16 January 2014

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?


  1. I'm with you on the shakeyness of the current position, but if it turns out that free tuition can't be restricted to Scottish students and (the tolerably-thin-on-the-ground) EU-non-rUK students, then the policy becomes untenable. Free tuition would just have to be scrapped. It'd just be something that we could only do outside the EU. That would be a credible line to take by the SNP.

    The SG are currently arguing that it'd need to make big cuts to fund their White Paper childcare policy with devolution (because it's not self-funding without the extra income generated flowing back to the SG), meaning that the policy is a non-starter without independence.

    The same problem (massive outflow of money) would apply to any 'Roll-up roll-up English, Welsh, and Northern Irish chums! Free university education on us!' policy with independence.

    They're already planning to whack up the foreign aid budget to the UN recommended level. Making the foreign (wait, not foreign;)) aid budget to England bigger still wouldn't be popular.

    1. I wonder what a credible estimate of the costs of paying the fees of rUK students would be. Someone must have put a rough and ready number on it. Really ought to have looked it up before writing this --

  2. There will be a point though where the numbers are "just right" to confer a net economic benefit to Scotland. That sweet spot will likely not be very easy to attain or maintain though.

    Though there seem two very obvious, and reasonably sensible remedies, and one quite silly one.

    1. Abolish free tuition and replace it with a system whereby students who have received Scottish qualifications and been domiciled in Scotland for a set number of years before studying received full grants.

    Which is in effect free tuition for Scottish students paid for everyone else. (Similar to some models found within the EU)

    2. Ramp up the entry requirements for Scottish courses artificially. So that foreign students need far higher grades to get in. But do this in such a way it looks more like a quota system for home students (again there are some parallels within EU).

    And the entirely silly option:

    3. offer courses in Scots/Doric/Lallands etc as oppossed to English that are "fee free" and courses in standard English that are not. (This is the Scandinavian approach. Which sounds silly until you realise that the difference between Norwegain/Swedish wasn't a language until politics happened.)

    1. You could drop the whole idea of "independence" then we could stop worrying about slicing the logic and go back to not discriminating against the English. That would be nice

    2. Drop the whole idea? No, let's debate it some more. I volunteer you to speak for the No side.

    3. Teaching law in Doric! Capital notion. Takes you back the days of Braxfield, that. That should frighten folk from Kent.

  3. LPW, I just love your lawyerly language. "Scottish Government's old bad habit of overegging legal arguments" as a euphemism for lying (in terms of the debate, of course). Very good.

    Seriously. Don't you detect a pattern here? EU membership: don't know, have/have not got legal advice? Charging English students: don't know, have/have not got legal advice? Currency: don't know, maybe the UK Pound, they might not agree but we'll ignore that? Share of UK debt: won't take it if we don't get to use the UK Pound? Economy: everyone says we'll be worse off (in the short run at least) but we don't accept what everyone says, it suits us to believe that we will be better off, so we will !!!??? Child care: need indy to do it as well as Sweden when England is currently further on than we are and we already spend the same proportion of GDP on child care as Sweden does?

    Would you call that unprepared? Disorganised? Ill thought out? Lazy? Careless? Couldn't care less?

    It's a shambles, and no mistake. The tuition fees mess is just (another) symptom.

    1. Braveheart,

      Shadowboxing with the law is not an unknown habit on the Unionist side of the political aisle either...

  4. Good post.

    It's always seemed unlikely that specifically applying tuition fees to rUK students (though arguable) would ever actually be approved by the EU.

    However, Niamh Nic Shuibhne also pints out that there is a difference between fees (not able to be discriminated in favour of residents) and maintenance grants (allowable to residents only).

    Isn't it possible to introduce fees, but provide a level of maintenance grants to residents (regardless of citizenship) that would allow students to pay these fees?

    Secondly, what is the net loss/gain to the Scottish economy of providing fee-free places to EU students compared with their spending within the Scottish economy? Could that be at a level equivalent to the grants to companies that provide employment in Scotland? What evidence is there as to the proportion of non Scots residents that remain here after graduation, and continue to contribute economically?

    A number of tuition fee free systems are available in a number of parts of the EU.
    What have the effects of that been (and if ruinous, why did they do that?)

    A cost/benefit analysis seems essential to judge what the total costs would be to Scotland.

    1. oldnat,

      Good questions. As you say, there are a range of mechanisms we might try to employ to work around the problem, if the headline discrimination becomes impossible. A topic for another post!

  5. I comment with very little education in law, but with a willingness to learn.

    The problem as I see it, and presumably as the Scottish Government sees it, is that we wish to maintain a policy of no-fee higher education yet provide places for Scottish residents who wish to study in Scotland. At the same time we are committed to welcoming people from other nations to study at our institutions, as they do now.

    The situation with us becoming a member state of the EU is that, as stated, rUK will be a separate member state and their students should be allowed free education. The problem, as the Scottish Government has recognised, is that our close geographical neighbour has ten times the population, which can access Scotland very easily, and which speaks the same language.

    Now, faced with spending up to £9,000 per year in the rUK, or going to a Scottish institution and paying nothing, it is easy to see that most people from rUK are going to apply for a place north of the border. As Scottish universities will have to select on merit they could, potentially, have to accept 10 rUK students for every 1 Scottish student. This does not currently seem to be a problem with applicants from other EU member states, but applicants from the newly separate state of the rUK would instantly make Scottish higher education unworkable.

    The Scottish Government has set out its position in its White Paper, and, in education as in other areas, this is what this particular government wants to achieve. It has received legal advice, believes these things to be achievable and needs to negotiate with its partners to bring them about. It cannot guarantee everything, but it should be fairly confident that it can maintain no-fee higher education. The freedom of movement enshrined in the EU is a noble aim, but surely it wasn't implemented to enable one member state's students to virtually fill a neighbouring state's higher education system. I can understand that any exemption (derogation in treaty-speak?) would require evidence, but surely this wouldn't be difficult in this case.

  6. It's an open goal and I'm surprised that nobody has kicked the ball into it. For months the "Tory and Labour and Liberal politicians" who have given you such palpable glee (and the Daily M which you link to) have been making out that Bulgarians and Romanians are second-class Europeans or only Europeans via some unfortunate oversight. They have actually threatened to change the law to discriminate against them. A bit difficult, on moral grounds at least, to argue that laws against discrimination should be applied within Higher Education but disapplied everywhere else. That's a hearty appetite coupled with one heck of a Victoria Sponge.

  7. I agree with Sunshine on Crieff. Take a look at the White Paper.

    The negotiators will be armed with legal advice, well thought out arguments and a willingness to negotiate. If, after negotiations with the EU, it cannot be done with our present system, I see nothing in the White Paper there that would prevent the SG from adopting an entirely different process which would lead to the same end. I am sure that there are many examples of different systems within the EU of what can be done. What a pity none of our media has ever done any research in this area – but perhaps there is an academic paper somewhere? If there is, I'd be willing to bet that the SG already has a copy.

    SG style is radically different from the Westminster style, which is first to make loud public pronouncements of the demands, then lecture other EU members about what they should be doing (the Westminster way of course). Next they attend negotiation sessions with an attitude of all of what we want or nothing – followed by stamping out in a temper tantrum when that is not forthcoming. Then they try all things to not comply (at substantial expense) and end up with less than reasonable negotiation would have achieved in the first place.

    I suspect that the Westminster belief that the timetable is not viable is based on their experiences with the EU using their method. Why would we be dumb enough to copy them?