LAWYERS will launch court action as early as next month to stop the SNP Government's controversial policy of enabling Scottish universities to charge English students up to £9000 a year in tuition fees while home students pay nothing, The Herald can reveal.
The petition for judicial review at the Court of Session in Edinburgh being launched by Birmingham-based practice, Public Interest Lawyers (PIL), throws up the possibility that Michael Russell, the Education Secretary, might have to give evidence in defence of his Government's policy.
Should the SNP administration lose, then it
could blow a multi-million pound hole in the budgets of Scottish universities and hinder their ability to compete with English rivals.
Aidan O'Neill QC, one of Scotland's leading advocates, has been advising PIL on its case. Edinburgh-based lawyers Balfour and Manson are also set to be a part of the challenge to the policy, which critics have branded "fees apartheid".
Phil Shiner, the leading lawyer at PIL, told The Herald last night: "Our clients aim to lodge judicial review proceedings in the spring.
"Discrimination law is there to prevent indirect as well as direct discrimination. It provides some flexibility to public authorities but it clearly prevents them from allowing Scottish and other EU students to study for free whilst English, Welsh and Northern Ireland students pay up to £36,000 for the same degree.
"A responsible Scottish Government ought to safeguard its higher education system in a proportionate and fair way."
The SNP Government's policy of allowing Scottish universities to charge English students up to £9000 a year has sparked a widespread debate, including heated opposition south of the Border.
This is because, under the policy, not only do Scottish students have their fees paid for by the Scottish Government but so too do students from other EU member states. European law makes clear students from EU member states cannot be offered a worse deal than home ones.
However, the devolved settlement has led to Holyrood allowing Scottish universities to charge English, Welsh and Northern Irish students fees.
A number of institutions, including the universities of Aberdeen, Dundee, Edinburgh, Strathclyde and St Andrews, have said they will charge the full £9000 from this autumn, although some will cap a four-year charge at £27,000.
A Scottish Government spokesman said: "The case is clearly invalid because tuition fee arrangements are based on domicile not nationality.
"We are committed to free access to higher education based on ability, not the ability to pay.
"The Scottish Government ensures that Scots-domicile undergraduates studying in Scotland pay no tuition fees – it is Westminster which refuses to pay for students from England.
"The UK Government's actions to increase tuition fees in England meant action was needed to ensure continued access to Scottish universities for Scottish-based students – however, the situation where students from other parts of the UK pay fees in Scotland and EU students do not has been in place for well over a decade.
"The Scottish Government is pursuing the idea of a management fee for EU students."
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