Tuition Fees: Human Rights and Wrongs

Laurel

Image © Monika Ciapala

A few weeks ago the Foreign Secretary William Hague, in a speech at the Foreign Office, declared: “As a government we understand how important it is that we not only uphold our values and international law, but that we are seen to do so.

This may have come as a surprise to those who are acquainted with the UN International Covenant on Economic Cultural and Social Rights. The Covenant, signed by the UK, states in Article 13 that: “Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.”

The UK Government appeared puzzled by this and, in a submission to the UN Committee in 2007, wondered:

whether this paragraph is intended to mean equal access to higher education by: (i) the progressive introduction of free higher education, OR (ii) the progressive introduction of free education up until the point at which higher education commences. The Government’s position on financial provision for higher education students would conflict with interpretation (i) because the Government does not provide free higher education. However, higher education is equally accessible to all in the UK on the basis that fees are not charged at the outset but paid by means of loans at a later stage in the student’s life. If interpretation (i) is correct, the Government believes other State parties (such as Australia and New Zealand) would also have problems with the implementation of Article 13(2)(c).

The UN Committee clarified this in its Concluding observations in 2009 by making clear that the Covenant means free education ‘at all levels’, as follows:

In line with general comment no. 13 (1999) on the right to education, the Committee encourages the State party to review its policy on tuition fees for tertiary education with a view to implementing article 13 of the Covenant, which provides for the progressive introduction of free education at all levels.

So what’s that got to do with International law? Well the UN Covenant is international law as confirmed by the Discussion Paper published in 2011 by the UK’s Commission on a bill of rights which states that: “These international treaties are binding in international law on the UK, but they have not been directly incorporated by legislation into UK law.

To be fair, the UK Government – in its response to the UN Committee’s Concluding Observations in 2009 – acknowledged that it had a legal obligation (under international law) to comply with the covenant but maintained that the UK’s mechanism for implementing the Covenant ensured compliance with the provisions of the covenant. The UK Government said: “We consider that the UK’s method of implementation ensures the fulfilment of the obligations under the Covenant.”

It is perhaps a bit difficult to see how introducing tuition fees ensures the fulfilment of the UK Government’s obligation under the Covenant (and international law) to achieve the ‘progressive introduction of free higher education.’

Perhaps now would be a good time for Mr Clegg to revisit his decision to support the increase in tuition fees. He could after all point to William Hague’s declaration that the UK government should be seen to uphold international law. In case he is still worried that free higher education is unaffordable he can refer to his colleague in the Treasury, Danny Alexander, who, when asked where the £5billion for infrastructure investment was to come from, remarked: “That is a significant sum of money but in the context of a government that is spending nearly £3tr over that period, it’s not at size of money that you would expect to be difficult to find both from underspends and also from other decisions we’re making.

According to the department of Business, Innovation, and Skills, the tuition fees increase is expected to save £3billion over 3 years – not a lot when £5billion can apparently be found from underspends.

If Mr Clegg is worried about reneging on his pledge, he could simply request that the rise in tuition fees be postponed indefinitely. That way his party would have supported the rise and fulfilled its commitment to the electorate.  At the same time it would ensure that his party heeds the call of Mr Hague to be seen to uphold international law.

The above comments question, but do not come to conclusion on, whether the UK is compliant with International law and are without the benefit of legal opinion which, if taken, might come to the conclusion either that the UK is compliant or that it is non-compliant.

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