Could Scottish independence kill off free tuition fees?
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Version 0 of 1. Has Alex Salmond got himself tangled up in a repeat of that deeply damaging, self-inflicted row over his government's phantom European Union legal advice? His critics think so. This time the question centres on his claims that an independent Scotland could still make students from England, Wales and Northern Ireland pay tuition fees to go to a Scottish university, even as no other EU student will be expected to. According to prominent European law experts and his opponents in the pro-UK campaign Better Together, he can't. It would be illegal. And this issue promises to become another very significant dispute in the independence referendum. The issue is of critical importance to the survival of one of his government's most keenly defended and popular policies: guaranteeing free university tuition for all Scottish students. The implications are that independence could kill it stone dead, unless ministers, Scotland's tax payers and the universities are willing to foot the engorged bill to educate foreign students. Due to a quirk in EU law, that policy is entirely legal now: because Scotland has a separate education system within the UK, it can ignore an EU rule which requires each member state to give citizens of any other member state equal access to its universities. Since English, Welsh and Northern Irish students come from within the same member state – the UK, they can be charged to study in Scotland. At present at least. And thanks to devolution within the UK. But what if the rest of the UK becomes a different EU state, can Scotland keep discriminating against its citizens? Well, yes they can, asserted Salmond. As Mike Russell, the Scottish education secretary, pithily put it on BBC Radio Scotland's Good Morning Scotland show on Monday, ending that arrangement would be a disaster. It could mean Scottish institutions would be "swamped by fee refugees", he said. While only about 4,800 non-Scottish UK students now go to Scottish universities, thanks to the higher fees they have been charged since 2012, Russell guesstimated in October that year that those numbers would soar back up to 20,000 UK students if tuition fees were scrapped. That could cost Scotland £150m extra. And if (or when) English universities charge even higher fees, that flow could well swell further. Speaking on Sunday Politics Scotland this weekend, the first minister insisted that continuing to charge UK students after independence would be legal. Speaking after a group of anti-independence academics in the Academics Together group challenged the legality of that policy, Salmond was asked directly by Sunday Politics Scotland presenter Gary Robertson whether he had legal advice to back it up. The first minister said this: Well, this was set out page in 199 to 200 of the [independence] white paper and everything in the white paper is based on the advice we've received, but can I just point out to you that Universities Scotland and not the Scottish government, published last April I think from Anderson Strathern, if I'm right in remembering, exactly how you can go about this providing an objective justification for the policy. So everything in the white paper is consistent with the advice we've received but there's already been published legal advice from Universities Scotland, from an independent body, and it seems strange that the Better Together campaign weren't aware of that or didn't what to mention it when they put out their press statement yesterday. The white paper, Scotland's Future, explained this is based on the principle of "objective justification": Our policy is based on the unique and exceptional position of Scotland in relation to other parts of the UK, on the relative size of the rest of the UK, on the fee differential, on our shared land border and common language, on the qualification structure, on the quality of our university sector and on the high demand for places. We believe that these distinctive characteristics will enable us to justify objectively the continuation of our current policy in a way which is consistent with the principles of free movement across the EU as a whole and which is compatible with EU requirements. The problem is that the Anderson Strathern paper, which is controversial in its own right in academic circles, failed to support the notion that UK students could be treated any differently from other EU citizens. It said the precise opposite. And the white paper itself makes no reference to the Anderson Strathern legal advice. The law firm's assessment said the only potential way to charge UK students fees after independence was to charge every EU student a fee, and then only if a Scottish government succeeded in introducing on new residency test for students to get free tuition. Its legal opinion for Universities Scotland said: RUK students will require to be treated no differently from other EU students in a post independent Scotland and if we are to be able to retain the ability to charge rUK students then the situation for EU students will require to change and, in effect, only those students satisfying the residency requirements would be able to benefit from the more beneficial terms offered to 'Scottish resident' students. The advice was even tentative about whether a residency test could work. It concluded: As a matter of EU law it would appear that it <em>may</em> [their italics] be possible to rely upon a residency requirement for access to preferential fees and grants regimes as long as that requirement is applied to all students regardless of their nationality and can be objectively justified. It also said that in fact, based on a Belgian test case, called Bressol, Scotland may have to charge all students, including its own, and then reimburse Scottish students with a grant. And even then, doing so would be based on a very specific public health test founded on the damage to Scottish society overall if every EU citizen could get free tuition: It may be possible to advance other objective justification arguments dealing with cultural or sustainability issues successfully. There is no doubt however that any such arguments would have to be carefully articulated and evidenced. On more thorough reflection and consideration that might suggest that a switch from a policy centred on the capping of tuition fees to one where fees were applied equally to all students but grants made available on a residency basis might sit more easily within the EU legal framework. Experts in this field dispute even this: Niamh Nic Shuibhne, Professor of European Union Law at the University of Edinburgh, insists that the Bressol theory is untested. She believes that if Scottish students still get free tuition after independence, it is almost certain all other EU students would have to as well – English, Welsh and Northern Irish included. She points out that EU equality rules in this area are not symbolic, they are binding, enforceable and across-the-board. Writing for the Scottish Constitutional Forum in December, she said: All of this means that the Scottish government would face an extremely steep uphill battle to convince the EU institutions that it should be entitled to retain a practice involving systemic direct discrimination against one particular cohort of EU citizens. The European Commission issued a statement on Tuesday taking a similar line. A spokesman for the education commissioner Androulla Vassiliou would not discuss the white paper itself, but said: Unequal treatment based on nationality (or on residence, which in many cases is de facto based on nationality) is regarded as discrimination which is prohibited by Article 18 of the Treaty on the Functioning of the EU, whenever such treatment falls within the scope of Treaty. This is the case for the conditions of access to education, including tuition fees. According to Nic Shuibhne, the best Salmond could hope for would be a transitional deal to allow free tuition for UK students to be phased in: As an alternative strategy, the Scottish government might be able to secure a temporary, transitional arrangement as part of the negotiation process [to] protect its education system from an initial financial shock that current funding structures simply could not withstand. Even then, the government would need to bring to the table very clear empirical evidence of the problem, and the extent of the problem, affecting the sustainability of its university system that charging rUK – and only rUK students – would resolve, also bearing in mind the suitability and necessity elements of the EU proportionality framework. And it would also need to acknowledge that an independent Scotland would be actively working towards recognising the full equality of all EU students – as EU citizens – in the longer term. Professor Paul Beaumont, Professor of European Union and Private International Law at the University of Aberdeen, also wrote on the Scottish Constitutional Futures site: It is hard to see the Court of Justice of the EU accepting the Scottish government's arguments as to how this overt discrimination against students from rUK can be justified. There is therefore a substantial hole in the Scottish Government's plans for funding higher education in Scotland. Our editors' picks for the day's top news and commentary delivered to your inbox each morning. |