A LEGAL challenge to the Scottish 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 could fail to materialise because of a lack of public funds, it emerged last night.

The Birmingham-based Public Interest Lawyers (PIL), acting for two clients, had intended to lodge a petition for judicial review at the Court of Session in Edinburgh in the spring but a lengthy process of seeking to get legal aid from the Scottish Legal Aid Board has delayed the attempt.

"We are expecting a final decision by the board in a matter of weeks. We are hopeful that legal aid will be granted," a spokesman for PIL told The Herald.

If the Board were to refuse both clients legal aid, then PIL could seek a judicial review but this would drag out the process.

Moreover, one possible outcome is that lack of public funds could mean no legal challenge to the controversial policy will be made at all.

Critics have dubbed the SNP Government's policy "fees apartheid" because not only do Scottish students have their fees paid for by Holyrood but so 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 the Scottish Government allowing Scottish universities to charge English, Welsh and Northern Irish students.

Yesterday, as this newspaper revealed, the difference between higher education policy north and south of the Border widened with the Scottish Government offering more than 100,000 Scottish students a £4500 loan from 2013 to help pay for their studies.

Phil Shiner, the leading lawyer at PIL, has argued that discrimination law prevents them from allowing Scottish and other EU students to study for free while English, Welsh and Northern Irish 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," he told The Herald earlier this year.

However, the Scottish Government believes the case against its fees policy is "invalid because tuition fee arrangements are based on domicile not nationality".

It has stressed that it is the UK Government which is refusing to help home students from England.