Uni fees: The woolly mammoth in the room...

I've said it before, but the thought bears repeating: there's no devolution without devolution.  Most of you will have spotted this week's higher education headlines. Although I'm not a regular reader, the Daily Mail offers the most pungent, pithy summary: Jennifer Watts, 19, leads "fees apartheid" campaign against Scotland's "anti-English" bias.  The whole ballyhoo rumbled into life when English lawyer, Phil Shiner, told the media that he intends to challenge the lawfulness of differential university fees, which will see Scottish-resident students in Scottish institutions receiving free higher education, while non-resident UK students who propose to take their degrees north of the Border will have to stump up (likely) hefty fees, at levels to be determined by the Universities themselves.

Thus far, only my sister's alma mater, the University of Aberdeen, has announced its decision, deciding to cap their chargeable fees at £27,000 for students from outside Scotland, an equivalent cost to English three-year degrees, charged at £9,000 per annum - with the last, fourth year uncharged.  Lurking pregnantly behind all of these calculations is European Union Law, a subject I'm catastrophically ignorant about.  My understanding of the situation, such as it is, is that we are obliged to educate students from EU member states on the same terms as "local" students, meaning higher fees cannot be levied and the same grants must be awarded. Swede, Dutchman or Pole - all must be charged the same, or nothing at all, if Scots pay nothing. Fees required of an Englishman in Edinburgh, by contrast, do not engage EU law, as funding choices are internal matters within a member state. If Scotland were to be independent and within the EU, EU law would be engaged and English students would join their Swedish, Dutch and Polish fellow EU citizens, enjoying free higher education in Scotland alongside their Scottish companions. 

As some have pointed out, for Scottish nationalists, this means that any policy of levying substantial fees on students from the rest of the UK while keeping free provision for Scottish students must needs be a transitional measure at best, requiring revisiting and revision if and when Scotland becomes an independent state within Europe. While the current policy does pose future questions, and the pertinence of those questions for Nationalists shouldn't be denied, the limited serviceable life of charging non-resident UK students increased fees doesn't mean that it is wrong to do so. Any independence referendum is scheduled to take place towards the end of the present parliament, in 2014 or 2015. As I have noted elsewhere, there is the eminent possibility that Holyrood's Referendum Act gets waylaid by legal challenges to its legislative competence. Assuming the question is (or questions are) put before the Scottish people, and assuming they vote "yes", Scottish assumption of separate statehood is at the very least half a decade away.  By all means, shillelagh anyone daft enough to deny that higher education funding will become a problem for Scotland in Europe in a way that it isn't while Scotland remains in the Union, and while EU law remains uninterested in internal differences in treatment within states. Demand answers from nationalist ministers about their awareness of the issue, and ideas for funding higher education post independence during the referendum campaign. But a time-limited policy isn't necessarily a bad policy.

Others, like Phil Shiner, are keen to challenge the policy from within the United Kingdom, arguing that the funding distinctions based on residence or non-residence in Scotland are "unlawful".  Presumably, he has the Scotland Act 1998 in prospect, which limits the powers of the parliament and of Scottish Ministers. Both can only legally operate within EU law and the European Convention on Human Rights, a vires limit which I've extensively discussed in other contexts, including the as-yet undecided case brought by insurers in the UK Supreme Court, challenging Holyrood's pleural plaques legislation in similar terms.

The response to Shiner's attention-grabbing announcement has been startling. Perhaps most surprisingly is how seriously this declaration of legal activity has been taken, cascading throughout the press, attracting supportive editorials and articles and comment. In life, plenty of fruitcakes and would-be vindicators of their rights earnestly cry "see you in court!" when subject to perceived slights or injustices. Where our enthusiastic would-be litigant lacks legal know-how, we have good grounds to be skeptical of their claims. As we saw recently with Geoffrey Robertson QC's astonishingly ignorant appearance on Newsnicht, talking rot about Megrahi, being up on your English law doesn't necessarily warrant any faith that your understanding of Scottish jurisprudence is up to snuff.  Yet Shiner's envisaged litigation - which incidentally, he is unable personally to bring and will have to instruct Scottish solicitor and counsel - has been reported with remarkably little skepticism. Some are even taking up the prospect with enthusiasm, wishing him well. But why? LoveandGarbage offered this explanation...

"It has been taken seriously because lots of people are stupid. And prone to fall for publicity stunts by clowns."

While I'd agree with Scott that Shiner's legal case seems tenuous at best, I'd supplement his comments with a broader observation that the tale has gained such purchase because it contributes to a persistent but rather confused analysis of political differences in the UK - and sour England.  I come back to the point: there's no devolution without devolution.  I have a good deal of sympathy for students in England, and their distress to see that Scottish students attending Scottish institutions do not share the burdens of debt which are now being imposed on them by their government. However, the whole purpose of devolution is that within the compass of devolved matters, the constituent parts of the UK may pursue different tacks, within certain constraints, funding or defunding what they like to rates which satisfy them, bearing costs or shifting burdens.  In that context, how are we to understand the ideas of fairness, discrimination, apartheid and inequality which are being used by campaigners like Jennifer Watts and their process servers? There is a legal dimension which I don't propose to get into. I'm more interested in the general ideas underpinning their position.

