Lawyer challenges Scots fees for English students

22 Aug 11
Scotland’s flagship policy of free higher education is facing a legal challenge that could have serious implications both for the funding of the policy and for the wider devolution settlement.

By Keith Aitken in Edinburgh | 22 August 2011

Scotland’s flagship policy of free higher education is facing a legal challenge that could have serious implications both for the funding of the policy and for the wider devolution settlement.

Paul Shiner of Birmingham-based Public Interest Lawyers is reported to be preparing a case against the Scottish Government’s decision to charge students from England fees of up to £9,000 a year to attend Scottish universities, while students from Scotland and from other European Union countries go free.

With 20,000 English students currently studying in Scotland, a win for Shiner would knock a big hole in the financial foundations of the policy, at a time when Scottish ministers are actively looking for ways to extend charging to EU students. It would also raise issues about Holyrood’s freedom to legislate in devolved areas where there is a knock-on effect on other parts of the UK.

Scottish Ministers are determined to stand firm. ‘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,’ a Scottish government spokeswoman said.

EU law forbids discrimination by one EU state against students from another. The Scottish government case is that England is not a state, and that fees for English students are therefore lawful. Scotland also charges students from Wales and Northern Ireland, though their costs are met by their respective devolved administrations.

Shiner may bring a further challenge under the 2010 Equality Act, which prohibits discrimination by an institution in ‘the terms on which it offers to admit the person’.  He is already challenging the fee rises announced for English universities.

Financial constraints have raised the stakes surrounding the no-fees policy. Currently, English students in Scotland pay between £1,820 and £2,895 per year. 

But when England raised the fee ceiling for next year to £9,000, Scottish Education Secretary Michael Russell decided to follow suit for English students studying in Scotland, undeterred by warnings that this could discourage many because a Scottish degree usually takes four years compared with England’s three.

Russell is also keeping a close eye on Ireland’s attempt to get around the EU rules by imposing a ‘service charge’ on students from outside its borders.

The no-fees policy for Scottish students has wide support among Scottish politicians, though it is opposed by the Tories, whose education spokeswoman Liz Smith said that Shiner’s challenge was ‘yet further proof of the shambles which is the SNP’s policy on higher education funding’.

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