Legal Justification and Defence of Scottish University Tuition Fees
The Scottish Government's policy, which funds Scottish students’ tuition when they choose to study at Scottish universities, has faced criticism. Lobbied against it are claims that it violates the Equality Act 2010; discriminates against students who are not Scottish; and causes Scottish universities to favour Scottish and European Union students in the admissions process over offering access to university for students from the Rest of the United Kingdom (rUK). However, upon investigation, it is evident that the foundations of these claims need revisiting.
On the Equality Act 2010
The Equality Act 2010 had the aim of providing the UK with a new legal framework for discrimination laws in order to provide protection on the basis of certain characteristics. The issue of race is often raised when considering the issue at hand, which is defined as including “colour”, “nationality”, and “ethnic and national origins”. An apparent gripe appears to be that, by not funding rUK students’ tuition, the protected characteristic of nationality is violated. This violation occurs in the form of “discrimination” - which the Act defines as, “when someone is treated less favourably than another person, because of a protected characteristic” – or in the form of “indirect discrimination” – which occurs “when a policy or practice applied has the effect which particularly disadvantages people with protected characteristics”.
In theory, it is arguable that the policy cannot discriminate against rUK students since, according to McGill & Co (a Scottish law firm specialising in UK immigration, nationality, and refugee law), nationality law is reserved to Westminster which recognises the British citizen as the only type of national with both a legal definition and privileges. Hence, all four UK constituents could be said to contain populations of the same nationality.
However, in actuality, there is no need for such contentious arguments to disprove any claim that the Scottish Government’s policy violates the Equality Act 2010. This is because access to government funding for a student’s tuition is based on residency, not nationality, ethnicity, or race. Students gain access to government funding by means of having lived in Scotland for a relevant timeframe. Therefore, an English student, born in England with English parents, can qualify for “free tuition” by means of having lived in Scotland for the required period of time. On the flip side, a Scottish student born in Scotland to Scottish parents may not qualify for free tuition if they have lived outside of Scotland.
The Equality Act, according to Matthew Kelly, a legal specialist in issues of higher education, simply cannot apply to this Scottish Government policy for the Act “accepts discrimination relating…[to] ordinary residence provided that the institution is acting in accordance with Parliament”. Moreover, he concludes that “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”.
Conversely, the claim of discrimination lobbied against the policy goes on to be qualified. It is argued that the discrimination occurs not on the base of nationality alone, but in the intersection between nationality and income, seen in the statement that “the Scottish Government seems to actively be encouraging financial discrimination against poorer individuals located in Northern Ireland, England, and Wales”. However, income is not a characteristic protected by the Equality Act 2010. Furthermore, if income were to be a protected characteristic, the Northern Irish, Welsh, and Westminster Governments would all be as guilty, if not more so, than the Scottish Government for not only charging tuition fees to their non-residents but also to their respective domiciles.
For these reasons, accompanied by the fact that attempted petitions and court proceedings against the Scottish Government policy have all crumbled, it is clear that the Scottish Government’s policy does not violate the Equality Act 2010.
On Devolution and Taxation
On the criticism of the “morality” of such a policy, which argues that the policy leaves behind low-income households of rUK, a few facts need to be restated about the legal system of devolution in relation to higher education:
Scottish students who wish to study in rUK must pay tuition fees charged by these institutions.
The Scottish Government charges rUK students roughly the same amount that they would be charged if they had chosen to study in the rUK constituent in which they are a resident.
Higher education within the UK is a devolved issue where devolved governments are responsible for their residents’ issues, such as accessibility.
Having stated these facts and established that the policy does not meet the definition of discrimination listed in Equality Act 2010, one must then address if the policy meets the common use definition of discrimination, particularly with regard to finance.