Consider the situation of a simple tribe of hunters, pursuing a toothsome mammoth for their supper.  Five hunters were involved in various capacities. Imagine one man dug a pit and lined it with devilish looking stakes. Three, by an exercise of their greater skills (at least according to this small community's values), sought out, discovered and flushed the creature from its hiding place right into the pit scoured out by their comrade, killing the unfortunate beastie stone dead. The great woolly monster having been clobbered, their colleagues exhausted, the remaining hunter took up the tiring, but more middlingly skilful work of skinning, chopping up and carting off their dinner. But what is a fair distribution of the spoils? That can depend. Egalitarian souls, this tribe may divide up their winnings equally, recognising the effort and part played by each participant. Each receives one fifth of the mammoth (bracketing the potential for any choice cuts over which people might squabble). Alternatively, this band of hunters might keenly feel the differences between diggers, chasers and butchers. These three groups not being taken to be of equal skill, it would be unjust equally to reward each actor in this drama. According to their ruling ideas of a just distribution, a chaser's contribution is twice that of a butcher, which is double that of a digger. Each chaser receives four times as much mammoth meat as his digging colleague. The chasers carry off 12/15ths of the slain behemoth, the butcher takes 2/15ths while the lowly digger rejoices in a single 15th.  On the first conception of justice which sees all participants are equal, this second distribution of the meat looks unfair. For the second, the equal distribution of meat is unfair as it treats unequal people equally, denying some folk what they deserve while rewarding the undeserving. At least according to the hunters' particular account of a just distribution.

Adjust the tale slightly. The mammoth is now hunted by the combined forces of the two tribes, the Equal Distribution tribe and a group espousing the view that a just distribution treats different hunters involved differently. The first tribe is only a third of the size of the second, but between them, they bring the thundering beastie down. According to their dominant account of just division of the spoils, the mammoth is carved up and divvied out proportionally to the size of the families involved in chasing it down and slaying it. These two groups are less interested in giving each man what he is due, but focus instead on a just distribution between families, which may then order their own distribution of their meat as they see fit.  To do so is only wise, given their incompatible ideas of justice when it comes to giving each man what he is due.  The minority equal distributors will each enjoy an equal share of their part of the animal, while the second family may apply its idea that hunters should gain more than butchers - and so on. Notice here that between the initial cut and the final distribution, two different conceptions of justice mediate.

Although a very simple example, the divisions of the mammoth point up a few instructive points about the recent UK arguments which appeal to equal treatment and the "problem" of differential treatment, whether in terms of university fees, free personal care, prescriptions - or what have you. Firstly, appeals to ideas of "equality" are often much more complex than they appear and are not necessarily incompatible with extensive differences in the treatment of people. As we have seen, while to give hunter A and hunter B the same quantity of meat is an equal distribution in a simple sense, whether or not this is a "fair" distribution will depend on the idea of equality promoted. To return to the more concrete contemporary political example of university funding, it is familiar to deploy the language of equality and fairness, but generally to leave implicit the theories of a just distribution which informs core concepts being used.

Here, I think, two discourses coordinate. Firstly, it has been common to justify the English massive increases in fees for students on the basis that they are necessary, rather than political choices made amongst other options. Accompanying statements of this sort, even the most inveterate Tory MP has frequently reassured us that "I'd love to be able to give every student free education, but because of [insert calamity] we just can't afford it". Looking north to Scotland rebuts this proposition, or seems to. Enter the idea that a mooching celtic fringe is bankrolled by English taxpayers. Let's bracket the tortured question about rates of Scottish public spending for now. Look at the argument. To all intents and purposes, our Tory MP is like a disgruntled digger, disappointed in his own gristly supper, who greedily eyes the dinner an ordinary member of the Equal Distribution tribe enjoys, and assumes that the initial distribution of the mammoth between the groups must have been unfair. How else could it have come to this pass, that his repast is so meagre, while his colleague across the fire, who joined him labouring in the pit early in the day, eats so heartily?

He might even appeal to ideas of equality to express his dismay at his grumbling, unfilled belly, and accuse his better-fed opposite number of jiggery-pokery and of gobbling unfair benefits.  In order to reach this conclusion, however, our shallowpated digger is forced to ignore the mediating role played by his own tribe's idea of what a just distribution of mammoth chops consists in. In our contemporary example, this is invisible England, whose choices are obscured. He collapses the two mediating ideas of fairness - a fair distribution of the kill between groups, and the group's internal distribution of its edible goods - into one. Having jealous eyes only for the amount of meat on their trenchers, he sees the whole body of humanity feasting off the kill as part of the same community, his envious gaze obliterating the division between tribes which gives his dinner its intelligibility.

Miss Watt's case about tuition fees is similar. With an eye only for the outcomes for individual students,  her use of the language of equality is totally inappropriate, and to accede to its relevance is radically to undermine the whole rationale of devolution.  It is simply incoherent to say that you are not opposed to devolution, but wish for English patients or Scottish students to enjoy precisely the same rights and services, and anything less is unjust, unequal and unfair. What the devil do you imagine devolution is for, if not to allow folk to make different political choices? In what strange shape do you think devolution could survive, if it were strictured to observe this sort of uniformity (which, incidentally, didn't even exist before 1998)? To be devolved is precisely to forgo ideas of equal treatment of people in Scotland and England, England and Wales, Wales and Norn Iron. We may argue about the broader levels of funding different parts of the state receive - how the mammoth is initially divided - but we cannot stay two tribes or four tribes able to determine their own ideas of a just and fair distribution of goods, and insist that all people in all tribes should get precisely the same dinner. That education is free in Scotland for Scots residents and wildly expensive in England indicates little about whether the overall distribution of public monies in the UK is fair. What goes unnoticed in all of this, is that if the Scottish Government is willing to assume funding burdens which the UK Government wishes to forgo, is that they will have less money to spend on other areas of governmental activity.

In sum, there's no devolution without devolution.