Legal advice on the EU and tuition fees in an independent Scotland

The debating chamber in the Scottish Parliament

The debating chamber in the Scottish Parliament

I’ve been banging on for a bit now about the Scottish Government’s belief that the EU would allow it to charge fees to students from the rest of the UK in the event of a Yes vot in September (I’m assuming that the independent monarchy of Scotland would be an EU member, mainly because I can think of no good reason why it would not be, and if the UK is still a member, I’m certain that it would be arguing strongly in support of Scotland’s membership).

The Government’s White Paper on independence guarantees free tuition for Scottish higher education students, while charging tuition fees to students from the rest of the UK. This proposal has been challenged by a number of European officials and former officials. Huw Lewis, the Welsh education minister, has predicted that he will have to join a queue of people wanting to sue the Scottish Government if it attempts to proceed with its plans.

The Scottish Government’s response has been to repeat the claim in the White Paper that it has been advised that it will have an ‘objective justification’ for exempting Scotland from EU law on equal access to higher education for all European citizens. It claims that this is consistent with the legal advice it has received (but which it will not publish), and that ‘This is a point made by Universities Scotland too’.

Universities Scotland commissioned its own legal advice, which is now in the public domain. It received eight pages of cautiously worded advice in April 2013. I’ll happily discuss it in greater detail if anyone is interested, but I imagine most people will be satisfied with the conclusion, which consists of the following two paragraphs:

As a matter of EU law it would appear that it may be possible to rely upon a residency requirement for access to preferential fees and grants regimes so long as that requirement is applied to all students regardless of their nationality and can be objectively justified.

It will be for the government seeking to introduce such a regime to establish, on evidence, that there is a legitimate aim which can be objectively justified which would allow them to derogate from the overriding principles of freedom of movement and non discrimination.

Decide for yourself whether this suggests any realistic prospect of the Scottish Government persuading the EU to over-ride its core principles of non-discrimination and free movement of labour.

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