Schrödinger's Victoria Sponge

We're not terrifically good at this European lark, are we? The SNP government's canny sense of strategy has seemed to desert it again and again in matters touching on the law of the European Union. For the weary nationalist consumer of the Scottish media, another round of negative headlines in the papers this week might suggest the outbreak of another baseless scare story about Scottish independence. But it isn't.

The idea that an independent Scotland would be able to continue charging English students fees for studying in Scottish universities is an unforced - and totally pointless - error. There may be an argument for it, but it is frustrating to see the Scottish Government's old bad habit of overegging legal arguments, transforming balanced contentions into definitive certainties, re-emerge so early in the referendum year.

Frustrating, not least, because it gives Unionists a wholly unnecessary free shot at our vitals, insidiously undermining the SNP's credibility yet again on European issues. Playing target-practice with your own toes may wile away the long winter evenings, but it isn't a constructive pastime for a government waging an uphill war to convince the Scottish people that they may be confident that independence is a credible project. As I observed yonks back, about the absence of law governing Scottish accession to the EU, uncertainty which cannot be eliminated, can't be avoided.  There's no point pretending that everything's crystal clear, when your opponents have a pail of mud to hand and a will to chuck it. And legally credible mud at that.

The basic position in European law is that you cannot discriminate against EU citizens on the grounds of their nationality, as University of Edinburgh law professor Niamh Nic Shuibhne has explained estimably clearly. There are some circumstances in which this general rule against discrimination may be disapplied, where the government is able to show objective justification for the discrimination. These depend on whether the discrimination is direct or indirect. Niamh, who knows a good deal more about the European Court of Justice's approach to these issues than I do, concludes that the Scottish Government may have a legal argument - but it is a shoogly one which they can have no confidence whatever that the Court will accept, given the tribunal's current case-law on non-discrimination in the educational field.

This should chime with our intuition, and the evidence of our own eyes. If it would be legally permissible under EU law for an independent Scotland to discriminate against EU students in this fashion, why do we currently allow Irish and Belgian and Austrian students to study here without paying an additional penny for their degrees? I'm at a loss as to why the rhetoric seems to have shifted us from a straightforward and credible position, exposing the government to yet another round of negative commentary, insidiously undermining confidence in its judgement and contributing another unwelcome strand to the theme that it doesn't know its business where the EU is concerned.  

Try something like this on for size: the principle of free access to higher eduction is of fundamental importance to us, as is full participation in the European Union and the citizenship rights it enshrines.  An SNP government will do everything in our power to preserve that social compact with students and parents, come what may, in an independent Scotland.  

Independence poses some new challenges, but they are not insurmountable challenges. For understandable reasons, the free universities of an independent Scotland could exert considerable attraction on English students who would face far steeper expenses to study south of the border. Under the current settlement, we are able to charge English students fees.  

Under European Union law, however, it is considerably more doubtful whether we could continue to do so after independence.  Our first priorities are to find mechanisms within the law of the European Union to do so, and objectively to justify treating English students differently. Scottish institutions of higher education are subject to real pressures and we believe that EU law should recognise that.  Our legal advisors suggest this may be possible, but cannot give cast-iron guarantees. 

If it does not prove possible to distinguish between different students in this way, the policy of free higher education will be maintained, and additional resources will be found to meet the additional cost, as they are found to cover the expense of French and Dutch and German students, taking advantage of Scotland's institutions of higher education at present. 

The downside? Another spending commitment for an independent Scotland. Better Together might grouse about that, but it is not a great story. The upside? This formulation poses no questions about the SNP leadership's competence and candour when it comes to EU law. Sure, it owns up to another uncertainty about independence, but it wouldn't have generated headlines like this.  It is clear and honest and principled.

All of that said, I'd be fascinated to hear how the underlying assumptions of the SNP's unionist critics are remotely reconcilable. Weeks by, we've heard palpable glee from Tory and Labour and Liberal politicians, and their constitutional fellow travellers, arguing that negotiated entry from within wouldn't work, and Scotland would be booted out of the European Union and its citizens' rights to free movement, extinguished. Or to use their preferred formulation, there could be "no guarantees" that an independent Scotland would be "allowed into" the EU. For this round of slagging, we're being asked to assume that Scotland would be admitted to the European Union in short order after independence. The volte face, and the chopping and changing basic assumptions, is made without blinking or blushing. 

The irony of course being, if Scotland was outside of the EU, then none of this would be a problem.  There would be no free movement of persons, and you could squeeze a pretty penny out of students arriving here from any European Union country, including rUK. Alternatively, if Scotland was inside the EU but England and her provinces were out, fees wouldn't be a problem either, as the English students would enjoy none of the rights of  EU citizens. The same goes for a situation where both Scotland and the rUK sat outside of the European Union. This whole argument is predicated on the assumption that both Scotland and rUK would remain EU states. There are no "guarantees" about which of these four options will obtain, I suppose, but they can't all be true simultaneously. 

Wanting to have your cake and not have your cake and eat it and not eat it? The paradox of Schrödinger's Victoria sponge.  Or should that be Schrödinger's petite madeleine, sachertorte or panforte?