Scottish government fees stance ‘incompatible with EU law’

Former ECJ judge’s legal opinion casts doubts on post-independence policy

August 26, 2014

A former judge of the European Court of Justice has said the Scottish government’s plan to continue its existing tuition fee policy after independence would be “incompatible” with European Union law and “could not survive challenge” in the courts.

Sir David Edward, who served in the court from 1992 to 2004, also said that the white paper blueprint for independence was “shot through with confusion, inconsistency and irrelevance” in its argument for maintaining the current arrangements.

At the moment, Scottish domiciled undergraduates and other EU students from outside the UK are charged nothing to attend university north of the border.

But students from England, Wales and Northern Ireland face fees of up to £9,000 a year.

Currently this is legally permissible because EU law allows such discrimination within member states.

But if Scotland opted for independence and became a separate EU member state to the remainder of the UK, it has been argued that this policy would become illegal.

The Scottish government has argued that it would be able to convince the EU that it should be allowed to continue existing arrangements because the country would suffer a damaging influx of English students if tuition fees were scrapped for everyone, as they would displace Scottish youngsters.

However, Sir David’s legal opinion, provided for the pro-union group Academics Together, discusses previous, similar cases put before the European courts and finds that in only one case has a state managed to impose restrictions on the number of cross-border students – and even here it was only “partly successful”.

“And there has been no case at all where a member state was successful in upholding a financial barrier (fees or other charges) to equal access,” he wrote.

Speaking of the Scottish government’s post-independence proposal, Sir David said that it was “arguable” that it would be treated as a case of “direct discrimination” against students from the rest of the UK.

“The reason is that, although based on residence, the policy would apply exclusively to residents of one other member state (rUK) and not to those of other member states, even if they have a policy of charging fees the same as, or higher or lower than, England, Wales and Northern Ireland. Moreover, the policy may be changed if ‘Westminster’ changes its policy,” he said.

“In all the very extensive case law there is no case where a member state has been able to justify imposing a financial charge on access to universities by students from other member states which was not imposed on home students,” he continued.

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Reader's comments (3)

All the more important to convince inhabitants south of the border that a wealthy nation can provide education for its youth through the collective purse instead of by charging each individual customer. I wonder whether the law makes a distinction between students and customers as many academic teachers do. I also wonder whether it allows double-speak on this matter as most managers of universities do. But can there be universities with managers? What is it that they manage exactly? My impression is that the two terms are incompatible in the long run. Possibly half a century is too short of a time to judge if my view is correct.
All of that hinges on Scotland being an EU member state. Westminster is forever telling Scotland that it will not be allowed to join the EU as a separate state. So, which is it? In the event of a Yes vote, are we out of the EU, in which case we can charge international fees, or are we in the EU, in which case we abide by EU law?
To Anne Tierney If iScotland is not an EU state, being able to charge non-Scottish students £9K a year would small compensation. Outside the EU we would lose 1 freedom of movement within EU 2 tariff free trade (we would be back to GATT, so tariff on our exports) 3 EU regional funds 4 many jobs The Scottish Government position is clear we must be part of Europe. Others have argued we might not be able to get in straight away but given the dire consequences I imagine we will do. You say Westminster tells we can't join, this is illogical. They say we cannot be certain as it requires a unanimous vote and in advance we do not know the conditions (statements of fact). If Westminster as you label rUK decided we could not join, then they would just veto us, plain and simple at the EU. No need for hints or off the record briefings, one vote. Perhaps you can point me to the document in which any member of Cabinet or Shadow Cabinet says they will veto Scotland's entry to the EU? The point made above that one of the consequences of independence is the loss of the 9K per head per year for rUK students is highly likely.