Judges in England and Wales have long been sensitive of the boundaries of their authority under the Judicial Review jurisdiction. Lord Hope recently sought to highlight the limits of the judicial role in the Axa Insurance (2011) case, by contrasting it with the focus of Parliament (at ):
While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country’s best interests as a whole.
Today the High Court provided a nuanced judgment in a judicial review action brought over the raise in university tuition fees to a maximum of £9000 which will be introduced in September 2012. Although the claimant teenagers (Katy Moore and Callum Hurley, pictured above left) were unsuccessful in their bid to have the Court quash the Higher Education (Higher Amount) Regulations 2010 which introduced the fees, the judges did recognise that ministers had failed to fully carry out some of their Public Sector Equality Duties (PSEDs), which require that consideration be given to whether the decision to increase tuition fees had a disproportionate (and hence, potentially indirectly discriminatory) impact on protected groups within society.
In many ways the case highlights a number of important changes to public law in the recent decades. Once upon a time, English public law regarded the function of judges as interpreting and applying legislation in accordance with Parliament’s intent. By the 1990s, the judiciary had developed their powers of Judicial Review under common law to allow them to “direct withering fire on the executive” (to use a phrase coined by Sedley J in his contribution to Law and Government Action: The Courts and Alternative Mechanisms of Review (1994), edited by Genn and Richardson, 38) when its policies exceeded its lawful powers, were arbitrary or breached rules of procedural fairness. Nonetheless, even in the mid-1990s, judges were extremely cautious when it came to applying these rules to decisions on the allocation of scarce resources by official decision makers, lest it be regarded as an effort to usurp decisions for which elected representatives were ultimately accountable. The case of ex parte B is one of the most famous examples of such a decision. The father of a ten year old girl suffering from acute myeloid leukaemia objected to the treatment proposals set out by Cambridge Health Authority (which refused to fund further chemotherapy). The courts rejected the judicial review, with (the then) Sir Tom Bingham declaring that:
I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. … Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make.
Following decisions like this, the outcome of Hurley and Moore must seem inevitable, but in less than two decades the Human Rights Act 1998 and the PSEDs imposed by anti-discrimination legislation have radically extended the judiciary’s reach, “legalising” the official decision-making process even when regulations passed by Parliament are at issue.
The claimants’ first challenge was on the basis that the increase in tuition fees constituted a breach of Article 2 of Protocol 1 of the European Convention on Human Rights (A2P1 ECHR), which, together with Article 14 ECHR, provides a right not to be discriminated against in the provision of education. Last year’s Court of Human Rights judgment in Ponomaryov v Bulgaria did affirm (at ) that the right did not necessarily have the same effect at all levels of education and that, “at the University level, which so far remains optional for many people, higher fees for aliens – and indeed fees in general – seem to be commonplace and can, in the present circumstances, be considered fully justified.”
This was not the end of the matter for the High Court’s evaluation of the case, however. Elias LJ assessed the fees scheme not simply against the ECHR by also against the International Covenant on Economic Social and Cultural Rights (ICESCR) on the basis that the Court of Human Rights has, in recent cases, considered ECHR rights in light of the provisions of the Covenant (see Demir & Baykara v Turkey (2009) at  and Opuz v Turkey (2010) at ). He concluded (at ) that:
[T]he progressive introduction of education is not an absolute obligation; it must depend on the resources available and that in turn will depend upon the choice of how large to make the tertiary sector. Article 2 of the ICESCR provides in terms that a state should take steps fully to realise the rights recognised in the Covenant “to the maximum of its available resources”. In view of that, there must be a serious question whether the UK is in breach of the provision.
So far the outcome of the case is little different, on a similar issue of resource allocation, from ex parte B. Nonetheless, the High Court’s approach in reaching this outcome is dramatically different, requiring the judge to be conversant not only with the principles of the ECHR (which has been incorporated into UK law) and also with the requirements of the ICESCR (which has not). It is impossible to deny the growing influence of Economic, Social and Cultural rights within UK public law.
Moreover, whilst the court did reject the claim that raising fees would, of itself, breach A2P1, the judges were more active in their assessment of whether the raising of fees involved discrimination. Accepting (at ) that “some students at least will be discouraged from applying to institutions of higher education because of the fee increases”, the court took great care to assess whether this would have a discriminatory affect upon participation in University by protected groups (such as students from lower socio-economic backgrounds). Elias LJ concluded that the policy of fee rises was proportionate in light of concerns regarding discrimination, but only when considered “in the round” (-):
[I]t is necessary to look at the policies in the round and not simply focus on the increase in fees set down in the regulations. There can be no doubt that a steep increase in fees alone would discourage many from going to university and would in particular be likely to have a disproportionate impact on the poorer sections of the community. However, the availability of loans mitigates that effect. Further, given the existence of the various measures which are directed specifically at increasing university access to poorer students, I do not think that at this stage it is sufficiently clear that as a group they will be disadvantaged under the new scheme.
