>If Scots vote to leave the UK in September, the Scottish Government plans to continue to charging tuition fees for students from England, Wales and Northern Ireland, but not for anyone else in the European Union. I’ve argued before that this is unlikely to happen, and today a former EU Commissioner for Education and Training is quoted as saying that all EU students would have to receive ‘the same treatment’.
Only in Scotland, and only this year, would anyone think this news. The legal position is quite clear. European legislation on free movement of labour – one of the central founding principles of the EU – covers higher education, which is treated legally as a form of vocational training. There have been challenges in the past to the definition of higher education as a form of vocational training, and the courts have always rejected them.
If you’re interested in reading about the origins and rationale of this rather quirky legal status, you can always get a library copy of my now rather dated book on European education policies. But the main consequence was that it allowed the EU to develop a series of mobility schemes and collaborative projects, and still underpins such programmes as Erasmus+.
So under current European law, the Scottish Government must treat all EU citizens equally in respect of access to higher education. Of course, the Government can try to get the law changed, and it might well wish to have higher education redefined as an area of national rather than European competence, but it has not said it will do so. And at present I can’t see how a small, new member state will be able to gather together enough support for the European Commission to change its current stance.
In its White Paper on independence, the Scottish Government effectively says that it will seek an opt-out. It doesn’t use that phrase, of course, which is popularly associated with the Coservative Party. Rather, it says that it will if necessary present an ‘objective justification’ for an exemption, 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.
Will this wash? Well, I think it just about possible, but highly unlikely. If accepted, it would open up a massive boîte de Pandore. And here are just a few of the most obvious reasons why.
At the most general level, it runs against current EU policies on higher education, which aim at improving professional mobility by increasing the numbers of students who attend a university in another European country than their own, and aligning the qualifications structures of universities in different European countries. More particularly, it would present a precedent for other countries in similar situations (eg. Denmark/Sweden, Wallonie/France, Netherlands/Flanders, Luxembourg and everyone). It would also annoy the socks off higher education ministers and rectors who have persuaded university staff to teach in English. The practical consequences elsewhere would also be significant, starting with the effects in our neighbouring island of Ireland.
So you can just imagine how other ministers of education will react when Mike Russell, Scotland’s Cabinet Secretary for Education and Lifelong Learning, sets out his plans to the European Council on Education. I would like to be in that room.