Common use defines discrimination as “prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex”, where “prejudicial” is understood to mean “preconceived opinion that is not based on reason or actual experience” and “dislike, hostility, or unjust behaviour deriving from preconceived and unfounded opinions”. It is evident that the policy of funding Scottish students’ tuition fees does not meet this definition, because the policy is not one based on a preconceived, baseless opinion or dislike for non-residents, or, more specifically, for non-residents of low income. In fact, it is further demonstrable that this policy is neither a result of a discriminatory Scottish Government nor that it possesses an unintended by-product that would meet the definition of discrimination in common use. In actuality, it is the just result of devolution and tax.
As the funding for Scottish students’ tuition comes from the Scottish Government, the policy is supported through taxation. In summary, the Scottish Government is self-funded through devolved taxation, as well as through receiving funding through the Barnett formula. The Barnett formula allocates non-devolved taxation earnings to the respective devolved governments so that when Westminster decides to spend more or less on things such as health and education in England, the equivalent amount based on population size will be similarly allocated to Northern Ireland, Scotland, and Wales. RUK residents, therefore, pay tuition fees in Scotland for the same reason that international students pay tuition fees – not because they are being discriminated against, but because of taxation.
To simplify the issue of taxation collection and distribution, the reason that it is just for the Scottish resident to receive tuition funding is because, by virtue of being a resident, they have paid for their tuition, alongside all Scottish taxpayers, through the means of taxation, whereas the rUK student will not have contributed so. A similar system takes place in the United States, where in-state students at state schools pay less in tuition fees than out-of-state students due to state taxes contributing to the funding of these schools.
As such, the fact that the Scottish electorate voted to implement free tuition for its residents funded through tax, while the residents of rUK have yet to vote in a party on the basis of doing so, seems not immoral, but instead democratic. When viewed from such an angle, it seems unfair to place the obligation to guarantee higher education for the residents of another devolved government on Scotland.
Thus, it is problematic to argue that, despite never having paid the taxes that fund “free tuition”, rUK residents should not only be entitled to it but that they are also discriminated against in the process. The Scottish government has neither the obligation, financial power, nor mandate to be held responsible for the access of rUK students to higher education. These are all issues that must be addressed by respective devolved governments.
On Alleged Favouritism
Finally, the policy has received criticism on the basis that it “demonstrates the Scottish Government’s preference to have EU students within its borders than students from other countries in the UK”. This refers to the fact that EU students (before Brexit) also qualified for free tuition through a “loophole”.
In actuality, the reciprocal policy (which does not apply to devolved powers within the same state) of charging EU students no more for tuition than is charged to domicile students, is an established and widespread practice. The fact that this agreement will no longer be abided by in 2020 (when students who applied before the Brexit vote to Scottish universities will graduate) clearly demonstrates that the Scottish government has not shown any sort of favouritism, but, instead, has merely abided by EU law.
Furthermore, the Scottish Government’s funding of tuition fees actually limits the access of EU and Scottish students to Scottish universities. The policy means that Scottish universities are capped by the government on the number of offers they are allowed to give out to Scottish and, pre-Brexit, EU students. There is, however, no such cap on rUK students.
According to The Telegraph, this results in “[Scottish] school leavers with as many as eight A-grades in their Highers [being] rejected from Scotland's most eminent universities in favour of English and non-EU foreigners who pay tuition fees”. Therefore, Scottish students from all walks of life, many who have superseded entry requirements, can be turned away in favour of applicants from rUK. In fact, Westminster has even placed a temporary cap on the number of English students allowed to study at Scottish universities which they claim “over-recruit” English students.
In light of such, it is clear that the Scottish Government’s policy does not discriminate against rUK students in a legal sense nor in the case of common usage of the term. The policy has also been demonstrated not to lead to a favouring of applicants from the EU or Scotland. Furthermore, in terms of financial discrimination, it is ironic to hold a devolved government, which has attempted to abolish such issues for its residents, responsible for perpetuating the financial inequalities and barriers to education present in other devolved territories whose residents have not voted for a policy of free tuition.
Read "Financial Discrimination through Scottish University Tuition Fees" for an alternative perspective on this issue.