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.