Public Interest Lawyers (PIL), a solicitors’ firm, is planning to bring judicial review proceedings to challenge the Scottish government’s university funding scheme, which allows Scottish universities to charge students from other parts of the UK fees, while students from other parts of the EU and Scotland are not charged fees.
Currently, non-Scottish students from elsewhere in the UK and Northern Ireland have to pay tuition fees in Scotland, set to rise to up to £9,000 annually next year. However, Scottish students and those from other parts of the EU do not have to pay fees at all. Non-British EU students do not have to pay fees in Scotland due to EU law forbidding them from being treated differently to Scottish students.
PIL is planning to challenge the Scottish fees structure on the basis that it infringes Article 14 of the European Convention on Human Rights, which prohibits discrimination in relation to the rights and freedoms set out in the Convention, including on the basis of national origin. It is also bringing the claim under the Equality Act 2010, which protects against discrimination in various forms, with regard to particular “protected characteristics“. One such characteristic is race, defined so as to include “national origins“.
Phil Shiner of PIL has described the Scottish system as “deeply discriminatory“. PIL is already representing other students who are challenging the rise in fees in English university fees up to £9,000.
The Scottish government however has defended its position to the BBC, stating that its main priority is to protect Scottish students’ ability to study at Scottish universities. It does not consider its fee structure to be discriminatory, on the basis that it is based upon “ordinary domicile” as opposed to “nationality“, one of the protected characteristics.
It remains to be seen how the Scottish government develops this argument in court, but it is difficult to see how nationality is not a relevant factor in dictating whether a student has to pay fees in Scotland. Were the argument that the fees structure is based on ordinary domicile alone to succeed, there may be a risk that the purpose of the Equality Act 2010 and Article 14 being defeated by technical loopholes.