Geraldine Van Bueren: 'Cutting tuition fees could be unlawful'

England once had one of the world's most admired university schemes, free at the point of access, but now money is being wasted on reviews on how to retrieve something of what we once took for granted. The latest draft proposals for students to waive grants and maintenance in exchange for free tuition if they live at home may give rise to further expenditure: not constructively, in increasing the number of poorer students, but defensively in fighting legal challenges in the courts. These proposals have not taken full account of either British or European law.

The Human Rights Act provides that no one shall be denied the right to education, and the right to education should be implemented without discrimination. It is a right which is not limited to primary and secondary schooling, and extends to university education.

Latest figures from the educational charity, the Sutton Trust, reveal that 77 per cent of state-educated school students wish to attend university. However, the right to education enshrined in the Human Rights Acts does not guarantee a university place for everyone. It does, however, provide that, in creating access to university education, the Government must not adopt any policies which are either directly or indirectly discriminatory.

The Human Rights Act's prohibition of discrimination does not mean every student has to be treated identically regardless of circumstances. The Government is entitled to treat prospective students differently but, crucially, any differences in treatment must have some basis in rationality.

It is commonly assumed that the Human Rights Act only bans discrimination based on race, sex, religion, sexuality and disability, but the prohibition on discrimination is much broader. The Act also prohibits discrimination based on social origin, property, birth or any "other status". The category "other status" is intentionally broad, so that it embraces social backgrounds, including the relative wealth or poverty of children and their families.

Financing of access to university education by poorer children is by means-tested grants and loans. Grants are now frozen, despite rising costs, and there is rising graduate unemployment. To link the right of access to university to such an arbitrary basis as parental location will be open to challenge in the courts. The nearest university may not even specialise in a student's chosen subject.

Undoubtedly, the wealthiest students and to some extent, some poorer students who live at home in university cities such as London, Manchester, Oxford and Cambridge, will be able to benefit, but poorer students whose homes are far from universities will not. This amounts to discrimination in access to university.

There are also students, many of them female, who choose university in the face of strong parental opposition. It is difficult to see how such a scheme would benefit a student who has to live away from home but who cannot rely on the means-testing of parental income. For such students, some from minorities, living at home and attending universities is not possible. It is not only a question of English law. The waiver of tuition fees for students living at home may also be challengeable in Europe. Currently, students from other EU countries are entitled to tuition fee loans, but generally are not eligible for maintenance grants or loans from British government bodies. As it would not be possible for students from mainland Europe to live in their family home while attending an English university, the system would discriminate against them in breach of EU law.

The Government recently reported to the UN on how it has implemented the right of students to progressively free university education. According to our treaty commitments, the UK has a legal obligation to make university education progressively more free. The only possible exception is where an access policy is both designed to and achieves a substantial increase in the number of poorer students. This has not occurred.

Between 2003 and 2008, the increase in poorer students attending university was only 3 per cent, and the Government appears to have abandoned its laudable target that half of all those aged 18 to 30 will be in higher education by 2010.

Linking fee exemption to the location of parental property is irrational and, therefore, open to legal challenge. Ironically, what once may have been regarded as dated idealism, a return to free university places for all, may prove cheaper than increasingly desperate tuition proposals.

The writer is professor of international human rights law at Queen Mary College, University of London, and a visiting fellow at Kellogg College, Oxford