Leader: If EU students get free tuition in Scotland, English ones should

It is absurd that EU students receive a free university education in Scotland, while UK students pay

The 189,000 people who failed to win a place at university this year have even more reason than usual to bemoan their fate. Should they reapply, as many will do, they face the prospect of paying up to three times more for the course of their choice from September 2012. When the tuition fees bill was passed by a majority of just 21 votes in December, ministers assured the public that universities would charge £9,000 in "exceptional circumstances" only. Of England's 123 universities, however, 47 plan to levy the maximum fee for all courses. The average fee for institutions will be £8,393, far higher than the government's forecast of £7,500.

In Scotland, a different order prevails. Alex Salmond's Scottish National Party (SNP), which abolished the graduate tax introduced by the previous Labour-Liberal Democrat coalition, has maintained its pledge to provide free higher education for all Scottish students. As a result of the European Union's ban on interstate discrimination, the country's universities are also legally obliged to offer free entry to EU students but, because of a loophole, they are able to charge English, Welsh and Northern Irish students fees of up to £1,890 per year (£2,985 for medicine) - a figure that will rise nearly fivefold to £9,000 from 2012. Under European law, it seems, it is permissible to discriminate within states but not between them.

Now, at last, this bizarre legal interpretation is coming under scrutiny. Phil Shiner, of Public Interest Lawyers, is preparing to challenge the fees rise in Scotland on the basis that it contravenes Article 14 of the European Convention on Human Rights, which prohibits discrimination based on "national or social origin", as well as the Equality Act, introduced by the last Labour government.

We welcome Mr Shiner's intervention. It is absurd that students from Berlin, Lisbon and Madrid, whose parents contribute nothing to the national Exchequer, can receive a free university education in Scotland, while those from Belfast, London and Swansea are required to pay full fees.

Over the past decade, the number of EU students at Scottish universities has doubled to 15,390 and the annual cost to the Scottish taxpayer now exceeds £75m. The SNP's decision to force non-Scottish British students to pay is a cynical attempt to plug a £202m university funding gap.
The resentment felt by English students, who will soon pay the highest public university fees in the world, will further destabilise the Union. Free higher education is one of a panoply of benefits now enjoyed by Scottish citizens. Since taking office in 2007, the SNP has abolished NHS prescription charges, frozen council tax and introduced free school meals for all pupils aged five to eight. In addition, it has preserved free personal care for the elderly. Such policies may be politically canny but they have created a £10.5bn fiscal black hole.

The growing disparity between the two countries is a reminder of the incomplete nature of Britain's constitutional settlement. The UK is now neither a unitary nor a federal state and its largest constituent group - the English - feels increasingly unrepresented. For too long, politicians have complacently ignored threats to the Union; they must now act to repair our disunited kingdom before it is too late.