At this point in time, no clear adverse impact was evident, in light of Government loan provision and access schemes, but the court held open the door that the regulations may well be open to further review if evidence of discriminatory impact emerged after the scheme came into operation. In reaching the decision that the policy was justifiable notwithstanding any potential discriminatory impact, Elias LJ carefully reviewed whether these concerns had played a proper part in the decision-making process:
I wholly reject [the claimant’s] 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.
Therefore, the Court might have ultimately considered the importance (at ) of the fact that ‘[i]f charging fees of this magnitude is unlawful, public resources will have to be provided, at the expense of other competing and pressing interests’, but this was no longer the overriding concern on the judiciary’s mind. The quality of the decision-making process is thoroughly evaluated, even to the extent of assessing Parliamentary debate.
Moreover, despite the claimants’ defeat on this issue, Elias LJ’s judgment came with a sting in the tail. PSEDs, once spread across the Race Relations Act, Disability Discrimination Act and Sex Discrimination Act, have now been rolled together in section 149 of the Equality Act 2010 (although this measure entered force after the 2010 regulations were passed). They require ministers and officials to thoroughly evaluate whether policies have a discriminatory impact in advance of their being promulgated. Essentially, they ensure that issues such as race, gender and disabilities are considered as part of a decision-making process. The Court was therefore required to consider not only whether substantive discrimination resulted from the decision to raise tuition fees (there being insufficient evidence, as yet, to assert that it had), but that these concerns had been assessed whilst the policy was under consideration. Elias LJ considered it “fanciful” to suggest that the decision to raise fees had been taken without consideration of these issues (at ), especially in light of the focus in the Browne Report on widening participation within higher education. He ultimately recognised (at ) that these aspects of the Report had had an impact upon the tuition fees policy:
The Secretary of State engaged fully with the implications for the economically disadvantaged and therefore with the adverse impact on minority groups. His conclusion was that they would be disproportionately affected if they were simply subjected to fees without the safeguards of the loans and the other ameliorative measures I have discussed. It is for that reason that various measures have been adopted to assist them.
But some consideration of opportunities for access to higher education was not the same as conducting the full range of Equality Impact Assessments required by law (at ): “Whilst there is a significant correlation between the socially disadvantaged and those from disabled households or from ethnic minorities, clearly they are not the same thing.” The government was therefore in breach of the PSED requirements (at ):
I cannot discount the possibility that a more precise focus on the specific statutory duties might have led to the conclusion that some other requirements were potentially engaged and merited consideration.
Few judgments better highlight the impact that the expanding reach of Judicial Review has had on the decision-making process. For ultimately, Hurley and Moore is a decision which affirms how extensive the judiciary’s oversight of the decision-making process has become, as a result of a combination of human rights and equality legislation. These pieces of legislation, of themselves did not radically change government decision-making in the UK. Together, however, they amount to more than the sum of their parts.
And yet, there is one final twist in the tale. Vince Cable (responsible, as minister in charge of the Department of Business, Innovation and Skills, for government policy regarding universities), may have failed to fulfil his PSED requirements, but ultimately the Court in Hurley and Moore refused to quash the Higher Education (Higher Amount) Regulations. In one of the best recent examples of the flexibility of remedies in administrative law, Elias LJ recognised that the requested remedy would have such far-reaching ramifications as to be inappropriate (at ):
[A]ll the parties affected by these decisions – Government, universities and students – have been making plans on the assumption that the fees would be charged. It would cause administrative chaos, and would inevitably have significant economic implications, if the regulations were now to be quashed.
The Court therefore simply declared that a breach of PSED had occurred (if you like, an ersatz “declaration of incompatibility” engineered to fulfil the requirements of equality legislation). The ball returns to the government’s court, with sufficient warnings in this judgment to encourage action.
Sedley J once warned, even before the ex parte B case, of “pincers” closing in on the judges responsible for the expanding domain of administrative law: “the pressures, which cannot be wholly resisted, towards omnicompetent adjudication, and the want of any corresponding expansion in the data and culture with and within which we carry it out” ( Public Law 386, 398). Hurley and Moore, represents the side-stepping of these pincers. The Court, in focusing its efforts on process remained within its area of expertise. But it was only able to maintain this approach because Parliament had authorised, indeed required, the courts to consider PSEDs as part of their oversight function. As a decision, Hurley and Moore displays not only the increasing legalisation of administrative decision-making, but the degree to which the judiciary are aware of the power of their position. And as for the claimants themselves, well at least they’ve got an anecdote with which to introduce themselves to first year law students…