The argument that economic pressures do not oblige those in power to increase tuition fees fell on deaf ears when legislation was passing through Parliament several years ago. Opponents of £9,000 fees have an opportunity to revive it, however, using international law - and the government may find it more difficult to ignore their case if it is focused through this lens.
What does international law tell us about setting tuition fees? First, that it is not true that British governments are free to set the level of university fees constrained only by the market. International law regards a university education as a universal human right. And since 1976 the UK has been legally bound by the International Covenant on Economic, Social and Cultural Rights, which requires all states to introduce progressively free university education - in all subjects and at postgraduate level as well.
It is possible to limit obligations under the treaty by making a “reservation”, but the UK has not done so in relation to university fees. Nor would the fact that the covenant has not been incorporated into British law exempt ministers from having to take seriously the requirement to move towards free higher education when setting fees policy.
What has happened, of course, is the opposite - and moving from providing free university education to charging fees of £9,000 a year, as England has done over the past decade, could be legally justified only if the change had resulted in a significant increase in the number of students from non-traditional backgrounds. Such a change is not evident.
Any attempt by the UK to argue that its economic circumstances necessitated the raising of fees would be fraught with difficulty given the wide range of fees charged in other European countries - all of which have been affected by the downturn. In Austria, university education, at undergraduate and postgraduate level, remains virtually free for students from European Union countries and those outside the EU with which Austria has an agreement.
In its latest report in 2009, the UN Committee on Economic, Social and Cultural Rights, which monitors the implementation of the covenant, recommended that the government review its fee policy with a view to providing free university education. Courts in England are now beginning to consider the duties of the government in relation to the covenant. Although a recent challenge to the £9,000 fee cap was unsuccessful, the High Court did rule that the government had failed in its equality duties in raising the fees. Fees could still be quashed if they prove in fact to discriminate against poorer students.
A more critical future report from the UN committee would help strengthen a future student challenge. The committee might also consider the policy difference between different UK jurisdictions - for example, it might use the Scottish policy of not charging upfront fees for full-time Scottish students to criticise England’s £9,000 fees policy, even though the UK government would argue that Scotland’s policies fall under its devolved powers.
The UK has a duty, with which it complies, to report to the UN committee. The committee also takes evidence from non-governmental bodies, which could include the National Union of Students and the University and College Union. It then questions the government on all this evidence in a public session, held in Geneva, and publishes its conclusions.
It would strengthen any argument the unions were to make if they - together, perhaps, with concerned teaching unions and human rights groups - coordinated a single submission. This could also include evidence from affected schoolchildren.
There is no cost to take part in the proceedings, and the next report is due in 2014, which leaves sufficient time for a properly argued challenge to England’s fees regime to be mounted.
Of course, the committee lacks the power to enforce its own conclusions. But previous reports by some treaty bodies have been debated by the UK Parliament, and they can also be used in the English courts as evidence of human rights breaches. Ministers can also be questioned on the committee’s recommendations by Parliament’s Joint Committee on Human Rights. This public questioning, as well as the reports, could then be used by MPs to campaign for the government to abide by its legally binding responsibilities towards students.
There would be no guarantees. No country, however, likes to admit to violating international law.