Halsbury's Law Exchange blogger Geoffrey Bindman wades into the row over Scottish university fees
"It has been reported that a firm of solicitors, Public Interest Lawyers, is launching a challenge to the decision of the Scottish government to impose tuition charges on students in Scottish universities who are ordinarily domiciled in England.
The basis of the challenge appears to be that the imposition of charges amounts to unlawful discrimination against those students by comparison with students of Scottish domicile for whom tuition is free of charge.
No details of the legal arguments supporting the claim have been published but the firm has already been given leave by the High Court in England to seek judicial review of the increase in English tuition fees on the ground that the scheme discriminates against poor and ethnic minority students.
Our law has been developing and extending the principle of equal treatment in the distribution of social benefits at least since the Race Relations Act 1965. Some argue that equality is becoming a constitutional principle. In the intervening years the prohibition of discrimination has been extended beyond race to other grounds, partly as a result of the issue of European Directives and the impact of the European Human Rights Convention and the Human Rights Act. Even conduct which is not directly discriminatory on these grounds may be unlawful if it has a discriminatory impact which cannot be independently justified.
Two sources of authority seem likely to govern the initiative now being taken. One is the Race Relations Act 1976, which continues to prohibit discrimination on the grounds of ‘colour, race, nationality or ethnic or national origins’ within the UK by those in charge of educational establishments in—among other matters—the ‘terms of admission’...’”
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