Lincoln Lawyer: Two students fail to challenge tuition fees hike

— Katherine Jones is a law graduate who trained with McKinnells Solicitors in Lincoln. She is now a solicitor in the busy personal injury department.

Two teenagers, Katy Moore and Callum Hurley, have taken the government to court to challenge the rise in university tuition fees up to £9,000 per year from September.

They lost the case, but their action raises some interesting issues about who actually makes the law in England and Wales (not Scotland or Northern Ireland, which have their own legal systems).

Up until about 50 years ago the answer was fairly straightforward. Parliament made the law and judges interpreted it. Then along came Lord Denning who decided that judges could make law by a very wide interpretation of legislation.

He brought a fierce moral compass to the court and usually tried to find for the individual against governments or big business. The problem with making it up as you go along, though, is that the law does need some certainty and following his retirement there was a retreat by judges back to simply interpreting the law.

In the 1990’s European law became a part of domestic law and today more law in England and Wales comes from Europe than it does from Westminster. This has coincided with judges being more willing to challenge legislation rather than just interpret it. This is what Katy and Callum were hoping for with their court action.

They applied for what is called a judicial review of the regulations that introduced the increased tuition fees. If the court decided the regulations had not been properly made, the judge could in effect quash them.

They had two arguments: The first was that under the Human Rights Act there was a right not to be discriminated against in the provision of education and that the changes would discriminate against the less well off.

This argument failed because university education is optional rather than compulsory and because the court decided that the availability of loans created a level playing field.

Their second argument was that the minister responsible (Vince Cable) had not carried out an assessment to see if the changes would have an adverse impact on protected disabled groups. This obligation is a recent development imported directly from European discrimination legislation.

The court decided he had not followed the proper process but that, if he had, the outcome would not have been any different.

So, Katy and Callum failed in their application, although they do have something rather special to put on their CVs. As for Mr. Cable, well he did get a shot across the bows, being told to make sure he does better next time.

If he does not follow proper process in the future then there is a real risk that a law passed by Parliament will be held by judges not be valid because of laws passed in Europe.

Whether that is right or wrong is, of course, a matter for debate.