court rejected the claimants' arguments that the Secretary of State’s analysis was inadequate or motivated solely by ideological or financial concerns, highlighting the extensive consultation and the independent Browne Review.

Regarding the public sector equality duties, the court recognised the statutory requirement for due regard to promoting equality of opportunity for protected groups. It found that the Secretary of State had substantially complied with these duties, particularly focusing on socio-economic disadvantage as a proxy for race and disability. While the court noted that the equality impact assessments lacked an express focus on all statutory criteria and that the duty requires a substantive, rigorous consideration, it concluded that the Secretary of State had properly considered the relevant impacts related to the fee increases themselves.

The court acknowledged that a more detailed focus on some equality objectives might have been beneficial, but given the financial nature of the decision and the package of mitigating measures, the breach was not sufficiently serious to warrant quashing the regulations. The court emphasised the importance of deference to the Secretary of State's policy judgment in this complex area.

Holding and Implications

The court granted a declaration that the Secretary of State failed fully to comply with the public sector equality duties before implementing the 2010 Regulations.

However, the court refused to quash the regulations. It held that the breach identified was not sufficiently serious to justify such a remedy, especially given the extensive reliance on the regulations by government, universities, and students, and the potential administrative and economic disruption quashing would cause.

The decision means that the 2010 Regulations remain in force, allowing the increased fee structure to proceed as planned. No new precedent was established beyond clarifying the level of compliance required with equality duties and the court's approach to proportionality and justification in the context of higher education funding reforms.