With little more than a month to go until the referendum on Scottish independence, the Law Society continues to raise critical questions for both sides of the debate on a wide range of issues.
The recent publication of our second paper on Scotland’s constitutional reform attracted widespread commentary, with particular focus on currency and EU membership in an independent Scotland.
However, another essential area to consider before we go to the polls is how our universities would be funded in an independent Scotland. This is an important area for us to consider not solely because of the role universities play in Scottish life as a whole but, for us in the legal sector, because they are vital in terms of the education of the future lawyers who represent and advise so many of us at critical junctures during our lives.
The Scottish Government’s policy is to continue as it is now. That is, to continue to charge students from the rest of the United Kingdom fees while students from Scotland, and other European Union nations, will not pay fees. At present, this occurs because the rest of the UK is not a separate EU member state. Of course, if the Scottish people voted for independence, and both the rUK and Scotland were to be members of the European Union, then the situation would have changed.
It is not usually permissible under EU law to discriminate against individuals from other member states on the basis of their nationality. The general principle is that as citizens of Europe all EU students should be entitled to access to higher education on equal terms regardless of their home state.
The Scottish Government’s proposed policy regarding fees for rUK students post-independence relies upon the principle that member states can derogate in some limited circumstances from their obligation to restrict freedom of movement. But does the policy directly, or indirectly, discriminate against rUK students?
Governments whose national measures seek to directly discriminate against EU citizens on the basis of their nationality (and therefore limit freedom of movement) can only rely upon the derogation grounds expressly included in Treaty of Functioning of the European Union (TFEU).
Indirect discrimination relates to the idea that while the conditions being imposed by national measures are neutral prima facie it is actually far easier, and likely, that home state nationals will be able to satisfy them. Unlike direct discrimination, a far wider justification system exists for measures which indirectly discriminate against nationals from other states. In such instances, member states can use the idea of “objective justification” using a broader range of public interest arguments.
The Scottish Government clearly believes that its proposed policy indirectly discriminates against rUK students. Numerous authorities, however, think the measure directly discriminates. As Professor Nic Shuibne of the University of Edinburgh notes: “The proposed policy cannot, therefore, be classified as indirect discrimination under EU law since it is openly targeted at one group of EU nationals.”
Case law seems to support Professor Nic Shuibne. In “Gravier” the Court of Justice has made it clear that directly discriminatory fee structures are incompatible with EU law. In “Bressol”, the court accepted a member state may limit access to university courses in very specific circumstances. In Commission v Austria, the Court stated that “excessive demand for access to specific courses could be met by the adoption of specific non-discriminatory measures such as the establishment of an entry examination or the requirement of a minimum grade”.
The Scottish Government has outlined its reasoning as to why it believes its policy proposal could be objectively justified. They have produced some modelling (a document entitled RUK Scoping Scenarios) to support this. The Scottish Government is of the opinion that its policy proposal is indirectly discriminatory. It is possible though that the court would consider the proposed policy directly discriminatory as the policy affects only individuals from one member state. If that were the case, the Scottish Government would require to rely upon very limited derogation grounds (public health, public security and public policy – an area which the court has insisted must be defined narrowly).
It is not clear that the Scottish Government would succeed in persuading the court that such a discriminatory policy could be justified on those limited derogation grounds. Ultimately, it would be for the Court of Justice of the European Union to decide.
It is in everyone’s interest that we have a robust economy supported a strong and vibrant university sector, which is why we have called for further clarification on how our universities would be funded if Scotland votes for independence.
• Christine McLintock is vice president of the Law Society of Scotland