Legal challenge to Scottish Government’s tuition fees proposal

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by a Newsnet reporter

A leading English human rights lawyer has announced his intention to take the Scottish Government to court in order to test the legality of Scottish plans to charge tuition fees to university students domiciled in England, Wales or Northern Ireland.  Students who reside in Scotland do not pay tuition fees.  Phil Shiner of the legal firm Public Interest Lawyers believes that the Scottish proposals are in breach of the European Convention on Human Rights and may also be in breach of the UK’s Equality Act.

Mr Shiner is already representing two students who are protesting about the recent decision in England to increase tuition fees at English universities.  Following an initial court hearing the students have now received formal permission to have the case considered by a full judicial review.  Mr Shiner has stated that he is currently seeking support from students in order to embark upon a class action against the Scottish government.

Jennifer Watts, founder of a campaigning group called Make Uni Fees Equal was quoted in Daily Mail saying: “English students have to pay thousands of pounds to get a university education.

“Yet Scottish get theirs for free.  How is this discrimination allowed in the United Kingdom?  It is only fair that either we all pay or no one pays.”

Protecting students from tuition fees and ensuring that Scotland retains its historic tradition of free access to education was a central plank in the SNP manifesto during the Holyrood elections earlier this year.  The policy has widespread public support in Scotland.

In order to protect Scottish students from tuition fees the Scottish Government will have to make cuts in some other part of its budget as it is dependent upon a block grant from Westminster.  Scotland is not provided with funding to pay for the university education of English and Welsh domiciled students and in order to provide these students with free education too, the Scottish Government would have to make even further cuts to Scottish public services in other areas.  At the same time the move would risk producing a flood of students from across the border, further increasing the strains on an already limited budget.

Under EU rules governments are not allowed to discriminate against students from any other EU state.  This has produced the anomalous situation whereby students from other EU states will not be charged tuition fees in Scotland, but students who normally live in another part of the UK will be.   

The Scottish Government maintains that EU rules do not apply to different policies within member states and that under UK and EU rules Scotland is not an EU state but a region within the UK.

A Scottish Government spokeswoman said: “We are clear that the proposals set out are lawful.  Tuition fee arrangements are based on ‘ordinary domicile’, not nationality.

“In an ideal world, no students would pay fees.  Our main priority has to be to protect opportunities for Scottish students to study at Scottish institutions by maintaining free education north of the border.

“With the UK Government introducing tuition fees south of the border of up to £9,000 per annum, Scottish students studying in England will continue to receive financial support in the form of bursaries and loans.”

The spokeswoman added that it had no record of any correspondence from Mr Shiner regarding his legal challenge.