Due to a loophole in EU law, while Scottish and non-UK EU students can benefit from a university education funded by the Scottish government, that same government is free to charge students from elsewhere within the UK whatever it deems fit for the same privilege.
According to Phil Shiner of Public Interest Lawyers, this "contravenes article 14 of the European Convention on Human Rights and could also be in breach of the Equality Act". However, the Scottish government contends that as tuition fee arrangements are based on ordinary domicile and not nationality, the current system is lawful.
Shiner's invoking of the Equality Act 2010 (can be seen as something of a red herring. While the act prohibits discrimination by further education bodies in the admission of students, it accepts discrimination relating to nationality, ordinary residence, or the length of time a person has been present or resident in or outside the UK, provided that the body is acting in accordance with parliament or arrangements made with the approval of a minister of the crown. It surely follows that the approval of the Scottish parliament to the current arrangement for tuition fees is proof in itself that the arrangements do not breach the Equality Act.
This does not of course preclude anyone from bringing a claim under article 14 of the European convention for the protection of human rights and fundamental freedoms (ECHR), which bans discrimination in relation to the application of the other convention rights. Under article 2 of the first protocol, one such right is unfettered access to education institutions. It is presumed that this will be the basis under which Shiner proposes to bring any action. However, the claim may not be clear cut as there is no direct discrimination; the basis of access to free university education in Scotland is one of residency, not nationality.
This applies both ways: if an English, Welsh or Northern Irish student is resident in Scotland they may be entitled in the same way as a Scottish student to free university education. Conversely, if a Scottish student is resident in another part of the UK they may well not be entitled to free university education in Scotland. If the claim were to succeed it would be on the basis of indirect discrimination in that the criterion of ordinary residency will inevitably affect English, Welsh and Northern Irish students to a greater degree. It seems that residents in those areas are more likely to identify with those respective nationalities.
It is important to note that any claim brought by an individual in the European court of human rights must be brought against a signatory to the ECHR. Therefore, the claim would have to be brought against the UK, not the Scottish executive. The Scotland Act 1998, which established the Scottish executive, specifically precludes the devolved government from doing anything which would be in breach of the ECHR or the Human Rights Act 1998. Therefore, if the claim against the UK were to succeed, the UK Parliament would be forced to rectify the breach. This has the potential to be politically explosive as Westminster would be forced to interfere in the domestic arrangements specifically devolved to Scotland. It is inconceivable at the moment that Westminster would abolish tuition fees in England. They could, however, be forced therefore to overrule the devolved institutions and harmonise the fees across the UK.
However, as tempting as it is to believe that such a claim might succeed, we consider it unlikely. The disparity in treatment between those resident in Scotland and those resident elsewhere within the UK is a matter of internal governmental policy as decided by those authorised to make such policy. The UK would surely seek to justify the current system on that basis.
And if that fails, the government will probably do its very best to get around the decision. Surely, this would be a better proposition than the British government telling the Scottish executive that it wants some of its power back.
News By:
guardian.co.uk
According to Phil Shiner of Public Interest Lawyers, this "contravenes article 14 of the European Convention on Human Rights and could also be in breach of the Equality Act". However, the Scottish government contends that as tuition fee arrangements are based on ordinary domicile and not nationality, the current system is lawful.
Shiner's invoking of the Equality Act 2010 (can be seen as something of a red herring. While the act prohibits discrimination by further education bodies in the admission of students, it accepts discrimination relating to nationality, ordinary residence, or the length of time a person has been present or resident in or outside the UK, provided that the body is acting in accordance with parliament or arrangements made with the approval of a minister of the crown. It surely follows that the approval of the Scottish parliament to the current arrangement for tuition fees is proof in itself that the arrangements do not breach the Equality Act.
This does not of course preclude anyone from bringing a claim under article 14 of the European convention for the protection of human rights and fundamental freedoms (ECHR), which bans discrimination in relation to the application of the other convention rights. Under article 2 of the first protocol, one such right is unfettered access to education institutions. It is presumed that this will be the basis under which Shiner proposes to bring any action. However, the claim may not be clear cut as there is no direct discrimination; the basis of access to free university education in Scotland is one of residency, not nationality.
This applies both ways: if an English, Welsh or Northern Irish student is resident in Scotland they may be entitled in the same way as a Scottish student to free university education. Conversely, if a Scottish student is resident in another part of the UK they may well not be entitled to free university education in Scotland. If the claim were to succeed it would be on the basis of indirect discrimination in that the criterion of ordinary residency will inevitably affect English, Welsh and Northern Irish students to a greater degree. It seems that residents in those areas are more likely to identify with those respective nationalities.
It is important to note that any claim brought by an individual in the European court of human rights must be brought against a signatory to the ECHR. Therefore, the claim would have to be brought against the UK, not the Scottish executive. The Scotland Act 1998, which established the Scottish executive, specifically precludes the devolved government from doing anything which would be in breach of the ECHR or the Human Rights Act 1998. Therefore, if the claim against the UK were to succeed, the UK Parliament would be forced to rectify the breach. This has the potential to be politically explosive as Westminster would be forced to interfere in the domestic arrangements specifically devolved to Scotland. It is inconceivable at the moment that Westminster would abolish tuition fees in England. They could, however, be forced therefore to overrule the devolved institutions and harmonise the fees across the UK.
However, as tempting as it is to believe that such a claim might succeed, we consider it unlikely. The disparity in treatment between those resident in Scotland and those resident elsewhere within the UK is a matter of internal governmental policy as decided by those authorised to make such policy. The UK would surely seek to justify the current system on that basis.
And if that fails, the government will probably do its very best to get around the decision. Surely, this would be a better proposition than the British government telling the Scottish executive that it wants some of its power back.
News By:
guardian.co.uk
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