University funding, Scotland and a question of equality

22 August 2011 by

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.

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  1. The regulations are explicit that the distinction is ‘ordinary residence’, not domicile, nationality, or national origins. The ongoing Scottish Government consultation at (which closes, incidentally, this Friday) is equally clear. I could just about understand an argument that a test based on ordinary residence is indirectly discriminatory, cf. Patmalneice v S of S, so that objective justification was required. But I cannot understand why this is any different to my, as a Scottish resident, having to pay the London congestion charge when ‘ordinary residents’ of London don’t have to do so. Or the HMG requirement that students who are residents of non-EU countries pay higher fees.

    Incidentally, this would require to be litigated in the Scottish courts, as the logical argument could only be that Scottish Government is acting ultra vires in terms of section 57 (2) of the Scotland Act, so the apparent assumption of this Birmingham firm that it could sue in England is misplaced.

  2. James Lawson says:

    An interesting case. My ex wife is German. We married in the 1980s while I was serving with Rhine Army. It was her second marriage and we divorced in the 1990s. She made Scotland her home three years ago with her new English husband. My son from that marriage who went to live with her, and has now arguably acquired a Scottish domicile of choice, starts his course with the University of Glasgow in September with the benefit of a student loan required as a sine qua non of enrolment as an ‘English’ Student. His sister is a German National (by my ex wife’s first marriage) who lives in Osnabruck, Germany. It is curious that she could, if so minded, start the same course, free of charge, alongside her her now heavily indebted brother.

    It would be interesting in the extreme to see how this case turns out!

  3. European Citizen says:

    @ Mike:

    EU law protects those who are exercising their right of free movement to another EU country. For example, it would not allow a Spanish university to charge UK students higher fees than those it charges Spanish ones. In that case, a UK citizen would have moved to Spain (another EU country) so he is entitled to the same treatment as any other Spanish citizen. An Englishman moving to Scotland would not be moving to another EU country.
    I do not see how the ‘nationality’ argument is relevant; last time I checked Scotland was not issuing passports.
    Finally, it would be interesting to see what the courts would say if somebody decided to challenge the amount of benefits asylum seekers receive on the basis of it being discriminatory (it is currently set at 75% of income support).

  4. ken says:

    Mike, your comment about typical xenophobic anti-English slant seems to indicatethat you are not really looking for a discussion, but instead want to make political points.

  5. Mike farrell says:

    if EC law prevents scotland discriminating against european students coming to study in scotland, on what grounds does that not extend to protect all british students within the UK? english, welsh and northern irish students are european are they not? also cant see how this is going to protect scottish student places, at the end of the day if the unis in scotland can charge for non scottish british students, then they are going to end up giving preference to those students who are paying more anyway, and students from england etc are not going to be put of studying in scotland if they so wish as they are going to have to pay the same fees as in england, although the apparent and typical xenophobic anti english slant of the scottish governments thinking on this may well put them off.
    sometimes the logic of the so called ‘scottish government’ goes beyond the realms of belief, and sometimes i am deeply embarassed by those who claim to represent scottish interests, i.e. my interests.

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